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Case number 15-5109, Blue Water Navy Vietnam Veterans Association, Inc.

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at L Appellant versus Robert A. McDonald and his official capacity as Secretary of Veteran Affairs.

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Mr. Wells for the appellant, Mr. Hathman for the appellant.

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Good morning, Your Honor.

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This is John Wells on behalf of the Blue Water Navy Vietnam Veterans Association.

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may please the court.

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This issue is fairly narrow.

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It deals with jurisdiction.

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And in this particular case, the Veterans Judicial Reform Act, contrary to what the court below found, does not provide an avenue or pathway for a veterans organization to seek review of

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and intolerable VA policy.

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This particular case, the court below held that we could get into the Veterans Judicial Reform Act.

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The problem is that only applies to individual claims.

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So for example, if you look at statutory definitions that we have provided in the briefs,

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You have to go as an individual veteran to the Board of Veterans' Appeals.

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They can only review an individual veteran's decision from the regional office.

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And the Court of Appeals for Veterans Claims only has jurisdiction under 38 USC 7252 of a review of the Board of Veterans' Appeals.

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So there is no way to get there.

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Browning, which I know has been attacked by the government, it's still good law in this circuit.

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You look at the Vietnam Veterans of America case where there was questioning of a browdy, that was still number one, it was dicta.

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Number two, that case dealt with individual claims and it dealt with the actual

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timing of the individual claims, which was a predicate to an individual claims.

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Here, if the plaintiff's certs prevail in the court below, the secretary would still have to make individual claims and make individual determinations.

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This case, this jurisdiction, does not come under the Veterans Judicial Reform Act.

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The question then comes, should we have gone to the federal circuit under 38 USC 502?

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In the normal case, yes.

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If there's a substantive regulation, yes.

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But this is not a substantive regulation.

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In the Haas case, Haas v. Peek cited in the briefs, the Federal Circuit specifically held that these type of interpretive regulations were interpretive, were non-substantive, and therefore do not come under the 38 U.S.C.

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502, as the wording of the statute is plain.

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It deals with the 553 adjudication issues.

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It deals with issues dealing with the Freedom of Information Act and the provision of that Freedom of Information Act.

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Why doesn't this clearly fall within the bar of 511A as a law that affects the provision of benefits?

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Because it will not affect an actual provision of benefits, Judge Griffith.

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What it does do is set the threshold for it.

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If I'm a blue water veteran, it most certainly would.

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It means that I'm not going to be able to get this benefit, to which I think I'm entitled.

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It affects the eligibility for benefits.

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Okay, not the actual benefit decision itself.

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And what Browdy held was that this supply and all the other cases.

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So you're saying if there's a statute that says I'm not eligible.

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for a benefit.

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That is not a statute that affects the provision of benefits?

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That's correct.

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That's our point.

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Why we say that, Your Honor, is, and let's take for example the Gray case which was cited in the brief.

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And since the briefing, by the way, the VA has come out and issued a regulation in response to Gray, which

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effectively doubles down.

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Now, Mr. Gray came up from the Board of Veterans Appeals to the Court of Appeals for Veterans Claims as an individual.

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The court found that the VA policy in question, or at least most of it that's in question in this court, was irrational, arbitrary, and capricious.

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They referred that back to the Board of Veterans Appeals, and also the VA told them to rewrite the regulation.

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VA rewrote the regulation, doubled down on their previous position.

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Now, Mr. Gray is in the situation of having to fight his way back up

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through the Board of Veterans' Appeals, back up to the Court of Veterans' Claims to get his case adjudicated.

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What we're asking here is basically a policy change.

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And Your Honor, I think everybody agrees that if it had been a substantive regulation, if this had been something that had been published in the Federal Register under the adjudication provisions, it wouldn't come into the Veterans' Judicial Reform Act, Section 511.

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It's more than a policy.

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It's the interpretation of

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serving in the Republic of Vietnam.

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So why is that not, as Judge Griffith, leaving Browdy aside for a second, why is that not a question of law that affects the provision of benefits?

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Because, Your Honor, the statute is clear, the Code of Federal Regulations requirement is clear, that service in the Republic of Vietnam would include the entire sovereign territorial limits of the Republic of Vietnam, which would include the territorial seas, it would include the bays and harbors.

