Bowling v. McDonough, 38 F.4th 1051

Background

Appellants Charlotte Bowling (substituting for her deceased husband Charles Bowling) and Kevin Appling were discharged under conditions other than honorable and sought VA benefits barred by statute unless they were "insane" at the time of the offense (38 U.S.C. § 5303(b)).
VA long-standing implementing regulation 38 C.F.R. § 3.354(a) defines "insane" via three clauses and a "due to disease" requirement, and VA applies a 1997 General Counsel opinion interpreting the regulation (including exclusions for antisocial personality and substance abuse).
The Board denied benefits to both claimants relying on the 1997 GC opinion; appellants appealed to the Veterans Court, asserting only a facial vagueness challenge to § 3.354(a) (not an as-applied challenge).
Appellants asked the Veterans Court to take judicial notice of extra-record empirical materials (including a Harvard Clinic report, "Underserved") to show inconsistent VA application and hence facial vagueness; the Veterans Court declined to consider the extra-record material and rejected the facial challenge.
On appeal to the Federal Circuit, appellants argued the Veterans Court erred by excluding extra-record material (now framed as futility of submitting it to the Board) and that § 3.354(a) is facially vague; the Federal Circuit affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Veterans Court erred by refusing to consider extra-record evidence	Bowling/Appling: the extra-record empirical materials show disparate application and are necessary to prove facial vagueness; judicial notice warranted or Board submission would have been futile	Secretary: statutory rule limits Veterans Court to Board record; judicial notice standard not met; presenting the materials to the Board would not have been futile	Affirmed: exclusion proper. Plaintiffs failed to show futility; Board could have developed the record and judicial notice standard not met
Whether 38 C.F.R. § 3.354(a) is facially void for vagueness	Plaintiffs: regulation is imprecise and has been applied arbitrarily across VA, producing widespread uncertainty	Secretary: regulation plus binding GC opinion, DSM/medical standards, and established interpretive rules provide adequate guidance	Rejected: plaintiffs failed to demonstrate pervasive indeterminacy or lack of fair notice; facial vagueness claim fails on the merits
Whether a futility/exhaustion exception excused not presenting constitutional evidence to the Board	Plaintiffs: Board cannot invalidate regulations, so presenting constitutional proof to Board would be a "useless act"	Secretary: Ledford and Wolfe require development of administrative record; Board can assist in fact development even if it cannot invalidate a rule	Rejected: futility excuse not available; appellants should have submitted the evidence to the Board for record development
Whether appellants may press a facial vagueness claim absent an as-applied challenge	Plaintiffs: sought only a facial ruling and class treatment	Secretary: litigant whose case is clear as applied cannot bring a facial vagueness attack	Rejected: facial challenge barred because appellants did not challenge § 3.354(a) as applied to them; law was not shown to be vague as to their situations

Key Cases Cited

United States v. Salerno, 481 U.S. 739 (1987) (explains facial-vagueness principle requiring substantial showing of vagueness across applications)
Johnson v. United States, 576 U.S. 591 (2015) (identifies "pervasive disagreement" theory for vagueness and the categorical approach)
Ledford v. West, 136 F.3d 776 (Fed. Cir. 1998) (rejects futility excuse for failing to present constitutional challenges to the agency)
Wolfe v. McDonough, 28 F.4th 1348 (Fed. Cir. 2022) (applies Ledford to reject futility argument and require record development before the Board)
Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144 (2017) (a plaintiff to whom a law is clear cannot mount a facial vagueness challenge)
United States v. Williams, 553 U.S. 285 (2008) (clarifies that vagueness condemns indeterminacy of what the statute or regulation forbids)