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Winthrop J. Block, Patrick M. Burns, Brenda Iwasyk v. Secretary of Veterans Affairs

April 14, 2011

WINTHROP J. BLOCK, PATRICK M. BURNS, BRENDA IWASYK, DAVID M. JACOBS AND VERBORIE W. SHAW, PETITIONERS,
v.
SECRETARY OF VETERANS AFFAIRS, RESPONDENT.



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

The opinion of the court was delivered by: Bryson, Circuit Judge.

Before LOURIE, BRYSON, and PROST, Circuit Judges.

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 contaminant. The dioxin in Agent Orange, which was the byproduct of the manufacture of an herbicide in Agent Orange commonly known as 2, 4, 5-T, could not be completely removed during the manufacturing process. In 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 problems, 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' Administration issued a "Ratings Practices and Procedures" document entitled "Disability -- Vietnam Defoliant Exposure." 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' Administration denied many claims alleging service connection between defoliant exposure and disabilities other than chloracne. Some of those denials cited language 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 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.

In the meantime, Congress enacted the Veterans' Dioxin 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 ...


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