Blue Water Navy Vietnam v. Robert McDonald

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 10, 2016 Decided July 29, 2016
No. 15-5109
BLUE WATER NAVY VIETNAM VETERANS ASSOCIATION, INC.
AND MILITARY-VETERANS ADVOCACY, INC.,
APPELLANTS
v.
ROBERT A. MCDONALD, IN HIS OFFICIAL CAPACITY AS
SECRETARY OF VETERANS AFFAIRS,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-01187)
John B. Wells argued the cause and filed the briefs for
appellants.
William E. Havemann, Attorney, U.S. Department of
Justice, argued the cause for appellee. With him on the brief
were Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, and Charles W. Scarborough, Attorney.
Before: HENDERSON, GRIFFITH, and PILLARD, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
2
GRIFFITH, Circuit Judge: Blue Water Navy Vietnam
Veterans Association and Military-Veterans Advocacy appeal
the district court’s dismissal of their complaint for lack of
subject matter jurisdiction. Because Congress stripped the
district court of jurisdiction over their claims, we affirm.
I
In the 1960s and early 1970s, the United States used an
herbicide known as Agent Orange to clear heavily forested
areas in Vietnam. See S. REP. NO. 100-439, at 64 (1988).
Concerns about the long-term health effects of exposure to
Agent Orange led Congress to pass the Agent Orange Act of
1991, Pub. L. No. 102-4, 105 Stat. 11 (codified in scattered
sections of Title 38 of the U.S. Code). The Act instructs the
Department of Veterans Affairs (VA) to presume that
veterans who “served in the Republic of Vietnam” between
January 9, 1962, and May 7, 1975, were exposed to Agent
Orange. 38 U.S.C. § 1116(a)(1). The VA’s regulations track
this statutory language. See 38 C.F.R. § 3.307(a)(6)(iii)
(providing that veterans who “served in the Republic of
Vietnam” during the same window are “presumed to have
been exposed” to Agent Orange and similar herbicides). If
these veterans develop certain diseases linked to Agent
Orange, this presumption allows them to receive disability
compensation without proving they were exposed to the
herbicide during their military service. See id.; Haas v. Peake,
525 F.3d 1168, 1172 (Fed. Cir. 2008).
The VA interprets the phrase “served in the Republic of
Vietnam” to exclude veterans who served on ships offshore
without entering inland waterways or setting foot on
Vietnamese soil. VA Op. Gen. Counsel Prec. 27-97, at 3-5
(1997); see Disease Associated with Exposure to Certain
Herbicide Agents: Type 2 Diabetes, 66 Fed. Reg. 23,166,
3
23,166 (May 8, 2001). Instead, to be considered eligible for
certain benefits, these “blue-water” veterans must prove on a
case-by-case basis that they were exposed to Agent Orange
during their military service—an extremely difficult task, see
LeFevre v. Sec’y, Dep’t of Veterans Affairs, 66 F.3d 1191,
1197 (Fed. Cir. 1995) (“Congress [established presumptions
of exposure] because it recognized that ordinarily it would be
impossible for an individual veteran to establish that his
disease resulted from exposure to herbicides in Vietnam.”).
The VA articulated its policy denying the presumption of
exposure to blue-water veterans in a 1997 opinion by its
General Counsel, see VA Op. Gen. Counsel Prec. 27-97,
which was precedential and therefore binding upon the
agency, see 38 C.F.R. § 14.507(b). And it reiterated its stance
in, among other documents, an agency policy manual. The
agency then declined to reconsider the policy in a 2012 notice
published in the Federal Register, see Presumption of
Exposure to Herbicides for Blue Water Navy Vietnam
Veterans Not Supported, 77 Fed. Reg. 76,170 (Dec. 26,
2012), and again in a 2013 letter to Military-Veterans
Advocacy (“2013 Denial Letter”). The VA treated its 2013
Denial Letter as a denial of a request for rulemaking under 5
U.S.C. § 553(e).
