Blue Water Navy Vietnam Veterans Ass'n v. McDonald

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 10, 2016 Decided July 29, 2016

No. 15-5109

BLUE WATER NAVY VIETNAM VETERANS ASSOCIATION, INC.

AND MILITARY-VETERANS ADVOCACY, INC.,

APPELLANTS

v.

ROBERT A. MCDONALD, IN HIS OFFICIAL CAPACITY AS

SECRETARY OF VETERANS AFFAIRS,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-cv-01187)

John B. Wells argued the cause and filed the briefs for

appellants.

William E. Havemann, Attorney, U.S. Department of

Justice, argued the cause for appellee. With him on the brief

were Benjamin C. Mizer, Principal Deputy Assistant Attorney

General, and Charles W. Scarborough, Attorney.

Before: HENDERSON, GRIFFITH, and PILLARD, Circuit

Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

2

GRIFFITH, Circuit Judge: Blue Water Navy Vietnam

Veterans Association and Military-Veterans Advocacy appeal

the district court’s dismissal of their complaint for lack of

subject matter jurisdiction. Because Congress stripped the

district court of jurisdiction over their claims, we affirm.

I

In the 1960s and early 1970s, the United States used an

herbicide known as Agent Orange to clear heavily forested

areas in Vietnam. See S. REP. NO. 100-439, at 64 (1988).

Concerns about the long-term health effects of exposure to

Agent Orange led Congress to pass the Agent Orange Act of

1991, Pub. L. No. 102-4, 105 Stat. 11 (codified in scattered

sections of Title 38 of the U.S. Code). The Act instructs the

Department of Veterans Affairs (VA) to presume that

veterans who “served in the Republic of Vietnam” between

January 9, 1962, and May 7, 1975, were exposed to Agent

Orange. 38 U.S.C. § 1116(a)(1). The VA’s regulations track

this statutory language. See 38 C.F.R. § 3.307(a)(6)(iii)

(providing that veterans who “served in the Republic of

Vietnam” during the same window are “presumed to have

been exposed” to Agent Orange and similar herbicides). If

these veterans develop certain diseases linked to Agent

Orange, this presumption allows them to receive disability

compensation without proving they were exposed to the

herbicide during their military service. See id.; Haas v. Peake,

525 F.3d 1168, 1172 (Fed. Cir. 2008).

The VA interprets the phrase “served in the Republic of

Vietnam” to exclude veterans who served on ships offshore

without entering inland waterways or setting foot on

Vietnamese soil. VA Op. Gen. Counsel Prec. 27-97, at 3-5

(1997); see Disease Associated with Exposure to Certain

Herbicide Agents: Type 2 Diabetes, 66 Fed. Reg. 23,166,

3

23,166 (May 8, 2001). Instead, to be considered eligible for

certain benefits, these “blue-water” veterans must prove on a

case-by-case basis that they were exposed to Agent Orange

during their military service—an extremely difficult task, see

LeFevre v. Sec’y, Dep’t of Veterans Affairs, 66 F.3d 1191,

1197 (Fed. Cir. 1995) (“Congress [established presumptions

of exposure] because it recognized that ordinarily it would be

impossible for an individual veteran to establish that his

disease resulted from exposure to herbicides in Vietnam.”).

The VA articulated its policy denying the presumption of

exposure to blue-water veterans in a 1997 opinion by its

General Counsel, see VA Op. Gen. Counsel Prec. 27-97,

which was precedential and therefore binding upon the

agency, see 38 C.F.R. § 14.507(b). And it reiterated its stance

in, among other documents, an agency policy manual. The

agency then declined to reconsider the policy in a 2012 notice

published in the Federal Register, see Presumption of

Exposure to Herbicides for Blue Water Navy Vietnam

Veterans Not Supported, 77 Fed. Reg. 76,170 (Dec. 26,

2012), and again in a 2013 letter to Military-Veterans

Advocacy (“2013 Denial Letter”). The VA treated its 2013

Denial Letter as a denial of a request for rulemaking under 5

U.S.C. § 553(e).

