November 2012 A monthly newsletter for NOVA members

NOVA Interviews Roman Martinez about Pro Bono Case NOVA recently caught up with Roman Martinez to discuss his involvement with pro bono work on behalf of veterans. Heres what he had to say about the challenges and rewards of his case against the VA. Why and how did you end up taking the case? I served as a civilian policy advisor in Iraq before I went to law school, and during that time I developed enormous respect for the men and women of our Nations armed forces. When I started as an attorney at Latham & Watkins in 2010, I was looking for an opportunity to do pro bono work on behalf of veterans. Our firm had recently filed an amicus brief on NOVAs behalf in the U.S. Supreme Court, and when I learned that NOVA was interested in challenging a VA regulation depriving veterans of various due-process rights in their hearings before the Board of Veterans Appeals, I jumped at the opportunity. Did the case proceed as you expected? Not at all. There were surprises every step of the way. At the outset, I was shocked that the VA had enacted this rule in what seemed to be such a clear violation of the Federal Circuits binding precedent in the Purple Heart case from 2009. After we filed our brief, I was surprised but elated that the Justice Department had agreed with us that the rule was invalid and would have to be repealed. The VA promised to cease applying the illegal rule immediately, and it was quite unexpected when I learned from a whistleblower within the VA several weeks later that the Board was continuing to apply the rule as if nothing had happened. And I was especially disappointed when the VA refused to take steps to fix their mistake. What have you learned from the experience? I have learned a lot about the real-life challenges that veterans face in navigating the claims process before the VA. The VA is supposed to make sure that veterans receive the benefits they have earn ed, but thats not always how it works in practice. The Justice Department has told the Supreme Court that in over half of the cases before the Board, the VA takes a litigating position against the veteran that is so unreasonable as to be substantially unjustified under the law. In this case, the VA tried to get away with illegally enacting a rule that would take rights away from veterans and make it harder for them to establish their benefits claims. Even after admitting that the rule was invalid from the moment it was promulgated, the VA has refused to do anything to help any of the veterans who were harmed by the rule. All of this drives home to me how important it is for veterans to get help from lawyers and groups like NOVA, when defending their rights before the VA. Challenging a regulation is a big task -- how did you go about drafting the briefs and preparing for the argument? I was very lucky to have the full support of my law firm, Latham & Watkins. The chair of our Supreme Court & Appellate Litigation practice group, Greg Garre, agreed to supervise my work on this project. One of our extremely talented associates, Brian Schmalzbach, played a big role in researching and drafting the briefs and helping me get ready for the argument at the Federal Circuit. A number of other partners and associates helped me strategize about the case and anticipate the various questions that the judges might ask. Latham takes its commitment to pro bono cases very seriously, and my colleagues and I were excited to have the chance to support our Nations veterans.