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This is a VA interpretation.

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And just to remind, Your Honor, just one of the background on this is up until 2002, the folks that served within the territorial seas were granted a presumption.

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This was a unilateral decision by the VA in interpreting their Code of Federal Regulations provision.

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So we had statute passed, Code of Federal Regulations sent out through adjudication process, and now we have an interpretive regulation.

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Under Haas, the Federal Circuit will not take a look at it.

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They said there's no requirement to do adjudication, no requirement to do rulemaking.

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It's basically just the VA's call on how they interpret their regulations.

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Does that make sense to you, Your Honor?

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You were making, you were getting ready to make a point that if this had been a notice and comment rule change, where would it go then?

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No sir, no question.

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But it wasn't a notice and comment rule change.

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Right, I understand that.

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But I'm getting at the point of the individual determination versus policy.

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I mean, Congress said

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That type of policy change can be challenged in the Federal Circuit.

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Yes.

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Noticing comment?

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No question.

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But this was not a noticing comment.

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In fact, actually, under the original Haas case, that's how it was phrased in the Court of Appeals' claims, is they did not follow the noticing comment provision.

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And the Federal Circuit came back and said, no, they did not follow it, but they don't have to.

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So you're not making the argument that individual determinations are barred, but policy changes are not.

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That's not a distinction you're making.

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Because policy determinations, if they don't want to comment.

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It was a policy determination.

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So what would be the possible reason for Congress to say a policy change that comes about through notice and comment can only be challenged from the Federal Circuit,

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other policy changes can be challenged in district court.

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Of course, Congress spoke before the Federal Circuit.

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It was the Federal Circuit that came up with that interpretation to say interpretive regulations could not be challenged.

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Your Honor, it was clear we were just filing in the Federal Circuit, and we may very well do that on the new rule that's coming out.

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I'm sorry, I'm getting into my rebuttal time.

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Yeah, it's really a quandary as we sat looking at this.

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We felt, based on the Federal Circuit precedent and everything that's listed in the brief, have we come up into the Federal Circuit, the government would come up to motion dismiss saying, you know, now you can't look at an interpretive rule.

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So it's a, it's almost a kind of a roll in the dice.

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And I'm sorry, I'm into my rebuttal time.

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If you have no further questions.

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Judge Piller, did you have your question?

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I will give you some time to reply.

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Thank you, Your Honor.

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All right, Mr. Hathman.

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Good morning.

[00:08:05] Speaker 01:
May it please the court, Will Hathman, on behalf of the Secretary of Veterans Affairs.

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In the Veterans Judicial Review Act, Congress broadly stated that the decisions of the Secretary under a law affecting the provision of benefits shall be final and conclusive and may not be reviewed by any other official or by any court.

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And that broad jurisdictional bar is dispositive to this appeal.

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There's no way to understand this appeal.

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as anything other than a challenge to a decision of the Secretary under a law affecting the provision of benefits.

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Except how do you deal with the language in our decision in Browdy, in which we were quite clear in saying that the district courts, quote, have jurisdiction to consider questions arising under laws that affect the provision of benefits,

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so long as the secretary has not actually decided them in the course of a benefits proceeding," close quote.

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And it seems like under that standard, this issue, whether or not it affects the provision of benefits in a general sense, has not been actually decided by the secretary in the course of the benefits proceeding.

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Well, I guess I have two responses to that question.

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The first is that if you look at the context in which Browdy was decided, I think that the court statements in Browdy then is clarified.

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Browdy was a case, a bivin suit brought by, I think, five plaintiffs who sought class action relief.

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And those five plaintiffs had, in fact, previously brought individual claims for benefits through the claims processing system.

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And so it made sense that in Browdy, the court, in considering whether the secretary had actually made a decision with respect to the provision of benefits, looked to see whether that decision was made in the context of those individual proceedings.

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But Browdy did not report to require

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that the decision of the secretary actually have been made in a particular context.

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And I think that what Browning requires is that... All right, so we're not trenching on the area of concern to Congress in 511 because the secretary hasn't made this decision and that it's not going to affect any particular... I mean, one way to understand that is that Congress knew that we shouldn't be the court of last resort for every individual benefits.