Blue Water Navy Vietnam Veterans Association and

Military-Veterans Advocacy (“Appellants”) challenged the

agency’s policy in district court. They argued that the VA’s

policy was arbitrary and capricious and otherwise unlawful

under the Administrative Procedure Act, see 5 U.S.C.

§ 706(2). They asked the district court to issue a declaratory

judgment that the policy violated the APA and to order

injunctive and mandamus relief to prevent the VA from

denying the presumption of Agent Orange exposure to blue-

water veterans. The district court dismissed the suit for lack of

subject matter jurisdiction, citing 38 U.S.C. § 511(a), which

4

bars review in district court of VA decisions “under a law that

affects the provision of” veterans benefits.

This appeal followed. We have jurisdiction under 28

U.S.C. § 1291, and we review the district court’s dismissal de

novo. See Munsell v. Dep’t of Agric., 509 F.3d 572, 578 (D.C.

Cir. 2007). We affirm.

II

We start from the presumption that agency action is

reviewable. See Bowen v. Mich. Acad. of Family Physicians,

476 U.S. 667, 672-73 (1986). But this presumption can be

overcome by “specific language” that is “a reliable indicator

of congressional intent” that courts lack the power to hear a

challenge to agency action. Block v. Cmty. Nutrition Inst., 467

U.S. 340, 349 (1984). We permit such a challenge to proceed

“where substantial doubt about the congressional intent

exists.” El Paso Nat. Gas Co. v. United States, 632 F.3d 1272,

1276 (D.C. Cir. 2011) (quoting Bowen, 476 U.S. at 672 n.3).

Here, we have no doubt about Congress’s intent.

A

Section 511(a) clearly bars the district court from

adjudicating Appellants’ challenge. In full, that provision

reads:

The [VA] Secretary shall decide all questions of law and

fact necessary to a decision by the Secretary under a law

that affects the provision of benefits by the Secretary to

veterans or the dependents or survivors of veterans.

Subject to [enumerated exceptions], the decision of the

Secretary as to any such question shall be final and

conclusive and may not be reviewed by any other official

5

or by any court, whether by an action in the nature of

mandamus or otherwise.

38 U.S.C. § 511(a) (emphasis added). One enumerated

exception to this bar allows litigants to appeal individual

benefits determinations through the VA’s administrative

machinery and ultimately to the Federal Circuit. See id.

§ 511(b)(4); see also id. §§ 7104, 7252, 7261, 7292. Another

exception permits direct review of notice-and-comment

rulemakings and certain other VA actions of “general”

applicability exclusively in the Federal Circuit. See id.

§ 511(b)(1); see also id. § 502 (cross-referencing 5 U.S.C.

§§ 552(a)(1), 553). Notably, both of these routes bypass

district courts.

We have interpreted section 511(a) to “preclude[] judicial

review in [district] courts of VA decisions affecting the

provision of veterans’ benefits.” Price v. United States, 228

F.3d 420, 421 (D.C. Cir. 2000) (per curiam). Or to put it

another way, review in the district courts is barred when

“underlying the claim is an allegation that the VA

unjustifiably denied [] a veterans’ benefit.” Id.; see also

Broudy v. Mather, 460 F.3d 106, 115 (D.C. Cir. 2006)

(explaining that section 511(a) forbids district court “review

[of] the Secretary’s actual decision[] that veterans were not

entitled to the benefits they sought” (internal quotation marks

omitted)); Thomas v. Principi, 394 F.3d 970, 974-75 (D.C.

Cir. 2005) (recognizing that section 511(a) precludes district

court review when a “denial of benefits underlies” the

plaintiff’s allegations (internal quotation marks and brackets

omitted)).

Appellants have not established that the district court has

jurisdiction to adjudicate their claims. See Khadr v. United

States, 529 F.3d 1112, 1115 (D.C. Cir. 2008) (“[T]he party

6

claiming subject matter jurisdiction . . . has the burden to

demonstrate that it exists.”). They undoubtedly challenge a

decision “affecting the provision of veterans’ benefits,” Price,

228 F.3d at 421, because they seek review of the validity of a

VA policy that leads directly to the denial of certain benefits

for most, if not all, of the veterans it affects, see LeFevre, 66

F.3d at 1197 (recognizing that it is nearly “impossible” for

veterans to prove exposure on a case-by-case basis).

