Military-Veterans Advocacy v. Secretary of Veterans Affairs, No. 19-1600 (Fed. Cir. 2021)Annotate this Case
The 2017 Veterans Appeals Improvement and Modernization Act (AMA) reforms the VA's administrative appeals system, 131 Stat. 1105, replacing the existing system, which had shepherded all denials of veteran disability claims through a one-size-fits-all appeals process. Under the AMA, claimants may choose between three procedural options: filing a supplemental claim based on additional evidence, requesting higher-level review within the VA based on the same evidentiary record, and filing a notice of disagreement to directly appeal to the Board of Veterans Appeals. The VA promulgated regulations to implement the AMA. Veterans’ service organizations, a law firm, and an individual (Petitioners) filed separate petitions raising 13 rulemaking challenges to these regulations under 38 U.S.C. 502.1
The Federal Circuit concluded that two veterans’ service organizations had associational standing based on claimed injuries to their members to collectively bring three of their challenges. No Petitioner demonstrated standing to raise any of the remaining challenges. The regulations the organizations have standing to challenge are invalid for contravening the unambiguous meaning of their governing statutory provisions: 38 C.F.R. 14.636(c)(1)(i), limiting when a veteran’s representative may charge fees for work on supplemental claims; 38 C.F.R. 3.2500(b) barring the filing of a supplemental claim when adjudication of that claim is pending before a federal court; and 38 C.F.R. 3.155 excluding supplemental claims from the intent-to-file framework.