Petition for Writ of Certiorari — Robert H. Gray, Petitioner v. Robert Wilkie, Secretary of Veterans Affairs
Supreme Court briefJun 19, 2018
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No. ______
In the
Supreme Court of the United States
ROBERT H. GRAY,
Petitioner,
V.
PETER O’ROURKE,
ACTING SECRETARY OF VETERANS AFFAIRS,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
MATTHEW D. HILL
SHANNON L. BREWER
HILL & PONTON, P.A.
605 East Robinson Street
Suite 635
Orlando, FL 32801
ROMAN MARTINEZ
Counsel of Record
BENJAMIN W. SNYDER
GRAHAM E. PHILLIPS
BLAKE E. STAFFORD
LATHAM & WATKINS LLP
555 Eleventh Street, NW
Suite 1000
Washington, DC 20004
(202) 637-2200
roman.martinez@lw.com
MICHAEL E. WILDHABER
VETERANS LAW ATTORNEY
700 Twelfth Street, NW
Suite 700
Washington, DC 20005
Counsel for Petitioner
QUESTION PRESENTED
Under 38 U.S.C. § 502, the Federal Circuit has
jurisdiction to adjudicate preenforcement challenges
to substantive rules, interpretive rules, and
statements of general policy issued by the
Department of Veterans Affairs (VA). 38 U.S.C. § 502
(cross-referencing 5 U.S.C. §§ 552(a)(1), 553). In this
case, a divided panel of the Federal Circuit held that
VA interpretive rules are nonetheless not reviewable
under Section 502 if VA chooses to promulgate those
rules by publishing them in the agency’s adjudication
manual. App. 8a-12a. Three judges dissented from
the denial of rehearing en banc, emphasizing the
“exceptional importance” of the issue, the panel’s
erroneous interpretation of Section 502, and the
decision’s “widespread impact on the efficient
adjudication of veterans’ claims.” App. 37a.
The question presented is whether the Federal
Circuit has jurisdiction under 38 U.S.C. § 502 to
review an interpretive rule reflecting VA’s definitive
interpretation of its own regulation, even if VA
chooses to promulgate that rule through its
adjudication manual.
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED ......................................... i
TABLE OF AUTHORITIES ..................................... iv
OPINIONS BELOW ....................................................1
JURISDICTION ..........................................................1
STATUTORY PROVISIONS INVOLVED .................1
INTRODUCTION .......................................................1
STATEMENT OF THE CASE ....................................3
A. The Federal Circuit’s Jurisdiction
Over VA Rules ...............................................3
B. VA’s Restrictive Interpretation Of
The Agent Orange Act ...................................6
C. The Proceedings In This Case .....................10
REASONS FOR GRANTING THE WRIT................16
A. The Federal Circuit’s Jurisdictional
Holding Is Indefensible ...............................16
B. The Federal Circuit’s Interpretation
Of Section 552 Creates A Circuit Split .......21
C. The Government Has Admitted That
The Mutual-Exclusivity Theory Is
Wrong, But Continues To Advance It
In Court ........................................................22
D. Review Is Needed To Protect
Veterans From Unlawful VA Rules ............29
CONCLUSION ..........................................................35
iii
TABLE OF CONTENTS—Continued
Page
APPENDIX
Opinion of the United States Court of Appeals
for the Federal Circuit, Gray v. Secretary
of Veterans Affairs, 875 F.3d 1102 (Fed.
Cir. 2017)..............................................................1a
Opinion of the United States Court of Appeals
for the Federal Circuit Denying
Rehearing, Gray v. Secretary of Veterans
Affairs, 884 F.3d 1379 (Fed. Cir. 2018) .............29a
5 U.S.C. § 552(a)(1)–(3) ...........................................38a
5 U.S.C. § 553 ..........................................................43a
38 U.S.C. § 502 ........................................................45a
Excerpt of Adjudication Procedures Manual,
M21-1, Part IV, Subpart ii, Chapter 1,
Section H (last revised Mar. 27, 2018),
https://www.knowva.ebenefits.va.gov/syste
m/templates/selfservice/va_ssnew/help/cus
tomer/locale/enUS/portal/554400000001018/content/5544
00000014940/M21-1-Part-IV-Subpart-iiChapter-1-Section-H-Developing-Claimsfor-Service-Connection-SC-Based-onHerbicide-Exposure ...........................................46a
Excerpt of Brief for Respondent, Gray v.
McDonald, No. 16-1782 (Fed. Cir. filed
Nov. 14, 2016) ....................................................51a
iv
TABLE OF AUTHORITIES
Page(s)
CASES
Anderson v. Butz,
550 F.2d 459 (9th Cir. 1977)..........................21, 22
Astrue v. Ratliff,
560 U.S. 586 (2010) ..............................................31
Blue Water Navy Vietnam Veterans
Association v. McDonald,
830 F.3d 570 (D.C. Cir. 2016) ..........................7, 26
Brown v. Gardner,
513 U.S. 115 (1994) ..............................................30
Coalition for Common Sense in Government
Procurement v. Secretary of Veterans
Affairs,
464 F.3d 1306 (Fed. Cir. 2006) ..............................5
Columbia Broadcasting System, Inc. v.
United States,
316 U.S. 407 (1942) ..............................................20
D & W Food Centers, Inc. v. Block,
786 F.2d 751 (6th Cir. 1986)................................21
Disabled American Veterans v. Gober,
234 F.3d 682 (Fed. Cir. 2000) ..............................31
Disabled American Veterans v. Secretary of
Veterans Affairs,
327 F.3d 1339 (Fed. Cir. 2003) ........................5, 31
Disabled American Veterans v. Secretary of
Veterans Affairs,
859 F.3d 1072 (Fed. Cir. 2017) .................... passim
v
TABLE OF AUTHORITIES—Continued
Page(s)
Gray v. McDonald,
27 Vet. App. 313 (2015) ............................. 8, 33, 34
Guerra v. Shinseki,
642 F.3d 1046 (Fed. Cir. 2011), cert.
denied, 566 U.S. 905 (2012) .................................20
Haas v. Peake,
525 F.3d 1168 (Fed. Cir. 2008) ..............................8
Henderson v. Shinseki,
562 U.S. 428 (2011) .................................... 3, 30, 31
Herron v. Heckler,
576 F. Supp. 218 (N.D. Cal. 1983).................18, 21
Johnson v. McDonald,
762 F.3d 1362 (Fed. Cir. 2014) ............................30
Kahn v. United States,
753 F.2d 1208 (3d Cir. 1985) ...............................21
Kingdomware Technologies, Inc. v. United
States,
136 S. Ct. 1969 (2016)..........................................30
Knutzen v. Eben Ezer Lutheran Housing
Center,
815 F.2d 1343 (10th Cir. 1987)............................21
Linoz v. Heckler,
800 F.2d 871 (9th Cir. 1986)................................21
Martin v. O’Rourke,
No. 17-1747, 2018 WL 2727502 (Fed. Cir.
June 7, 2018) ....................................................6, 32
vi
TABLE OF AUTHORITIES—Continued
Page(s)
Mathis v. Shulkin,
137 S. Ct. 1994 (2017)............................................3
Military Order of the Purple Heart v.
Secretary of Veterans Affairs,
580 F.3d 1293 (Fed. Cir. 2009) ........................5, 30
Morton v. Ruiz,
415 U.S. 199 (1974) ........................................14, 20
National Organization of Veterans’
Advocates, Inc. v. Secretary of Veterans
Affairs,
260 F.3d 1365 (Fed. Cir. 2001) ........................5, 31
National Organization of Veterans’
Advocates, Inc. v. Secretary of Veterans
Affairs,
330 F.3d 1345 (Fed. Cir. 2003) ............................31
Paralyzed Veterans of America v. Secretary of
Veterans Affairs,
345 F.3d 1334 (Fed. Cir. 2003) ........................5, 30
Shinseki v. Sanders,
556 U.S. 396 (2009) ..............................................30
Smith v. Shinseki,
647 F.3d 1380 (Fed. Cir. 2011) ........................9, 10
Stuart-James Co. v. SEC,
857 F.2d 796 (D.C. Cir. 1988) ..............................21
[Title Redacted by Agency], No. 12-11 139,
2017 WL 2905538 (Bd. Vet. App. May 12,
2017) .....................................................................10
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Thun v. Shinseki,
572 F.3d 1366 (Fed. Cir. 2009) ..............................9
Walters v. National Association of Radiation
Survivors,
473 U.S. 305 (1985) ................................................7
STATUTES AND REGULATIONS
5 U.S.C. § 552 ..............................................................1
5 U.S.C. § 552(a)(1) ...............................................2, 19
5 U.S.C. § 552(a)(1)(D) .................................... 4, 17, 29
5 U.S.C. § 552(a)(2) ...................................................19
5 U.S.C. § 552(a)(2)(C) ..............................................11
5 U.S.C. § 553 ..............................................................1
5 U.S.C. § 553(d)(1) .....................................................4
5 U.S.C. § 553(d)(2) ...............................................4, 17
28 U.S.C. § 1254(1)......................................................1
38 U.S.C. § 101(16)......................................................7
38 U.S.C. § 501(c) ......................................................19
38 U.S.C. § 502 ..................................................1, 4, 16
38 U.S.C. § 1116(a)(1) .................................................7
38 U.S.C. § 7101(a)......................................................5
38 U.S.C. § 7252(a)......................................................5
38 U.S.C. § 7292 ..........................................................5
Pub. L. No. 100-687, 102 Stat. 4105 (1988)................3
viii
TABLE OF AUTHORITIES—Continued
Page(s)
Pub. L. No. 102-4, 105 Stat. 11 (1991) .......................7
38 C.F.R. § 3.307(a)(6)(iii) ...........................................8
38 C.F.R. § 14.507(b) .................................................19
66 Fed. Reg. 23,166 (May 8, 2001) .............................8
OTHER AUTHORITIES
H.R. Rep. No. 100-963 (1988) .....................................5
Office of Audits and Evaluations, VA Office
of Inspector General, Veterans Benefits
Administration: Review of Timeliness of
the Appeals Process (2018),
https://www.oversight.gov
/sites/default/files/oig-reports/
VAOIG-16-01750-79.pdf ........................................6
S. Rep. No. 100-439 (1988) ..........................................6
U.S. Court of Appeals for Veterans Claims,
Annual Report: Fiscal Year 2017 (2017),
https://www.uscourts.cavc.gov/documents/
FY2017AnnualReport.pdf .....................................6
VA Op. Gen. Counsel Prec. 27-97 (1997)....................8
VA Op. Gen. Counsel Prec. 1-2017 (2017) ................19
PETITION FOR A WRIT OF CERTIORARI
Petitioner Robert Gray respectfully petitions this
Court for a writ of certiorari to review the judgment
of the United States Court of Appeals for the Federal
Circuit in this case.
OPINIONS BELOW
The opinion of the Federal Circuit (App. 1a-28a)
is reported at 875 F.3d 1102. The opinion of the
Federal Circuit denying rehearing (App. 29a-37a) is
reported at 884 F.3d 1379.
JURISDICTION
The Federal Circuit entered its judgment on
November 16, 2017 (App. 1a), and it denied Gray’s
rehearing petition on March 21, 2018 (App. 29a-31a).
This Court has jurisdiction under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
Relevant portions of 38 U.S.C. § 502 and 5 U.S.C.
§§ 552 and 553 are reproduced at App. 38a-45a.
INTRODUCTION
This case “present[s] a question of exceptional
importance concerning [the Federal Circuit’s]
jurisdiction in veterans’ cases.” App. 37a (Dyk, J.,
dissenting from the denial of rehearing en banc). In
1988, Congress granted the Federal Circuit
jurisdiction to adjudicate preenforcement challenges
to any agency action taken by the Department of
Veterans Affairs (VA) “to which section 552(a)(1) or
553 of title 5 (or both) refers.” 38 U.S.C. § 502. That
cross-reference encompasses any substantive rule,
generally-applicable interpretive rule, and general
statement of policy. See 5 U.S.C. §§ 552(a)(1), 553. In
providing that specialized review mechanism in the
2
Federal Circuit, Congress sought to protect veterans
by allowing them to directly challenge unlawful VA
agency action, without any need to first litigate such
challenges through the notoriously backlogged and
inefficient VA disability claims process.
The Federal Circuit’s decisions in this case and
Disabled American Veterans v. Secretary of Veterans
Affairs, 859 F.3d 1072 (Fed. Cir. 2017) (DAV), have
now sharply curtailed the rights of veterans to bring
such challenges.
Contrary to the unambiguous
language of the relevant statutes, the Federal Circuit
held that it lacks jurisdiction to review VA
interpretive rules if VA chooses to promulgate such
rules and policies through publication in VA’s
internally-binding adjudication manual.
The Federal Circuit’s jurisdictional holding is
wrong and should be overturned. That holding
misreads
the
unambiguous
statutory
text,
undermines its purpose, and—as Judge Dyk
explained below—contradicts “[c]ases from the
Supreme Court [and] other courts of appeals.” App.
26a (Dyk, J., dissenting).
Most importantly, if allowed to stand, the Federal
Circuit’s erroneous jurisdictional ruling will impose
“significant ‘hardship’” on our Nation’s veterans. Id.
at 25a (citation omitted). All too often, VA adopts
unlawful rules in violation of the substantive and
procedural requirements of the Administrative
Procedure Act (APA), and it regularly embodies such
rules in its adjudication manual.
The Federal
Circuit’s holding prevents veterans from obtaining
prompt Article III review of such unlawful rules at the
outset, when the damage to veterans can be
minimized. Id. at 15a-16a (noting that Federal
Circuit’s rule imposes “substantial and unnecessary
3
burdens on individual veterans”). This case thus
presents yet another instance in which VA and the
Federal Circuit have concocted “a regime that has no
basis in the relevant statutes and does nothing to
assist, and much to impair, the interests of those the
law says [VA] is supposed to serve.” Mathis v.
Shulkin, 137 S. Ct. 1994, 1995 (2017) (Gorsuch, J.,
dissenting from the denial of certiorari).
Notably, although the Government persuaded the
Federal Circuit to adopt its erroneous jurisdictional
rule at the panel stage, the Government declined to
defend that rule in response to Gray’s rehearing
petition.
Nonetheless, the Government has
subsequently proceeded to invoke the rule as binding
precedent to deprive veterans of their day in court.
The Government’s opportunistic advocacy should not
be allowed to carry the day: If the Government will
no longer defend the legal theory that it foisted on the
Federal Circuit, that theory should be overturned.
In short, our Nation’s veterans deserve better.
Congress granted them the right to bring
preenforcement challenges to all generally-applicable
VA interpretive rules, and this Court should restore
that important check on VA rulemaking. The petition
for certiorari should be granted.
STATEMENT OF THE CASE
A. The Federal Circuit’s Jurisdiction Over
VA Rules
1. In the Veterans’ Judicial Review Act (VJRA),
Pub. L. No. 100-687, 102 Stat. 4105 (1988), Congress
for the first time authorized judicial review of “the
adjudication of veterans’ benefits claims,” and it did
so in a way that is “decidedly favorable to veterans.”
Henderson v. Shinseki, 562 U.S. 428, 440-41 (2011).
4
Most importantly, the VJRA authorized veterans to
bring preenforcement challenges to the validity of any
VA substantive rule, interpretive rule, or general
policy statement directly in the Federal Circuit.
That authorization is embodied in 38 U.S.C. § 502,
the jurisdictional provision at the heart of this case.
As relevant here, Section 502 states that:
An action of the [VA] to which section
552(a)(1) or 553 of title 5 (or both) refers
is subject to judicial review. Such review
shall be in accordance with [the judicial
review provisions of the Administrative
Procedure Act, 5 U.S.C. §§ 701-706] and
may be sought only in the United States
Court of Appeals for the Federal Circuit.
38 U.S.C. § 502.
The scope of Section 502’s jurisdictional grant is
undeniably broad—it encompasses any VA action “to
which section 552(a)(1) or 553 of title 5 (or both)
refers.” Id. Section 552(a)(1) is a Freedom of
Information Act (FOIA) provision that requires
publication in the Federal Register of various types of
agency documents, including “substantive rules” and
“statements of general policy or interpretations of
general applicability formulated and adopted by the
agency.” 5 U.S.C. § 552(a)(1)(D). Section 553 is the
APA provision governing agency rulemaking. Like
Section 552(a)(1)(D), Section 553 refers to both
“substantive rule[s]” (which the provision says can be
promulgated only following notice and comment), and
“interpretative rules and statements of policy” (which
are exempted from those notice-and-comment
requirements). Id. § 553(d)(1)-(2).
5
By cross-referencing Sections 552(a)(1) and 553,
Congress intended to give the Federal Circuit
jurisdiction to adjudicate any direct APA challenge to
the validity of generally-applicable rules and policies.
The purpose of Section 502 was to ensure that VA
follows its APA “responsibilities . . . with respect to
agency rules and interpretations of agency authority.”
H.R. Rep. No. 100-963, at 27 (1988). And at least until
DAV and the decision below, Section 502 had fulfilled
that purpose, providing the jurisdictional basis for a
long list of cases in which VA rules and policies were
found to have violated the APA.1
2. Apart from Section 502, the Federal Circuit
also has jurisdiction to review the denial of individual
benefits claims.
Such claims are originally
adjudicated at one of 56 VA regional offices, see App.
8a, and they are first subject to review by the Board
of Veterans’ Appeals (Board) and the U.S. Court of
Appeals for Veterans Claims (Veterans Court), see 38
U.S.C. §§ 7101(a), 7252(a). In the course of reviewing
individual claims decisions, the Federal Circuit has
authority to adjudicate the validity of particular VA
rules and policies to the extent they are implicated in
each case. See id. § 7292 (authorizing review of legal
questions).
