Gray v. Secy of Veterans Affairs, 875 F.3d 1102 (Fed. Cir. Nov. 16, 2017)
HELD: The Federal Circuit lacks jurisdiction to review VA’s policy manual revisions that exclude Navy personnel who served outside the “inland waterways” – including ports, harbors, and open-water bays – because the M21-1 policy manual is merely “guidance to VA adjudicators” and “lacks the force and effect of law.”
SUMMARY: Robert Gray is a Blue Water Navy veteran who challenged VA’s exclusion of Da Nang Harbor from its definition of “inland waterways” for purposes of presumptive service connection for conditions related to herbicide (Agent Orange) exposure. The Veterans Court concluded that VA’s definition was “both inconsistent with the regulatory purpose and irrational,” and remanded for VA to “reevaluate its definition of ‘inland waterway’ to be consistent with [38 C.F.R.] § 3.307(a)(6)(iii),” the regulation governing the presumption of herbicide exposure.
Instead of amending the regulation – which would have required notice-and-comment rulemaking – VA amended its M21-1 policy manual with language that continued “to exclude all Navy personnel who served … in [Vietnam’s] ports, harbors, and open waters  from presumptive service connection for diseases or illnesses connected with exposure to Agent Orange.”
Mr. Gray challenged the amendment to VA’s policy under 38 U.S.C. § 502, which governs judicial review of rules and regulations. This statute limits the Federal Circuit’s jurisdiction to agency actions that are subject to two provisions of the Administrative Procedure Act – 5 U.S.C. § 552(a)(1) and § 553. The question in this appeal is whether the revision to the M21-1 falls under § 552(a)(1). The Federal Circuit held that it did not.
This provision covers agency actions that are published in the Federal Register and are “substantive rules of general applicability as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency.” In other words – notice-and-comment rulemaking. The Federal Circuit stated that there are three factors to consider in assessing “whether an agency action constitutes substantive rulemaking … (1) the [a]gency’s own characteristics 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.” (quoting Disabled Am. Veterans v. Sec’y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017).
The Court found that the M21-1 is meant to guide VA adjudicators, but “is not intended to establish substantive rules.” The Court noted that the Board is not bound by the M21-1 – and thus “where the action is not binding on private parties or the agency itself, we have no jurisdiction to review it.”
The Court found that Mr. Gray – and his fellow Blue Water Navy Veterans – still had other options to pursue. First, if they are “adversely affected by a M21-1” provision, they can challenge that provision on direct appeal. Second, they can petition VA for rulemaking. (Mr. Gray pointed out that both options were currently pending.) The Court recognized that it would likely take years for “individual adjudications or petitions for rulemaking” to run their course. Unfortunately, the sad reality of this situation does not change the Federal Circuit’s jurisdiction.
In a partial dissent, Judge Dyk argued that DAV was wrongly decided and that it unnecessarily narrows the Court’s jurisdiction. In Judge Dyk’s view, the “relevant question for jurisdictional purposes … is whether the Manual revisions here are properly characterized as ‘statements of general policy or interpretations of general applicability.” If so, the Federal Circuit would have jurisdiction to review the challenge. The problem with DAV (and, now, the majority opinion in this case), is that it essentially enables VA to evade judicial review by simply not publishing the revision in the Federal Register.