Winthrop J. Block, Patrick M. Burns, Brenda Iwasyk, David M. Jacobs and Verborie W. Shaw v. Secretary of Veterans Affairs

United States Court of Appeals
for the Federal Circuit
__________________________
WINTHROP J. BLOCK, PATRICK M. BURNS,
BRENDA IWASYK,
DAVID M. JACOBS AND VERBORIE W. SHAW,
Petitioners,
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent.
__________________________
2010-7045
__________________________
On petition for review pursuant to 38 U.S.C. Section
502.
___________________________
Decided: April 14, 2011
___________________________
STANLEY J. PANIKOWSKI, III, DLA Piper, LLP, of San
Diego, California, argued for petitioners Of counsel on
the brief were RICHARD V. SPATARO , JR. and. BARTON F.
STICHMAN , National Veterans Legal Services Program, of
Washington, DC.
TODD M. H UGHES , Deputy Director, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondent.

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BLOCK v. VA 2
With him on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. D AVIDSON , Director. Of counsel
on the brief were DAVID J. BARRANS , Deputy Assistant
General Counsel, and RACHAEL T. SHENKMAN , Attorney, of
United States Department of Veterans Affairs, of Wash-
ington, DC.
__________________________
Before LOURIE, BRYSON , and PROST, Circuit Judges.
BRYSON , Circuit Judge.
This is an unusual case involving an effort to obtain
judicial review of a Veterans’ Administration publication
that was issued in 1978, before this court was created,
and has not been in effect since 1985. The publication
concerned the processing of claims filed by veterans who
were seeking to establish service connection for certain
diseases that they claimed to have developed as a result
of exposure to defoliants during their service in Vietnam.
We hold that the petitioners’ request for review of the
publication is not within the jurisdiction of this court, and
we therefore dismiss the petition.
I
During the Vietnam War, the U.S. government
sprayed herbicides over portions of Vietnam to defoliate
dense jungle areas. The most widely sprayed herbicide
was known as Agent Orange, a name that referred to the
orange stripes identifying the drums in which it was
stored. Agent Orange contained dioxin, a toxic contami-
nant. The dioxin in Agent Orange, which was the by-
product of the manufacture of an herbicide in Agent
Orange commonly known as 2, 4, 5-T, could not be com-
pletely removed during the manufacturing process. In

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BLOCK v. VA 3
1970, the Department of Defense announced that it would
discontinue the military use of 2, 4, 5-T.
In 1978, Vietnam veterans began to file claims for
disability benefits based on their exposure to Agent
Orange. Veterans claimed that Agent Orange exposure
resulted in a variety of disabilities, including cancer, liver
dysfunction, neurological dysfunction, psychiatric prob-
lems, persistent joint pain, severe muscle spasms, chronic
fatigue, and genetic damage manifested in birth defects to
the veterans’ children.
In response to those claims, the Veterans’ Admini-
stration issued a “Ratings Practices and Procedures”
document entitled “Disability – Vietnam Defoliant Expo-
sure.” The document, which is dated April 17, 1978,
became known as the Agent Orange Program Guide. The
Program Guide stated the following with respect to the
connection between defoliant exposure and disabilities:
Except for a skin condition known as chloracne,
there are presently no firm data to incriminate
the herbicides as causative agents of any other
known category of disease or chronic symptom.
However, a contaminant Dioxin, found in small
quantities in defoliants is toxic.
The Program Guide also stated that no special procedures
should be applied to such claims and that each claim
should “receive a thorough development of all available
evidence.”
After issuing the Program Guide, the Veterans’ Ad-
ministration denied many claims alleging service connec-
tion between defoliant exposure and disabilities other
than chloracne. Some of those denials cited language