1 See, e.g., Military Order of the Purple Heart v. Sec’y of
Veterans Affairs, 580 F.3d 1293, 1296-98 (Fed. Cir. 2009); Coal.
for Common Sense in Gov’t Procurement v. Sec’y of Veterans
Affairs, 464 F.3d 1306, 1318-19 (Fed. Cir. 2006); Paralyzed
Veterans of Am. v. Sec’y of Veterans Affairs, 345 F.3d 1334, 1346
(Fed. Cir. 2003); Disabled Am. Veterans v. Sec’y of Veterans
Affairs, 327 F.3d 1339, 1348-49 (Fed. Cir. 2003); Nat’l Org. of
Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs, 260 F.3d
1365, 1368 (Fed. Cir. 2001).
6
Needless to say, this mechanism for seeking
judicial review of unlawful VA rules and policies is far
slower and less efficient than direct judicial review
under Section 502. It “takes over five and a half years
on average” for an individual benefits case to be
resolved by the Board, and then nearly an additional
year for it to be fully adjudicated by the Veterans
Court. Martin v. O’Rourke, No. 17-1747, 2018 WL
2727502, at *9 (Fed. Cir. June 7, 2018) (Moore, J.,
concurring); U.S. Court of Appeals for Veterans
Claims, Annual Report: Fiscal Year 2017, at 3 (2017),
https://www.uscourts.cavc.gov/documents/FY2017An
nualReport.pdf. Indeed, the process takes so long
that veterans often die while awaiting final resolution
of their claims. See Office of Audits and Evaluations,
VA Office of Inspector General, Veterans Benefits
Administration: Review of Timeliness of the Appeals
Process 12 (2018), https://www.oversight.gov/sites/
default/files/oig-reports/VAOIG-16-01750-79.pdf
(noting that 1,600 veterans participating in VA
appeals died in the first quarter of 2016 alone). As VA
has itself admitted, the appeals process for benefits
claims is both “broken” and deeply “frustrating” to
veterans. Id. at 15.
B. VA’s Restrictive Interpretation Of The
Agent Orange Act
1. In the 1960s and early 1970s, the United
States used an herbicide known as Agent Orange to
clear heavily forested areas in Vietnam during the
Vietnam War. See S. Rep. No. 100-439, at 64 (1988).
Countless U.S. service members were exposed to the
herbicide, which has been linked to various adverse
health effects. In 1991, Congress made it easier for
such veterans to obtain disability compensation by
7
promulgating the Agent Orange Act of 1991, Pub. L.
No. 102-4, 105 Stat. 11.
In general, veterans seeking disability benefits
based on military service must establish “service
connection”—i.e., that “the disability is causally
related to an injury sustained in the service.” Walters
v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305,
307 (1985); see 38 U.S.C. § 101(16). But it was
traditionally “extremely difficult” for Vietnam
veterans who had been exposed to Agent Orange to
satisfy that requirement, given the passage of time
and the lack of information about precisely where and
when the United States deployed the herbicide. Blue
Water Navy Vietnam Veterans Ass’n v. McDonald, 830
F.3d 570, 572-73 (D.C. Cir. 2016); see App. 3a.
The Agent Orange Act helps solve that problem. It
creates an automatic presumption of service
connection for any veteran who (1) “during active
military, naval, or air service, served in the Republic
of Vietnam” between January 9, 1962, and May 7,
1975; and (2) develops one of several diseases
medically linked to Agent Orange.
38 U.S.C.
§ 1116(a)(1) (requiring VA to presume that the
veteran was exposed to Agent Orange and that the
disease was “incurred in or aggravated by such
service”).
2. Over the past 20 years, VA has repeatedly
narrowed its understanding of which Vietnam War
veterans “served in the Republic of Vietnam” and thus
qualify for the Agent Orange Act’s automatic
presumption. In 1993, VA issued a regulation
interpreting the phrase “‘[s]ervice in the Republic of
Vietnam’” to include “service in the waters offshore
and service in other locations if the conditions of
service involved duty or visitation in the Republic of
8
Vietnam.” 38 C.F.R. § 3.307(a)(6)(iii). VA later issued
several rules interpreting that regulation to exclude
from the service-connection presumption veterans
who served on ships offshore without entering “inland
waterways” or setting foot on Vietnamese soil. See 66
Fed. Reg. 23,166, 23,166 (May 8, 2001); VA Op. Gen.
Counsel Prec. 27-97, at 3-5 (1997). A divided panel of
the Federal Circuit applied Auer deference and
upheld that narrow interpretation. Haas v. Peake,
525 F.3d 1168, 1190-93 (Fed. Cir. 2008).
In 2009, VA further restricted the Agent Orange
Act’s statutory presumption by issuing a guidance
letter that defined “inland waterways” to include
rivers, deltas, and some—but not all—bays and
harbors. App. 6a. Petitioner Gray, who had served in
Vietnam’s Da Nang Harbor (one of the excluded
harbors), successfully challenged that interpretation
in the Veterans Court, when appealing the denial of
his own individual benefits claim. Gray v. McDonald,
27 Vet. App. 313, 322-25 (2015) (rejecting VA’s
cramped interpretation as “arbitrary,” “irrational,”
“aimless and adrift,” and “inconsistent with the
identified purpose of the statute and regulation”).
Because the Veterans Court could not “discern any
rhyme or reason” in VA’s narrow interpretation, it
remanded Gray’s case and instructed VA to
reconsider its position. Id. at 324, 327-28.
3. In February 2016, VA announced a retooled
interpretation of the Agent Orange Act and its
regulations. It did so by issuing a “Memorandum of
Changes” and accompanying revisions to its
Adjudication Procedures Manual, M21-1 (“M21-1
Manual”), which contains “all of [VA’s] policies and
procedures for adjudicating claims for VA benefits.”
App. 7a (citing C.A. JA 207); id. at 37a (Dyk, J.,
9
dissenting from the denial of rehearing en banc)
(emphasis added). VA regularly uses the M21-1
Manual to set forth its definitive interpretations of
key statutes and regulations.2
As revised, the M21-1 Manual continues to limit
the Act’s statutory presumption to those Vietnam
veterans who set foot on Vietnamese soil or served in
Vietnam’s “inland waterways.” App. 46a; see id. at 8a.
But the Manual now defines “inland waterways” to
“end at their mouth or junction to other offshore water
features.” Id. at 46a-47a. This narrower definition
thus excludes “all Navy personnel” who served in any
of Vietnam’s “ports, harbors, and bays from
presumptive service connection.” App. 8a.
By incorporating its new definition of “inland
waterways” into the M21-1 Manual, VA ensured that
the effect of this definition would be “both real and far
reaching.” Id. at 10a. Indeed, the M21-1 Manual
formally binds all front-line VA benefits adjudicators
working in VA’s 56 regional offices throughout the
country. Id. at 5a, 8a. Such adjudicators issue the
final decisions in 96% of all claims for veterans’
benefits, and they “are not authorized to
independently determine that any particular coastal
feature, such as bay, harbor, or inlet, is an inland
waterway.” Id. at 24a-25a (Dyk, J., dissenting); id. at
48a.
Moreover, VA regularly demands—and
receives—Auer deference to its interpretive rules set
2
See, e.g., App. 4a-5a; Smith v. Shinseki, 647 F.3d 1380, 1384
(Fed. Cir. 2011); Thun v. Shinseki, 572 F.3d 1366, 1369 (Fed. Cir.
2009).
10
forth in agency manuals, both in Article III courts and
before the Board.3
C. The Proceedings In This Case
1. In March 2016, while his individual benefits
claim was still pending, Gray filed a petition for
review of the February 2016 Manual provision in the
Federal Circuit pursuant to 38 U.S.C. § 502. As
noted, that statute provides that “[a]n action of the
[VA] Secretary to which section 552(a)(1) or 553 of
title 5 (or both) refers is subject to judicial review.”
Gray’s “Statement of Subject Matter Jurisdiction”
asserted that the Manual revision constituted a
“statement[] of general policy” or an “interpretation[]
of general applicability” under Section 552(a)(1)(D),
as well as a rule “refer[red]” to by Section 553. See
Pet’r C.A. Br. 1-2.
In response, VA repeatedly acknowledged that the
February 2016 M21-1 revisions are “interpretive
statements” that apply to all “regional office
adjudicat[ions].” App. 51a-57a, 60a; see id. at 9a-10a.4
And it did not deny that the February 2016 M21-1
Manual amendment is an interpretation of general
applicability—and thus within the plain language of
Section 552(a)(1)(D).
Nonetheless, VA asserted that the petition should
still be dismissed for lack of jurisdiction because
agency manuals are more clearly referenced in 5
3 See, e.g., Smith, 647 F.3d at 1385; [Title Redacted by
Agency], No. 12-11 139, 2017 WL 2905538, at *8 (Bd. Vet. App.
May 12, 2017); see also Gov’t Br. 31, Gazelle v. McDonald, 868
F.3d 1006 (Fed. Cir. 2017) (No. 16-1932), 2016 WL 6883024.
4
For ease of reference, we have reproduced relevant excerpts
of the Government’s merits brief in this case at App. 51a-61a.
11
U.S.C. § 552(a)(2)(C). See App. 57a-59a. That latter
provision describes materials that agencies must
make available for public inspection, including
“administrative staff manuals” and “instructions to
staff that affect a member of the public.” 5 U.S.C.
§ 552(a)(2)(C). VA argued that Sections 552(a)(1) and
(a)(2) are mutually exclusive, and that the new rule
at issue here is covered by Section 552(a)(2)(C)—and
thus not by Section 552(a)(1)(D)—because the former
provision “more specifically” refers to agency
manuals. App. 58a (“Although the M21-1 also
contains interpretive rules arguably referred to by
subsection (a)(1), the manual is more specifically
referenced in subsection (a)(2).”). VA went on to
assert that “[p]ursuant to the ‘commonplace’ canon of
statutory construction ‘that the specific governs the
general,’ the M21-1 is governed by subsection (a)(2),
not (a)(l).” Id. (citation omitted).5 VA reiterated its
5 See App. 58a-59a (“By specifically including section
552(a)(1), [38 U.S.C. § 502] . . . excludes actions referred to in the
immediately following subsection, (a)(2).”); see also id. at 52a
(“[T]he M21-1 revisions at issue in Mr. Gray’s petition are
referred to in 5 U.S.C. § 552(a)(2), which is beyond the scope of
this Court’s section 502 jurisdiction.”); id. at 53a (“Although
section 552(a)(1) refers to interpretive rules, the February 2016
revisions appear in an administrative staff manual that is
specifically referenced in subsection 552(a)(2), which is omitted
from this Court’s jurisdictional statute in 38 U.S.C. § 502.”). In
addition to its mutual-exclusivity argument, VA’s brief also
argued—confusingly and incorrectly—that Section 502’s crossreference to Section 552(a)(1) only encompasses “substantive
rules.” Id. at 57a (“Because the M21-1 revisions are not
substantive rules under section 553, the Court must conclude
that they are nevertheless ‘substantive rules’ under section
552(a)(1) to exercise its section 502 jurisdiction.”); see also infra
at 28 n.8 (noting that VA is still making this argument).
12
mutual-exclusivity interpretation at oral argument.
See Gray Oral Arg. 32:40-32:55, 36:45-36:57.
2. After oral argument, a different panel of the
Federal Circuit decided Disabled American Veterans
v. Secretary of Veterans Affairs, 859 F.3d 1072 (Fed.
Cir. 2017) (DAV). There, a veterans organization had
sought Federal Circuit review of a different revision
to the M21-1 Manual, in which VA made it harder for
Gulf War veterans to establish that certain
disabilities were service-connected. See id. at 1074.
As in this case, VA argued that even though the
Manual provision at issue “is an interpretive rule,” it
was exempt from judicial review under Section 502
because—and only because—it appeared in the
Manual. Gov’t Br. 16-17, 29-33, DAV, 859 F.3d 1072
(No. 16-1493), 2016 WL 5845985 (DAV Gov’t Br.); see
also id. at 18, 20, 21, 25.
The Federal Circuit’s decision in DAV embraced
VA’s mutual-exclusivity argument and dismissed the
petition for lack of jurisdiction. 859 F.3d at 1075-78.
The court framed the jurisdictional question as
turning on whether the manual provision at issue
“more readily” fell under Section 552(a)(1) or (a)(2),
and it declared that “Congress expressly exempted
from § 502 challenges to agency actions which fall
under § 552(a)(2).” Id. at 1075, 1077-78. The court
then held that interpretive rules in the Manual “fall
within § 552(a)(2)—not § 552(a)(1),” because VA had
chosen to promulgate them “within an administrative
staff manual” instead of publishing them in the
Federal Register. Id. at 1077-78.
Notably, the Federal Circuit did not give any
reason why the Manual provision at issue did not
qualify, on its face, as a “statement[] of general policy
or interpretation[] of general applicability” under
13
§ 552(a)(1)(D).
Instead, the court dichotomized
“‘statements of general policy or interpretations of
general applicability’ subject to § 552(a)(1)(D) as
compared to the interpretive rules subject to
§ 552(a)(2)(B)-(C),” and it found that manual
provisions qualified as the latter. Id. at 1078. The
court also rejected the veteran’s alternative argument
that jurisdiction was proper under Section 502’s
cross-reference to Section 553. Id. at 1076-77.
3. In November 2016, a divided panel in this
case applied DAV and held that it lacked jurisdiction
to adjudicate Gray’s petition. App. 1a-28a.
The panel began by reiterating DAV’s mutualexclusivity holding and rejecting the notion that an
agency action can fall within both Section 552(a)(1)
and (a)(2). App. 8a-9a (stating that jurisdiction
turned on “whether the manual provisions challenged
in this action fall under § 552(a)(1), giving us
authority to consider them in the context of this
action, or § 552(a)(2), prohibiting our review”
(emphasis added)). The panel agreed that the Manual
provision here is properly classified as an
“interpretive rule,” and it acknowledged the
persuasive “force” of Gray’s argument “that a manual
provision can fall under § 552(a)(1) where, regardless
of its designation, it constitutes an interpretive rule
of general applicability that adversely affects the
rights of an entire class of Vietnam veterans.” Id. at
9a-10a, 13a-14a.
Nevertheless, the majority reiterated DAV’s
categorical holding that the Federal Circuit “do[es]
not have jurisdiction to review actions that fall under
§ 552(a)(2).” App. 8a. This is true, the court said,
“regardless of the extent to which the manual
14
provision might be considered interpretive or a
statement of policy” under § 552(a)(1). Id. at 11a.
Judge Dyk dissented in part. He agreed that DAV
controlled, but said that DAV “was wrongly decided.”
App. 15a. Judge Dyk emphasized that DAV rests on
“the notion that § 552(a)(1) and § 552(a)(2) are
mutually exclusive”—a notion for which “[t]here is no
support” and that contradicts this Court’s decision in
Morton v. Ruiz, 415 U.S. 199 (1974), and decisions of
the Federal Circuit and other courts of appeals. App.
25a-26a.
Judge Dyk also highlighted the significant harm
that the Federal Circuit’s rule would inflict on
veterans. He noted that DAV’s rule “imposes a
substantial and unnecessary burden on individual
veterans requiring that they undergo protracted
agency
adjudication
in
order
to
obtain
preenforcement judicial review of a purely legal
question that is already ripe for our review.” App.
15a-16a. And he also emphasized that “[r]eview of the
Manual revisions is essential given the significant
‘hardship that would be incurred if [the Federal
Circuit] were to forego judicial review.’” Id. at 25a
(internal alterations and citation omitted).
4. Gray petitioned for rehearing en banc, again
arguing that because the Manual revisions fell under
both Sections 552(a)(1) and 553, the Federal Circuit
had jurisdiction to review them under Section 502’s
cross-reference. He explained in detail why VA’s
argument that Sections 552(a)(1) and (a)(2) are
mutually exclusive is wrong, and why DAV and the
panel in this case erred in embracing it.
VA’s response to the rehearing petition was
remarkable. Having successfully persuaded the court
15
in both DAV and this case to adopt its mutualexclusivity interpretation of Section 552, VA suddenly
refused to defend that interpretation.
But VA
nonetheless urged the court to deny rehearing. It
argued that DAV and the panel in this case had not
actually
adopted
the
mutual-exclusivity
interpretation that VA had advanced in its merits
brief. Gov’t Reh’g Opp. 1, 5-14. Instead, VA asserted
that DAV and the panel had “[i]mplicit[ly]” concluded
that the Manual “provisions were not interpretations
of ‘general applicability’ subject to section
552(a)(1)(D)” for some other, completely unstated
reason. Id. at 6.
5. In March 2018, the Federal Circuit denied
rehearing en banc, over dissents from Judges Dyk,
Newman, and Wallach. App. 29a-37a. The dissenting
judges explained that because the M21-1 Manual
contains “‘all of [VA’s] policies and procedures for
adjudicating claims for VA benefits,’” the
reviewability of those provisions under § 502 is an
issue “of exceptional importance” that will have a
“widespread impact on the efficient adjudication of
veterans’ claims.” App. 37a (Dyk, J., dissenting from
the denial of rehearing en banc) (citation omitted).
Judge Taranto concurred in the denial of
rehearing. His opinion expressly recognized that
Section 552(a)(1) and (a)(2) are not “mutually
exclusive.” App. 32a. But it also explained that he
did not read DAV or the decision below as resting on
a mutual-exclusivity theory. Id. at 32a-33a. Notably,
Judge Taranto acknowledged the Government’s
change of position on the mutual-exclusivity issue,
and he himself expressed no view on whether the
panel had correctly concluded that the interpretive
16
rule at issue here does not fall within Section
552(a)(1)(D). App. 32a-36a.
REASONS FOR GRANTING THE WRIT
The Federal Circuit’s holdings in DAV and this
case fly in the face of Congress’s manifest desire to
give veterans the right to preenforcement judicial
review of all generally-applicable VA interpretive
rules. Those holdings contradict the statutory text
and conflict with other rulings of this Court and other
courts of appeals. Indeed, they rest on a mutualexclusivity theory that is so wrong that the
Government is unwilling to defend it—even though
the Government itself proposed that theory in the
first place.
Most importantly—as Judge Dyk and the other
dissenting judges recognized—the Federal Circuit’s
flawed jurisdictional holding will inflict “significant
‘hardship’” and “substantial and unnecessary
burdens” on veterans. App. 15a-16a, 25a (citation
omitted). It will force such veterans to litigate pure
legal challenges to VA manual provisions in the
painfully slow disability-claims process, and it will
allow VA to insulate its own unlawful rules from
immediate judicial review simply by embedding them
in agency manuals.
