Case: 20-1321   Document: 109     Page: 1    Filed: 12/08/2020




    United States Court of Appeals
        for the Federal Circuit
                  ______________________

     NATIONAL ORGANIZATION OF VETERANS'
      ADVOCATES, INC., PETER CIANCHETTA,
       MICHAEL REGIS, ANDREW TANGEN,
                   Petitioners

                             v.

        SECRETARY OF VETERANS AFFAIRS,
                    Respondent
              ______________________

                        2020-1321
                  ______________________

     Petition for review pursuant to 38 U.S.C. Section 502.
                   ______________________

                Decided: December 8, 2020
                 ______________________

     ROMAN MARTINEZ, Latham & Watkins LLP, Washing-
 ton, DC, argued for petitioners. Also represented by
 SHANNON MARIE GRAMMEL, BLAKE STAFFORD.

     ERIC P. BRUSKIN, Commercial Litigation Branch, Civil
 Division, United States Department of Justice, Washing-
 ton, DC, argued for respondent. Also represented by
 JEFFREY B. CLARK, MARTIN F. HOCKEY, JR., ROBERT
 EDWARD KIRSCHMAN, JR.; Y. KEN LEE, JULIE HONAN, Office
 of General Counsel, United States Department of Veterans
 Affairs, Washington, DC.
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 2                     NOVA   v. SECRETARY OF VETERANS AFFAIRS



     MELANIE L. BOSTWICK, Orrick, Herrington & Sutcliffe
 LLP, Washington, DC, for amicus curiae Military-Veterans
 Advocacy Inc. Also represented by JAMES ANGLIN FLYNN;
 JEFFREY T. QUILICI, Austin, TX; JOHN B. WELLS, Law Office
 of John B. Wells, Slidell, LA.

     STEPHEN BLAKE KINNAIRD, Paul Hastings LLP, Wash-
 ington, DC, for amici curiae National Veterans Legal Ser-
 vices Program, Paralyzed Veterans of America, Veterans of
 Foreign Wars. Also represented by ALEX SCHULMAN. Ami-
 cus curiae National Veterans Legal Services Program also
 represented by BARTON F. STICHMAN, National Veterans
 Legal Services Program, Washington, DC.

     ANGELA K. DRAKE, Veterans Clinic, University of Mis-
 souri School of Law, Columbia, MO, for amicus curiae Na-
 tional Law School Veterans Clinic Consortium.
                  ______________________

       Before PROST, Chief Judge, NEWMAN, LOURIE, DYK,
     O’MALLEY, REYNA, WALLACH, TARANTO, CHEN, HUGHES,
                 and STOLL, Circuit Judges. 1
 DYK, Circuit Judge.
     National Organization of Veterans’ Advocates, Inc.,
 (“NOVA”), Peter Cianchetta, Michael Regis, and Andrew
 Tangen petition this court under 38 U.S.C. § 502 to review
 two interpretive rules that are set out in two provisions of
 the Veterans Affairs (“VA”) Adjudication Procedures Man-
 ual M21-1 (the “Manual”) and a Federal Register publica-
 tion. The first interpretive rule, the Knee Joint Stability
 Rule, was promulgated on April 13, 2018, and is set forth
 in Section III.iv.4.A.6.d of the Manual. It assigns a joint
 instability rating under Diagnostic Code (“DC”) 5257, 38
 C.F.R. § 4.71a, based on the amount of movement that


       1   Circuit Judge Moore did not participate.
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 NOVA   v. SECRETARY OF VETERANS AFFAIRS                     3



 occurs within the knee joint. The second interpretive rule,
 the Knee Replacement Rule, provides that evaluation un-
 der DC 5055, 38 C.F.R. § 4.71a, is not available for partial
 knee replacement claims. The Knee Replacement Rule was
 first published in the Federal Register. That publication
 announced that section 4.71a was amended to include an
 explanatory note that “‘prosthetic replacement’ means a to-
 tal, not a partial, joint replacement,” 80 Fed. Reg. 42,040,
 42,041 (July 16, 2015). The Knee Replacement Rule was
 later published in a somewhat different form in a Manual
 provision, which was promulgated on November 21, 2016,
 and is currently located in Section III.iv.4.A.6.a of the Man-
 ual. The Manual provision informs regional office staff
 that evaluation under DC 5055, 38 C.F.R. § 4.71a, is not
 available for partial knee replacement claims filed and de-
 cided on or after July 16, 2015.
     We conclude that NOVA has standing because it has
 veteran members who are adversely affected by the chal-
 lenged Rules. We also conclude that the Knee Joint Stabil-
 ity Rule Manual provision is an interpretive rule
 reviewable under section 502 and that it constitutes final
 agency action. As to the Knee Replacement Rule, we also
 conclude that we have jurisdiction under section 502 and
 that it is final agency action. However, we leave to the mer-
 its panel the question whether the Knee Replacement
 Manual provision or the Federal Register publication con-
 stitutes the reviewable agency action. We thus conclude
 that we have jurisdiction over the petition for review.
     We also hold that the petitioners’ challenge is timely
 under the six-year statute of limitations provided by 28
 U.S.C. § 2401(a) and that Federal Circuit Rule 15(f), estab-
 lishing a 60-day time limit for bringing section 502 peti-
 tions, is invalid.
    We refer this case to a panel for adjudication on the
 merits.
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 4                   NOVA   v. SECRETARY OF VETERANS AFFAIRS



                        BACKGROUND
      Petitioners seek review of two interpretive rules gov-
 erning disability claims for service-related knee injuries.
 The first rule, the Knee Joint Stability Rule, was promul-
 gated in the Manual in April 2018 and addresses the rating
 schedule for knee instability under DC 5257, 38 C.F.R.
 § 4.71a. The governing regulation assigns a 30 percent rat-
 ing for “Severe” joint instability, a 20 percent rating for
 “Moderate” joint instability, and a 10 percent rating for
 “Slight” joint instability. DC 5257, 38 C.F.R. § 4.71a. In
 turn, the Knee Joint Stability Rule instructs VA regional
 office staff to assign a slight knee instability rating for
 0–5 mm of joint translation, a moderate rating for
 5–10 mm of joint translation, and a severe rating for 10–15
 mm of joint translation.
      In 2017, VA published a notice of proposed rulemaking
 in the Federal Register proposing a nearly identical meas-
 urement-based assessment method for knee instability
 claims. According to petitioners, however, “multiple com-
 menters complained that the measurement-based schedule
 for grading knee instability was too subjective and prone to
 error, insofar as it is affected by the amount of pressure
 applied by the physician. They also complained that the
 new schedule focused too narrowly on a rigid measure-
 ment, and thus would not account for the actual, functional
 loss suffered by veterans.” Pet’r’s Br. 14. VA did not adopt
 the proposed rule and instead promulgated the Knee Joint
 Stability Rule in the Manual, which incorporates essen-
 tially the same measurement-based grading schedule. Pe-
 titioners argue that the Knee Joint Stability Rule is
 subjective and therefore “arbitrary and capricious and
 must be set aside.” Pet’r’s Br. 14.
     The second rule is the Knee Replacement Rule. Differ-
 ent versions of the Rule are set forth in a Federal Register
 notice and a Manual provision. The governing regulation,
 DC 5055, 38 C.F.R. § 4.71a, provides for a minimum 100
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 NOVA   v. SECRETARY OF VETERANS AFFAIRS                    5



 percent disability rating “[f]or 1 year following implanta-
 tion of [a] prosthesis.” The Federal Register notice was
 published in July 2015 and explained that “VA is adding
 an explanatory note under 38 CFR 4.71a . . . which notifies
 readers that ‘prosthetic replacement’ means a total, not a
 partial, joint replacement, except as it is otherwise stated
 under DC 5054.” 80 Fed. Reg. 42,040, 42,041 (July 16,
 2015) (“2015 Interpretive Guidance”). The Knee Replace-
 ment Manual provision was promulgated in November
 2016 and addresses disability ratings for knee replace-
 ments under DC 5055, 38 C.F.R. § 4.71a. The Knee Re-
 placement Manual provision instructs VA regional office
 staff not to apply this diagnostic code when evaluating par-
 tial knee replacement claims filed and decided on or after
 July 16, 2015.
      Petitioners argue that the Knee Replacement Rule vio-
 lates this court’s decision in Hudgens v. McDonald, which
 concluded that the Veterans Court “erred in its judgment
 that DC 5055 is limited to instances of full knee replace-
 ment.” 

, 637 (Fed. Cir. 2016). In so holding,
 this court addressed the 2015 Interpretive Guidance, stat-
 ing that “we cannot ignore that, during the pendency of this
 appeal, the agency found the need to clarify the language”
 of the governing regulation and that “[s]uch ‘post hoc ra-
 tionalization’ does not warrant deference under Auer,” that
 is, deference to the agency’s own interpretation of its regu-
 lation.

Petitioners contend that nothing in
 Hudgens suggests that VA can “apply its flawed interpre-
 tation of DC 5055 to claims filed after the 2015 Interpretive
 Guidance.” Pet’r’s Br. 12. Therefore, petitioners argue
 that “[t]he Knee Replacement Rule violates Hudgens and
 is unlawful.”

     On January 3, 2020, NOVA filed a petition for review
 that, as amended on October 23, 2020, challenged these
 two interpretive rules. Petitioners argued that this court
 has jurisdiction over their petition because both Rules
 “qualify as interpretive rules for purposes of Section 502.”
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 6                    NOVA   v. SECRETARY OF VETERANS AFFAIRS



 Am. Pet. 2. They asked this court to overrule Disabled
 American Veterans v. Secretary of Veterans Affairs (“DAV”),
 

(Fed. Cir. 2017), which held that this court
 lacked section 502 jurisdiction to review interpretive rules
 promulgated in the Manual.
     The petition for review further stated that its challenge
 was timely under 28 U.S.C. § 2401(a), which provides a six-
 year statute of limitations governing civil actions brought
 against the United States. However, petitioners acknowl-
 edged that their challenge was not timely under Federal
 Circuit Rule 47.12(a), now Federal Circuit Rule 15(f) with
 minor language changes, which states that an “action for
 judicial review under 38 U.S.C. § 502 of a rule and regula-
 tion of the Department of Veterans Affairs must be filed
 with the clerk of court within 60 days after issuance of the
 rule or regulation or denial of a request for amendment or
 waiver of the rule or regulation.” Petitioners argued that
 this “60-day limitations period impermissibly conflicts with
 the six-year statute of limitations made applicable to Sec-
 tion 502 civil actions by Section 2401(a).” Am. Pet. 5. It
 therefore asked this court to “resolve the conflict” and set
 aside rule 15(f).

