Amicus Curiae Brief — Robert H. Gray, Petitioner v. Robert Wilkie, Secretary of Veterans Affairs

No. 17-1679

IN THE

Supreme Court of the United States

ROBERT H. GRAY, PETITIONER

v.

ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS

ON A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR BLUE WATER NAVY VIETNAM

VETERANS ASSOCIATION AS AMICUS CURIAE

SUPPORTING PETITIONER

JOHN B. WELLS

Counsel of Record

Law Office of

John B. Wells

769 Robert Blvd.

Suite 201D

Slidell, LA 70458

985-641-1855

CURRY & TAYLOR  (202) 350-9073

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .............................................................ii

INTEREST OF THE AMICUS CURIAE .......................................... 1

INTRODUCTION ............................................................................. 1

SUMMARY OF ARGUMENT ........................................................... 4

ARGUMENT .................................................................................... 6

I. VA HAS USED THE M21-1 ADJUDICATION

MANUAL AS A MEANS TO PROMULGATE

BINDING REGULATIONS OF GENERAL

APPLICABILITY

INSULATED

FROM

JUDICIAL REVIEW OF ARBITRARY AND

CAPRICIOUS ACTIONS. 6

A. The Action of the Court Below Effectively

Denies Judicial Review of the Secretary’s

Decisions6

B. The Court Below Erred in Finding That the

Secretary’s Regulation Did Not Come Within

the Scope of 38 U.S.C. § 50210

C. The Decision in the Court Below Creates a

Conflict with the Court of Appeals for the

District of Columbia’s Circuit Case of Blue

Water Navy Vietnam Veterans Association,

Inc. and Military-Veterans Advocacy, Inc. v.

McDonald, 830 F.3d 570 (D.C. Cir. 2016)17

CONCLUSION ............................................................................... 20

ii

TABLE OF AUTHORITIES

Page

CASES

Animal Legal Def. Fund v. Quigg, 932 F.2d 920, 927

(Fed. Cir. 1991) ........................................................................ 13

Appalachian Power Co. v. Environmental Protection

Agency, 208 F.3d 1015 (D.C. Cir. 2000) ................................ 12

Ass'n of Flight Attendants CWA, AFL-CIO v.

Huerta, 785 F.3d 710, (D.C. Cir. 2015).................................. 14

Aulenback, Inc. v. Fed. Highway Admin., 103 F.3d

156 (D.C. Cir. 1997) ................................................................. 13

Barlow v. Collins 397 U.S. 159 (1970)...................................... 14

Blue Chip Stamps v. Manor Drug Stores, 421 U.S.

723 (1975) .................................................................................. 14

Blue Water Navy Vietnam Veterans Association,

Inc. and Military-Veterans Advocacy, Inc. v.

McDonald, 830 F.3d 570 (D.C. Cir. 2016).................... passim

Boone v. Lightner, 319 U.S. 561 (1943) .................................... 16

Bowen v. Michigan Acad. of Family Physicians, 476

U.S. (1986) .................................................................................. 9

Brown v. Gardner, 513 U.S. 115 (1994).................................... 16

Carter v. Cleland, 643 F.2d 1, 5 (D.C. Cir. 1980) .................... 12

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837 (1984) .................................................................... 2

Cmty. Nutrition Inst. v. Young, 818 F.2d 943 (D.C.

Cir.1987).................................................................................... 14

Disabled Am. Veterans v. Sec’y of Veterans Affairs,

859 F.3d 1072, (Fed. Cir. 2017) .............................................. 10

Fishgold v. Sullivan Drydock & Repair Corp., 328

U.S. 275 (1946) ......................................................................... 16

Gambill v. Shinseki, 576 F.3d 1307 (Fed. Cir.2009)

Gray v. McDonald, 27 Vet.App. 313 (2015)............................. 15

Gray v. Sec'y of Veterans Affairs, 875 F.3d 1102 (Fed.

Cir. 2017)................................................................................. 2, 3

Haas v. Nicholson 20 Vet.App. 257 (Vet.App. 2006).............. 2

Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).......................... 2

Haas v. Peake, 544 F.3d 1306 (Fed. Cir 2008)........................... 2

iii

Henderson ex rel. Henderson v. Shinseki 561 U.S. 428

(2011) ......................................................................................... 15

Johnson v. Robison, 415 U.S. 361 (1974) ................................. 16

Linoz v. Heckler, 800 F.2d 871 (9th Cir. 1986).......................... 13

Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803)..................... 7, 9

Martin v. O’Rourke, 891 F.3d 1338, 1350-51 (Fed. Cir.

