16-1782 | Omnilex

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United States Court of Appeals
for the Federal Circuit
______________________
ROBERT H. GRAY,
Petitioner
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent
______________________
2016-1782
______________________
Petition for review pursuant to 38 U.S.C. Section 502.
---------------------------------------------------------------------------
BLUE WATER NAVY VIETNAM VETERANS
ASSOCIATION,
Petitioner
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent
______________________
2016-1793
______________________
Petition for review pursuant to 38 U.S.C. Section 502.

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GRAY v. SECRETARY OF VETERANS AFFAIRS 2
______________________
ON PETITIONS FOR PANEL REHEARING AND
REHEARING EN BANC
______________________
ROMAN MARTINEZ, Latham & Watkins LLP, Washing-
ton, DC, filed a combined petition for panel rehearing and
rehearing en banc for petitioner Robert H. Gray in 2016-
1782. Also represented by G RAHAM P HILLIPS , BENJAMIN
SNYDER, BLAKE STAFFORD; SHANNON L YNNE BREWER , Hill
& Ponton, P.A., Deland, FL; MICHAEL E. WILDHABER ,
Veterans Law Office of Michael E. Wildhaber, Washing-
ton, DC.
J OHN B. WELLS , Law Office of John B. Wells, Slidell,
LA, filed a combined petition for panel rehearing and
rehearing en banc for petitioner Blue Water Navy Vi-
etnam Veterans Association in 2016-1793.
ERIC P ETER BRUSKIN, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, filed a response to the petition for
respondent Secretary of Veterans Affairs in 2016-1782
and 2016-1793. Also represented by CHAD A. READLER ,
ROBERT E. K IRSCHMAN, J R., MARTIN F. H OCKEY , J R.; BRIAN
D. G RIFFIN, BRANDON A. J ONAS , Office of General Counsel,
United States Department of Veterans Affairs, Washing-
ton, DC.
ZACHARY STOLZ, Chisholm Chisholm & Kilpatrick,
Providence, RI, for amicus curiae Disabled American
Veterans in 2016-1782. Also represented by MEGAN
MARIE ELLIS ; CHRISTOPHER J. CLAY , Disabled American
Veterans, Cold Spring, KY.
CHRISTINE K HALILI-B ORNA CLEMENS , Finkelstein &
Partners, LLP, Newburgh, NY, for amici curiae National

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GRAY v. SECRETARY OF VETERANS AFFAIRS 3
Organization of Veterans Advocates, Inc., National Veter-
ans Legal Services Program, Military Officers Association
of America, National Law School Veterans Clinic Consor-
tium, Veterans of Foreign Wars of the United States,
Vietnam Veterans of America in 2016-1782. Also repre-
sented by K ENNETH M. CARPENTER, Law Offices of Car-
penter Chartered, Topeka, KS.
______________________
Before P ROST , Chief Judge, N EWMAN, L OURIE, D YK,
O’MALLEY , REYNA, WALLACH , T ARANTO, CHEN, and STOLL ,
Circuit Judges.∗
T ARANTO, Circuit Judge, concurs in the denial of the
petitions for rehearing en banc.
D YK, Circuit Judge, with whom N EWMAN and WALLACH ,
Circuit Judges, join, dissent from the denial of the peti-
tions for rehearing en banc.
P ER CURIAM .
O R D E R
Petitioners Robert H. Gray and Blue Water Navy Vi-
etnam Veterans Association each filed separate petitions
for panel rehearing and rehearing en banc. Responses to
the petitions were invited by the court and filed by the
Secretary of Veterans Affairs. The petitions were first
referred to the panel that heard the appeals, and thereaf-
ter the petitions and responses were referred to the circuit
judges who are in regular active service. Polls were
requested, taken, and failed.
Upon consideration thereof,
∗ Circuit Judge Moore and Circuit Judge Hughes
did not participate.