    We granted en banc review and asked that the parties
 address two issues:
             A. Whether this court has jurisdiction un-
                der 38 U.S.C. § 502 to review provisions
                of the Department of Veterans Affairs’
                Adjudication Procedures Manual M21-1
                that are binding on the agency’s initial
                adjudicators but not on the Board of
                Veterans’ Appeals, and whether this
                court should overrule Disabled Ameri-
                can Veterans v. Secretary of Veterans Af-
                fairs, 

(Fed. Cir. 2017).
             B. Whether the time for filing a direct ac-
                tion for judicial review under
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 NOVA   v. SECRETARY OF VETERANS AFFAIRS                       7



                 38 U.S.C. § 502 is governed by the 60-
                 day deadline specified by Federal Cir-
                 cuit Rule 47.12(a) or only by the six-year
                 statute       of      limitations       in
                 28 U.S.C. § 2401(a).
 Order Granting En Banc Review, No. 20-1321 (May 6,
 2020), ECF 50, at 3.
      The government’s opening brief did not oppose NOVA’s
 standing to challenge the two Knee Rules. However, pur-
 suant to our independent duty to verify standing, we asked
 for supplemental briefing to address three questions relat-
 ing to NOVA’s standing:
              (1) Are the allegations of the Petition suffi-
                  cient to establish standing, even with-
                  out any evidence from NOVA, given
                  that the Secretary does not challenge
                  standing, or must NOVA submit evi-
                  dence to establish Article III standing,
                  see Phigenix, Inc. v. Immunogen, Inc.,
                  

, 1171–73 (Fed. Cir.
                  2017); Shrimpers & Fishermen of RGV
                  v. Texas Commission on Environmental
                  Quality, 

, 423–24 (5th Cir.
                  2020) (citing cases from six other cir-
                  cuits)?
              (2) Is there evidence that, at the time of the
                  Petition, NOVA had members with
                  standing to challenge the provisions at
                  issue?
              (3) Does NOVA have standing on any basis
                  apart from having had members who
                  would have had standing to challenge
                  the provisions at issue?
 Order Requesting Supplemental Briefing, No. 20-1321
 (Sept. 15, 2020), ECF 87, at 1–2.
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 8                    NOVA   v. SECRETARY OF VETERANS AFFAIRS



     In response, NOVA argued that its petition sufficiently
 established that it had associational standing because
 “NOVA’s allegations in its petition in this case match—
 nearly verbatim—the allegations deemed sufficient in [Dis-
 abled American Veterans v. Gober, 

(Fed. Cir.
 2000)].” Pet’r’s Suppl. Br. 5. NOVA alternatively argued
 that “many of NOVA’s veteran members—including Mr.
 Cianchetta, Mr. Tangen, and Mr. Regis—currently suffer
 from knee disabilities and have been receiving, or are cur-
 rently seeking, disability benefits governed by the Knee
 Rules.”

In support, NOVA submitted declarations
 from these three veteran members. NOVA also argued
 that “NOVA has many attorney members who are ad-
 versely affected by the Knee Rules because those rules di-
 minish the contingency fees they will be able to earn, and
 the business they will be able to retain, by representing
 veterans in disability claims proceedings before VA.”

NOVA submitted declarations from attorney members
 alleging that the Knee Rules affect their ability to earn con-
 tingency fees and retain clients. In response to our order,
 the government for the first time challenged NOVA’s
 standing, arguing that NOVA had not established that it
 met the requirements for associational standing.
     Following oral argument, NOVA moved for permission
 to amend its petition for review to include an additional
 challenge to the 2015 Interpretive Guidance published in
 the Federal Register and to add three veteran members as
 named petitioners. We granted NOVA’s unopposed motion
 and permitted it to file an amended petition. 2




     2  Exercising our discretion, we granted permission to
 add these named petitioners under the circumstances here.
 As we discuss, NOVA’s associational standing to challenge
 the Knee Rules does not depend on the joinder of these in-
 dividuals.
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 NOVA   v. SECRETARY OF VETERANS AFFAIRS                    9



                         DISCUSSION
                        I.   Standing
     This court has an “independent obligation to assure
 that standing exists, regardless of whether it is challenged
 by any of the parties.” Summers v. Earth Island Inst., 

, 499 (2009). We first consider NOVA’s associa-
 tional standing based on claimed injury to its veteran mem-
 bers (as opposed to its claim of standing based on its lawyer
 members).
     As an organization, NOVA would have associational
 standing to challenge the Rules at issue if “(a) its members
 would otherwise have standing to sue in their own right;
 (b) the interests it seeks to protect are germane to the or-
 ganization’s purpose; and (c) neither the claim asserted nor
 the relief requested requires the participation of individual
 members in the lawsuit.” Hunt v. Wash. State Apple Ad-
 vert. Comm’n, 

, 343 (1977). NOVA carries a
 burden to prove standing that is the same as that applied
 at summary judgment. Phigenix, 

–
 73 (adopting the summary judgment burden of production
 in cases challenging final agency action); see also Shrimp-
 ers & Fishermen of RGV , 968 F.3d at 423 (same).
     NOVA’s petition asserted that “[m]any of NOVA’s
 members are veterans” and that those members are “per-
 sonally affected” by the challenged Manual provisions be-
 cause “they will be directly harmed when they bring their
 own claims for benefits.” Original Pet. 6. The petition did
 not name such individual members. NOVA additionally
 stated that its challenge to the two Manual provisions was
 “germane to NOVA’s purpose” of providing “representation
 for all persons seeking benefits through the federal vet-
 eran’s benefits system, and in particular those seeking ju-
 dicial review of denials of veterans’ benefits.”

 (quoting 

) (internal quotation marks
 omitted). Finally, NOVA explained that its challenge “d[id]
 not require the participation of NOVA’s individual
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  10                   NOVA   v. SECRETARY OF VETERANS AFFAIRS



  members” because the petition “presents a pure question of
  law: whether VA’s promulgation of each rule was legally
  valid” under the Administrative Procedure Act (“APA”).

       NOVA argues that under its original petition it has as-
  sociational standing to challenge both Rules “for essen-
  tially the same reasons this Court expressly held that
  NOVA had standing in DAV v. Gober,” which is because it
  has veteran members.

Gober addressed NOVA’s
  standing to challenge VA’s promulgation of rules concern-
  ing the application of the clear and unmistakable error
  (“CUE”) standard in VA proceedings. 

, 689
  (Fed. Cir. 2000). The Gober court found that NOVA satis-
  fied the first prong of associational standing because
  “NOVA includes at least one veteran as a member.”

require the identification of association mem-
  bers affected by the new CUE rules.

  additionally found that NOVA’s challenge to the CUE rules
  was “germane” to NOVA’s purpose of providing “represen-
  tation for all persons seeking benefits through the federal
  veteran’s benefits system, and in particular those seeking
  judicial review of denials of veterans’ benefits.”

marks omitted). Because the third prong of
  associational standing was uncontested, the court found
  that NOVA had standing.

the “allegations in its petition . . .
  match—nearly verbatim—the allegations deemed suffi-
  cient in Gober” and therefore it must necessarily have
  standing. Pet’r’s Suppl. Br. 5. However, we conclude that
  Gober was incorrectly decided insofar as it held that the
  first prong of the Hunt test can be established solely on the
  basis of NOVA member veteran status without identifica-
  tion of an individual affected member, the nature of his or
  her claimed injury, and the reasons that the challenged in-
  terpretive rule would adversely affect the member. The
  Supreme Court has made clear that petitioners must make
  a more “concrete and particularized” showing of injury.
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  NOVA   v. SECRETARY OF VETERANS AFFAIRS                     11



  Lujan v. Defs. of Wildlife, 

, 560 (1992); see also
  Spokeo, Inc. v. Robins, 

, 1548 (2016) (“For
  an injury to be ‘particularized,’ it ‘must affect the plaintiff
  in a personal and individual way.’”). As the Court con-
  cluded in Valley Forge Christian College v. Americans
  United for Separation of Church & State, “at an irreducible
  minimum, Art. III requires the party who invokes the
  court’s authority to ‘show that he personally has suffered
  some actual or threatened injury as a result of the puta-
  tively illegal conduct of the defendant.’” 