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BLOCK v. VA 4
from the Program Guide, including the “[e]xcept for . . .
chloracne” language. Based on a review of Veterans’
Administration records, the petitioners contend that only
one percent of claims seeking service connection between
defoliant exposure and a non-chloracne disability were
allowed during the period following the publication of the
Program Guide.
Petitioner Patrick M. Burns filed a claim in the fall of
1978 seeking service connection between defoliant expo-
sure and folliculitis. In early 1979, the Veterans’ Admini-
stration denied service connection to Mr. Burns based on
the statement of a Veterans’ Administration physician
that “Agent Orange exposure is not considered as cause
for recurrent folliculitis.”
On May 31, 1979, Mr. Burns, along with several other
veterans whose claims had been denied and several
veterans’ organizations, filed a complaint in the United
States District Court for the District of Columbia. In that
complaint, the plaintiffs contended that the Agent Orange
Program Guide was a substantive rule that was issued in
violation of the Administrative Procedure Act (“APA”)
because the Veterans’ Administration did not publish it in
the Federal Register and did not comply with the agency’s
notice-and-comment rulemaking provisions found in 38
C.F.R. § 1.12 (1979). The plaintiffs also alleged that the
agency’s reliance on the Program Guide without their
knowledge violated their right to due process. They
framed the case as a class action brought on behalf of a
class consisting of more than 100,000 veterans whose
claims had been or would be denied based on the Agent
Orange Program Guide.
By the end of 1979, both sides had filed dispositive
motions. The plaintiffs had filed a motion for summary

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BLOCK v. VA 5
judgment and a motion for class certification. The defen-
dants had filed a motion for judgment on the pleadings.
The district court, however, did not rule on those motions.
In 1990, the plaintiffs filed a motion for expedited consid-
eration of the pending motions. Nonetheless, the district
court took no action on the motions.
In the meantime, Congress enacted the Veterans’ Di-
oxin and Radiation Exposure Compensation Standards
Act (“the 1984 Act”), Pub. L. No. 98-542, 98 Stat. 2725
(1984), which resulted in a wholesale revision of the
approach used by the Veterans’ Administration to address
claims based on exposure to Agent Orange. See Haas v.
Peake, 525 F.3d 1168, 1175-77 (Fed. Cir. 2008). Following
the promulgation of regulations required by the 1984 Act,
the Agent Orange Program Guide ceased to be relevant to
claims based on Agent Orange exposure. The petitioners
continued to press their judicial review claim, however,
out of concern that denials of claims during the period
before the 1984 Act regulations were issued would be
deemed final and would prejudice the claimants’ ability to
establish service connection for their conditions.
In 2005, a new attorney appeared for the plaintiffs.
The remaining plaintiffs then filed a motion to substitute
putative class representatives. The district court granted
that motion, and petitioners Winthrop J. Block, Brenda
Iwasyk, David M. Jacobs, and Verborie W. Shaw were
added to the case in place of several veterans and veter-
ans’ organizations. The new named plaintiffs were
veterans or survivors of veterans who had service connec-
tion claims for a non-chloracne disability based on expo-
sure to defoliants denied between 1978 and 1985.
The case was reassigned to a new district judge in
2007. In 2008, the new judge ruled on the dispositive

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BLOCK v. VA 6
motions that had been filed in 1979. The court held that
the Agent Orange Program Guide was a general state-
ment of policy and not a substantive rule. It therefore
granted the government’s motion for judgment on the
pleadings and denied the plaintiffs’ motions for summary
judgment and class certification.
The plaintiffs appealed, but on appeal the D.C. Circuit
held that the district court lacked jurisdiction based on
section 102 of the Veterans’ Judicial Review Act (“VJRA”),
Pub. L. No. 100-687, § 102, 102 Stat. 4105, 4106 (1988),
codified as amended at 38 U.S.C. § 502. That statute,
which had been enacted 20 years earlier in 1988, vested
this court with exclusive jurisdiction for APA procedural
challenges to Veterans’ Administration regulations. The
D.C. Circuit concluded that section 502 would be applied
to pre-existing claims because “[u]nder normal circum-
stances, application of a new jurisdictional statute ‘takes
away no substantive right, but simply changes the tribu-
nal that is to hear the case.’” White v. Shinseki, No. 08-
5161 (D.C. Cir. Apr. 7, 2009) (citation omitted). The court
then vacated the district court’s judgment and remanded
the case to the district court with instructions to transfer
it to this court pursuant to 28 U.S.C. § 1631. The court
noted that the plaintiffs were “likely to have a strong
argument for equitable tolling of the statute, particularly
in light of the decade-long delay between the filing of
their petition with the district court in 1979 and the
[effective date of the Veterans’ Judicial Review Act] in
1989” because the delay appeared not to be the fault of
the plaintiffs. The D.C. Circuit recognized that this court
might determine that it lacked jurisdiction but concluded
that this court “is the only place where jurisdiction is
conceivable.”