This Court should grant
certiorari and restore Section 502’s important check
on VA rulemaking.
A. The Federal Circuit’s
Holding Is Indefensible
Jurisdictional
Section 502 vests the Federal Circuit with
jurisdiction over any “action of the [VA] Secretary to
which section 552(a)(1) or 553 of title 5 (or both)
refers.” 38 U.S.C. § 502. Both of those crossreferenced provisions “refer[]” to interpretive rules.
17
See
5
U.S.C.
§ 552(a)(1)(D)
(referring
to
“interpretations of general applicability formulated
and adopted by the agency”); id. § 553(d)(2) (referring
to “interpretative rules”). It follows that the Federal
Circuit thus has authority to adjudicate any
challenges to such rules.
Below and in DAV, the Federal Circuit rejected
that straightforward analysis by adopting an
interpretation of Sections 502 and 552 that has no
basis in the statutory text. At VA’s urging, both
decisions treat Sections 552(a)(1) and (a)(2) as
mutually exclusive, such that any VA manual
provision that is covered by (a)(2) is therefore not
covered by (a)(1)—and therefore outside the scope of
the Federal Circuit’s jurisdiction. DAV, 859 F.3d at
1077-78; see App. 10a-12a; supra at 10-14. That
interpretation is deeply flawed and should be
overturned.
1. Section 502 unambiguously grants the
Federal Circuit jurisdiction to review actions “to
which section 552(a)(1) . . . refers.” And Section
552(a)(1) directly refers to, inter alia, “statements of
general policy or interpretations of general
applicability formulated and adopted by the agency.”
5 U.S.C. § 552(a)(1)(D) (emphasis added). A provision
of an agency manual that announces an
interpretation of general applicability—one that
agency staff will apply to individual cases—is
therefore indisputably subject to review under
Section 502.
In this case and DAV, the Federal Circuit
conducted its analysis under the premise “that
§ 552(a)(1) and § 552(a)(2) are mutually exclusive”—
i.e., that because the Manual provisions are
encompassed by Section 552(a)(2), they are
18
necessarily excluded from Section 552(a)(1). App. 25a
(Dyk, J., dissenting); see id. at 8a-9a (considering
“whether the manual revisions challenged in this
action fall under § 552(a)(1) . . . or § 552(a)(2)”
(emphasis added)); DAV, 859 F.3d at 1075, 1077-78
(declaring that “agency actions which fall under
under § 552(a)(2)” are “expressly exempted from
§ 502,” simply because the statute cross-references
(a)(1) but not (a)(2), and finding that the Manual
provisions fell “within § 552(a)(2)—not § 552(a)(1)”);
see generally supra at 12-14. The origins of that
premise are not a mystery: VA itself urged the court
to hold that Section 552(a)(1) and (a)(2) are mutually
exclusive in both of its merits briefs. See supra at 1012.
The Federal Circuit’s mutual-exclusivity premise
is simply wrong. Nothing in the text, structure, or
purpose of Section 552(a) indicates that an agency
action must fall into either (a)(1) or (a)(2), but not
both.
The fact that agency staff manuals are
mentioned in § 552(a)(2) therefore does not mean that
interpretive
rules
“contained
within
an
administrative staff manual” must “fall within
§ 552(a)(2)—not § 552(a)(1).” App. 11a (quoting DAV,
859 F.3d at 1078).
2. As a textual matter, it is obvious that certain
types of agency statements fit within both (a)(1) and
(a)(2).
For example, (a)(1) expressly covers
“descriptions of [an agency’s] central and field
organization” and “rules of procedure,” but such
information is also regularly addressed in agency
manuals and staff instructions encompassed by (a)(2).
See App. 25a-26a (Dyk, J., dissenting); see Herron v.
Heckler, 576 F. Supp. 218, 232-33 (N.D. Cal. 1983)
19
(holding that provisions of agency manual “clearly fall
within both” Section 552(a)(1)(D) and (a)(2)(C)).
VA General Counsel opinions provide an
especially clear example of such overlap. The statute
governing VA rulemaking expressly contemplates
that such opinions fall within Section 552(a)(1). See
38 U.S.C. § 501(c) (“In applying section 552(a)(1) of
title 5 to the Department, the Secretary shall ensure
that subparagraphs (C), (D), and (E) of that section
are complied with, particularly with respect to
opinions and interpretations of the General
Counsel.”). And that is how VA expressly treats them.
See 38 C.F.R. § 14.507(b).
But those opinions
regularly instruct VA adjudicators how to resolve
legal questions that control benefits claims. See, e.g.,
VA Op. Gen. Counsel Prec. 1-2017, at 1 (2017)
(instructing Board how to resolve legal issues
impacting a veteran’s disability claim).
Those
opinions are therefore also undeniably “instructions
to staff that affect a member of the public” under
Section 552(a)(2)(C).
3. The possibility of overlap between (a)(1) and
(a)(2) is also perfectly consistent with Section 552’s
structure and purpose. Agency pronouncements can
be governed by the requirements of both (a)(1) and
(a)(2) without conflict or absurdity. Suppose, for
instance, that an agency writes a staff manual that
contains, among other things, statements of general
policy. The manual as a whole must be “ma[d]e
available for public inspection” under (a)(2); the
particular statements of general policy must also be
“publish[ed] in the Federal Register” under (a)(1). 5
U.S.C. § 552(a)(1), (2).
By contrast, the Federal Circuit’s mutualexclusivity theory undermines the statute’s structure
20
and purpose. Section 552(a)(1) is designed to force
agencies to formally publish, in the Federal Register,
rules and policies of general applicability. If, as DAV
presumes, anything described in Section 552(a)(2) is
necessarily not subject to (a)(1), then agencies can
evade the publication requirement simply by
embedding materials that would otherwise fall under
(a)(1) in staff manuals and staff directives. But
agencies do not get to manipulate the legal status of
their pronouncements through such maneuvers. See
Guerra v. Shinseki, 642 F.3d 1046, 1051 n.2 (Fed. Cir.
2011), cert. denied, 566 U.S. 905 (2012); cf. Columbia
Broad. Sys., Inc. v. United States, 316 U.S. 407, 416
(1942).
4. On top of everything else, VA’s mutualexclusivity theory of Section 552 is also inconsistent
with this Court’s decision in Morton v. Ruiz, 415 U.S.
199 (1974). See App. 26a (Dyk, J., dissenting). There,
the Court addressed whether a provision of a Bureau
of Indian Affairs manual was subject to Section
552(a)(1)’s publication requirement. Ruiz, 415 U.S. at
231-33. Although the agency described the manual as
“solely an internal-operations brochure,” the Court
found that it actually contained “important” agency
policies concerning benefits eligibility that fell within
§ 552(a)(1) and therefore should have been published
in the Federal Register. Id. at 232-35.
Ruiz thus confirms what the statutory text makes
plain: Section 552(a)(2)’s reference to administrative
manuals does not somehow exempt such manuals
from Section 552(a)(1). The Federal Circuit’s contrary
holding is simply wrong.
21
B. The Federal Circuit’s Interpretation Of
Section 552 Creates A Circuit Split
The Federal Circuit’s mutual-exclusivity holding
also contradicts the prevailing interpretation of
Section 552(a)(1)(D) in the courts of appeals. See App.
26a (Dyk, J., dissenting). That circuit split further
confirms that the decision below warrants correction.
As many circuits have held, an agency
interpretation is of “general applicability” for
purposes of Section 552(a)(1)(D) unless it (1)
expresses “only a clarification or explanation of
existing laws or regulations,” and (2) results in “no
significant impact upon any segment of the public.”
Anderson v. Butz, 550 F.2d 459, 463 (9th Cir. 1977)
(citation omitted); accord Stuart-James Co. v. SEC,
857 F.2d 796, 801 (D.C. Cir. 1988); D & W Food Ctrs.,
Inc. v. Block, 786 F.2d 751, 757 (6th Cir. 1986); Kahn
v. United States, 753 F.2d 1208, 1222 n.8 (3d Cir.
1985); see also Knutzen v. Eben Ezer Lutheran Hous.
Ctr., 815 F.2d 1343, 1351 (10th Cir. 1987) (rules must
be published “if they constitute a change from the
existing law, policy or practice”).
That
interpretation
of
Section
552(a)(1)
unambiguously covers generally-applicable rules
embedded in agency manuals. Indeed, the Ninth
Circuit’s Anderson decision expressly held that
Section 552(a)(1)(D) applied to provisions of an
agency handbook that the court described as “an
administrative staff manual.” 550 F.2d at 461, 463.
And in Linoz v. Heckler, the Ninth Circuit similarly
held that provisions of a Medicare manual fell within
(a)(1)(D). 800 F.2d 871, 878 n.11 (9th Cir. 1986); see
also Herron, 576 F. Supp. at 233 (applying Anderson
22
to hold that provisions of Social Security claims
manual fall under (a)(1)(D)).
The Federal Circuit’s holding that Sections
552(a)(1) and (a)(2) are mutually exclusive thus
directly contravenes the standard interpretation
adopted by other courts. Under the prevailing test,
the M21-1 Manual provisions at issue here clearly
qualify as interpretations of general applicability
under Section 552(a)(1)(D). As the Federal Circuit
itself acknowledged, those provisions (1) constitute a
“change in policy,” and (2) will have “real and far
reaching” effects on veterans insofar as they will bind
“all internal VA adjudicators.” App. 7a, 10a, 12a; see
also id. at 24-25a (Dyk, J., dissenting); Anderson, 550
F.2d at 463.
The Federal Circuit’s decision in this case is
therefore not only wrong, but also creates a circuit
split as to the proper interpretation of Section 552(a).
This Court’s review would both correct the Federal
Circuit’s error and vindicate the uniform, nationwide
application of federal law.
C. The Government Has Admitted That The
Mutual-Exclusivity Theory Is Wrong, But
Continues To Advance It In Court
1. As explained above, VA bears responsibility
for persuading the Federal Circuit to adopt its flawed
mutual-exclusivity interpretation of Section 552(a)(1)
and (a)(2) in DAV and this case. See supra at 10-12.
But VA later disavowed that theory in responding to
Gray’s rehearing petition. See supra at 14-15; App.
32a (Taranto, J., concurring in the denial of rehearing
en banc) (adverting to the Government’s change in
position). There, VA conceded that the Federal
Circuit can “entertain[] direct challenges to
23
‘interpretation[s] of general applicability’ subject to
552(a)(1)(D) that are published in the Manual.” Gov’t
Reh’g Opp. 12 (second alteration in original); see also
id. at 1, 5-6.
The Government’s rejection of the Federal
Circuit’s mutual-exclusivity theory strongly supports
this Court’s review. Indeed, it is hard to imagine that
the Federal Circuit would have adopted that flawed
theory if VA had never pressed it in the first place.
There is no reason to allow the mutual-exclusivity
rule to govern future cases when the Government
itself acknowledges that the rule is wrong.
Although the Government’s response to the
rehearing petition rightly disavowed the mutualexclusivity theory, it claimed that DAV and the
decision below did not, in fact, adopt that theory.
Gov’t Reh’g Opp. 1, 5-14; see also App. 32a (Taranto,
J., concurring in the denial of rehearing en banc). But
in making that argument, the Government ignored all
of the ways in which both DAV and the panel in this
case treated the jurisdictional question as hinging
exclusively on whether the Manual provision at issue
falls under Section 552(a)(1) or (a)(2). See supra at
12-14. As Judge Dyk and the dissenters recognized,
the analysis in DAV and this case turns entirely on
“the notion that § 552(a)(1) and § 552(a)(2) are
mutually exclusive”—a notion for which “[t]here is no
support.” App. 25a-26a; see also id. at 37a. Notably,
the panel did not challenge Judge Dyk’s
characterization of its rationale.
Moreover, the Government’s theory fails to offer
any alternative explanation of the Federal Circuit’s
holding, apart from the mutual-exclusivity theory.
There is no doubt that the interpretive rule at issue
here falls squarely within Section 552(a)(1)(D)’s
24
reference to “interpretations of general applicability
formulated and adopted by the agency.” Indeed, VA
itself repeatedly conceded—no less than 14 times—
that the Manual provisions at issue in DAV and here
are “interpretive rules” and/or “interpretive
statements.” See App. 51a-58a, 60a; see also DAV
Gov’t Br. 16-17, 18, 20, 21, 25, 29, 33. The panel
likewise acknowledged that the provision here is “an
interpretive rule in an administrative manual,” App.
13a-14a; see also id. at 11a (similar); DAV, 859 F.3d
at 1078 (similar). And the Federal Circuit offered no
reasoned explanation of why it would not fall within
Section 552(a)(1)—only that it does fall within Section
552(a)(2).6
In short, the best explanation of DAV and the
decision below is also the simplest: The Government
argued a mutual-exclusivity theory, and the Federal
Circuit embraced it. The fact that the Government
has now abandoned that theory confirms that it is
indefensible and must be set aside.
2. Regrettably, the Government’s inconsistent
treatment of the mutual-exclusivity rule in this case
reflects a troubling pattern in which the Government
has advanced different (and contradictory) positions
as to the meaning of Section 502 at different times
and in different cases. The common thread running
6 Judge Taranto’s concurrence in the denial of rehearing en
banc suggests that the panel’s decision might “rely on particular
features” of the Manual provision at issue, such as the fact that
(1) it is not a substantive rule, and (2) it binds “first-level agency
decisionmakers” but not the Board. App. 32a-34a. But neither
Judge Taranto (nor anyone else) has explained why either point
affects the only question that matters: whether the provision is
an “interpretation[] of general applicability formulated and
adopted by the agency” under Section 552(a)(1). It plainly is.
25
through the Government’s litigation conduct is a winat-all-costs commitment to depriving veterans of
judicial review. And that commitment shows no sign
of abating: Despite abandoning the mutualexclusivity interpretation at the rehearing stage in
this case, the Government has now once again
invoked that theory in a new case. This Court should
grant certiorari to put an end to the Government’s
bobbing and weaving.
a. This case and DAV are not the first instances
in which the Government has addressed whether
Section 502 grants the Federal Circuit jurisdiction to
adjudicate challenges to VA rules or policy statements
embedded in agency manuals. In at least two cases
over the last decade, veterans tried to bring such
challenges in the U.S. District Court for the District
of Columbia. In those cases, the Government had a
direct interest in supporting a broad interpretation of
Section 502’s exclusive jurisdictional grant, because it
provided a clear basis for dismissing the district court
cases. In both cases, the Government correctly
argued that under Section 502, VA manual provisions
can be challenged exclusively in the Federal Circuit.
In 2009, for example, the Government informed
this Court that “under 38 U.S.C. 502, the Federal
Circuit ha[d] exclusive jurisdiction over . . . APA and
FOIA challenges to the [Agent Orange Program
Guide],” such as the one that the petitioner in that
case had tried to bring in district court. Gov’t Br. in
Opp. 5-6, Block v. Shinseki, 558 U.S. 1048 (2009) (No.
09-225), 2009 WL 3420491. The Agent Orange
Program Guide was an amendment to VA’s thenexisting “manual for use by agency adjudicators,” and
the Government conceded that it qualified as a
“general statement of policy” under Section
26
552(a)(1)(D)—thereby triggering the Federal Circuit’s
Section 502 jurisdiction—even though it was also
plainly covered by Section 552(a)(2)’s reference to
“agency staff manuals.” Id. at 2, 4. VA had told the
D.C. Circuit the same thing. See Gov’t Response to
Order to Show Cause at 3 n.1, White v. Shinseki, 329
F. App’x 285 (D.C. Cir. filed Mar. 25, 2009) (No. 085161). And in both the D.C. Circuit and this Court,
the Government’s arguments won the day.
More recently, the Government told the D.C.
Circuit in a different case that under Section 502,
interpretations
“adopted
...
through
[VA]
adjudication manuals” can be “challenge[d] . . .
through an APA action directly in the Federal
Circuit.” Gov’t Br. 21-23, Blue Water Navy Vietnam
Veterans Ass’n v. McDonald, 830 F.3d 570 (D.C. Cir.
2016) (No. 15-5109); see also Mem. Supp. Def.’s Mot.
to Dismiss 18, Blue Water Navy Vietnam Veterans
Ass’n v. McDonald, 82 F. Supp. 3d 443 (D.D.C. 2015)
(No. 1:13-cv-1187), 2013 WL 5869551 (arguing that
Section 552(a)(1) “includ[es] interpretations of
general applicability stated in agency manuals”). The
Government made this point to support its argument
that veterans cannot challenge such interpretations
in courts other than the Federal Circuit. The D.C.
Circuit took the Government at its word, affirming
the district court’s dismissal of a challenge to VA’s
narrow interpretation of “inland waterway” after
finding “no reason why” veterans “cannot seek relief
in the Federal Circuit.” Blue Water Navy, 830 F.3d at
577-78.
b. Despite endorsing Section 502 jurisdiction
over challenges to manual provisions in the cases
noted above, the Government flip-flopped in DAV and
this case. It is not hard to see why: Whereas a broad
27
interpretation of the Federal Circuit’s exclusive
Section 502 jurisdiction helped the Government win
dismissal in those cases, that same interpretation
would prevent the Government from obtaining
dismissal here. And in these new circumstances, the
Government simply changed its tune: It cast aside its
broad interpretation of Section 502 and embraced the
far narrower mutual-exclusivity theory.7
c. As explained above, the Government
prevailed on its mutual-exclusivity theory in DAV and
at the panel stage of this case. But when Gray filed
his rehearing petition and provided a detailed
explanation of why that theory is wrong, the
Government pivoted yet again. Perhaps recognizing
that any defense of its theory would be futile (and
might provoke a grant of rehearing), the Government
instead abandoned that theory and denied that the
Federal Circuit had ever adopted its mutualexclusivity argument in the first place. Here again,
the Government’s change of position had its desired
effect: The Federal Circuit denied rehearing, and
Judge Taranto—who expressly rejected the mutualexclusivity theory—relied on the Government’s
change of position as a reason to oppose review. App.
