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Judicial review of the actions of the Secretary of Veterans Affairs shall be conducted in accordance with chapter 7 of title 5 (the Administrative Procedure Act), which states that if such review is sought in connection with an appeal brought under the provisions of chapter 72 of title 38, the provisions of that chapter shall apply rather than the provisions of chapter 7 of title 5. Chapter 72 deals with the United States Court of Appeals for Veterans Claims and gives that court exclusive jurisdiction to review decisions of the Board of Veterans' Appeals. 38 U.S.C.S. § 7252(a).
The Chairman of the Department's Board of Veterans’ Appeals (“Board”) made a written request, in the form of a memorandum, to the Department's General Counsel. The Chairman described the facts in "this case," which involved a claim to compensation under 38 U.S.C. § 1151. The claim was that the Department's failure to diagnose a veteran's cardiac illness in examining him at an outpatient clinic resulted in the veteran's subsequent death of a heart attack. The Chairman requested the General Counsel's "opinion" on two questions. The Chairman acted pursuant to a department regulation that authorized specified officials to request formal legal advice from the General Counsel, including the interpretation of statutes or regulations. Almost two years later, the General Counsel responded in an 11-page single-spaced memorandum to the Chairman, which, after the extensive legal analysis, answered the two questions the Chairman had posed. The Paralyzed Veterans of America then filed the present petition to review "the validity of" the General Counsel's opinion. It described that opinion "as a final rule." It stated that it had standing to file the petition since it was a national not-for-profit membership organization whose members include veterans who have filed claims with VA, under 38 U.S.C.A. § 1151 (West 1991), because of additional disability sustained while receiving medical treatment from the VA.
Did the Court of Appeals for the Federal Circuit have jurisdiction to review the opinion of the General Counsel of the Department of Veterans Affairs?
The Court of Appeals for the Federal Circuit (Federal Circuit) held that it was not authorized to review directly the opinion of the Department's General Counsel, and thus lacked jurisdiction in the matter. The court noted that the opinion of the Department's General Counsel did not fall within the definition of "rule" in 5 U.S.C.S. §§ 551(4) and 552(a)(1)(D). That opinion, rather, was a part of the Department's administrative quasi-judicial procedure for adjudicating veterans' claims. The General Counsel rendered his opinion in response to a written request from the Board Chairman. The Chairman requested the opinion to aid him in deciding a case before the Board, and the opinion, which was addressed to him, was to be used for that purpose. The rendering of the opinion was an integral part of the Board's adjudicatory process. The opinion itself had no immediate or direct impact upon any veteran. Whatever impact it had resulted from the Board's application of it in the particular case. The fact that the General Counsel's opinion was a precedent that bound the Department's officials and employees did not change its inherent nature or make it a rule.