Blue Water Navy Vietnam Veterans Association and
Military-Veterans Advocacy (“Appellants”) challenged the
agency’s policy in district court. They argued that the VA’s
policy was arbitrary and capricious and otherwise unlawful
under the Administrative Procedure Act, see 5 U.S.C.
§ 706(2). They asked the district court to issue a declaratory
judgment that the policy violated the APA and to order
injunctive and mandamus relief to prevent the VA from
denying the presumption of Agent Orange exposure to blue-
water veterans. The district court dismissed the suit for lack of
subject matter jurisdiction, citing 38 U.S.C. § 511(a), which
4
bars review in district court of VA decisions “under a law that
affects the provision of” veterans benefits.
This appeal followed. We have jurisdiction under 28
U.S.C. § 1291, and we review the district court’s dismissal de
novo. See Munsell v. Dep’t of Agric., 509 F.3d 572, 578 (D.C.
Cir. 2007). We affirm.
II
We start from the presumption that agency action is
reviewable. See Bowen v. Mich. Acad. of Family Physicians,
476 U.S. 667, 672-73 (1986). But this presumption can be
overcome by “specific language” that is “a reliable indicator
of congressional intent” that courts lack the power to hear a
challenge to agency action. Block v. Cmty. Nutrition Inst., 467
U.S. 340, 349 (1984). We permit such a challenge to proceed
“where substantial doubt about the congressional intent
exists.” El Paso Nat. Gas Co. v. United States, 632 F.3d 1272,
1276 (D.C. Cir. 2011) (quoting Bowen, 476 U.S. at 672 n.3).
Here, we have no doubt about Congress’s intent.
A
Section 511(a) clearly bars the district court from
adjudicating Appellants’ challenge. In full, that provision
reads:
The [VA] Secretary shall decide all questions of law and
fact necessary to a decision by the Secretary under a law
that affects the provision of benefits by the Secretary to
veterans or the dependents or survivors of veterans.
Subject to [enumerated exceptions], the decision of the
Secretary as to any such question shall be final and
conclusive and may not be reviewed by any other official
5
or by any court, whether by an action in the nature of
mandamus or otherwise.
38 U.S.C. § 511(a) (emphasis added). One enumerated
exception to this bar allows litigants to appeal individual
benefits determinations through the VA’s administrative
machinery and ultimately to the Federal Circuit. See id.§ 511(b)(4); see also id. §§ 7104, 7252, 7261, 7292. Another
exception permits direct review of notice-and-comment
rulemakings and certain other VA actions of “general”
applicability exclusively in the Federal Circuit. See id.
§ 511(b)(1); see also id. § 502 (cross-referencing 5 U.S.C.
§§ 552(a)(1), 553). Notably, both of these routes bypass
district courts.
We have interpreted section 511(a) to “preclude[] judicial
review in [district] courts of VA decisions affecting the
provision of veterans’ benefits.” Price v. United States, 228
F.3d 420, 421 (D.C. Cir. 2000) (per curiam). Or to put it
another way, review in the district courts is barred when
“underlying the claim is an allegation that the VA
unjustifiably denied [] a veterans’ benefit.” Id.; see also
Broudy v. Mather, 460 F.3d 106, 115 (D.C. Cir. 2006)
(explaining that section 511(a) forbids district court “review
[of] the Secretary’s actual decision[] that veterans were not
entitled to the benefits they sought” (internal quotation marks
omitted)); Thomas v. Principi, 394 F.3d 970, 974-75 (D.C.
Cir. 2005) (recognizing that section 511(a) precludes district
court review when a “denial of benefits underlies” the
plaintiff’s allegations (internal quotation marks and brackets
omitted)).
Appellants have not established that the district court has
jurisdiction to adjudicate their claims. See Khadr v. United
States, 529 F.3d 1112, 1115 (D.C. Cir. 2008) (“[T]he party
6
claiming subject matter jurisdiction . . . has the burden to
demonstrate that it exists.”). They undoubtedly challenge a
decision “affecting the provision of veterans’ benefits,” Price,
228 F.3d at 421, because they seek review of the validity of a
VA policy that leads directly to the denial of certain benefits
for most, if not all, of the veterans it affects, see LeFevre, 66
F.3d at 1197 (recognizing that it is nearly “impossible” for
veterans to prove exposure on a case-by-case basis).