2018) ........................................................................................ 8. 9

Morton v. West, 13 Vet. App. 205 (1999).................................. 12

Nat'l Mining Ass'n v. McCarthy, 758 F.3d 243, 252

(D.C.Cir. 2014) ......................................................................... 14

Nat. Res. Def. Council v. Envtl. Prot. Agency, 643

F.3d 311 (D.C. Cir. 2011) ........................................................ 13

Overton v. Wilkie, 30 Vet. App. 257 (2018)................................ 3

Regan v. Taxation with Representation, 461 U.S. 540

(1983) ......................................................................................... 16

Rubin v. United States, 449 U.S. 424 (1981)............................ 14

Sackett v. E.P.A., 588 U.S. 120 (2012)........................................ 9

Shaughnessy v. Pedreiro, 349 U.S. 48 (1955)

Snyder v. Secretary of Veterans Affairs, 858 F.3d

1410, 1413 (Fed. Cir. 2017)........................................................ 9

W. Coal Traffic League v. United States, 719 F.2d 772

(5th Cir. 1983)........................................................................... 13

STATUTES

5 U.S.C. § 552 ..................................................................... passim

5 U.S.C. § 553 .................................................................... 4, 10, 12

38 U.S.C. § 502 .................................................................. passim

OTHER AUTHORITIES

Blue Water Navy Vietnam Veterans Ass'n, Inc. v.

McDonald, Brief for Defendant-Appellee., 2015 WL

7777567 (C.A.D.C.), 10-11. ..................................................... 19

H.R. Rep. No. 100–963 (1988)...................................................... 5

M21-1 Adjudication Manual ........................................................ 6

Merriam-Webster Dictionary ............................................. 14, 15

1

INTEREST OF THE AMICUS CURIAE

Blue

Water

Navy

Vietnam

Veterans

Association, Inc., (BWNVVA) is a non-profit

corporation organized under the laws of Colorado who

has been granted tax exempt status under § 501c(3) of

the Internal Revenue Code. BWNVVA’s purpose is to

promote public awareness of Blue Water Navy

Vietnam Veteran issues and to obtain the presumption

of exposure to Agent Orange for members of the

Armed Forces of the United States who served afloat

off the coast of the Republic of Vietnam during the

Vietnam War. BWNVVA members include both those

who have been denied benefits despite their exposure

to Agent Orange as well as the survivors of those who

were denied benefits and later died from complications

of Agent Orange.

BWNVVA has advocated for

legislation in Congress to correct the VA intransigence

on this matter. Accordingly, BWNVVA has a clear

interest in this matter, however does not have a stake

in either party.1

INTRODUCTION

Since 2002, the VA has refused to grant the

presumption of exposure to “Blue Water Navy”

1

No counsel for a party authored this brief in whole or in part,

and no party or counsel for a party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person or entity other than amicus curiae or amicus curiae’s

counsel made such a monetary contribution to the preparation or

submission of this brief. All parties have provided written consent

to the filing of this brief. A copy of written consent from the

Petitioner and the Respondent was provided to the Clerk upon

filing.

2

veterans who served in bays, harbors and the

territorial seas of the Republic of Vietnam.2

In a 2-1 decision in Haas v. Peake, 525 F.3d 1168

(Fed. Cir. 2008) the court below applied Chevron3

deference to overturn the Court of Appeals for

Veterans Claims decision4 to overturn the denial of the

presumption of exposure to those who served off the

coastline. On rehearing, the Haas Court noted that

they did not apply the pro-veteran canon of

construction required by Henderson ex rel. Henderson

v. Shinseki 131 S.Ct.1197 (2011). Haas v. Peake, 544

F.3d 1306, 1308 (Fed. Cir 2008). Additionally, Haas

only addressed areas off the coast and did not include

the bays and harbors of the Republic of Vietnam.

