Agent Orange, the Blue Water Navy and the pro veteran canon.
UPDATE - January 29, 2019: Procopio Wins! Presumption of Agent Orange Exposure extended to Blue Water Navy Veterans. Click here to read the Federal Circuit's opinion - and stay tuned, as there is a lot to unpack in this decision, and we will pull it apart over the next few days and weeks.
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December 7, 1941: A day that will live in infamy - that day, Pearl Harbor was attacked, and American entry into World War II became a guarantee.
December 7, 2018: Another day that may live in infamy, although many Veterans are completely unaware.
On that day, the U.S. Court of Appeals for the Federal Circuit will hear oral arguments in a case styled "Procopio v. Wilkie."
Until this summer, the Procopio case was a little known appeal - another appeal arguing a somewhat unique take on the theory that the presumption of Agent Orange exposure in 38 U.S.C. §1116 should be extended to all Veterans who served in support of the Vietnam war, but in particular, Blue Water Navy Vets.
Before we get into this appeal, let's get everyone up to speed on a few topics. First, we will talk about the difference between Blue, Inland and Brown Water as it pertains to Agent Orange exposure theories. Second, we'll discuss the Federal Circuit's 2008 decision in Haas v. Peake. Third, we'll discuss the concept of Chevron deference. Fourth, we'll talk about the pro-veteran canon.
With that foundation, we can finally discuss the significance of Procopio v. Wilkie.
However this turns out, it will represent a shift in the balance of power in Veterans Law. In what may or may not be "rhetorical hyperbole," I believe that the Procopio appeal will be the most significant decision the Federal Circuit has yet issued in the body of Veterans Law
The smartest chemical in the world.
So we all know how extensively Agent Orange was used by the US Government throughout the 1960s and 1970s.
We also understand that the U.S. government has consistently lied to us about how widespread was the use of Agent Orange.
They denied it was used in Thailand, then they admitted it. They denied it was used in Korea, until they admitted it. They denied it affected reservists flying the old Ranch-hand C-123s, until they admitted it.
Currently, they are denying using it in and around military bases near Subic Bay, Okinawa, the Johnston Atoll, and more. Until they change their minds and admit it was used in those places.
What nobody really knows about Agent Orange, though, is how smart it is.
When the airborne particles, or the poisonous plume in the ground, reaches the shores of a nation, it stops dead in its tracks.
Other chemicals can settle on the earth, seep into the groundwater, pollute inland rivers and streams and carry their toxic impact into freshwater bays and ultimately the ocean.
But not Agent Orange. It knows its limits.
That is why if you put your pinky toe on the landmass of the Republic of Vietnam for a hair shorter than a nano-second, Agent Orange gets you.
If you took a patrol boat inland on a river in the Republic of Vietnam, Agent Orange can get you.
But if you jumped off a Navy ship in Cam Ranh Bay or DaNang Harbor, swam up to the beaches of the Republic of Vietnam, stopping inches short of the beach, Agent Orange was powerless over you.
I lay the sarcasm on thick for a reason.
We know that dioxin - the chemical compounds that comprise Agent Orange - soaked into the water table in the Republic of Vietnam, seeped into the rivers that led to the bay that led to the ocean. We know that Navy ships took on fresh and sea water that had to have contained dioxin and distilled it for drinking on the ships. And we know that Congress extended a presumption of exposure to Agent Orange to all veterans “who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975." 38 U.S.C. §1116(a)(1)(emphasis added).
Because of that knowledge, if you are a Navy veteran of the Vietnam war era who served on a ship or boat that operated in the inland waterways of the Republic of Vietnam, you are known as a Brown Water navy veteran and you are entitled to take advantage of the presumption of Agent Orange exposure extended you by Congress.
This book is a great historical survey of the story of Agent Orange and Blue Water Navy veterans.
However - despite all of our scientific understanding and knowledge about how chemical compounds interact with the land, sea and air - if you are a Navy veteran of the Vietnam war era who served on a ship or boat that did not proceed into the inland waterways of the Republic of Vietnam, you are known as Blue Water navy veteran and the Courts have denied the presumption of Agent Orange exposure extended you by Congress.
