[00:00:00] Speaker 11:
The United States Court of Appeals for the Federal Circuit is now open and in session.

[00:00:06] Speaker 11:
God save the United States and this honorable court.

[00:00:11] Speaker 07:
Good morning, all.

[00:00:12] Speaker 07:
This is Chief Judge Prost.

[00:00:14] Speaker 07:
I now call up case number 21321, National Organization of Veterans Advocates versus Secretary of Veterans Affairs.

[00:00:25] Speaker 07:
As Mr. Lichtenberg referenced and his counsel know,

[00:00:28] Speaker 07:
The argument this morning will take place in two parts.

[00:00:32] Speaker 07:
The first part is 20 minutes for the standing question, which was the subject of supplemental briefing last month.

[00:00:40] Speaker 07:
The 20 minute time frame will be divided equally with Nova going first, and Mr. Martinez has reserved two of his 10 minutes for rebuttal.

[00:00:49] Speaker 07:
The first two minutes for each side will be uninterrupted argument.

[00:00:54] Speaker 07:
The remainder of the time will be open to questions from the court.

[00:00:58] Speaker 07:
Now in contrast to the second part of the argument today in which all judges may participate in questioning and we will be called on for questions in order of security, we're trying to keep this part on standing a bit simpler.

[00:01:14] Speaker 07:
So three of our judges, Judge Dyke, Judge Toronto, and Judge Chen will be called on to ask any questions they may have for one or both sides on standing.

[00:01:26] Speaker 07:
When this standing section concludes, we will move on to the merits argument, which I will describe in a bit more detail when we get to that point.

[00:01:36] Speaker 07:
Mr. Martinez, the floor is yours.

[00:01:40] Speaker 02:
Good morning, Chief Judge Prost and may it please the court.

[00:01:43] Speaker 02:
For two decades, this court has recognized NOVA's right to protect veterans by challenging unlawful VA action.

[00:01:50] Speaker 02:
This case should be no exception.

[00:01:52] Speaker 02:
Four quick points about standing.

[00:01:54] Speaker 02:
First, NOVA has associational standing here under any conceivable standard based on our veteran members, Mr. Chanchetta, Mr. Tangen, and Mr. Regis.

[00:02:04] Speaker 02:
All three satisfied the injury and fact requirement when NOVA filed its petition in January, and all three continue to satisfy it today.

[00:02:11] Speaker 02:
And there's no doubt this case is germane to NOVA's mission of helping veterans and their advocates.

[00:02:17] Speaker 02:
That's what this court held in DAB versus Gober, and it's only confirmed by Ms.

[00:02:22] Speaker 02:
Rauber's uncontroverted declaration.

[00:02:25] Speaker 02:
Second, although VA says that Gober's injury and fact analysis was wrong, you shouldn't reconsider Gober in this case.

[00:02:34] Speaker 02:
Gober took a broad view of veterans standing, but we can win here under our narrower point that we have standing based on the concrete harms facing Tanchetta, Tangen, and Regis.

[00:02:44] Speaker 02:
If you want to re-examine Gober's injury and fact analysis, you should do it in a case that concretely turns on that analysis.

[00:02:52] Speaker 02:
You should also do it in a case where the parties have fully briefed the Gober issue, which is nuanced and complicated.

[00:02:57] Speaker 02:
That didn't happen here.

[00:03:00] Speaker 02:
VA didn't challenge our standing initially, and your supplemental briefing order to the parties didn't question Gober's validity.

[00:03:07] Speaker 02:
Third, whether it's in this case or later down the road,

[00:03:11] Speaker 02:
you should be clear that at the very minimum, veterans with live disability claims have standing to challenge VA rules that affect those claims, including any procedural or structural rule broadly applicable to the disability claims process.

[00:03:27] Speaker 02:
That approach is consistent with the result in GOBER and also with finding standing in the Appeals Modernization Act cases that were argued yesterday.

[00:03:39] Speaker 02:
And finally, you should recognize that if VA's standing argument is accepted, it would be virtually impossible to use Section 502 in the way Congress envisioned to allow pre-enforcement judicial review of VA rules before those rules inflict unnecessary harm on veterans.

[00:03:55] Speaker 02:
Article 3 doesn't require that result.

[00:03:57] Speaker 02:
NOVA has standing, and this case should proceed on the merits.

[00:04:02] Speaker 02:
Judge Dyke.

[00:04:05] Speaker 01:
Thank you, Chief Judge Prost.

[00:04:08] Speaker 01:
Mr. Martinez, on the subject of Goldberg, I wonder if our panel decision went too far in recognizing that an organization such as NOVA has standing when it has a veteran member who might potentially be affected by the regulations.

[00:04:32] Speaker 01:
I wonder whether something more

[00:04:34] Speaker 01:
isn't required to satisfy the injury and fact requirements, such as, in that case, establishing that the organization had a veteran member who had a pending Q claim.

[00:04:48] Speaker 01:
And so my question is, isn't our decision at GOBRA perhaps a bit too broad in recognizing standing based solely on veteran status?

[00:05:02] Speaker 02:
Your Honor, thank you for the question and two points on that.

[00:05:05] Speaker 02:
First of all, I just want to reiterate, we think there is, you know, the VA has raised questions about gober's breath.

[00:05:12] Speaker 02:
And I think although those are questions that are fair questions to ask, I don't think you need to reach that question.

[00:05:17] Speaker 02:
But I want to answer the point that you're asking me about.

[00:05:20] Speaker 02:
I just want to confirm that we don't think you need to reach that in this case because we clearly have standing based on our three veteran members.

[00:05:26] Speaker 02:
With respect to whether Gober was too broad, I think the Gober standing holding was clearly correct in finding that Nova had standing in that case because of the veteran, because of the fact that the rule at issue there which affected sort of the structure and the process of the VA disability claims process.

[00:05:45] Speaker 02:
As you noted, Your Honor, it affected the standard for reconsideration of Q claims.

[00:05:51] Speaker 02:
And we think that's the kind of sort of broad structural or procedural type of rule that any member, or at least any member who has a live disability claim should be able to challenge.

[00:06:01] Speaker 02:
So we think to the extent that that's what GOBRA held, we think that's correct.

[00:06:04] Speaker 02:
And to the extent that there are questions about, you know, maybe whether there was language in GOBRA that went a little broader than that, we just don't think that that issue is really squarely presented in this case.

[00:06:14] Speaker 02:
And I think if you wanted to re-examine that, we would respectfully suggest that you do it in a case where it actually matters and where the parties have an opportunity to really brief the outer edges of standing and the outer edges of gober in a way that they haven't done so here.

[00:06:29] Speaker 02:
Judge Taranta?

[00:06:32] Speaker 05:
Thank you, Chief Judge Prost.

[00:06:34] Speaker 05:
Mr. Martinez, I have two factual questions which I want to follow up with a legal question or two.

[00:06:40] Speaker 05:
To the first factual question, do I understand correctly that NOVA now has a bid under 300 members?

[00:06:49] Speaker 02:
No, Your Honor.

[00:06:50] Speaker 02:
We have, I think, between 500 and 600 members.

[00:06:54] Speaker 02:
And a significant portion of those are veterans.

[00:06:58] Speaker 05:
OK.

[00:06:58] Speaker 05:
And under the bylaws, Article 3, is it right that being a veteran, let alone a benefits claimant, is not part of the membership criteria

[00:07:10] Speaker 05:
that focus on being a practitioner before the VA or Veterans Court so that an authorized representative to advocate for veterans can be a member, even if not a veteran, while a veteran cannot be a member if not an authorized advocate?

[00:07:29] Speaker 02:
I think, Your Honor, that it's true that nonveterans can be members of NOVA.

[00:07:36] Speaker 02:
I don't know, I don't want to

[00:07:39] Speaker 02:
to definitively say one way or the other whether a non-advocate who is not neither a lawyer nor a veteran's advocate can be a member.

[00:07:47] Speaker 02:
But certainly NOVA has members who are not veterans themselves.

[00:07:53] Speaker 05:
Okay.

[00:07:54] Speaker 05:
Well, as I read the bylaws, this is an organization of practitioners or intended practitioners before those two forums and being a veteran

[00:08:06] Speaker 05:
is the word happenstance is obviously not quite right since it probably is something of a correlation between being an advocate and a veteran, but that one does not in fact have to be a veteran and veteran status, I'm going to then just assume for current purposes, is not actually part of the membership criteria.

[00:08:26] Speaker 05:
And that actually leads me then to the question about whether that should matter for associational standing.

[00:08:35] Speaker 05:
That is, here, the three NOVA members' status as veterans with interest in benefits, which would, by assumption here, give those members their own standing.

[00:08:49] Speaker 05:
Should it matter that their injury is in a role, namely as veterans but not advocates, that's immaterial to the membership criteria in this restricted membership organization?

[00:09:00] Speaker 05:
And what case, if any, of the Supreme Court involves that kind of situation?

[00:09:06] Speaker 02:
So, Your Honor, I think a couple of points there.

[00:09:09] Speaker 02:
First, just to maybe go back to revise my answer because I've looked at the guidelines, the bylaws, I think there are certainly support staff and law students and others who are not lawyers who can be members of NOVA.

[00:09:24] Speaker 02:
So, just to answer that earlier question, with regard to whether it's happenstance or whether happenstance is enough,

[00:09:31] Speaker 02:
I think that, first of all, it's not happenstance because of the fact, of course, that veterans who are advocates are drawn to advocate for veterans' causes.

[00:09:40] Speaker 02:
That's part of the reason why they take up this field of practice.

[00:09:42] Speaker 02:
That's part of the reasons why they join.

[00:09:45] Speaker 02:
why they joined NOVA.

[00:09:48] Speaker 02:
I think, though, that this court's test for associational standing gets at the idea that maybe you're getting at through the germane-ness requirement, which is in addition to the requirement that an individual member of the organization have standing.

[00:10:02] Speaker 02:
And so the way that the Supreme Court's doctrine has set this up is

[00:10:05] Speaker 02:
There's essentially two Article 3 requirements for associational standing.

[00:10:11] Speaker 02:
One of them is simply that you have a member who has standing.

[00:10:14] Speaker 02:
And that we would satisfy by virtue of the veteran members.

[00:10:18] Speaker 02:
And I don't believe the Supreme Court has ever suggested, and I don't think VA has ever pointed to a case saying, linking that prong of the analysis to

[00:10:26] Speaker 02:
you know, to anything more than just having a veteran, a member who would have Article 3 standing in his own right.

[00:10:33] Speaker 02:
I think the question of whether this is really, you know, an appropriate case for this particular organization to be advancing the interest that that and protecting against the injury that those members would suffer, I think that's addressed by the second requirement relating to germanneness.

[00:10:50] Speaker 02:
And there DAB versus Gobert.

[00:10:51] Speaker 05:
Can I just, can I, Mr. Martinez, can I just follow up that piece and then I'll be,

[00:10:56] Speaker 05:
be done on the standing issue.

[00:10:59] Speaker 05:
So some of the cases, I think, talking about germanness or other, particularly germanness, make some sort of inquiry into possible divergence between an organization and the individual members whose own injury would give the individual members standing.

[00:11:16] Speaker 05:
And I wonder about whether there is, at least in general,

[00:11:20] Speaker 05:
or sometimes a divergence between an organization of advocates who are interested in the future pool of potential clients and those of individual veteran claimants who are interested in their own particular claims.

[00:11:36] Speaker 05:
One possible example of that might be NOVA's choice in this case to declare the two rules that issue to be interpretive rules, thereby setting up the need for a

[00:11:48] Speaker 05:
a ruling about what exactly that means under 552A, but giving up the contention that they're actually substantive or legislative rules, which would indisputably come within 502 jurisdictions.

[00:12:04] Speaker 05:
So I guess I'm interested in, again, under this Germaneness heading, whether an organization of advocates

[00:12:14] Speaker 05:
might have a divergence from the underlying interest of a member?

[00:12:22] Speaker 02:
Well, Your Honor, honestly, I find it hard to imagine that that would be the case, but I don't think we need to speculate in this case, because I hear it's absolutely clear that there is no divergence, and we know that from the declarations that Chanchetta, Tangen, and Regis have submitted.

[00:12:38] Speaker 02:
I think the final paragraph or so of those declarations makes clear that each of those three veterans have said, if for whatever reason the court thinks that NOVA doesn't have standing, we would like to join this case in progress.

[00:12:52] Speaker 02:
and basically allow us to join the case for purposes of standing.

[00:12:56] Speaker 02:
And they've also said that we're willing to adopt all of the arguments that NOVA has made both in writing and at oral argument if you require us to do that.

[00:13:06] Speaker 02:
So even if theoretically there could be some sort of divergence of interest, we know as a factual matter that there's no divergence of interest here because all of those veterans have specifically said they endorse our arguments and if necessary they would join the case.

[00:13:19] Speaker 02:
And I think that's just maybe the final point on this just to close it off.

[00:13:22] Speaker 02:
I really don't think there's a germainness problem.

[00:13:24] Speaker 02:
There's certainly not one under the precedent in Gober.

[00:13:28] Speaker 02:
And that aspect, the germainness holding in Gober is not something that VA has called into question or that they've cited any subsequent case that undermines it or anything like that.

[00:13:37] Speaker 02:
We don't think there's a germainness problem.

[00:13:38] Speaker 02:
But if in the event that the court concludes that there is a germainness problem,

[00:13:42] Speaker 02:
I think the solution here would be simply to exercise its discretion to allow us to bring those veterans who clearly indisputably have standing based on their own facts into the case.

[00:13:54] Speaker 02:
And I think that would be fair.

[00:13:56] Speaker 07:
Thank you.

[00:13:58] Speaker 07:
You're well into your rebuttal, which we will certainly restore your two minutes.

[00:14:03] Speaker 07:
But I wondered if Judge Chen had a question for you or if he'd like to wait and withhold and ask the government a question.

[00:14:11] Speaker 09:
Yes, Chief, thank you.

[00:14:12] Speaker 09:
I have many questions, but I'll just stick with one, one simple one.

[00:14:19] Speaker 09:
Mr. Martinez, you mentioned in your supplemental brief somewhere that events that occur after the filing date of your petition can cure a standing deficiency with your petition as filed.

[00:14:35] Speaker 09:
Is there a Supreme Court case you have that supports that view

[00:14:39] Speaker 09:
post-filing date events during a standing deficiency?

[00:14:44] Speaker 02:
Your Honor, I think what we did in the reply brief was rely on this court's decision in PRASCO.

[00:14:50] Speaker 02:
I don't recall, I don't think that there is a Supreme Court case squarely holding that.

[00:14:56] Speaker 02:
But I think PRASCO is good law in this circuit.

[00:15:01] Speaker 02:
And I think it's consistent with what the majority of other circuits have in fact done.

[00:15:05] Speaker 02:
I think there's a recent Law Review article that talks about this.

[00:15:08] Speaker 02:
And so I think based on, you know, I know there are a lot of precedents up for consideration in this case, but I don't think anyone has suggested that PRASCO is wrong.

[00:15:17] Speaker 02:
And I don't think there's any need to re-examine that.

[00:15:19] Speaker 02:
And so I think if you had to rely on the facts that occurred after the petition was filed, I think the fair thing to do, especially in light of the fact that you'd be reconsidering your precedent in Goeber,

[00:15:30] Speaker 02:
would be to treat our supplemental filings and declarations to do that.

[00:15:34] Speaker 02:
I don't think it's necessary, just to be clear, because I do think that the veterans, the three veterans that we've pointed to, all of them had standing as of the time that the petition was filed.

[00:15:44] Speaker 02:
Mr. Chanchetta had a knee surgery, a partial knee surgery schedule.

[00:15:48] Speaker 02:
It was certain that he was going to have that surgery, and he's a veteran's lawyer who has a long-standing disability rating for his knee.