In Gray v. McDonald, 27 Vet.App. 313 (2015),

the Court of Appeals for Veterans Claims distinguished

Haas by noting that the veteran served in Da Nang

Harbor, while Commander Haas did not enter any

harbor. The Gray court found that since the bays and

harbors were outside the scope of Haas, they were free

to review the VA policy. Noting that the rivers, which

are awarded the presumption of exposure under the

VA policy, discharge into the bays and harbors, the

Gray court confirmed that river water would mix with

2

Previously the crews of ships operating within the Vietnam

Service Medal demarcation area, approximately 100 nautical miles

from shore, were granted the presumption.

3

The Chevron Court found that considerable weight should be

accorded to an executive department's construction of a statutory

scheme it is entrusted to administer, and the principle of deference

to administrative interpretations. Chevron, U.S.A., Inc. v. Nat.

Res. Def. Council, Inc., 467 U.S. 837, 844 (1984).

4

Haas v. Nicholson 20 Vet.App. 257 (Vet.App. 2006).

3

the saltwater brought in via tidal surge from the South

China Sea. As the rivers were heavily sprayed with

Agent Orange their discharge “plume” would carry the

herbicide and petroleum mix for some distance into the

harbors, bays and the South China Sea.

The Gray court determined that the exclusion of

Da Nang Harbor from the "inland waterways" category

did not comply with the intent of the underlying statute

and regulation. Gray, 27 Vet. App. at 324-26. The

Veterans Court went on to explain that the intent of

the statute and regulation was "providing compensation

to veterans based on the likelihood of [their] exposure

to herbicides." Id. at 322.

The Gray Court declined to rewrite the

regulation but invited the VA to reevaluate its

definition of inland waterways---particularly as it

applies to Da Nang Harbor. Id. at 327. The Secretary

did not appeal Gray and the decision became final.

Gray remains good law. Overton v. Wilkie, 30 Vet.

App. 257, 264 (2018)

Instead of complying with the mandate of the

Gray court, the Secretary “doubled down” on his

irrational policy and on February 6, 2016 issued a

change to his M21-1 Manual which continued to use

depth and ease of entry, rather than the probability of

exposure, as the criteria for inclusion in their definition

of “inland waterways.” The new regulation actually

tightens the definition, removing "Qui Nhon Bay

Harbor" and "Ganh Rai Bay" from the inland waters list.

No reason was provided.

4

Amicus filed a timely petition for judicial review

under 38 U.S.C. § 502. The court below dismissed that

petition along with the companion case of Gray v.

Secretary of Veterans Affairs, in a 2-1 decision, over a

strong dissent by Judge Dyk. Gray v. Sec'y of Veterans

Affairs, 875 F.3d 1102 (Fed. Cir. 2017).

The court below reasoned that the M21-1 Manual

was an interpretive rather than a substantive

regulation and did not meet the threshold criteria of 38

U.S.C. § 502. This criteria required that the regulation

be issued pursuant to the rulemaking provisions of 5

U.S.C. § 553 or 5 U.S.C. § 552(a)(1). Instead the court

below found that the regulation was issued under 5

U.S.C. § 552(a)(2).

A petition for reconsideration en banc was

denied 7-3.

SUMMARY OF THE ARGUMENT

Considering the well settled presumption in

favor of judicial review it seems odd indeed to preclude

veterans from obtaining a review of arbitrary and

capricious administrative decisions. The decision of the

court below has deprived veterans, and only veterans,

of their right to seek their day in court to challenge the

actions of the Secretary of Veterans Affairs when he

promulgates regulations via his M21-1 Adjudication

Manual. This allows the Secretary to circumvent the

Congressionally mandated user friendly process to

obtain veterans’ benefits.

Congress and this Court have historically

required a neutral pathway for review of governmental

5

decisions. Judicial review supports the Constitutional

separation of powers doctrine by providing checks and

balances on the otherwise unchecked powers of the

Executive.

Since World War II, the United States has

promoted a special relationship with its veterans. In

enacting the Veteran’s Judicial Review Act and

Veterans' Benefits Improvement Act of 1988, the

legislative history noted that Congress designed and

fully intends to maintain a beneficial non-adversarial

system of veterans benefits. This is particularly true of

service-connected disability compensation where the

element of cause and effect has been totally by-passed

in favor of a simple temporal relationship between .R.

Rep. No. 100–963, at 13 (1988), reprinted in 1988

U.S.C.C.A.N. 5782, 5794–95 (emphasis added).

