DISABLED AMERICAN VETERANS, Petitioner v. SECRETARY OF VETERANS AFFAIRS, Respondent
2016-1493
United States Court of Appeals, Federal Circuit.
Decided: June 14, 2017
859 F.3d 1072
MOORE, Circuit Judge.
Therefore, nothing in the intrinsic evidence clarifies the degree of broadening attached to the word “virtually” or provides a skilled artisan with reasonable certainty about the objective boundaries of the disputed limitation.
III
I recognize that modifiers like “virtually” are sometimes used in claim limitations to provide some leeway in scope. But a skilled artisan reviewing the patents-at-issue must still be able to determine the objective boundaries of the limitation with reasonable certainty. Nautilus, 134 S.Ct. at 2124. Here, the intrinsic evidence, at best, mentions one example for determining when audio is “virtually free from interference,” and that example only appears in a single “e.g.” remark from the prosecution history of a related patent. Viewed alongside the remainder of the intrinsic evidence, which either remains silent or injects ambiguity, there is simply not enough for a person of ordinary skill to determine the boundaries of the limitation, much less the import of the word “virtually.” The majority‘s effort to attribute some meaning to the disputed limitation falls far short of the level of clarity required by the Supreme Court under Nautilus and skirts the public-notice function of the definiteness requirement.
I would thus affirm the Commission‘s determination that the claim limitation “virtually free from interference” is indefinite. For the foregoing reasons, I respectfully dissent.
ZACHARY STOLZ, Chisholm Chisholm & Kilpatrick, Providence, RI, argued for petitioner. Also represented by ROBERT VINCENT CHISHOLM, JENNA ZELLMER; CHRISTOPHER J. CLAY, Disabled American Veterans, Cold Spring, KY; BARBARA J. COOK, Cincinnati, OH.
EMMA BOND, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by BENJAMIN C. MIZER, Robert E. Kirschman, JR., MARTIN F. HOCKEY, JR.; BRIAN D. GRIFFIN, BRANDON A. JONAS, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.
Before MOORE, O‘MALLEY, and REYNA, Circuit Judges.
MOORE, Circuit Judge.
Disabled American Veterans (“DAV“) petitions for review of provisions of the Department of Veterans Affairs’ (“VA“) Adjudication Procedures Manual M21-1 (“M21-1 Manual“). We dismiss for lack of jurisdiction.
BACKGROUND
a diagnosed illness without conclusive pathophysiology or etiology, that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities. Chronic multisymptom illnesses of partially understood etiology and pathophysiology, such as diabetes and multiple sclerosis, will not be considered medically unexplained.
The VA consolidates its policy and procedures into one resource known as the M21-1 Manual. The M21-1 Manual provides guidance to Veterans Benefits Administration (“VBA“) employees and stakeholders “to allow [the] VBA to process claims benefits quicker and with higher accuracy.” J.A. 81. Any VBA employee can request changes to the M21-1 Manual through submission of an online form.
The M21-1 Manual discusses service connection for qualifying disabilities under
DISCUSSION
Our jurisdiction to review VA actions pursuant to
Section
DAV cites precedent in which we found agency actions subject to
DAV also fails to draw similarities between the VA‘s M21-1 Manual revisions and certain VA letters that we held constituted actions of the Secretary reviewable pursuant to
DAV argues we nonetheless have jurisdiction to review the VA‘s revisions to the M21-1 Manual because the revisions announce substantive rules subject to
“[T]he question whether a particular provision is substantive or interpretative for purposes of the APA is not resolved simply by the title of the document in which the provision is found.” Guerra, 642 F.3d at 1051 n.2. There are three relevant factors to whether an agency action constitutes substantive rulemaking under the APA:
(1) the [a]gency‘s own characterization of the action; (2) whether the action was published in the Federal Register or the Code of Federal Regulations; and (3) whether the action has binding effects on private parties or on the agency. The first two criteria serve to illuminate the third, for the ultimate focus of the inquiry is whether the agency action partakes of the fundamental characteristic of a regulation, i.e., that it has the force of law.
Molycorp, Inc. v. EPA, 197 F.3d 543, 545 (D.C. Cir. 1999); see also Nat‘l Min. Ass‘n v. McCarthy, 758 F.3d 243, 252 (D.C. Cir. 2014) (“The most important factor [in distinguishing substantive rules from general statements of policy] concerns the actual legal effect (or lack thereof) of the agency action in question on regulated entities.“); Guerra, 642 F.3d at 1051 n.2 (“If an agency announces new substantive rules, those rules are subject to the procedural requirements of
The M21-1 Manual revisions do not amount to a
DAV has the burden of establishing this court‘s jurisdiction over its petition. Congress chose to limit this court‘s jurisdiction in
This is not to say that a veteran is without recourse if the VA‘s M21-1 Manual adopts a rule inconsistent with statute or regulation. A veteran adversely affected by a M21-1 Manual provision can contest the validity of that provision as applied to the facts of his case under
CONCLUSION
For the reasons discussed above, we dismiss for lack of jurisdiction.
DISMISSED
Costs
No costs.