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I mean, that would be, you know, it would replace the whole system that they've set up for individual benefits claims.

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On the other hand, it's a pretty typical role for district courts in situations where fact finding is needed and for federal courts of appeals to look at these bigger, more cross-cutting issues like the issue in this case about whether or not this interpretation is valid.

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Well, again, I think that the focus of Browdy was on whether or not the Secretary actually made a decision as to the question at issue.

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And here, I don't think that there's any dispute that the Secretary has actually made a decision with respect to blue water veterans and the presumption at issue here.

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So you would say this falls outside of – I'm sorry.

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Oh, no, go ahead.

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You would say this falls outside of Browdy because here the Secretary has clearly made the relevant decision.

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That's correct.

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And that ends the Browdy inquiry.

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And I also think that just taking a step back and even I think as my colleague acknowledged, the

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The VJRA contemplates the challenges, certainly challenges, to notice and comment rule makings have to go to the Federal Circuit.

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And that's pursuant to one of the exceptions that's carved out to 511A.

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The first exception is 511B1, which says that challenges to rules and regulations have to go through the Federal Circuit.

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So it cannot be that 511A applies only to decisions that are made in the context of individual benefits.

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What can we hear?

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What can be heard in the district court?

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The district court, I think that the decision in Browdy clarifies that the district court can rule on questions that relate to benefits as long as the secretary hasn't actually made a decision that would require the district court's review.

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That seems, in a way, kind of perverse, because we do want to know the secretary's view when the federal courts are engaged in an issue like this one.

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And so when you read all the cases together, it seems a little odd that in situations where it's sort of a

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an end run around something because the secretary hasn't actually considered it.

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Well, that can go to the federal district court, but not when the secretary has.

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Let me actually, that's maybe more of an observation than a question.

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My real question for you is about the comment that you make on your brief on page 23 that there are alternative avenues for review and in response to some of the colloquy that we had with Mr. Wells about, well, is there an alternative

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Avenue for a review here and what is it?

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Well, I think that there is and I think that Congress contemplated two avenues for review generally of the secretary's policy decisions and the first and the most common is the way in which the Haas case came to the Federal Circuit and it's the way that the Gray case that my colleague also pointed to came to the Federal Circuit and that's just through the process of adjudicating an individual claim for benefits and the Haas case decided this very policy question

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in the context of an individual claim for benefits.

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And I think that that's how Congress contemplated that this sort of question would be decided.

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But Congress also provided a second avenue for relief, and that is through 511B1, which is that challenges to agency rules and regulations can also be decided directly in the Federal Circuit.

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But both of those challenges lead through the Federal Circuit.

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And the real question here, or the real problem here, is that the Federal Circuit has already decided this issue.

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So what about this case as it is postured?

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Could these plaintiffs turn around tomorrow, and of course, they have hasis and obstacle, but go to the Federal Circuit and say, you know, we think that needs to go en banc in the Federal Circuit.

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So we're going to go to the Federal Circuit with this, and then when they rule,

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that were foreclosed by Haas, we're going to see gumbank review and take our chances.

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Is that open to them in this case?

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And if so, how do you respond to your opponent's concern that, well, this is not a notice of comment rulemaking, therefore it isn't under 511B1?

[00:14:06] Speaker 01:
Sure, so I think that the answer is yes, although I note that... Yes, they can go.

[00:14:12] Speaker 01:
I believe that the answer is yes, they can go, although I note that the question whether or not there's an exception to the VJRA available to them does not resolve the question of whether the plain terms of the VJRA apply here, but just

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Stepping back, I think that they can go through the Federal Circuit.

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They can go through 511B1 to the Federal Circuit.

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And that's because the Federal Circuit has exercised jurisdictions over questions very much like the question at issue here.

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And I point the court to the Lefebvre decision that we cite in our brief, which was a decision under the Agent Orange Act declining to grant presumption of eligibility with respect to certain kinds of cancer.

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And that was a decision of the Secretary.

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It was not published through notice of comment.

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It was a notice by the Secretary.

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And the Federal Circuit decided that it had jurisdiction over that.

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And that's because it was, quote, an interpretation of general applicability.

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And that is contemplated through the mechanism of 511B1, which Croft references, of 502.

