Blue Water Navy Vietnam Veterans v. Wilkie, Sec. of VA

Whether this Court Should Grant Certiorari to Resolve an Important Point of Law and a Conflict Between Circuits Concerning Judicial Review of an Interpretive VA Regulation Under the Administrative Procedures Act and Whether It Should Be Foreclosed Under 38 U.S.C. § 502 When the Veterans Judicial Reform Act Provides the Sole Avenue for Review of the Secretary’s Decisions

For over fifteen years, the Department of Veterans Affairs (VA) refused to grant presumed Agent Orange exposure to “Blue Water Navy” Vietnam veterans.In Gray v. McDonald, Vet. App. 313 (2015), the Court of Appeals for Veterans Claims found some circumstances were outside that scope of Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) and urged the VA to reevaluate its policy. Respondent issued changes to the M21-1 Manual to circumvent that ruling. The Federal Circuit dismissed Petitioner’s petition for judicial review, holding the Manual as interpretive rather than substantive regulation and therefore it had no jurisdiction. Petitioner argues this holding is erroneous, establishing a substantial and unnecessary burden on veterans. Petitioner argues the decision effectively denies judicial review, allowing Respondent to bypass review by issuing regulatory changes through the Manual. The Supreme Court held previously the Administrative Procedures Act has a “well-settled presumption that agency actions are reviewable,” unless Congress clearly precludes such review shown by clear and convincing evidence, which Petitioner argues is not present. The Manual binds Veterans Benefits Authority personnel and is strong persuasive authority for the Board of Veterans Appeals and thus is more than a mere procedural handbook, leaving veterans without real remedy. The Court granted certiorari and issued a summary order stating that the case is moot under United States v. Munsingwear, Inc., 340 U.S. 36 (1950). VACATED and REMANDED.