[00:15:54] Speaker 02:
It was also certain he was going to file the claim, as he has now done.

[00:15:58] Speaker 02:
The other two veterans as well had either a claim pending under the rule that we're challenging or a claim that had been denied under the unlawful rule that we're challenging.

[00:16:08] Speaker 02:
So I think even as of January 2020, we were okay.

[00:16:12] Speaker 07:
Thank you.

[00:16:13] Speaker 07:
We will restore you two minutes of rebuttal.

[00:16:15] Speaker 07:
And now let's hear from Mr. Breskin.

[00:16:17] Speaker 07:
And again, he will have two minutes to start off with uninterrupted before the questioning begins.

[00:16:23] Speaker 07:
Mr. Breskin.

[00:16:25] Speaker 11:
Good morning.

[00:16:25] Speaker 11:
May it please the court?

[00:16:26] Speaker 11:
NOVA does not have standing to challenge the new provisions in the manual.

[00:16:30] Speaker 11:
In its 20 pages of briefing and again in argument today, NOVA has attempted to establish its standing in several different ways, but none have been successful.

[00:16:38] Speaker 11:
NOVA has argued that it has self-evidence standing from the record and can rest on mere allegations because the court afforded its associational standing some 20 years ago.

[00:16:48] Speaker 11:
But even NOVA doesn't really take this position seriously because it submitted evidence as required by Phigenics and makes no real mention of self-evidence standing in its reply brief.

[00:16:57] Speaker 11:
NOVA also argues that it has associational standing because its members are harmed, because they may earn lower contingency fees from veterans of claims affected by the knee provisions.

[00:17:07] Speaker 11:
But NOVA provides no support for this theory of lawyer standing, which if adopted would give lawyers and law firms the power to challenge any agency action that might conceivably affect their pocketbooks, however indirectly.

[00:17:20] Speaker 11:
The zone of interest rule exists to prevent such claims, and it precludes NOVA, an organization of lawyers and advocates,

[00:17:27] Speaker 11:
from challenging VA action clearly concerned with veterans, not lawyers.

[00:17:32] Speaker 11:
NOVA also argues that three of its attorney members happen to be veterans with knee injuries, but none of those attorneys had concrete, certainly imminent harm traceable to the knee provisions at the time the petition was filed.

[00:17:44] Speaker 11:
NOVA's reliance on its attorney members, who are also veterans, also runs headlong into the second prong of the associational standing test, as Judge Stronto's questions preview.

[00:17:55] Speaker 11:
NOVA fails this second prong of associational standing because its stated purposes are not to do what is best for veterans, but to serve the interests of its members who are attorneys and veteran advocates.

[00:18:07] Speaker 11:
NOVA suggests nevertheless that its interests align with the interests of veterans, but NOVA's bylaws make clear that its focus is on advancing the interests of its members as attorneys and representatives, not as veterans.

[00:18:19] Speaker 11:
Indeed, NOVA primarily argues that its members' interest here is in their contingency fees.

[00:18:24] Speaker 11:
but those fees are paid by veterans from their past due benefits.

[00:18:28] Speaker 11:
So the interests of NOVA and veterans will often diverge.

[00:18:32] Speaker 11:
Finally, NOVA makes only a cursory attempt, it has not mentioned today, to demonstrate direct standing, but has not established that the new rules inhibit its stated mission to not therefore have direct standing.

[00:18:44] Speaker 11:
And I'll finish quickly on the question that Judge Chen asked about whether or not NOVA can cure.

[00:18:51] Speaker 11:
The PRASCO case makes clear that the only curing that is possible is if NOVA had filed a new petition and had established that it remembers or it had direct standing at the time of the petition that was filed.

[00:19:07] Speaker 11:
The PRASCO case concerns supplemental or amended complaints and it says that standing is to be determined at the time of the operative complaint.

[00:19:16] Speaker 11:
The operative petition here is January 3rd, 2020.

[00:19:20] Speaker 11:
And so the supplemental briefing and declaration submitted cannot cure under the only test that NOVA has identified for the court.

[00:19:29] Speaker 11:
Judge Dyke.

[00:19:31] Speaker 01:
Thank you.

[00:19:32] Speaker 01:
I have two questions.

[00:19:33] Speaker 01:
The first, Mr. Brutskin, is a hypothetical.

[00:19:38] Speaker 01:
Let us assume that Messrs.

[00:19:40] Speaker 01:
Regis, Tangin, and Ciancetta today filed a challenge to these two manual provisions.

[00:19:48] Speaker 01:
Would they have standing to do that?

[00:19:53] Speaker 11:
Mr. Chanchetta, I believe, would because he has a now pending claim that is likely to be affected by the rule.

[00:20:05] Speaker 11:
Mr. Regis likely would as well because his claim is now before the regional office.

[00:20:12] Speaker 11:
Mr. Tangent, I think, is a more difficult question because he has only

[00:20:17] Speaker 11:
stated in his declaration an intent to possibly file a claim in the future.

[00:20:23] Speaker 11:
And that runs into problems laid out in the various Supreme Court cases that talk about speculative future harm.

[00:20:32] Speaker 01:
OK, so if that's true, why wouldn't amending the petition for review to add these three individuals as petitioners solve any standing problem?

[00:20:46] Speaker 11:
It could, Your Honor.

[00:20:48] Speaker 11:
And that's what PRASCO sets forth, that if a new petition or complaint is filed, then the court looks at standing at the time that that petition or complaint is filed.

[00:21:01] Speaker 11:
But what it doesn't do is look to evidence that developed later or later events to determine whether or not the original petition has been cured.

[00:21:15] Speaker 11:
Smith v. Spurling, the late law case made clear that standing has to be established at the time the petition was filed.

[00:21:28] Speaker 07:
Judge Toronto?

[00:21:29] Speaker 07:
If Judge Dyke has no follow on, I'll go to Judge Toronto.

[00:21:33] Speaker 05:
Sure, so what overcomes the simple logic that increasing veteran's benefit is a purpose of NOVA under the kind of catch all item five

[00:21:45] Speaker 05:
in Article 2, I guess it is, which would then be germane to the subject of the benefit claim of Canchetta, Regis, and Tanken.

[00:21:58] Speaker 11:
Well, I'm not sure that that catch-all provision cures the germaneness problem because that basically says that one of the purposes of NOVA is to do whatever it is that will advance 1 through 4 in those bylaws.

[00:22:14] Speaker 11:
those bylaws' purposes are focused on developing its members' understanding of the law, encouraging high standards of service, conducting courses of study, and providing opportunities for an exchange of experiences and opinions.

[00:22:30] Speaker 11:
And so although NOVA does certainly advocate in the veterans' benefits sphere, I don't think that that catch-all cures the germainness problem.

[00:22:41] Speaker 11:
And the reason that is is because

[00:22:44] Speaker 11:
If a law firm doesn't have standing to pursue on behalf of its clients certain challenges to agency action, then it certainly would hold true that an association that has various attorneys should not be able to do so simply because they put into their bylaws a catch-all provision that they rely on.

[00:23:13] Speaker 05:
Can I ask one more question?

[00:23:14] Speaker 05:
You raised the zone of interest inquiry.

[00:23:18] Speaker 05:
Where does that inquiry fit into the test for associational standing?

[00:23:23] Speaker 11:
I think it fits at the first prong of associational standing where NOVA is arguing that their members as attorneys and advocates have an injury in fact.

[00:23:37] Speaker 11:
And the court has looked at whether or not

[00:23:40] Speaker 11:
the entity or the individuals in an association fall within the zone of interest of what they're challenging.

[00:23:49] Speaker 05:
And so I think it's... I'm sorry, so just to be clear, so that particular zone of interest argument is not one that affects the standing based on C&J or Regis and Tangen?

[00:24:03] Speaker 11:
That is correct, Your Honor.

[00:24:05] Speaker 11:
It is solely directed towards the notion that attorneys can

[00:24:09] Speaker 11:
file direct review against VA action, which does not concern

[00:24:15] Speaker 11:
Attorney's fees, as the court heard yesterday, the government is not contesting the sort of zone, did not raise a zone of interest concern with respect to Carpenter Charter's challenge to regulations that govern attorney's fees because obviously there's more of an alignment of the zone of interest.

[00:24:36] Speaker 11:
But here, where the manual provisions, the regulatory and statutory underpinnings do not concern attorney's fees,

[00:24:43] Speaker 11:
attorneys fall outside the zone of interest.

[00:24:46] Speaker 11:
Thank you.

[00:24:47] Speaker 08:
Judge Chen.

[00:24:49] Speaker 09:
Yes.

[00:24:51] Speaker 09:
Just taking the facts of Mr. Chanchetta, I just want to know and understand a little bit better.

[00:24:59] Speaker 09:
You seem to have this bright line rule that there needs to be a claim on file with the VA.

[00:25:07] Speaker 09:
And if all the facts on the ground are quite clear that Mr. Chanchetta is about to undergo

[00:25:13] Speaker 09:
partial knee replacement surgery and he's going and he says that this is all related to his service and he intends to file a claim.

[00:25:26] Speaker 09:
I guess what more is needed?

[00:25:29] Speaker 09:
It doesn't feel like there's the same kind of chain of speculative possibilities that the Supreme Court has criticized before when it concluded there was lack of standing in other kinds of cases.

[00:25:42] Speaker 11:
Well, I think there is still speculation built into it.

[00:25:46] Speaker 11:
One, not just because he doesn't have a pending claim as of that date, but he had not had the surgery.

[00:25:52] Speaker 11:
Simply being scheduled for the surgery doesn't mean that ultimately you will have it.

[00:25:56] Speaker 11:
It doesn't mean ultimately that you will display the necessary disabilities to make a claim.

[00:26:03] Speaker 11:
So I think the speculative nature of it is still present, even if there is an affidavit to the effect that

[00:26:12] Speaker 11:
You know, I anticipate having this surgery and I anticipate making a claim for benefits.

[00:26:18] Speaker 11:
I think another point that we would make in response to that question, Your Honor, is that the declaration from Mr. Chanchetta and the others are rather conclusory.

[00:26:30] Speaker 11:
And I think that in most of the cases that we've cited, the evidence has been more than simply

[00:26:36] Speaker 11:
a statement that I intend to do something or I'm exhibiting an injury and that's good enough.

[00:26:44] Speaker 11:
And so we would suggest that phigenics requires more than what has been presented, even in Mr. Chanchetta's case.

[00:26:56] Speaker 07:
Anything further, Judge Chen?

[00:26:59] Speaker 09:
No, that's fine.

[00:26:59] Speaker 09:
Thank you.

[00:27:00] Speaker 07:
Thank you.

[00:27:01] Speaker 07:
Thank you, Mr. Breskin.

[00:27:03] Speaker 07:
We'll now turn to Mr. Martinez for two minutes of rebuttal.

[00:27:07] Speaker 02:
Thank you, your honor.

[00:27:07] Speaker 02:
Just three quick points.

[00:27:09] Speaker 02:
First of all, with respect to the three veterans as of January 2020, I think it's clear, Mr. Chanchetta.

[00:27:15] Speaker 02:
I mean, Mr. Chanchetta had the surgery scheduled and he knows his rights.

[00:27:19] Speaker 02:
He was clearly going to file for the increased rating.

[00:27:23] Speaker 02:
If standing doesn't exist for him, I think that standing is not going to exist for a lot of people.

[00:27:27] Speaker 02:
And that's just not consistent with how this court has applied the test.

[00:27:30] Speaker 02:
It requires a realistic danger or a substantial risk of injury.

[00:27:34] Speaker 02:
And he certainly had that.

[00:27:37] Speaker 02:
Mr. Regis as well, he actually had a pending claim.

[00:27:39] Speaker 02:
It was just pending at the board.

[00:27:41] Speaker 02:
He was seeking a remand so that he could have the knee stability issue addressed by the RO.

[00:27:47] Speaker 02:
His claim was actually pending.

[00:27:48] Speaker 02:
Of course he was harmed.

[00:27:50] Speaker 02:
And Mr. Tangen had already been rejected under the unlawful rule that we're challenging.

[00:27:55] Speaker 02:
The government seems to suggest that he should have filed a claim that would have been futile and foreclosed under the VA's existing interpretation of the manual.

[00:28:02] Speaker 02:
That doesn't make any sense.

[00:28:03] Speaker 02:
He was suffering harm in January 2020 because he was being paid less in disability benefits than he deserved under law.

[00:28:10] Speaker 02:
Secondly, Your Honor, with respect to the Germaneness, I just want to emphasize the Germaneness holding from Goeber has not really been challenged and there's no subsequent case law that has undermined it in any way.

[00:28:22] Speaker 02:
The bylaw provisions that Mr. Breskin is trying to re-argue have already been conclusively interpreted by this court to find that this kind of litigation is germane.

[00:28:33] Speaker 02:
But even beyond the bylaws, the bylaws aren't the only thing that matter.

[00:28:36] Speaker 02:
We have Ms.

[00:28:36] Speaker 02:
Rauber's declaration, which makes clear over and over again that NOVA's purpose goes beyond helping advocates.

[00:28:45] Speaker 02:
NOVA is also concerned with helping veterans themselves.

[00:28:47] Speaker 02:
And that's not just a statement, that's borne out by the extensive litigation and policy advocacy that NOVA does on behalf of veterans.

[00:28:55] Speaker 02:
Finally, Your Honor, with respect to supplementation, we asked this Court on page 15 of our supplemental brief to allow for amending the petition if needed to draw in these additional petitioners or additional allegations.

[00:29:09] Speaker 02:
I don't believe the government even addressed that request in its response, and so we think it would be an entirely appropriate exercise of this Court's discretion, especially given that under a fair reading of Gobert, we had standing under that precedent.

[00:29:21] Speaker 02:
that if you want to sort of reconfigure the standing requirements that you allow us to supplement or amend the petition as needed to show standing based on the three veteran members.

[00:29:31] Speaker 02:
Thank you so much, Your Honor.

[00:29:33] Speaker 01:
Chief Judge Frost, this is Judge Dyke.

[00:29:34] Speaker 01:
Yes.

[00:29:34] Speaker 01:
Could I make one comment to Mr. Martinez?

[00:29:37] Speaker 01:
I mean, if I were you, I would consider filing a new petition on behalf of Mr. Regis, Mr. Changin, and Mr. Chanchetta.

[00:29:49] Speaker 01:
and ask to consolidate it with the pending NOVA petition to eliminate, as the government concedes, some of these standing issues, which may be difficult.

[00:30:02] Speaker 02:
Thank you, Your Honor.

[00:30:03] Speaker 02:
We will take that suggestion under advisement.

[00:30:05] Speaker 02:
And we appreciate, of course, the government's concession that there is standing to challenge both of the rules from at least two of the three veterans if we were to do that.

[00:30:16] Speaker 07:
Thank you.

[00:30:17] Speaker 07:
That concludes the initial portion of the argument today.

[00:30:21] Speaker 07:
We'll now move on to the merits portion of this unblank argument.

[00:30:26] Speaker 07:
And this is how it will work.

[00:30:28] Speaker 07:
Each side will have a total of 55 minutes.

[00:30:31] Speaker 07:
Petitioner has reserved eight minutes of that for his rebuttal.

[00:30:35] Speaker 07:
Each side will begin with three minutes of uninterrupted argument, followed by two rounds of questioning from the unblank court.

[00:30:44] Speaker 07:
The first round on each side

[00:30:46] Speaker 07:
will involve my calling on judges in order of their seniority.

[00:30:50] Speaker 07:
In the first round, each judge will have three minutes.

[00:30:54] Speaker 07:
That time is planned to cover both the question and the answer.

[00:30:59] Speaker 07:
After we complete the roster for the first round, we will have a second round for judges with additional questions.