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GRAY v. SECRETARY OF VETERANS AFFAIRS 4
I T I S O RDERED T HAT :
The petitions for panel rehearing are denied.
The petitions for rehearing en banc are denied.
The mandate of the court will issue on March 28,
2018 in both cases.
F OR THE COURT
March 21, 2018 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court

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GRAY v. SECRETARY OF VETERANS AFFAIRS 2
T ARANTO, Circuit Judge, concurs in the denial of the
petitions for rehearing en banc.
I believe that petitioners have read too much into the
panel decisions in the present cases and in Disabled
American Veterans v. Secretary of Veterans Affairs, 859
F.3d 1072 (Fed. Cir. 2017). Unlike petitioners, I do not
read those decisions, in their rulings about the scope of 38
U.S.C. § 502, as treating the key Administrative Proce-
dure Act provisions at issue—5 U.S.C. § 552(a)(1) and
§ 552(a)(2)—as mutually exclusive in what they cover.
Specifically, I do not read those decisions as standing for
the proposition that, if an agency pronouncement is
within § 552(a)(2)(C) (“administrative staff manuals and
instructions to staff that affect a member of the public”),
and so must be made available to the public in an elec-
tronic format, the pronouncement cannot also be within
§ 552(a)(1)(D) (“substantive rules of general applicability
adopted as authorized by law, and statements of general
policy or interpretations of general applicability formulat-
ed and adopted by the agency”), and so must be published
in the Federal Register.
The differences in language between § 552(a)(1) and
§ 552(a)(2) may well inform how to read each provision.
But neither the language of the provisions nor the § 552
structure defining a hierarchy of publication methods that
are not inconsistent with each other (the same pro-
nouncement can be published electronically and in the
Federal Register) facially precludes some subset of what
falls under § 552(a)(2) from also falling under § 552(a)(1).
The decisions that petitioners challenge do not declare
otherwise. Instead, in holding § 552(a)(1) inapplicable,
the decisions rely on particular features of the Depart-
ment of Veterans Affairs pronouncement at issue, not
merely the conclusion that it is an “administrative staff
manual” under § 552(a)(2)(C).

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GRAY v. SECRETARY OF VETERANS AFFAIRS 3
The petitions for rehearing en banc rest almost entire-
ly on the asserted need for this court to repudiate the
premise of mutual exclusivity. I see no present need for
en banc review to do so, because I do not think that our
decisions stand for that premise. Nor, at least now, does
the Government so read our decisions. If future panels
adopt the premise that petitioners challenge, whether
based on our precedents or based on additional statutory
analyses, en banc review can be considered at that time.
For those reasons, I do not think that the question of
mutual exclusivity warrants en banc review. And I see no
other justification for en banc review in these cases.
The particular Department pronouncement at issue
here, stated in the Department’s Adjudication Procedures
Manual M21-1, is currently under consideration in cases
involving individual benefits claims in the Court of Ap-
peals for Veterans Claims. See Combined Pet. for Panel
Rehr’g and Rehr’g En Banc at 18 n.3, Gray v. Sec’y of
Veterans Affairs, No. 16-1782 (Fed. Cir. Dec. 13, 2017),
Dkt. No. 66. That court may adopt petitioners’ view of the
matter or, in any event, issue a decision that, in the
ordinary course, will bring the matter to this court rela-
tively soon through an appeal under 38 U.S.C. § 7292.
Accordingly, this court may consider the particular Man-
ual pronouncement through an individual benefits case at
roughly the same time as it would consider the pro-
nouncement through the present cases if the court heard
the § 502 jurisdictional question en banc, found jurisdic-
tion, and then, as is common for an issue not yet ad-
dressed by a panel, returned the case to the panel to
address the merits. Thus, the importance of the particu-
lar Department pronouncement at issue here does not
justify en banc review.
Nor is en banc review warranted to answer the more
general question of § 502’s application to pronouncements
of the sort at issue. No urgency in that regard has been

