Petition for Writ of Certiorari — Blue Water Navy Vietnam Veterans Association, Inc., Petitioner v. Robert Wilkie, Secretary of Veterans Affairs

1a

United States Court of Appeals, Federal Circuit.

Robert H. GRAY, Petitioner

v.

SECRETARY OF VETERANS AFFAIRS,

Respondent

Blue Water Navy Vietnam Veterans Association,

Petitioner

v.

Secretary of Veterans Affairs, Respondent

2016-1782 2016-1793

Decided: November 16, 2017

Attorneys and Law Firms

Michael E. Wildhaber, Veterans Law Office of

Michael E. Wildhaber, Washington, DC, argued for

petitioner in 16-1782. Also represented by Shannon

Lynne Brewer, Hill & Ponton, P.A., Deland, FL.

John B. Wells, Law Office of John B. Wells,

Slidell, LA, argued for petitioner in 16-1793.

Eric Peter Bruskin, Commercial Litigation

Branch, Civil Division, United States Department of

Justice, Washington, DC, argued for respondent. Also

represented by Benjamin C. Mizer, Robert E.

Kirschman, Jr., Martin F. Hockey, Jr.; Brian D. Griffin,

Martin James Sendek, Office of General Counsel,

United States Department of Veterans Affairs,

Washington, DC.

Before Prost, Chief Judge, Dyk, and O'Malley,

Circuit Judges.

Opinion

2a

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 service’—the so-called ‘nexus’

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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 herbicides in

Vietnam. The relevant regulation conditions application

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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, the VA has

incorporated this new restriction into the M21-1

Manual, which directs VA adjudicators regarding the

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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/templates/

selfservice/va_ss/#!portal/554400000001018/topic/554400

000004049/M21-1-Adjudication-Procedures-Manual.

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.

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

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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 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

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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.

Note: Inland waterway service is also referred

to as brownbrown-water Navy service.

service

M21-1 Manual, part IV, subpart ii, ch. 1, ¶ H.2.a (2016)

(emphasis in original). By virtue of this manual change,

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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 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—

9a

....

(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 interpretive or policyladen 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

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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

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

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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

M21-1 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. § 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

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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 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,

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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, ––– U.S. ––––, 135 S.Ct. 1199, 1204, 191 L.Ed.2d

186 (2015). As the VA admits, an interpretive rule in an

administrative 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, 120 S.Ct. 1655, 146

L.Ed.2d 621 (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

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Footnotes

1Indeed, 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 M21-1 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=

2016-1782.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.

2Also 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.

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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 preenforcement

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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 claims. Maj. Op. 1105

17a

(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 1106. 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 “inland waterways”1 at the same

time it broadly defines “offshore waters”: “Offshore

Offshore

waters are the high seas and any coastal or other water

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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

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

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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. 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

20a

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 §

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 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

21a

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. 1108–

09; DAV, 859 F.3d at 1077, an agency's choice of

whether 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

22a

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 case-bycase 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

U.S. 40, 44, 76 S.Ct. 569, 100 L.Ed. 910 (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 now-defined

‘inland waterways’ of Vietnam ... from presumptive

service connection for diseases or illnesses connected

with exposure to Agent Orange.” Maj. Op. 1107. VA,

23a

too, “concedes that the impact of its manual changes is

both real and far reaching.” Id. at 1107–08. 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/2016VAafrFullWe

b.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_Rpts/

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

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. 1108–09, 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

24a

(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, 109 S.Ct. 2841, 106 L.Ed.2d

112 (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 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.

25a

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, 94

S.Ct. 1055, 39 L.Ed.2d 270 (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).

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.

26a

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

majority decision here represent an unwarranted

narrowing of our jurisdiction. I respectfully suggest the

DAV case was wrongly decided.

Footnotes

1“Inland

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

27a

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.

2Section 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

28a

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.

3As 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.

1105; see also Carter v. Cleland, 643 F.2d 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).

29a

United States Court of Appeals, Federal Circuit.

Robert H. GRAY, Petitioner

v.

SECRETARY OF VETERANS AFFAIRS,

Respondent

Blue Water Navy Vietnam Veterans Association,

Petitioner

v.

Secretary of Veterans Affairs, Respondent

2016-1782 2016-1793

March 21, 2018

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

ON PETITIONS FOR PANEL REHEARING AND

REHEARING EN BANC

Attorneys and Law Firms

Roman Martinez, Latham & Watkins LLP,

Washington, DC, filed a combined petition for panel

rehearing and rehearing en banc for petitioner Robert

H. Gray in 2016-1782. Also represented by Graham

Phillips, Benjamin Snyder, Blake Stafford; Shannon

Lynne Brewer, Hill & Ponton, P.A., Deland, FL;

Michael E. Wildhaber, Veterans Law Office of Michael

E. Wildhaber, Washington, DC.

John B. Wells, Law Office of John B. Wells, Slidell, LA,

filed a combined petition for panel rehearing and

30a

rehearing en banc for petitioner Blue Water Navy

Vietnam Veterans Association in 2016-1793.

Eric Peter Bruskin, Commercial Litigation Branch,

Civil Division, United States Department of Justice,

Washington, DC, filed a response to the petition for

respondent Secretary of Veterans Affairs in 2016-1782

and 2016-1793. Also represented by Chad A. Readler,

Robert E. Kirschman, Jr., Martin F. Hockey, Jr.; Brian

D. Griffin, Brandon A. Jonas, Office of General Counsel,

United States Department of Veterans Affairs,

Washington, DC.

Zachary Stolz, Chisholm Chisholm & Kilpatrick,

Providence, RI, for amicus curiae Disabled American

Veterans in 2016-1782. Also represented by Megan

Marie Ellis; Christopher J. Clay, Disabled American

Veterans, Cold Spring, KY.

Christine Khalili–Borna Clemens, Finkelstein &

Partners, LLP, Newburgh, NY, for amici curiae

National Organization of Veterans Advocates, Inc.,

National Veterans Legal Services Program, Military

Officers Association of America, National Law School

Veterans Clinic Consortium, Veterans of Foreign Wars

of the United States, Vietnam Veterans of America in

2016-1782. Also represented by Kenneth M. Carpenter,

Law Offices of Carpenter Chartered, Topeka, KS.

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.

31a

Dyk, Circuit Judge, with whom Newman and Wallach,

Circuit Judges, join, dissent from the denial of the

petitions for rehearing en banc.

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.

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

32a

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) 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,

33a

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 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.

34a

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 first-level

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 proceedings based on the

record.” Disabled American Veterans v. Sec'y of

Veterans Affairs, 419 F.3d 1317, 1319 (Fed. Cir. 2005).

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

35a

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, 5

U.S.C. §§ 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 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.

36a

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 M211 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.

37a

Text of Pertinent Constitutional Provisions,

Treaties, Statutes, Ordinances and Regulations

5 U.S.C. Sec 552. Public information; agency rules,

opinions, orders, records, and proceedings

(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

(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

38a

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 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

39a

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 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--

40a

(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.

5 U.S.C Sec 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--

41a

(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.

(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.

38 U.S.C. Sec 502. JJudicial

udicial 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

42a

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.