32a-33a.
d. The changes of position described above are
troubling enough. But it gets even worse: The
Government has flip-flopped yet again. And just as
before, the purpose of the shift is to deny judicial
review to a veteran.
7 The Government’s blatant about-face did not go unnoticed.
See Gray Oral Arg. 24:00-24:17 (question from panel noting that
VA’s position in the D.C. Circuit Blue Water Navy case was
“shockingly different” from its argument in the Federal Circuit).
28
In Krause v. Secretary of Veterans Affairs, a
veteran invoked Section 502 to challenge a VA
document that the Government repeatedly concedes
is a generally-applicable “interpretive document” and
“interpretive statement[].” Gov’t Br. 1-2, 22, 24-26,
Krause v. Sec’y of Veterans Affairs, No. 17-1303 (Fed.
Cir. Mar. 19, 2018), 2018 WL 1905196 (Krause Gov’t
Br.). But the Government’s brief nonetheless argues
that the Federal Circuit lacks jurisdiction, because (1)
the document is expressly referenced in Section
552(a)(2), and so (2) it therefore does not come within
Section 502’s cross-reference to Section 552(a)(1). Id.
at 24-26.
In making that claim, the Government’s brief
relies heavily on the portions of DAV and the decision
in this case establishing the Federal Circuit’s mutualexclusivity interpretation of those provisions. Id.
Indeed, the Government’s brief even quotes DAV’s
holding that “Section 502’s express exclusion of
agency actions subject to § 552(a)(2) renders the M211 Manual beyond our § 502 jurisdiction unless DAV
can show the VA’s revisions more readily fall under
§§ 552(a)(1) or 553.” Id. at 26 (quoting 859 F.3d at
1075). But that holding—which treats Section 502’s
cross-reference to Section 552(a)(1) as an “express
exclusion” of (a)(2), and which requires a court to
determine whether a VA action “more readily fall[s]”
under (a)(1) or (a)(2)—embodies the mutualexclusivity interpretation that the Government
purported to reject in its rehearing petition in this
case. Once again, the Government has changed its
tune, just to score a win.8
8
As in this case, the Government’s Krause brief also
inexplicably advances the view that Section 552(a)(1) covers only
29
3. The Government’s approach to the mutualexclusivity theory—embracing it when convenient,
rejecting it when not—strongly reinforces the need for
this Court’s review. The Government already enjoys
immense advantages in resources and expertise when
litigating against individual veteran claimants. It
should be not allowed to further exploit that
advantage by changing positions, chameleon-like, to
suit the needs of each moment.
Indeed, the
Government’s most recent filing in Krause makes
clear that unless this Court intervenes, it will
continue to press the mutual-exclusivity theory in the
Federal Circuit—where it will surely succeed. The
only way to put the Government’s opportunism to rest
is for this Court to grant certiorari and reject that
theory, once and for all.
D. Review Is Needed To Protect Veterans
From Unlawful VA Rules
1. In recent years, this Court has regularly
granted certiorari to correct the Federal Circuit’s
misinterpretation of statutes falling within that
“substantive” rules. See Krause Gov’t Br. 24 (“Because the
[agency document at issue] contains interpretive statements and
not substantive rules under section 553, the Court would need to
conclude that they are nevertheless ‘substantive rules’ under
section 552(a)(1) to exercise its section 502 jurisdiction.”
(emphasis added)); see also id. at 25 (applying test for
substantive rules); supra at 11 n.5. That assertion is plainly
wrong: Section 552(a)(1) encompasses “substantive rules,” but it
also covers agency “interpretations of general applicability” and
“statements of general policy.” 5 U.S.C. § 552(a)(1)(D). We
would welcome the Solicitor General’s clarification of (1) whether
the Government actually believes that that Section 552(a)(1) is
limited to “substantive rules,” and (2) whether it believes the
Federal Circuit’s decisions in this case and DAV are premised on
that view.
30
court’s exclusive jurisdiction over veterans law. See,
e.g., Kingdomware Techs., Inc. v. United States, 136
S. Ct. 1969 (2016); Henderson v. Shinseki, 562 U.S.
428 (2010); Shinseki v. Sanders, 556 U.S. 396 (2009).
The need for review is just as compelling here, where
the Federal Circuit’s decision threatens to inflict
“significant ‘hardship’” on our Nation’s veterans.
App. 25a (Dyk, J., dissenting) (citation omitted).
As the dissenting judges recognized, the question
presented in this case holds “exceptional importance”
for veterans because it will have a “widespread impact
on the efficient adjudication of veterans’ claims.” Id.
at 37a (Dyk, J., dissenting from the denial of
rehearing en banc). Indeed, it will have a direct and
immediate impact on the ability of all veterans to
obtain the benefits to which they are entitled under
law.
As this Court well knows, VA regularly adopts
rules or policies that violate important statutes or
regulations
designed
to
protect
veterans.9
9
See, e.g., Kingdomware, 136 S. Ct. at 1977 (VA
“disregard[ed]” statutory text in refusing to award government
contract to veteran-owned small businesses); Brown v. Gardner,
513 U.S. 115, 122 (1994) (VA heightened veterans’ burden to
receive disability benefits in a regulation that “flies against the
plain language of the statutory text”); Johnson v. McDonald, 762
F.3d 1362, 1365-66 (Fed. Cir. 2014) (VA tried to “redefine the
plain language of a regulation”); Military Order of the Purple
Heart v. Sec’y of Veterans Affairs, 580 F.3d 1293, 1297-98 (Fed.
Cir. 2009) (VA rule “was not implemented in compliance with the
requirements of the [APA]” and failed to “comport with the
governing [r]egulations”); Paralyzed Veterans of Am. v. Sec’y of
Veterans Affairs, 345 F.3d 1334, 1338, 1346 (Fed. Cir. 2003) (VA
promulgated “unreasonable” regulation that was “contrary to
the statutory mandate” by “impos[ing] on claimants an arbitrary
new deadline” that narrowed veterans’ ability to submit
31
Shockingly, the Government is ordered to pay
veterans’ attorneys’ fees in somewhere between 50%
and 70% of cases filed in the Veterans Court, because
it has taken a “position [that] is not ‘substantially
justified’” by law. Astrue v. Ratliff, 560 U.S. 586, 601
& n.2 (2010) (Sotomayor, J., concurring) (citation
omitted); see also Henderson, 562 U.S. at 432 (noting
that close to 80% of VA decisions appealed to the
Veterans Court are either overturned or remanded).
Precisely for that reason, Congress has authorized
direct challenges to generally-applicable VA rules—to
ensure that the Federal Circuit will protect veterans
when the agency loses its way. As that court has
explained, Section 502 reflects Congress’s “preference
for preenforcement review of [VA] rules.” Nat’l Org.
of Veterans’ Advocates, Inc. v. Sec’y of Veterans
Affairs, 330 F.3d 1345, 1347 (Fed. Cir. 2003).
The Federal Circuit’s misinterpretation of Section
552(a) countermands that preference by shrinking its
authority to hear direct challenges to a broad swath
of potentially unlawful VA rules. Under this case and
DAV, VA can thwart direct review simply by
embedding important rules in its M21-1 Manual.
Indeed, at oral argument below, the VA unabashedly
evidence); Disabled Am. Veterans v. Sec’y of Veterans Affairs, 327
F.3d 1339, 1349 (Fed. Cir. 2003) (VA regulation wrongly
“impose[d] a misleading hurdle” by failing to “notify[]
unsuspecting claimant[s] that [they have] a full year to submit”
mitigating evidence); Nat’l Org. of Veterans’ Advocates, Inc. v.
Sec’y of Veterans Affairs, 260 F.3d 1365, 1368 (Fed. Cir. 2001)
(VA “failed to explain its rationale for interpreting . . . virtually
identical statutes in conflicting ways”); Disabled Am. Veterans v.
Gober, 234 F.3d 682, 699 (Fed. Cir. 2000) (VA imposed
heightened pleading requirements on veterans that were
“contrary to the [statute]”).
32
argued that “publish[ing] [the challenged provision]
in the administrative staff manual is a choice the
agency is entitled to make,” that VA’s choice “has
certain effects,” and that one of those effects “is that
it divests [the Federal Circuit] from direct review
under [Section] 502.” Gray Oral Arg., 32:39-32:55; see
id. at 36:44-36:57 (“The [Section 502] question is
where do they publish it. If they choose to publish it
in the Federal Register, then it is reviewable, because
it would be under [Section] 552(a)(1), so it would be
within this court’s [Section] 502 jurisdiction. But
where they choose to put it in an administrative staff
manual, it is not.”).
Under DAV and the decision below, by choosing to
publish interpretive rules in a manual rather than as
a freestanding document, VA can ensure that its rules
will be considered only in challenges to individual
benefits adjudications or VA’s denial of a rulemaking
petition. See App. 13a; id. at 25a (Dyk, J., dissenting).
But VA’s gargantuan backlog of over 470,000
individual cases is already a national disgrace, and it
can take ages for any such case to wind its way
through the VA, the Board, the Veterans Court, the
Federal Circuit, and (perhaps) ultimately here.
Indeed, on average it takes a total of approximately
six years for a veteran’s claim to proceed through the
Regional Office, the Board, and the Veterans Court.
See supra at 6. And each year, thousands of veterans
die before their claims and appeals are finally
resolved. See supra at 6.
Forcing veterans to navigate this “bureaucratic
labyrinth, plagued by delays and inaction,” Martin,
2018 WL 2727502, at *8 (Moore, J., concurring), is bad
enough for ordinary benefits cases. But it makes
absolutely no sense when the case centers on a pure
33
legal issue—the validity of an interpretive rule—that
can easily be resolved at the outset by the Federal
Circuit on a direct petition for review. As Judge Dyk
recognized, it is wrong to inflict “substantial and
unnecessary” burdens on individual veterans by
requiring them to “undergo protracted agency
adjudication in order to obtain preenforcement
judicial review of a purely legal question that is
already ripe for [Federal Circuit] review.” App. 15a16a.
Congress did the right thing in authorizing
preenforcement review in the Federal Circuit, thereby
minimizing the extent to which unlawful VA rules
will infect individual adjudications while their
validity remains uncertain. By granting certiorari,
this Court can vindicate Congress’s goal of protecting
veterans and keeping VA in check.
2. Gray’s case illustrates the importance of
allowing veterans to bring preenforcement Section
502 challenges to VA manual provisions that
unlawfully deprive them of benefits. Gray served our
country for more than three years, with honor and
distinction, in the Vietnam War. During that time, he
served aboard the U.S.S. Roark, a destroyer escort
that anchored multiple times in Vietnam’s Da Nang
Harbor. Gray, 27 Vet. App. at 316-17. He was
exposed to Agent Orange, and he now suffers from
herbicide-related disabilities, including diabetes,
neuropathy, and heart disease. Id.
For over 11 years—since 2007—Gray has been
diligently pursuing his administrative and legal
remedies, thus far to no avail. App. 6a. Although he
briefly succeeded in overturning VA’s “arbitrary” and
“irrational”
prior
interpretation
of
“inland
waterways,” Gray, 27 Vet. App. at 324-25, VA simply
34
responded by issuing the even more restrictive 2016
interpretation.
Gray’s challenge to the new interpretation has
merit: VA still wrongly rejects the presumption of
service connection for Navy veterans who served in
Vietnam’s bays and harbors, even though (1) they
undeniably served within the international-law
boundaries of the Republic of Vietnam (which is what
the statute requires), and (2) the best evidence shows
that such veterans were exposed to Agent Orange.
VA’s prior interpretation of the statute and
regulations arbitrarily ignored that evidence, id. at
322-24, and its 2016 interpretation commits
essentially the same mistake, see Pet’r C.A. Br. 18-26.
Gray is now nearly 65 years old, and his diabetes
and other ailments have left him in poor health and
unable to work. Further extended delays could mean
that he never receives the benefits he is due under the
law. The same goes for the thousands of other
Vietnam veterans whose entitlement to benefits
likewise turns on the validity of the Manual
provisions at issue here. For such veterans, justice
delayed will be justice denied.
3. This Court should resolve the Section 502
jurisdictional issue here and now. The Federal
Circuit has twice definitively misinterpreted the
relevant statutes, and it refused to reconsider its
error en banc—even after VA disavowed the mutualexclusivity theory. There is no reasonable prospect
that further percolation will make any difference.
Indeed, it is quite unlikely that veterans will continue
to bring Section 502 challenges to manual provisions
in the face of the Federal Circuit’s restrictive holding.
This case is an ideal vehicle to overturn that flawed
35
holding and restore the full measure of judicial review
authorized by Congress.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
MATTHEW D. HILL
SHANNON L. BREWER
HILL & PONTON, P.A.
605 East Robinson Street
Suite 635
Orlando, FL 32801
MICHAEL E. WILDHABER
VETERANS LAW ATTORNEY
700 12th Street, NW
Suite 700
Washington, DC 20005
ROMAN MARTINEZ
Counsel of Record
BENJAMIN W. SNYDER
GRAHAM E. PHILLIPS
BLAKE E. STAFFORD
LATHAM & WATKINS LLP
555 11th Street, NW
Suite 1000
Washington, DC 20004
(202) 637-2200
roman.martinez@lw.com
Counsel for Petitioner
June 19, 2018
APPENDIX
APPENDIX TABLE OF CONTENTS
Page
Opinion of the United States Court of Appeals
for the Federal Circuit, Gray v. Secretary
of Veterans Affairs, 875 F.3d 1102 (Fed.
Cir. 2017)..............................................................1a
Opinion of the United States Court of Appeals
for
the
Federal
Circuit
Denying
Rehearing, Gray v. Secretary of Veterans
Affairs, 884 F.3d 1379 (Fed. Cir. 2018) .............29a
5 U.S.C. § 552(a)(1)–(3) ...........................................38a
5 U.S.C. § 553 ..........................................................43a
38 U.S.C. § 502 ........................................................45a
Excerpt of Adjudication Procedures Manual,
M21-1, Part IV, Subpart ii, Chapter 1,
Section H (last revised Mar. 27, 2018),
https://www.knowva.ebenefits.va.gov/syst
em/templates/selfservice/va_ssnew/help/c
ustomer/locale/enUS/portal/554400000001018/content/5544
00000014940/M21-1-Part-IV-Subpart-iiChapter-1-Section-H-Developing-Claimsfor-Service-Connection-SC-Based-onHerbicide-Exposure ...........................................46a
Excerpt of Brief for Respondent, Gray v.
McDonald, No. 16-1782 (Fed. Cir. filed
Nov. 14, 2016) ....................................................51a
1a
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
ROBERT H. GRAY,
Petitioner
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent
2016-1782
Petition for review pursuant to 38 U.S.C. § 502.
------------------------------------------------------------------------BLUE WATER NAVY VIETNAM VETERANS
ASSOCIATION,
Petitioner
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent
2016-1793
Petition for review pursuant to 38 U.S.C. § 502.
Decided: November 16, 2017
875 F.3d 1102
Before PROST, Chief Judge, DYK, and O’MALLEY,
Circuit Judges.
2a
Opinion for the court filed by Circuit Judge
O’MALLEY.
Opinion dissenting in part and concurring in the
judgment filed by Circuit Judge DYK.
O’MALLEY, Circuit Judge.
Robert H. Gray (“Gray”) and Blue Water Navy
Vietnam Veterans Association (“Blue Water”)
(collectively, “Petitioners”) petition this court under
38 U.S.C. § 502 to review certain revisions the
Department of Veterans Affairs (“VA”) made to its
Adjudication Procedures Manual M21-1 (“M21-1
Manual”) in February 2016. These revisions pertain
to the VA’s interpretation of provisions of the Agent
Orange Act of 1991 (the “Agent Orange Act”), Pub. L.
No. 102-4, 105 Stat. 11, codified as amended at 38
U.S.C. § 1116, as implemented via regulations at 38
C.F.R. §§ 3.307(a)(6), 3.309(e). Because the VA’s
revisions are not agency actions reviewable under
§ 502, we dismiss for lack of jurisdiction.
I. BACKGROUND
A. The Agent Orange Act
To receive disability compensation based on
service, a veteran must demonstrate that his or her
disability was service-connected, meaning that it was
“incurred or aggravated . . . in line of duty in the
active military, naval, or air service.” 38 U.S.C.
§ 101(16). Establishing service connection generally
requires three elements: “‘(1) the existence of a
present disability; (2) in-service incurrence or
aggravation of a disease or injury; and (3) a causal
relationship between the present disability and the
disease or injury incurred or aggravated during
3a
service’—the so-called ‘nexus’ requirement.” Holton
v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009)
(quoting Shedden v. Principi, 381 F.3d 1163, 1167
(Fed. Cir. 2004)). The claimant has the responsibility
to support a claim for service connection. 38 U.S.C.
§ 5107(a).
Congress has enacted presumptive service
connection laws to protect certain veterans who faced
exposure to chemical toxins during service, but would
find it difficult or impossible to satisfy the obligation
to prove a “nexus” between their exposure to toxins
and their disease or injury. Among these laws is the
Agent Orange Act, which established a framework for
the adjudication of disability compensation claims for
Vietnam War veterans with diseases medically linked
to herbicide exposure in the Republic of Vietnam
during the Vietnam War. Under the Agent Orange
Act, any veteran who “served in the Republic of
Vietnam” during the Vietnam era and who suffers
from any of certain designated diseases “shall be
presumed to have been exposed during such service”
to herbicides “unless there is affirmative evidence to
establish that the veteran was not exposed.” Id.
§ 1116(f). The Agent Orange Act also established
several statutory presumptions and a methodology
for the VA to create additional regulatory
presumptions that certain diseases were “incurred in
or aggravated by” a veteran’s service in Vietnam. Id.
§ 1116(a). The VA then proceeded to determine which
diseases would qualify for presumptive service
connection and to define what service “in the Republic
of Vietnam” encompasses.