Indeed, Appellants do not dispute that a “denial of

benefits underlies” their allegations. Thomas, 394 F.3d at 974-

75 (internal quotation marks and brackets omitted). Nor do

they contest that their challenge would require the district

court to adjudicate questions decided by the Secretary that are

“necessary” to the Secretary’s decision to deny the Agent

Orange presumption. 38 U.S.C. § 511(a). Instead, Appellants

argue that despite its broad language, section 511(a) bars the

district court from hearing only challenges to individual

benefits determinations—not challenges alleging that the VA

improperly interpreted its statutory and regulatory obligations.

But section 511(a) is not so narrow. Not only does the

text of section 511 make no mention of such a limitation, but

its structure belies Appellants’ assertion. As the district court

observed, one of the exceptions to section 511(a)’s bar

permits review exclusively in the Federal Circuit of certain

VA actions of general applicability, see 38 U.S.C.

§ 511(b)(1), including “substantive rules of general

applicability,” LeFevre, 66 F.3d at 1196 (explaining that the

Federal Circuit “may directly review” such actions under 38

U.S.C. § 502). Congress would have had no need to exempt

agency actions of “general” applicability from the bar to

judicial review set out in section 511(a) if it understood that

bar to encompass only VA decisions regarding individual

benefits determinations.

7

Appellants point to different statutory provisions to

support their argument. In 38 U.S.C. §§ 7104 and 7105,

Congress provided that an “appellant”—defined by regulation

as a “claimant,” see 38 C.F.R. § 20.3(c)—may appeal to the

Board of Veterans’ Appeals “questions in a matter which

under section 511(a) of this title is subject to decision by the

Secretary.” Appellants note that “claimant” refers to an

individual veteran who submits benefits claims. We take

Appellants to argue that Congress instructed in these sections

that the only “matter[s] . . . subject to decision by the

Secretary” under section 511(a) are those involving individual

claimants. But we will not read the word “only” into the

statute “when Congress has left it out.” Keene Corp. v. United

States, 508 U.S. 200, 208 (1993). These provisions merely

envision that some “matter[s] . . . subject to decision by the

Secretary” under section 511(a) will involve individual

claimants. And this reading is consistent with language in

section 511(a) that contemplates appeal of individual benefits

determinations. See 38 U.S.C. § 511(a) (“Subject to [the

exceptions in] subsection (b), the decision of the Secretary . . .

shall be final[.]” (emphasis added)), (b)(4) (excepting appeals

of individual determinations).

Appellants also point to a number of cases that, in their

view, show that section 511(a) bars review in the district court

only of individual benefits determinations. For example, they

rely on Broudy v. Mather, where we explained that section

511(a) “does not give the VA exclusive jurisdiction to

construe laws affecting the provision of veterans benefits or to

consider all issues that might somehow touch upon whether

someone receives veterans benefits. Rather, it simply gives

the VA authority to consider such questions when making a

decision about benefits . . . and . . . prevents district courts

from ‘review[ing]’ the Secretary’s decision once made.” 460

F.3d at 112. According to Appellants, this language means

8

that district courts are barred from reviewing only individual

benefits determinations. We disagree. To the extent our

opinion in Broudy might be read to suggest that section 511(a)

bars review only of individual determinations, we take this

occasion to clarify that opinion’s scope. Broudy presented us

with no opportunity to consider whether section 511(a)

applies to VA policies of general applicability, such as

regulations or interpretations. Instead, we examined whether

the Secretary had actually decided certain questions when

denying the plaintiffs’ claims in individual determinations. Id.

at 110, 114. In other words, Broudy focused on the

requirement of a “decision of the Secretary,” and not on what

kinds of secretarial decisions fall within section 511(a)’s bar.

It thus presents no obstacle to affirming the district court’s

dismissal here.