, 472
  (1982) (quoting Gladstone, Realtors v. Vill. of Bellwood, 

, 99 (1979)). For example, in Summers, the Su-
  preme Court held that an environmental group failed to es-
  tablish standing to challenge Forest Service regulations
  because respondents failed to identify an “application of
  the invalidated regulations that threaten[ed] imminent
  and concrete harm to the interests of their 

–96.
       To the extent Gober found Hunt’s first prong satisfied
  based solely on the veteran status of some of NOVA’s mem-
  bers, it is overruled. We now hold that when an organiza-
  tion challenges VA rulemaking and invokes the veteran
  status of a member to meet the first prong of the Hunt test
  for associational standing, 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 im-
  minently threatened concrete harm and the other require-
  ments for that member to have Article III standing. See
  id.; E. Paralyzed Veterans Ass’n, Inc. v. Sec’y of Veterans
  Affs., 

, 1356 (Fed. Cir. 2001) (finding associ-
  ational standing when veterans association showed it had
  at least one member who was sufficiently affected by the
  challenged VA regulations).
     Under this standard, NOVA has met its burden on
  Hunt’s first prong. In response to our request for supple-
  mental briefing on standing, NOVA submitted declarations
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  12                   NOVA   v. SECRETARY OF VETERANS AFFAIRS



  of NOVA members who have “suffered an injury in fact . . .
  that is fairly traceable to” the alleged shortcomings of each
  of the two challenged Manual provisions. Spokeo, 136 S.
  Ct. at 1547. For example, Michael Regis has been a mem-
  ber of NOVA since 2018 and is a veteran of the United
  States Air Force. He was diagnosed with knee instability
  in 2016 and is currently seeking benefits under DC 5257.
  Because of his instability diagnosis, Mr. Regis states that
  he faces a substantial risk of being denied the disability
  rating to which he believes he is entitled based on the re-
  gional office’s application of the Knee Joint Stability Rule.
      Andrew Tangen has been a member of NOVA since
  2017 and is a veteran of the United States Navy. He re-
  ceived a 10 percent disability rating under DC 5257 on Sep-
  tember 21, 2018, which was after the Knee Joint Stability
  Rule took effect. He states that he faces an ongoing injury
  from having his disability rating governed by the Knee
  Joint Stability Rule.
     Finally, Peter Cianchetta has been a NOVA member
  since 2017 and is a veteran of the United States Air Force.
  Mr. Cianchetta was referred for partial knee replacement
  surgery on October 26, 2019, and received a partial knee
  replacement on September 14, 2020. He states that he
  faces imminent denial of his claim for benefits under the
  Knee Replacement Rule.
      This evidence is sufficient to meet the summary judg-
  ment burden of production applied to direct challenges of
  agency action. 

–73; see also
  

(noting that, “[i]n response to a sum-
  mary judgment motion,” the plaintiff “must ‘set forth’ by
  affidavit or other evidence ‘specific facts,’ Fed. Rule Civ.
  Proc. 56(e) [supporting his or her standing], which for pur-
  poses of the summary judgment motion will be taken to be
  true”).
     Although each of the declarants states that he faces an
  ongoing or imminent injury from the challenged provisions,
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  NOVA   v. SECRETARY OF VETERANS AFFAIRS                       13



  the government makes only one argument for why none of
  them meets the first prong of Hunt—namely, that none of
  them had a knee joint stability or partial knee replacement
  claim pending before a regional office when NOVA filed its
  petition for review. However, Supreme Court precedent
  makes clear that standing does not require a pending ad-
  judicative proceeding in order to generate a cognizable Ar-
  ticle III injury.
       For example, the Supreme Court has affirmed the
  standing of regulated entities to bring pre-enforcement
  challenges to agency action. See Abbott Lab’ys v. Gardner,
  

, 153–54 (1967), abrogated on other grounds
  by Califano v. Sanders, 

(1977). In the patent
  context, a pending infringement action is not required to
  establish standing to challenge patent validity. See Prasco,
  LLC v. Medicis Pharm. Corp., 

, 1339 (Fed.
  Cir. 2008) (“A patentee can cause such an injury in a vari-
  ety of ways, for example, by creating a reasonable appre-
  hension of an infringement suit, . . . demanding the right
  to royalty payments, . . . or creating a barrier to the regu-
  latory approval of a product that is necessary for marketing
  . . . .”). Similarly, in the criminal context, “an actual arrest,
  prosecution, or other enforcement action is not a prerequi-
  site to challenging” a law. Susan B. Anthony List v.
  Driehaus, 

, 158 (2014); see also MedImmune,
  Inc. v. Genentech, Inc., 

, 128–29 (2007)
  (“[W]here threatened action by government is concerned,
  we do not require a plaintiff to expose himself to liability
  before bringing suit to challenge the basis for the threat—
  for example, the constitutionality of a law threatened to be
  enforced.” (emphasis removed)). Here, too, NOVA is not
  required to prove that it had a member with a pending knee
  instability or knee replacement claim in order to meet
  Hunt’s first requirement for associational standing. We
  therefore conclude NOVA has met the first requirement for
  associational standing under the Phigenix standard.
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  14                   NOVA   v. SECRETARY OF VETERANS AFFAIRS



       To satisfy the second prong of the associational stand-
  ing test, NOVA must show that “the interests it seeks to
  protect are germane to the organization’s purpose.” 

. The government argues that NOVA’s pe-
  tition is not germane to NOVA’s purpose because “NOVA’s
  stated purposes are focused, naturally, on ensuring that its
  members, as advocates, offer quality, informed representa-
  tion to veterans seeking benefits from VA.” Resp’t. Suppl.
  Br. 13. It is true that the five enumerated purposes in
  NOVA’s bylaws are directed toward improving the services
  NOVA’s lawyer members provide to their veteran clients.
  However, the government’s view of NOVA’s purposes is too
  narrow. As we found in Gober, NOVA’s general purpose is
  to aid veterans in obtaining 

; see
  also Pet’r’s Suppl. Br. Tab 5, Ex. A (stating that NOVA
  aims “[t]o develop and encourage high standards of service
  and representation for all persons seeking benefits through
  the federal veterans’ benefits system and in particular
  those seeking judicial review of denials of veterans’ bene-
  fits”);

Tab 5, Decl. of Diane Boyd Rauber (“NOVA’s
  overarching purpose [in the cases it brings to challenge VA
  agency action] is to . . . ensure that veterans are treated
  fairly and receive the benefits they are due under law
  . . . .”). NOVA’s mission is therefore focused on helping vet-
  erans obtain fair compensation for their claims. This inter-
  est in fair adjudication of veteran disability benefits is
  precisely the interest NOVA now seeks to protect in chal-
  lenging these two interpretive rules. NOVA has conse-
  quently shown that it “will . . . have a stake in the
  resolution of the dispute, and thus be in a position to serve
  as the defendant’s natural adversary.” United Food &
  Com. Workers Union Local 751 v. Brown Grp., Inc., 

, 555–56 (1996).
     Finally, NOVA’s challenge to the Rules does not require
  “individualized proof” because this case presents a purely
  legal question asking whether VA’s Knee Joint Stability
  and Knee Replacement Rules are unlawful under the
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  NOVA   v. SECRETARY OF VETERANS AFFAIRS                      15



  Administrative Procedure Act. 

. Nor
  does the government contend otherwise. NOVA has suffi-
  ciently shown that it has associational standing to chal-
  lenge the Knee Joint Stability Rule and the Knee
  Replacement Rule.
      We note that NOVA additionally argues that it “satis-
  fies the first associational standing prong” because “NOVA
  has many attorney members who are adversely affected by
  the Knee Rules because those rules diminish the contin-
  gency fees they will be able to earn, and the business they
  will be able to retain, by representing veterans in disability
  claims proceedings before VA.” Pet’r’s Suppl. Br. 7, 10. Be-
  cause we find that NOVA has established standing based
  on the harm suffered by its veteran members, we need not
  reach the standing of its lawyer members. Similarly, alt-
  hough NOVA argues that it additionally has organizational
  standing on behalf of its lawyer members, we need not
  reach this issue.
  II. Jurisdiction Under Section 502 – The Knee Joint Sta-
                         bility Rule
     We turn to the question of jurisdiction. For reasons we
  will explain below, we deal separately with the Knee Joint
  Stability Rule and the Knee Replacement Rule. Under sec-
  tion 502, this court may review “[a]n action of the Secretary
  to which section 552(a)(1) or 553 of title 5 (or both) refers.”
  38 U.S.C. § 502.
                         A.   5 U.S.C. § 553
       Initially, we consider whether the Knee Joint Stability
  Rule constitutes “an action of the Secretary to which sec-
  tion . . . 553 of title 5 . . . refers.”

  the notice-and-comment rulemaking process under the
  APA. It states that “[g]eneral notice of proposed rule mak-
  ing shall be published in the Federal Register . . . [and]
  [a]fter notice required by this section, the agency shall give
  interested persons an opportunity to participate in the rule
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  16                    NOVA   v. SECRETARY OF VETERANS AFFAIRS



  making through submission of written data, views, or ar-
  guments with or without opportunity for oral presenta-
  tion.” 5 U.S.C. § 553(b), (c). Additionally, it provides that
  “[e]ach agency shall give an interested person the right to
  petition for the issuance, amendment, or repeal of a rule.”

does not suggest that the Knee Joint
  Stability Rule is a substantive rule that should have gone
  through notice-and-comment under section 553. Nor does
  it argue that it was denied “the right to petition for the is-
  suance, amendment, or repeal” of the Rule under section
  553(e). Instead, NOVA contends that, even though the
  Knee Joint Stability Rule was not promulgated through no-
  tice-and-comment rulemaking, it is still reviewable be-
  cause “[s]ection 553 repeatedly refers to ‘interpretive
  rules,’” i.e., it exempts them from notice and comment rule-
  making. Pet’r’s Br. 45; see 5 U.S.C. § 553(b)(A), (d).
       It is implausible on its face that Congress encompassed
  exemptions when it referenced, in section 502, “[a]n action
  . . . to which section . . . 553 . . . refers.” The more plausible
  meaning limits the scope to the actions to which section
  553’s requirements pertain, i.e., apply, not action that sec-
  tion 553 declares outside its requirements. See Webster’s
  II New College Dictionary 953 (3d ed. 2005) (“1. To pertain:
  concern”); pertain, Oxford English Dictionary (3d ed. 2005)
  (“4. Intransitive. To apply; to be or remain in place, to con-
  tinue to be applicable.”). Section 553 provides several ex-
  emptions from its notice-and-comment and publication
  requirements. In addition to exempting “interpretative
  rules, general statements of policy, or rules of agency or-
  ganization, procedure, or practice,” it also exempts provi-
  sions involving “a military or foreign affairs function of the
  United States” or “a matter relating to agency manage-
  ment or personnel or to public property, loans, grants, ben-
  efits, or contracts.” 5 U.S.C. § 553(a)–(b). There can be no
  suggestion that section 502 permits review of agency action
  that falls within one of these section 553 exemptions, even
  if it is outside section 552(a)(1). See, e.g., Conyers v. Sec’y
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  NOVA    v. SECRETARY OF VETERANS AFFAIRS                      17



  of Veterans Affs., 750 F. App’x 993, 997 (Fed. Cir. 2018)
  (recognizing that section 502 jurisdiction does not apply to
  agency action within the “personnel exception” of section
  553 unless the agency action also falls under section
  552(a)(1)). Section 502’s “refers” language is not so broad
  as to encompass agency action expressly excluded from sec-
  tion 553’s procedures. We therefore do not have jurisdic-
  tion to review these Rules as agency action to which section
  553 “refers.”
                       B.   5 U.S.C. § 552(a)(1)
      Section 502 also gives this court jurisdiction over “[a]n
  action of the Secretary to which section 552(a)(1) . . . re-
  fers.” 3 Section 552(a)(1) governs agency action that must
  be published in the Federal Register, such as “substantive
  rules of general applicability adopted as authorized by law,
  and statements of general policy or interpretations of gen-
  eral applicability formulated and adopted by the agency.”
  5 U.S.C. § 552(a)(1)(D). Thus, section 502 provides prompt
  direct review by this court of “statements of general policy”
  and “interpretations of general applicability” in addition to
  “substantive rules of general applicability.”

