[00:00:00] Speaker 02:
Okay.

[00:00:01] Speaker 02:
The next argued case is number 20, 2086, the, um, no, sorry, 20, 1974, veterans of foreign wars against the secretary of veterans affairs, Mr. Richway.

[00:00:18] Speaker 00:
Thank you, Your Honor.

[00:00:20] Speaker 00:
May it please the Court, my name is James Ridgway and I represent the petitioners, veterans of foreign wars of the United States.

[00:00:26] Speaker 00:
VFW seeks restoration of the 48-hour rule that was unlawfully rescinded by VA without notice and comment.

[00:00:34] Speaker 00:
This case is governed squarely by Purple Heart and no new precedent is needed to reach this conclusion.

[00:00:40] Speaker 00:
Three points lead us directly there.

[00:00:42] Speaker 00:
First, as a matter of fact, this case is of the exact same type that Purple Heart said requires notice and comment.

[00:00:50] Speaker 00:
Second, the government's argument that a right has to be traceable to the text of a regulation is demonstrably incorrect.

[00:00:59] Speaker 00:
And finally, the cases relied upon by the government are easily distinguished.

[00:01:04] Speaker 00:
beginning with Purple Heart itself.

[00:01:06] Speaker 00:
As a factual matter, Purple Heart explained that notice and comment is required for changes that exclude the veteran from participating in the processing of their claim.

[00:01:19] Speaker 04:
What procedural right is being taken away by this removal of the 48-hour

[00:01:25] Speaker 00:
So you can begin with a regulation and say 3.103A guarantees the right of representation.

[00:01:32] Speaker 00:
And then you can look to those courts.

[00:01:36] Speaker 04:
Well, maybe I should be narrower.

[00:01:39] Speaker 04:
What specifically would a veteran filing a case now not be able to do that they could have done before because of the rule?

[00:01:50] Speaker 00:
When we look at the rule previously, representatives were required to receive notice when a draft decision had been prepared, which was effectively noticed that development was complete, have the opportunity to- Not all representatives, right?

[00:02:04] Speaker 00:
No, VSO representatives.

[00:02:06] Speaker 04:
Right, but not other attorney representatives.

[00:02:08] Speaker 04:
So they were treated differently.

[00:02:10] Speaker 00:
They were treated differently.

[00:02:11] Speaker 04:
So veterans who had representation other than that

[00:02:15] Speaker 04:
were not given the benefit of the 48-hour rule.

[00:02:18] Speaker 00:
They were not.

[00:02:19] Speaker 00:
And so as Purple Heart says, this is not a question of whether or not a change would be arbitrary and capricious.

[00:02:27] Speaker 00:
It might be permissible if done appropriately.

[00:02:29] Speaker 00:
The question here is whether notice and comment was required.

[00:02:33] Speaker 00:
And VA simply did not follow the requirements to make this change, regardless of whether or not it could have been justified if we were reviewing it as a matter of substance.

[00:02:43] Speaker 03:
Do you have any evidence that the 48-hour rule has a substantive impact on the outcomes for the veterans?

[00:02:50] Speaker 00:
So this is not a rule that either party has ever gathered data on.

[00:02:55] Speaker 00:
The fact that VA did this unilaterally without notice deprived the VSOs of the opportunity to develop that and make their case.

[00:03:03] Speaker 00:
Obviously, data is very good in many situations, and it helps to prove that processes are effective.

[00:03:08] Speaker 00:
But other processes are effective precisely because changes can be made without anybody having to lose face over making those changes.

[00:03:18] Speaker 00:
As a practical matter, VFW has operated this way for decades and has hundreds of employees at every RO in the country that have done this work.

[00:03:26] Speaker 00:
If an organization of veterans that did this work every day as their core mission noticed it was not helping,

[00:03:32] Speaker 00:
then it would have changed how it conducts its practice.

[00:03:35] Speaker 04:
Some of the practicality that we can maybe take a little judicial notice of is this rule was initially, in effect, like in 1957.

[00:03:43] Speaker 04:
Yes, Your Honor.

