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.
Decided July 29, 2016
830 F.3d 570
Argued March 10, 2016
We are similarly unpersuaded that the Secretary had an obligation under NEPA regulation
* * *
For all of the foregoing reasons, we affirm the judgment of the District Court in its entirety.
So ordered.
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
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 diffi-
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
This appeal followed. We have jurisdiction under
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 or by any court, whether by an action in the nature of mandamus or otherwise.
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.
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
Appellants point to different statutory provisions to support their argument. In
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 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 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.
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 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,
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, 2 L.Ed. 60 (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 other generally applicable actions pursuant to
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
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 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
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.”
Finally, Appellants assert that if we affirm the district court‘s reading of section 511(a), we will produce “an absurd 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
IV
We affirm the district court‘s dismissal of Appellants’ complaint.
GRIFFITH
CIRCUIT JUDGE