THIS EPTOMIZES THE EXPERIENCE OF VIETNAM VETERANS EFFORTS TO GAIN SERVICE CONNECTION FOR ILLNESSES CAUSED BY AGENT ORANGE

BLOCK v. SECRETARY OF VETERANS AFFAIRS

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.

Petitioner Patrick M. Burns filed a claim in the fall of 1978 seeking service connection between defoliant exposure and folliculitis. In early 1979, the Veterans' Administration 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 judgment and a motion for class certification. The defendants 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 consideration of the pending motions. Nonetheless, the district court took no action on the motions.

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.

When the initial complaint was filed in 1979, no court had statutory authority to review Veterans' Administration regulations for compliance with APA procedural requirements, unless those regulations involved insurance, 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 jurisdiction to review any such decision by an action in the nature of mandamus or otherwise.

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 procedural challenges to DVA regulations under the APA. 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 challenges 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 petitioners 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 creating 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.

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