    Section 502 provides in pertinent part:
          An action of the Secretary to which section
      552(a)(1) or 553 of title 5 (or both) refers is subject
      to judicial review. Such review shall be in accord-
      ance with chapter 7 of title 5 and may be sought
      only in the United States Court of Appeals for the
      Federal Circuit.
      4     Sections 552(a)(1) and 552(a)(2) provide in relevant
  part:
           (a) Each agency shall make available to the public
               information as follows:
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  18                   NOVA   v. SECRETARY OF VETERANS AFFAIRS



      In our earlier decision in DAV, we held that we did not
  have jurisdiction to review a Manual provision addressing
  the definition of a medically unexplained chronic multi-
  symptom illness. 

, 1078 (Fed. Cir. 2017). The
  decision explained that “Congress expressly exempted from
  § 502 challenges to agency actions which fall under
  § 552(a)(2).”

see also

1075 (“Section
  502’s express exclusion of agency actions subject to
  § 552(a)(2) renders the M21-1 Manual beyond our § 502 ju-
  risdiction unless DAV can show the VA’s revisions more
  readily fall under §§ 552(a)(1) or 553.”). The government
  has agreed that reading sections 552(a)(2) and 552(a)(1) as
  being mutually exclusive is incorrect because “[i]n some re-
  spects, the criteria that Section 552(a)(1) and (2) establish


            (1) Each agency shall separately state and cur-
            rently publish in the Federal Register for the
            guidance of the public—
                                 ***
                  (D) substantive rules of general applicabil-
                  ity adopted as authorized by law, and state-
                  ments of general policy or interpretations of
                  general applicability formulated and
                  adopted by the agency; and
                                 ***
             (2) Each agency, in accordance with published
                 rules, shall make available for public inspec-
                 tion in an electronic format—
                                 ***
                  (B) those statements of policy and interpre-
                  tations which have been adopted by the
                  agency and are not published in the Federal
                  Register;
                  (C) administrative staff manuals and in-
                  structions to staff that affect a member of
                  the public; . . .
                                 ***
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  NOVA   v. SECRETARY OF VETERANS AFFAIRS                    19



  overlap.” Respondent Brief in Opposition at 22–23, Gray
  v. Wilkie, 

(2019) (No. 17-1679), 

; see also Procopio v. Sec’y of Veterans Affairs, 

, 1379–80 (Fed. Cir. 2019) (exercising section 502
  jurisdiction over a VA memorandum instructing staff to
  stay certain benefits decisions, without addressing the fact
  that it constituted an instruction to staff under section
  552(a)(2)(C), because the memorandum constituted an in-
  terpretation of general applicability under section
  552(a)(1)). The government also concedes that whether an
  interpretive rule is actually published in the Federal Reg-
  ister does not dictate whether this court has jurisdiction,
  as “VA cannot insulate a rule from pre-enforcement review
  simply by placing it in the Manual.” Resp’t Br. 30. The
  government nevertheless argues that we do not have juris-
  diction to review Manual provisions under section 502 for
  other reasons.
       Because we find that the Knee Joint Stability Rule falls
  within the “general applicability” language of section
  552(a)(1)(D), we overrule our contrary holding in DAV. We
  start with the Supreme Court’s premise that “many
  [agency] manual instructions surely qualify as guidelines
  of general applicability.” Azar v. Allina Health Servs., 

, 1814 n.1 (2019). The VA Manual provision gov-
  erning knee joint stability is one of them. The Knee Joint
  Stability Rule governs benefits received under DC 5257, 38
  C.F.R. § 4.71a. The Manual provision announces VA’s
  adoption of an interpretive rule establishing a new metric
  for assessing knee instability claims. It limits VA staff dis-
  cretion, and, as a practical matter, impacts veteran bene-
  fits eligibility for an entire class of veterans. On its face,
  the Knee Stability Rule is an “interpretation[] of general
  applicability” because it governs all regional office adjudi-
  cations of knee instability claims, affecting an open-ended
  category of veterans with knee instabilities. 5 U.S.C.
  § 552(a)(1).
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  20                   NOVA   v. SECRETARY OF VETERANS AFFAIRS



      The history of section 552 supports our conclusion that
  the Knee Joint Stability Rule is “of general applicability.”
  Congress has long used the phrase “of general applicabil-
  ity” to differentiate between government action that ap-
  plies to a general segment of the public rather than to
  specific named individuals. For example, in 1935 Congress
  passed the Federal Register Act (“FRA”), which required
  publication of “such documents or classes of documents as
  the President shall determine from time to time have gen-
  eral applicability and legal effect.” Pub. L. No. 74-220,
  § 5(a)(2), 49 Stat. 500, 501 (1935) (emphasis added). In
  1937, the FRA was amended to add a requirement that
  agency documents “hav[ing] general applicability and legal
  effect” be published in what became the Code of Federal
  Regulations. Pub. L. No. 75-158, § 11(a), 50 Stat. 304, 304
  (1937) (emphasis added). Regulations implementing this
  new codification requirement clarified that documents of
  “general applicability and legal effect” were those “relevant
  or applicable to the general public, the members of a class,
  or the persons of a locality, as distinguished from named
  individuals or organizations.” 2 Fed. Reg. 2450, 2451-52
  (Nov. 12, 1937).
      In 1946, Congress enacted the APA, which also ad-
  dressed publication of rules in the Federal Register. Sec-
  tion 2(c) of the APA utilized the same “general
  applicability” language appearing in the FRA, defining
  “Rule” as “the whole or any part of any agency statement
  of general or particular applicability and future effect de-
  signed to implement, interpret, or prescribe law or policy
  or to describe the organization, procedure, or practice re-
  quirements of any agency.” Pub. L. No. 79-404, § 2(c), 60
  Stat. 237, 237 (1946) (emphasis added). The distinction be-
  tween an agency statement of “general” as opposed to “par-
  ticular applicability” was explained in a House Report,
  which noted that the phrase “or particular applicability”
  was added to “assure coverage of rulemaking addressed to
  named persons,” indicating that “general . . . applicability”
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  NOVA    v. SECRETARY OF VETERANS AFFAIRS                  21



  was understood as excluding such rules. H.R. Rep. No. 79-
  1980 at 283, n.1 (1946) (Comm. Amendment).
      Under Section 3(a) of the original APA, agencies were
  required to “separately state and currently publish in the
  Federal Register” specific agency action including “sub-
  stantive rules adopted as authorized by law and state-
  ments of general policy or interpretations formulated and
  adopted by the agency for the guidance of the public, but
  not rules addressed to and served upon named persons in
  accordance with law.” Pub. L. No. 79-404, § 3(a)(3), 60 Stat.
  237, 238.
      In 1966, Congress enacted the Freedom of Information
  Act (“FOIA”) and moved the APA’s Federal Register publi-
  cation requirement to section 3 of FOIA.            Pub. L.
  No. 89-487, § 3(a), 80 Stat. 250, 250 (1966). This provision
  was codified at what is now 5 U.S.C. § 552(a)(1). Section
  552(a)(1) provided that “[e]very agency shall separately
  state and currently publish in the Federal Register for the
  guidance of the public” agency documents including “sub-
  stantive rules of general applicability adopted as author-
  ized by law, and statements of general policy or
  interpretations of general applicability formulated and
  adopted by the agency.”

added).
  Thus, FOIA required publication of “interpretations of gen-
  eral applicability” rather than using the previous lan-
  guage—“interpretations formulated and adopted by the
  agency for the guidance of the public, but not rules ad-
  dressed to and served upon named persons in accordance
  with law.” Compare Pub. L. No. 89-487, § 3(a) with Pub. L.
  No. 79-404, § 3(a)(3). Congress described this change as
  merely “technical” in nature. S. Rep. No. 89-813, at 6
  (1965). 5 Congress plainly intended “general applicability”


      5  The Attorney General’s 1967 memorandum—con-
  sidered “a reliable guide in interpreting FOIA,” FCC v.
  AT & T Inc., 

, 409 (2011); Nat’l Archives &
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  22                   NOVA   v. SECRETARY OF VETERANS AFFAIRS



  to be interpreted as applying generally and “not . . . ad-
  dressed to and served upon named persons in accordance
  with law.”

“general applicability”
  suggests its intent to incorporate the consistent under-
  standing of “general applicability” dating back to the enac-
  tion of the FRA. See Taggart v. Lorenzen, 

,
  1801 (2019) (explaining the “longstanding interpretive
  principle” that “[w]hen a statutory term is obviously trans-
  planted from another legal source, it brings the old soil
  with it.” (internal quotation marks omitted)). Thus, “gen-
  eral applicability” in section 552(a)(1) is best understood as
  indicating agency action addressed to a class of persons ra-
  ther than to named persons or organizations. See, e.g.,
  Nguyen v. United States, 

, 700 (9th Cir. 1987)
  (“The legislative history thus indicates a rather obvious
  definition of ‘general’: that which is neither directed at
  specified persons nor limited to particular situations.”).
      The Knee Joint Stability Rule falls easily within the
  “general applicability” language of section 552(a)(1)(D).
  The Rule is of general application, applying to all veteran
  claims for knee joint instability benefits before a VA re-
  gional office. Indeed, the government appears to concede
  that the Knee Joint Stability Rule would be reviewable if it
  were binding on all agency adjudicators. But the govern-
  ment argues that “[t]o be ‘of general applicability,’ . . . an
  interpretation must be ‘binding’ on the agency and mem-
  bers of the public who interact with the agency.” Resp’t Br.