In May 1993, the VA issued regulations
establishing presumptive service connection for
certain diseases associated with exposure to
4a
herbicides in Vietnam. The relevant regulation
conditions application of the presumption on the
claimant having “served in the Republic of Vietnam,”
including “service in the waters offshore and service
in other locations if the conditions of service involved
duty or visitation in the Republic of Vietnam.” 38
C.F.R. § 3.307(a)(6)(iii) (1993) (emphasis added); see
Diseases Associated with Service in the Republic of
Vietnam, 58 Fed. Reg. 29,107, 29,109 (May 19, 1993).
Absent on-land service, the VA concluded that the
statute and regulation do not authorize presumptive
service connection for those veterans serving in the
open waters surrounding Vietnam—known as “Blue
Water” veterans. We considered the VA’s position in
Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), and
concluded that it was neither an unreasonable
interpretation of the congressionally mandated
presumption nor of the VA’s own regulations relating
thereto. Id. at 1190–95.
The dispute now before us arises from the VA’s
decision not just to exclude open water service from
the definition of service in the “Republic of Vietnam,”
but to also exclude those veterans who served in bays,
harbors, and ports of Vietnam from presumptive
service connection.
In other words, absent
documented service on the land mass of Vietnam or in
its “inland waterways”—defined as rivers and
streams ending at the mouth of the river or stream,
and excluding any larger bodies of water into which
those inland waters flow—the VA has concluded that
no presumptive service connection is to be applied.
The VA did not implement this additional restriction
by way of notice and comment regulation as it did its
open waters restriction, and it has not published its
view on this issue in the Federal Register. Instead,
5a
the VA has incorporated this new restriction into the
M21-1 Manual, which directs VA adjudicators
regarding the proper handling of disability claims
from Vietnam-era veterans. It is this Manual revision
which Gray challenges and asks us to declare invalid.
B. The M21-1 Manual and the 2016 Revision
As we explained recently, “[t]he VA consolidates
its [internal] policy and procedures into one resource
known as the M21-1 Manual.” Disabled Am. Veterans
v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1074 (Fed.
Cir. 2017) (“DAV”). The M21-1 Manual “is an internal
manual used to convey guidance to VA adjudicators.”
VA Adjudications Manual, M21-1; Rescission of
Manual M21-1 Provisions Related To Exposure to
Herbicides Based on Receipt of the Vietnam Service
Medal, 72 Fed. Reg. 66,218, 66,219 (Nov. 27, 2007)
[hereinafter 2007 M21-1 Manual Revisions]. “The
M21-1 Manual provides guidance to Veterans
Benefits Administration (‘VBA’) employees and
stakeholders to allow the VBA to process claims
benefits quicker and with higher accuracy.” DAV, 859
F.3d at 1074 (internal quotation marks omitted). The
M21-1 Manual is available to the public through the
KnowVA
website.
See
http://www.knowva.ebenefits.va.gov/system/template
s/selfservice/va_ss/#!portal/554400000001018/topic/5
54400000004049/M21-1-Adjudication-ProceduresManual. The M21-1 Manual provisions are not
binding on anyone other than the VBA employees,
however; notably, the Board of Veterans’ Appeals
(“Board”) is not bound by any directives in the M21-1
Manual and need not defer to any administrator’s
adherence to those guidelines. See 38 C.F.R. § 19.5.
6a
In 2007, Gray filed a claim for disability
compensation for a number of medical conditions
allegedly arising out of his naval service in Da Nang
Harbor. Gray v. McDonald, 27 Vet. App. 313, 316
(2015). At the time, the M21-1 Manual defined
“service in the Republic of Vietnam (RVN)” as “service
in the RVN or its inland waterways.” M21-1 Manual,
part IV, ch. 1, ¶ H.28.a (2005). In a February 2009
letter, the VA further explained that it interpreted
“inland waterways” to mean “rivers, estuaries, canals,
and delta areas inside the country, but . . . not . . .
open deep-water coastal ports and harbors where
there is no evidence of herbicide use.” Gray, 27 Vet.
App. at 321–22 (alterations in original) (quoting
Letter from the Director of VA C & P Service,
February 2009, and December 2008 C & P Service
Bulletin).
After the VA denied Gray’s claim under this
interpretation, he appealed to the U.S. Court of
Appeals for Veterans Claims (“the Veterans Court”).
Id. at 318. The Veterans Court concluded that the
VA’s definition of “inland waterway” was “both
inconsistent with the regulatory purpose and
irrational,” in part because the VA had offered no
meaningful explanation for why it classified some
bays as inland waterways but not others. Id. at 322–
25. The Veterans Court remanded the matter to the
VA with instructions to reevaluate its definition of
“inland
waterway”
to
be
consistent
with
§ 3.307(a)(6)(iii). Id. at 326–27.
Following the remand, the VA surveyed the
available scientific evidence, including documents
submitted in July 2015 by counsel for Blue Water, an
organization representing a number of Blue Water
veterans. In a draft document it issued on January
7a
15, 2016, the VA acknowledged that it had failed to
“clearly explain the basis” for its previous
classifications. J.A. 203. The VA concluded that,
because “Agent Orange was not sprayed over
Vietnam’s offshore waters,” the VA did “not have
medical or scientific evidence to support a
presumption of exposure for service on the offshore
open waters,” which it defined as “the high seas and
any coastal or other water feature, such as a bay,
inlet, or harbor, containing salty or brackish water
and subject to regular tidal influence.” J.A. 203–04.
Accordingly, in February 2016, the VA published
a “Memorandum of Changes” announcing a change in
policy and an accompanying revision of the M21-1
Manual. J.A. 207. The revised M21-1 Manual defines
“inland waterways” as follows:
Inland waterways are fresh water rivers,
streams, and canals, and similar waterways.
Because these waterways are distinct from
ocean waters and related coastal features,
service in these waterways is service in the
[Republic of Vietnam]. VA considers inland
waterways to end at their mouth or junction to
other offshore water features, as described
below. For rivers and other waterways ending
on the coastline, the end of the inland waterway
will be determined by drawing straight lines
across the opening in the landmass leading to
the open ocean or other offshore feature, such
as a bay or inlet. For the Mekong and other
rivers with prominent deltas, the end of the
inland waterways will be determined by
drawing a line across each opening in the
landmass leading to the open ocean.
8a
Note: Inland waterway service is also referred
to as brown-water Navy service.
M21-1 Manual, part IV, subpart ii, ch. 1, ¶ H.2.a
(2016) (emphasis in original). By virtue of this
manual change, the VA instructed all claims
processors in its 56 regional offices to exclude all Navy
personnel who served outside the now-defined “inland
waterways” of Vietnam—i.e., in its ports, harbors,
and open waters—from presumptive service
connection for diseases or illnesses connected with
exposure to Agent Orange. Thus, the VA instructed
its adjudicators to exclude all service in ports,
harbors, and bays from presumptive service
connection, rather than service in only some of those
waterways. Petitioners seek review of this revision
pursuant to 38 U.S.C. § 502.
II. DISCUSSION
“A party seeking the exercise of jurisdiction in its
favor has the burden of establishing that such
jurisdiction exists.” DAV, 859 F.3d at 1075 (quoting
Rocovich v. United States, 933 F.2d 991, 993 (Fed. Cir.
1991)). Under 38 U.S.C. § 502, we have jurisdiction
to review only those agency actions that are subject to
5 U.S.C. §§ 552(a)(1) and 553. We do not have
jurisdiction to review actions that fall under
§ 552(a)(2). “Section 553 refers to agency rulemaking
that must comply with notice-and-comment
procedures under the Administrative Procedure Act.”
DAV, 859 F.3d at 1075. The parties agree that § 553
is not at issue in this proceeding. The parties instead
focus on § 552; their debate is whether the manual
provisions challenged in this action fall under
§ 552(a)(1), giving us authority to consider them in
9a
the context of this action, or § 552(a)(2), prohibiting
our review here.
In relevant part, § 552(a)(1) provides:
Each agency shall separately state and
currently publish in the Federal Register for
the guidance of the public—
....
(D) substantive rules of general applicability
adopted as authorized by law, and statements
of general policy or interpretations of general
applicability formulated and adopted by the
agency; and
(E) each amendment, revision, or repeal of the
foregoing.
§ 552(a)(2) provides that:
Each agency, in accordance with published
rules, shall make available for public inspection
in an electronic format—
....
(B)
those
statements
of
policy and
interpretations which have been adopted by the
agency and are not published in the Federal
Register; [and]
(C) administrative staff manuals and
instructions to staff that affect a member of the
public;
....
The government contends that, because M21-1
Manual provisions are expressly governed by
§ 552(a)(2), this court may not review them unless
and until they are applied in and govern the
resolution of an individual action.
This is so,
according to the government, regardless of how
10a
interpretive or policy-laden the judgments are that
resulted in the formulation of those manual
provisions. Gray contends that the government’s
view of § 552 is too myopic. He contends that a
manual provision can fall under § 552(a)(1) where,
regardless of its designation, it constitutes an
interpretive rule of general applicability that
adversely affects the rights of an entire class of
Vietnam veterans. In other words, Gray contends
that it is not the way in which the VA chooses to
implement its policies and statutory interpretations
that implicates our jurisdiction, it is the impact of
what the VA is doing that matters. While Gray’s
points are not without force—and the VA even
concedes that the impact of its manual changes is
both real and far reaching—we conclude that we may
not review Gray’s challenge in the context of this
action.
We recently considered a challenge under § 502 to
another revision to the M21-1 Manual. DAV, 859 F.3d
at 1074–75. The Manual revision at issue in DAV
provided guidance regarding the term “medically
unexplained chronic multisymptom illness,” which
appeared in a statute and regulation related to
presumptive service connection for Persian Gulf War
veterans. Id. (citing 38 U.S.C. § 1117(a)(2); 38 C.F.R.
§ 3.317(a)(2)(ii)).
In determining whether § 502
granted this court jurisdiction to consider a direct
challenge to the Manual revision, we identified “three
relevant factors to whether an agency action
constitutes substantive rulemaking under the APA:
‘(1) the [a]gency’s own characterization of the action;
(2) whether the action was published in the Federal
Register or the Code of Federal Regulations; and
(3) whether the action has binding effects on private
11a
parties or on the agency.’” Id. at 1077 (alteration in
original) (quoting Molycorp, Inc. v. EPA, 197 F.3d 543,
545 (D.C. Cir. 1999)). We noted that “the ultimate
focus of the inquiry is whether the agency action
partakes of the fundamental characteristic of a
regulation, i.e., that it has the force of law.” Id.
(quoting Molycorp, 197 F.3d at 545). Applying these
factors, we found that the challenged Manual
revisions “d[id] not amount to a § 553 rulemaking and
d[id] not carry the force of law.” Id.
We then held that the revisions “clearly f[e]ll
under” § 552(a)(2) and not § 552(a)(1). Id. at 1078.
We explained that “[w]here, as here, manual
provisions are interpretations adopted by the agency,
not published in the Federal Register, not binding on
the Board itself, and contained within an
administrative staff manual, they fall within
§ 552(a)(2)—not § 552(a)(1).” Id. We concluded that
this was so, regardless of the extent to which the
manual provision might be considered interpretive or
a statement of policy. Id. On these grounds, we
dismissed the challenge for lack of jurisdiction. Id.
Our holding in DAV compels the same result here.
Like that in DAV, the manual provision at issue here
is an interpretation adopted by the agency; the M211 Manual “convey[s] guidance to VA adjudicators,”
but “[i]t is not intended to establish substantive
rules.” 2007 M21-1 Manual Revisions, 72 Fed. Reg.
at 66,219. The revisions at issue were not published
in the Federal Register or the Code of Federal
Regulations. The Board remains “bound only by
‘regulations of the Department, instructions of the
Secretary, and the precedent opinions of the chief
legal officer of the Department’”—and not the M21-1
Manual. DAV, 859 F.3d at 1077 (quoting 38 U.S.C.
12a
§ 7104(c)). And, of course, the provisions in question
are contained within an administrative staff manual:
the M21-1 Manual. While it is admittedly true that
compliance with this Manual revision by all internal
VA adjudicators will affect the concerned veterans, at
least initially, it also remains true that the Board is
not bound to accept adjudications premised on that
compliance. As we found in DAV, where the action is
not binding on private parties or the agency itself, we
have no jurisdiction to review it.
To be clear, it is not the moniker applied to this VA
policy statement that is controlling. There are
circumstances where we have found agency actions
reviewable under § 552(a)(1) precisely because they
had a binding effect on parties or entities other than
internal VA adjudicators. See, e.g., Lefevre v. Sec’y,
Dep’t of Veterans Affairs, 66 F.3d 1191, 1196–98 (Fed.
Cir. 1995). We addressed several of those cases in
DAV and explained why they differed from the
circumstances at issue there. 859 F.3d at 1075–77.
While the Manual provisions here differ from those at
issue in DAV, their scope and binding effect are
identical. We, accordingly, must reach the same
conclusion regarding the scope of our jurisdiction here
as we did in DAV.
As we also explained in DAV, this disposition does
not leave Petitioners without recourse. For example,
“[a] veteran adversely affected by a M21-1 Manual
provision can contest the validity of that provision as
applied to the facts of his case under 38 U.S.C.
§ 7292.” DAV, 859 F.3d at 1078; see, e.g., Haas, 525
F.3d at 1187–90 (reviewing a provision of the M21-1
Manual interpreting § 3.307(a)(6)(iii) as part of an
appeal from the Veterans Court). Individual veterans
and organizations such as Blue Water also may
13a
petition the VA for rulemaking. See 5 U.S.C. § 553(e).
We have held that Ҥ 502 vests us with jurisdiction to
review the Secretary’s denial of a request for
rulemaking made pursuant to § 553(e).” Preminger v.
Sec’y of Veterans Affairs, 632 F.3d 1345, 1352 (Fed.
Cir. 2011).1 Because the February 2016 revision to
the M21-1 Manual falls under § 552(a)(2) and not
§ 552(a)(1) or § 553, however, we lack jurisdiction
under § 502 to hear Petitioners’ direct challenge to the
revision.
We recognize the costs that today’s outcome
imposes on Petitioners and the veterans they
represent. Petitioners sought direct review in this
court to bypass yet another years-long course of
individual adjudications or petitions for rulemaking.
Given the health risks that many of these veterans
face, Petitioners’ urgency is understandable. But we
are constrained by the narrow scope of the jurisdiction
that Congress has granted to us.
We also note that, although the VA has delayed
review of its interpretation by revising its manual
instead of pursuing formal rulemaking, “that
convenience comes at a price.” Perez v. Mortg.
Bankers Ass’n, 135 S. Ct. 1199, 1204 (2015). As the
VA admits, an interpretive rule in an administrative
1
Indeed, the parties advised us at oral argument that
Gray and several other veterans have filed appeals to the
Veterans Court from the VA’s denials of their claims for
disability compensation under the revised provision of the M211 Manual. Oral Argument at 6:53–8:13, Gray v. Sec’y of Veterans
Affairs,
2016-1782,
available
at
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20161782.mp3. Counsel for Gray and Blue Water also informed us
that a petition for rulemaking regarding the definition of “inland
waterways” is pending before the VA. Id. at 13:05–13:34.
14a
manual “lack[s] the ‘force and effect of law,’ and thus
receive[s] different ‘weight in the adjudicatory
process.’” Gray Resp. Br. at 30 (quoting Perez, 135 S.
Ct. at 1204).
And, agencies’ “interpretations
contained in . . . agency manuals . . . do not warrant
Chevron-style deference.”
Christensen v. Harris
County, 529 U.S. 576, 587 (2000) (citations omitted).
We must await an individual action to assess the
propriety of the VA’s interpretation of the Agent
Orange Act and attendant regulations.
III. CONCLUSION
For these reasons, we dismiss the petition for lack
of jurisdiction.2
DISMISSED
2 Also before us are two motions by Blue Water to
supplement the index of record. No. 16-1793, ECF Nos. 22, 30.
Because we lack jurisdiction to consider the merits of the VA’s
action, we deny both motions as moot.
15a
DYK, Circuit Judge, dissenting in part and concurring
in the judgment.
The majority holds that we lack jurisdiction to
review revisions to a Department of Veterans Affairs
(“VA”) manual used by the agency to adjudicate
veterans benefits. The majority concludes it is bound
to reach this result by the recent decision of another
panel in Disabled American Veterans v. Secretary of
Veterans Affairs (DAV), 859 F.3d 1072 (Fed. Cir.
2017). There, the panel categorically held that
“[w]here, as here, manual provisions are
interpretations adopted by the agency, not published
in the Federal Register, not binding on the Board [of
Veterans’ Appeals], and contained within an
administrative staff manual, they fall” outside the
scope of 5 U.S.C. §§ 552(a)(1) and 553. DAV, 859 F.3d
at 1078. It follows that there is no jurisdiction under
38 U.S.C. § 502. Id.
I agree we are bound by DAV to hold that the
manual revisions are not reviewable.
But I
respectfully suggest that DAV was wrongly decided.
The analysis of 5 U.S.C. § 552(a)(1) in DAV—rendered
without substantial briefing on that statutory
provision—conflicts with our prior decisions applying
that subsection to VA actions. The rule established
by DAV also departs from the approach of other courts
of appeals, which have held that analogous agency
pronouncements are reviewable. Nothing in § 502
suggests that we should be less generous in our
review with respect to VA than other courts have been
with respect to other agencies. And DAV imposes a
substantial and unnecessary burden on individual
veterans, requiring that they undergo protracted
agency
adjudication
in
order
to
obtain
16a
preenforcement judicial review of a purely legal
question that is already ripe for our review.
I
Pursuant to the Agent Orange Act of 1991, 38
U.S.C. § 1116, and VA regulations, veterans who
“served in the Republic of Vietnam . . . shall be
presumed to have been exposed” to Agent Orange, 38
C.F.R. § 3.307(a)(6)(iii). The regulations further
define “[s]ervice in the Republic of Vietnam” to
“include[] service in the waters offshore and service in
other locations if the conditions of service involved
duty or visitation in the Republic of Vietnam.” Id. For
those veterans covered by the presumption, certain
specified diseases “shall be considered to have been
incurred
or
aggravated
by
such
service,
notwithstanding that there is no record evidence of
such disease during the period of such service.”