Appellants further contend that if we affirm the district

court’s dismissal, we will “do precisely what the Broudy court

seemed to warn against: give the VA exclusive jurisdiction to

construe laws affecting the provision of veterans benefits.”

Appellants’ Br. 18. This concern is misplaced. We recognized

in Broudy that section 511(a) does not confer such exclusive

jurisdiction upon the VA; rather, it merely bars review in the

district court of decisions that the Secretary has actually

made. 460 F.3d at 112. Nothing in this opinion changes that

conclusion.

Appellants next urge that Thomas v. Principi, 394 F.3d

970 (D.C. Cir. 2005), Anestis v. United States, 749 F.3d 520

(6th Cir. 2014), and Veterans for Common Sense v. Shinseki,

678 F.3d 1013 (9th Cir. 2012) (en banc), show that actions

“that d[o] not require the individual determination of

benefit[s]” can be brought in district court. Appellants’ Br. 16.

To be sure, these cases explained that section 511(a)

precludes judicial review of individual benefits

9

determinations in district court. But they neither held nor

suggested that section 511(a) bars review only of individual

determinations. Rather, they referred to individual benefits

determinations simply because in each case, the VA argued

that the petitioner was challenging such a determination and

that judicial review was therefore barred.

In Thomas, for instance, we agreed with the VA that

section 511(a) precluded challenges to the adequacy of

medical services provided to the plaintiff. 394 F.3d at 975.

These claims required the district court to “decide whether

Thomas was entitled to medical treatment in the face of a

prior VA determination that he was not.” Broudy, 460 F.3d at

115 (discussing Thomas). But we reached a different

conclusion as to Thomas’s claims that the VA had wrongfully

failed to inform him of his diagnosis. The “questions of law

and fact” relevant to those claims dealt with “whether the

alleged withholding of the diagnosis state[d] a tort claim, and

resolution of those questions [wa]s not ‘necessary’ to the

benefits determination.” Thomas, 394 F.3d at 974. In other

words, because “no denial of benefits ‘underl[ay]’ Thomas’s

failure-to-inform allegations,” section 511(a) did not prevent

him from advancing those claims. Id. at 974-75. Thus, the

decisive factor in Thomas was not whether the district court

would have to review an individual benefits determination,

but whether it would have to review a benefits determination

at all. Accord Anestis, 749 F.3d at 527 (holding that the tort

claims at issue were “wholly independent[]” of any benefits

determination).

Similarly, in Veterans for Common Sense, the Ninth

Circuit did not interpret section 511(a) as barring review only

of individual benefits determinations. There, the court

concluded that a challenge by a veterans’ group to system-

wide delays in benefits processing was barred under section

10

511(a) because it would require the district court to review

thousands of individual benefits determinations. Veterans for

Common Sense, 678 F.3d at 1027, 1030. But in reaching this

conclusion, the Ninth Circuit emphasized the breadth of

section 511(a)’s preclusion, concluding that it “extends not

only to cases where adjudicating veterans’ claims requires the

district court to determine whether the VA acted properly in

handling a veteran’s request for benefits, but also to those

decisions that may affect such cases.” Id. at 1025 (emphasis

added) (citing Thomas, 394 F.3d at 974; Broudy, 460 F.3d at

114-15). Far from strengthening the argument that section

511(a) applies only to individual claims, this language

suggests just the opposite: that under section 511(a), the

district court cannot review a VA policy, like the one at issue

here, that “affects” veterans’ requests for benefits.

B

Appellants raise three additional counterarguments, but

none succeeds.

First, they contend that even if the district court lacked

jurisdiction to order the VA to rescind its policy, it had

jurisdiction under the Declaratory Judgment Act, 28 U.S.C.

§ 2201, to declare the policy arbitrary and capricious. But the

language of both section 511(a) and the Declaratory Judgment

Act forecloses this argument. Section 511(a) bars judicial

review “by an action in the nature of mandamus or

otherwise.” 38 U.S.C. § 511(a). Appellants fail to explain why

this broad language does not encompass a declaratory

judgment. And the Declaratory Judgment Act permits a

district court to issue declaratory judgments only “[i]n a case

of actual controversy within its jurisdiction.” 28 U.S.C.

