NOTE: This order is nonprecedential
United States Court of AppeaIs
for the FederaI Circuit
\
IN RE PARALYZED VETERANS OF AMERICA,
NATIONAL VETERANS LEGAL SERVICES
PROGRAM, NON-COMMISSIONED OFFICERS
ASSOCIATION, and UNITED SPINAL
ASSOCIATION/VETSFIRST,
Petiti0ners.
Misce11aneous Docket No. 949
On Petition for Writ of Mandamus directed to
the Secretary of Veterans Affairs.
ON PETITION FOR WRIT OF MANDAMUS
Before RADER, Chief Ju,dge, BRYsoN and M0oRE, Circm1t
Judges.
RADER, Chief Ju,dge.
0 R D E R
The Para1yzed Veterans of America et a1. (petitioners)
seek a writ of mandamus to direct the Secretary of Veter-
ans Affairs to issue a final rule establishing presumptions
of service connection for three diseases that the Secretary

lN RE PA.R.ALYZED VETERANS OF AlVfEJRICA 2
has determined to be associated with exposure to herbi-
cides in the Vietnam War, or in the alternative to direct
the Secretary to issue an interim final rule establishing
the same presumptions of service connection. The Secre-
tary opposes.
I.
Section 1116(c)(1)(A) requires the Secretary, within
60 days of receiving a report from the National Academy
of Sciences (NAS) regarding the relationship between
exposure to herbicides used in Vietnam during the War in
Vietnam and certain diseases, to consider whether a
presumption of service connection is warranted for any of
the diseases in the report. Within 60 days of making such
a determination, the Secretary is required to issue pro-
posed regulations setting forth that determination Id.
Within 90 days of issuing the proposed regu1ations, the
Secretary must issue final regulations Id. at § 1116(c)(2).
On July 24, 2()U9, the NAS issued its report finding
sufficient evidence to suggest a relationship between
herbicide exposures used in Vietnam during the Vietnam
War and B-cell leukemias, Parkinson’s disease, and
ischemic heart disease, Despite the specific 60-day time
limit in the statute, the Secretary failed to issue a pro-
posed regulation regarding the presumption of service
connection until March 25, 2()1U, 244 days after the NAS’S
report.
Although § 1116 provides that on June 23, 2010 the
Secretary should have issued his final rule, he has not
done so. According to the Secretary, he has drafted the
final rule but pursuant to Executive Order 12,866 he
cannot issue the rule until it is reviewed and cleared by
the Off`ice of Managernent and Budget (OMB). The Secre-

3 lN RE PARALYZED VETERANS OF AMERICA
tary states that once OMB has cleared the proposed final
rule, it will be issued.
Il.
BecauSe the Secretary’s alleged unlawful withholding
of the final rule interferes with our jurisdiction pursuant
to 38_U.S.C. § 502, we have authority under the All Writs
Act, 28 U.S.C. § 1651, to address the Secretary’s action in
failing to issue the final rule, See 5 U.S.C. § '706(1) ("A
reviewing court shall . . . compel agency action unlawfully
withheld or unreasonably delayed"); Telecom. Res. &
fiction C'enter u. F.C'.C'., 750 F.2d 70, 75-78 (D.C. Cir.
1984) (Section 706(1) claims may be reviewed on manda-
mus to protect prospective jurisdiction); see also Margolis
v. Banner, 599 F.2d 435, 440-41'(C.C.P.A. 1979).
l\/Iandamus requires a petitioner to establish that: (1)
there are no alternative means of obtaining the relief
desired, Mallard u. U.S. Dist. Court for S. Dist. of Iowa,
490 U.S. 296, 309 (1989), and (2) the right to the relief
sought is “clear and undisputable." Allied Chem. Corp. v.
Dcrif£on,, Inc., 449 U.S. 33, 35 (1980). The first require-
ment is clearly satisfied here. While the Secretary may
be correct that the ultimate goal of this petition is for
veterans to seek earlier effective dates, he ignores that
the petitioners also seek to compel the Secretary to cease
what they allege is an unlawful agency action. Manda-
mus is clearly the only avenue for the petitioners to
obtain such relief.
With regard to the merits, the Secretary contends
that the petition must be denied because Section 1116’s
deadlines are mere guidance. See Liesegcmg v. Secfy of
Veteran,s Affairs, 312 F.3d 1368, 1377 (Fed. Cir. 2002) (“In
the absence of any consequences for noncompliance, those
timing provisions are at best precatory rather than man-