§ 1116(a)(1). This presumed service connection was
established because, as Congress realized, in the
absence of adequate contemporaneous records and
testing, “it was too difficult to determine who was
exposed and who was not.” Haas v. Peake, 525 F.3d
1168, 1185 (Fed. Cir. 2008); see also LeFevre v. Sec’y,
Dep’t of Veterans Affairs, 66 F.3d 1191, 1197 (Fed. Cir.
1995) (“Congress . . . recognized that ordinarily it
would be impossible for an individual veteran to
establish that his disease resulted from exposure to
herbicides in Vietnam.”).
Many of the rules that govern whether and how to
apply the presumption of service connection are set
forth in a VA document known as the Adjudications
Procedures Manual M21-1 (the “Manual”), “an
internal manual used to convey guidance to VA
adjudicators” in dealing with veterans’ benefits
17a
claims.
Maj. Op. 5 (quoting VA Adjudications
Manual, M21-1; Rescission of Manual M21-1
Provisions Related to Exposure to Herbicides Based on
Receipt of the Vietnam Service Medal, 72 Fed. Reg.
66,218, 66,219 (Nov. 27, 2007)). As described by the
majority, the Manual has for at least a decade
included service in the “inland waterways” of
Vietnam as sufficient to warrant the presumption. Id.
at 6. In a 2009 letter, VA supplemented this provision
by defining “inland waterways” to include rivers and
deltas but not harbors and bays. Id. Petitioner Gray
challenged that definition before the Court of Appeals
for Veterans Claims, which found it to be both
irrational and inconsistent with VA’s own
regulations. Id. (citing Gray v. McDonald, 27 Vet.
App. 313, 322-25 (2015)). The matter was remanded
for further action by the Secretary. Id. (citing Gray,
27 Vet. App. at 326-27).
In February 2016, following the remand by the
Court of Appeals for Veterans Claims, VA revised the
portion of the Manual concerning its interpretation of
the Agent Orange Act’s requirement that the veteran
have “served in the Republic of Vietnam.” These
revisions for the first time established a detailed test
for determining whether service aboard a vessel in
the vicinity of Vietnam suffices to establish a
presumption of service connection. First, mirroring
its 2009 letter, VA inserted a new instruction that
“[s]ervice on offshore waters does not establish a
presumption.” Manual § IV.ii.1.H.2.a. In other
words, while service in inland waterways qualifies,
service in the offshore waters of Vietnam does not
constitute service in the Republic of Vietnam. The
revised Manual then goes on to narrowly define
18a
“inland waterways”1 at the same time it broadly
defines “offshore waters”: “Offshore waters are the
high seas and any coastal or other water feature, such
as a bay, inlet, or harbor, containing salty or brackish
water and subject to regular tidal influence. This
includes salty and brackish waters situated between
rivers and the open ocean.” Id. § IV.ii.1.H.2.b.
Finally, the Manual notes that these revisions change
the treatment of Qui Nhon Bay Harbor and Ganh Rai
Bay: service in these bays previously entitled a
veteran to the presumption, but they now fall outside
the Manual’s definition of inland waterways. Id.
§ IV.ii.1.H.2.c. The Manual revisions significantly
restrict the right to the presumptive service
connection. The question before us is whether the
revisions are subject to preenforcement judicial
review.
II
Our jurisdiction here rests on 38 U.S.C. § 502,
which provides, “An action of the Secretary to which
section 552(a)(1) or 553 of title 5 (or both) refers is
subject to judicial review.” Section 553 defines the
1
“Inland waterways are fresh water rivers, streams,
and canals, and similar waterways. Because these waterways
are distinct from ocean waters and related coastal features,
service on these waterways is service in [Vietnam]. VA considers
inland waterways to end at their mouth or junction to other
offshore water features, as described below. For rivers and other
waterways ending on the coastline, the end of the inland
waterway will be determined by drawing straight lines across
the opening in the landmass leading to the open ocean or other
offshore water feature, such as a bay or inlet. For the Mekong
and other rivers with prominent deltas, the end of the inland
waterway will be determined by drawing a straight line across
each opening in the landmass leading to the open ocean.” Id.
19a
requirements for notice-and-comment rulemaking.
Section 552(a)(1) defines the circumstances when
publication in the Federal Register is required and
covers, among other things, “statements of general
policy or interpretations of general applicability
formulated and adopted by the agency.” 5 U.S.C.
§ 552(a)(1)(D). While I agree with DAV that the
Manual is not the type of document that is reviewable
because it is subject to the notice-and-comment
rulemaking provisions of § 553, it is nevertheless an
interpretation of general applicability under
§ 552(a)(1).
Other
circuits
have
held
that
agency
pronouncements such as those involved here are
subject to preenforcement review. Thus, for example,
the District of Columbia Circuit has found agency
guidance documents reviewable where, as here, the
petitioners present purely legal claims.
In
Appalachian Power Co. v. Environmental Protection
Agency, 208 F.3d 1015, 1020-23 (D.C. Cir. 2000), the
District of Columbia Circuit determined it had
jurisdiction to review a Clean Air Act guidance
document published on an Environmental Protection
Agency (“EPA”) website.
Although informally
published and not subject to notice and comment, the
guidance was found to be a “final agency action,
reflecting a settled agency position which has legal
consequences” for the parties. Id. at 1023. The court’s
decision rested in part on its observation that, as with
the VA Manual revisions at issue here, “officials in the
field [we]re bound to apply” the rules set forth in the
guidance. Id. at 1022. In 2011, yet another Clean Air
Act guidance was found reviewable where it bound
EPA regional directors. See Nat. Res. Def. Council v.
Envtl. Prot. Agency, 643 F.3d 311, 320 (D.C. Cir.
20a
2011). In the transportation context, the District of
Columbia Circuit found jurisdiction to review a
Federal Highway Administration investigative
training manual. Aulenback, Inc. v. Fed. Highway
Admin., 103 F.3d 156, 163-65 (D.C. Cir. 1997); see also
W. Coal Traffic League v. United States, 719 F.2d 772,
780 (5th Cir. 1983) (en banc) (reviewing guidelines of
the Interstate Commerce Commission for regulating
railroad rates).
Thus the circuit found agency
guidance, binding on agency subordinates, to be
reviewable.
Nothing in § 502 suggests that we should be less
generous in our review of actions taken by VA. There
is, of course, a “well-settled presumption that agency
actions are reviewable,” unless Congress clearly
precludes such review. LeFevre, 66 F.3d at 1198.
There is no such clear preclusion in the VA statute.
To the contrary, here—as in the other circuit cases
discussed above—in the relevant jurisdictional
provision, “Congress has declared its preference for
preenforcement review of agency rules.” Nat’l Org. of
Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs,
330 F.3d 1345, 1347 (Fed. Cir. 2003).
III
Preenforcement review of manual provisions is
entirely consistent with the language of § 502. In that
statute, as noted earlier, Congress chose to define our
jurisdiction with reference to the Administrative
Procedure
Act’s
provisions
concerning
the
requirements for public notice of agency actions. See
38 U.S.C. § 502. Agency actions requiring notice-andcomment rulemaking were made reviewable by
reference to § 553. In addition, Congress made
reviewable other agency actions described in
21a
§ 552(a)(1). Section 552(a) establishes a hierarchy of
government records.2 Several categories of records
most directly affecting members of the public must be
published in the Federal Register, see § 552(a)(1);
many routine or internal agency records must be
publicly available, see § 552(a)(2); and still others
need only be available by request, see § 552(a)(3).
With respect to interpretive rules, § 552(a)(2)(B)
directs that if they are “of general applicability,” the
2
Section 552(a) provides, in relevant part:
Each agency shall make available to the public information
as follows:
(1) Each agency shall separately state and currently publish
in the Federal Register for the guidance of the public—
...
(D) substantive rules of general applicability adopted as
authorized by law, and statements of general policy or
interpretations of general applicability formulated and adopted
by the agency;
....
(2) Each agency, in accordance with published rules, shall
make available for public inspection in an electronic format—
...
(B) those statements of policy and interpretations which
have been adopted by the agency and are not published in the
Federal Register;
(C) administrative staff manuals and instructions to
staff that affect a member of the public;
....
(3)
(A) Except with respect to the records made available
under paragraphs (1) and (2) of this subsection, and except as
provided in subparagraph (E), each agency, upon any request for
records which (i) reasonably describes such records and (ii) is
made in accordance with published rules stating the time, place,
fees (if any), and procedures to be followed, shall make the
records promptly available to any person.
22a
Federal Register publication requirement of
§ 552(a)(1)(D) applies.
In short, “statements of
general policy or interpretations of general
applicability formulated and adopted by the agency,”
5 U.S.C. § 552(a)(1)(D), must be published in the
Federal Register and are thus reviewable under
§ 502.
The relevant question for jurisdictional
purposes, then, is whether the Manual revisions here
are properly characterized as “statements of general
policy or interpretations of general applicability.” If
so, we have jurisdiction under § 502.
DAV never directly addressed this question of the
scope of “interpretations of general applicability.”
DAV’s analytical omission is not surprising given that
the petitioners in that case focused their
jurisdictional argument primarily on whether the
Manual revisions at issue were substantive rules
requiring notice and comment under § 553. The panel
nonetheless rejected the applicability of § 552(a)(1).
Latching onto the undisputed fact that the Manual is
an “administrative staff manual” under § 552(a)(2)—
a provision not referenced in § 502—the DAV court
held that we lack jurisdiction “[w]here, as here,
manual provisions are interpretations adopted by the
agency, [1] not published in the Federal Register,
[2] not binding on the Board itself, and [3] contained
within an administrative staff manual, they fall
within § 552(a)(2)—not § 552(a)(1).” 859 F.3d at
1078.
None of these three theories is supportable. First,
the fact that the Manual revisions were not in fact
published in the Federal Register does not support
the majority’s result. As the majority in this case and
the panel opinion in DAV acknowledge, Maj. Op. 11;
DAV, 859 F.3d at 1077, an agency’s choice of whether
23a
and where to publish a rule are not controlling, see,
e.g., Preminger v. Sec’y of Veterans Affairs, 632 F.3d
1345, 1351 (Fed. Cir. 2011) (per curiam); Anderson v.
Butz, 550 F.2d 459, 463 (9th Cir. 1977). Indeed,
neither the majority here nor DAV cites any case in
which the decision not to publish was even relevant
in deciding the scope of § 552(a)(1). A contrary rule
would permit the agency to defeat judicial review by
the simple expedient of failing to fulfill its obligation
to publish the document in the Federal Register.
Second, the fact that the Manual is not binding on
the Board is equally irrelevant.3 We have previously
rejected this very theory. In LeFevre, the Secretary
argued that his refusal to establish a presumption of
service connection for certain cancers was not subject
to review because it was nonbinding—veterans were
still permitted to prove service connection on a caseby-case basis. 66 F.3d at 1197. We rejected that
contention, noting that such an action “‘has an
immediate and practical impact’ on Vietnam veterans
and their survivors . . . , was not ‘abstract, theoretical,
or academic,’ ‘touches vital interests of’ veterans and
their survivors, and ‘sets the standard for shaping the
manner in which an important segment’ of the
Department’s activities ‘will be done.’” Id. at 1198
(quoting Frozen Food Express v. United States, 351
3
As the majority notes, the Manual is “not binding on
anyone other than the VBA [Veterans Benefits Administration]
employees” and, in particular, does not bind the Board of
Veterans Appeals (“Board”). Maj. Op. 5; see also Carter v.
Cleland, 643 F.3d 1, 5 (D.C. Cir. 1980) (noting the Manual’s
binding effect on VA adjudicators); Office of Gen. Counsel, U.S.
Dep’t of Veterans Affairs, Op. Prec. 7-92, Applicability of VA
Manual M21-1, Part 1, Paragraph 50.45, 1992 WL 1200482, at
*2 cmt. 4 (Mar. 17, 1992) (same).
24a
U.S. 40, 44 (1956)). The same is true of the Manual
revisions at issue here. Also, as noted earlier, other
circuits have held agency actions that were binding
on subordinate agency officials to be reviewable. See
Appalachian Power, 208 F.3d at 1022 (reviewing a
policy issued in a guidance document that “EPA
officials in the field are bound to apply”); Nat. Res.
Def. Council, 643 F.3d at 321 (reviewing a guidance
document that “binds EPA regional directors”).
As recognized by the majority, the Manual
revisions’ impact is extensive: “the VA instructed all
claims processors in its 56 regional offices to exclude
all Navy personnel who served outside the nowdefined ‘inland waterways’ of Vietnam . . . from
presumptive service connection for diseases or
illnesses connected with exposure to Agent Orange.”
Maj. Op. 7-8. VA, too, “concedes that the impact of its
manual changes is both real and far reaching.” Id. at
9. Even though not binding on the Board, the Manual
does bind the front-line benefits adjudicators located
in each VA Regional Office (“RO”). See, e.g., Thun v.
Shinseki, 572 F.3d 1366, 1369 (Fed. Cir. 2009). Over
1.3 million claims were decided by the ROs in 2015,
yet during that same period only 52,509 appeals of
those decisions were filed before the Board. Compare
Office of Mgmt., U.S. Dep’t of Veterans Affairs, FY
2016 Agency Financial Report 18 (Nov. 15, 2016),
https://www.va.gov/finance/docs/afr/2016VAafrFullW
eb.pdf, with Bd. of Veterans Appeals, U.S. Dep’t of
Veterans Affairs, Annual Report Fiscal Year 2015
(2016)
[hereinafter
BVA
Report],
https://www.bva.va.gov/docs/Chairmans_Annual_Rpt
s/BVA2015AR.pdf. Those few veterans who do seek
Board review can expect to wait an additional three
years between the filing of their appeal and a Board
25a
decision. See BVA Report 21. With roughly 96% of
cases finally decided by VBA employees bound by the
Manual, its provisions constitute the last word for the
vast majority of veterans. To say that the Manual
does not bind the Board is to dramatically understate
its impact on our nation’s veterans. Review of the
Manual revisions is essential given the significant
“hardship [that] would be incurred . . . if we were to
forego judicial review.” Coal. for Common Sense in
Gov’t Procurement v. Sec’y of Veterans Affairs, 464
F.3d 1306, 1316 (Fed. Cir. 2006).
Finally, as the majority here appears to agree, see
Maj. Op. 11, DAV’s reliance on the form of the Manual
cannot defeat jurisdiction. Nothing about the statute
suggests that a document described in subsection
(a)(2) could not also be subject to subsection (a)(1)’s
more demanding requirements. Given the statute’s
“goal of broad disclosure” and the Supreme Court’s
instructions to construe its exemptions narrowly and
exclusively, U.S. Dep’t of Justice v. Tax Analysts, 492
U.S. 136, 151 (1989), we should not read new
limitations into § 552.
Implicit to DAV’s reasoning, in this respect, is the
notion that § 552(a)(1) and § 552(a)(2) are mutually
exclusive.
In other words, DAV instructs that
provisions of agency manuals, because described in
subsection (a)(2), are therefore not rules of general
applicability for purposes of subsection (a)(1). See id.
at 1077-78 (“Congress expressly exempted from § 502
challenges to agency actions which fall under
§ 552(a)(2).”). There is no support for this view.
Congress did not in fact “expressly exempt” actions
described in § 552(a)(1) from § 552(a)(2). To the
contrary, a range of content commonly found in staff
manuals—such as descriptions of an agency’s
26a
organization, rules of procedure, and, importantly,
generally applicable policies and interpretations—is
expressly described in subsection (a)(1) despite also
arguably being covered by the reference to manuals in
subsection (a)(2)(C). Even if subsections (a)(1) and
(a)(2) could be regarded as mutually exclusive, the
Manual at issue here is not merely an “administrative
staff manual”: the Manual provides the rules of
decision to be applied by agency adjudicators in
responding to veterans’ benefits claims. The revisions
challenged here go well beyond “administrative”
directions. They announce “interpretations of general
applicability” subject to § 552(a)(1)’s publication
requirement and, accordingly, to our review under
§ 502.
Cases from the Supreme Court, other courts of
appeals, and our own court have held that similar
agency pronouncements fall within the scope of
§ 552(a)(1) despite appearing within agency manuals.
For example, in Morton v. Ruiz, 415 U.S. 199, 232-36
(1974), the Supreme Court held that provisions of the
Indian Affairs Manual should have been published in
the Federal Register pursuant to § 552(a)(1)(D) and
the agency’s own internal publication rules.
Likewise, in NI Industries, Inc. v. United States, 841
F.2d 1104, 1107 (Fed. Cir. 1988), this Court held that
contracting provisions located in an Army Standard
Operating Procedures document were subject to
§ 552(a)(1)(D)’s publication requirement. See also
Linoz v. Heckler, 800 F.2d 871, 878 n.11 (9th Cir.
1986) (finding a provision of the Medicare Carrier’s
Manual to be a generally applicable interpretation
subject to § 552(a)(1)(D) publication); Anderson, 550
F.2d at 461-63 (same with respect to the Food Stamp
Certification Handbook).
27a
The majority’s approach is also inconsistent with
our own prior cases finding similar agency actions
within the scope of § 502 and thus reviewable. Unlike
DAV, each of these cases analyzed the substance and
effect of the agency action, rather than its form. Most
recently, in Snyder v. Secretary of Veterans Affairs,
858 F.3d 1410, 1413 (Fed. Cir. 2017), we found
reviewable an opinion of the VA General Counsel
relating to attorney’s fees because it “announces a
rule that readily falls within the broad category of
rules
and
interpretations
encompassed
by
§ 552(a)(1)(B).” In Military Order of the Purple Heart
v. Secretary of Veterans Affairs, 580 F.3d 1293, 1296
(Fed. Cir. 2009), we found jurisdiction to review a VA
letter changing the procedures for reviewing certain
benefits awards. Our determination turned not on
the form of the letter but on the fact that it “affects
the veteran’s substantive as well as procedural rights,
and is ‘a change in existing law or policy which affects
individual rights and obligations.’” Id. (quoting
Animal Legal. Def. Fund v. Quigg, 932 F.2d 920, 927
(Fed. Cir. 1991)). We found another VA letter
reviewable in Coalition for Common Sense, 464 F.3d
at 1316-18, by focusing on its effect within the agency
and on outside parties and tribunals, not on its form.
