981 F.3d 1360
Fed. Cir.2020Background
- NOVA and individual veterans challenged two VA interpretive rules under 38 U.S.C. § 502: (1) the Knee Joint Stability Rule (M21-1 § III.iv.4.A.6.d) adopting mm-based translation thresholds to rate instability under DC 5257; and (2) the Knee Replacement Rule (Federal Register 2015 notice and later Manual provision) construing “prosthetic replacement” in DC 5055 to mean total, not partial, knee replacement.
- VA proposed a similar measurement-based instability rule in 2017 but did not finalize it via notice-and-comment; instead the measurement schedule was adopted in the Manual in April 2018.
- NOVA sued seeking pre-enforcement review; the government questioned standing and argued Manual provisions are not reviewable under § 502. NOVA supplemented the record with declarations from three veteran members.
- The en banc Court addressed: associational standing, whether Manual interpretive provisions fall within § 502 jurisdiction (via 5 U.S.C. § 552(a)(1) or § 553), whether the challenged rules are final agency action, and whether the Federal Circuit’s 60-day local filing rule (Fed. Cir. R. 15(f)) is superseded by 28 U.S.C. § 2401(a)’s six-year limitations period.
- Holdings in brief: NOVA has associational standing; the Knee Joint Stability Rule is an interpretive rule of general applicability under § 552(a)(1) and is final agency action (thus reviewable under § 502); the Knee Replacement Rule is reviewable but the merits panel must decide whether the Federal Register notice or the Manual provision is the operative agency action; and the Court invalidated the court rule imposing a 60-day filing limit, holding § 2401(a) governs timeliness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing (associational) | NOVA: has veteran members who are injured by application of the two Knee Rules; submitted member declarations. | Sec'y: NOVA’s petition allegations alone insufficient; must show individual affected members. | NOVA has associational standing after submitting member affidavits showing concrete, imminent or ongoing injuries. |
| § 502 jurisdiction over Manual interpretive rules | NOVA: Manual provisions that affect benefits are "interpretations of general applicability" under 5 U.S.C. § 552(a)(1) and thus reviewable via § 502. | Sec'y: Manual provisions (binding only on regional offices, not Board) are nonbinding internal guidance and fall outside § 552(a)(1). | The Court overruled prior precedent (DAV, Gray) and held Manual interpretive rule (Knee Joint Stability Rule) can be "of general applicability" under § 552(a)(1) and thus reviewable under § 502. |
| Final agency action (for Manual rule) | NOVA: Manual provision marks consummation of VA decisionmaking and has practical legal effects on veterans’ benefits. | Sec'y: Manual guidance is non-final until applied in an adjudication; legal consequences arise only from final benefits decisions. | The Knee Joint Stability Rule is final agency action (Bennett test satisfied: consummation + legal consequences/practical effect). |
| Timeliness / Local Rule vs. § 2401(a) | NOVA: § 2401(a)’s six-year statute governs pre-enforcement § 502 claims; the court may not shorten statutory limits by local rule. | Sec'y: Fed. Cir. Rule 15(f)’s 60-day deadline applies and operates alongside § 2401(a). | Fed. Cir. Rule 15(f) (formerly 47.12(a)) is invalid to the extent it shortens the statutory six-year limitations period; § 2401(a) governs timeliness. |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III injury-in-fact and concreteness requirements for standing)
- Summers v. Earth Island Institute, 555 U.S. 488 (2009) (associational standing requires identified members facing imminent concrete injury)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (injury must be particularized and concrete)
- Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333 (1977) (test for associational standing: members’ standing, germane interests, no individualized participation required)
- Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) (pre-enforcement review of agency rules is permissible)
- Bennett v. Spear, 520 U.S. 154 (1997) (final agency action test: consummation and legal consequences)
- Hawkes Co. v. U.S. Army Corps of Eng’rs, 136 S. Ct. 1807 (2016) (pragmatic finality analysis; guidance can be final if it has practical binding effect)
- Kisor v. Wilkie, 139 S. Ct. 2400 (2019) (limits and conditions on Auer deference to agency interpretations)
- Disabled American Veterans v. Secretary of Veterans Affairs, 859 F.3d 1072 (2017) (overruled insofar as it held Manual provisions not reviewable under § 502)
- Hudgens v. McDonald, 823 F.3d 630 (2016) (Fed. Cir. decision addressing scope of DC 5055 interpretation)
- Preminger v. Secretary of Veterans Affairs, 517 F.3d 1299 (2008) (applied 28 U.S.C. § 2401(a) to pre-enforcement § 502 challenges)