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BLOCK v. VA 7
The government filed a petition for rehearing. It ar-
gued that the case could not be transferred to this court
under section 1631 because this court did not exist in
1979 and therefore was not a court “in which the action or
appeal could have been brought at the time it was filed,”
as required by section 1631. The D.C. Circuit granted the
petition for rehearing and entered an amended judgment
vacating the district court’s decision and ordering the
district court to dismiss the case. White v. Shinseki, 329
F. App’x 285 (D.C. Cir. 2009). The plaintiffs filed a peti-
tion for certiorari with the Supreme Court, which was
denied on November 30, 2009.
The petitioners filed this petition on January 29,
2010, more than 30 years after the initial complaint was
filed in the district court. They contend that the Agent
Orange Program Guide is a substantive rule created
without notice and comment rulemaking and promulgated
without publication in the Federal Register. They have
not pressed the due process claim that was alleged in the
original district court complaint.
II
Challenges to regulations of the Department of Veter-
ans Affairs (“DVA”) that are brought in this court under
38 U.S.C. § 502 must be filed “within six years after the
right of action first accrues.” Preminger v. Sec’y of Veter-
ans Affairs, 517 F.3d 1299, 1306-07 (Fed. Cir. 2008),
quoting 28 U.S.C. § 2401(a). The petition in this case was
filed in 2010, but any right of action accrued before the
complaint was filed in 1979 when the Agent Orange
Program Guide became final and was used in claim
adjudication. See id. at 1307. Petitioners contend they
are entitled to equitable tolling because their complaint in
the district court was pending from the day it was filed in

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BLOCK v. VA 8
1979 until 2009 when the Supreme Court denied their
petition for certiorari in that case.
When the initial complaint was filed in 1979, no court
had statutory authority to review Veterans’ Administra-
tion regulations for compliance with APA procedural
requirements, unless those regulations involved insur-
ance, housing loans, or small business loans. That is
because, at that time, 38 U.S.C. § 211(a) provided as
follows:
[With the aforementioned limited exceptions,] the
decisions of the Administrator on any question of
law or fact under any law administered by the
Veterans’ Administration providing benefits for
veterans and their dependents or survivors shall
be final and conclusive and no other official or any
court of the United States shall have power or ju-
risdiction to review any such decision by an action
in the nature of mandamus or otherwise.
In 1986, this court held that section 211(a) precluded
judicial review of veterans’ benefits regulations except in
cases involving constitutional challenges. Roberts v.
Walters, 792 F.2d 1109, 1111 (Fed. Cir. 1986).
At the time of our decision in Roberts, the D.C. Circuit
had also held that section 211(a) precluded judicial review
of Veterans’ Administration regulations for compliance
with APA procedural requirements. Gott v. Walters, 756
F.2d 902, 912 (D.C. Cir. 1985). Although the D.C. Circuit
vacated that panel decision and granted rehearing en
banc, the parties in the Gott case settled and the action
was dismissed with no en banc resolution of the issue.

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BLOCK v. VA 9
Other courts construed section 211(a) narrowly, but
we have found no case before the enactment of the VJRA
in 1988 construing section 211(a) to permit judicial review
of Veterans’ Administration regulations for compliance
with the procedural requirements of the APA. The Su-
preme Court held that section 211(a) did not preclude
judicial review of the constitutionality of a statute that
provided education benefits to veterans but not to consci-
entious objectors, because the statute was an act of Con-
gress rather than a decision of the Administrator.
Johnson v. Robison, 415 U.S. 361, 367 (1974). Moreover,
several circuits held that section 211(a) did not preclude
judicial review of challenges to Veterans’ Administration
regulations based on claims that the regulations were
unauthorized or substantively unlawful. See, e.g., Ever-
green State Coll. v. Cleland, 621 F.2d 1002 (9th Cir. 1980);
Univ. of Md. v. Cleland, 621 F.2d 98 (4th Cir. 1980);
Merged Area X (Educ.) v. Cleland, 604 F.2d 1075 (8th Cir.
1979); Wayne State Univ. v. Cleland, 590 F.2d 627 (6th
Cir. 1978). Several circuits also held that federal courts
had jurisdiction to hear due process challenges to the
Veterans’ Administration system for determining bene-
fits. See, e.g., Marozsan v. United States, 852 F.2d 1469
(7th Cir. 1988) (en banc); Devine v. Cleland, 616 F.2d
1080 (9th Cir. 1980). And the Supreme Court held that
section 211(a) did not preclude a statutory challenge as
long as the challenge arose from a statute enacted after
section 211(a). Traynor v. Turnage, 485 U.S. 535, 541-45
(1988).
The fact that there was no case holding that federal
courts could review Veterans’ Administration regulations
for compliance with APA procedural requirements is not
surprising, as it was not until the enactment of the VJRA
in 1988 that Congress authorized judicial review of proce-
dural challenges to DVA regulations under the APA.