lN RE PARALYZED VETERANS OF AMERlCA 4
datory."). We disagree fn Liesegom,g, this court held that
because Section 1116 does not provide any specific conse-
quences for failing to comply with the timing require-
ments, the court could not sanction the Secretary by
imposing payment of benefits from the date that the final
regulation should have issued rather than the date of
actual issuance. But Liesegcmg did not consider the
separate problem at issue here, i.e., whether we should
exercise our equitable powers to enforce the deadline to
issue the regulation itself.*
We also disagree with the Secretary’s contention that
his delay in issuing a final rule is reasonable. Congress
clearly imposed on the Secretary a date-certain deadline
to issue a final regulation Under such circumstances, the
agency has no discretion in deciding to withhold or delay
the regulation, and failure to comply is unlawful. Forest
Gu,ardians v. Babbitt, 174 F.3d 1178, 1190 (10th Cir.
1999) (“To hold otherwise would be an affront to our
tradition of legislative supremacy and constitutional
separated powers.").
The Secretary’s argument that delay is required un-
der Executive Order 12,866, until OMB reviews and
clears the regulation is also unpersuasive The Executive
Order makes clear that OMB review cannot interfere with
a clear directive of Congress regarding the timing of
issuance. First, Section 6(a)(3)(D) of the Executive Order
provides that when, as here, regulatory action is governed
by a statutory-imposed deadline, the agency should
attempt to permit sufficient time for OMB review, but
only "t0 the extent practicable.” Section 9 further pro-
vides that "[n]othing in this order shall be construed as
displacing the agencies’ . . . responsibilities, as authorized
* In Liesegcmg, the regulation had been issued by
the Secretary. See Liesegan.g, 312 F.3d at 1377 .

5 lN RE PARALYZED VETERANS OF AMERICA
by law.” ln addition, the Executive Order states in Sec-
tion 8 that while publication of a rule is not ordinarily
allowed until after OMB review, it is allowed when "re-
quired by law." By creating a deadline such as this,
Congress has effectively altered the agency’s discretion
and "required by law” that the final rule be published
notwithstanding the deadlines that appear in the Execu-
tive Order for action by OMB.
Finally, to the extent we may have discretion to de-
cline ordering compliance with § 706, see Forest Guardi-
cms, 174 F.3d at 1191 (holding that § 1116 leaves no
discretion once a determination that the delay was unrea-
sonable), but see In re Barr Labs., Ir,c., 930 F.2d 72 (D.C.
Cir. 1991) (declining to grant mandamus despite agency’s
failure to comply with a specific statutory deadline),
declining to direct compliance here might additionally
delay receipt of benefits to those veterans otherwise
entitled
Although mindful of the Secretary’s autonomy and his
unique ability to handle the rulemaking process, Congress
left him no discretion in issuing the final rule in question
by a specific deadline. We grant the petition and direct
the Secretary to issue the final regulation within 30 days
of the date of filing of this order.
Accordingly,
IT IS 0RDERED THAT:
The petition for a writ of mandamus is granted. The
Secretary is directed to issue a final rule under Section
1116 within 30 days of the date of filing of this order.

fy
IN an PAaALYzED VE'rERANs or AMER1cA
FoR THE CoURT
 2  lsi Jan Horbaly
Date J an Horbaly
cc: Thomas E. Riley, Esq.
Meredyth Cohen Havasy, Esq.
s19
Clerk
. FOR
AUG 02 2010
.IAN HORBAL¥
GLERK