Here, the court below has taken an inelastic and

rigid approach to judicial review of the Secretary’s

decisions. Ignoring settled principles of administrative

law, and the pro-veteran canon of construction, the

court below has created a separate class of citizens,

military veterans, who must accept the dictates of the

federal bureaucracy without recourse. This not only

strips veterans of meaningful review, but creates

conflicts with other Circuits. This Court’s should

restore judicial review of VA decisions and resolve the

conflict between the Federal Circuit and the United

States Court of Appeals for the District of Columbia

Circuit. In Blue Water Navy Vietnam Veterans

Association, Inc. and Military-Veterans Advocacy, Inc.

v. McDonald, 830 F.3d 570 (D.C. Cir. 2016). The D.C.

Circuit specially found that review of the M-21-1

6

Adjudication Manual and other VA actions were

reviewable by the Federal Circuit in 38 U.S.C. § 502.

ARGUMENT

I.

VA HAS USED THE M21-1 ADJUDICATION

MANUAL AS A MEANS TO PROMULGATE

BINDING

REGULATIONS

OF

GENERAL

APPLICABILITY INSULATED FROM JUDICIAL

REVIEW OF ARBITRARY AND CAPRICIOUS

ACTIONS

A. The Action of the Court Below Effectively

Denies Judicial Review of the Secretary’s

Decisions.

Barred from review in the federal district court by

the Veterans Judicial Reform Act and Blue Water

Navy Vietnam Veterans Association, Inc. and

Military-Veterans Advocacy, Inc. v. McDonald, 830

F.3d 570 (D.C. Cir. 2016), veterans are left powerless to

challenge irrational, arbitrary and capricious actions by

the VA without wading through the cumbersome and

elongated appeals system.

The actions of the court below go further than the

divesture of 90,000 Blue Water Navy veterans from

judicial review under the Administrative Procedures

Act, and may even survive the current controversy.5

They allow the Secretary of Veterans Affairs to bypass

judicial review in all cases involving benefits by merely

issuing regulatory changes via their M21-1 Manual.

5

Congress is considering but has not adopted a bill to

extend the presumptions of exposure. Although the bill passed the

House of Representatives 382-0, strong opposition by the VA has

resulted in multiple holds on the bill in the Senate. The bill is not

expected to pass.

7

Since APA review of the actions of the Secretary of

Veterans Affairs originate in the court below, this

Court represents the only supervisory body on matters

dealing with 38 U.S.C. § 502 actions.

Chief Justice John Marshall’s historic opinion in

Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803)

addressed a fundamental question of remedies as

follows:

If [a party] has a right, and that right has been

violated, do the laws of his country afford him a

remedy?

The very essence of civil liberty certainly

consists in the right of every individual to claim

the protection of the laws, whenever he receives

an injury. One of the first duties of government

is to afford that protection.

5 U.S. (1 Cr.) at 162-63.

The court below conceded that the impact of the

VA action was both real and far reaching. Despite this

finding, they declined to recognize a remedy to

challenge that action. Gray, supra., 875 F.3d at 110708.

Here the court below has carved a loophole in the

judicial review provisions of the Administrative

Procedures Act that allows the agency to promulgate

rules that are binding on agency employees without the

possibility of judicial review.

8

Without judicial review under the Administrative

Procedures Act, a court will not have jurisdiction over

the Secretary’s M21-1 regulations until an appeal is ripe

for review. The court below noted that, in the instant

case, the deteriorating health needs of the veterans

made resolution critical. Gray, 875 F.3d at 1109. They

also conceded that these veterans are now forced to

undergo the years-long process for individual

applications and rulemaking petitions.

Id.

As

Petitioner noted in his opening brief, 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, 891 F.3d 1338,

1350-51 (Fed. Cir. 2018) (Moore, J., concurring); U.S.

Court of Appeals for Veterans Claims, Annual Report:

Fiscal Year 2017, at 3 (2017). See Gray Merits brief at

6.

While individual cases affecting veterans are

coming through the appellate pipeline, these cases have

been pending for years. Veterans now complaining of

injuries due to toxic exposure has the better part of a

decade of waiting ahead of them. This type of delay is

unacceptable in a supposedly non-adversarial proveteran adjudication system. Intervention by this

Court is necessary to help streamline the process by

recognizing pre-enforcement judicial review of

arbitrary and capricious rules

Not only the Blue Water Navy veterans, but

millions of other veterans are having their medical and

compensation benefits stymied by agency use of

interpretive manuals to promulgate regulations.