[00:31:05] Speaker 07:
Again, we will go down the roster and I will call on judges in order of seniority.

[00:31:10] Speaker 07:
But on this round, there will be just one minute allotted for each question and answer.

[00:31:15] Speaker 07:
There may, of course, be some flexibility in that timeframe if judges pass on asking a second round question.

[00:31:24] Speaker 07:
We will follow this process first with Mr. Martinez and then do it all over again with Mr. Bruskin.

[00:31:30] Speaker 07:
We conclude with Mr. Martinez's rebuttal time where judges will be free, but on their own, to raise any remaining questions.

[00:31:38] Speaker 07:
That's the plan, so let's begin.

[00:31:41] Speaker 07:
Mr. Martinez.

[00:31:43] Speaker 02:
Thank you, Your Honor.

[00:31:45] Speaker 02:
Section 502 provides an essential check when VA issues illegal rules that hurt veterans.

[00:31:51] Speaker 02:
It authorizes this court's pre-enforcement review both of legislative rules and of interpretive rules and policy statements.

[00:31:58] Speaker 02:
In doing so, 502 promotes the prompt and efficient resolution of pure legal questions with broad significance while avoiding the need for individual veterans to litigate those questions through the painfully slow VA claims process.

[00:32:11] Speaker 02:
Here, NOVA is challenging two knee disability rules in the adjudication manual.

[00:32:16] Speaker 02:
Both rules are unlawful.

[00:32:18] Speaker 02:
One of them instructs VA officials to ignore this court's express holding in Hudgens v. McDonald.

[00:32:24] Speaker 02:
The other adopts an arbitrary and capricious test for assessing knee joint stability.

[00:32:30] Speaker 02:
VA wants to block the court from even looking at these rules, but none of its threshold procedural objections has merit.

[00:32:36] Speaker 02:
First, the new rules are covered by 502's cross-reference to FOIA Section 552A1, which refers to interpretations of general applicability.

[00:32:46] Speaker 02:
VA concedes the new rules or interpretations, and they are of general applicability because they apply generally to anyone seeking VA benefits, not just the particular named individuals.

[00:32:57] Speaker 02:
That interpretation tracks the ordinary and administrative law meaning of general applicability that's been reflected in federal law for almost a century.

[00:33:05] Speaker 02:
VA says an interpretive rule can't be of general applicability unless it's binding, but that argument has no basis in the statute's text or history, and it's directly at odds with the Supreme Court's decision in Alina Health and with Black Letter administrative law.

[00:33:19] Speaker 02:
In any event, the new rules here are undeniably binding on the regional office staff who issue VA's final decisions in 94% of all disability claims.

[00:33:30] Speaker 02:
Second, Section 502 also authorizes review of interpretive rules through its cross-reference to APA Section 553, which directly refers to interpretive rules twice.

[00:33:42] Speaker 02:
Section 553 does not implicate FOIA's publication requirements and is the simplest and most straightforward way to resolve this case in NOVA's favor.

[00:33:51] Speaker 02:
Third, although finality is not a separate requirement of 502, the new rules are final in any sense that might matter.

[00:33:58] Speaker 02:
They reflect VA's conclusive decision on how RO staff must interpret and apply the knee regulations in every case.

[00:34:06] Speaker 02:
Any veteran whose claim is denied based on the knee rules has suffered an adverse legal consequence directly attributable to those rules.

[00:34:14] Speaker 02:
Finally, this case is timely.

[00:34:16] Speaker 02:
Everyone agrees Congress subjected 502 actions to Section 2401A's six-year statute of limitations.

[00:34:24] Speaker 02:
Because Congress made that choice, Rule 15F's 60-day time limit is invalid.

[00:34:29] Speaker 02:
This court cannot enforce a local rule that shrinks the statutory window for veterans to file their claims by nearly 97%.

[00:34:37] Speaker 02:
The bottom line here is that VA can't hide behind threshold procedural objections.

[00:34:42] Speaker 02:
This case should be heard on the merits.

[00:34:46] Speaker 07:
Thank you.

[00:34:47] Speaker 07:
This is Chief Judge Prost.

[00:34:48] Speaker 07:
Let me ask the first question, Mr. Martinez.

[00:34:52] Speaker 07:
So if you recognize, the government's argument emphasizes that while the ROs are required to follow the manual, that matters little as the agency's final word is the BVA and the veteran can get BVA review of any RO determination if he or she wishes.

[00:35:09] Speaker 07:
You point out, however, the facts on the ground.

[00:35:12] Speaker 07:
You cited this morning in your argument the 94%.

[00:35:16] Speaker 07:
That is a practical matter for million and a half annual claims

[00:35:21] Speaker 07:
Only a minuscule percentage of those cases are actually appealed up to the VVA.

[00:35:26] Speaker 07:
So the RO determination is almost always the final word.

[00:35:30] Speaker 07:
Hopefully the small numbers of appeals to the VVA reflect that veterans are satisfied with RO actions.

[00:35:36] Speaker 07:
But leaving that aside, would your position be different then if the numbers were flipped?

[00:35:42] Speaker 07:
In other words,

[00:35:43] Speaker 07:
If 94% of RO determinations were in fact appeal to the BVA, would that change your view of this case?

[00:35:52] Speaker 02:
I don't think it would change our view of this case because the 94%, I think, is a very powerful practical illustration of what VA itself conceded were the far-reaching, and this was in the Gray and DAV cases, the far-reaching effects of the manual.

[00:36:07] Speaker 02:
But I think even more important than the practical point is the legal point, which is that ROs under

[00:36:13] Speaker 02:
38 USC 7105C are authorized and empowered by Congress and by the agency to issue final decisions, legally final decisions.

[00:36:23] Speaker 02:
And so I think even if those numbers were reversed, if that statutory provision is still there, which says that the RO is the entity that can issue the final decision on behalf of VA, that itself has an enormous effect and triggers legal consequences.

[00:36:38] Speaker 02:
I also think the other broader point here is that the whole question of whether the manual is binding either on the RO or on the board really isn't here or there with respect to the statutory language at issue, which talks about in 552A1, which talks about statements of general policy or interpretations of general applicability.

[00:36:58] Speaker 02:
That requirement, interpretations of general applicability, has nothing to do with whether a interpretation is binding on this particular agency official or that particular agency official.

[00:37:09] Speaker 02:
And we know that because the history, not only the plain meaning of that language, but the history of the word of the phrase general applicability is rich in the administrative law context.

[00:37:21] Speaker 02:
The Federal Register Act in 1935 used that phrase, and immediately afterwards, regulations were issued that remain in the very first provision of the Code of Federal Regulations, 1 CFR 1.1.

[00:37:32] Speaker 02:
And they make clear that what general applicability means is it's referring to statements that are relevant or applicable to the general public, the members of a class, or the persons of a locality as distinguished from named individuals or organizations.

[00:37:47] Speaker 02:
That's the current

[00:37:48] Speaker 02:
regulatory understanding of the phrase general applicability.

[00:37:52] Speaker 02:
That has nothing to do with whether it's binding.

[00:37:55] Speaker 07:
Thank you.

[00:37:56] Speaker 07:
I'm sure you'll have further time to discuss this with my colleagues, so let me call on Judge Newman.

[00:38:02] Speaker 03:
Well, thank you.

[00:38:05] Speaker 03:
Council opened this argument by saying that this avoids the delay of the claims process, and that it seems to me is certainly a very powerful point to have in mind

[00:38:18] Speaker 03:
if in fact we're doing that, but in terms of the general applicability, the way things are now, and probably even if the three veterans are joined as parties in this action, they would still have to go through the entire claims process as applied to them.

[00:38:41] Speaker 03:
Well, that's really my question.

[00:38:43] Speaker 03:
How do you see this working?

[00:38:46] Speaker 02:
Yes, your honor, I think it's true that any individual veteran to take advantage of the, you know, a victory for Nova in this case would have to file a claim.

[00:38:56] Speaker 02:
But the difference is that if we

[00:38:59] Speaker 02:
If we win this claim, the case, this court would have reaffirmed, for example, with respect to the knee replacement rule, would have reaffirmed the decision it already made in Hudgens versus McDonald, which means that someone like Mr. Chanchetta with a partial knee replacement, it's going to be a very easy adjudication by the RO, because the RO is going to know, because this court will have told it now twice, that partial knee replacements count and are entitled to benefits.

[00:39:25] Speaker 02:
If we lose this case though, or if this case wasn't brought, what would happen is Mr. Ciancietta would file his claim in the RO and it would then be denied because the RO has been instructed to ignore this court's decision in Hudgens.

[00:39:38] Speaker 02:
And so that claim would be denied.

[00:39:40] Speaker 02:
He would then be forced to appeal to the board.

[00:39:42] Speaker 02:
And he would have to litigate the issue in the board in front of the board, which even though not technically bound by the manual, we all know from how the board issues decisions that the manual exerts a very powerful gravitational pull.

[00:39:55] Speaker 02:
And the upshot of this is that it's going to take on average five and a half years for a claim to be resolved that goes through both the regional office and the board.

[00:40:02] Speaker 02:
Mr. Chanchetta and people like him would be deprived of benefits for that time.

[00:40:08] Speaker 02:
And when we're talking about the knee roll, these are very significant benefits.

[00:40:10] Speaker 02:
In the first year, it probably amounts to something like $25,000 or so of compensation for a veteran who's been disabled and who's entitled to benefits both under the regulations and under this court's

[00:40:23] Speaker 02:
decision in Hudgins and who is being deprived of those benefits simply because the VA has decided to insert a provision in its manual.

[00:40:31] Speaker 02:
And Mr. Chanchet is unfortunately not the only one.

[00:40:34] Speaker 02:
This kind of surgery, partial knee replacement, is very common.

[00:40:37] Speaker 02:
And so I think it really does make an enormous practical difference whether the RO is going to be forced to follow this illegal rule or not.

[00:40:46] Speaker 07:
Thank you.

[00:40:47] Speaker 07:
Judge Lurie.

[00:40:52] Speaker 07:
Judge Lurie?

[00:40:55] Speaker 08:
No questions at this time, Chief.

[00:40:58] Speaker 08:
Thank you.

[00:40:59] Speaker 08:
Judge Dyke?

[00:41:01] Speaker 01:
Thank you.

[00:41:03] Speaker 01:
So Mr. Martinez, I have a question about the knee replacement rule, which, as I understand it, was earlier published in the Federal Register.

[00:41:14] Speaker 01:
And I wonder, given that circumstance, whether the republication of that rule in the manual

[00:41:23] Speaker 01:
gives this court authority to review the manual as opposed to reviewing the Federal Register notice.

[00:41:33] Speaker 01:
That might be solved in this case by amending the petition for review to challenge the Federal Register notice.

[00:41:41] Speaker 01:
So my questions are twofold.

[00:41:43] Speaker 01:
One, is the articulation of the rule in the Federal Register and the manual the same, though the language is somewhat different?

[00:41:52] Speaker 01:
And two,

[00:41:53] Speaker 01:
if that's correct, shouldn't be reviewing this rule based on the Federal Register notice rather than the republication of the manual.

[00:42:04] Speaker 02:
Thank you, Josh.

[00:42:05] Speaker 02:
A couple comments on that.

[00:42:06] Speaker 02:
First of all, we don't think it's the same because I think what the manual is doing is not only is it sort of instructing people to apply the interpretation that was in the Federal Register, but it is interpreting this court's decision in Hudgins.

[00:42:21] Speaker 02:
And you can see that from the analysis that VA undertook when it put it in the manual.

[00:42:26] Speaker 02:
I think it's at page 160 of our appendix.

[00:42:28] Speaker 02:
They are basically interpreting the Hudgens decision to somehow turn on, you know, to basically create a different rule for claims that were pending before that Federal Register guidance was put in place and claims that had not yet been brought.

[00:42:43] Speaker 02:
And so we think that is very clearly an interpretation.

[00:42:46] Speaker 02:
It's an interpretation of the Hudgens decision and of general applicability.

[00:42:50] Speaker 02:
We also think it's an interpretation to the extent it incorporates

[00:42:53] Speaker 02:
the regulatory change that was in the Code of Federal Regulations.

[00:42:57] Speaker 02:
We also think it's an interpretation in that sense.

[00:43:00] Speaker 02:
I think the second point I would make, though, is that, you know, it does seem possible that we could, you know, in theory, bring another challenge to the regulation that was put in the Federal Register, which, again, was designated as an interpretive rule at the time.

[00:43:15] Speaker 02:
But that just sort of proves the kind of absurdity of this case, because that exact regulation was considered by the court in Hudgens.

[00:43:22] Speaker 02:
This court in Hudgens, the VA came forward and said, look, you should agree with us in Hudgens because we have this regulation that's in place and you should defer to it.

[00:43:31] Speaker 02:
And the court looked at the regulation.

[00:43:33] Speaker 02:
It said that the regulation was not entitled to deference because it was inconsistent with the agency's past practice.

[00:43:40] Speaker 02:
And it said that it was also wrong because based on the language of the regulation of the underlying regulation, the diagnostic code and the pro veteran canon, the correct interpretation, the best interpretation of the diagnostic code is that its benefits are granted to people who have partial knee replacements.

[00:43:58] Speaker 02:
And so in theory, we could bring another challenge to that regulation, but we think the court has already conclusively

[00:44:04] Speaker 02:
looked at that regulation, the regulation from, I think it was 2015 or 2016, and said that it misinterprets the diagnostic code.

[00:44:12] Speaker 02:
And VA can't be allowed to just get around that express holding by this court by putting a provision in its manual that tells people essentially to ignore the decision in Hudges.

[00:44:21] Speaker 01:
But do you agree that the simple republication of a rule doesn't create a new opportunity for judicial review?

[00:44:32] Speaker 02:
I think that's a harder question.

[00:44:33] Speaker 02:
I think if it were literally just a republication, I think maybe not.

[00:44:38] Speaker 02:
But in this case, as I was saying, I do think that you have more than that because this is really about an interpretation of Hudgens, which goes above and beyond just the republication of the interpretive guidance.

[00:44:49] Speaker 07:
Thank you.

[00:44:50] Speaker 07:
Judge O'Malley.

[00:44:54] Speaker 07:
Thank you, Steve.

[00:44:56] Speaker 07:
You mentioned finality, and it's clear that in Ashford we said that

[00:45:02] Speaker 07:
the VA action being challenged has to be a final agency action.

[00:45:07] Speaker 07:
So my question is, from what perspective are we to consider finality, from the perspective of the RO, from the perspective of the board, or from the perspective of the benefit-seeking veteran?

[00:45:23] Speaker 02:
I think, Your Honor, the finality question needs to be considered from the perspective of the agency action that we are challenging and whether that satisfies the finality requirement.

[00:45:33] Speaker 02:
Now, I'll just bracket the fact we think, respectfully, we disagree with Ashford's holding that the two-prong Bennett versus Spear test for finality applies here, but even assuming that it applies, I think the way to apply that test or to consider it would be to ask yourselves whether

[00:45:49] Speaker 02:
The manual provision reflects the consummation of the agency's decision-making process and we would say absolutely it does because it conclusively instructs RO adjudicators to apply the unlawful interpretation.

[00:46:04] Speaker 02:
And there's no question that that is VA's official position.

[00:46:07] Speaker 02:
And then the second question is whether legal consequences flow from that.

[00:46:12] Speaker 02:
And we think legal consequences plainly do flow from that because, as I was saying earlier, the RO decisions in the vast majority of cases are legally considered final decisions under 38 USC 7105C.

[00:46:25] Speaker 02:
And they also have other consequences as well.

[00:46:29] Speaker 02:
And so I think from that perspective, I think both prongs of Bennett versus Spear would be satisfied, although as we said in our brief, we don't think that the two-prong test should apply.