[00:03:44] Speaker 04:
Before we had computers, before we had all this digital access.

[00:03:48] Speaker 04:
The way the court handles its filings and et cetera has changed enormously, all to the benefit, I think, of the parties in terms of transparency, with the advent of all this computer stuff.

[00:04:02] Speaker 04:
So the process is different now.

[00:04:03] Speaker 04:
Now everything is digitally available.

[00:04:06] Speaker 04:
There's digital access.

[00:04:07] Speaker 04:
I mean, is the removal of this rule meaning that the veteran can't get adequate representation in a way he or she could do under the 48-hour rule?

[00:04:19] Speaker 00:
Well, this is not a constitutional due process claim.

[00:04:22] Speaker 00:
Whether this process would be adequate under the Constitution without this rule is not the question.

[00:04:28] Speaker 00:
The question is, is this a substantive rule?

[00:04:31] Speaker 00:
And computers are wonderful, but they also allow people to make errors much more efficiently, which is what we see.

[00:04:38] Speaker 04:
So what's the test under Purple Heart?

[00:04:40] Speaker 04:
What's the test for making it how we decide whether or not it's substantive or not?

[00:04:44] Speaker 00:
So the language of Purple Heart in 1297 is that that change removed, quote, the opportunity to respond to the concerns of the deciding official.

[00:04:54] Speaker 00:
The text of the M21 clearly requires the VA to provide a copy of the draft rating decision, which is how the adjudicator thinks about the decision, and then receive comments and questions and concerns from the VSO.

[00:05:10] Speaker 00:
And then step six of the process, as set forth on Appendix 70, is to resolve any mistakes noted or clarifications requested by the VSO.

[00:05:20] Speaker 03:
Are there other ways to respond, though, separate and apart from this 48-hour rule?

[00:05:24] Speaker 03:
Aren't there other opportunities?

[00:05:25] Speaker 00:
There would be, and that could go to whether it was arbitrary and capricious to remove this.

[00:05:30] Speaker 00:
But this is an effective process.

[00:05:32] Speaker 00:
So going back to the issue of computers and the role that they play.

[00:05:36] Speaker 00:
So to put yourself in the seat of an RBSR who adjudicates a claim, you're one of thousands who have to deal with 1.3 million applications that have five or six benefits per application.

[00:05:49] Speaker 00:
And your work standard may give you 30 minutes.

[00:05:52] Speaker 00:
You go into VBMS, you have a list of documents, and you have to choose which of those to open before you make a decision.

[00:06:00] Speaker 00:
fair chance that one of them is going to be misdated or mislabeled, and you're going to overlook something.

[00:06:06] Speaker 00:
The benefit of this rule is that the vast majority of mistakes that we see as a representative, and I say this from two decades of experience, is just overlooking material because it's not easy to find.

[00:06:16] Speaker 00:
I would love a computer system that made the relevant information right there in front of you.

[00:06:21] Speaker 00:
But for example, correspondence in the VBMS system could be a form letter that VA sent out, or it could be a letter that the veteran sent in.

[00:06:30] Speaker 00:
And so the 48-hour rule works when a claim is denied for no diagnosis.

[00:06:34] Speaker 00:
And the VSO can say, no, this correspondence thing in DBMS, you should have opened it up and looked, because that was the veteran sending in his medical records.

[00:06:43] Speaker 00:
It should have been labeled as medical treatment.

[00:06:45] Speaker 00:
It wasn't, so you couldn't open it up.

[00:06:46] Speaker 04:
But all of this stuff, under any circumstance, happens before the veteran could get a hearing.

[00:06:52] Speaker 04:
There's no final decision that goes into effect.

[00:06:55] Speaker 00:
that doesn't get the opportunity for review before right again yes there are other opportunities okay and again this is not a claim that the process would be constitutionally inadequate without it it's not a claim that the v a has no justifications whatsoever if it wanted to potentially make changes but as the v s o's wrote in their letter to be a in the appendix

[00:07:18] Speaker 00:
You know, this decision was made without consulting the VSO partners.

[00:07:22] Speaker 00:
This is Appendix 83.