Although not binding on the Board of Veterans

9

Appeals, Id. at 1108, there is no evidence to show the

Board is willing to ignore interpretive manuals such as

the M-21-1 Manual. At a minimum, these manuals are

considered persuasive authority. In addition, the M21-1

Manual is binding on Veterans Benefits Administration

employees.

This Court has repeatedly ruled that the APA

creates a presumption favoring judicial review of

administrative action,” Sackett v. E.P.A., 588 U.S. 120,

128-29, 132 S. Ct. 1367, 1373 (2012). This presumption

can only be overcome by “specific language or specific

legislative history that is a reliable indicator of

congressional intent,” or a specific congressional intent

to preclude judicial review that is “‘fairly discernible’ in

the detail of the legislative scheme.”

Bowen v.

Michigan Acad. of Family Physicians, 476 U.S. 667,

673, 106 S. Ct. 2133, 2137 (1986).

It is well settled that the APA’s “generous review

provisions” must be given a “hospitable” interpretation.

Shaughnessy v. Pedreiro, 349 U.S. 48, 51, 75 S.Ct. 591,

594 (1955). While the preclusion of judicial review may

be inferred from the statutory purpose, this can only be

done

upon a showing of “‘clear and convincing

evidence’ of a contrary legislative intent.” Barlow v.

Collins 397 U.S. 159, 167, 90 S.Ct. 832, 838 (1970). No

such clear and convincing evidence was presented to

the court below and none was cited in the opinion.

What the court below has done is recognize an

agency created loophole for a class of citizens, in this

case veterans, that decisively pokes holes in their

Congressionally mandated judicial review safety net.

Contrary to Marbury the veterans are left without a

10

real remedy to resolve the arbitrary and capricious

actions of the Secretary. This contrasts with the proveteran, non-adversarial envisioned by Congress.

Judicial review is required to ensure that the veterans

do not fall prey to the irrational actions of the

bureaucracy.

B. The Court Below Erred in Finding That the

Secretary’s Regulation Did Not Come Within

the Scope of 38 U.S.C. § 502.

The gravamen of the holding in the court below was

that they lacked jurisdiction because the regulation in

question was promulgated via the interpretive M21-1

Manual rather than through the substantive notice and

comment procedures of 5 U.S.C. § 553. Gray, 875 F.3d

at 1111. The Court further found that the M21-1 Manual

was an administrative staff manual that fell under the

provisions of 5 U.S.C. § 552(a)(2) for which there was no

jurisdiction.6 Id at 1108.

While the case below was pending, a separate panel

of the court below decided Disabled Am. Veterans v.

Sec’y of Veterans Affairs, 859 F.3d 1072, 1074 (Fed. Cir.

2017) (“DAV”), which also held that the court had no

jurisdiction to review regulations promulgated by the

Secretary via the M21-1 Manual.

In his dissent Judge Dyk wisely analyzed the DAV

decision and properly concluded that it was wrongly

decided. Like the case below, DAV held that because

the M21-1 Manual is an interpretive rather than a

6

38 U.S.C. § 502 grants jurisdiction for rulemaking

brought under 5 U.S.C. § 553 and 5 U.S.C. § 552(a).

11

substantive regulation, it did not trigger jurisdiction

under 38 U.S.C. § 502. The court below decided that

DAV compelled the same result in the instant case.

Gray, 875 F.3d at 1108.

To a large extent, the jurisdictional question turns

on how to classify the VA’s Manual under 5 U.S.C. §

552(a)(1) and/or 5 U.S.C. § 552(a)(2). The latter

provision provides in pertinent part:

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;

As they did in DAV decision the court below held

that the M21-1 Manual was an administrative staff

manual. Judge Dyk correctly pointed out that this

holding, as with the holding in DAV, was incorrect

because it conflicted with the precedent of other

Circuits and the previous precedent of the Federal

Circuit.

In contrast to the majority opinion, the veterans

and Judge Dyk argued that the Manual fell within the

scope of 5 U.S.C. § 552(a)(1)(D) as “statements of

general policy or interpretations of general applicability

formulated and adopted by the agency.” Gray, 875 F.3d

at 1111. In his excellent analysis, Judge Dyk notes that

12

the majority opinion and the reasoning of DAV were

erroneous and established a “substantial and

unnecessary burden on individual veterans, requiring

that they undergo protracted agency adjudication in

order to obtain pre-enforcement judicial review of a

purely legal question that is already ripe for our

review.” Gray, 875 F.3d at 1110 (Dyk, J dissenting).

