NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

05-7193 THE VETERANS LAW GROUP, (and similarly sit uated petitioners), Petitioners,

v. SECRETARY OF VETERANS AFFAIRS, Respondent.

_________________________ DECIDED: July 13, 2006

_________________________ Before MICHEL, Chief Judge , NEWMAN and MAYER, Circuit Judges

. MICHEL, Chief Judge

. The Veterans Law Group (“VLG”) petitions for judicial review of a letter issued by the Veterans Benefits Administration (“VBA”) of the Department of Veterans Affairs (“DVA”) on June 14, 2005, VBA Letter 20-05-35 (“Letter”). VLG asserts that the Letter constitutes a “rule or regulation” of the DVA within the meaning of 38 U.S.C. § 502, which grants this court jurisdiction to revi ew DVA regulations. VLG contends that as a putative regulation, the Letter was void be cause it had not been subjected to public notice and comment under 5 U.S. C. § 553 before its issuance and that because of its content and alleged purpose to impede grants of benefits, it violated due process. VLGasks us to invalidate t he Letter and block is suance of a successor le tter. The Secretar y of Veterans Affairs responds that the issue ra ised in this petition is moot as the Letter was withdr awn or is not ripe as no success or letter ever issued and, in any event, that VLG lacks standing to bring this petition bec ause no c lient was affe cted. Because we hold that this petition for review properly rais es only an issue that is moot, we dismiss

. Because we dismis s for mootness, we need n o t and do not address ripeness or standing. I. In Decem ber 2004, the Chic ago Sun-T i mes published an article regarding alle ged dis parate treatment of Illinois veter ans by the DVA, in particular that Illino i s veterans received disability benefits in fewer cases than veterans in other states. The DVA then conducted a study of awards of benefit s to veterans in different states, releasing a May 2005 report ent itled “Review of State Va riances in VA Disability Compensat ion Benefit s.” The report suggested t hat veterans in other states were too often receiving benefits, not that Illinois vet e rans were too se ldo m receivin g ben e fits. The report focused on benefits for three servic e-connected dis ability categories: (1) post-traumatic stress disorder (“PTSD”), (2) 100 percent disability, and (3) total disabilit y awards bas ed on indiv i dual unem ployability (“IU”). In respons e to this report, on June 14, 2005, the VBA issued Let ter 20-05-35 to address this problem. This Letter instructed that grants, but not denials, of benefits for PTSD, 100 percent disability, and total disa bility awards based on IU require a “concurring second signature” from a “decision maker of equal or greater authority” “to serve as a check against inaccurate ratings and unacceptable variat ion in judgment.”

05-7193 2The stated purpose of this second signatur e requirement was to ensure that: (1) “all applicable statutes, r egulations, and procedures have been followed,” (2) “the decis i on is properly supported by the facts of record ,” and (3) “the decision itself is adequately explained.” Lane Evans, Ranking (Democratic) Memb er of the Committee on Veterans’ Affairs of the United States House of Representatives , wrot e to the Secretary of the DVA on J une 21, 2005, stating that this requirement was unfair becaus e claims for PTSD that are denied should equally requir e a second signature to ensur e that thes e veterans are not being unfairly denied. Ev ans’ letter only addressed denials for PTSD. On July 20, 2005, the Secretary wrote Repr esentative Evans that the Letter had been withdrawn on J une 20, six days after its i ssuance. His letter also said that the VBA “inten d[s]” in the near future to issue a nother letter in which a second s i gnature for the same three grants discussed above would also be required and in which a second signature for the denial of benefits for PTSD would be required. Such a letter, howeve r , was never issued. On August 24, 2005, and September 7, 2005, VLG wrote to Renee Szy bala, Director of Compensation and Pension Services for the VBA, to inquire whether VBA Letter 20-05-35 had been withdrawn from all Regional Offices. S zybala responded via e-mail that it had been. On September 20, 2005, VLG 1 petition e d this Court for judicia l revie w of this Letter and requested that we hold that: (1) the Letter was void because, prior t o

1 According t o its web s i te and its brief, The Veterans Law Group is a law firm. The web site states that The Ve terans Law Group is “[ a] group of lawyers

05-7193 3issuance, it was not subject to public notic e and comment procedures as required, and (2) the Letter, due to its content s, violated due process.
II. VLG argues that “voluntary cessation” of the policy stated by the Letter does not moot this petition beca u se the VBA could rein stitute the second sig nature policy at any time, such that VLG’s objections to these policies would then become “recurring claims evading review.” Furthermo re, V L G asserts that the changes in a future second signature policy as outlined in the letter to Representative Evans would only ameliorate, but not eliminate, the problem because it only provides for second signatures for denial of PTSD benefits, but not for denials of 100 % disability or 100% IU. VLG therefore contends that, because all objec tionable aspec ts of the second si gnature policy would not be removed in an expected new letter, this petition is not moot. The government responds that the petition is indeed moot because the Letter was withdrawn and because there is “no reasonable expectation” that the second signature policy in its form in the Letter will ever be reinstituted.
A. “A federal court is without power to dec ide moot questions or to give advisory opinions which cannot affect the rights of the litigants in the case before it.” St. Pierre v

. United States , 319 U.S. 41, 42 (1943). “[A] case is moot when the issues presented are no longer ‘live,.” County of Los Angeles v. Davis , 440 U.S. 625, 631 (1979). However, “as a general rule, ‘voluntary cessation of allegedly illegal conduct does not deprive the dedicated to securing benefits for disabl ed Veterans and their dependents.” T h e Veterans Law Group, http://www.veteransla w.com (last visited May 8, 2006). Similarly, its Petition for Review states that “[ p]etitioners are a law firm. . . .”