[00:07:24] Speaker 00:
And they requested that this be immediately suspended to allow for a more robust discussion.

[00:07:31] Speaker 00:
As the Supreme Court said in Chrysler Corporation, notice and comment assures fairness and a mature consideration of rules of general application.

[00:07:40] Speaker 00:
And that's what the VSOs want here.

[00:07:42] Speaker 00:
They want VA to engage in the notice and comment process.

[00:07:45] Speaker 00:
Yes, the world is modernized.

[00:07:47] Speaker 00:
And maybe the result is not exactly what we have today.

[00:07:50] Speaker 00:
But notice and comment is not a binary process.

[00:07:53] Speaker 00:
It's a political process.

[00:07:54] Speaker 00:
It leads to compromise.

[00:07:55] Speaker 00:
It leads to innovation.

[00:07:57] Speaker 00:
And baselines matter.

[00:07:58] Speaker 00:
If the baseline is VA gets to turn this off, then it has no incentive to engage with the VSOs about how the business should be updated.

[00:08:06] Speaker 00:
However, as the government's own case law, they cite GEM broadcasting.

[00:08:12] Speaker 00:
And GEM broadcasting itself cites to Air Transportation of America as something on the other side of the line.

[00:08:19] Speaker 00:
And it says that the rules for adjudicating civil actions between a citizen and a government, quote, encode substantive value judgments

[00:08:27] Speaker 00:
about rights versus efficiency.

[00:08:29] Speaker 00:
The decision to turn off the 48-hour rule is a substantive value judgment about rights versus efficiency.

[00:08:35] Speaker 00:
That makes it substantive and requires notice and comment.

[00:08:40] Speaker 00:
Where that notice and comment goes

[00:08:42] Speaker 00:
You know, that remains to be seen.

[00:08:45] Speaker 00:
But this is governed squarely by Purple Heart because it is a change that excludes the veteran from participating in the processing of their claim.

[00:08:54] Speaker 00:
Getting notice, having the opportunity to respond, and having the written rule say that VA must respond to your comments by making changes or clarifications, that is a formal processing requirement.

[00:09:07] Speaker 00:
That makes it substantive and requires notice and comment to change.

[00:09:11] Speaker 03:
Why isn't this just a procedural rule?

[00:09:14] Speaker 00:
So this isn't just a procedural rule because it guarantees a fundamental due process back and forth between the adjudicator and the representative.

[00:09:24] Speaker 00:
It requires the government to state a reason for taking an action and to respond to the individual citizen's concerns and arguments about why that action is incorrect.

[00:09:34] Speaker 04:
That's going to happen in this case, whether it happens in that

[00:09:40] Speaker 04:
cavern or in another cavern.

[00:09:42] Speaker 04:
There's no question before the final written decision is issued, all these opportunities exist for the veteran.

[00:09:49] Speaker 00:
Again, there's not an argument here that the process would be constitutionally inadequate without it.

[00:09:55] Speaker 00:
The question before the court is, what is the nature of this rule?

[00:09:59] Speaker 00:
NOVA 2020 makes clear that things in the M21 are rules.

[00:10:03] Speaker 00:
And if they are substantive in nature, then notice and comment applies.

[00:10:08] Speaker 00:
And so the only question is, does this count as substantive when you look at its nature?

[00:10:13] Speaker 00:
And its nature, just like in Purple Heart, was to give the person the opportunity to make their case and have the VA deciding official respond.

[00:10:25] Speaker 00:
So it is the exact same type of back and forth.

[00:10:28] Speaker 04:
That still exists.

[00:10:33] Speaker 04:
That's not taken away by the removal of the 48-hour rule.

[00:10:36] Speaker 04:
I know we're going in circles.

[00:10:38] Speaker 00:
But the 48-hour rule is explicit.

[00:10:43] Speaker 00:
On page 68, the purpose of the review is to, quote, identify any clear errors

[00:10:48] Speaker 00:
or matters of clarification that require significant discussion or correction, prior.

[00:10:53] Speaker 00:
And the rule itself italicizes prior.