Indeed, Appellants do not dispute that a “denial of
benefits underlies” their allegations. Thomas, 394 F.3d at 974-
75 (internal quotation marks and brackets omitted). Nor do
they contest that their challenge would require the district
court to adjudicate questions decided by the Secretary that are
“necessary” to the Secretary’s decision to deny the Agent
Orange presumption. 38 U.S.C. § 511(a). Instead, Appellants
argue that despite its broad language, section 511(a) bars the
district court from hearing only challenges to individual
benefits determinations—not challenges alleging that the VA
improperly interpreted its statutory and regulatory obligations.
But section 511(a) is not so narrow. Not only does the
text of section 511 make no mention of such a limitation, but
its structure belies Appellants’ assertion. As the district court
observed, one of the exceptions to section 511(a)’s bar
permits review exclusively in the Federal Circuit of certain
VA actions of general applicability, see 38 U.S.C.
§ 511(b)(1), including “substantive rules of general
applicability,” LeFevre, 66 F.3d at 1196 (explaining that the
Federal Circuit “may directly review” such actions under 38
U.S.C. § 502). Congress would have had no need to exempt
agency actions of “general” applicability from the bar to
judicial review set out in section 511(a) if it understood that
bar to encompass only VA decisions regarding individual
benefits determinations.
7
Appellants point to different statutory provisions to
support their argument. In 38 U.S.C. §§ 7104 and 7105,
Congress provided that an “appellant”—defined by regulation
as a “claimant,” see 38 C.F.R. § 20.3(c)—may appeal to the
Board of Veterans’ Appeals “questions in a matter which
under section 511(a) of this title is subject to decision by the
Secretary.” Appellants note that “claimant” refers to an
individual veteran who submits benefits claims. We take
Appellants to argue that Congress instructed in these sections
that the only “matter[s] . . . subject to decision by the
Secretary” under section 511(a) are those involving individual
claimants. But we will not read the word “only” into the
statute “when Congress has left it out.” Keene Corp. v. United
States, 508 U.S. 200, 208 (1993). These provisions merely
envision that some “matter[s] . . . subject to decision by the
Secretary” under section 511(a) will involve individual
claimants. And this reading is consistent with language in
section 511(a) that contemplates appeal of individual benefits
determinations. See 38 U.S.C. § 511(a) (“Subject to [the
exceptions in] subsection (b), the decision of the Secretary . . .
shall be final[.]” (emphasis added)), (b)(4) (excepting appeals
of individual determinations).
Appellants also point to a number of cases that, in their
view, show that section 511(a) bars review in the district court
only of individual benefits determinations. For example, they
rely on Broudy v. Mather, where we explained that section
511(a) “does not give the VA exclusive jurisdiction to
construe laws affecting the provision of veterans benefits or to
consider all issues that might somehow touch upon whether
someone receives veterans benefits. Rather, it simply gives
the VA authority to consider such questions when making a
decision about benefits . . . and . . . prevents district courts
from ‘review[ing]’ the Secretary’s decision once made.” 460
F.3d at 112. According to Appellants, this language means
8
that district courts are barred from reviewing only individual
benefits determinations. We disagree. To the extent our
opinion in Broudy might be read to suggest that section 511(a)
bars review only of individual determinations, we take this
occasion to clarify that opinion’s scope. Broudy presented us
with no opportunity to consider whether section 511(a)
applies to VA policies of general applicability, such as
regulations or interpretations. Instead, we examined whether
the Secretary had actually decided certain questions when
denying the plaintiffs’ claims in individual determinations. Id.
at 110, 114. In other words, Broudy focused on the
requirement of a “decision of the Secretary,” and not on what
kinds of secretarial decisions fall within section 511(a)’s bar.
It thus presents no obstacle to affirming the district court’s
dismissal here.
Appellants further contend that if we affirm the district
court’s dismissal, we will “do precisely what the Broudy court
seemed to warn against: give the VA exclusive jurisdiction to
construe laws affecting the provision of veterans benefits.”
