Military Order of the Purple Heart, National Veterans Legal Services Program,… v. Secretary of Veterans Affairs

# NOTE: This order is nonprecedential.

## United States Court of Appeals for the Federal Circuit

2010-7062

MILITARY ORDER OF THE PURPLE HEART, NATIONAL VETERANS LEGAL
SERVICES PROGRAM, NON-COMMISSIONED OFFICERS ASSOCIATION,
PARALYZED VETERANS OF AMERICA, and UNITED SPINAL
ASSOCIATION/VETSFIRST,
Petitioners,

V.
SECRETARY OF VETERANS AFFAIRS,
Respondent.

On petition for review pursuant to 38 U.S.C. Section 502.
ON MOTION

Before MAYER, LOURIE, and BRYSON, Circuit Judges.
BRYSON, Circuit Judge.

### ORDER

The Military Order of the Purple Heart et al. (petitioners) move for a preliminary
injunction to direct the Secretary of Veterans Affairs to issue an interim rule establishing
presumptions of service connection for three diseases that the Secretary has
determined to be associated with exposure to herbicides in the Vietnam War and to
issue a proposed rule.' In the alternative, the petitioners move to expedite the briefing
schedule in the petition for review. The Secretary opposes and moves for leave to file
his opposition one day out of time. The petitioners reply.

\*
Because the Secretary issued a proposed rule on March 25, 2010, that
portion of the motion is moot.

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The petitioners filed their petition for review and motion for a preliminary
injunction on March 16, 2010. Because they are petitioning for review of a regulation
that has not yet issued, this court does not have jurisdiction under 38 U.S.C. § 502,
which authorizes this court to review regulations issued by the Secretary of Veterans
Affairs. Instead, we treat the petition and request for injunctive relief as a petition for a
writ of mandamus. Because the Secretary's alleged failure to issue a rule on a timely
basis interferes with our appellate jurisdiction to review the rule pursuant to section 502,
we have jurisdiction under the All Writs Act, 28 U.S.C. § 1651, to address the
Secretary's action in failing to issue the regulation. See Margolis v. Banner, 599 F.2d
435, 440-41 (CCPA 1979); In re Howard, 570 F.3d 752, 756-57 (6th Cir. 2009); In re
Core Commen's, Inc., 531 F.3d 849, 855, 861-62 (D.C. Cir. 2008).

Although the petitioners ask this court to order the Secretary to issue an interim
regulation because the Secretary has failed to comply with two statutory deadlines set
forth in 38 U.S.C. § 1116, we decline to order that relief. Section 1116(c)(1)(A) requires
the Secretary, within 60 days of receiving a report from the National Academy of
Sciences regarding the relationship between exposure to herbicides used in Vietnam
during the War in Vietnam and certain diseases, to consider whether a presumption of
service connection is warranted for any of the diseases discussed in the report. Within
60 days of making such a determination, the Secretary is required to issue proposed
regulations setting forth that determination. Id. Within 90 days of issuing the proposed
regulations, the Secretary must issue final regulations. Id. § 1116(c)(2). The statute
thus creates three separate obligations, each with its own deadline for action.

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The government concedes that the Secretary did not meet the first two
deadlines, which the government attributes to mandatory review by the Office of
Management and Budget, the required completion of a Regulatory Impact Analysis, and
the complexity of the scientific determinations at issue. The Secretary made his
determination of a positive association between exposure to herbicides and three
identified diseases on October 13, 2009, which was 81 days after the release of the
National Academy of Sciences report. The Secretary then issued a proposed rule
setting forth that determination on March 25, 2010, which was 163 days after the
Secretary announced his determination. The proposed rule provides for a shortened
comment time of 30 days. The preamble to the proposed rule provides that claimants
will receive readjudication and retroactive payment of benefits in connection with claims
under the new regulation.

Because the Secretary has already made the statutory determination and issued
the proposed regulation, and because issuance of the final rule is not yet due, we
cannot issue the requested relief. Congress provided no consequences for non-
compliance with the statutory deadlines, so there is no remedy we can order for the
Secretary's failure to meet the first two deadlines set forth in section 1116. See
Liesegang v. Sec'y of Veterans Affairs, 312 F.3d 1368, 1377 (Fed. Cir. 2002). Because
the Secretary's action on the third statutory requirement is not yet due, we cannot order
relief-such as the issuance of interim regulations requested by the petitioners-
because the final regulations are not required to be issued until 90 days after the
issuance of the proposed regulations, or by June 23, 2010. With respect to the third
statutory requirement, the request for relief is thus premature. We therefore decline to

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issue a writ of mandamus, without prejudice to the petitioners' right to seek relief in the
nature of mandamus if the Secretary should fail to meet the 90-day deadline for issuing
the final rule.

Accordingly,

IT IS ORDERED THAT:

(1)
Treating the petition for review and the motion for a preliminary injunction
as a mandamus petition, we deny the petition for a writ of mandamus.

(2)
The Secretary's motion for leave to file its opposition one day out of time is
granted.

(3)
All other pending motions are denied as moot.

FOR THE COURT

APR 1 6 2010

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

cc:
Thomas E. Riley, Esq.
Meredyth Cohen Havasy, Esq.

s8

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT

APR 1 6 2010

JAN HORBALY
CLERK

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