Blue Water Navy Viet. Veterans Ass'n, Inc. v. McDonald

• Decision Date: 29 July 2016
• Docket Number: No. 15-5109,15-5109
• Citation: 830 F.3d 570
• Parties: 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
• Court: U.S. Court of Appeals — District of Columbia Circuit

830 F.3d 570

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

No. 15-5109

United States Court of Appeals, District of Columbia Circuit.

Argued March 10, 2016

Decided July 29, 2016

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.

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, 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 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, 106 S.Ct. 2133, 90 L.Ed.2d 623 (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, 104 S.Ct. 2450, 81 L.Ed.2d 270 (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, 106 S.Ct. 2133 ). 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 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 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.

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...