Gray v. Wilkie, Sec. of VA

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

Petitioner filed a benefits claim with the Department of Veterans Affairs (VA) and filed a petition for review by the Federal Circuit of the revision made to the VA’s Adjudication Procedures Manual, M21-1 (M21-1 Manual), which contains a narrowed interpretation of the Agent Orange Act of 1991. The Veterans’ Judicial Review Act grants jurisdiction to the Federal Circuit over any VA rules or policies referred to by 5 U.S.C. §§ 552(a)(1) or 553. 38 U.S.C. § 502. Petitioner argues that § 552(a)(1) directly refers to “statements of general policy or interpretations of general applicability formulated and adopted by the agency.” Respondent asserted that the petition should be dismissed for lack of jurisdiction because “agency manuals are more clearly referenced in 5 U.S.C. § 552(a)(2)(C).” A Federal Circuit panel decided Disabled American Veterans v. Secretary of Veterans Affairs, 859 F.3d 1072 (Fed. Cir. 2017) (DAV), finding sections 552(a)(1) and 552(a)(2) to be mutually exclusive and held that M21-1 Manual provisions are exempt from judicial review. In the instant case, the panel found that manual provisions fall under §552(a)(2)(C) and held that it lacked jurisdiction under the precedent set by DAV. Petitioner was denied a rehearing en banc. The Supreme 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.