[00:10:57] Speaker 00:
And that's not emphasis we added, that's emphasis in the rule itself, prior to promulgation.

[00:11:03] Speaker 00:
This takes away that back and forth, prior to promulgation, which is explicitly the purpose of the rule, and therefore it's a substantive change.

[00:11:12] Speaker 03:
Is Purple Heart distinguishable because it really took away any way to be heard?

[00:11:17] Speaker 00:
The same arguments would apply.

[00:11:21] Speaker 00:
It took away one opportunity to be heard, but the government's position was essentially the same.

[00:11:27] Speaker 00:
Well, you can still appeal, you can still seek other types of review, and therefore the fact that you don't get to interact with the person who's actually at VBA deciding your claim

[00:11:36] Speaker 00:
doesn't mean the process was inadequate.

[00:11:39] Speaker 00:
And again, the response in Purple Heart was, you may be justified.

[00:11:43] Speaker 00:
You may have the authority to do this.

[00:11:45] Speaker 00:
But the question before us is, is this substantive?

[00:11:47] Speaker 00:
And if it is substantive, notice and comment was required to do it.

[00:11:51] Speaker 00:
Therefore, it has to be undone.

[00:11:53] Speaker 00:
And you're free to try again if you do it properly.

[00:11:56] Speaker 03:
So if this rule's not there, what would you do?

[00:11:59] Speaker 03:
Would you request a hearing?

[00:12:00] Speaker 03:
What would be the thing that would be done?

[00:12:03] Speaker 00:
So we have the remaining remedy.

[00:12:06] Speaker 00:
So it's the system that we had before minus this step.

[00:12:09] Speaker 00:
And so we still have the opportunity under the Appeals Modernization Act to seek higher level review, to submit a supplemental claim, to go to the board.

[00:12:18] Speaker 00:
But, yeah.

[00:12:19] Speaker 04:
To have a hearing.

[00:12:20] Speaker 04:
You were allowed to request a hearing.

[00:12:24] Speaker 00:
Those things still exist, but the experience of VFW is this is a highly effective tool because there are so many mistakes that involve just overlooking the fact that a veteran had travel orders from Japan to Vietnam and therefore this should be granted as presumptively and if the veteran files an appeal to the board it's going to take three years.

[00:12:44] Speaker 04:
Can I ask you, the elephant in the room for me here is kind of a different issue, which is if it's so important and so compelling that the veteran have this right, then how can you get away with having it only with your representation and not for veterans who have others representing them?

[00:13:05] Speaker 04:
They've never had that right.

[00:13:06] Speaker 00:
They have never had that right.

[00:13:08] Speaker 00:
That is something that could reasonably be part of the political process of discussing what should replace it.

[00:13:16] Speaker 00:
But I would argue that the result of that process could just as easily be attorney representatives get the same right.

[00:13:23] Speaker 00:
So since briefing was completed in this case,

[00:13:26] Speaker 00:
Tom Murphy came to the National Organization of Veterans Advocates, the acting undersecretary, and says, we want to pilot electronic notification of decisions because the mailing and printing business is super expensive and we want to save that money.

[00:13:39] Speaker 00:
And he wanted attorneys.

[00:13:40] Speaker 00:
He's like, we're going to give you electronic access.

[00:13:43] Speaker 00:
We've created organizational code so attorneys can get notifications like VSO organizations.

[00:13:49] Speaker 00:
They're already moving the computer systems in the direction

[00:13:52] Speaker 00:
of making this possible.

[00:13:54] Speaker 00:
And so it's very easy to see that the net result of the process could be, yeah, we extend this to attorneys because the system has evolved in a way that it is not a significant technological hurdle for them to have the exact same rights as a VSO representative.

[00:14:09] Speaker 00:
But that should be something decided by the stakeholders, including the agency, during the notice and comment political process, which is exactly what the APA is designed to encourage and enforce.

[00:14:21] Speaker 00:
to have, as the Supreme Court said,

[00:14:24] Speaker 00:
You know, fairness and mature consideration of what is the best route, not what happened here, which is a unilateral announcement without consultation of the stakeholders.