Appellants’ Br. 18. This concern is misplaced. We recognized
in Broudy that section 511(a) does not confer such exclusive
jurisdiction upon the VA; rather, it merely bars review in the
district court of decisions that the Secretary has actually
made. 460 F.3d at 112. Nothing in this opinion changes that
conclusion.
Appellants next urge that Thomas v. Principi, 394 F.3d
970 (D.C. Cir. 2005), Anestis v. United States, 749 F.3d 520(6th Cir. 2014), and Veterans for Common Sense v. Shinseki,
678 F.3d 1013 (9th Cir. 2012) (en banc), show that actions
“that d[o] not require the individual determination of
benefit[s]” can be brought in district court. Appellants’ Br. 16.
To be sure, these cases explained that section 511(a)
precludes judicial review of individual benefits
9
determinations in district court. But they neither held nor
suggested that section 511(a) bars review only of individual
determinations. Rather, they referred to individual benefits
determinations simply because in each case, the VA argued
that the petitioner was challenging such a determination and
that judicial review was therefore barred.
In Thomas, for instance, we agreed with the VA that
section 511(a) precluded challenges to the adequacy of
medical services provided to the plaintiff. 394 F.3d at 975.
These claims required the district court to “decide whether
Thomas was entitled to medical treatment in the face of a
prior VA determination that he was not.” Broudy, 460 F.3d at
115 (discussing Thomas). But we reached a different
conclusion as to Thomas’s claims that the VA had wrongfully
failed to inform him of his diagnosis. The “questions of law
and fact” relevant to those claims dealt with “whether the
alleged withholding of the diagnosis state[d] a tort claim, and
resolution of those questions [wa]s not ‘necessary’ to the
benefits determination.” Thomas, 394 F.3d at 974. In other
words, because “no denial of benefits ‘underl[ay]’ Thomas’s
failure-to-inform allegations,” section 511(a) did not prevent
him from advancing those claims. Id. at 974-75. Thus, the
decisive factor in Thomas was not whether the district court
would have to review an individual benefits determination,
but whether it would have to review a benefits determination
at all. Accord Anestis, 749 F.3d at 527 (holding that the tort
claims at issue were “wholly independent[]” of any benefits
determination).
Similarly, in Veterans for Common Sense, the Ninth
Circuit did not interpret section 511(a) as barring review only
of individual benefits determinations. There, the court
concluded that a challenge by a veterans’ group to system-
wide delays in benefits processing was barred under section
10
511(a) because it would require the district court to review
thousands of individual benefits determinations. Veterans for
Common Sense, 678 F.3d at 1027, 1030. But in reaching this
conclusion, the Ninth Circuit emphasized the breadth of
section 511(a)’s preclusion, concluding that it “extends not
only to cases where adjudicating veterans’ claims requires the
district court to determine whether the VA acted properly in
handling a veteran’s request for benefits, but also to those
decisions that may affect such cases.” Id. at 1025 (emphasis
added) (citing Thomas, 394 F.3d at 974; Broudy, 460 F.3d at
114-15). Far from strengthening the argument that section
511(a) applies only to individual claims, this language
suggests just the opposite: that under section 511(a), the
district court cannot review a VA policy, like the one at issue
here, that “affects” veterans’ requests for benefits.
B
Appellants raise three additional counterarguments, but
none succeeds.
First, they contend that even if the district court lacked
jurisdiction to order the VA to rescind its policy, it had
jurisdiction under the Declaratory Judgment Act, 28 U.S.C.
§ 2201, to declare the policy arbitrary and capricious. But the
language of both section 511(a) and the Declaratory Judgment
Act forecloses this argument. Section 511(a) bars judicial
review “by an action in the nature of mandamus or
otherwise.” 38 U.S.C. § 511(a). Appellants fail to explain why
this broad language does not encompass a declaratory
judgment. And the Declaratory Judgment Act permits a
district court to issue declaratory judgments only “[i]n a case
of actual controversy within its jurisdiction.” 28 U.S.C.