[00:46:39] Speaker 07:
So is your answer to my question that we should be looking at finality from the perspective of the veteran seeking benefits?

[00:46:48] Speaker 07:
Because the board is obviously not bound by the agency decision.

[00:46:54] Speaker 07:
and the auto officer, at least to some extent, could recommend changes to the manual.

[00:47:01] Speaker 07:
So wouldn't we have to be, wouldn't it have to be, you know, your number three?

[00:47:06] Speaker 02:
I guess, Your Honor, I think the way that I would conceive of it is whether under Bennett, this manual provision is the consummation of the agency's decision-making process with respect to

[00:47:22] Speaker 02:
What are the, what interpretation does the RO have to apply?

[00:47:26] Speaker 02:
And I think the answer to that would be clearly yes.

[00:47:29] Speaker 02:
And then the legal consequences then flow from that.

[00:47:34] Speaker 08:
Judge Raina.

[00:47:42] Speaker 07:
Judge Raina.

[00:47:44] Speaker 12:
Okay.

[00:47:46] Speaker 12:
Yes, I had to unmute, sorry.

[00:47:48] Speaker 12:
Mr. Martinez.

[00:47:49] Speaker 12:
In yesterday's arguments, we heard that there's been a significant amount of revisions to the manual year to date.

[00:47:57] Speaker 12:
And in fact, I think I heard something like 175 revisions.

[00:48:02] Speaker 12:
If we were to grant your claim, aren't we looking at a potential flood to this course docket of pre-enforcement challenges?

[00:48:11] Speaker 12:
And wouldn't that undermine agency determinations?

[00:48:14] Speaker 12:
But more important, wouldn't that also hurt the veterans in the long run?

[00:48:19] Speaker 12:
Because it seems to me that that interpretation could implicate the pro-veteran canon in that regard.

[00:48:27] Speaker 12:
And more important, isn't the court deprived of an adequate legal and factual landscape upon which to determine cases and controversies?

[00:48:40] Speaker 12:
In this case, the harm to the veteran.

[00:48:44] Speaker 02:
Your Honor, a couple points on that.

[00:48:46] Speaker 02:
First of all, I think the fact that VA makes a lot of changes to the manual shouldn't concern you.

[00:48:52] Speaker 02:
Presumably, I think VA would probably say that those changes are legally valid, and so it's not clear to me why we should imagine that every one of them is going to be challenged.

[00:49:01] Speaker 02:
I also think that many of those changes may have to do with things that don't fall within 552A1.

[00:49:07] Speaker 02:
So I don't think that concern, I don't think that point necessarily holds.

[00:49:12] Speaker 02:
With respect to what would help veterans, I think the answer is that the way veterans would be helped and what Congress thought would help veterans was creating the ability to bring these kind of pre-enforcement challenges to VA rules.

[00:49:26] Speaker 02:
And the reason that helps veterans is because these challenges are always going to present pure issues of law that don't turn on any particular veteran's facts.

[00:49:35] Speaker 02:
And so they're going to be teed up, they're going to be right for review, and this court can decide them essentially on legal grounds.

[00:49:41] Speaker 02:
And the reason that helps veterans is because you will get a determination earlier after the unlawful rule is promulgated, which will then allow veterans and the VA, when it's adjudicating individual claims, to apply the correct rules earlier in the process.

[00:49:57] Speaker 02:
If you don't allow that, then each of these things is going to have to be litigated on an ad hoc basis case by case.

[00:50:03] Speaker 02:
As we've talked about, you know, it's five and a half years to get something through the RO at another year or so if you're going up to the Veterans Court.

[00:50:10] Speaker 02:
And if that's the mechanism by which these pure legal challenges are adjudicated, you're going to have, you know, five or six years' worth of adjudications and precedents and RO decisions and board decisions that are built up that could very well be under an unlawful

[00:50:23] Speaker 02:
understanding of the rule.

[00:50:25] Speaker 02:
And so that's a lot of eggs that are going to have to be unscrambled if at the end of the day

[00:50:29] Speaker 02:
this court takes the case and concludes, hey, this rule was invalid in the first place.

[00:50:34] Speaker 02:
And so I think Congress recognized that, and that's why it expressed its preference for pre-enforcement review of these kinds of rules.

[00:50:41] Speaker 02:
And that's why I think this court would, although there may be, you know, an uptick a little bit in this court's docket, I think, you know, this court was being empowered to protect veterans in precisely this way.

[00:50:51] Speaker 02:
And I think by doing that, you're going to streamline the kind of litigation that's going to have to happen in front of the VA and in their disability claims process.

[00:50:59] Speaker 12:
Okay, thank you.

[00:51:00] Speaker 13:
Judge Wallach.

[00:51:02] Speaker 13:
I don't have any questions for this party at this time.

[00:51:05] Speaker 05:
Thank you.

[00:51:07] Speaker 05:
Judge Toronto.

[00:51:08] Speaker 05:
Thank you.

[00:51:09] Speaker 05:
I want to, Mr. Martinez, change topics and ask about the Rule 15-2401 issue and what seems to me, or has seemed to me, the heart of the issue.

[00:51:20] Speaker 05:
So Section 24-01, by its terms, says only

[00:51:24] Speaker 05:
that a filing beyond six years is untimely.

[00:51:27] Speaker 05:
It doesn't say that every filing within six years is timely.

[00:51:33] Speaker 05:
And a rule requiring a filing in less than six years is not inconsistent with the meaning of 2401's words.

[00:51:41] Speaker 05:
And without inconsistency, rule 15 is authorized by 2071.

[00:51:45] Speaker 05:
So I think your 2401 inconsistency argument, sensibly enough,

[00:51:52] Speaker 05:
depends on characterizing 2401 as going beyond its literal meaning and embodying a congressional judgment that any filing within six years is timely.

[00:52:06] Speaker 05:
That's exactly the kind of characterization that the Supreme Court in Petrella and SCA Hygiene expressly gave to the context-specific time provisions for copyright and patent cases.

[00:52:20] Speaker 05:
So my broad question is this.

[00:52:22] Speaker 05:
Why is that a proper characterization for 2401, which is a general default limitations provision applicable to the entire range of actions against the United States government not covered by another provision, where Congress wasn't making a judgment about any specific context at all, such as a rule challenge context, in which as far as I think anything I have seen,

[00:52:52] Speaker 05:
Nothing suggests Congress normally, if ever, allows six years or anything close.

[00:52:59] Speaker 02:
Well, Your Honor, so a couple of points on that.

[00:53:01] Speaker 02:
I think most importantly, I think it is fair to look at the six-year statute of limitations as embodying Congress's judgment.

[00:53:09] Speaker 02:
And I think that's why this Court has said that that six-year statute of limitations applies.

[00:53:13] Speaker 02:
I think there's generally a presumption in statutory construction that Congress legislates against the backdrop of the US Code.

[00:53:22] Speaker 02:
And here, the US Code provision provided the off-the-shelf

[00:53:26] Speaker 02:
statute of limitations, six years that applies to APA actions and applies generally to suits against the government.

[00:53:33] Speaker 02:
And so in that context, when Congress steps in and creates this right to pre-enforcement judicial review, it doesn't need to say anything further because there's already that background principle that applies based on its terms to this particular type of case.

[00:53:50] Speaker 02:
And so I think that that does reflect Congress's judgment and I think

[00:53:53] Speaker 02:
ordinary principles of statutory construction would say that, you know, you need to look at what Congress did there and say that they understood what they were doing and they understood they were legislating against the backdrop of 2419A.

[00:54:06] Speaker 05:
Mr. Martinez, can I interrupt at speaker phones?

[00:54:09] Speaker 05:
Make it impossible for lawyers to hear when judges are trying to interrupt, I'm afraid.

[00:54:14] Speaker 05:
But let me try to refine what my focus is.

[00:54:18] Speaker 05:
It seems to me that the plain meaning of the words of 2401 say only that if you file beyond six years, you're untimely.

[00:54:27] Speaker 05:
They do not say that everything within six years is timely.

[00:54:31] Speaker 05:
So to get to your point, you need to find a congressional judgment implicit in those words, nevermind that they apply in every context not otherwise covered.

[00:54:43] Speaker 05:
But the congressional judgment in that, in underlying this statute, that everything up to five years and 364 days is being declared to be timely, which is what I think the Supreme Court said in Petrella and SEI hygiene.

[00:55:02] Speaker 05:
I guess what I'm trying to understand is why one would assume that to be the case for a general default provision

[00:55:11] Speaker 05:
in which Congress's attention is not focused on any specific type of claim at all?

[00:55:17] Speaker 02:
I think because 2401A is, although it's a general default provision, it's the general default provision that is universally recognized to apply to APA claims.

[00:55:27] Speaker 02:
And this in Congress here was clearly trying to essentially create a mechanism for APA-like review of VA agency actions.

[00:55:35] Speaker 02:
And so I think in addition to the general presumption that Congress was aware of that provision, I think it makes perfect sense for Congress to apply the same, you know, APA statute of limitations that appears in 2401A to this kind of claim.

[00:55:48] Speaker 02:
I think the only last thing I'd say is that I do think that these types of arguments could have been made based on the text and were made based on the text in both Petrella

[00:55:57] Speaker 02:
and SCA.

[00:55:58] Speaker 02:
And I take the point that in those cases, the statutes appeared within the patent statute and within the copyright statute, but I don't think there should be any difference here given that 2401A is the background and that 2401A is almost universally acknowledged to apply to APA cases, sort of like the ones that Congress authorized here.

[00:56:20] Speaker 02:
Judge Ken.

[00:56:22] Speaker 09:
Thank you.

[00:56:22] Speaker 09:
I'm interested in, well, I have two different questions, but my first question, I think, is a follow-up to what Judge O'Malley had been asking about how to think about final agency action in this context with respect to the manual provisions.

[00:56:38] Speaker 09:
As I understand it, you're describing how a final agency action is the confirmation of an agency's position from which legal consequences will flow.

[00:56:48] Speaker 09:
And I understand that you've identified

[00:56:52] Speaker 09:
that 94% of the time when the RO denies a claim, that is the final agency decision because the claimant doesn't pursue an appeal to the BVA.

[00:57:07] Speaker 09:
But that makes me wonder about the overall structure of the VA's benefits claims process.

[00:57:14] Speaker 09:
It's created a system of two-level review, and what we're exploring right now is how the manual

[00:57:21] Speaker 09:
really only binds the first-level review.

[00:57:26] Speaker 09:
And so what I'm trying to understand is why is it final agency action to have these manual provisions when they only control non-final first-level adjudication?

[00:57:44] Speaker 09:
You can't go to the courts after the RO denies their claim.

[00:57:49] Speaker 09:
You have a right, however, as a claimant

[00:57:52] Speaker 09:
to appeal to the BVA, if you elect to abandon that right by not appealing to the BVA, then of course your RO decision becomes final.

[00:58:02] Speaker 09:
So I guess what I'm wondering is why can we say that these manual provisions represent final agency action when they don't control the final adjudicators, the board, but they only control this first cut, first level review non-final adjudicators?

[00:58:22] Speaker 02:
I think the answer, Judge Shen, is that the way that the structure and the statute sets up the scheme, the entry-level adjudicators are also final adjudicators by law, not just by the fact that they happen to be the last person who issues the last word in 94% of cases.

[00:58:39] Speaker 02:
But those adjudicators are empowered to issue absolutely final decisions.

[00:58:44] Speaker 02:
And so in some ways, it's analogous to a district court that... But the claimants have a... The claimants specifically have a right to...

[00:58:52] Speaker 09:
have the second level review adjudicators review that first level decision, right?

[00:58:59] Speaker 02:
That's right, but that's also true in the context of ordinary litigation in district court.

[00:59:04] Speaker 02:
I don't think anyone would dispute that a district court issues a final decision with legal consequences following from that, even though there's an option to take an appeal to the Court of Appeals, and even though the Court of Appeals might not be bound by the rules that were applied by the district court in the same way, especially if the Court of Appeals is en banc.

[00:59:22] Speaker 02:
And so I think ordinary principles of finality recognize that when the adjudicator, here the RO or by analogy the district court, has the ability to finally and conclusively resolve the claim on the behalf of the agency, that that finality is good enough.

[00:59:39] Speaker 02:
And I think, I don't see any reason why to depart from that principle here.

[00:59:45] Speaker 09:
Okay, my other question is, there's a lot of agencies out there and they all have manuals.

[00:59:52] Speaker 09:
I'm trying to explore what are the limits of your position on how much of all these different manuals have to be published in the Federal Register.

[01:00:01] Speaker 09:
Can you give me, identify quickly several examples of provisions in the VA manual that don't have to be published in the Federal Register, that are not interpretations of general applicability?

[01:00:15] Speaker 02:
Sure, I think that the easiest, and there are a lot of them, and we could go into the weeds very quickly, but I think if you look at the beginning sections of the M211 manual, a lot of those beginning sections are just identifying the legal rules that would govern benefits claims.

[01:00:36] Speaker 02:
And so, you know, for example, there's a section that talks about due process and it kind of reproduces the due process clause of the Constitution.

[01:00:43] Speaker 02:
And there are other sections that basically do the same thing with respect to statutes and regulations.

[01:00:48] Speaker 02:
I think that would just be an easy example.

[01:00:49] Speaker 02:
I don't think that's an interpretation of anything and that wouldn't have to be published.

[01:00:54] Speaker 02:
You know, if you want other examples, I can just give you, you know, Section 13B11 where it talks about, you know, how agency RO adjudicators need to add a representative's name and address

[01:01:06] Speaker 02:
on certain forms when, you know, dealing with appeals.

[01:01:10] Speaker 02:
There's a whole list of provisions, but I don't think everything would need to be published.

[01:01:14] Speaker 02:
I think that the way to figure out what would need to be published is just by looking at 552A1.

[01:01:20] Speaker 02:
And if the particular provision of the manual announces an interpretation of general applicability under the normal meaning of that phrase, then it would need to be published.

[01:01:31] Speaker 02:
Can I just make one point on this overpublication concern?

[01:01:34] Speaker 02:
Because I think it's an important one.

[01:01:36] Speaker 02:
There is a mechanism that 552A itself creates to alleviate the burden on agencies of like publishing too much stuff.

[01:01:45] Speaker 02:
And what it says is that agencies can avail themselves of something called incorporation by reference.

[01:01:51] Speaker 02:
So they're basically allowed to file something short in the Federal Register that just incorporates stuff that's published elsewhere as long as it's reasonably available.

[01:01:59] Speaker 02:
And VA actually uses a mechanism very similar to this when it's publishing its general counsel opinions.

[01:02:05] Speaker 02:
Although VA concedes the general counsel opinions need to be published, it doesn't actually publish the full text.

[01:02:11] Speaker 02:
It just puts a short notice in the Federal Register with a cross-reference.

[01:02:14] Speaker 02:
The PTO does the same thing with its MPEP patent examiner's manual.

[01:02:19] Speaker 02:
It just puts a notice there and there's essentially a cross-referencing to a website.

[01:02:23] Speaker 02:
And so I don't think this would be burdensome at all if you read the publication requirement for what it means because there are ways that agencies can adapt that will not require them to publish too many things that maybe don't really need to be published because they're available elsewhere.

[01:02:37] Speaker 02:
Thank you.

[01:02:37] Speaker 10:
Thank you.

[01:02:39] Speaker 10:
Judge Hughes.

[01:02:41] Speaker 10:
Mr. Martinez, I just want to follow up with what Judge Stike was asking you earlier.

[01:02:47] Speaker 10:
And just because my time is short, can you just please assume that I disagree with you, that the manual provision on partial need is any different than the Federal Register notice and the note added to the CEPHR, and that all the manual provision on partial need is just a restatement and an instruction to the adjudicators on how to apply that note.

