Veterans Law Group v. Secretary of Veterans Affairs

208 F. App'x 813
CourtCourt of Appeals for the Eleventh Circuit
DecidedJuly 13, 2006
DocketNo. 05-7193
StatusPublished
Cited by1 cases

This text of 208 F. App'x 813 (Veterans Law Group v. Secretary of Veterans Affairs) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Veterans Law Group v. Secretary of Veterans Affairs, 208 F. App'x 813 (11th Cir. 2006).

Opinion

MICHEL, Chief Judge.

The Veterans Law Group (“VLG”) petitions for judicial review of a letter issued by the Veterans Benefits Administration (“VBA”) of the Department of Veterans Affairs (“DVA”) on June 14, 2005, VBA Letter 20-05-35 (“Letter”). VLG asserts that the Letter constitutes a “rule or regulation” of the DVA within the meaning of 38 U.S.C. § 502, which grants this court jurisdiction to review DVA regulations. VLG contends that as a putative regulation, the Letter was void because it had not been subjected to public notice and comment under 5 U.S.C. § 553 before its issuance and that because of its content and alleged purpose to impede grants of benefits, it violated due process. VLG asks us to invalidate the Letter and block issuance of a successor letter. The Secretary of Veterans Affairs responds that the issue raised in this petition is moot as the Letter was withdrawn or is not ripe as no successor letter ever issued and, in any event, that VLG lacks standing to bring this petition because no client was affected. Because we hold that this petition for review properly raises only an issue that is moot, we dismiss. Because we dismiss for [814]*814mootness, we need not and do not address ripeness or standing.

I.

In December 2004, the Chicago SrnirTimes published an article regarding alleged disparate treatment of Illinois veterans by the DVA, in particular that Illinois veterans received disability benefits in fewer cases than veterans in other states. The DVA then conducted a study of awards of benefits to veterans in different states, releasing a May 2005 report entitled “Review of State Variances in VA Disability Compensation Benefits.” The report suggested that veterans in other states were too often receiving benefits, not that Illinois veterans were too seldom receiving benefits. The report focused on benefits for three service-connected disability categories: (1) post-traumatic stress disorder (“PTSD”), (2) 100 percent disability, and (3) total disability awards based on individual unemployability (“IU”).

In response to this report, on June 14, 2005, the VBA issued Letter 20-05-35 to address this problem. This Letter instructed that grants, but not denials, of benefits for PTSD, 100 percent disability, and total disability awards based on IU require a “concurring second signature” from a “decision maker of equal or greater authority” “to serve as a check against inaccurate ratings and unacceptable variation in judgment.” The stated purpose of this second signature requirement was to ensure that: (1) “all applicable statutes, regulations, and procedures have been followed,” (2) “the decision is properly supported by the facts of record,” and (3) “the decision itself is adequately explained.”

Lane Evans, Ranking (Democratic) Member of the Committee on Veterans’ Affairs of the United States House of Representatives, wrote to the Secretary of the DVA on June 21, 2005, stating that this requirement was unfair because claims for PTSD that are denied should equally require a second signature to ensure that these veterans are not being unfairly denied. Evans’ letter only addressed denials for PTSD.

On July 20, 2005, the Secretary wrote Representative Evans that the Letter had been withdrawn on June 20, six days after its issuance. His letter also said that the VBA “intend[s]” in the near future to issue another letter in which a second signature for the same three grants discussed above would also be required and in which a second signature for the denial of benefits for PTSD would be required. Such a letter, however, was never issued.

On August 24, 2005, and September 7, 2005, VLG wrote to Renee Szybala, Director of Compensation and Pension Services for the VBA, to inquire whether VBA Letter 20-05-35 had been withdrawn from all Regional Offices. Szybala responded via e-mail that it had been.

On September 20, 2005, VLG1 petitioned this Court for judicial review of this Letter and requested that we hold that: (1) the Letter was void because, prior to issuance, it was not subject to public notice and comment procedures as required, and (2) the Letter, due to its contents, violated due process.

[815]*815ii.

VLG argues that “voluntary cessation” of the policy stated by the Letter does not moot this petition because the VBA could reinstitute the second signature policy at any time, such that VLG’s objections to these policies would then become “recurring claims evading review.” Furthermore, VLG asserts that the changes in a future second signature policy as outlined in the letter to Representative Evans would only ameliorate, but not eliminate, the problem because it only provides for second signatures for denial of PTSD benefits, but not for denials of 100% disability or 100% IU. VLG therefore contends that, because all objectionable aspects of the second signature policy would not be removed in an expected new letter, this petition is not moot. The government responds that the petition is indeed moot because the Letter was withdrawn and because there is “no reasonable expectation” that the second signature policy in its form in the Letter will ever be reinstituted.

A.

“A federal court is without power to decide moot questions or to give advisory opinions which cannot affect the rights of the litigants in the case before it.” St. Pierre v. United States, 319 U.S. 41, 42, 63 S.Ct. 910, 87 L.Ed. 1199 (1943). “[A] case is moot when the issues presented are no longer ‘live.” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979). However, “as a general rule, ‘voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.” ’ Id. On the other hand, jurisdiction “may abate if the case becomes moot because ... it can be said with assurance that ‘there is no reasonable expectation ... ’ that the alleged violation will recur.” Id. (citations omitted).

The government maintains that the Secretary’s July 20, 2005 letter to Representative Evans stating that the “Under Secretary therefore withdrew his directive on June 20” and informing Evans that “[w]e intend to issue a new directive in the near future that requires a concurring second signature on the following cases,” including the three grants discussed above, but only “denials of service connection” for PTSD shows there is no reasonable expectation that the second signature requirement of the June 14, 2005 Letter will be reinstated. (Emphasis added.) We agree. While VLG argues that the VBA merely “purports” to withdraw the June 14, 2005 Letter, it fails to argue, much less prove, that there is a reasonable expectation of recurrence of the second signature requirement of the VBA June 14, 2005 Letter. Indeed, VLG agrees the Secretary’s Letter is dispositive.

B.

The most relevant case cited by VLG on this point is Davis. In Davis, Davis alleged that a written civil service examination used since 1969 was racially discriminatory.

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Bluebook (online)
208 F. App'x 813, Counsel Stack Legal Research, https://law.counselstack.com/opinion/veterans-law-group-v-secretary-of-veterans-affairs-ca11-2006.