The M21-1Manual is binding on Veterans

Benefits Authority personnel. Although not strictly

binding on the Board of Veterans Appeals, it

constitutes strong persuasive authority and is often

relied upon or cited by the Board. Morton v. West, 13

Vet. App. 205 (1999) ([Board of Veterans' Appeals

(Board or BVA) ] cannot ignore provisions of the

Manual M21–1). More importantly, the M21-1 Manual

is binding on virtually every claim for benefits filed at

the VA.

Adjudicators making the initial benefit

determination must follow this manual. Carter v.

Cleland, 643 F.2d 1, 5 (D.C. Cir. 1980). Judge Dyk

noted that 96% of the cases decided by VA employees

were bound by the manual.

The propriety of this type of interpretive

regulation has historically been considered reviewable

by other Circuits, even if not subject to the notice and

comment requirements of 5 U.S.C. § 553. Judge Dyk’s

dissent illustrated this trend when he referred to

Appalachian Power Co. v. Environmental Protection

Agency, 208 F.3d 1015, 1020-23 (D.C. Cir. 2000) which

dealt with review of EPA guidance issued, without

notice and comment, under the Clean Air Act. Other

EPA regulations as well as the interpretive guidance of

other regulations have been found to be reviewable.

Nat. Res. Def. Council v. Envtl. Prot. Agency, 643 F.3d

13

311, 320 (D.C. Cir. 2011), Aulenback, Inc. v. Fed.

Highway Admin., 103 F.3d 156, 163-65 (D.C. Cir. 1997);

W. Coal Traffic League v. United States, 719 F.2d 772,

780 (5th Cir. 1983) (en banc), Linoz v. Heckler, 800 F.2d

871, 878 n.11 (9th Cir. 1986).

Within

the

Federal

Circuit,

pre-DAV

jurisprudence also allowed judicial review of

interpretive manuals and even a general counsel’s

opinion. Snyder v. Secretary of Veterans Affairs, 858

F.3d 1410, 1413 (Fed. Cir. 2017). The same holds true

for a letter addressing the procedures for benefit

awards, because, as in this case, it affected substantive

as well as procedural rights. Military Order of the

Purple Heart supra., 580 F.3d at 1296 (Fed. Cir. 2009).

See, also, Animal Legal Def. Fund v. Quigg, 932 F.2d

920, 927 (Fed. Cir. 1991). Gray, 875 F.3d at 1115. (Dyk,

J dissenting).

Here the Manual is more than a procedural

handbook, it has a clear and potentially devastating

impact upon the rights of veterans to obtain benefits

during the early days of the disability. Delays in service

connection leads to delays in medical treatment which

is often fatal. Not only is this Court’s intervention

necessary to resolve the conflict between Circuits, it

also represents and important question of the law

which should be adjudicated by this Court. Settling

this question could save the lives of countless veterans.

In another agency, this regulation would have

been published in the Federal Register. The regulation

is a statement of the general course and method by

which its functions are channeled and determined,

constitutes a rule of procedure and is an interpretation

14

of general applicability formulated and adopted by the

agency. The Manual is also a policy statement that

“explains how the agency will enforce a statute or

regulation—in other words, how it will exercise its

broad enforcement discretion or permit indiscretion

under some extant statute or rule.” Nat'l Mining Ass'n

v. McCarthy, 758 F.3d 243, 252 (D.C.Cir. 2014). It

serves to “appris[e] the regulated community of the

agency's intentions as well as informing the exercise of

discretion by agents and officers in the field.” Cmty.

Nutrition Inst. v. Young, 818 F.2d 943, 949 (D.C.

Cir.1987); Ass'n of Flight Attendants CWA, AFL-CIO

v. Huerta, 785 F.3d 710, 716 (D.C. Cir. 2015). Thus it

should be subject to review under the APA.

As Judge Dyk’s dissent pointed out, the language of

38 U.S.C. § 502 did not require any restrictions on

judicial review of VA action. Gray, 875 F.3d at 1112.

The dissent reiterated the “well-settled presumption

that agency actions are reviewable,” unless Congress

clearly precludes such review. Gray, 875 at 1112. As

discussed supra., this Court has concurred in that view.