[01:03:11] Speaker 10:
the specific case all cited and not anything new.

[01:03:14] Speaker 10:
If it's just an instruction and a restatement, does that provide jurisdiction under 552A1D?

[01:03:24] Speaker 10:
In other words, is that restatement instruction a rule of general applicability or interpretation that is adopted by the agency?

[01:03:37] Speaker 02:
Your Honor, I think in that case, I think it would probably be more likely to fall into the category of a statement of general policy as opposed to an interpretation.

[01:03:45] Speaker 02:
Because at that point, I think based on the hypothetical, it wouldn't actually be interpreting anything.

[01:03:50] Speaker 02:
It would just be sort of reproducing the interpretation from elsewhere.

[01:03:54] Speaker 02:
But the policy, the general policy that would be embodied in the fact that it appears in the manual would be a policy of instructing

[01:04:01] Speaker 02:
RO adjudicators to follow that interpretation despite Hudgens.

[01:04:06] Speaker 02:
And I think that would be fairly qualified as a statement of general policy.

[01:04:11] Speaker 02:
So it would still be covered by the publication requirement, by 552A1, but I think it would probably be under that different prong.

[01:04:18] Speaker 10:
Okay.

[01:04:19] Speaker 10:
Let's take Hudgens out of this because I think you're not getting up or you're not kind of directly answering the question that Judge Stike and I both were trying to ask, which is if a manual provision simply restates

[01:04:31] Speaker 10:
an agency interpretation announced adopted appropriately in the Federal Register, is that manual provision separately reviewable under 502 or is the instrument for review a challenge to the interpretation announced in the Federal Register?

[01:04:52] Speaker 02:
I think

[01:04:54] Speaker 02:
I think probably, I want to be careful not to concede anything here because I haven't fully thought this through, Your Honor.

[01:04:59] Speaker 02:
I think if it were literally just purely a restatement of a rule that appears elsewhere and that hasn't come under question, there hasn't been litigation about it, there's no like policy judgment that's being exercised with respect to it other than just putting it in the manual, I think that would be a much harder case for us.

[01:05:16] Speaker 02:
But in a circumstance in which there is a question about whether and how that interpretation applies, I think that that would be a policy decision that the agency makes.

[01:05:26] Speaker 02:
Mr. Martinez?

[01:05:28] Speaker 10:
Sorry.

[01:05:29] Speaker 10:
I know you can't hear me interrupting.

[01:05:31] Speaker 10:
This is the bad part of doing this only by audio and not having video, is you can't see me.

[01:05:37] Speaker 10:
But you keep saying that would be a harder question, and then thinking back, can you answer the question?

[01:05:43] Speaker 10:
If the manual provision simply says,

[01:05:46] Speaker 10:
go look at this regulation because it's what covers this condition.

[01:05:50] Speaker 10:
It doesn't have any interpretation.

[01:05:52] Speaker 10:
It is simply an instruction.

[01:05:54] Speaker 10:
You know, the manual codifies a bunch of instructions to the agency adjudicators where to find the underlying source of law and it's not the adoption law.

[01:06:03] Speaker 10:
If that's all it says is go look at X regulation, is that something that's covered anywhere in 552 and therefore a reviewable under 502?

[01:06:12] Speaker 02:
Yes, but my position would be yes, but I do think that if you disagree with me on that question, it doesn't have implications for the situation we have here for the reasons that we've talked about.

[01:06:25] Speaker 02:
And why is your answer yes?

[01:06:28] Speaker 02:
My answer would be yes, because in that circumstance, the manual is itself announcing an interpretation of general applicability.

[01:06:36] Speaker 02:
And that's what 552A1 covers.

[01:06:39] Speaker 10:
How is it announcing anything when it's simply a reference to the place where the agency actually did announce and adopt the policy?

[01:06:46] Speaker 10:
And let me add, since I'm going to run out of time, let me add the second question.

[01:06:50] Speaker 10:
Doesn't that mean every single time the agency updates the manual with clearer instructions that it becomes subject to a new secure statute of limitations?

[01:07:02] Speaker 02:
Your honor, I think maybe I misunderstood the hypothetical.

[01:07:06] Speaker 02:
I think if it's just a cross reference to a regulation without reproducing it, re-endorsing it, then I think that would probably not qualify.

[01:07:15] Speaker 02:
But if the manual is itself laying it out,

[01:07:17] Speaker 02:
that interpretation again.

[01:07:19] Speaker 02:
And especially, you know, again, I don't want to exceed the bounds of the premises that you've asked me to accept, but I think by putting it in the manual that the agency is actually doing something that goes beyond just adopting the interpretation.

[01:07:34] Speaker 02:
It's instructing the RO adjudicator to follow that particular interpretation.

[01:07:39] Speaker 02:
I think the combination of those things would make it reviewable.

[01:07:42] Speaker 02:
But again, I don't think that's this case.

[01:07:48] Speaker 08:
Judge Stowe.

[01:07:50] Speaker 06:
I have a question about 502, and in particular, the language.

[01:07:58] Speaker 06:
Which section 552A1 or 553 of Title V refers?

[01:08:04] Speaker 06:
And in particular, that to which refers language?

[01:08:07] Speaker 06:
Later in that same provision, we see more customary language that would use, like in accordance with another statutory provision.

[01:08:16] Speaker 06:
under another statutory provision.

[01:08:18] Speaker 06:
That's the kind of language we usually see.

[01:08:21] Speaker 06:
And what I wanted to know is, are you aware of any statutes with similar wording to what we see in 502?

[01:08:27] Speaker 06:
And in particular, just to make it clear, I'm talking about that, to which the statutory provision refers language.

[01:08:35] Speaker 02:
Your Honor, I'm not aware of anything else.

[01:08:37] Speaker 02:
And I don't think the government has cited anything else.

[01:08:39] Speaker 02:
And so we think that in that circumstance, you should just apply the ordinary meaning of refers, which is to mention or allude to.

[01:08:48] Speaker 06:
Thank you.

[01:08:50] Speaker 07:
All right.

[01:08:51] Speaker 07:
We're ready for our second round with you, Mr. Martinez.

[01:08:55] Speaker 07:
And as I stated at the outset, this round will consist of going through the roster of judges again with one minute for question and answer.

[01:09:04] Speaker 07:
And I go first, and I pass.

[01:09:08] Speaker 07:
Judge Newman.

[01:09:09] Speaker 03:
Well, I have one question that we really haven't gotten to.

[01:09:14] Speaker 03:
At the time that this legislation that set this up was enacted, there was concern within the Congress that authorizing and allowing the continuing adjustments of the manual to reflect current actions and needs and changes of circumstances

[01:09:38] Speaker 03:
that when they added the review provision with a 60-day limit that they thought that they were adding a path of review to in areas that were not previously available for the reasons that we've been discussing, whether it was lack of finality or lack of individual applicability or whatever.

[01:10:03] Speaker 03:
So the idea was that we do want to enlarge the opportunities to review changes in the manual, changes not in the federal register, changes before they have an opportunity to go through an elaborate procedure, and not to put accompanying that, as I saw it at the time, not to put any limit on who

[01:10:28] Speaker 03:
can bring a challenge such as your organization within this brief 60-day period.

[01:10:36] Speaker 03:
Now, is this something that's still on the table before us or has the passage of time just rendered that view obsolete?

[01:10:47] Speaker 02:
Your Honor, I had a little bit of trouble hearing the question, but as I understand it, I think it was a reference to the comment in the legislative history of the 2008 legislation

[01:10:57] Speaker 02:
that seem to make reference to the 60-day rule.

[01:11:01] Speaker 02:
If I understood that correctly, I think that that reference cannot trump either the text of the statute of the six-year statute of limitations, and it can't trump this court's precedence in premature and block, which make clear that the six-year statute of limitations apply.

[01:11:18] Speaker 02:
You know, the Supreme Court has said just recently that arguments based on subsequent legislative history, and this would be subsequent legislative history, of course, because the 2008 legislative history would postdate the 1988 passage of the judicial review provision that we're talking about.

[01:11:36] Speaker 02:
The Court has said that that kind of subsequent legislative history should not be taken seriously.

[01:11:41] Speaker 02:
That's from the Bostock decision.

[01:11:43] Speaker 02:
And I think, you know, the fact that a committee staffer may have written a report that included a reference to the 60-day rule on the assumption that the 60-day rule was consistent with the law, I don't think should matter in your interpretation of whether the six-year statute of limitations applies.

[01:12:04] Speaker 03:
General understood that that 60-day rule was not subject to Article 3, but we're adding an increased opportunity for participation and for challenge to changes in the manual, and particularly because changes in the manual don't, and most of them, I gather, do not go through notice and comment.

[01:12:31] Speaker 02:
Your Honor, we think that the 1988 statute that enlarged judicial review and created Section 502 absolutely was a very deliberate choice.

[01:12:42] Speaker 02:
As this Court said in the 2003 Nova case, it was a deliberate choice to express a preference for pre-enforcement judicial review.

[01:12:49] Speaker 02:
And we don't think that at that time, of course, the 60-day time limit didn't

[01:12:54] Speaker 02:
wasn't in existence yet and didn't apply.

[01:12:57] Speaker 02:
And we think that Congress legislated against the backdrop and intended to apply the ordinary six-year rule.

[01:13:04] Speaker 02:
And nothing that happened later in Congress undermines that intent.

[01:13:08] Speaker 08:
Judge Lurie.

[01:13:11] Speaker 08:
I pass, Chief.

[01:13:13] Speaker 08:
Thank you.

[01:13:13] Speaker 08:
Judge Dyke.

[01:13:14] Speaker 01:
I pass.

[01:13:15] Speaker 01:
Thank you.

[01:13:17] Speaker 07:
Judge O'Malley.

[01:13:20] Speaker 07:
I have one question.

[01:13:22] Speaker 07:
Counsel, you referred generally to the pro-vets and candidates.

[01:13:29] Speaker 07:
Where in the interpretation exercise that you asked us to do do you come into play?

[01:13:41] Speaker 02:
Your Honor, I think the pro-veteran canon would apply to our argument based on section 553, but not to our argument based on the cross-reference to 552.

[01:13:52] Speaker 02:
And the reason for that is that the only real dispute, I think, between the parties with respect to our 553 argument is what the meaning of the term refers is.

[01:14:02] Speaker 02:
And that word refers appears in 38 USC 502, which is the veteran statute.

[01:14:08] Speaker 02:
And so, you know, we've got, we think that the reading that's most consistent with ordinary meaning, the VA has a meaning that is not supported by any dictionaries or other ordinary meaning sources, but they say that we should read refers to mean applies.

[01:14:23] Speaker 02:
But that whole debate is about a veteran statute, 38 USC 502.

[01:14:29] Speaker 02:
We will concede that the pro veteran canon shouldn't affect your consideration of what 552A1 means, because that is just the general,

[01:14:38] Speaker 02:
FOIA provision or APA slash FOIA provision, which is not a veteran-specific statute.

[01:14:44] Speaker 02:
But we do think it does a lot of work for us and certainly helpful to us on the 502's cross-reference to 553.

[01:14:53] Speaker 07:
Okay.

[01:14:53] Speaker 07:
Judge Raina.

[01:14:54] Speaker 07:
Thank you.

[01:14:55] Speaker 07:
Judge Raina?

[01:14:56] Speaker 12:
Yes.

[01:14:56] Speaker 12:
So the question I was asking is, Mr. Martinez,

[01:14:59] Speaker 12:
What level of deference ascending would we apply in our review of the agency interpretation in these pre-enforcement actions?

[01:15:09] Speaker 02:
Yes, so I think in general, Your Honor, they would present pure legal questions, so they'd be subject to de novo review.

[01:15:15] Speaker 02:
I think with respect to agency deference, what the agency typically does in these cases involving the manual is that it asserts that the interpretations that are embodied within the manual provisions are entitled, especially when the interpretations are interpretations of its own regulations,

[01:15:31] Speaker 02:
The agency says those are entitled to our deference.

[01:15:35] Speaker 02:
I think the fact that they make that argument just simply confirms that the agency views those interpretations as final, as meaningful, as creating legal consequences that would make them reviewable.

[01:15:46] Speaker 02:
Now, we can talk about if you'd like the specific new rules here.

[01:15:49] Speaker 02:
We don't think that either interpretation is reasonable.

[01:15:52] Speaker 02:
We don't think the need-replacement rule of interpretation is consistent, as this court said in Hudgens, so we don't think they're actually entitled to our deference.

[01:15:59] Speaker 02:
But as a general matter, I think they usually assert our deference when invoking manual provisions.

[01:16:05] Speaker 12:
Okay.

[01:16:05] Speaker 12:
Thank you.

[01:16:06] Speaker 13:
Judge Wallace.

[01:16:09] Speaker 13:
I pass on this line of questioning.

[01:16:11] Speaker 13:
Thank you.

[01:16:12] Speaker 13:
Thank you.

[01:16:13] Speaker 13:
Judge Taranto.

[01:16:14] Speaker 05:
Mr. Martinez, do you have any sense of how many of the 175 manual editions this year alone you would expect to fit within your 552A1 position?

[01:16:27] Speaker 05:
And one reason I guess I ask is that it feels like what might be happening here, which may well be absolutely correct under the statute, is a large shift to where we're deciding many legal issues without the benefit of rulings on the issues by the Specialist Veterans Court.

[01:16:44] Speaker 05:
which gives me at least some pause in thinking about the results.

[01:16:51] Speaker 02:
Your Honor, to answer your question directly, I don't know the answer to that.

[01:16:55] Speaker 02:
I haven't looked at all of the revisions.

[01:16:57] Speaker 02:
I think with respect to your concern about preempting the Veterans Court, I think Congress made the judgment in 1988 that it wanted you to be the first court that folks would go to when these kinds of challenges to, you know, generally applicable rules are brought.

[01:17:14] Speaker 02:
And that's the judgment that Congress made, and that's why we're here instead of in the Veterans Court, of course.

[01:17:22] Speaker 08:
Judge Chen?

[01:17:24] Speaker 08:
I pass.

[01:17:26] Speaker 08:
Judge Hughes?

[01:17:28] Speaker 08:
I pass.

[01:17:30] Speaker 07:
Judge Stowe?

[01:17:31] Speaker 07:
I pass.

[01:17:35] Speaker 07:
Okay.

[01:17:36] Speaker 07:
And Mr. Martinez, you've got about a half minute left on your regular time before you start hitting rebuttals.

[01:17:46] Speaker 07:
So if you want to take a minute to conclude this portion of your argument,

[01:17:50] Speaker 07:
and we'll save the remainder for rebuttal.

[01:17:55] Speaker 02:
Thank you, Your Honor.

[01:17:56] Speaker 02:
I guess what I'd just say is in concluding here, I would just say that although there's a lot of tricky administrative law questions here, I think ultimately this case really does turn on the ordinary meaning of the cross-reference to 552, its reference to interpretations of general applicability.

[01:18:13] Speaker 02:
I don't think the government has come forth with any textual reason or historical reason why that phrase of general applicability means binding.

[01:18:21] Speaker 02:
And even if it did mean binding, we think that it is binding, the manual provisions are binding here on the RO.

[01:18:29] Speaker 02:
Similarly, with respect to the cross-reference to 553, the issue turns entirely on the meaning of the word referred, and I think the ordinary meaning supports us.

[01:18:37] Speaker 02:
Thank you, Your Honor.

[01:18:39] Speaker 07:
Thank you, Ann.

[01:18:40] Speaker 07:
Your rebuttal time remains intact.

[01:18:42] Speaker 07:
Mr. Bruskin, you have three minutes uninterrupted.

[01:18:47] Speaker 11:
Thank you, Your Honor.

