Gray v. Wilke

Whether the Federal Circuit has jurisdiction under 38 U.S.C. § 502 to review an interpretive rule reflecting Department of Veterans Affairs definitive interpretation of its own regulation, even if VA chooses to promulgate that rule through its adjudication manual.

Under 38 U.S.C. § 502, the Federal Circuit has jurisdiction to adjudicate preenforcement challenges to Department of Veterans Affairs (VA) rules or policies. Specifically, the statute encompasses both “substantive rule[s], generally-applicable interpretive rule[s], and general statement[s] of policy,” See 5 U.S.C. § 552(a)(1), 553. Petitioner filed a petition in March 2016 in the Federal Circuit seeking review of the VA’s Adjudication Procedures Manual, M21-1, which in part limits the disability benefits available to veterans of the Vietnam War by redefining the term “inland waterways” and removing the presumptive service connection for those who served in the “ports, harbors, and bays” of Vietnam. Petitioner argues that by restricting the definition of “inland waterways” the VA has stripped its benefits adjudicators from ruling in favor of benefits for those who served in any coastal feature outside the definition. Petitioner further argues that review of the Manual is under the jurisdiction of the Federal Circuit, pursuant to 38 U.S.C. § 502. Respondents argued that the Manual is not subject to the jurisdiction of the Federal Circuit because it is an administrative staff manual and is therefore not covered by Section 552(a)(1)(D). The Federal Circuit ruled in favor of the respondents, holding that it did not have jurisdiction over the petition. Petitioner argues that review is need to resolve a circuit split on this issue and to protect veterans from unlawful agency rules.