[00:14:34] Speaker 00:
They were just turning off the core function of your business model and taking your folks that used to do all of this work and saying, you've got to repurpose them because we've taken away the job that they had before of looking for documents that were overlooked that result in quick and easy wins for the veteran in less than

[00:14:52] Speaker 00:
forty eight hours and say well you can do higher-level repute uh... appeals that take months or board appeals that take years well veterans are denied health care because they don't have the service-connected rating that gives them access to the system and they're denied the benefits that would start to flow if an error is corrected within forty eight hours because somebody who's talked to the veterans actually opened the documents in vbms seeing what is there and has more than whatever the eighteen or twenty minutes

[00:15:20] Speaker 00:
of the standard to actually look and see if the evidence supports the grant of a claim.

[00:15:25] Speaker 02:
Okay.

[00:15:26] Speaker 02:
Let's hear from the VA and we'll save you a rebuttal.

[00:15:28] Speaker 00:
Thank you.

[00:15:32] Speaker 01:
Thank you.

[00:15:32] Speaker 01:
May it please the court?

[00:15:33] Speaker 01:
I'd like to respond first to a few of the questions that were posed earlier.

[00:15:38] Speaker 01:
There's a question about at this point, once this rule has been rescinded,

[00:15:43] Speaker 01:
what the veteran can do.

[00:15:45] Speaker 01:
So the 48-hour rule is really designed to deal with these what we call clear errors.

[00:15:52] Speaker 01:
And so there's this 48-hour period where the VSOs can identify a so-called clear error to the regional office adjudicator.

[00:16:01] Speaker 01:
So under the new system, there's two separate paths that a VSO can take now.

[00:16:08] Speaker 01:
So they can go, and once they get the decision,

[00:16:12] Speaker 01:
If there is a clear error identified, they can go and seek a higher level review and go through that process.

[00:16:20] Speaker 01:
And that's a process that's generally supposed to be more expedited than the normal appeal process.

[00:16:27] Speaker 01:
We've also pointed out in our brief, and this is on page 11 in footnote seven, that there's actually a pilot program

[00:16:34] Speaker 01:
that applies to both VSOs as well as attorney representatives.

[00:16:42] Speaker 01:
So again, when there's a clear error, they can go through this pilot program.

[00:16:47] Speaker 01:
And the pilot program is designed to adjudicate those errors within 30 days.

[00:16:54] Speaker 01:
And so in terms of what this rule is

[00:16:59] Speaker 01:
sort of the only sort of potential harm that can be identified here would be one, whether or not a clear error will be resolved.

[00:17:10] Speaker 01:
There's two paths to seek that resolution.

[00:17:13] Speaker 01:
The other potential harm that's been identified was, well, is this going to take a very long time?

[00:17:19] Speaker 01:
And so here what we have is we have the higher level review process, which is supposed to be more expedited.

[00:17:25] Speaker 01:
So those numbers are posted on the VA website.

[00:17:28] Speaker 01:
I mean, even if you just take, you know, the last numbers that were posted, which I think were for October 2021, it's about 45 days to resolve those higher level, you know, the higher level reviews that are going up to the adjudicators.

[00:17:45] Speaker 01:
And so there's certainly process in place here.

[00:17:48] Speaker 01:
And so when there was the question, well, what's sort of the evidence of any sort of substantive effect here?

[00:17:55] Speaker 01:
I mean, one, there is no evidence there.

[00:17:58] Speaker 01:
Certainly, part of the problem with the 48-hour rule was that it wasn't tracked.

[00:18:07] Speaker 01:
The data wasn't collected.

[00:18:08] Speaker 01:
It was much more of an informal process.

[00:18:11] Speaker 01:
So with this pilot program, they're actually taking that process and building it more into the higher level review process.

[00:18:19] Speaker 01:
And they're tracking the clear errors, tracking the adjudication.

[00:18:24] Speaker 01:
But in terms of the core issue here, the core issue is, is this a procedural rule?

[00:18:29] Speaker 01:
It's clearly procedural on its face.