[01:18:48] Speaker 11:
VA staff manuals are critical tools for VA and its mission of caring for veterans.

[01:18:54] Speaker 11:
VA uses the online M211 adjudication manual to quickly distribute guidance to its frontline benefits claims adjudicators.

[01:19:02] Speaker 11:
However, because veterans may obtain de novo review of their claims from the board, which is not bound by the provisions in the manual, manual provisions are only the starting point for the agency and veterans alike.

[01:19:14] Speaker 11:
In this case, the court must decide if it can review interpretations in the manual under Section 502, which Congress designed in the BJRA as a limited route for veterans to challenge binding VA actions like regulations and presidential general counsel opinions.

[01:19:29] Speaker 11:
The question of the court's jurisdiction here, we believe, largely boils down to where the court draws a line between 552A1D and A2B.

[01:19:39] Speaker 11:
And Nova says drawing this line is easy,

[01:19:41] Speaker 11:
because any interpretation that is not particularly applicable is generally applicable, and so it must be published and can be reviewed.

[01:19:49] Speaker 11:
But for over 50 years, courts, including this one, have grappled with the notoriously difficult line between A1D and A2B.

[01:19:57] Speaker 11:
The reason this line is so difficult to draw is because there is no clear line drawn in the text of FOIA.

[01:20:04] Speaker 11:
Nova's textual approach to A1D does not lead us to the right answer because it leads to silly results.

[01:20:10] Speaker 11:
NOVA argues that general interpretations and general policies apply to more than named persons, and so must be published, whereas policies and interpretations directed only to particular people need not be published.

[01:20:23] Speaker 11:
NOVA thus argues in its reply, as it must, that there are policies of particular applicability that are covered by 552A2B, but it does not identify any.

[01:20:33] Speaker 11:
Moreover, the APA only exempts general policies from notice and comment rulemaking.

[01:20:38] Speaker 11:
In 563,

[01:20:40] Speaker 11:
meaning that the policies of particular applicability that NOVA theorizes must require notice and comment, while general policies would not.

[01:20:47] Speaker 11:
Obviously, that makes little sense, which is why relying solely on the dictionary here does not lead us to the right result.

[01:20:54] Speaker 11:
And that is why courts have almost unanimously looked to other provisions in 552A1 to determine where the publication requirement attaches.

[01:21:02] Speaker 11:
And nearly all have looked to the proviso added in FOIA that materials not published as required cannot adversely affect a member of the public.

[01:21:10] Speaker 11:
We urge the court to do the same here, but instead of applying a subjective test, the court should decide where the publication requirement attaches by looking at whether the agency action binds the agency and can therefore, and as an objective matter, adversely affect a member of the public.

[01:21:26] Speaker 11:
Doing so is consistent with FOIA's focus on ensuring the public is made aware of agency actions that will or can adversely affect them

[01:21:34] Speaker 11:
50 years of FOIA precedent, and the Supreme Court's decision in Morton v. Ruiz.

[01:21:39] Speaker 11:
It's also, most importantly, consistent with the VJRA, which is designed to channel most challenges through the administrative claims and appeals processes up through the specialized Veterans Court, with a limited exception for direct review of regulations and presidential general counsel opinions, which are binding on the entire agency, but not for interpretations that do not conclusively set forth the agency's interpretation

[01:22:04] Speaker 11:
of the law.

[01:22:06] Speaker 07:
Thank you.

[01:22:07] Speaker 07:
I will pass on my question, turn then to Judge Newman.

[01:22:12] Speaker 03:
Well, I'm still concerned about this aspect, as counsel just mentioned, the eliminated exception for direct review, which bypass the specialized court, which is indeed charged with and obviously experienced

[01:22:30] Speaker 03:
in the procedures involving veterans.

[01:22:37] Speaker 03:
So we have a limited exception for direct review, which had a very limited and tight limitations period for that limited exception.

[01:22:48] Speaker 03:
Now what we're talking about is that we retain the limited exception for direct review, but we open it to six years instead of 60 days.

[01:23:00] Speaker 03:
and trying to understand the legislative policy, the public policy, the veterans policy involved here is a matter of concern.

[01:23:10] Speaker 03:
So my question for government counsel is how do you see how Congress intended this limited exception for direct review?

[01:23:22] Speaker 11:
Well, I think the legislative history of the VJRA makes clear because there's references in both the House

[01:23:28] Speaker 11:
and Senate side that what they had in mind were that rules like regulations and presidential general counsel opinions which set forth how the entire agency interpreted a statute or a regulation would be reviewable by this court on pre-enforcement review because there's no reason to require a veteran to go through the process of obtaining

[01:23:51] Speaker 11:
a RO and a BVA decision when you know how the BVA is going to interpret the law because the agency has set forth in a binding statement.

[01:24:01] Speaker 11:
But where there is no such binding rule on the board and the board is going to take a de novo review of things, the VJRA sets forth very intricate and important administrative channels that channel each of those challenges up through the board and through the Veterans Court

[01:24:18] Speaker 11:
not only to build a record, but to gain the benefit of the expertise and the knowledge that the board judges and the judges at the Veterans Court bring to a question before this court steps in to review it.

[01:24:31] Speaker 11:
So I think it's entirely consistent with the VJRA to limit this court's review and channel more review into the appeals process.

[01:24:39] Speaker 03:
Well, when you say the limit, are you talking about a statute of limitations?

[01:24:44] Speaker 03:
Are you talking about preserving the 60-day period?

[01:24:50] Speaker 11:
I'm discussing both, Your Honor.

[01:24:51] Speaker 11:
I think the 60-day period is recognition of the fact that most review through the VJRA is designed to go through the VA first and then to the Veterans Court, and that the option for coming to the Federal Circuit should be limited

[01:25:09] Speaker 11:
It's both limited by Congress with respect to the cross references in Section 502.

[01:25:15] Speaker 11:
And this court obviously believed in 1993 that it should also be limited in its time period, which makes sense because what you don't want is a situation, I think, that Mr. Tangent represents here where a veteran has an opportunity to appeal the application of something to their claim.

[01:25:31] Speaker 11:
They have the chance to appeal to the board, but instead they don't.

[01:25:34] Speaker 11:
they let it become final, and then they show up and ask for pre-enforcement review and claim they have standing because they were harmed.

[01:25:42] Speaker 11:
I think that really perverts the mechanism set up in the BJRA through which Mr. Tangent had the opportunity and should have availed him of the opportunity to challenge the manual provision at the board if he believed it was an error.

[01:25:55] Speaker 11:
Judge Lurie.

[01:25:57] Speaker 08:
I pass, Chief.

[01:25:59] Speaker 08:
Thank you.

[01:26:00] Speaker 08:
Judge Dyke.

[01:26:01] Speaker 01:
Thank you.

[01:26:02] Speaker 01:
I have three questions.

[01:26:03] Speaker 01:
I hope we can get to all three of them.

[01:26:05] Speaker 01:
The first is you have consistently argued for our deference to provisions in the manual.

[01:26:15] Speaker 01:
And I do not understand how that position is consistent with your view that the manual doesn't reflect an official agency position and that it's not final.

[01:26:25] Speaker 01:
The proceedings with respect to the manual itself are certainly concluded, you say,

[01:26:31] Speaker 01:
It's entitled to our deference.

[01:26:32] Speaker 01:
How is that consistent with your position on finality and indeed your position about reviewability generally?

[01:26:39] Speaker 11:
Well, to the extent that the agency asks for deference to its interpretations in the manual, as the court in Kaiser set forth and reflecting Perez, it's not the agency's interpretation that becomes the final word on what a statute or regulation means.

[01:26:59] Speaker 11:
It's the court agreeing with the agency.

[01:27:02] Speaker 11:
And so I don't think that asking for a deference because the agency has long interpreted something in a certain manner.

[01:27:11] Speaker 01:
Isn't your position that the manual provision represents the official position of the agency which should earn our deference inconsistent with the notion that that's not the final agency action?

[01:27:26] Speaker 11:
Well, to the extent that the secretary agrees that that position should be entitled to deference and that argument is made in court.

[01:27:37] Speaker 11:
But I would point out that at that point, that manual provision is subject to review by the court.

[01:27:43] Speaker 11:
And so it does not turn other manual provisions into final agency action or make them otherwise binding simply because before a tribunal,

[01:27:55] Speaker 11:
the agency asks the tribunal to take a look at how the agency has interpreted this one statute or regulation in the manual provision.

[01:28:03] Speaker 01:
Okay.

[01:28:04] Speaker 01:
My second question relates to the Supreme Court's decision in Hawks, where the court suggested, and this has been repeated in various circuit decisions also, that the court has taken a pragmatic approach to the question of finality.

[01:28:21] Speaker 01:
And you say, well, that's not true because

[01:28:24] Speaker 01:
this circuit decision and Joshi says it's not a pragmatic inquiry but that case just involved possible reputational damage.

[01:28:37] Speaker 01:
So if in fact we have to take a pragmatic approach here to this question of finality, as a practical matter isn't this manual, these provisions in the manual effectively

[01:28:53] Speaker 01:
as a practical matter binding in a vast majority of cases?

[01:28:58] Speaker 11:
I have two responses, Your Honor.

[01:28:59] Speaker 11:
And one is to question the premise of it.

[01:29:02] Speaker 11:
Although Hawks does state that there should be a pragmatic approach, there's been inconsistent interpretation of what that means in the DC circuit.

[01:29:13] Speaker 11:
So there are cases like Appalachian Power and the NRDC case.

[01:29:17] Speaker 11:
And there's Joshi.

[01:29:18] Speaker 11:
And although that is about reputational harm,

[01:29:21] Speaker 11:
the court in Joshua's was relying on the reliable sprinklers case, in which the party at issue had to voluntarily comply with the action at issue or risk enforcement.

[01:29:34] Speaker 11:
So there's more than simply reputational harm that courts have found insufficient for finality.

[01:29:42] Speaker 11:
But the second point I'd like to make in response is that the notion that having to go through the board process

[01:29:51] Speaker 11:
and appeal to the Veterans Court if a veteran chooses is somehow renders manual provisions sufficiently final suggests that the VJRA itself made essentially any agency action by the VA reviewable because what your Honor's question was premised on is the idea that because you have to go to the Board and appeal

[01:30:16] Speaker 11:
Um, that somehow it is a practically binding on the veterans, but that is exactly what the VJR is.

[01:30:24] Speaker 01:
The point is because so many of these claims are resolved as a practical matter at the board level.

[01:30:33] Speaker 01:
Doesn't that way in favor of reviewability under the Supreme court's pragmatic approach and hawks?

[01:30:41] Speaker 11:
No, your honor, because I think that is allowing a policy.

[01:30:45] Speaker 11:
concern to creep into what Congress had in mind in 1988 when they set up these review mechanisms.

[01:30:54] Speaker 11:
And the fact that 94% of claims are not appealed to the board without any insight into why the vast majority of them do not appeal does not give an indication that an otherwise limited decision like a manual interpretation that does not bind

[01:31:15] Speaker 11:
the ultimate decision-makers, somehow is transformed by the decision by certain veterans not to appeal to the board.

[01:31:23] Speaker 01:
OK.

[01:31:24] Speaker 01:
And my final question relates to the six-year time limit.

[01:31:29] Speaker 01:
And we have various other federal statutes, including the Hobbs Act and other provisions that impose a specific 60-day time limit on review of agency action.

[01:31:42] Speaker 01:
Doesn't the fact that Congress didn't include

[01:31:45] Speaker 01:
that sort of 60-day limit in this statute suggests that the general statute of limitations governs?

[01:31:53] Speaker 11:
Well, I think it suggests that the 2401A certainly applies, and we don't dispute that.

[01:31:59] Speaker 11:
But I think as Judge Taranto correctly noted, 2401A only sets out an outside time limit.

[01:32:07] Speaker 11:
on when cases are efficient.

[01:32:09] Speaker 01:
Forgive me for interrupting, but I don't think you're answering my question.

[01:32:12] Speaker 01:
The question is, when Congress and other statutes impose the 60-day limit and didn't do so in this statute, isn't that evidence that the general six-year statute governs?

[01:32:25] Speaker 11:
And I think that's reading too much out of the congressional silence.

[01:32:30] Speaker 11:
And there are many examples of times when Congress does not

[01:32:36] Speaker 11:
include a statute of limitations and where a court finds a 2401A does not apply.

[01:32:41] Speaker 11:
And the courts are instructed to, in those circumstances, borrow statutes from other analogous situations.

[01:32:51] Speaker 11:
So I don't think that there's support for the notion that congressional silence

[01:32:55] Speaker 11:
should lead a court to adopt any particular statute of limitations unless it determines that that statute of limitation comes from an analogous statute.

[01:33:07] Speaker 11:
And the Hobbs Act and many of the statutes we cited show that the court's rule is consistent with generally how Congress wants the Federal Circuit and other courts of appeals to review agency action.

[01:33:21] Speaker 07:
Judge O'Malley.

[01:33:24] Speaker 07:
I think Judge Stike covered the landscape for me.

[01:33:27] Speaker 07:
Thank you.

[01:33:28] Speaker 07:
Thank you.

[01:33:29] Speaker 07:
Judge Raina.

[01:33:31] Speaker 12:
Yes, I have a brief question.

[01:33:34] Speaker 12:
Mr. Bristol, why did the VA publish a notice of proposed rulemaking with respect to the neat stability rule before it inserted a version of that rule, the same rule, directly into the manual?

[01:33:49] Speaker 12:
If, as you allege, the manual provisions don't require

[01:33:52] Speaker 12:
on notice and comment rulemaking process?

[01:33:56] Speaker 11:
Well, because the, and I think we're referring to 5055, Your Honor, that the diagnostic code at issue in Hudgens.

[01:34:04] Speaker 11:
Am I understanding your question correctly?

[01:34:07] Speaker 11:
5257.

[01:34:07] Speaker 11:
I mean, I'm not familiar, I suppose, enough with what they put in the Federal Register, certainly to the extent that they were changing

[01:34:21] Speaker 11:
a regulation are making a substantive change, then they would have to put something into the Federal Register to do so.

[01:34:29] Speaker 11:
I think building off Judge Hughes and Judge Dyke's questions, it's entirely permissible for the agency to then simply republish that in the manual to ensure that all of the adjudicators of the RO have easy access to the rules that need to be applied.

[01:34:49] Speaker 12:
Okay, thank you.

[01:34:51] Speaker 13:
Judge Wallach?

[01:34:54] Speaker 13:
Yeah, I have one brief question for the government that I think fits in here.

[01:34:59] Speaker 13:
And that is, would the DOJ have any reason to object to this court simply repealing an internal rule, which is Rule 15A?

[01:35:13] Speaker 11:
Would we object?

[01:35:15] Speaker 11:
Well, I think as we raise in our response to the petition for review,

[01:35:19] Speaker 11:
there are processes that the court typically goes through to change internal rules of that nature which permit, I believe, the public to weigh in.

[01:35:31] Speaker 11:
I think that there could be concern that DOJ and or VA or DOJ on VA's behalf would express with repealing the rule and permitting veterans like a Mr. Tangent or the veteran like in hilarity

[01:35:49] Speaker 11:
to sort of partially go through the Chapter 72 processes, but then allow things to become final, and then many years later come to court.

[01:36:04] Speaker 05:
Thank you.

[01:36:05] Speaker 05:
Judge Chironte.

[01:36:08] Speaker 05:
Thank you, Mr. Broskin.

[01:36:09] Speaker 05:
I want to return to the Rule 15F question.

[01:36:13] Speaker 05:
Do you have any examples of any other court's adoption of a rule under 2071 that requires a filing in less than the time beyond which Congress has said the filing is too late and relatedly any cases addressing such rules?