§ 2201; see also 14 CHARLES ALAN WRIGHT et al., FEDERAL

PRACTICE AND PROCEDURE § 3655 (4th ed. 2016) (“Resort to

11

the Declaratory Judgment Act will not fill a gap in subject

matter jurisdiction[.]”). Because Appellants’ challenge is not

within the district court’s jurisdiction, the district court lacked

power to issue a declaratory judgment just as surely as it

lacked power to order the VA to act.

Second, Appellants argue that the district court’s decision

leaves veterans without a remedy, in violation of the

command of Marbury v. Madison, 5 U.S. (1 Cranch) 137

(1803), that individuals have a “right . . . to claim the

protection of the laws” when they “receive[] an injury.” Id. at

(1 Cranch) 163. According to Appellants, the Administrative

Procedure Act provides a “default safety net” in such cases.

Reply Br. 17. 1 But it is not true that Appellants, or the

veterans they represent, lack a remedy. To the contrary,

section 511 leaves open several routes for veterans or

organizations to challenge the VA’s denial of the Agent

Orange presumption.

For one, an exception to section 511(a)’s bar permits

litigants to petition for direct review in the Federal Circuit—

and only the Federal Circuit—of VA regulations and certain

1

The government appears to believe Appellants are arguing

that they are entitled to judicial review under 5 U.S.C. § 704, a

provision of the Administrative Procedure Act that explains that

“final agency action for which there is no other adequate remedy in

a court [is] subject to judicial review.” See Appellee’s Br. 22-23.

We do not understand Appellants to advance an argument under

this provision. Even if they made such a claim, however, we need

not decide whether they have an “adequate remedy in a court,”

because 5 U.S.C. § 704 does not apply if “statutes preclude judicial

review,” 5 U.S.C. § 701(a)(1). The provision is therefore

inapplicable here, because section 511(a) precludes judicial review

of Appellants’ challenge.

12

other generally applicable actions pursuant to 38 U.S.C.

§ 502. See 38 U.S.C. § 511(b)(1). Appellants say that this

direct-review exception extends only to VA regulations and

not to “interpretations” like the agency actions they challenge.

But Federal Circuit case law makes clear that an agency

policy need not be promulgated as a regulation, via notice and

comment, to be reviewable under section 502. To the

contrary, the Federal Circuit has explained that section 502

permits it to directly review a wide range of “rules

promulgated by the Department of Veteran[s] Affairs,

including substantive rules of general applicability, statements

of general policy and interpretations of general applicability.”

LeFevre, 66 F.3d at 1196; see also Military Order of the

Purple Heart of the USA v. Sec’y of Veterans Affairs, 580

F.3d 1293, 1296 (Fed. Cir. 2009) (holding that the VA’s

procedural change, adopted in a letter and not via notice-and-

comment rulemaking, was a “rule” subject to review under

section 502).

Indeed, the Federal Circuit has reviewed as a substantive

rule a VA “notice” similar to the 2012 notice that Appellants

challenge. See LeFevre, 66 F.3d at 1196 (citing Disease Not

Associated with Exposure to Certain Herbicide Agents, 59

Fed. Reg. 341 (Jan. 4, 1994)); see also 77 Fed. Reg. at

76,170-71. And the Federal Circuit has held that section 502

allows it to review the denial of a petition for rulemaking. See

Preminger v. Sec’y of Veterans Affairs, 632 F.3d 1345, 1352

(Fed. Cir. 2011). The VA treated its 2013 Denial Letter as

precisely this type of action. Appellants offer no reason why,

in light of this case law, they cannot seek relief in the Federal

Circuit for agency actions other than regulations. 2

2

We decline to speculate whether any action brought in the

Federal Circuit would be timely, as the issue is not before us on

13

Moreover, another exception to section 511(a)’s bar

permits individual veterans to appeal benefits determinations

through the administrative process and eventually to the

Federal Circuit. See 38 U.S.C. § 511(b)(4); see also id.