Why the different treatment?
It all comes back to a case called Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008).
A plague on your Haas.
As noted above, it has long been considered settled law that the Congressional presumption of exposure to Agent Orange extends only to Vietnam veterans who put "boots on the ground" in the landmass of Vietnam, served in the Brown Water Navy, or served in other places where the VA decides to concede Agent Orange was used (the Korean DMZ and certain Royal Thai Air Force Bases).
It hasn't always been that way.
(I'm not going to go deep into the history of Haas, or the regulation at the core of the dispute in Haas. Instead, I'll pick up the story in 2002, when the VA Secretary issued an M-21 manual provision that found that the definition of the phrase "service in the Republic of Vietnam" in 38 C.F.R. §3.307(a)(6)(iii), was limited to "service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." (emphasis added).
4 years later, in 2006, Veterans won a decisive victory when the U.S. Court of Appeals for Veterans Claims held, in Haas v. Nicholson, that the presumption of exposure to Agent Orange extended to Blue Water Navy veterans. 20 Vet.App. 257 (2006).
The Court found that even though Congress's phrasing of the scope of the statutory presumption was ambiguous, the M-21 provision limiting the presumption to veterans who put "boots on the ground" in the Republic of Vietnam was too restrictive an interpretation, and afforded it no deference.
That victory was short-lived. In 2008, after the VA appealed the Veterans Court's opinion, the Federal Circuit reversed the Veterans Court in a panel decision in Haas v. Peake.
The Federal Circuit agreed that Congress's choice of words - "in the Republic of Vietnam" - was ambiguous. In other words, Congress did not clearly resolve the question of whether all veterans, including those in the Blue or Brown Water Navy, would benefit from the presumption of exposure to Agent Orange.
Based on that ambiguity, the Federal Circuit then applied a statutory interpretation tool - the dreaded Chevron - to find that, in light of Congressional ambiguity, the VA's reasonable interpretation of the term "in the Republic of Vietnam" was entitled to deference.
Since 2008, then, Haas has been controlling law: Blue Water Navy Veterans are denied the benefit of the presumption of exposure to Agent Orange, and could only use that presumption if they showed that, at a minimum, they at least put the tip of their pinky toe onto (dry) Vietnamese soil.
The fulcrum of the Haas decision is a Supreme Court case from the 1980s which gave federal courts a standardized tool to interpret statutory language. Or so they thought.
Chevron: "To Defer or Not to Defer, that is the question."
Let's talk a little about Chevron, because it is critical to understand how Haas and Procopio are part of a much bigger battle over the separation of powers. For those who have spent considerable time studying Chevron and statutory interpretation I apologize: I am going to paint with very broad brushes and provide only a superficial explanation of Chevron and concepts of statutory interpretation.
Whenever we put pen to paper, we create ambiguities. Unless our writing is crystal clear - which is rare - there will often be at least 2 ways of interpreting any given sentence or paragraph.
This natural law of writing does not extend to Congress - Congress is presumed to have said what they meant in a statute, and meant what they said. However, when the clear writing of Congress does not clearly apply to a given fact situation, it is said that Congress's words are ambiguous.
It falls on the federal courts to interpret those ambiguities, and explain what Congress meant or intended.
A first battle of the role of the courts in statutory interpretation begins here: there are some who say that courts are limited to explaining only what Congress said in its actual words. Others say courts must interpret or divine congressional intent from those words.
In the 1980s, the Supreme Court gave federal courts a tool that they hoped would bring uniformity and consistency to the question of how to interpret federal statutes. The case in which this tool first appears is Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (
The first step requires the Court decide whether Congress has directly spoken to a precise factual application in the statutory language. They make this determination using traditional tools of statutory interpretation. If a canon of statutory interpretation solves the interpretive puzzle, or resolves the ambiguity, the Chevron analysis ends.
If you are at all interested in understanding the breadth and reach of the many canons of statutory interpretation, I recommend a book authored by the late Justice Scalia and the very-much-still-living Bryan Garner: "Reading the Law: The Interpretation of Legal Texts."