  Recs. Admin. v. Favish, 

, 169 (2004)—ex-
  plained that the change was “formal only.” Attorney Gen-
  eral’s Memorandum on the Public Information Section of
  the Administrative Procedure Act 10 (June 1967) (FOIA
  Memorandum). The Attorney General also stated the tech-
  nical change made sense because “of general applicability”
  “exclude[s] rules addressed to and served upon named per-
  sons.”

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  NOVA    v. SECRETARY OF VETERANS AFFAIRS                   23



  21. The government contends that the Knee Joint Stability
  Manual provision does not bind the Board of Veterans Ap-
  peals and is therefore not a true “interpretation[] of general
  applicability.” § 552(a)(1)(D). Understanding the govern-
  ment’s position requires an understanding of the VA adju-
  dicative system. 6
      The VA adjudicates disability benefits claims through
  a “two-step process.” Henderson ex rel. Henderson v.
  Shinseki, 

, 431 (2011). 7 Veterans first file a
  claim before Veterans Benefits Administration (“VBA”)
  staff in one of VA’s regional offices, who make “an initial
  decision on whether to grant or deny benefits.”

is dissatisfied with the regional office’s decision,
  the veteran may obtain de novo review by the Board of Vet-
  erans’ Appeals.”

“provide[] guidance to
  [VBA] employees and stakeholders” the VA “consolidates
  its policy and procedures into one resource known as the
  M21-1 Manual.” 

. VBA staff making
  the initial benefits decisions are bound by policies in the
  Manual. Gray v. Sec’y of Veterans Affs., 

,
  1106 (Fed. Cir. 2017), vacated and remanded by Gray v.
  Wilkie, 

(2019), vacated and dismissed as
  moot by Gray v. Sec’y of Veterans Affs., 774 F. App’x 678
  (Fed. Cir. 2019). However, while the Board is “required to
  discuss any relevant provisions contained in the [Manual]
  as part of its duty to provide adequate reasons or bases” for
  its decisions, it is not bound by the Manual. Overton v.



      6   The government, of course, agrees that interpretive
  rules do not bind the agency in court proceedings.
      7   The Veterans Appeals Improvement and Moderni-
  zation Act of 2017 modified this two-step process by grant-
  ing veterans a wider range of appeal options following an
  adverse regional office decision. Pub. L. No. 115-55, 131
  Stat. 1105; 38 U.S.C. §§ 5104B, 5104C. However, the par-
  ties appear to agree that the two-step process still exists.
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  24                   NOVA   v. SECRETARY OF VETERANS AFFAIRS



  Wilkie, 

, 264 (2018); see also 38 U.S.C.
  § 7104(c) (explaining that the Board is bound by “regula-
  tions of the Department, instructions of the Secretary, and
  the precedent opinions of the chief legal officer of the De-
  partment”). Because the Manual binds regional office staff,
  but not the Board, the government contends that Manual
  provisions are not sufficiently “binding” to constitute inter-
  pretations of general applicability.
       The text and history of section 552(a)(1) do not suggest
  that the reference to “interpretations of general applicabil-
  ity” excludes interpretive rules that bind only front-line ad-
  judicators. As discussed above, the phrase “of general
  applicability” is directed only to the question whether the
  rule applies to a class of persons rather than to selected
  individuals. In other words, “general applicability” does
  not refer to general applicability within the agency, but to
  general applicability to members of the public. The gov-
  ernment argues that the legislative history requires “inter-
  pretations of general applicability” to be “binding” on
  agency adjudicators, citing two Congressional reports that
  accompanied the original APA. Resp’t Br. 22. However,
  these reports do not support the government’s interpreta-
  tion, but instead state that section 3(a) of the APA “forbids
  secrecy of rules binding or applicable to the public, or of
  delegations of authority.” S. Rep. No. 79-752, 12 (1945)
  (emphasis added); see also H.R. Rep. No. 79-1980, 22 (1946)
  (similar). The use of the language “binding or applicable to
  the public” suggests that the “applicable to the public” con-
  cept does not mean rules that are “binding.” The obligation
  to publish under section 552(a)(1) does not turn on whether
  VA action is binding on the Board, but on whether an in-
  terpretive rule affects a segment of the general public. 8



       8  The government relies on two circuit decisions for
  the proposition that courts that have considered “nonbind-
  ing instructions in agency manuals of the kind at issue here
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  NOVA   v. SECRETARY OF VETERANS AFFAIRS                         25



      The government also argues that publication in the
  Federal Register is only required for matters that “would
  adversely affect a member of the public.” Resp’t Br. 25
  (quoting New York v. Lyng, 

, 354 (2d Cir.
  1987)). Even under that standard, the Knee Joint Stability
  Rule would need to be published because the Knee Joint
  Stability Rule adversely affects veterans by denying them
  benefits to which they would otherwise be entitled without
  the procedural protections afforded by FOIA as discussed
  in detail below. The Knee Joint Stability Rule, as a rule of
  “general applicability,” has a substantive effect on veterans


  have ‘unanimously held that publication in the Federal
  Register under § 552(a)(1) is not required.’” Resp’t Br. 19
  (quoting Capuano v. Nat’l Transp. Safety Bd., 

,
  58 (1st Cir. 1988)). However, both cases relied on by the
  government are distinguishable because they concerned
  agency manuals that did not have a substantive impact on
  the rights of the public or did not mark a change in agency
  practice. 

–58 (finding that a Fed-
  eral Aviation Administration “enforcement manual” did
  not need to be published in the Federal Register when it
  merely informed agency employees that “[s]uspension may
  be used for punitive purposes” and specified criteria they
  should use when asking “the Board to impose suspension
  or a lesser sanction” because the Manual was “not intended
  to affect the rights, duties, obligations, or conduct of pilots
  or any other member of the public” as “[a] pilot’s obligation
  . . . is to refrain from those activities that call for a sanction,
  whether that sanction is strict or lenient”); Notaro v. Lu-
  ther, 

, 291 (2d Cir. 1986) (finding a Parole
  Commission training aid did not need to be published in
  the Federal Register because “the approach set out in the
  training aid accords with the Commission’s regulations
  and past practices” and “did not establish a presumption of
  nonperipherality” that mandated a particular result in ap-
  pellant’s parole hearing).
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  26                   NOVA   v. SECRETARY OF VETERANS AFFAIRS



  suffering from knee instability, warranting the formal no-
  tice that publication in the Federal Register entails. 9 Sig-
  nificantly, the VA itself once viewed this change to a
  measurement-based instability rating system as signifi-
  cant enough to warrant following notice and comment pro-
  cedures. 10



       9  The government argues that Congress’s goal of
  providing “guidance of the public” through Federal Regis-
  ter publication is “equally, if not better, served by making
  nonbinding interpretations available online on VA’s web-
  site.” Resp’t Br. 21. However, the basic VA website does
  not seem to contain the current version of the Manual. In-
  stead, the government says that the current Manual is
  published       on      the      KnowVA        website     at
  https://www.knowva.ebenefits.va.gov/system/tem-
  plates/selfservice/va_ssnew/help/customer/locale/en-
  US/portal/554400000001018/content/554400000073398/M
  21-1,%20Adjudication%20
  Procedures%20Manual,%20Table%20of%20Contents.
  Resp’t Br. 3 n. 4. Further, the version of the Manual on the
  KnowVA site does not explain the role the Manual plays in
  benefits adjudication. In contrast, documents published in
  the Federal Register are aggregated on a single website
  and presented in a standardized format that includes a
  summary of “the ‘what,’ ‘why,’ and ‘effect’ of the document”
  in “language a non-expert will understand.” Document
  Drafting Handbook, Office of the Federal Register at 2-5
  (Aug. 9, 2019), https://www.archives.gov/files/federal-regis-
  ter/write/handbook/ddh.pdf. Even in cases where the Fed-
  eral Register incorporates material by reference, the
  agency must ensure easy public access by “stating where
  and how copies may be examined and readily obtained with
  maximum convenience to the user.” 1 C.F.R. § 51.9.
      10  See 82 Fed. Reg. 35,719, 35,723 (Aug. 1, 2017) (pub-
  lishing a notice of proposed rulemaking that proposed a
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  NOVA   v. SECRETARY OF VETERANS AFFAIRS                    27



       We finally note that the Supreme Court has recognized
  the importance of publishing agency documents like this in
  the Federal Register, although it based its holding on the
  agency’s own internal publication procedures rather than
  on section 552(a)(1). Morton v. Ruiz, 

, 235
  (1974) (finding that a policy set forth in the Indian Affairs
  Manual restricting eligibility for general assistance bene-
  fits to “Indians living ‘on reservations’” was unenforceable
  for lack of publication in the Federal Register).
      We conclude that the Knee Joint Stability Rule was re-
  quired to be published in the Federal Register under sec-
  tion 552(a)(1) and that we consequently have jurisdiction
  under section 502. In so holding, we overrule our contrary
  decisions in Disabled American Veterans v. Secretary of
  Veterans Affairs, 

(Fed. Cir. 2017), and Gray
  v. Secretary of Veterans Affairs, 

(Fed. Cir.
  2017), vacated and remanded by Gray v. Wilkie, 

(2019), vacated and dismissed as moot by Gray v.
  Sec’y of Veterans Affs., 774 F. App’x 678 (Fed. Cir. 2019).
   III. Final Agency Action – The Knee Joint Stability Rule
       The government argues that even if the Knee Joint Sta-
  bility Rule constitutes an interpretation of general applica-
  bility under section 552, it does not constitute reviewable
  final agency action.
      Section 502 does not itself contain a finality require-
  ment, but instead states that review “shall be in accordance
  with chapter 7 of title 5.” 38 U.S.C. § 502. In turn, 5 U.S.C.
  § 704 states that “[a]gency action made reviewable by stat-
  ute and final agency action for which there is no other


  nearly identical measurement-based method for assigning
  knee instability ratings). The VA never promulgated a fi-
  nal rule implementing the suggested measurement-based
  evaluation method, but instead revised the Manual to
  adopt a nearly identical method.
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  28                   NOVA   v. SECRETARY OF VETERANS AFFAIRS



  adequate remedy in a court are subject to judicial review.”
  While section 704 does not expressly state that agency ac-
  tion made reviewable by statute must be final, the Su-
  preme Court has recognized that agency judicial review
  provisions are presumed to have a finality requirement.
  See, e.g., 