§§ 7104, 7252, 7261, 7292. An individual veteran challenged

the VA’s Agent Orange policy via this route—and lost—in

Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). There, the

Federal Circuit deemed the agency’s requirement that a

claimant must have served on Vietnamese soil or in inland

waterways to qualify for the presumption “a permissible

interpretation of the statute and its implementing regulation.”

Id. at 1172.

Appellants assert that the administrative appeal process is

insufficient, pointing to Gray v. McDonald, 27 Vet. App. 313

(2015). In Gray, the Court of Appeals for Veterans Claims

reviewed the VA’s determination that a particular harbor in

Vietnam was an offshore waterway and that veterans who

served there were not entitled to the presumption of exposure

to Agent Orange. The court held that the decision was

arbitrary and capricious, vacated the agency’s policy, and

appeal. And although we rest our holding on section 511(a), we

also observe that to the extent Appellants challenge documents that

fall within the purview of section 502, that provision would appear

independently to bar district-court review. See 38 U.S.C. § 502

(providing for review “only” in the Federal Circuit); Veterans for

Common Sense, 678 F.3d at 1023 (explaining that if a “claim comes

within either” section 511(a) or an exception in section 511(b)

providing for exclusive review elsewhere, “the district court is

divested of jurisdiction that it otherwise might have exercised”);

H.R. REP. NO. 100-963, at 28 (1988) (noting congressional intent to

“vest[] jurisdiction of challenges brought under the APA solely in

the Court of Appeals for the Federal Circuit” and thereby “deprive[]

United States District Courts of jurisdiction to hear such matters”).

14

remanded the issue to the VA for reconsideration. See id. at

326-27. In Appellants’ view, this vacatur and remand shows

that the court lacked the power to order the VA “to grant the

presumption of exposure to the entire spectrum of Blue Water

Navy veterans.” Appellants’ Br. 19. Appellants read too much

into the Gray opinion. That the court vacated unsupported

agency action does not reveal any structural failing on its part;

to the contrary, vacatur is the “normal remedy” for such

deficiencies, even in Article III courts like ours. Allina Health

Servs. v. Sebelius, 746 F.3d 1102, 1110 (D.C. Cir. 2014). And

the Court of Appeals for Veterans Claims did not say that it

was vacating and remanding the policy because it lacked

power to order the VA to act; instead, it explained that it did

so because it “decline[d] to usurp the Agency’s authority and

impose its own” definition of inland waterways. McDonald,

27 Vet. App. at 326. Indeed, the Court of Appeals for

Veterans Claims has previously observed that it “has authority

to issue extraordinary writs in aid of its jurisdiction pursuant

to the All Writs Act,” including writs of mandamus ordering

the VA to act. Ebert v. Brown, 4 Vet. App. 434, 437 (1993)

(citing 28 U.S.C. § 1651(a)).

Appellants further argue that the VA’s slow pace in

reconsidering the definition vacated in Gray underscores the

inadequacy of the administrative appeal process. But veterans

and organizations are not without a remedy for delay by the

VA. They may bring an action in the Court of Appeals for

Veterans Claims to “compel action of the Secretary

unlawfully withheld or unreasonably delayed.” 38 U.S.C.

§ 7261(a)(2). We cannot ignore the limits Congress has

imposed on district courts’ jurisdiction merely because we

might prefer the VA to move at a faster pace.

Finally, Appellants assert that if we affirm the district

court’s reading of section 511(a), we will produce “an absurd

15

result” by divesting various tribunals—including the Board of

Veterans’ Appeals, the Federal Circuit, and the Supreme

Court—of jurisdiction to review the VA’s actions. See

Landstar Express Am., Inc. v. Fed. Mar. Comm’n, 569 F.3d

493, 498 (D.C. Cir. 2009) (“A statutory outcome is absurd if

it defies rationality.”). We disagree. As we have explained,

statutory exceptions to section 511(a)’s bar allow these bodies

to review certain VA decisions. See 38 U.S.C. § 511(b)(1),

(4). Our conclusion that the district court lacked jurisdiction

to hear Appellants’ challenge does not bar review in these

other fora.

IV

We affirm the district court’s dismissal of Appellants’

complaint.