§ 2201; see also 14 CHARLES ALAN WRIGHT et al., FEDERAL
PRACTICE AND PROCEDURE § 3655 (4th ed. 2016) (“Resort to
11
the Declaratory Judgment Act will not fill a gap in subject
matter jurisdiction[.]”). Because Appellants’ challenge is not
within the district court’s jurisdiction, the district court lacked
power to issue a declaratory judgment just as surely as it
lacked power to order the VA to act.
Second, Appellants argue that the district court’s decision
leaves veterans without a remedy, in violation of the
command of Marbury v. Madison, 5 U.S. (1 Cranch) 137
(1803), that individuals have a “right . . . to claim the
protection of the laws” when they “receive[] an injury.” Id. at
(1 Cranch) 163. According to Appellants, the Administrative
Procedure Act provides a “default safety net” in such cases.
Reply Br. 17. 1 But it is not true that Appellants, or the
veterans they represent, lack a remedy. To the contrary,
section 511 leaves open several routes for veterans or
organizations to challenge the VA’s denial of the Agent
Orange presumption.
For one, an exception to section 511(a)’s bar permits
litigants to petition for direct review in the Federal Circuit—
and only the Federal Circuit—of VA regulations and certain
1
The government appears to believe Appellants are arguing
that they are entitled to judicial review under 5 U.S.C. § 704, a
provision of the Administrative Procedure Act that explains that
“final agency action for which there is no other adequate remedy in
a court [is] subject to judicial review.” See Appellee’s Br. 22-23.
We do not understand Appellants to advance an argument under
this provision. Even if they made such a claim, however, we need
not decide whether they have an “adequate remedy in a court,”
because 5 U.S.C. § 704 does not apply if “statutes preclude judicial
review,” 5 U.S.C. § 701(a)(1). The provision is therefore
inapplicable here, because section 511(a) precludes judicial review
of Appellants’ challenge.
12
other generally applicable actions pursuant to 38 U.S.C.
§ 502. See 38 U.S.C. § 511(b)(1). Appellants say that this
direct-review exception extends only to VA regulations and
not to “interpretations” like the agency actions they challenge.
But Federal Circuit case law makes clear that an agency
policy need not be promulgated as a regulation, via notice and
comment, to be reviewable under section 502. To the
contrary, the Federal Circuit has explained that section 502
permits it to directly review a wide range of “rules
promulgated by the Department of Veteran[s] Affairs,
including substantive rules of general applicability, statements
of general policy and interpretations of general applicability.”
LeFevre, 66 F.3d at 1196; see also Military Order of the
Purple Heart of the USA v. Sec’y of Veterans Affairs, 580
F.3d 1293, 1296 (Fed. Cir. 2009) (holding that the VA’s
procedural change, adopted in a letter and not via notice-and-
comment rulemaking, was a “rule” subject to review under
section 502).
Indeed, the Federal Circuit has reviewed as a substantive
rule a VA “notice” similar to the 2012 notice that Appellants
challenge. See LeFevre, 66 F.3d at 1196 (citing Disease Not
Associated with Exposure to Certain Herbicide Agents, 59
Fed. Reg. 341 (Jan. 4, 1994)); see also 77 Fed. Reg. at
76,170-71. And the Federal Circuit has held that section 502
allows it to review the denial of a petition for rulemaking. See
Preminger v. Sec’y of Veterans Affairs, 632 F.3d 1345, 1352
(Fed. Cir. 2011). The VA treated its 2013 Denial Letter as
precisely this type of action. Appellants offer no reason why,
in light of this case law, they cannot seek relief in the Federal
Circuit for agency actions other than regulations. 2
2
We decline to speculate whether any action brought in the
Federal Circuit would be timely, as the issue is not before us on
13
Moreover, another exception to section 511(a)’s bar
permits individual veterans to appeal benefits determinations
through the administrative process and eventually to the
Federal Circuit. See 38 U.S.C. § 511(b)(4); see also id.§§ 7104, 7252, 7261, 7292. An individual veteran challenged
the VA’s Agent Orange policy via this route—and lost—in
Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). There, the
Federal Circuit deemed the agency’s requirement that a
claimant must have served on Vietnamese soil or in inland
waterways to qualify for the presumption “a permissible
interpretation of the statute and its implementing regulation.”