It is well settled that “the starting point in every

case involving construction of a statute is the language

itself.” Blue Chip Stamps v. Manor Drug Stores, 421

U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975)

(Powell, J., concurring). See, also Rubin v. United

States, 449 U.S. 424, 101 S.Ct. 698, 66 L.Ed.2d 633

(1981). The accepted definition of “general” can be

summarized in pertinent part by the Merriam-Webster

Dictionary:

15

1: involving, applicable to, or affecting the whole

2: involving, relating to, or applicable to every

member of a class, kind, or group

3: not confined by specialization or careful limitation

4: belonging to the common nature of a group of like

individuals

5: applicable to or characteristic of the majority of

individuals involved

https://www.merriam-webster.com/dictionary/general

With 96% of the cases being decided, at least

initially, in accordance with the M-21 Manual, the plain

meaning of the word “general” encompasses the

manual.

The inquiry does not end here, however. In addition

to the “plain meaning” rule, another canon of statutory

construction is relevant. While 5 U.S.C. § 552 is not

normally considered a veteran’s statute, it was

incorporated into veteran’s law by 38 U.S.C. § 502 and

should be construed pursuant to the pro-claimant canon

of construction.

The pro-claimant or pro-veteran canon has been

repeatedly recognized as an accepted canon of statutory

construction. This Court unanimously re-affirmed “the

canon that provisions for benefits to members of the

Armed Services are to be construed in the beneficiaries'

favor.” Henderson ex rel. Henderson v. Shinseki 561

U.S. 428, 441, 131 S.Ct. 1197, 1206 (2011). See, also, Pet.

At 3. See, also, Gambill v. Shinseki, 576 F.3d 1307,

1317 (Fed. Cir.2009). The Gambill court described the

process as uniquely pro-claimant.” Id. at 1316.

16

Since the days of World War II, the United

States, has properly recognized that “legislation is to be

liberally construed for the benefit of those who left

private life to serve their country in its hour of great

need.” Fishgold v. Sullivan Drydock & Repair Corp.,

328 U.S. 275, 285 (1946) (citing Boone v. Lightner, 319

U.S. 561, 575 (1943). Military veterans have “been

obliged to drop their own affairs and take up the

burdens of the nation” (Boone, 319 U.S. at 575),

“subjecting themselves to the mental and physical

hazards as well as the economic and family detriments

which are peculiar to military service” (Johnson v.

Robison, 415 U.S. 361, 380 (1974)). The United States

adopted the “long standing policy of compensating

veterans for their past contributions by providing them

with numerous advantages.” Regan v. Taxation with

Representation, 461 U.S. 540, 550-551 (1983). This led

to the pro-claimant canon which requires interpretative

ambiguities to be resolved in favor of the beneficiaries.

See, e.g., Brown v. Gardner, 513 U.S. 115, 118 (1994).

Accordingly, even if there was some ambiguity to

the word “general,” that ambiguity must be resolved in

favor of the veteran. This is especially important given

the government’s reliance upon Judge Taranto’s

concurrence in the court below that § 552(a)(1) and §

552(a)(2) are not mutually exclusive. See Pet. App. 32a33a (Taranto, J., concurring in the denial of rehearing

en banc) Assuming Judge Taranto is correct,7 then

7

Mr. Gray, in his merits brief, included an excellent

discussion of the government’s shifting arguments on the issue of

mutual exclusivity. Amicus concurs and adopts their analysis. It

is obvious that the VA was able to confuse the court below with

their ever changing approach to a doctrine they embrace only

when it benefits their anti-veteran position.

17

there is absolutely no reason why the M21-1 Manual

could not be found to be within the scope of both

subsections. While the government has conceded that

“the criteria that Section 552(a)(1) and (2) establish

overlap.” they have not explained why the manual does

not fall squarely within that overlap.

Accordingly, the majority and better view is that

the Federal Circuit has jurisdiction under 38 U.S.C. §

502 to review the M21-1 Manual in the instant and

similar cases. Judge Dyk’s analysis is the correct one

and petitioner Blue Water Navy Vietnam Veterans

Association prays that this Court resolve the Circuit

conflict and this important point of law by reversing the

court below.