(stating that “[e]xcept
  where congress explicitly provides for our correction of the
  administrative process at a higher level of generality,
  [courts] intervene in the administration of the laws only
  when, and to the extent that, a specific ‘final agency action’
  has an actual or immediately threatened effect”); Bell v.
  New Jersey, 

, 778 (1983) (“The strong pre-
  sumption is that judicial review will be available only when
  agency action becomes final . . . .” (citing FPC v. Metro. Ed-
  ison, 

, 383–85 (1938))). The legislative history
  of section 704 confirms Congress’s presumption of a “final-
  ity requirement as a prerequisite for judicial review.”
  Carter/Mondale Presidential Comm., Inc. v. Fed. Election
  Comm’n, 

, 285 n.9 (D.C. Cir. 1983). Nothing
  in section 502 overcomes the presumption. Therefore, as
  we found in Ashford University, LLC v. Secretary of Veter-
  ans Affairs, “section 502, by incorporating 5 U.S.C. § 704,
  includes a finality requirement.” 

, 1344 (Fed.
  Cir. 2020).
       To qualify as final agency action, the Knee Joint Sta-
  bility Rule must (1) “mark the consummation of the
  agency’s decisionmaking process—it must not be of a
  merely tentative or interlocutory nature” and (2) “be one by
  which rights or obligations have been determined, or from
  which legal consequences will flow.” U.S. Army Corps of
  Eng’rs v. Hawkes Co., 

, 1813 (2016) (quoting
  Bennett v. Spear, 

, 177–78 (1997)) (internal
  quotation marks omitted). The government argues that
  the Knee Joint Stability Rule satisfies neither of these re-
  quirements because “a regional office’s reliance on or refer-
  ence to a provision in the Manual does not mark the
  consummation of the agency’s decision-making process”
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  NOVA   v. SECRETARY OF VETERANS AFFAIRS                   29



  and “[l]egally binding consequences can flow only from the
  agency’s final adjudication of an individual claim in a given
  case.” Resp’t Br. 42. We disagree.
       First, the Knee Joint Stability Rule marks the consum-
  mation of the VA’s manual-drafting process and reflects
  VA’s determination that regional office staff must apply
  the measurement-based rating analysis when evaluating
  knee instability claims. The provision “is properly attribut-
  able to the agency itself and represents the culmination of
  that agency’s consideration of an issue.” POET Biorefin-
  ing, LLC v. EPA, 

, 404 (D.C. Cir. 2020). It is
  not “of a merely tentative or interlocutory nature,” 

, nor is it “only the ruling of a subordinate
  official,” Franklin v. Massachusetts, 

, 797
  (1992) (internal quotation marks omitted). Instead, the
  Rule was implemented in the Manual following analysis
  and approval by “a team at VA headquarters,” Resp’t Br. 4,
  and at the “direction of the Under Secretary for Benefits,”
  J.A. 1, 66. 11 While it is true that the Knee Joint Stability




      11  The Secretary of Veterans Affairs “delegated” au-
  thority, as authorized by 38 U.S.C. § 512(a), “to the Under
  Secretary for Benefits and to supervisory or adjudicative
  personnel within the jurisdiction of the Veterans Benefits
  Administration designated by the Under Secretary to make
  findings and decisions under the applicable laws, regula-
  tions, precedents, and instructions, as to entitlement of
  claimants to benefits under all laws administered by the
  Department of Veterans Affairs governing the payment of
  monetary benefits to veterans . . . .” 38 C.F.R. § 3.100(a).
  See Soundboard Ass’n v. Fed. Trade Comm’n, 

, 1269 (D.C. Cir. 2018) (“The manner in which an
  agency’s governing statutes and regulations structure its
  decisionmaking processes is a touchstone of the finality
  analysis.”).
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  30                   NOVA   v. SECRETARY OF VETERANS AFFAIRS



  Rule may be subject to future change, this does not alter
  the finality analysis. 12
       The government’s approach would exclude from review
  all agency rules, which are non-final in the sense that they
  may be interpreted, and their validity determined, in later
  adjudicatory proceedings. However, the whole regime of
  challenges to rules assumes that rules are often going to be
  applied in future individual adjudications. Parties are rou-
  tinely permitted to bring pre-enforcement challenges with-
  out waiting until they are subject to a pending adjudication
  involving the rule. See, e.g., Abbott 

–
  40. Since Abbott Laboratories, “preenforcement review of
  agency rules and regulations has become the norm, not the
  exception.” Clean Air Implementation Project v. EPA., 

, 1204 (D.C. Cir. 1998). The District of Columbia
  Circuit has emphasized that “an interpretive rule constru-
  ing existing law can constitute final [agency] action.”
  POET 

.
      Section 502 is precisely such a statute permitting pre-
  enforcement review. As we have previously found, “the ju-
  dicial review provision of 38 U.S.C. § 502 is another in-
  stance in which Congress has declared its preference for
  preenforcement review of agency rules.” Nat’l Org. of Vet-
  erans’ Advocs., Inc. v. Sec’y of Veterans Affs., 

,
  1347 (Fed. Cir. 2003). Here, despite the potential for future
  adjudicatory interpretations of the Knee Joint Stability


       12  See POET 

(“The possi-
  bility of revision ‘is a common characteristic of agency ac-
  tion, and does not make an otherwise definitive decision
  nonfinal.’” (quoting 

)); Appala-
  chian Power Co. v. E.P.A, 

, 1022 (D.C. Cir.
  2000) (“EPA may think that because the Guidance, in all
  its particulars, is subject to change, it is not binding and
  therefore not final action. . . . But all laws are subject to
  change.”).
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  NOVA   v. SECRETARY OF VETERANS AFFAIRS                  31



  Rule, the manual-creating process as to this Rule is com-
  plete. The Knee Joint Stability Rule satisfies the first
  prong of the Bennett finality test.
      Second, the Knee Joint Stability Rule is a rule “by
  which rights or obligations have been determined, or from
  which legal consequences will flow.” 

. The government primarily focuses on this second
  prong of the finality test, arguing that no legal conse-
  quences can flow from the Knee Joint Stability Rule until
  the rule is applied in the adjudication of a benefits claim.
      The government’s theory is that the Rule lacks legal
  consequences because it is not binding on the agency as a
  whole, but only on front-line adjudicators. The “‘pragmatic’
  approach [the Supreme Court] ha[s] long taken to finality”
  is inconsistent with the government’s position. 

. In Hawkes, the Court found that juris-
  dictional determinations issued by the Army Corps of En-
  gineers were reviewable final agency action because they
  bound the agency for five years, even though they were not
  binding in citizen suits.

So too in Frozen
  Food Express v. United States, the Court used a pragmatic
  approach to finality that is even more clearly pertinent
  here. 

(1956).
      In Frozen Food, the Court evaluated the finality of an
  Interstate Commerce Commission order clarifying which
  commodities constituted an “agricultural product” that
  could be transported by common carriers without a permit
  from the Commission.

The Court held that
  this order was final agency action based on the order’s “im-
  mediate and practical impact,” despite the fact that the or-
  der did not itself subject any regulated entity to an
  enforcement action or sanction

44–45, and despite
  the “Commission’s willingness, in individual cases, to re-
  consider its determinations with respect to particular com-
  modities,”

47 (Harlan, J., dissent). See also Cal.
  Cmtys. Against Toxics v. EPA, 

, 637 (D.C. Cir.
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  32                   NOVA   v. SECRETARY OF VETERANS AFFAIRS



  2019) (“Hawkes instructs that whether an agency action
  has direct and appreciable legal consequences is a ‘prag-
  matic’ inquiry . . . based on the concrete consequences an
  agency action has or does not have as a result of the specific
  statutes and regulations that govern it.” (internal quota-
  tion marks omitted)); POET 

  (same).
      Here, interpretive rules in the Manual have a practical
  effect on veterans seeking benefits. Because nearly all vet-
  eran benefits claims are resolved at the regional office
  stage, the Manual is effectively “the last word for the vast
  majority of veterans.” 

(Dyk, J., dis-
  senting in part and concurring in the judgment); compare
  U.S. Dep’t of Veterans Affairs, FY 2021 Budget Submis-
  sion,            BVA-169              (Feb.           2020),
  https://www.va.gov/budget/docs/summary/fy2021VAbudg-
  etvolumeIIIbenefitsBurialProgramsAndDeptmentalAd-
  ministration.pdf (stating that more than 1.3 million
  disability compensation rating claims were completed in
  2019) with

BVA-278 (stating that the Board received
  78,344 appeals in 2019). It typically takes years for chal-
  lenges to regional office determinations to plow through ad-
  judication before finally reaching the Board. See Martin v.
  O’Rourke, 

, 1350 (Fed. Cir. 2018) (Moore, J.,
  concurring) (“In total the appeals process takes over five
  and a half years on average from the time a notice of disa-
  greement is filed until the Board issues a decision, which
  often sets the stage for more proceedings on remand.” (em-
  phasis removed)).
      Insulating interpretive rules contained in the Manual
  from judicial review would also be inconsistent with the ap-
  proach taken by our sister circuits. For example, in Appa-
  lachian Power, the District of Columbia Circuit found that
  an EPA guidance document explaining when and how “pe-
  riodic monitoring” of emissions was required under the
  Clean Air Act was final agency 

–23. The court explained that while the Guidance was
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  NOVA   v. SECRETARY OF VETERANS AFFAIRS                    33



  not a legislative rule, it had “as a practical matter, . . . a
  binding effect” sufficient to find finality because of its im-
  pact on state authorities.