Finally, as described above, in LeFevre, 66 F.3d at
1196-98, we found jurisdiction to review the
Secretary’s decision to exclude certain cancers from
the presumption of service connection by looking to its
effects on the veterans suffering from those diseases.
* * *
The provisions of agency manuals and similar
documents have been previously held subject to
preenforcement review. The DAV decision and the
28a
majority decision here represent an unwarranted
narrowing of our jurisdiction. I respectfully suggest
the DAV case was wrongly decided.
29a
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
ROBERT H. GRAY,
Petitioner
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent
2016-1782
Petition for review pursuant to 38 U.S.C. Section 502.
------------------------------------------------------------------------BLUE WATER NAVY VIETNAM VETERANS
ASSOCIATION,
Petitioner
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent
2016-1793
Petition for review pursuant to 38 U.S.C. Section 502.
ON PETITIONS FOR PANEL REHEARING
AND REHEARING EN BANC
884 F.3d 1379
30a
Before PROST, Chief Judge, NEWMAN, LOURIE, DYK,
O’MALLEY, REYNA, WALLACH, TARANTO, CHEN, and
STOLL, Circuit Judges.*
TARANTO, Circuit Judge, concurs in the denial of the
petitions for rehearing en banc.
DYK, Circuit Judge, with whom NEWMAN and
WALLACH, Circuit Judges, join, dissent from the
denial of the petitions for rehearing en banc.
PER CURIAM.
ORDER
Petitioners Robert H. Gray and Blue Water Navy
Vietnam Veterans Association each filed separate
petitions for panel rehearing and rehearing en banc.
Responses to the petitions were invited by the court
and filed by the Secretary of Veterans Affairs. The
petitions were first referred to the panel that heard
the appeals, and thereafter the petitions and
responses were referred to the circuit judges who are
in regular active service. Polls were requested, taken,
and failed.
Upon consideration thereof,
IT IS ORDERED THAT:
The petitions for panel rehearing are denied.
The petitions for rehearing en banc are denied.
The mandate of the court will issue on March 28,
2018 in both cases.
*
Circuit Judge Moore and Circuit Judge Hughes did not
participate.
31a
FOR THE COURT
March 21, 2018
Date
/s/ Peter R. Marksteiner
Peter R. Marksteiner
Clerk of Court
32a
TARANTO, Circuit Judge, concurs in the denial of the
petitions for rehearing en banc.
I believe that petitioners have read too much into
the panel decisions in the present cases and in
Disabled American Veterans v. Secretary of Veterans
Affairs, 859 F.3d 1072 (Fed. Cir. 2017). Unlike
petitioners, I do not read those decisions, in their
rulings about the scope of 38 U.S.C. § 502, as treating
the key Administrative Procedure Act provisions at
issue—5 U.S.C. § 552(a)(1) and § 552(a)(2)—as
mutually exclusive in what they cover. Specifically, I
do not read those decisions as standing for the
proposition that, if an agency pronouncement is
within § 552(a)(2)(C) (“administrative staff manuals
and instructions to staff that affect a member of the
public”), and so must be made available to the public
in an electronic format, the pronouncement cannot
also be within § 552(a)(1)(D) (“substantive rules of
general applicability adopted as authorized by law,
and statements of general policy or interpretations of
general applicability formulated and adopted by the
agency”), and so must be published in the Federal
Register.
The differences in language between § 552(a)(1)
and § 552(a)(2) may well inform how to read each
provision. But neither the language of the provisions
nor the § 552 structure defining a hierarchy of
publication methods that are not inconsistent with
each other (the same pronouncement can be
published electronically and in the Federal Register)
facially precludes some subset of what falls under
§ 552(a)(2) from also falling under § 552(a)(1). The
decisions that petitioners challenge do not declare
otherwise.
Instead, in holding § 552(a)(1)
33a
inapplicable, the decisions rely on particular features
of the Department of Veterans Affairs pronouncement
at issue, not merely the conclusion that it is an
“administrative staff manual” under § 552(a)(2)(C).
The petitions for rehearing en banc rest almost
entirely on the asserted need for this court to
repudiate the premise of mutual exclusivity. I see no
present need for en banc review to do so, because I do
not think that our decisions stand for that premise.
Nor, at least now, does the Government so read our
decisions. If future panels adopt the premise that
petitioners challenge, whether based on our
precedents or based on additional statutory analyses,
en banc review can be considered at that time.
For those reasons, I do not think that the question
of mutual exclusivity warrants en banc review. And
I see no other justification for en banc review in these
cases.
The particular Department pronouncement at
issue here, stated in the Department’s Adjudication
Procedures Manual M21-1, is currently under
consideration in cases involving individual benefits
claims in the Court of Appeals for Veterans Claims.
See Combined Pet. for Panel Rehr’g and Rehr’g En
Banc at 18 n.3, Gray v. Sec’y of Veterans Affairs, No.
16-1782 (Fed. Cir. Dec. 13, 2017), Dkt. No. 66. That
court may adopt petitioners’ view of the matter or, in
any event, issue a decision that, in the ordinary
course, will bring the matter to this court relatively
soon through an appeal under 38 U.S.C. § 7292.
Accordingly, this court may consider the particular
Manual pronouncement through an individual
benefits case at roughly the same time as it would
consider the pronouncement through the present
cases if the court heard the § 502 jurisdictional
34a
question en banc, found jurisdiction, and then, as is
common for an issue not yet addressed by a panel,
returned the case to the panel to address the merits.
Thus, the importance of the particular Department
pronouncement at issue here does not justify en banc
review.
Nor is en banc review warranted to answer the
more general question of § 502’s application to
pronouncements of the sort at issue. No urgency in
that regard has been shown. Few challenges to
Manual pronouncements have been brought through
§ 502.
Denying en banc review in the present cases may
have benefits. As already noted, petitioners and amici
have focused almost entirely on the question of
mutual exclusivity. They have not gone much past
that question to present detailed analyses of why
§ 552(a)(1), properly interpreted, does or does not
apply to the particular kind of agency pronouncement
at issue here. Such analyses, covering at least text
and history and case law, appear necessary to a sound
interpretation of § 552(a)(1) and, therefore, of 38
U.S.C. § 502.
As presented by the parties, this case, like
Disabled American Veterans, involves an agency
pronouncement with at the following characteristics:
(1) It is not a substantive rule and does not purport to
have the force of law. (2) It is directed only to firstlevel agency decisionmakers, i.e., the regional offices
of the Department of Veterans Affairs. (3) It does not
purport to state how the issue should or will be
decided by the final agency decisionmaker on an
individual claim, i.e., the Board of Veterans Appeals,
see 38 U.S.C. §§ 7104, 7252, which we have recognized
“conducts de novo review of regional office
35a
proceedings based on the record.” Disabled American
Veterans, 419 F.3d at 1319.
We have little meaningful analysis of the full
range of judicial decisions that are potentially
relevant to determining § 552(a)(1)’s application to
the type of agency pronouncement at issue here. Most
relevant would be decisions, if any exist, that involved
or addressed an agency pronouncement having the
three characteristics just identified. Also relevant
would be judicial opinions that bear indirectly on
deciding whether such a pronouncement falls within
§ 552(a)(1)—specifically,
within
§ 552(a)(1)(D)’s
coverage of “statements of general policy or
interpretations of general applicability formulated
and adopted by the agency.” Focusing almost entirely
on the issue of mutual exclusivity of various portions
of § 552, the parties and amici have not furnished
much analysis of case law bearing on whether
pronouncements of the sort at issue here come within
§ 552(a)(1).
Nor have the parties and amici provided much
meaningful analysis of the relevant statutory texts,
contexts, and backgrounds. The statutes at issue are
38 U.S.C. § 502 and the referenced APA provisions
§§ 552(a)(1) and 553.
As to the latter, full
understanding would require analysis of text and
context and might be aided by scrutiny of the original
1946 APA § 3 and its later amendments (notably in
1966), as well as relevant legislative history and
important commentary. See, e.g., Pub. L. No. 89-487,
80 Stat. 250, 250–51 (1966) (amending APA § 3); APA
§ 3, Pub. L. No. 79-404, 60 Stat. 237, 238 (1946); H.R.
Rep. 89-1497 at 28–30 (1966); S. Rep. 89-813 at 41–43
(1965); Attorney General’s Manual on the
Administrative Procedure Act 19–25 (1947). At
36a
present, we lack thorough analysis of whether and
why the three characteristics of the pronouncement
at issue identified just above, or other characteristics,
should or should not matter under a proper legal
interpretation.
In future cases, parties and amici will have the
opportunity to develop and present such analyses.
Panels will have the opportunity to examine them.
The results would provide the court a fuller basis for
assessing a petition for en banc review than we now
have. I therefore concur in the denial of the present
en banc petitions.
37a
DYK, Circuit Judge, with whom NEWMAN and
WALLACH, Circuit Judges, join, dissenting from the
denial of the petitions for rehearing en banc.
These cases present a question of exceptional
importance concerning this court’s jurisdiction in
veterans’ cases. As the government concedes, the
M21-1 Adjudication Procedures Manual “consolidated
all of the [Department of Veterans Affairs] policies
and procedures for adjudicating claims for VA
benefits into one resource.” Resp’t Resp. Opp’n Reh’g
2.
For the reasons set forth in the panel dissent, I
think that Congress has made these Manual
provisions reviewable. We should consider this issue
of reviewability en banc because of the widespread
impact on the efficient adjudication of veterans’
claims.
38a
5 U.S.C. § 552
§ 552. Public information;
opinions,
orders,
proceedings
agency
records,
rules,
and
(a) Each agency shall make available to the
public information as follows:
(1) Each agency shall separately state and
currently publish in the Federal Register for the
guidance of the public—
(A) descriptions of its central and field
organization and the established places at
which, the employees (and in the case of a
uniformed service, the members) from whom,
and the methods whereby, the public may
obtain information, make submittals or
requests, or obtain decisions;
(B) statements of the general course and
method by which its functions are channeled
and determined, including the nature and
requirements of all formal and informal
procedures available;
(C) rules of procedure, descriptions of
forms available or the places at which forms
may be obtained, and instructions as to the
scope and contents of all papers, reports, or
examinations;
(D) substantive
rules
of
general
applicability adopted as authorized by law, and
statements of general policy or interpretations
of general applicability formulated and
adopted by the agency; and
39a
(E) each amendment, revision, or repeal of
the foregoing.
Except to the extent that a person has actual and
timely notice of the terms thereof, a person may
not in any manner be required to resort to, or be
adversely affected by, a matter required to be
published in the Federal Register and not so
published. For the purpose of this paragraph,
matter reasonably available to the class of persons
affected thereby is deemed published in the
Federal Register when incorporated by reference
therein with the approval of the Director of the
Federal Register.
(2) Each agency, in accordance with
published rules, shall make available for public
inspection in an electronic format—
(A) final opinions, including concurring
and dissenting opinions, as well as orders,
made in the adjudication of cases;
(B) those statements of policy and
interpretations which have been adopted by
the agency and are not published in the Federal
Register;
(C) administrative staff manuals and
instructions to staff that affect a member of the
public;
(D) copies of all records, regardless of form
or format—
(i) that have been released to any
person under paragraph (3); and
(ii)(I) that because of the nature of their
subject matter, the agency determines have
become or are likely to become the subject of
40a
subsequent requests for substantially the
same records; or
(II) that have been requested 3 or more
times; and
(E) a general index of the records referred
to under subparagraph (D);
unless the materials are promptly published and
copies offered for sale. For records created on or
after November 1, 1996, within one year after such
date, each agency shall make such records
available,
including
by
computer
telecommunications
or,
if
computer
telecommunications means have not been
established by the agency, by other electronic
means. To the extent required to prevent a clearly
unwarranted invasion of personal privacy, an
agency may delete identifying details when it
makes available or publishes an opinion,
statement of policy, interpretation, staff manual,
instruction, or copies of records referred to in
subparagraph (D). However, in each case the
justification for the deletion shall be explained
fully in writing, and the extent of such deletion
shall be indicated on the portion of the record
which is made available or published, unless
including that indication would harm an interest
protected by the exemption in subsection (b) under
which the deletion is made. If technically feasible,
the extent of the deletion shall be indicated at the
place in the record where the deletion was made.
Each agency shall also maintain and make
available for public inspection in an electronic
format current indexes providing identifying
information for the public as to any matter issued,
adopted, or promulgated after July 4, 1967, and
41a
required by this paragraph to be made available or
published. Each agency shall promptly publish,
quarterly or more frequently, and distribute (by
sale or otherwise) copies of each index or
supplements thereto unless it determines by order
published in the Federal Register that the
publication
would
be
unnecessary
and
impracticable, in which case the agency shall
nonetheless provide copies of such index on
request at a cost not to exceed the direct cost of
duplication. Each agency shall make the index
referred to in subparagraph (E) available by
computer telecommunications by December 31,
1999. A final order, opinion, statement of policy,
interpretation, or staff manual or instruction that
affects a member of the public may be relied on,
used, or cited as precedent by an agency against a
party other than an agency only if—
(i) it has been indexed and either made
available or published as provided by this
paragraph; or
(ii) the party has actual and timely notice
of the terms thereof.
(3)(A) Except with respect to the records made
available under paragraphs (1) and (2) of this
subsection, and except as provided in
subparagraph (E), each agency, upon any request
for records which (i) reasonably describes such
records and (ii) is made in accordance with
published rules stating the time, place, fees (if
any), and procedures to be followed, shall make
the records promptly available to any person.
(B) In making any record available to a person
under this paragraph, an agency shall provide the
42a
record in any form or format requested by the
person if the record is readily reproducible by the
agency in that form or format. Each agency shall
make reasonable efforts to maintain its records in
forms or formats that are reproducible for
purposes of this section.
(C) In responding under this paragraph to a
request for records, an agency shall make
reasonable efforts to search for the records in
electronic form or format, except when such efforts
would significantly interfere with the operation of
the agency’s automated information system.
(D) For purposes of this paragraph, the term
“search” means to review, manually or by
automated means, agency records for the purpose
of locating those records which are responsive to a
request.
(E) An agency, or part of an agency, that is an
element of the intelligence community (as that
term is defined in section 3(4) of the National
Security Act of 1947 (50 U.S.C. 401a(4))) shall not
make any record available under this paragraph
to—
(i) any government entity, other than a
State, territory, commonwealth, or district of
the United States, or any subdivision thereof;
or
(ii) a representative of a government
entity described in clause (i).
*
*
*
43a
5 U.S.C. § 553
§ 553. Rule making
(a) This section applies, according to the
provisions thereof, except to the extent that there is
involved—
(1) a military or foreign affairs function of the
United States; or
(2) a matter relating to agency management
or personnel or to public property, loans, grants,
benefits, or contracts.
(b) General notice of proposed rule making shall
be published in the Federal Register, unless persons
subject thereto are named and either personally
served or otherwise have actual notice thereof in
accordance with law. The notice shall include—
(1) a statement of the time, place, and nature
of public rule making proceedings;
(2) reference to the legal authority under
which the rule is proposed; and
(3) either the terms or substance of the
proposed rule or a description of the subjects and
issues involved.
Except when notice or hearing is required by statute,
this subsection does not apply—
(A) to
interpretative
rules,
general
statements of policy, or rules of agency
organization, procedure, or practice; or
(B) when the agency for good cause finds (and
incorporates the finding and a brief statement of
reasons therefor in the rules issued) that notice
and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.
44a
(c) After notice required by this section, the
agency shall give interested persons an opportunity to
participate in the rule making through submission of
written data, views, or arguments with or without
opportunity for oral presentation. After consideration
of the relevant matter presented, the agency shall
incorporate in the rules adopted a concise general
statement of their basis and purpose. When rules are
required by statute to be made on the record after
opportunity for an agency hearing, sections 556 and
557 of this title apply instead of this subsection.
(d) The required publication or service of a
substantive rule shall be made not less than 30 days
before its effective date, except—
(1) a substantive rule which grants or
recognizes an exemption or relieves a restriction;
(2) interpretative rules and statements of
policy; or
(3) as otherwise provided by the agency for
good cause found and published with the rule.
(e) Each agency shall give an interested person
the right to petition for the issuance, amendment, or
repeal of a rule.
45a
38 U.S.C. § 502
§ 502. Judicial review of rules and regulations
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 accordance
with chapter 7 of title 5 and may be sought only in the
United States Court of Appeals for the Federal
Circuit.
However, if such review is sought in
connection with an appeal brought under the
provisions of chapter 72 of this title, the provisions of
that chapter shall apply rather than the provisions of
chapter 7 of title 5.
46a
M21-1, Part IV, Subpart ii, Chapter 1, Section H
– Developing Claims for Service Connection
(SC) Based on Herbicide Exposure
***
2. Developing Claims Based on Service Aboard
Ships Offshore of the RVN or on Inland
Waterways
***
IV.ii.1.H.2.a. The Agent Orange Act of 1991
Definition
implemented under 38 CFR
of Inland
3.307(a)(6)(iii) requires “duty or
Waterways
visitation” within the RVN,
including its inland waterways,
between January 9, 1962, and May
7, 1975, to establish a presumption
of Agent Orange exposure.
Important: The presumption of
exposure to Agent Orange requires
evidence establishing duty or
visitation within the RVN. Service
on offshore waters does not
establish
a
presumption
of
exposure to Agent Orange.
Inland waterways are fresh
water rivers, streams, and canals,
and similar waterways. Because
these waterways are distinct from
ocean waters and related coastal
features,
service
on
these
waterways is service in the RVN.
VA considers inland waterways to
end at their mouth or junction to
other offshore water features, as
47a
described below. For rivers and
other waterways ending on the
coastline, the end of the inland
waterway will be determined by
drawing straight lines across the
opening in the landmass leading to
the open ocean or other offshore
water feature, such as a bay or
inlet. For the Mekong and other
rivers with prominent deltas, the
end of the inland waterway will be
determined by drawing a straight
line across each opening in the
landmass leading to the open
ocean.