[00:15:12] Speaker 02:
What about the kind of, I'm just trying to understand how the whole statutory scheme fits together, what about the kind of issue that, I think it was the issue that was involved in the Ninth Circuit Shinseki case where you have allegations that there's delay in the agency, so it's a cross-cutting, I think there it was a due process claim.

[00:15:30] Speaker 02:
And you really need factual development to understand the claim.

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The only route is to go directly to a federal court of appeals, or is there any avenue there?

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I guess I'm, in a way, repeating Judge Griffith's question.

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When might a general claim go to the district court?

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And I'm thinking just the logic of administrative law.

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When, for example, there's a need for factual development?

[00:15:55] Speaker 01:
I guess I have a hard time answering that specific hypothetical, but I do think that what Browdy leaves open is that where the secretary has not actually decided the question that would require this court's review, then that is open to district court jurisdiction.

[00:16:08] Speaker 01:
But I note that the Ninth Circuit in the Shinseki case that you pointed to

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the Eighth Circuit or the Sixth Circuit in the Beeman case, and this circuit, albeit it wasn't the holding of the Vietnam Veterans of America case, this court faced a challenge that was very much alike, very similar to the challenge that was brought in the Shinseki case.

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And what this court said in addressing the VJRA was that the procedures that underlie the

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determination with respect to individual benefits were themselves a decision of the secretary affecting the provision of benefits, which would appear to be something that is barred by the VJRA.

[00:16:45] Speaker 01:
And the court did say that that would appear to be true regardless of whether or not it was a challenge brought in the context of a single case or a mass of cases.

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And I recognize that was not the holding of the VVA case, but I do think that it is correct.

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I think that it was persuasive and it is irreconcilable with the argument that my colleague is making.

[00:17:05] Speaker 02:
I appreciate your pointing us to, I guess it's Lefebvre.

[00:17:10] Speaker 02:
There is also a precedent, though, that general counsel opinion is not reviewable under that route, I guess it's the 511B1 route.

[00:17:20] Speaker 02:
Where's your...

[00:17:23] Speaker 01:
So that's why when I initially answered your question, I think that the appellants here have chosen the sort of embodiments of the secretary's policy that they think they have the best argument would not be subject to judicial review in the federal circuit, and that is the general counsel's opinion.

[00:17:41] Speaker 01:
And that is the change to the adjudication manuals.

[00:17:45] Speaker 01:
But that policy is also embodied over and over again.

[00:17:48] Speaker 01:
We think it's embodied in the regulation itself.

[00:17:50] Speaker 01:
We think it's embodied over and over again in the Federal Register.

[00:17:53] Speaker 01:
So regardless of whether or not they can challenge the specific general counsel's opinion.

[00:17:57] Speaker 01:
They can certainly get review of the notices in the Federal Register pursuant to 532.

[00:18:04] Speaker 01:
And so regardless of sort of the exact procedural posture of this case, which I think that they have made this challenge in order to preserve the argument that you're suggesting here, I do think that there's no question that they can get review of the actual policy in the Federal Circuit.

[00:18:20] Speaker 01:
I see that my time is up.

[00:18:21] Speaker 01:
I'm happy to answer any further questions.

[00:18:23] Speaker 01:
Thank you.

[00:18:24] Speaker 05:
Does Mr. Wells have any time?

[00:18:27] Speaker 05:
Okay.

[00:18:31] Speaker 03:
Your Honor, if I may please, the Court, as an initial thing, we actually don't consider Haas an obstacle.

[00:18:37] Speaker 03:
We've been wanting to try to get back into the Federal Circuit on different issues to overrule Haas.

[00:18:43] Speaker 03:
A lot has happened since Haas, and we think that we would be asking for an en banc

[00:18:48] Speaker 03:
review to actually overrule it.

[00:18:50] Speaker 03:
The last case I had in the Federal Circuit, the VA settled on other grounds.

[00:18:54] Speaker 03:
So we haven't had a chance to challenge it yet.

[00:18:56] Speaker 03:
But we would look forward to doing that and have other cases coming up.

[00:18:59] Speaker 03:
The urgency on this case is that we have 174,000 Navy vets that lost their benefits in a situation the Court of Appeals of Veterans Claims has already called irrational and arbitrary and capricious, but that we can't enforce because it was remanded back since it was an individual benefits case.