This was so even
  though the document contained a disclaimer expressly
  stating that it was “intended solely as guidance, [did] not
  represent final Agency action, and cannot be relied upon to
  create any rights enforceable by any party.”

       Applying a similarly practical approach, the Fifth Cir-
  cuit, in Texas v. EEOC, found that an EEOC guidance doc-
  ument was reviewable final agency action because the
  guidance “binds EEOC staff to an analytical method in con-
  ducting Title VII investigations and directs their decisions
  about which employers to refer for enforcement actions.”
  

, 443 (5th Cir. 2019). In so holding, the court
  rejected the EEOC’s argument that the guidance “‘applies
  solely to how the EEOC conducts a preliminary, non-final
  step in the administrative process,’ i.e., how it investigates
  a charge of discrimination and decides whether to issue a
  right-to-sue letter.”

Finally, in Natural Re-
  sources Defense Council v. EPA, the District of Columbia
  Circuit found an EPA guidance document constituted re-
  viewable final agency action because it removed the discre-
  tion of Regional Air Division Directors to refuse to accept
  state emission-control plans that did not comply with a spe-
  cific EPA standard. 

, 319–20 (D.C. Cir. 2011).
  The court concluded that “the Guidance binds EPA re-
  gional directors and thus qualifies as final agency action.”

is further supported by the
  fact that VA has sought, and received, Auer deference for
  its Manual provisions, i.e., deference to the agency’s inter-
  pretations in the Manual of the agency’s regulations. See
  Mason v. Shinseki, 

, 1374–75 (Fed. Cir.
  2014); Smith v. Shinseki, 

, 1385 (Fed. Cir.
  2011); Thun v. Shinseki, 

, 1369 (Fed. Cir.
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  34                   NOVA   v. SECRETARY OF VETERANS AFFAIRS



  2009). 13 Under Bennett, final agency action must consti-
  tute the “consummation of the agency’s decisionmaking
  process . . . [and] must not be of a merely tentative or in-
  terlocutory 

(internal quotation
  marks omitted). The Supreme Court has similarly stated
  that Auer deference is only appropriate for regulatory in-
  terpretations “actually made by the agency. In other
  words, it must be the agency’s ‘authoritative’ or ‘official po-
  sition,’ rather than any more ad hoc statement not reflect-
  ing the agency’s views.” Kisor v. Wilkie, 

,
  2416 (2019). The granting of Auer deference to Manual
  provisions therefore shows “the requisite legal conse-
  quences for APA finality purposes.” Air Brake Sys., Inc. v.
  Mineta, 

, 644 (6th Cir. 2004). 14




       13  The Supreme Court has recognized the significance
  of other manuals by relying on them to interpret an
  agency’s statutory obligations. See Wash. State Dep’t of
  Soc. & Health Servs. v. Guardianship Est. of Keffeler, 

, 385 (2003) (noting that the Social Security Ad-
  ministration’s Program Operations Manual System’s defi-
  nitions of “legal process” were “not products of formal
  rulemaking, [but] they nevertheless warrant respect”); see
  also Shalala v. Guernsey Mem’l Hosp., 

, 90–
  91,101–02 (1995) (finding that the Medicare Provider Re-
  imbursement Manual was a valid interpretive rule and
  that “it was reasonable for the Secretary to follow that pol-
  icy here to deny respondent’s claim for full reimbursement
  of its defeasance loss”).
       14  Indeed, Manual provisions have greater practical
  impact on other benefits cases than Board decisions, which
  are not binding in future cases and appear not to be enti-
  tled to Auer deference. 

(stating
  that the Solicitor General suggested that Auer deference
  may not be appropriate for Board decisions because “all 100
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  NOVA   v. SECRETARY OF VETERANS AFFAIRS                   35



      Because the Knee Joint Stability Rule is an interpre-
  tive rule of general applicability and constitutes reviewable
  final agency action, we have jurisdiction over NOVA’s peti-
  tion for review under section 502.
                IV. The Knee Replacement Rule
      We now turn to the Knee Replacement Rule. NOVA
  has amended its petition for review to challenge both the
  2015 Interpretive Guidance published in the Federal Reg-
  ister as well as the Knee Replacement Manual provision.
  This Rule, whether published in the Federal Register or in
  the Manual, would be reviewable under section 502 for the
  same reasons explained above for the Knee Joint Stability
  Rule. It constitutes an interpretive rule under section
  552(a)(1).
      However, the question is whether the Manual provi-
  sion or the agency’s earlier publication in the Federal Reg-
  ister is reviewable. The Manual provision is reviewable
  only if it makes a substantive change to the Rule and su-
  persedes the Federal Register publication. It is not review-
  able if it is merely a republication of the previous Federal
  Register Notice.
      This is so because Manual provisions that merely re-
  publish prior agency interpretations or restate existing law
  need not be published under section 552(a)(1) and are not
  reviewable under section 502. 15 They also do not constitute


  or so members of the VA Board act individually” and their
  decisions have “no ‘precedential value’”).
      15  See Knutzen v. Eben Ezer Lutheran Hous. Ctr., 

, 1351 (10th Cir. 1987) (finding that Housing and
  Urban Development memoranda did not need to be pub-
  lished in the Federal Register under section 552(a)(1) be-
  cause they “merely reiterate the statutory and regulatory
  rule” already in place); Stuart-James Co., Inc. v. S.E.C.,
  

, 801 (D.C. Cir. 1988) (finding that the SEC
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  36                    NOVA   v. SECRETARY OF VETERANS AFFAIRS



  final agency action. 16
       We leave it to the merits panel to determine whether
  the Manual provision containing the Knee Replacement
  Rule merely reiterates the 2015 Interpretive Guidance or
  is independently a reviewable interpretive rule. However,
  since either the 2015 Interpretive Guidance or the Manual




  was not required to publish its interpretation of “unreal-
  ized profit” under section 552(a)(1) because the interpreta-
  tion “merely explained an already existing regulation; it
  did not ‘adopt new rules or substantially modify existing
  rules, regulations, or statutes.’” (quoting Lewis v. Wein-
  berger, 

, 659 (D.N.M.1976))); Notaro v. Lu-
  ther, 

, 291 (2d Cir. 1986) (concluding that a
  provision in a correctional facility training manual did not
  need to be published under section 552(a)(1) because it did
  not have a “substantive impact” and was in accord “with
  the Commission’s regulations and past practices.”); D&W
  Food Ctrs., Inc. v. Block, 

, 757 (6th Cir. 1986)
  (holding under section 552(a)(1) that an interpretation is
  not “‘of general applicability’ if (1) only a clarification or ex-
  planation of existing laws is expressed, and (2) the inter-
  pretation results in no significant impact on any segment
  of the public.”); see also Anderson v. Butz, 

, 463
  (9th Cir. 1977) (finding that a provision in the Food Stamp
  Certification Handbook announced a change in agency
  practice and therefore needed to be published under section
  552(a)(1)).

       16  See Hyatt v. U.S. Patent & Trademark Office, 

, 1372 (Fed. Cir. 2018); Mendoza v. Perez, 

, 1018 (D.C. Cir. 2014) (“The APA makes review-
  able ‘final agency action.’ . . . Because an agency’s renewal
  of an earlier decision does not alter the status quo, it does
  not restart the statute of limitations.”).
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  NOVA   v. SECRETARY OF VETERANS AFFAIRS                       37



  provision is reviewable under section 502, this court has
  jurisdiction over NOVA’s amended petition.
              V. Timeliness of NOVA’s Challenge
      Because we find that we have section 502 jurisdiction
  over NOVA’s petition for review, we must determine
  whether NOVA’s challenge is timely.
       Section 502 “does not contain its own statute of limita-
  tions.” Preminger v. Sec’y of Veterans Affs., 

,
  1307 (Fed. Cir. 2008). Under section 2401 of title 28 of the
  United States Code, “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.”
  28 U.S.C. § 2401(a). In Preminger, this court held that the
  six-year statute of limitations in § 2401(a) applies to pre-
  enforcement challenges under 38 U.S.C. § 

. In reaching this conclusion, we noted that our sister
  circuits have consistently found that actions for judicial re-
  view under the APA are subject to the limitations period in
  section 2401(a).

that section 2401 applies to
  this case but argues that our local rule concurrently short-
  ens the time to file a petition for review and “governs sec-
  tion 502 actions in tandem with section 2401(a).” Resp’t
  Br. 51.
      Local Rule 15(f) states that:
      A petition for judicial review of an action of the Sec-
      retary 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.
  Fed. Cir. R. 15(f).
     Preminger did not address the apparent conflict be-
  tween the 60-day limitations period set by Federal Circuit
  Rule 15(f) and the six-year limitations period set by
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  38                   NOVA   v. SECRETARY OF VETERANS AFFAIRS



  Congress in section 2401(a). But, in earlier cases we have
  held that petitioners must comply with the 60-day limit in
  Federal Circuit Rule 47.12(a). See, e.g., Jackson v. Brown,
  

, 592 (Fed. Cir. 1995) (“[A] request for Section
  502 review in this court had to be filed within 60 days of
  the issuance” of the challenged VA action); Samudio v.
  Sec’y, Dep’t of Veterans Affairs, 

(Table), 

(Fed. Cir. 1993) (unpublished); Nuevas v. Sec’y
  of Dep’t of Veterans Affairs, 

(Table), 

(Fed. Cir. 1993) (unpublished).
      Thus, the question before us is whether this court can
  promulgate rules setting a shorter limitations period than
  the applicable statutory limitations period set by Congress.
  This question has significance for this case. The 2015 In-
  terpretive Guidance was published in the Federal Register
  on July 16, 2015, and the Knee Replacement Manual pro-
  vision was promulgated in November 2016. The Knee
  Joint Stability Rule was promulgated in April 2018. There-
  fore, NOVA’s petition for review was brought well within
  section 2401(a)’s six-year limitation period. However,
  NOVA’s petition was brought long after this court’s 60-day
  deadline had passed. NOVA’s challenge is timely only if
  this court’s rule is unenforceable as inconsistent with sec-
  tion 2401(a).
      We find that 28 U.S.C. § 2401(a) alone governs the time
  limit for bringing pre-enforcement claims under Section
  502. This court has power to promulgate rules for conduct-
  ing court business. 28 U.S.C. § 2071(a). However, “[s]uch
  rules shall be consistent with Acts of Congress.”

