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Nova v. Shinseki

Nova v. Shinseki

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Court Order to show cause
Court Order to show cause

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Published by: Jim on Mar 22, 2013
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12/08/2014

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United States Court of Appealsfor the Federal Circuit
 ______________________ NATIONAL ORGANIZATION OF VETERANS ADVOCATES, INC.,
 Petitioner,
 
v.
 
SECRETARY OF VETERANS AFFAIRS,
 
Respondent.
 
 ______________________ 
2011-7191
 ______________________ 
On petition for review pursuant to 38 U.S.C. Section502.
 ______________________ 
R
OMAN
M
 ARTINEZ
, Latham & Watkins, LLP, of Wash-ington, DC, argued for petitioner.J
OHN
J.
 
T
ODOR
, Trial Attorney, Commercial LitigationBranch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. Withhim on the brief were S
TUART
F.
 
D
ELERY 
, Acting Assistant Attorney General, J
EANNE
E.
 
D
 AVIDSON
, Director, andT
ODD
M.
 
H
UGHES
, Deputy Director. Of counsel on thebrief were M
ICHAEL
J.
 
T
IMINSKI
, Deputy Assistant Gen-eral Counsel, and J
ONATHAN
T
 AYLOR
, Attorney, UnitedStates Department of Veterans Affairs, of Washington,DC,
 
NATIONAL ORG OF VET ADV
v.
SHINSEKI
 2
Before O’M
 ALLEY 
,
 
P
LAGER
,
AND
R
EYNA 
,
Circuit Judges
.P
LAGER
,
Circuit Judge
.
 ______________________ O R D E R ______________________ 
The National Organization of Veterans’ Advocates,Inc. (NOVA) petitioned us to review a rule promulgatedby the Department of Veterans Affairs (VA). The ruleeliminated certain procedural and appellate rights forveterans appearing before the agency’s Board of Veterans’ Appeals (Board). During the briefing process before thiscourt, it became clear to all parties involved that thepromulgated rule was invalid. In spite of this—andcontrary to express promises from VA to NOVA and thiscourt—the Board in subsequent decisions was allowed tocontinue to follow the invalid rule.Because we find the Government’s conduct in thiscase to be potentially sanctionable, this is an Order forthe Government to show cause why sanctions should notbe imposed on the responsible officials. So there will beno misunderstanding, we explain in detail the conduct weconsider sanctionable. We also identify the harms weconsider to have resulted from the Government’s conduct,and suggest ways these harms could be alleviated; theGovernment’s showing in response to this Order will bearon whether sanctions are imposed, and the nature andextent of any such sanctions.B
 ACKGROUND
 The Department of Veterans Affairs administers thelaws providing benefits and other services to veterans.
See
38 U.S.C. § 301
 
(2006);
see also Henderson v. Shinseki
,131 S. Ct. 1197, 1200 (2011). A veteran seeking benefits
 
 
NATIONAL ORG OF VET ADV
v.
SHINSEKI
 3
may submit a claim to a VA regional office, which pro-cesses the claim and decides whether to grant benefits tothe veteran. If the veteran disagrees with the regionaloffice’s decision, the veteran may request that the Boardof Veterans’ Appeals review the regional office’s determi-nation.
See
38 U.S.C. § 7104.
 
The veterans’ benefits system has been calibratedwith uniquely pro-claimant principles.
Hodge v. West
, 155F.3d 1356, 1362 (Fed. Cir. 1998) (“This court and theSupreme Court both have long recognized that the char-acter of the veterans’ benefits statutes is strongly anduniquely pro-claimant.”). Consistent with these pro-claimant principles, and pursuant to statute, the VA regulations in 38 C.F.R. § 3.103 provide for certain proce-dural due process and appellate rights for veterans in-volved in VA adjudications.These procedural and appellate rights require VA offi-cials to “explain fully the issues and suggest the submis-sion of evidence which the claimant may have overlookedand which would be of advantage to the claimant’s posi-tion.” § 3.103(c)(2). They also require the VA “to assist aclaimant in developing the facts pertinent to [his or her]claim” and “to render a decision which grants everybenefit that can be supported in law while protecting theinterests of the Government.” § 3.103(a). Importantly,the VA has consistently applied the § 3.103 rights both tohearings conducted at the regional offices level and inappellate hearings conducted before the Board of Veter-ans’ Appeals.
See, e.g 
.,
 Douglas v. Derwinski
, 2 Vet. App.435, 440–42 (1992),
aff’g on this ground
 
 Douglas v. Der-winski,
2 Vet. App. 103, 110 (1992);
Costantino v. West
, 12 Vet. App. 517, 520 (1999).On August 23, 2011, VA issued an immediately-effective new rule (the “2011 Rule”) that eliminated someof the rights previously provided under § 3.103.
See
RulesGoverning Hearings Before the Agency of Original Juris-

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