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GRAY v. SECRETARY OF VETERANS AFFAIRS 4
shown. Few challenges to Manual pronouncements have
been brought through § 502.
Denying en banc review in the present cases may
have benefits. As already noted, petitioners and amici
have focused almost entirely on the question of mutual
exclusivity. They have not gone much past that question
to present detailed analyses of why § 552(a)(1), properly
interpreted, does or does not apply to the particular kind
of agency pronouncement at issue here. Such analyses,
covering at least text and history and case law, appear
necessary to a sound interpretation of § 552(a)(1) and,
therefore, of 38 U.S.C. § 502.
As presented by the parties, this case, like Disabled
American Veterans, involves an agency pronouncement
with at the following characteristics: (1) It is not a sub-
stantive rule and does not purport to have the force of
law. (2) It is directed only to first-level agency deci-
sionmakers, i.e., the regional offices of the Department of
Veterans Affairs. (3) It does not purport to state how the
issue should or will be decided by the final agency deci-
sionmaker on an individual claim, i.e., the Board of Vet-
erans Appeals, see 38 U.S.C. §§ 7104, 7252, which we
have recognized “conducts de novo review of regional
office proceedings based on the record.” Disabled Ameri-
can Veterans, 419 F.3d at 1319.
We have little meaningful analysis of the full range of
judicial decisions that are potentially relevant to deter-
mining § 552(a)(1)’s application to the type of agency
pronouncement at issue here. Most relevant would be
decisions, if any exist, that involved or addressed an
agency pronouncement having the three characteristics
just identified. Also relevant would be judicial opinions
that bear indirectly on deciding whether such a pro-
nouncement falls within § 552(a)(1)—specifically, within
§ 552(a)(1)(D)’s coverage of “statements of general policy
or interpretations of general applicability formulated and

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GRAY v. SECRETARY OF VETERANS AFFAIRS 5
adopted by the agency.” Focusing almost entirely on the
issue of mutual exclusivity of various portions of § 552,
the parties and amici have not furnished much analysis of
case law bearing on whether pronouncements of the sort
at issue here come within § 552(a)(1).
Nor have the parties and amici provided much mean-
ingful analysis of the relevant statutory texts, contexts,
and backgrounds. The statutes at issue are 38 U.S.C.
§ 502 and the referenced APA provisions, 5 U.S.C.
§§ 552(a)(1) and 553. As to the latter, full understanding
would require analysis of text and context and might be
aided by scrutiny of the original 1946 APA § 3 and its
later amendments (notably in 1966), as well as relevant
legislative history and important commentary. See, e.g.,
Pub. L. No. 89-487, 80 Stat. 250, 250–51 (1966) (amending
APA § 3); APA § 3, Pub. L. No. 79-404, 60 Stat. 237, 238
(1946); H.R. Rep. 89-1497 at 28–30 (1966); S. Rep. 89-813
at 41–43 (1965); Attorney General’s Manual on the Ad-
ministrative Procedure Act 19–25 (1947). At present, we
lack thorough analysis of whether and why the three
characteristics of the pronouncement at issue identified
just above, or other characteristics, should or should not
matter under a proper legal interpretation.
In future cases, parties and amici will have the oppor-
tunity to develop and present such analyses. Panels will
have the opportunity to examine them. The results would
provide the court a fuller basis for assessing a petition for
en banc review than we now have. I therefore concur in
the denial of the present en banc petitions.

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GRAY v. SECRETARY OF VETERANS AFFAIRS 2
D YK, Circuit Judge, with whom N EWMAN and WALLACH ,
Circuit Judges, join, dissenting from the denial of the
petitions for rehearing en banc.
These cases present a question of exceptional im-
portance concerning this court’s jurisdiction in veterans’
cases. As the government concedes, the M21-1 Adjudica-
tion Procedures Manual “consolidated all of the [Depart-
ment of Veterans Affairs] policies and procedures for
adjudicating claims for VA benefits into one resource.”
Resp’t Resp. Opp’n Reh’g 2.
For the reasons set forth in the panel dissent, I think
that Congress has made these Manual provisions review-
able. We should consider this issue of reviewability en
banc because of the widespread impact on the efficient
adjudication of veterans’ claims.

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Robert H. Gray v. Secretary of Veterans Affairs

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