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Robert H. Gray v. Robert Wilkie, Secretary of Veterans Affairs

Paid petition · United States Court of Appeals for the Federal Circuit, No. 2016-1782 · judgment November 16, 2017

Set for argument · February 25, 2019
Pre-decision estimate: 7% cert probability (95% interval 4%–11%)

Before the decision, about 1.6× the 4.1% base rate. The model weighted this up for a circuit split argued in the petition, a dissent in the court below (flagged in the petition), and a Federal Circuit decision below.

Question presented

Under 38 U.S.C. § 502, the Federal Circuit has jurisdiction to adjudicate preenforcement challenges to substantive rules, interpretive rules, and statements of general policy issued by the Department of Veterans Affairs (VA). 38 U.S.C. § 502 (cross-referencing 5 U.S.C. §§ 552(a) (1), 553). In this case, a divided panel of the Federal Circuit held that VA interpretive rules are nonetheless not reviewable under Section 502 if VA chooses to promulgate those rules by publishing them in the agency's adjudication manual. App. 8a-12a. Three judges dissented from the denial of rehearing en banc, emphasizing the "exceptional importance" of the issue, the panel's erroneous interpretation of Section 502, and the decision's "widespread impact on the efficient adjudication of veterans' claims." App. 37a. The question presented is whether the Federal Circuit has jurisdiction under 38 U.S.C. § 502 to review an interpretive rule reflecting VA's definitive interpretation of its own regulation, even if VA chooses to promulgate that rule through its adjudication manual.

Counsel of record

For petitioner
Roman Martinez
Latham & Watkins, LLP

For respondent
Noel John Francisco
Jones Day

Case

Conference history
Distributed for 4 conferences

Amicus briefs
2 cert-stage · 5 merits
(5 supporting pet./neither)

Related
Vide, 17-1693

Proceedings

  1. Jul 26 2019
    JUDGMENT SSUED.
  2. Jun 24 2019
    The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Federal Circuit with instructions to dismiss the case as moot. See United States v. Munsingwear, Inc., 340 U.S. 36 (1950).
  3. Jun 17 2019
    DISTRIBUTED for Conference of 6/20/2019.
  4. Jun 13 2019
    Response to motion to dismiss as moot from petitioner Robert Gray filed.
  5. Jun 04 2019
    Motion to dismiss as moot filed by respondent Robert Wilkie, Secretary of Veterans Affairs.
  6. Feb 07 2019
    The briefing schedule is suspended pending further order of the Court.
  7. Feb 06 2019
    The case is REMOVED FROM THE ARGUMENT CALENDAR for Monday, February 25, 2019.
  8. Feb 05 2019
    Letter from petitioner updating Clerk on action in related case filed. (Distributed)
  9. Feb 04 2019
    Petitioner's response to memorandum suggesting that the case may become moot filed. (Distributed)
  10. Feb 01 2019
    Memorandum of the respondent suggesting that the case may become moot filed. (Distributed)
  11. Jan 28 2019
    Record from the U.S.C.A. Federal Circuit is electronic and located on PACER. The record is complete.
  12. Jan 16 2019
    Brief of respondent Robert Wilkie, Secretary of Veterans Affairs filed. (Distributed)
  13. Jan 15 2019
    CIRCULATED
  14. Jan 11 2019
    Record requested from the U.S.C.A. Federal Circuit.
  15. Dec 21 2018
    SET FOR ARGUMENT on Monday, February 25, 2019.
  16. Dec 21 2018
    Brief amici curiae of National Veterans Legal Services Program (NVLSP), et al. filed.
  17. Dec 21 2018
    Brief amicus curiae of Blue Water Navy Vietnam Veterans Association filed.
  18. Dec 21 2018
    Brief amici curiae of National Organization of Veterans' Advocates, Inc.(NOVA), et al. filed.
  19. Dec 20 2018
    Amicus brief of Natioinal Law School Veterans Clinic Consortium not accepted for filing. (December 20, 2018 -- Corrected version submitted)
  20. Dec 20 2018
    Amicus brief of Natioinal Law School Veterans Clinic Consortium not accepted for filing. (December 20, 2018 -- Corrected version submitted)
  21. Dec 20 2018
    Brief amicus curiae of National Law School Veterans Clinic Consortium filed.
  22. Dec 17 2018
    Joint appendix filed. (Statement of costs filed)
  23. Dec 17 2018
    Brief of petitioner Robert Gray filed.
  24. Dec 17 2018
    Blanket Consent filed by Petitioner, Robert Gray.
  25. Dec 07 2018
    Brief amicus curiae of Jeremy C. Doerre filed.
  26. Nov 02 2018
    Petition GRANTED.
  27. Oct 29 2018
    DISTRIBUTED for Conference of 11/2/2018.
  28. Oct 22 2018
    DISTRIBUTED for Conference of 10/26/2018.
  29. Oct 10 2018
    Supplemental brief of petitioner Robert Gray filed. (Distributed)
  30. Sep 26 2018
    DISTRIBUTED for Conference of 10/12/2018.
  31. Sep 25 2018
    Reply of petitioner Robert Gray filed.
  32. Sep 07 2018
    Brief of respondent Robert Wilkie, Secretary of Veterans Affairs in opposition filed. VIDED.
  33. Jul 30 2018
    Motion to extend the time to file a response is granted and the time is further extended to and including September 7, 2018.
  34. Jul 27 2018
    Motion to extend the time to file a response from August 20, 2018 to September 7, 2018, submitted to The Clerk.
  35. Jul 20 2018
    Brief amicus curiae of National Veterans Legal Services Program (NVLSP) filed.
  36. Jul 20 2018
    Brief amici curiae of National Organization of Veterans' Advocates, Inc.(NOVA), et al. filed.
  37. Jul 12 2018
    Motion to extend the time to file a response is granted and the time is extended to and including August 20, 2018.
  38. Jul 11 2018
    Motion to extend the time to file a response from July 20, 2018 to August 20, 2018, submitted to The Clerk.
  39. Jun 19 2018
    Petition for a writ of certiorari filed. (Response due July 20, 2018)