[01:36:31] Speaker 05:
My recollection is that neither side's brief identified any case involving such a rule or indeed

[01:36:43] Speaker 05:
to any such rule?

[01:36:46] Speaker 11:
I don't, Your Honor.

[01:36:47] Speaker 11:
And it's not for lack of looking, Your Honor.

[01:36:49] Speaker 11:
I will be candid.

[01:36:51] Speaker 11:
I think what that reflects is that this is a unique situation.

[01:36:55] Speaker 11:
And so there's no clear-cut precedent that suggests

[01:37:02] Speaker 11:
that the court is precluded by the language in 2401A from creating its own claim processing rule if it believes that's appropriate and necessary to conduct a decision.

[01:37:16] Speaker 05:
I wonder, Mr. Ruskin, if putting aside the absence of cases and focusing on the absence of rules, whether it suggests that the

[01:37:28] Speaker 05:
Statutory limitations provision, even one worded like this one merely to say what is too late, is so uniformly understood to declare everything timely that is less than that date that no court has ever thought that it could make a rule to demand filing in less than that amount of time.

[01:37:54] Speaker 11:
I won't quibble with the sort of inferences made in that statement, but I would suggest that the Federal Circuit occupies a unique role in the VA system.

[01:38:05] Speaker 11:
And so the fact that other courts have not undertaken what the Federal Circuit, the specialized court, has undertaken with respect to this unique system is not, I don't believe, overly persuasive evidence that other courts have, without saying so,

[01:38:23] Speaker 11:
interpreted 2401A to preclude local rules, and in fact, the few cases that we were able to find sort of addressing how 2401A fits in with other statute of limitations agreed that it sets the outside time limit only.

[01:38:41] Speaker 05:
And just finally on that, do you disagree with Mr. Martinez's statement that

[01:38:49] Speaker 05:
2401 is widely, maybe even uniformly accepted to apply to APA actions.

[01:38:58] Speaker 05:
And if that's right, has any of those, of the cases indicating that view involved an effort to demand a filing in less than the six-year period?

[01:39:14] Speaker 11:
The answer to the first question, Your Honor, is yes, I do agree.

[01:39:16] Speaker 11:
The cases that I reviewed showed

[01:39:19] Speaker 11:
that it is, I believe, uniformly adopted for APA.

[01:39:23] Speaker 11:
And I am not aware of any decision that grapples with the unique question facing the court today.

[01:39:29] Speaker 08:
Thank you.

[01:39:30] Speaker 08:
Judge Chen.

[01:39:32] Speaker 09:
Thank you.

[01:39:33] Speaker 09:
My questions are looking to explore the board's relationship with the rest of the agency.

[01:39:40] Speaker 09:
And my initial question is, why is it that the VA would create a system in which it would go through all the trouble

[01:39:49] Speaker 09:
producing all of these different manual provisions, providing all these different interpretations that bind one arm of the agency, that is all the RO line adjudicators, but not bind another arm of the agency, and that is the Board of Veterans Appeals.

[01:40:09] Speaker 11:
Sure.

[01:40:09] Speaker 11:
Well, as Nova likes to point out, the RO adjudicators are not lawyers.

[01:40:14] Speaker 11:
So they are not equipped to review

[01:40:18] Speaker 11:
statutes and regulations and independently determine their meaning and their application.

[01:40:26] Speaker 11:
And so the VA has determined that to ensure uniformity and consistency in its decisions in the regional offices, it made sense to put together a manual.

[01:40:37] Speaker 11:
Clearly, it didn't need to put all these things in one centralized manual and it could have required

[01:40:42] Speaker 11:
regional office adjudicators to call back to headquarters and get marching orders in every single case, and that's obviously... Right, but the board members are not bound to follow all of these interpretations set out in the manual, right?

[01:40:59] Speaker 11:
Right, and they're judges.

[01:41:00] Speaker 09:
I mean, they are lawyers, the BVA judges, and so they are... So how often do those board members not follow or elect to not follow the manual provisions?

[01:41:11] Speaker 09:
Is it common?

[01:41:13] Speaker 09:
extremely uncommon, do you know?

[01:41:14] Speaker 11:
I don't know how to categorize it as common or uncommon.

[01:41:19] Speaker 11:
We certainly cite a number of board decisions rejecting manual provisions and applying different interpretations.

[01:41:26] Speaker 11:
And so it is not extremely uncommon.

[01:41:30] Speaker 09:
You know, the vast... What does the VA secretary do under those circumstances when it has the board

[01:41:41] Speaker 09:
from time to time electing not to follow the provisions set forth in the manual.

[01:41:46] Speaker 09:
In fact, doing something contrary to these interpretations in the manual.

[01:41:52] Speaker 11:
Sure.

[01:41:53] Speaker 09:
Well, the VA... Are there any controls that the VA secretary has on board decisions should it disagree with these sorts of actions that are contrary to the manual?

[01:42:08] Speaker 11:
Sure.

[01:42:08] Speaker 11:
My understanding is that if there develops a disagreement in more than perhaps one or two cases between the board's view and the VBA's view as put forth through the manual, that leadership of VBA and BVA would need to sort of determine.

[01:42:26] Speaker 11:
And I think that would be the right situation perhaps

[01:42:31] Speaker 11:
for a general counsel opinion to set forth, you know, the secretary's interpretation and bind both the RO and the board to that interpretation.

[01:42:44] Speaker 09:
So when the board issues a final decision that is contrary to and conflicts with a VA manual provision, that board decision represents the final agency action.

[01:42:57] Speaker 09:
Is that right?

[01:42:58] Speaker 11:
For that veteran, yes, Your Honor.

[01:42:59] Speaker 09:
And there's no further review at the VA or reconsideration of that final board decision?

[01:43:07] Speaker 11:
That's correct.

[01:43:08] Speaker 11:
And if it is beneficial to the veteran, the VA cannot appeal to the Veterans Court.

[01:43:13] Speaker 09:
Does that make the board members officers?

[01:43:21] Speaker 11:
I don't know if it makes them officers, but as the court, you know, addressed in the Ashford decision, there's nothing wrong

[01:43:28] Speaker 11:
with announcing new principles in an adjudication.

[01:43:32] Speaker 11:
And the agency has set up its system in the BJRA, you know, ensconced the system whereby board judges could announce new principles in adjudications.

[01:43:43] Speaker 11:
And there's nothing erroneous about that sort of mechanism.

[01:43:52] Speaker 12:
Okay, thanks.

[01:43:53] Speaker 12:
Judge Hughes.

[01:43:56] Speaker 10:
Mr. Breskin, I'm going to turn to the knee stability issue, which we haven't really talked about so far.

[01:44:03] Speaker 10:
And I'm going to ask it as a hypothetical because I don't want to get into a big debate about what the rule actually says or doesn't say or how you categorize it.

[01:44:12] Speaker 10:
Let's just assume that an agency recognizes the need to change criteria.

[01:44:23] Speaker 10:
it decides that in the first instance it's going to publish the change criteria in the manual.

[01:44:31] Speaker 10:
Is that the type of adoption of an agency policy that 552A1D refers to and therefore would be reviewable under 502?

[01:44:47] Speaker 11:
I don't want to concede that would be true in every conceivable circumstance, but I think

[01:44:52] Speaker 11:
if there is a substantive change to the rating criteria in the diagnostic code, then I think the answer would be yes, Your Honor.

[01:45:04] Speaker 11:
That would be something that should be undertaken through notice and comment.

[01:45:12] Speaker 10:
So then I'm going to ask you the more specific, and this isn't a hypothetical anymore, VA actually did undertake to do notice and comment

[01:45:20] Speaker 10:
on Diagnostic Code 5257 and published a proposed change in the Federal Register, went through notice and comment, and then withdrew it and republished the same rule in the manual.

[01:45:37] Speaker 10:
How is that, you know, the agency's seeming recognition that this should have gone through notice and comment and then changed to course midstream apparently and just published in the manual, how should that

[01:45:49] Speaker 10:
insulate the manual provision on the Knee Stability Rule from review under 502.

[01:45:54] Speaker 10:
Because I assume you would agree that if you'd gone through with the notice and comment and actually published the new interpretation in the CFR or in the Federal Register that it would have been revealable under 502.

[01:46:09] Speaker 11:
Yes, Your Honor.

[01:46:10] Speaker 11:
You know, I don't know the reason why the agency did not follow through with the proposed rulemaking and decided to put it into the manual.

[01:46:20] Speaker 11:
And so I don't want to say that there's no justification for that decision and there was no, you know, reconsideration of whether or not

[01:46:28] Speaker 11:
The rule was truly substantive or wasn't and therefore should be put into, it can be put into the manual.

[01:46:36] Speaker 11:
What I would point out though is that we're not suggesting that a veteran affected by this could not have come to court and said, hey, 5257, your interpretation of it in the manual is a substantive rule.

[01:46:50] Speaker 11:
It should have gone through notice and comment.

[01:46:52] Speaker 11:
And Federal Circuit, I want you to invalidate it for failure to do so.

[01:46:56] Speaker 11:
Now, of course, NOVA has not made that argument, which as Judge Toronto noted, suggests some possible divergence between NOVA and the veterans.

[01:47:06] Speaker 11:
But again, I think the Federal Circuit does have jurisdiction to consider whether or not a rule that the VA has put into the manual should have been promulgated through notice and comment.

[01:47:20] Speaker 10:
And is that not how we should interpret, even though that's not the argument NOVA is making,

[01:47:25] Speaker 10:
isn't that really what they should be challenging here instead of the merits of it?

[01:47:29] Speaker 10:
Because if we determine that it's a rule, either a substantive change or even an interpretive rule that should have been published, it should have gone through that process and it hasn't.

[01:47:40] Speaker 10:
And so the rule, as announced, is deficient.

[01:47:43] Speaker 10:
As compared to what I think you would say is a different circumstance with the partial need, which I assume your view is it just restates already published rules

[01:47:56] Speaker 11:
Yeah, I mean, I think embedded in the question was a suggestion that if it was somehow interpretive, that it should have gone through notice and comment, which, you know, I would disagree with, right, because if it's an interpretive rule, then 553 does.

[01:48:08] Speaker 04:
No, I'm sorry.

[01:48:10] Speaker 10:
If you misheard me on that, I didn't mean that interpretive rules obviously have to go through notice and comment, but they do have to be published, right?

[01:48:17] Speaker 10:
They have to be published.

[01:48:19] Speaker 10:
Well, it depends.

[01:48:21] Speaker 11:
It depends, Your Honor.

[01:48:24] Speaker 11:
It depends, right?

[01:48:26] Speaker 10:
I don't want to quibble about this.

[01:48:29] Speaker 10:
This is not the important part of the case.

[01:48:31] Speaker 10:
But let me just clarify.

[01:48:33] Speaker 10:
So because I think you understand what I'm getting at is that I'm concerned that your position that the manual provisions are not reviewable would allow the agency to hide provisions, and I'm not accusing anybody of doing this, but it would allow the agency to hide provisions that should have gone through notice and comment or otherwise been

[01:48:54] Speaker 10:
published in the Federal Register, and therefore it would have been challengeable under 502 to hide them in the manual and under your position not be revealable.

[01:49:04] Speaker 10:
And it seems to me that if the agency has done such an act, undertaken such an action, the fact that it's in the manual is not determinative of a revealability.

[01:49:15] Speaker 10:
It's whether it's something that should have been published either under 552A1 or 553.

[01:49:23] Speaker 11:
No, I agree with that.

[01:49:25] Speaker 11:
I just think that

[01:49:28] Speaker 11:
The fact is that putting something in the manual doesn't hide it from review.

[01:49:34] Speaker 11:
It's still subject to 502 and the argument that it should have been gone through notice and comment and the Federal Circuit can review that and say yes, this should have gone through notice and comment and so it's invalid and invalidated that way.

[01:49:46] Speaker 11:
And also just by putting it in the manual does not suggest that the interpretation in the provision is somehow hidden from judicial review because

[01:49:53] Speaker 11:
The other Chapter 72 process will eventually shine light on that judicial provision if it is, in fact, erroneous.

[01:50:04] Speaker 10:
Thank you.

[01:50:04] Speaker 10:
I don't have any more questions.

[01:50:06] Speaker 10:
Thank you.

[01:50:07] Speaker 10:
Judge Stowe.

[01:50:09] Speaker 06:
Judge, you've fully covered the questions I had for Mr. Breskin, so I pass.

[01:50:14] Speaker 07:
Thank you.

[01:50:15] Speaker 07:
All right.

[01:50:16] Speaker 07:
Now we'll undertake what is called our second round for you, Mr. Bruskin, and that will consist of going through the roster of judges.

[01:50:23] Speaker 07:
If they have questions, those questions and answers should try to be kept to a minimum of approximately one minute.

[01:50:30] Speaker 07:
I will pass on my questioning.

[01:50:33] Speaker 07:
Judge Newman.

[01:50:37] Speaker 07:
Judge Lori.

[01:50:38] Speaker 07:
I will pass.

[01:50:40] Speaker 01:
Judge Dyke.

[01:50:41] Speaker 01:
I have one question and that is about the Kaiser case.

[01:50:46] Speaker 01:
And if I understand that the government in Kaiser apparently agrees that board decisions are not entitled to hour deference as compared to manual provision.

[01:50:59] Speaker 01:
Is that your position that board decisions are not the official position of the agency and are not entitled to hour deference?

[01:51:09] Speaker 11:
To be honest, Your Honor, I'm not sure, is that an argument that was made in the briefing to the Supreme Court in Kaiser?

[01:51:18] Speaker 01:
The Kaiser case says, and this is the slip opinion at 29, the Solicitor General suggested oral arguments, the answer in this case might be no, and that is he explained all 100 or so members of the VA board act individually rather than as panels, and that there are roughly 80,000 annual decisions have no precedential value.

[01:51:39] Speaker 11:
You agree with that?

[01:51:40] Speaker 11:
Yes, Your Honor.

[01:51:43] Speaker 11:
OK.

[01:51:44] Speaker 11:
But that doesn't mean they can't announce new principles, right, as the court recognized in Ashford.

[01:51:48] Speaker 11:
But as a board decision, it is not precedential and binding on other board decisions for the agency.

[01:51:56] Speaker 11:
It's not the official position.

[01:51:57] Speaker 11:
Except in that one case.

[01:52:00] Speaker 11:
It's not the official position.

[01:52:01] Speaker 11:
It is in that one case.

[01:52:01] Speaker 01:
It's not the official position of the agency.

[01:52:05] Speaker 11:
Not as a precedential matter.

[01:52:06] Speaker 11:
No, Your Honor.

[01:52:07] Speaker 01:
For other cases.

[01:52:09] Speaker 07:
Judge O'Malley.

[01:52:12] Speaker 07:
I will pass again.

[01:52:14] Speaker 07:
Thank you.

[01:52:15] Speaker 07:
Judge Raina.

[01:52:16] Speaker 07:
I pass.

[01:52:18] Speaker 07:
Judge Wallach.

[01:52:19] Speaker 05:
I pass.

[01:52:21] Speaker 07:
Judge Toronto.

[01:52:23] Speaker 05:
I pass.

[01:52:23] Speaker 05:
Thank you.

[01:52:25] Speaker 09:
Judge Chen.

[01:52:26] Speaker 09:
Just a quick question following up on my earlier questions.

[01:52:30] Speaker 09:
It sounds like in the manual the VA secretary sets forth interpretations that it

[01:52:36] Speaker 09:
then later seeks our deference on.

[01:52:41] Speaker 09:
But at the same time, the BVA is not at all bound by or controlled by those interpretations the VA secretary adopts in the manual and seeks our deference for in the courts.

[01:52:55] Speaker 09:
So does that make the members of the BVA employees or are they officers?

