BOBBY G. SMITH, Claimant-Appellant
ROBERT A. MCDONALD, Secretary of Veterans Affairs, Respondent-Appellee
Appeal from the United States Court of Appeals for Veterans Claims in No. 11-3375, Judge Lawrence B. Hagel, Judge William Greenberg, Judge William A. Moorman.
THEW J. ILACQUA, Chisholm Chisholm & Kilpatrick, Providence, RI, argued for claimant-appellant. Also represented by ZACHARY STOLZ, NICHOLAS L. PHINNEY, ROBERT VINCENT CHISHOLM; CHRISTOPHER J. CLAY, Disabled American Veterans, Cold Spring, KY.
K. ELIZABETH WITWER, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by STUART F. DELERY, ROBERT E. KIRSCHMAN, JR., MARTIN F. HOCKEY, JR; Y. KEN LEE, RACHAEL BRANT, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.
Before PROST, Chief Judge, PLAGER, and WALLACH, Circuit Judges.
Plager, Circuit Judge.
This is a veterans case related to our prior ruling in Nat'l Org. of Veterans Advocates, Inc. v. Sec'y of Veterans Affairs,
725 F.3d 1312 (Fed. Cir. 2013) (" NOVA " ). In NOVA, we approved a plan (" Plan" ) requiring the Department of Veterans Affairs (" VA" ) to take certain actions to identify and rectify harms caused by its wrongful application of a former version of 38 C.F.R. § 3.103.
In this case, pursuant to the Plan, the parties submitted a joint motion to recall a prior judgment of the U.S. Court of Appeals for Veterans Claims (" Veterans Court" ) and a motion for leave to file, out of time, a joint motion for remand. Bobby G. Smith appeals from the Veterans Court's per curiam order denying both motions.
We affirm because, contrary to Mr. Smith's assertions, neither our prior decisions nor the Plan precludes the Veterans Court from determining, in an appropriate case, whether a joint motion filed under the terms of the Plan nevertheless should be denied.
NOVA Litigation and the Plan
In August 2011, the VA published an immediately-effective final rule (" 2011 Rule" ) that eliminated certain procedural due process and appellate rights that were previously provided under 38 C.F.R. § 3.103 for veterans appearing before the Board of Veterans' Appeals (" Board" ). See Rules Governing Hearings Before the Agency of Original Jurisdiction and the Board of Veterans' Appeals; Clarification, 76 Fed.Reg. 52,572-01 (Aug. 23, 2011); see also Rules Governing Hearings Before the Agency of Original Jurisdiction and the Board of Veterans' Appeals; Repeal of Prior Rule Change, 77 Fed.Reg. 23,128-01 (Apr. 18, 2012) (repealing prior rule change). The 2011 Rule contravened Bryant v. Shinseki, 23 Vt.App. 488 (2010), in which the Veterans Court found that the due process and appellate rights at issue applied not only to hearings before the Agency of Original Jurisdiction but also to hearings before the Board.
In litigation before this court, brought by NOVA, the Government admitted that adoption of the 2011 Rule by the VA violated the law, specifically the Administrative Procedure Act, 5 U.S.C. § § 500 et seq.NOVA, 725 F.3d at 1313-14. We agreed. Furthermore, after it became clear that the VA continued to apply the 2011 Rule despite having made prior assurances to the contrary, this court ...