Id. at 1172.
Appellants assert that the administrative appeal process is
insufficient, pointing to Gray v. McDonald, 27 Vet. App. 313(2015). In Gray, the Court of Appeals for Veterans Claims
reviewed the VA’s determination that a particular harbor in
Vietnam was an offshore waterway and that veterans who
served there were not entitled to the presumption of exposure
to Agent Orange. The court held that the decision was
arbitrary and capricious, vacated the agency’s policy, and
appeal. And although we rest our holding on section 511(a), we
also observe that to the extent Appellants challenge documents that
fall within the purview of section 502, that provision would appear
independently to bar district-court review. See 38 U.S.C. § 502(providing for review “only” in the Federal Circuit); Veterans for
Common Sense, 678 F.3d at 1023 (explaining that if a “claim comes
within either” section 511(a) or an exception in section 511(b)
providing for exclusive review elsewhere, “the district court is
divested of jurisdiction that it otherwise might have exercised”);
H.R. REP. NO. 100-963, at 28 (1988) (noting congressional intent to
“vest[] jurisdiction of challenges brought under the APA solely in
the Court of Appeals for the Federal Circuit” and thereby “deprive[]
United States District Courts of jurisdiction to hear such matters”).
14
remanded the issue to the VA for reconsideration. See id. at
326-27. In Appellants’ view, this vacatur and remand shows
that the court lacked the power to order the VA “to grant the
presumption of exposure to the entire spectrum of Blue Water
Navy veterans.” Appellants’ Br. 19. Appellants read too much
into the Gray opinion. That the court vacated unsupported
agency action does not reveal any structural failing on its part;
to the contrary, vacatur is the “normal remedy” for such
deficiencies, even in Article III courts like ours. Allina Health
Servs. v. Sebelius, 746 F.3d 1102, 1110 (D.C. Cir. 2014). And
the Court of Appeals for Veterans Claims did not say that it
was vacating and remanding the policy because it lacked
power to order the VA to act; instead, it explained that it did
so because it “decline[d] to usurp the Agency’s authority and
impose its own” definition of inland waterways. McDonald,
27 Vet. App. at 326. Indeed, the Court of Appeals for
Veterans Claims has previously observed that it “has authority
to issue extraordinary writs in aid of its jurisdiction pursuant
to the All Writs Act,” including writs of mandamus ordering
the VA to act. Ebert v. Brown, 4 Vet. App. 434, 437 (1993)
(citing 28 U.S.C. § 1651(a)).
Appellants further argue that the VA’s slow pace in
reconsidering the definition vacated in Gray underscores the
inadequacy of the administrative appeal process. But veterans
and organizations are not without a remedy for delay by the
VA. They may bring an action in the Court of Appeals for
Veterans Claims to “compel action of the Secretary
unlawfully withheld or unreasonably delayed.” 38 U.S.C.
§ 7261(a)(2). We cannot ignore the limits Congress has
imposed on district courts’ jurisdiction merely because we
might prefer the VA to move at a faster pace.
Finally, Appellants assert that if we affirm the district
court’s reading of section 511(a), we will produce “an absurd
15
result” by divesting various tribunals—including the Board of
Veterans’ Appeals, the Federal Circuit, and the Supreme
Court—of jurisdiction to review the VA’s actions. See
Landstar Express Am., Inc. v. Fed. Mar. Comm’n, 569 F.3d
493, 498 (D.C. Cir. 2009) (“A statutory outcome is absurd if
it defies rationality.”). We disagree. As we have explained,
statutory exceptions to section 511(a)’s bar allow these bodies
to review certain VA decisions. See 38 U.S.C. § 511(b)(1),
(4). Our conclusion that the district court lacked jurisdiction
to hear Appellants’ challenge does not bar review in these
other fora.
IV
We affirm the district court’s dismissal of Appellants’
complaint.