[00:19:17] Speaker 03:
We mandated back to the Board of Veterans' Appeals, and now Mr. Gray has to go back through the process, through the 511 process.

[00:19:24] Speaker 03:
That's why we looked at bringing this on behalf of an organization that represents 174,000 veterans.

[00:19:30] Speaker 03:
And again, we feel that we fall through the cracks of the Veterans Judicial Reform Act.

[00:19:35] Speaker 03:
and right into the Administrative Procedures Act, which, as this Court has often found, review is favorable.

[00:19:42] Speaker 03:
You have to look at it favorable, and the government would have to show by clear convincing evidence that it's not reviewable under the Administrative Procedures Act.

[00:19:49] Speaker 03:
We believe that, and... Right, and that's 511.

[00:19:53] Speaker 04:
That's the whole question of this case, is whether Congress has clearly said,

[00:19:58] Speaker 04:
This has got to be done in the federal circuit, right?

[00:20:00] Speaker 03:
That's correct.

[00:20:00] Speaker 03:
And of course, Browdy said it didn't.

[00:20:03] Speaker 04:
But if you look at the... And what solution also is to go to Congress, right, if you fall in between the cracks?

[00:20:07] Speaker 03:
We have 305 co-sponsors now in the House, and 38 percent are working that issue also.

[00:20:12] Speaker 03:
The problem we've run into, Your Honor, is...

[00:20:15] Speaker 03:
Under the Pay As You Go Act, we have to find a pay force.

[00:20:18] Speaker 03:
CBO has costed this $930 million, and we have trouble finding it.

[00:20:22] Speaker 03:
Well, we are working that issue, too.

[00:20:24] Speaker 03:
We're working the court appeals of veterans' claims as well.

[00:20:26] Speaker 03:
You know, he mentioned substantive underlying regulation.

[00:20:30] Speaker 03:
You know, what he had said, service in the Republic of Vietnam includes service in the water, offshore, and service in other locations if the conditions of service involve.

[00:20:37] Speaker 03:
Due to your visitation to the Republic of Vietnam, one of the major questions is, under international and national law, are the territorial seas and the basin harbors part of the sovereign territory of Vietnam, which in the 1954 Geneva Accords and the 73 Paris Peace Treaties we said we are?

[00:20:53] Speaker 03:
And I'm sorry, I'm out of time.

[00:20:55] Speaker 02:
Let me just ask you, this is just, again, a question of information.

[00:21:01] Speaker 02:
Do you have any sense of how many of the foot on ground veterans qualify?

[00:21:07] Speaker 02:
You mentioned your figure of 174,000.

[00:21:11] Speaker 02:
How many veterans qualify under the secretary's interpretation?

[00:21:15] Speaker 03:
Is that something you would... Under the secretary's interpretation, Judge Philips, of that 174,000, possibly around 80,000.

[00:21:25] Speaker 03:
have either gone into a river or touch base and would be covered.

[00:21:29] Speaker 02:
Oh, this 174,000.

[00:21:30] Speaker 02:
How about the ones who are sort of not even Navy, but on the ground?

[00:21:34] Speaker 03:
Oh, I'm sorry.

[00:21:34] Speaker 03:
We're talking about hundreds of thousands.

[00:21:37] Speaker 03:
That's the number of everybody that went into Vietnam.

[00:21:40] Speaker 03:
And that was, I think, way into the millions, actually.

[00:21:43] Speaker 02:
And do you know how many actually have received benefits?

[00:21:45] Speaker 03:
No, ma'am.

[00:21:47] Speaker 03:
Unfortunately, getting information out of the VA is almost as hard as getting a hospital appointment.

[00:21:55] Speaker 02:
I should have asked them the question.

[00:21:56] Speaker 02:
All right.

[00:21:58] Speaker 03:
Your Honor, again, I'm sorry I'm out of time.

[00:22:00] Speaker 03:
All right.

[00:22:00] Speaker 03:
Nobody has any questions.

[00:22:02] Speaker 03:
Thank you so much.

[00:22:03] Speaker 03:
And on behalf of these veterans, we appreciate you doing the case today.

[00:22:06] Speaker 05:
Thank you.