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Gray v. Sec'y of Veterans Affairs

United States Court of Appeals for the Federal Circuit

March 21, 2018, Decided

2016-1782, 2016-1793

Opinion

 [*1380]  ON PETITIONS FOR PANEL REHEARING AND REHEARING EN BANC

Per Curiam.

ORDER

Petitioners Robert H. Gray and Blue Water Navy Vietnam 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 [**3]  petitions were first referred to the panel that heard the appeals, and thereafter 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,

IT IS ORDERED THAT:

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.

FOR THE COURT

March 21, 2018

Concur by: TARANTO

Concur

Taranto, 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 Procedure 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 electronic format, the pronouncement cannot also be within § 552(a)(1)(D) ("substantive rules [**4]  of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated 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  [*1381]  the language of the provisions nor the § 552 structure defining a hierarchy of publication methods that are not inconsistent with each other (the same pronouncement 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 Department 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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884 F.3d 1379 *; 2018 U.S. App. LEXIS 7116 **; 2018 WL 1403587

ROBERT H. GRAY, Petitioner v. SECRETARY OF VETERANS AFFAIRS, Respondent;BLUE WATER NAVY VIETNAM VETERANS ASSOCIATION, Petitioner v. SECRETARY OF VETERANS AFFAIRS, Respondent

Prior History: Petition for review pursuant to 38 U.S.C. Section 502 [**1] .

Petition for review pursuant to 38 U.S.C. Section 502.

Gray v. Sec'y of Veterans Affairs, 875 F.3d 1102, 2017 U.S. App. LEXIS 23011 (Fed. Cir., Nov. 16, 2017)

CORE TERMS

en banc, pronouncement, Veterans, decisions, cases, Manual, petitions, mutual