[01:53:03] Speaker 11:
I mean, I believe members of the BVA are employees, but I don't know that I can offer an official response for what their title is, Your Honor.

[01:53:13] Speaker 09:
Right.

[01:53:13] Speaker 09:
I understand.

[01:53:15] Speaker 09:
Your argument is or your position is that they are employees and they're not officers, and I'm just wondering why is it that that is the case when from everything I'm hearing in this case, the BVA can

[01:53:30] Speaker 09:
essentially do whatever it wants whenever it wants, certainly at least with respect to all of these carefully scripted out provisions that are set forth by the agency through its manual on interpreting statutes and regulations.

[01:53:45] Speaker 11:
Well, I think because of the desire to give veterans multiple different bites at the apple to demonstrate that someone has made an error in an interpretation.

[01:53:57] Speaker 11:
And so for the vast majority of interpretations, the board is not bound by the view of another part of the agency but takes an independent look.

[01:54:06] Speaker 11:
And this provides multiple layers, multiple sets of eyes to make sure that the agency is making the correct call on how something is interpreted and how it is applied.

[01:54:16] Speaker 11:
And so I think it is part of the paternalistic system and I believe the VGRA, you know, in lead up to it there was consideration of doing away with the board but it was decided

[01:54:26] Speaker 11:
not to do that and it was adopted as part of the system to ensure that veterans have multiple opportunities and multiple people who look at their cases to make sure that they get it right.

[01:54:39] Speaker 09:
No further questions.

[01:54:41] Speaker 10:
Thank you.

[01:54:42] Speaker 10:
Judge Hughes.

[01:54:44] Speaker 10:
Yes, I just have one question.

[01:54:46] Speaker 10:
So I'm going to go back to the partial new rule.

[01:54:50] Speaker 10:
Let's just assume

[01:54:52] Speaker 10:
I disagree with Mr. Martinez and think that that manual provision is just a restatement and instruction of the Federal Register notice and the note added to the CFR.

[01:55:06] Speaker 10:
Is there anything, and I still would agree that it would have been proper under 502 to challenge the Federal Register notice.

[01:55:14] Speaker 10:
Is there anything in your view that would prevent them from amending their petition to challenge the

[01:55:21] Speaker 10:
Interpretation is announced to the Federal Register notice as opposed to the manual provision and therefore allow us to review it in this case after that amendment.

[01:55:32] Speaker 11:
I think as a general matter under 502 no, they would not be prevented from making that sort of adjustment.

[01:55:40] Speaker 11:
I think part of it might land on where the court comes down on its, on rule 15F and the application there.

[01:55:49] Speaker 11:
I think, you know, before answering conclusively, I'd need to see exactly what it is they're challenging.

[01:55:55] Speaker 11:
But yes, as a 502 matter, things that are published in the Federal Register are, under our view of 52A1D, reviewable by this court and would cover something published in the Federal Register.

[01:56:11] Speaker 07:
Okay.

[01:56:11] Speaker 07:
Thank you.

[01:56:12] Speaker 07:
Thank you.

[01:56:13] Speaker 07:
Judge Still, I pass.

[01:56:16] Speaker 07:
Okay, thank you.

[01:56:17] Speaker 07:
Well, Mr. Breskin, you've got about 17 minutes left of time, so don't feel compelled to use all of it, but the floor is yours, and judges may continue to interrupt their own choice.

[01:56:31] Speaker 11:
Sure.

[01:56:32] Speaker 11:
Well, I'll give anybody an opportunity to interrupt me up front, but if not, I'd like to briefly address

[01:56:38] Speaker 11:
the alternate theory that Nova suggests here, which is that the reference in 502 to 553 opens up this court's jurisdiction to the review of anything that's referenced in section 553, even by way of exclusion.

[01:56:59] Speaker 11:
And of course, no decision from this court has ever read

[01:57:03] Speaker 11:
a 502 in that way and we would suggest it's an illogical reading because there was obviously a choice Congress made in making sure that things subject to 552A1D are reviewable and not referencing things covered by 552A2.

[01:57:18] Speaker 11:
And yet the reference in 553 to the exclusion of interpretive rules would allow this court to essentially review everything

[01:57:28] Speaker 11:
that the VA published any statement made by the VA, whether interpretive, whether only of particular applicability.

[01:57:36] Speaker 11:
And I think there's really no support.

[01:57:38] Speaker 11:
And I think it reflects the sort of attempt to isolate in a vacuum the words of the statute and make a purely textualist argument as to how it should be interpreted.

[01:57:50] Speaker 11:
The court is here to interpret the VJRA.

[01:57:54] Speaker 11:
And so it's important to keep in mind what the goals were

[01:57:57] Speaker 11:
when Congress enacted the VJRA, what were they trying to accomplish?

[01:58:01] Speaker 11:
It's clear they were not trying to open up everything the agency does to APA review, yet that's what NOVA's reading of 553 would suggest.

[01:58:11] Speaker 11:
Unless the court has further questions, I will cede the remainder of my time and disrespectfully ask that the court either dismiss the petition for lack of standing or find that the DAV decision correctly found

[01:58:26] Speaker 11:
that there is no Section 502 review for interpretations that are published in the manual.

[01:58:33] Speaker 11:
Thank you, Your Honor.

[01:58:35] Speaker 07:
Thank you.

[01:58:36] Speaker 07:
Mr. Martinez, you have eight minutes remaining for rebuttal, which you may or may not be interrupted by judges at their discretion.

[01:58:44] Speaker 02:
Thank you, Your Honor.

[01:58:45] Speaker 02:
Just a few comments on the 552 issue, finality, the time limit issue, and some of the policy concerns.

[01:58:53] Speaker 02:
First of all, Mr. Bruskin opened his presentation by saying that the textual problem in this case is the need to draw a clear line between 552A1 and A2.

[01:59:02] Speaker 02:
We would respectfully submit that that's a kind of reiteration of what is essentially the mutual exclusivity argument that was made below and that

[01:59:11] Speaker 02:
I think it's very important to note that the VA has already affirmatively disclaimed that argument.

[01:59:16] Speaker 02:
If you look at page 22 of the VA's opposition brief to Sir Sherrari in the Gray versus Wilkie case, the VA specifically said, and is at the bottom of page 22, the criteria that 552A1 and A2 establish overlap.

[01:59:32] Speaker 02:
They overlap.

[01:59:32] Speaker 02:
In other words, there's not a clear line between A2, and you can have things that fall into both categories.

[01:59:38] Speaker 02:
Secondly, with respect to 552, Judge Chen and Judge Dyke, I think both asked questions regarding the strangest or the weirdness of a system in which interpretations, manual provisions are binding on the regional office but not on the board.

[01:59:54] Speaker 02:
And I think it's, you know, the weirdness of that is exacerbated by the fact that the board decisions, once they come out, they only apply in that individual veteran's case.

[02:00:04] Speaker 02:
And so, although Mr. Breskin says that

[02:00:06] Speaker 02:
It's accepted administrative law practice to issue, you know, broad statements of law in adjudications.

[02:00:11] Speaker 02:
That's true.

[02:00:12] Speaker 02:
But any statement of law issued by the board is not binding on anyone.

[02:00:16] Speaker 02:
It's not binding on the regional office the next time around.

[02:00:18] Speaker 02:
It's not binding on VA and litigation.

[02:00:21] Speaker 02:
It's not binding on the board itself the next time the next case comes across.

[02:00:25] Speaker 02:
And so I think it's a mistake to think of the board as being some sort of superior agency that is entitled to reflect the real position of the VA.

[02:00:33] Speaker 02:
What's really going on here is that the real position of the VA is reflected in the manual.

[02:00:37] Speaker 02:
And although they have created a weird system in which their appellate review body is allowed to ignore certain interpretations, I don't think that changes the fact that the manual provisions are binding on the regional office adjudicators and beget final decisions.

[02:00:54] Speaker 02:
And I think, you know, this sort of wrinkle about the board's role and the effect of its decisions I think just plays up the arbitrariness

[02:01:03] Speaker 02:
of VA's interpretation of Section 552.

[02:01:06] Speaker 02:
There's really no reason to think that Congress would have thought that a rule qualifies as being of general applicability if it binds the regional office and the board, even if it doesn't bind other agency entities within the agency like the general counsel or the secretary.

[02:01:22] Speaker 02:
And so this whole binding this requirement really is just invented for purposes of getting rid of these 502 cases.

[02:01:29] Speaker 02:
With respect to finality, Your Honors, I think Judge Dyke had it exactly right pointing to the Hawks case and that a pragmatic approach is required here.

[02:01:39] Speaker 02:
And I just want to highlight again the concession that VA made both in the DAV litigation and in the Gray litigation.

[02:01:46] Speaker 02:
I think this language was quoted in the court's opinion in both cases.

[02:01:50] Speaker 02:
VA conceded that the manual's effects are, quote, real and far-reaching.

[02:01:55] Speaker 02:
And so, as a practical matter, as a pragmatic matter, in the real world, everyone knows that the manual provision is enormously significant, both because it has at least the final decision 94% of the time, and I would say because it exerts a powerful gravitational pull on board decisions.

[02:02:12] Speaker 02:
With respect to the statute of limitations, a couple of points, Your Honor.

[02:02:17] Speaker 02:
Judge Newman asked a number of questions about the 60-day limit.

[02:02:22] Speaker 02:
And I just wanted to clarify that that 60-day limit did not appear in the original statute in the Section 502.

[02:02:29] Speaker 02:
It didn't appear in the legislative history of that statute or in its text.

[02:02:32] Speaker 02:
If you look at this court's Brown decision from the late 1990s, what the court seemed to imply is that it enacted the 60-day rule as a matter of its local rules because it was under the impression that otherwise there wouldn't be a limitations period.

[02:02:47] Speaker 02:
And what the court's later decisions make clear and what VA has conceded is that, in fact, there is a limitations period here.

[02:02:54] Speaker 02:
It's the six-year limitations period in Section 2401A.

[02:02:57] Speaker 02:
And so I think it's important just to clarify that.

[02:03:00] Speaker 02:
And I think the court was operating in what it may have thought was a situation which it needed to borrow a statute of limitations or come up with one when we now know, as everyone agrees, it didn't need to do that.

[02:03:13] Speaker 02:
VA cites some of the other cases from other contexts involving courts that have borrowed statute of limitations.

[02:03:20] Speaker 02:
Those don't apply here because as VA concedes, here the six-year statute of limitations does apply to these 502 actions.

[02:03:28] Speaker 02:
In all of the cases that VA has cited where a court looked elsewhere or borrowed a statute of limitations, it did that because there was no backstop provision that applied.

[02:03:38] Speaker 02:
There was no other statute of limitations.

[02:03:40] Speaker 02:
This case is different.

[02:03:42] Speaker 02:
Finally, I think on the time limit, I think Mr. Breskin conceded that VA has looked far and wide for precedent for something like this where a local rule sort of unilaterally cuts back on a statute of limitations that's been enacted by Congress.

[02:03:57] Speaker 02:
VA was not able to find any such rule.

[02:04:00] Speaker 02:
We haven't found one either.

[02:04:01] Speaker 02:
So we think this would be a totally unprecedented situation if this court were to uphold its 60-day timeline limit in the face of a command from Congress.

[02:04:10] Speaker 02:
We also think it would be a recipe for some chaos if that rule were adopted more generally.

[02:04:15] Speaker 02:
As we've discussed, the six-year statute of limitations applies to all APA actions unless there's another statute with a different specific statute of limitations.

[02:04:24] Speaker 02:
So under VA's approach,

[02:04:25] Speaker 02:
every district court in this country, every circuit court in this country, could, by a local rule, adopt a shorter time limit that would create a different rule that would apply to APA action, ordinary APA actions, depending on whether you're filing in this circuit or that circuit or this district or that district.

[02:04:44] Speaker 02:
And the same principle would apply to other types of cases, too.

[02:04:47] Speaker 02:
I don't think that that recipe for chaos is consistent with the Rules Enabling Act or with the intent of Congress.

[02:04:53] Speaker 02:
Finally, a couple points on policy.

[02:04:55] Speaker 02:
Your Honor, there was a concern that was raised by VA about the orderly resolution of claims, and we shouldn't let Section 502 to kind of take over the disability claims process that Congress set up.

[02:05:08] Speaker 02:
Well, that argument is completely at odds with the government's argument on standing.

[02:05:12] Speaker 02:
As I understand the government's argument on standing, the only veteran who has standing to bring a 502 action is a veteran who has already filed a claim and has that claim pending in front of the RO.

[02:05:25] Speaker 02:
The government's position is that before the claim is filed, you don't have standing.

[02:05:29] Speaker 02:
After the claim is on appeal to the board, you don't have standing.

[02:05:32] Speaker 02:
And so their argument is essentially that the only person who's actually able to bring these cases is the person who already has the claim.

[02:05:40] Speaker 02:
And that can't be consistent with their other theory, which is that you shouldn't let Section 502 trump the ordinary disability claims process.

[02:05:50] Speaker 02:
Finally, Your Honor, a policy point about Judge Raina's question about 5257 and the discussion about the knee stability rule in this case.

[02:05:57] Speaker 02:
I think it's important to make very clear what happened here.

[02:06:00] Speaker 02:
The agency published a notice of proposed rulemaking because it wanted to enact a substantive legislative rule that would have the force and effect of law that would interpret a diagnostic code or that would apply to diagnostic code 5257.

[02:06:15] Speaker 02:
In response to that notice, it got negative comments from a lot of people.

[02:06:20] Speaker 02:
The agency then apparently decided that going forward with the 553 process, the notice and comment process was going to be too difficult.

[02:06:27] Speaker 02:
And so instead what it did was it abandoned the legislative rulemaking process and it decided to just insert essentially the same rule or something very close to it into the manual.

[02:06:38] Speaker 02:
And it did that because it wanted to have its case and eat it too.

[02:06:41] Speaker 02:
It wanted to essentially have a rule that was de facto binding even though technically not binding.

[02:06:46] Speaker 02:
And it wanted to have a rule that under its theory could not be challenged in court under Section 502.

[02:06:52] Speaker 02:
I would respectfully submit that that kind of scenario where the agency is evading the notice and comment rulemaking processes that Congress has set up and is instead embodying what are enormously important rules with far-reaching significance into the manual, that is exactly the kind of problem that Section 502 is designed to solve.

[02:07:12] Speaker 02:
And so I would respectfully ask you as you look through the thorny administrative law and FOIA issues in this case to also keep in mind the human dimension of this case

[02:07:21] Speaker 02:
Congress wanted this court to protect veterans when VA loses its way, when VA passes illegal rules, and we would respectfully ask you to allow this case to proceed to the merits.

[02:07:30] Speaker 02:
Thank you, Your Honors.

[02:07:31] Speaker 07:
Thank you.

[02:07:32] Speaker 07:
Thank you.

[02:07:33] Speaker 07:
Before we conclude, I would just like to express our thanks to the two advocates this morning for their cooperation in working through this process with the clerk's office and the court.

[02:07:46] Speaker 07:
Your contribution is very much appreciated.

[02:07:49] Speaker 07:
And of course,

[02:07:50] Speaker 07:
I'd also like to express our gratitude to our terrific staff led by Pete Mark Steiner, our circuit executive, Jared Perlo, our chief deputy clerk, Riley Toussaint, Kevin Gates, and of course our voice, Michael Lichtenberg, for everything they did in making this proceeding go smoothly and indeed also for their Herculean efforts for these many months

[02:08:18] Speaker 07:
which have allowed our court to continue to operate at full speed during these challenging times.

[02:08:24] Speaker 07:
And with that, the case is submitted and this concludes our proceeding for this morning.

[02:08:30] Speaker 07:
Thank you all.

[02:08:33] Speaker 07:
The honorable court is adjourned until tomorrow morning at 10 a.m.