05-7193 4tribunal of power to hear and determine the case , i.e., does not make the case moot.’” Id. On the other hand, jurisdiction “may abate if the case becomes moot because . . . it can be said with assurance that ‘there is no r easonable expectation .

. .’ that the alleged violation will recur.” Id. (citations omitted). The government maintains that the Secretary’s July 20, 2005 letter to Represent ative Evans stating th at the “Under Secretary ther efore withdrew his directive on June 20” and informing Evans that “[w]e intend to issue a new directive in the near future that requires a concurring second si gnature on the following cases,” including the three grants discussed above, but only “ denials of service connection” for P T SD shows there is no reasonable expectati on that the second signatur e requirement of the June 14, 2005 Letter will be reinstated. (Emphasis added.) We agree. While VLG argues that the VBA merely “purports” to withdraw the June 14, 2005 Le tter, it fails to argue, much less prove, that there is a reasonable expectation of recurrence of the second signature requirement of the VBA June 14, 2005 Letter. Indeed, VLG agrees the Secretary’s Letter is di spositive.
B.
The most relevant cas e cited by VLG on this point is Davis . In Davis , Davis alleged that a written civil service ex amination used sinc e 1969 was racially discriminat ory. In 1971, t he County of Los Angeles r eplaced that test with one specifically devised and conceded not to be racially dis c ri minatory. Suit challenging the old examination was not filed until 1977. The Supreme Court held that the case was moot because the original testing was “unlik ely to recur,” given that: (1 ) the written examination objected to was no longer used, and (2) th e county instituted a new test

05-7193 5and method of screening applicants that was not challenged. Here, the June 14, 2005 second signature requirement was withdrawn in less t han one week. A new second signature requirement has not been instituted to replace the June 14, 2005 one. A new letter was predicted that addresses the concer ns of Congress, as stated in Secretary Nicho lson ’s letter. Dav i s deals with ongoing conduct that was allegedly unconstitutional. This petition deals with a si ngle act – issuance of the Letter which was withdrawn before any conduct occurred. Even assuming Davis applies here, its requirements are met. Thus, we can reasonably conc lude by analogy to Davis that the same second signatur e requirement will not like l y recur. On reply, V L G states that the “rev isions set forth in the Secretary’s correspondence [to Evans] are a reliable, if not compelling, indication of what to expect in the near future.” Yet this misses the point. The reasonable expectation test in voluntary cessation cases asks whether there is a reasonable expectation that the harm from the policy at issue – not from a hypothetical future policy – will recur. “The case has therefore lost its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinion s on abstract propositions of law.” Hall v. Beals , 396 U.S. 45, 48 (1969).
C. The government also states that our revi ew of a proposed new Letter is not ripe because a new directive with a different se cond signat ure requirement has not issued and may not issue. V L G does not reply to the ripenes s argument. In replying to the mootness argument, VLG can charitably be deem ed, in effect, to reply to the ripeness argument by countering that t he content of a possible future second signature directive

05-7193 6is known because the Secretary stated in his letter to E v ans t hat it “intend[ed]” to issue a new second signatur e directive that incl uded a second signature requirement for denia l s of PTSD, as requested b y Evans in Evans ’ lett er to the VBA. We agree that our review of a hypothetical second Letter is not ri pe.
“A court should dismis s a case for lack of ripeness when the case is abstract or hypothetical. . . . A case is ripe if any remaining questions are purely legal ones; conversely, a case is not ripe if furt her factual developm ent is required.” Roth e , 413 F.3d at 1335. A possible future second sign ature requirement of unknown content – even if that content is antic ipated or suggested – is hypot hetical. Indeed, the very issuance of such a directive is hypothetical . Moreover, as the government points out, “the issues raised by [VLG] . . . may very well be addres sed in such a future circular, thereby negating any need for a challenge.” Thus , the issue of a possible future second signature requirement is not ripe.
III. Because the Letter was withdr awn six days after its issuance, no replace m ent letter has issued in the intervening year, and no second signature policy of any kind has been applied to any veteran, there is no evidenc e whatsoever indicating that there is a reasonable expectation of recurrence of the conduct ordered by the withdrawn Letter. Therefore, this petition is dis m issed as moot. We further decline t o opine on a hypothetical future letter for lack of ripeness.

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