Disabled American Veterans v. Secretary of Veterans Affairs
2017 U.S. App. LEXIS 10528
| Fed. Cir. | 2017Background
- 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 provide presumptive service connection for certain chronic disabilities from Persian Gulf service, including medically unexplained chronic multisymptom illnesses (MUCMIs).
- The VA’s M21-1 Manual is an internal electronic staff manual used to guide VBA adjudicators in processing disability claims; revisions are made internally and published in the manual rather than the Federal Register.
- In 2015 the VA revised the M21-1 definition of MUCMI to require both inconclusive pathophysiology and inconclusive etiology, and added that sleep apnea "cannot be presumptively service-connected" under § 3.317.
- Disabled American Veterans (DAV) petitioned for review under 38 U.S.C. § 502, arguing the M21-1 revisions were substantive rules inconsistent with statute and regulation and thus required notice-and-comment rulemaking.
- The government argued the M21-1 Manual is an administrative staff manual falling under 5 U.S.C. § 552(a)(2), not a substantive rule subject to § 553 or a § 552(a)(1) action publishable in the Federal Register.
- The court evaluated whether it had jurisdiction under § 502 (which extends only to agency actions covered by 5 U.S.C. § 552(a)(1) or subject to § 553) and whether the Manual revisions amounted to substantive rulemaking.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court has jurisdiction under 38 U.S.C. § 502 to review the M21-1 revisions | DAV: revisions are substantive or are statements of general applicability subject to § 552(a)(1) or § 553 | Gov: M21-1 is an administrative staff manual under § 552(a)(2), not § 552(a)(1) or § 553 | Dismissed for lack of jurisdiction; DAV failed to show revisions fall under § 552(a)(1) or § 553 |
| Whether M21-1 revisions are substantive rules requiring notice-and-comment under § 553 | DAV: revisions change existing law/policy and affect veterans’ rights, so § 553 applies | Gov: Manual is internal guidance without force of law, not published, not binding on Board; not § 553 rulemaking | Court held revisions are not substantive rules with force of law; no § 553 violation |
| Whether M21-1 provisions are binding on adjudicators and outside tribunals | DAV: manual provisions can have the force of law and be binding | Gov: VA does not intend manuals to have force of law; Board is not bound by Department manuals per regulation | Court found M21-1 not binding on agency tribunals or outside courts; supports exclusion from § 552(a)(1) |
| Available remedy for veterans affected by M21-1 provisions | DAV: seeks direct review under § 502 | Gov: individual veterans can challenge application of manual provisions in their cases (e.g., under 38 U.S.C. § 7292) | Court: DAV cannot obtain § 502 review here; affected veterans may litigate provisions as applied in individual cases |
Key Cases Cited
- Rocovich v. United States, 933 F.2d 991 (Fed. Cir.) (party asserting jurisdiction bears burden)
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (U.S.) (party must show jurisdiction exists)
- Splane v. West, 216 F.3d 1058 (Fed. Cir.) (precedential General Counsel opinions are subject to § 552(a)(1))
- LeFevre v. Secretary of Veterans Affairs, 66 F.3d 1191 (Fed. Cir.) (Federal Register publication made Secretary’s determination reviewable under § 552(a)(1))
- Paralyzed Veterans of Am. v. West, 138 F.3d 1434 (Fed. Cir.) (definition of substantive rules under APA)
- Military Order of the Purple Heart v. Secretary of Veterans Affairs, 580 F.3d 1293 (Fed. Cir.) (certain VA letters announced new procedures subject to review)
- Coalition for Common Sense in Gov’t Procurement v. Secretary of Veterans Affairs, 464 F.3d 1306 (Fed. Cir.) (Dear Manufacturer Letter constituted an action of the Secretary)
- Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir.) (manual provisions may be substantive in some contexts)
- McKinney v. McDonald, 796 F.3d 1377 (Fed. Cir.) (review of VA final regulations published in Federal Register)
- Nat’l Org. of Veterans’ Advocates, Inc. v. Secretary of Veterans Affairs, 669 F.3d 1340 (Fed. Cir.) (review of VA regulations)
- Molycorp, Inc. v. EPA, 197 F.3d 543 (D.C. Cir.) (factors to distinguish substantive rules from policy statements)
- Cathedral Candle Co. v. ITC, 400 F.3d 1352 (Fed. Cir.) (distinguishing publication requirements for policy and interpretative statements)