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BLOCK v. VA 10
Before that time, including when the initial complaint in
this case was filed in 1979, there was no statutory basis
for any court to hear the petitioners’ procedural chal-
lenges to the Agent Orange Program Guide. For that
reason, the district court in which petitioners filed their
challenge to the Agent Orange Program Guide did not
have jurisdiction to address the procedural objections that
they have now raised in this court. The filing of their
district court action therefore cannot serve to toll the
running of the statute of limitations. While the petition-
ers contend that the long delay in the resolution of their
original lawsuit should not, in itself, create a time bar to
relief, the long delay also cannot have the effect of creat-
ing a cause of action that did not exist either at the time
the claim was originally filed or at any point during the
ensuing six-year limitations period for civil actions
brought against the United States in district courts, 28
U.S.C. § 2401.
We also conclude that the VJRA did not retroactively
create a cause of action for a procedural challenge to
Veterans’ Administration regulations prior to 1988.
When Congress gave this court exclusive jurisdiction to
review DVA regulations, it provided no indication that the
statute granting this court that reviewing authority
should be extended retroactively. It is therefore unlikely
that Congress intended to make this court’s reviewing
power applicable to regulations promulgated before the
enactment of the VJRA.1 See Landgraf v. USI Film
1 It is particularly unlikely that Congress intended
our jurisdiction to extend retroactively inasmuch as the
VJRA not only provided for judicial review of procedural
challenges to DVA regulations for the first time, but also
altered the substantive requirements of the APA as
applied to the DVA regulations governing benefits. In
section 102(a)(1) of the VJRA, codified as amended at 38

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BLOCK v. VA 11
Prods., 511 U.S. 244, 264 (1994) (“congressional enact-
ments and administrative rules will not be construed to
have retroactive effect unless their language requires this
result”), quoting Bowen v. Georgetown Univ. Hosp., 488
U.S. 204, 208 (1988).
In any event, even if Congress intended our reviewing
authority under section 502 to be retroactive in some
instances, it is quite clear that Congress did not intend to
exempt actions under section 502 from the general six-
year statute of limitations in 28 U.S.C. § 2401 for actions
against the United States, and we have so held. See
Preminger, 517 F.3d at 1307. Thus, this court lacks
jurisdiction over the petition in this case unless the
limitations period was tolled, either equitably or legally,
by the earlier filing in the district court. And because no
court had jurisdiction over the petitioners’ procedural
challenge to the Agent Orange Program Guide, the dis-
trict court filing could not toll the running of the limita-
tions period under any theory of legal or equitable tolling
to which the petitioners have directed us.
U.S.C. § 501(d), Congress provided that the exception to
the APA’s procedural requirements for rulemaking relat-
ing to loans, grants, or benefits, see 5 U.S.C. § 553(a)(2),
would no longer apply to DVA regulations.
To be sure, before the enactment of the VJRA the Vet-
erans’ Administration adopted a regulation that made the
notice-and-comment requirements of the APA applicable
to the agency’s issuance of rules and regulations relating
to benefits, with certain exceptions. Public Participation
in Regulatory Development, 37 Fed. Reg. 7157 (Apr. 11,
1972). As the panel opinion of the D.C. Circuit in the Gott
case explained, however, the agency’s decision to make
APA procedures generally applicable to its rulemaking
proceedings did not affect the preclusion of judicial review
by section 211(a). See Gott, 756 F.2d at 904 n.2, 916.

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BLOCK v. VA 12
We emphasize the narrow scope of our holding. We do
not address the question whether 28 U.S.C. § 2401 is
subject to equitable tolling. Nor do we address whether
the limitations period would be subject to tolling if the
procedural challenge to the Agent Orange Program Guide
had been within the district court’s jurisdiction when the
complaint was filed or at any time thereafter. We hold
only that if a claim is filed outside the statute of limita-
tions, the claim does not become timely simply because it
was previously filed in a different court, at a time when
no court had jurisdiction over the subject matter of the
claim.
No costs.
DISMISSED

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