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.
      The courts of appeals have uniformly rejected district
  court rules setting a time limit inconsistent with the Fed-
  eral Rules of Civil Procedure. See, e.g., Paluch v. Sec’y Pa.
  Dep’t Corr., 442 F. App’x 690, 692–93 (3d Cir. 2011)
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  NOVA   v. SECRETARY OF VETERANS AFFAIRS                      39



  (finding that district court’s local rule could not impose a
  14-day period to file a motion to alter or amend the judg-
  ment when Federal Rule of Civil Procedure 59(e) allowed
  28 days to file such a motion); Jackson v. Crosby, 

, 1296 (11th Cir. 2004) (finding that a district courts
  local rule could not provide three extra days for filing a
  Rule 59 motion because this was inconsistent with Fed. R.
  Civ. P. Rule 6(b)’s “ban on extending the rule’s ten-day lim-
  itations period”); In re Paoli R.R. Yard PCB Litig., 

, 459 (3d Cir. 2000) (finding that a district court local
  rule permitting challenges to court costs within five days
  “after notice of such taxation” was “a nullity” “insofar as [it]
  conflicted with Rule 54(d)(1)”). 17



      17  The government relies on cases declining to apply
  the six-year limitations period of section 2401(a) to Age
  Discrimination in Employment Act (“ADEA”) claims to
  support its argument that “[c]ourts have rejected the con-
  tention that when section 2401(a) applies in the absence of
  a specific statutory time limit, it provides the only applica-
  ble time limit.” Resp’t Br. 52.
      However, these cases relied on the logical inconsistency
  that would result from applying the six-year limitation pe-
  riod from section 2401(a) to ADEA claims against the fed-
  eral government in light of the 90-day statutory limitation
  period provided for ADEA claims against a private em-
  ployer. See Price v. Bernanke, 

, 388 (D.C. Cir.
  2006) (stating that applying section 2401 “would lead to the
  anomalous result that a 90-day statute of limitations would
  apply for claims brought against a private employer under
  the ADEA, . . . but a period of six years would apply for
  claims against the federal government”); Edwards v.
  Shalala, 

, 605 (11th Cir. 1995) (“Further, it is
  inconsistent to suggest that Congress would allow a two to
  three year statute of limitations for a claim brought against
  a private employer, but provide a period up to six years for
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  40                   NOVA   v. SECRETARY OF VETERANS AFFAIRS



       In contexts other than that of court rules adopted un-
  der 28 U.S.C. § 2071, the Supreme Court has disallowed
  court departures from statutory limits. In Bowles v. Rus-
  sell, the Supreme Court held that a district court order may
  not extend the jurisdictional time limit for filing a notice of
  appeal beyond the statutory time limit for filing such an
  appeal. 

, 206–07 (2007) (finding that a peti-
  tioner’s notice of appeal was untimely when filed within the
  17-day period allowed by the district court’s order but after
  the 14-day period allowed by Rule 4(a)(6) and 28 U.S.C
  § 2107(c)). And the Supreme Court has held that courts do
  not have authority to “jettison Congress’ judgment on the
  timeliness of suit” by truncating a statutory limitations pe-
  riod. Petrella v. Metro-Goldwyn-Mayer, 

, 667
  (2014) (rejecting the application of laches to bar a copyright
  claim brought within the statutory limitations period); see
  also SCA Hygiene Prods. Aktiebolag v. First Quality Baby
  Prods., LLC, 

, 960–61 (2017) (holding that
  laches cannot be invoked as a defense against a claim for
  patent infringement damages brought within the 35 U.S.C.
  § 286 six-year limitations period);

960 (“When Con-
  gress enacts a statute of limitations, it speaks directly to
  the issue of timeliness and provides a rule for determining
  whether a claim is timely enough to permit relief.”).
      The government seeks to distinguish Petrella and SCA
  Hygiene (and presumably the other cases as well) on the
  ground that they dealt with statutory time limits specific
  to a particular area of the law, while “section 2401(a) is not
  part of the VJRA and, therefore, does not ‘reflect[] a



  claims brought against the government.”); Lavery v.
  Marsh, 

, 1026–27 (1st Cir. 1990) (“‘[I]t would
  indeed be anomalous to hold . . . that a federal catch-all
  provision governs with respect to ADEA claims when there
  are available other relevant statutory provisions more spe-
  cifically geared to the claim brought.’”).
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  NOVA   v. SECRETARY OF VETERANS AFFAIRS                     41



  congressional decision’ concerning section 502 claims au-
  thorized by the VJRA.” Resp’t Br. 55. The government’s
  argument is unavailing. Congress “kn[o]w[s] how to im-
  pose” a more limited statutory time limit on challenges to
  agency action “when it [chooses] to do so.” Cent. Bank of
  Denver, N.A. v. First Interstate Bank of Denver, N.A., 

, 176–77 (1994); see also State Farm Fire & Cas.
  Co. v. U.S. ex rel. Rigsby, 

, 444 (2016) (“Again,
  the FCA’s structure shows that Congress knew how to
  draft the kind of statutory language that petitioner seeks
  to read into § 3730(b)(2).”); Dep’t of Homeland Sec. v. Mac-
  Lean, 

, 394 (2015) (“As those examples show,
  Congress knew how to distinguish between regulations
  that had the force and effect of law and those that did not,
  but chose not to do so in Section 2302(b)(8)(A).”).
      For example, the Hobbs Act, which governs judicial re-
  view of actions by several agencies including the Federal
  Communication Commission, Department of Agriculture,
  and Department of Transportation, expressly includes a
  time limit on judicial review. See 28 U.S.C. § 2344 (provid-
  ing a 60-day period for review of final agency orders under
  the Hobbs Act). Numerous other statutes similarly provide
  time limits for judicial review and depart from the six-year
  statute of limitations under section 2401.                See
  2 U.S.C. §1407(c)(3) (providing a 90-day deadline for chal-
  lenges to final decision of the Office of Compliance);
  7 U.S.C. § 2461 (providing a 60-day window for challenges
  to actions by the Secretary of Agriculture); 15 U.S.C. § 2060
  (providing a 60-day window for challenging consumer prod-
  uct safety rules); 15 U.S.C. § 2618 (providing a 60-day pe-
  riod to challenge rules related to the control of toxic
  substances); 28 U.S.C. § 1296(b) (providing a 30-day dead-
  line for review of actions of the Secretary of Labor);
  30 U.S.C. § 1276(a)(1) (providing a 60-day period for review
  of certain Environmental Protection Agency actions re-
  lated to coal mining); 33 U.S.C. § 2717(a) (providing a
  90-day period of review for challenges to regulations
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  42                   NOVA   v. SECRETARY OF VETERANS AFFAIRS



  promulgated under the Oil Pollution Act of 1990); 41 U.S.C.
  § 7107(a)(1) (providing a 120-day deadline for challenges to
  decisions by the Board of Contract Appeals); 42 U.S.C.
  § 7607(b)(1) (providing a 60-day period for challenging En-
  vironmental Protection Agency action under the Clean Air
  Act).
      The fact that Congress chose not to impose such a limit
  in section 502 is powerful evidence that Congress intended
  section 2401(a) to govern. See, e.g., Pinter v. Dahl, 

, 650 (1988) (finding that a statute’s “failure to im-
  pose express liability for mere participation in unlawful
  sales transactions suggests that Congress did not intend
  that the section impose” this liability because, as shown by
  other statutes imposing this kind of liability, “[w]hen Con-
  gress wished to create such liability, it had little trouble
  doing so.”); see also Animal Legal Def. Fund v. U.S. Dep’t of
  Agric., 

, 1217 (11th Cir. 2015) (“Where Con-
  gress knows how to say something but chooses not to, its
  silence is controlling.”).
      The government also argues that Congress has ap-
  proved of the “constraints imposed by Rule 15(f),” Resp’t
  Br. 54, because a senate report to the Veterans’ Benefits
  Improvement Act of 2008 acknowledged Rule 15(f)’s 60-day
  limit when discussing legislation allowing section 502 chal-
  lenges to VA’s schedule of ratings, see S. Rep. No. 110-449,
  at 14 (2008). However, this kind of offhand statement,
  made in connection with subsequent legislation, is not a re-
  liable indicator of Congress’s intent when drafting section
  502. See Bostock v. Clayton Cty., 

, 1747
  (2020) (“Arguments based on subsequent legislative his-
  tory . . . should not be taken seriously, not even in a foot-
  note.” (quoting Sullivan v. Finkelstein, 

, 632
  (1990) (Scalia, J., concurring))).
      Although Congress may wish to amend section 502 to
  incorporate a shorter time limit on bringing pre-enforce-
  ment claims, that decision is for Congress, and not this
Case: 20-1321     Document: 109      Page: 43   Filed: 12/08/2020




  NOVA   v. SECRETARY OF VETERANS AFFAIRS                   43



  court, to make. Rule 15(f)’s 60-day limit is invalid, and pe-
  titioner’s petition is timely because it was filed within six
  years of the challenged agency action.
                          CONCLUSION
      NOVA has associational standing to challenge both the
  Knee Joint Stability Rule and Knee Replacement Rule.
  This court has jurisdiction over NOVA’s challenge to the
  Knee Joint Stability Rule under 38 U.S.C. § 502. We also
  have jurisdiction to review the Knee Replacement Rule.
  However, we refer to the panel whether the Rule is review-
  able as a Manual provision or as a Federal Register publi-
  cation. The challenged Rules constitute final agency
  action. Finally, we hold that Federal Circuit Rule 47.12(a),
  now republished at Rule 15(f), is invalid as inconsistent
  with 28 U.S.C. § 2401(a) and the petition is timely.
      The petition for review is therefore granted, and the
  case is referred to a panel for disposition on the merits.
                          GRANTED
                             COSTS
      No costs.