[00:18:32] Speaker 01:
And sort of the only exceptions, if you look at, for example, the D.C.

[00:18:35] Speaker 01:
Circuit precedent we cited, where you could get it to be a substantive rule, the D.C.

[00:18:42] Speaker 01:
Circuit uses this term sufficiently grave effect on individual rights.

[00:18:47] Speaker 01:
And so here, as I just pointed out, there's really no demonstrative effect on any of the rights we're talking about.

[00:18:55] Speaker 01:
If we're talking about timing, there's been no showing of that.

[00:18:58] Speaker 01:
There's no evidence of that.

[00:18:59] Speaker 01:
If we just talk about opportunity to get it right, to get that clear error taken care of, there's processes in place for that.

[00:19:09] Speaker 01:
So we think that there's really no way to show that this is anything other than a procedural rule.

[00:19:16] Speaker 01:
And under 553, Congress has set forth this framework that procedural rules do not have to go through notice and comment rulemaking.

[00:19:25] Speaker 01:
And that makes sense because the agency is in the best position to determine what's the most efficient process to go through.

[00:19:33] Speaker 01:
Um, and you know, the, the purple, the purple heart decision came up and that was, that was just, you know, we think that can be distinguished as distinguished on the, on the facts of that case.

[00:19:47] Speaker 01:
So that involved a decision that that involves a rule where certain claims above a certain dollar value, I think it was 250,000.

[00:19:57] Speaker 01:
Um, we're, we're basically going to be going to headquarters for a decision, but the veteran had no knowledge of that.

[00:20:04] Speaker 01:
And so there could be a situation where the regional office adjudicator grants the claim.

[00:20:11] Speaker 01:
It goes because of this process.

[00:20:14] Speaker 01:
And I think the second part of that rule deemed it to be a draft decision that goes up to the headquarters and they deny it.

[00:20:21] Speaker 01:
And the veteran was, would be unaware of that process.

[00:20:24] Speaker 01:
And the veteran didn't have the ability, when we're talking about process, to go and to engage with headquarters.

[00:20:33] Speaker 01:
And so we don't have that here.

[00:20:34] Speaker 01:
As Judge Prost pointed out, there's certainly an opportunity for a hearing before the regional office adjudicator.

[00:20:42] Speaker 01:
Even if you take the path with the higher level review, you're able to engage in an informal conference with that individual.

[00:20:52] Speaker 01:
And so we think that Purple Heart is really just a different factual situation where they're sort of taking away

[00:21:00] Speaker 01:
really core sort of rights, core procedural rights there.

[00:21:05] Speaker 01:
And the other thing, when you look at the Purple Heart decision itself, what we're talking about here is a specific exemption for 553.

[00:21:15] Speaker 01:
And there's very little discussion at all in that case about the procedural exception.

[00:21:20] Speaker 01:
And that's why we pointed to these DC Circuit cases, because they actually articulate

[00:21:25] Speaker 01:
what sort of the rationale of the procedural exception and what qualifies as a procedural rule versus a substantive rule.

[00:21:33] Speaker 01:
In fact, in Purple Heart, a lot of the discussion was an argument asked to whether or not this was a rule under the APA or not.

[00:21:44] Speaker 01:
You know, when you sort of look at the effect, even if you sort of look at the effect here, it doesn't transform a procedural rule into a substantive rule.

[00:21:54] Speaker 01:
And so we think, you know, based upon that and based upon the cases that we have cited, that the agency did not need to go through notice and comment rulemaking under 553.

[00:22:10] Speaker 01:
If there's no further questions, we'd ask that the court deny the petition.

[00:22:17] Speaker 02:
Thank you.

[00:22:18] Speaker 02:
Council, have your rebuttal time.

[00:22:20] Speaker 00:
Thank you, Your Honor.

[00:22:23] Speaker 00:
Just to respond to some of the specific points made by the government.

[00:22:26] Speaker 00:
First, the government argued that the 48-hour rule was designed to deal with clear errors.

[00:22:31] Speaker 00:
And that is exactly right.

