December 14, 2020 - Last Week in the Federal Circuit

Last Week in the Federal Circuit (December 7-11): Standing and Invalidating the Court’s Own Local Rule

This week we talk about the most important standing decision decided by any court last week.  Ok, perhaps, it was the second most important standing decision.  Last week’s case addresses who may sue, and when they must sue by.  It was decided by an initial en banc Court.  And it led to an “Emergency Amendment” to the Federal Circuit Rules.  What’s not to love about that?  So below we provide our usual weekly statistics and our case of the week—our highly subjective selection based on whatever case piqued our interest.

Precedential opinions: 3

Non-precedential opinions: 11

Rule 36:  7

Longest pending case from argument:  Tie between Harrington v. DVA, No. 19-1882 and SiOnyx LLC v. Hamamatsu Photonics K.K., No. 19-2359 (62 days)

Shortest pending case from argument (non-Rule 36):  NOVA v. Secretary of Veterans Affairs, No. 20-1321 (61 days)

Case of the week: NOVA v. Secretary of Veterans Affairs, No. 20-1321

Panel: En banc, with Judge Dyk writing the opinion

You should read this case if: you’re challenging an agency determination and your standing has been questioned.

What better way to start the week than to talk about an initial en banc opinion, standing, and the Federal Circuit overruling one of its own local rules—all for the benefit of those who have served our country.  We love it.  It’s like Christmas, Chanukah, Kwanzaa, and Festivus all wrapped up in one!

So what’s the big deal here?  Well, long story short: the VA promulgated two interpretative rules related to knee joints and knee replacements.  We’re not going to get into the nitty gritty details of those rules, but they ended up being challenged in a petition for review by the National Organization of Veterans’ Advocates, Inc. (“NOVA”) and some individuals.  NOVA faced hurdles.  Prior Federal Circuit precedent said there was no jurisdiction to review these types of rules.  Federal Circuit Rule 15(f) said that anyone who wants to challenge this kind of rule pre-enforcement needs to do so within 60 days of its issuance—not several years later.  And if that wasn’t enough, the Court sua sponte questioned whether NOVA had standing.

Usually a petitioner facing that many threshold challenges—not the least of which was to get initial en banc review—is doomed.  But NOVA cleared them all.  We’ll focus on the issues of most interest to us:  standing and the Court’s own rules.  That’s not to diminish the other relief the petitioners obtained.  We recommend you read the whole decision.

Standing.  The Court sua sponte ordered the parties to address whether NOVA had standing, whether its members had standing, and whether NOVA had standing independent of its members.  Two things stand out.  The Court rightly needs to ensure it has Article III jurisdiction, and it has become particularly vigilant in the agency review context.  For example, the Court’s decision repeatedly cited Phigenix v. Immunogen—an IPR appeal in which a patent-challenger appellant’s standing was successfully challenged by a patent-owner appellee on appeal.  At one point, the Court even referred to the “Phigenix standard.”  And it explained that Phigenix created a summary judgment standard for standing—that is, the party asserting standing must meet a burden of production with affidavits or other evidence of “specific facts,” which for standing purposes will be taken to be true.

NOVA responded by arguing that it had Article III standing because its members had standing, even though it identified no particular member who had standing.  Overruling past precedent, the Court explained that Article III requires more specificity; the association must identify an affected member, the nature of the member’s injury or threatened injury, and the reason why the challenged rule adversely affected that member.  The Court held:  “the organization must show that the veteran member has an actual or potential claim and that this claim is sufficiently affected by the particular challenged rule to meet the requirements of actual or imminently threatened concrete harm and the other requirements for that member to have Article III standing.”

NOVA met this requirement by submitting declarations from its members who suffered injuries traceable to the VA’s regulations.  The government complained that none of those members had a claim pending before the VA.  But the Court brushed that complaint aside.  It explained that “Supreme Court precedent makes clear that standing does not require a pending adjudicative proceeding in order to generate a cognizable Article III injury.”  And it noted that “[i]n the patent context, a pending infringement action is not required to establish standing to challenge patent validity.”

We won’t dwell on the other two issues for organizational standing.  It suffices to say that the Court found both satisfied.  NOVA showed that the interests it sought to protect were germane to the organization’s purpose.  And it showed its challenge to the VA’s rules didn’t require “individualized proof”—NOVA was making a purely legal challenge to the rules under the APA.

Timeliness.  The Court also addressed whether NOVA’s petition was timely.  NOVA challenged the VA’s rulemaking under 38 U.S.C. § 502, which has no specific statute of limitations.  The Court noted that 28 U.S.C. § 2401 provides that “every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.”  While that should have given NOVA six years to challenge the rule, Federal Circuit Rule 15(f) significantly shortened the time for challenges like NOVA’s:  “A petition for judicial review of an action of the Secretary of the Department of Veterans Affairs under 38 U.S.C. § 502 must be filed with the clerk of court within sixty (60) days after issuance of the action challenged in the petition.”  To state the obvious:  six years versus sixty days is a pretty big difference.

So can a court’s local rule set a shorter limitations period that the one set by Congress?  Nope.  The Court held that Congress’s six-year limitations period “alone governs the time” to bring the action.  The Court noted that it was “aware of no appellate decisions that have approved a local rule either expanding or limiting the time to file a claim where a statutory time limit applies.”  It explained that courts of appeals have “uniformly” rejected district court local rules setting time limits inconsistent with the Federal Rules of Civil Procedure.  And it noted that the Supreme Court has resisted judicial efforts to depart from statutory time limits.

So what happens when the Court invalidates its own rule like this?  It issues an “Emergency Amendment” to those rules.  The Court did that here, striking the 60-day limitations period and replacing it with the 6 years required by 28 U.S.C. § 2401(a).