Note: Inland waterway service is
also referred to as brown-water
Navy service.
References: For more information
on
• criteria for inland waterway
service, see the Vietnam Era
Navy Ship Agent Orange
Exposure Development Site,
and
• inland waterway locations,
see M21-1, Part IV, Subpart
ii, 1.H.2.d.
IV.ii.1.H.2.b.
Definition
of Offshore
Waters
Offshore waters are the high seas
and any coastal or other water
feature, such as a bay, inlet, or
harbor,
containing
salty
or
brackish water and subject to
48a
regular tidal influence. This
includes salty and brackish waters
situated between rivers and the
open ocean.
Note: Service in offshore waters is
also referred to as blue-water
Navy service.
Reference: For more information
on offshore waters locations, see
M21-1, Part IV, Subpart ii, 1.H.2.c.
IV.ii.1.H.2.c.
Specific
Geographic
Locations
Determined
to Be
Offshore
Waters
The
following
locations
are
considered to be offshore waters of
the RVN:
• Da Nang Harbor
• Nha Trang Harbor
• Qui Nhon Bay Harbor
• Cam Ranh Bay Harbor
• Vung Tau Harbor, and
• Ganh Rai Bay.
Important:
• RO staff are not authorized
to independently determine
that any particular coastal
feature, such as bay, harbor,
or inlet, is an inland
waterway. RO staff unclear
on the status of a particular
body of water may, in
accordance with established
procedures,
submit
the
claim
to
Compensation
49a
Service for administrative
review.
• VA previously extended the
presumption of exposure to
herbicides
to
Veterans
serving aboard Navy and
other vessels that entered
Qui Nhon Bay Harbor or
Ganh Rai Bay.
In the
interest
of
maintaining
equitable claim outcomes
among shipmates, VA will
continue to extend the
presumption of exposure to
Veterans who served aboard
vessels that entered Qui
Nhon Bay Harbor or Ganh
Rai Bay during specified
periods that are already on
VA’s “ships list.” VA will no
longer add new vessels to the
ships list, or new dates for
vessels currently on the list,
based on entering Qui Nhon
Bay Harbor or Ganh Rai Bay
or any other offshore waters.
Reference: For more information
on requesting an administrative
review, see M21-1, Part III,
Subpart vi, 1.A.3.
IV.ii.1.H.2.d.
Specific
Geographic
Locations
The following locations meet the
criteria for inland waterways of the
RVN:
50a
Determined
to Be Inland
Waterways
• all rivers, from their mouth
on the coast, or junction with
adjoining coastal water
feature, and throughout
upstream channels and
passages within Vietnam
• Rivers ending in bays or
other offshore water
features on the coastline
end
at
a
notional
boundary line drawn
across
the
junction
between the river and the
offshore water feature.
• The Mekong River and
other
rivers
with
prominent deltas begin at
a line drawn across the
mouth of each inlet on the
outer perimeter of the
landmass of the delta.
• all streams
• all canals, and
• all navigable waterways
inside the perimeter of landtype vegetation (e.g., trees
and
grasses,
but
not
seaweed or kelp). This is
particularly applicable to
marshes found in the Rung
Sat Special Zone and other
Vietnam coastal areas.
***
51a
2016-1782
IN THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
ROBERT H. GRAY,
Petitioner
v.
ROBERT A. MCDONALD,
Secretary of Veterans Affairs,
Respondent.
Petition for Review of Changes to Department of
Veterans Affairs Manual M21-1 Pursuant to 38
U.S.C. § 502
BRIEF FOR RESPONDENT
***
November 14, 2016
***
STATEMENT OF THE ISSUES
1. Whether this Court possesses jurisdiction
pursuant to 38 U.S.C. § 502 to review revisions by the
Department of Veterans Affairs (VA) to its Veterans
Benefits Administration Adjudication Procedures
Manual, known as the M21-1, when those revisions
constitute interpretive statements that were not
promulgated or published pursuant to 5 U.S.C.
§§ 552(a)(1) or 553.
52a
2. If the Court possesses jurisdiction to review
VA’s interpretative statements in the M21-1, whether
VA was required to use notice and comment
procedures in announcing its February 2016 revisions
to those statements.
***
SUMMARY OF THE ARGUMENT
In his petition, Mr. Gray challenges the VA’s
February 2016 revisions to the M21-1. As an initial
matter, Mr. Gray’s petition should be dismissed for
lack of subject matter jurisdiction. Under 38 U.S.C.
§ 502, this Court possesses jurisdiction to review a
substantive rule referred to in 5 U.S.C. § 553, or
agency action referred to in 5 U.S.C. § 552(a)(1), yet
the M21-1 revisions at issue in Mr. Gray’s petition are
referred to in 5 U.S.C. § 552(a)(2), which is beyond the
scope of this Court’s section 502 jurisdiction.
This Court held in Haas v. Peake that the M21-1
provisions VA revised in February 2016 are not
substantive rules referred to in section 553, but are
instead interpretive statements. Haas, 525 F.3d at
1195-97. Indeed, the M21-1 is an administrative staff
manual containing instructions for VA adjudicators
that is not binding outside of the agency. In its
February 2016 revisions, VA interpreted section
3.307(a)(6)(iii) as requiring service in Vietnam or its
inland waterways, and explained to its adjudicators
how to differentiate between inland and offshore
waterways. Thus, because the revisions do nothing
more than interpret the applicable regulation, as was
the case in Haas, they are not substantive rules under
section 553.
53a
Nor do the February 2016 M21-1 revisions qualify
as agency actions referred to in sections 552(a)(1).
Although Section 552(a)(1) refers to interpretive
rules, the February 2016 revisions appear in an
administrative staff manual that is specifically
referenced in subsection 552(a)(2), which is omitted
from this Court’s jurisdictional statute in 38 U.S.C.
§ 502. This specific reference controls, and Congress’s
choice to omit section 552(a)(2) from section 502
jurisdiction must be given effect. See 38 U.S.C. § 502.
Accordingly, the Court should dismiss Mr. Gray’s
petition.
For the same reasons, to the extent the Court
exercises jurisdiction, it should conclude that VA did
not need to subject the February 2016 M21-1
revisions to public notice and comment. As the Court
already held in Haas, the M21-1 provisions at issue in
this case are interpretive statements, not substantive
rules, and therefore revisions to those provisions need
not have been promulgated through public notice and
comment. Haas, 525 F.3d at 1195-97.
***
ARGUMENT
I. Jurisdiction And Standard Of Review
With exceptions not relevant here, this Court
possesses jurisdiction to review an action of the VA
“to which section 552(a)(1) or 553 of title 5 (or both)
refers[.]” 38 U.S.C. § 502. Section 552(a)(1) refers to
agency actions that must be published in the Federal
Register, including “‘substantive rules of general
applicability . . . and statements of general policy or
interpretations of general applicability.’” See LeFevre
v. Sec’y of Veterans Affairs, 66 F.3d 1191, 1196 (Fed.
54a
Cir. 1995) (citing 5 U.S.C. § 552(a)(1)). Section 553,
refers to substantive rules that must comply with
notice-and-comment procedures. Id.; see also 5 U.S.C.
§ 553.
In reviewing a petition pursuant to 38 U.S.C.
§ 502, the Court applies the standards of review
pursuant to the Administrative Procedures Act
(APA). 38 U.S.C. § 502 (citing chapter 7 of title 5).
The Court shall “hold unlawful and set aside” agency
action that is, among other things, “arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). “This
review is ‘highly deferential’ to the actions of the
agency.” Nat’l Org. of Veterans’ Advocates, Inc. v.
Sec’y of Veterans Affairs, 260 F.3d 1365, 1372 (Fed.
Cir. 2001) (citing Disabled Am. Veterans v. Gober, 234
F.3d 682, 688, 691 (Fed. Cir. 2000)). Thus, when
conducting a section 706(2)(A) review of an agency
decision that “pertains to a matter of policy within the
agency’s expertise and discretion, the scope of review
should perforce be a narrow one, limited to ensuring
that the agency has adequately explained the facts
and policy concerns it relied on and . . . that those
facts have some basis in the record.” Service Women’s
Action Network v. Sec’y of Veterans Affairs, 815 F.3d
1369, 1374 (Fed. Cir. 2016) (quoting Preminger v.
Sec’y of Veterans Affairs, 632 F.3d 1345, 1353 (Fed.
Cir. 2011)).
II. The Court Does Not Possess Section 502
Jurisdiction To Review The Manual
Revisions
Contrary to Mr. Gray’s jurisdictional statement,
Pet. Br. 1-2, the February 2016 manual revisions are
interpretive statements contained in a VA manual
55a
that this Court may not review on a section 502
petition. While the Court possesses jurisdiction to
review agency actions by the VA “to which section
552(a)(1) or 553 of title 5 (or both) refers,” 38 U.S.C.
§ 502, the manual revisions do not fall under section
553 or 552(a)(1).
Instead, the February 2016
revisions are specifically referred to in section
552(a)(2) – not section 552(a)(a) or section 553 – and
therefore fall outside this Court’s rulemaking review
jurisdiction. See 38 U.S.C. § 502.
A. In Haas, This Court Found VA’s Herbicide
Presumption Manual Provisions Were
Interpretive Statements, Not Substantive
Rules Under Section 553
Substantive rules have the “force and effect of law”
and may be promulgated only after public notice and
comment. Haas, 525 F.3d at 1195-96. Notice-andcomment procedures are not required for interpretive
rules, which simply “clarify or explain existing law or
regulation.” Id. at 1195 (citation omitted). “An
interpretive rule ‘merely represents the agency’s
reading of statutes and rules rather than an attempt
to make new law or modify existing law.’” Id. at 119696 (quoting NOVA, 260 F.3d at 1375). “The absence
of notice-and-comment obligation makes the process
of issuing interpretive rules comparatively easier for
agencies than issuing legislative rules.” Perez v.
Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1204 (2015).
“But that convenience comes at a price[.]” Id.
Interpretive rules lack the “force and effect of law,”
and thus receive different weight in the adjudicatory
process” than substantive rules. See id. (citing
Shalala v. Guernsey Mem’l Hosp., 514 U.S. 87, 99
(1995)).
56a
Applying this standard, this Court has already
determined that VA’s M21-1 provisions implementing
section 3.307(a)(6)(iii) are interpretive statements,
not substantive rules under section 553. Haas, 525
F.3d at 1195-1197. The Haas Court held that the
M21-1 “did not set forth a firm legal test for ‘service
in the Republic of Vietnam,’ but simply provided
guidance as to how an adjudicator should go about
gathering information necessary to determine
whether the regulatory test had been satisfied.”
Haas, 525 F.3d at 1196. Further, the Court explained
that VA used notice-and-comment rulemaking when
promulgating the regulation it was interpreting in the
M21-1:
Importantly, it was through notice-andcomment rulemaking that DVA set forth its
position with regard to offshore service in
connection with the very regulation that is at
issue in this case. In May 2001, the DVA issued
the regulation in which it made type 2 diabetes
a disease subject to the regulatory presumption
of service connection. In so doing, the agency
clearly set forth its view as to the status of
servicemembers who had served in the waters
off Vietnam and had not set foot on shore.
Those servicemembers, the agency explained,
were not within the scope of the regulatory
presumption. . . .
Contrary to the suggestion of the Veterans
Court, it was not necessary for the agency to
conduct a parallel rulemaking proceeding
before incorporating the same rule into its more
informal Adjudication Manual.
57a
Haas, 525 F.3d at 1196-97 (citing 66 Fed Reg. 23,166
(May 8, 2001)). Thus, because revisions to the same
interpretive statements are at issue in Mr. Gray’s
petition, the Court’s analysis in Haas applies with
equal force. The M 21-1 herbicide exposure provisions
are, therefore, interpretive statements, not
substantive rules under section 553.
B. The M21-1 Is A Staff Manual Referred To
In 5 U.S.C. § 552(a)(2), Not 5 U.S.C.
§ 552(a)(1)
Because the M21-1 revisions are not substantive
rules under section 553, the Court must conclude that
they are nevertheless “substantive rules” under
section 552(a)(1) to exercise its section 502
jurisdiction.
38 U.S.C. § 502.
Yet the M21-1
provisions at issue fit within subsection 552(a)(2), not
(a)(1), and therefore fall outside of this Court’s section
502 jurisdiction.
Subsection 552(a)(1) refers to the types of actions
that must be published in the Federal Register,
including “substantive rules of general applicability
adopted as authorized by law, and statements of
general policy or interpretations of general
applicability formulated and adopted by the agency.”
5 U.S.C. § 552(a)(1)(D). The VA must comply with
section 552(a)(1), “particularly with respect to
opinions and interpretations of the General Counsel.”
38 U.S.C. § 501(c).
Subsection 552(a)(2), in turn, refers to other
information that the agencies must make available to
the public in an electronic format, including
“administrative staff manuals and instructions to
staff that affect a member of the public.” 5 U.S.C.
§ 552(a)(2)(C). VA has implemented section 552(a)(2)
58a
by regulation, providing for an electronic public
reading room, and for other electronic distribution for
“[i]nformation routinely provided to the public.” See
38 C.F.R. § 1.553(a). The M21-1 is routinely provided
to the public on the Know VA website.12
The M21-1 fits within subsection 552(a)(2), not
(a)(1). Subsection (a)(2) specifically refers to
“administrative staff manuals . . . that affect a
member of the public.” Id. That precisely defines the
M21-1.
Although the M21-1 also contains
interpretive rules arguably referred to by subsection
(a)(1), the manual is more specifically referenced in
subsection (a)(2). Pursuant to the “‘commonplace’”
canon of statutory construction “‘that the specific
governs the general,’” the M21-1 is governed by
subsection (a)(2), not (a)(1). See RadLAX Gateway
Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065,
2071 (2012) (quoting Morales v. Trans World Airlines,
Inc., 504 U.S. 374, 384 (1992)). That distinction is
important, because this Court’s section 502
jurisdiction only extends to actions to which
subsection (a)(1) refers, and does not extend to actions
referred to in (a)(2). See 38 U.S.C. § 502. Under the
canon of expressio unius est exclusion alterius, “the
express mention of one thing excludes all others.”
Shenyang Yuanda Aluminum Indus. Eng’g Co. v.
United States, 776 F.3d 1351, 1359 & n.1 (Fed. Cir.
2015) (citing Barnhart v. Peabody Coal. Co., 537 U.S.
149, 168 (2003)). By specifically including section
552(a)(1), the jurisdictional statute – section 502 –
12 Available
at
http://www.knowva.ebenefits.va.gov/
system/templates/selfservice/va_ss/#!portal/554400000001018/t
opic/554400000004049/M21-1-Adjudication-Procedures-Manual
(last visited Nov. 10, 2016).
59a
thus excludes actions referred to in the immediately
following subsection, (a)(2). See 5 U.S.C. § 552(a).
Accordingly, the Court should conclude that the
February 2016 M21-1 revisions fit under subsection
552(a)(2), not subsection (a)(1) or section 553, and
that it may not exercise its section 502 jurisdiction to
entertain a facial challenge to the provisions’ validity.
Doing so will not, however, prevent Mr. Gray or other
veterans from seeking review of VA’s interpretation
of section 3.307(a)(6)(iii) in this Court. Much like Mr.
Haas, veterans may still raise legal challenges in
individual claims, which are appealable to the board,
to the Veterans Court, and ultimately to this Court.
See 38 U.S.C. §§ 7252, 7292; see, e.g., Dyment v.
Principi, 287 F.3d 1377, 1382 (Fed. Cir. 2002)
(reviewing the M21-1 as part of an appeal from
theVeterans Court). Veterans may also petition
theVA for a rulemaking to reflect their desired
interpretation, which, if denied, is appealable to this
Court. See 5 U.S.C. § 553(e); see also Preminger, 632
F.3d at 1352 (exercising jurisdiction to review
Secretary’s denial of request for rulemaking under
section 553(e)); McKinney v. McDonald, 796 F.3d 1377
(Fed. Cir. 2015). These avenues for review are
adequate, and do not justify rewriting section 502 to
include review of the staff manual provisions being
challenged in this case. See 38 U.S.C. § 502. Because
Mr. Gray bears the burden of establishing subjectmatter jurisdiction, and has failed to do so, the Court
should dismiss the petition. See Sandoz v. Amgen
Inc., 773 F.3d 1274, 1277 (Fed. Cir. 2014).
60a
III. VA Did Not Need To Subject The February
2016 M21-1 Revisions To Public Notice And
Comment Because They Are Interpretive
Statements
To the extent the Court has jurisdiction to
entertain Mr. Gray’s petition, it should conclude that
VA did not need to promulgate the February 2016
revisions to the M21-1 through public notice and
comment, as Mr. Gray contends. Pet. Br. 26-29. As
established above, the February 2016 M21-1 revisions
are interpretive statements that VA need not have
subjected to public notice and comment. “Because
interpretive rules are not substantive rules having
the force and effect of law, they are not subject to the
same statutory notice-and-comment procedures.
Haas, 525 F.3d at 1195 (citations omitted). Indeed,
Mr. Gray concedes that notice and comment
procedures are only required when the VA
promulgates a substantive rule with the force and
effect of law. Pet. Br. 26-28. Thus, because the
manual provisions at issue merely interpret the
applicable regulation and serve as guidance for the
regional office adjudicators, they are interpretive
statements and public notice and comment was not
required.
Appx17-23; see also 38 C.F.R.
3.307(a)(6)(iii).
For various unpersuasive reasons, Mr. Gray
asserts that the February 2016 revisions are
substantive rules under sections 552(a)(1)(D) and
553(b). Pet. Br. 26-29. Yet Mr. Gray fails to
meaningfully distinguish the M21-1 provisions
challenged here form the provisions at issue in Haas,
where the Court held that the M21-1 provisions
61a
implementing
section
3.307(a)(6)(iii)
were
interpretive statements. Haas, 525 F.3d at 1195-97.
***
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.