[00:22:33] Speaker 00:
And that is what it has been effective doing, which is why VFW has had so many staff that have worked that process in the past and wanted to continue so that veterans' benefits are not delayed.

[00:22:45] Speaker 00:
Fundamentally, the government came up and said there are justifications for why we made this change.

[00:22:51] Speaker 00:
But this is not a question of justification.

[00:22:54] Speaker 00:
If the government can come up and say, well, there's no prejudice because our rule is good, then what's the point of notice and comment?

[00:23:01] Speaker 00:
Notice and comment exist to allow the stakeholders and the political process to evaluate the change.

[00:23:07] Speaker 00:
It's not supposed to allow the government to come to the court in the first instance and say, you have to evaluate whether this was right or wrong in the first instance.

[00:23:16] Speaker 00:
The whole point of the APA is to have the process work and then the record made before the determination is made.

[00:23:24] Speaker 00:
To the extent the government argues, well, this wasn't tracked.

[00:23:28] Speaker 00:
This is the epitome of unclean hands.

[00:23:30] Speaker 00:
If the government wanted to find out that this wasn't working before deciding to eliminate it, it could have tracked it in VBMS.

[00:23:38] Speaker 00:
It's already tracking the notifications to the VSOs, and it's tracking the decisions that ultimately come out.

[00:23:44] Speaker 00:
Why is it before you saying, oh, we don't have any data, when it was in the position to know that a decision was coming,

[00:23:50] Speaker 00:
and also to gather data in order to support a record that might show that this wasn't an arbitrary and capricious action.

[00:23:57] Speaker 00:
But this isn't a question of arbitrary and capriciousness.

[00:24:01] Speaker 00:
This is a question of whether or not this was a substantive rule.

[00:24:04] Speaker 00:
the government's justification for distinguishing Purple Heart that, oh, this wasn't done in secret.

[00:24:11] Speaker 00:
The APA doesn't say anything about secret rules are subject to notice and comment.

[00:24:15] Speaker 00:
It says that substantive rules are subject to notice and comment, whether they're changes made in secret or done out in the open as a fait accompli, like it was done here.

[00:24:25] Speaker 00:
It is the nature of the change that matters.

[00:24:29] Speaker 00:
This was a change.

[00:24:30] Speaker 00:
that is a substantive change because, as the courts have recognized, it's a question of degree.

[00:24:37] Speaker 00:
At some point, procedure has such a significant impact on the outcomes of cases that it is substantive.

[00:24:43] Speaker 00:
It affects individual rights, as this court said in PVA v. West and, again, in Coalition for Common Sense.

[00:24:50] Speaker 00:
So I already talked about gem broadcasting and how clearly it says litigation with a citizen encodes value judgments about efficiency versus rights.

[00:25:02] Speaker 00:
And then when we look to James Herson associates,

[00:25:05] Speaker 00:
That was a case where it was a purely ministerial rule about the delivery of documents that had an incidental effect of giving the person the opportunity to make their case.

[00:25:16] Speaker 00:
And so this is not a case where it's incidental that the veteran had a right to know that a decision was being made and the opportunity to change the mind of the decision maker before it was finalized.

[00:25:28] Speaker 00:
This is exactly the type of thing that is substantive

[00:25:32] Speaker 00:
because it is exactly as Purple Heart said, a change that excludes the veteran from participating in the processing of their claim by denying them the opportunity to respond to the concerns of the deciding official.

[00:25:45] Speaker 00:
Whatever these precise facts of Purple Heart is, the analysis is directly applicable to exactly what happened here, which is why VFW believes that you should grant the petition

[00:25:56] Speaker 00:
restore the 48-hour rule and allowed the FW to continue its 102-year tradition of helping veterans receive the benefits that they earn in a timely manner so that they can have access to the support and health care that they need.

[00:26:13] Speaker 00:
There's no further questions.

[00:26:15] Speaker 00:
Thank you, Your Honors.

[00:26:16] Speaker 02:
Thank you.

[00:26:17] Speaker 02:
Thanks to both counsel.

[00:26:18] Speaker 02:
Cases submitted.