C. The Decision in the Court Below Creates a

Conflict with the Court of Appeals for the

District of Columbia Circuit Case of Blue

Water Navy VietnamVeterans Association,

Inc. and Military-Veterans Advocacy, Inc.

v. McDonald, 830 F.3d 570 (D.C. Cir. 2016)

The “mutually exclusive” issue discussed supra, is

not the only case of the government shifting arguments

to support an untenable position. In Blue Water, the

Secretary argued successfully that the Veteran’s

Judicial Reform Act vests Administrative Procedures

Act jurisdiction over the Secretary’s actions solely in

the Court of Appeals for the Federal Circuit. Blue

Water Navy Vietnam Veterans Ass'n, supra, 830 F.3d

at 577.

The Court of Appeals for the District of Columbia

reasoned as follows:

18

Appellants [BWNVVA] say that this directreview exception extends only to VA regulations

and not to “interpretations” like the agency

actions they challenge. But Federal Circuit case

law makes clear that an agency policy need not

be promulgated as a regulation, via notice and

comment, to be reviewable under section 502. To

the contrary, the Federal Circuit has explained

that section 502 permits it to directly review a

wide range of “rules promulgated by the

Department of Veteran[s] Affairs, including

substantive rules of general applicability,

statements of general policy and interpretations

of general applicability.” LeFevre, 66 F.3d

[1191]at 1196 [Fed. Cir. 1995]; see also Military

Order of the Purple Heart of the USA v. Sec'y of

Veterans Affairs, 580 F.3d 1293, 1296

(Fed.Cir.2009) (holding that the VA's procedural

change, adopted in a letter and not via noticeand-comment rulemaking, was a “rule” subject

to review under section 502).

Blue Water Navy Vietnam Veterans Ass'n, Inc. v.

McDonald, 830 F.3d at 577.

In Blue Water, the Secretary argued as follows:

[V]eterans may bring an APA action challenging

the policy directly in the Federal Circuit. Given

these alternative avenues for judicial review,

even if the VJRA did not expressly preclude

review of Blue Water's claims, Blue Water would

have an adequate remedy in a court that would

render a cause of action under the APA

unavailable.

19

Blue Water Navy Vietnam Veterans Ass'n, Inc. v.

McDonald, Brief for Defendant-Appellee., 2015 WL

7777567 (C.A.D.C.), 10-11.

The Secretary went on to argue:

The policy that Blue Water purports to challenge

constitutes an interpretation[] of general

applicability.

Id. at 22.

In Blue Water, supra., the Secretary argued that

the M21-1 Manual provisions at issue here would be

reviewable under Section 502. Blue Water Navy

Vietnam Veterans Ass'n, supra, 830 F.3d at 577. Here

the Secretary argued that the policy delineated by the

M21-1 Manual was an interpretation of general

applicability. Blue Water Navy Vietnam Veterans

Ass'n, Inc. v. McDonald, Brief for Defendant-Appellee.,

2015 WL 7777567 (C.A.D.C.), at 22. The Secretary had

specifically argued that a remedy to challenge the

policy existed in the Federal Circuit. Id, at 10-11.

In Blue Water, the DC Circuit specifically found

that they did not have to grant relief because a remedy

actually existed in the Federal Circuit. The DC Circuit

obviously believed that such a remedy existed and that

the veterans objections fell within the “wide range of

rules promulgated by the Department of Veterans

Affairs.” Blue Water, 830 F.3d at 577.

In an implicit recognition of Blue Water, the court

below did not invite the veterans to return to the

federal district court, or transfer the matter to the

20

federal district court. Instead they merely confirmed

the absence of a remedy for the veterans without

explaining why the presumption of judicial review did

not apply. This is a “Catch 22" with a vengeance.

The question remains whether the VA’s exclusion

policy via interpretative regulations are interpretations

of general applicability within the scope of 5 U.S.C. §

552(a)(1). The District of Columbia Circuit says yes,

the Federal Circuit says no.

CONCLUSION

Amicus prays that the Court finds that VA’s M21-1

Manual amendments should be subject to judicial

review under 38 U.S.C. § 502 at least because they

represent a revision under 5 U.S.C. § 552(a)(1)(E) of a

prior VA “interpretation of general applicability.

Respectfully Submitted,

John B. Wells

Counsel of Record

LAW OFFICE OF JOHN B. WELLS

769 ROBERT BLVD., SUITE 201D

SLIDELL, LA 70458

985-641-1855

JohnLawEsq@msn.com