However, if an ambiguity remains after Chevron step one, courts move to Chevron step two. This step is probably better described as the "Government wins" step: federal courts will defer to a federal agency's regulatory interpretation of an ambiguous statute if that agency's interpretation (typically through a federal regulation) is "based on a permissible construction of the statute."
Ultimately, Chevron created a vehicle through which the judicial branch defers to the executive branch's reasonable interpretation of a statutory ambiguity created by the legislative branch.
A problem, for many, with the Chevron interpretive approach is that it comes dangerously close - or even crosses into - judicial acquiescence to the delegation of legislative power to the executive branch.
And this is where the pro veteran canon comes into play.
Is the Pro Veteran Canon a howitzer or a pop gun?
Rewind to the earliest days of the U.S. The battle over adoption of the Constitution as we know it today is largely over, and a nascent Supreme Court is issuing its first decisions.
Among those decisions is one involving a case of Revolutionary War pensioners. Congress had passed a statute that required disabled veterans to apply to the federal courts for their pensions. Federal courts, who wanted only the role the Constitution gave them (interpretation of the law), resisted granting the pensions.
The US Attorney General went to the federal courts on a petition for writ of mandamus, asking the Supreme Court to order the lower federal courts to do what Congress required in the statute. The Supreme Court punted on the Constitutional issue - an issue which would gain notoriety in the landmark decision of McCulloch v. Maryland, almost a quarter century later.
What Supreme Court Chief Justice John Jay said about why the judiciary was "punting" was, many believe, the birth of the pro-veteran canon:
“[T]he objects of [these statutes] are exceedingly benevolent, and do real honor to the humanity and justice of Congress…the Judges desire to manifest, on all proper occasions, and in every proper manner, their high respect for the National Legislature.” Hayburn’s Case, 2 U.S. 409, 410 n.1&2 (1792) (Jay, C.J.).
In other words: when Congress passes laws involving veterans, federal courts pay a particular respect to that role by manifesting a high respect for the legislative intent or purpose behind those statutes.
Fast forward 151 years, to a case involving the application of the Soldiers and Sailors Civil Relief Act. A military servicemember sought, in the eyes of the Court, to take improper advantage of that act to prevent litigation against him on the grounds that he was a service-member at the time of the suit. The Supreme Court wrote:
"The Soldiers' and Sailors' Civil Relief Act is always to be liberally construed to protect those who have been obliged to drop their own affairs to take up the burdens of the nation. The discretion that is vested in trial courts to that end is not to be withheld on nice calculations as to whether prejudice may result from absence, or absence result from the service. Absence when one's rights or liabilities are being adjudged is usually prima facie prejudicial. But, in some few cases, absence may be a policy, instead of the result of military service, and discretion is vested in the courts to see that the immunities of the Act are not put to such unworthy use." Boone v. Lightner, 319 U.S. 561, 575 (1943).
Since Boone, there has been an explosion of dicta - and holdings - that purport to elucidate the role of this so-called pro-veteran canon: statutes for veterans are to be liberally construed to favor them.
Congress has made clear “VA is not an ordinary agency.” Shinseki v. Sanders, 556 U.S. 396, 412 (2009). It administers a benefit system unique in American jurisprudence, a system in which Congress presses hard its thumb on the scales of justice. Henderson v. Shinseki, 562 U.S. 428, 440-442 (2011). Indeed, Congress only gave the VA enough power to prescribe rules and regulations "which are necessary or appropriate to carry out the laws administered by the Department and are consistent with those laws.”38 U.S.C. §501 (emphasis added). Congress has, however, in unique and dramatic ways, authorized VA to give life to statutes affecting veterans. Jaquay v. Principi, 304 F.3d 1276, 1286 (Fed. Cir. 2002)(en banc), overruled on other grounds by Henderson ex rel. Henderson v. Shinseki, 589 F.3d 1201 (Fed. Cir. 2009).
Understanding the scope of the unique variety of authority conferred on the VA by Congress requires a court first take note of the pro-veteran nature, scope, and purpose of a statute before deciding whether Chevron is needed to find or resolve any ambiguity in it. Brown v. Gardner, 513 U.S. 115, 117 – 120 (1994). This is because “[t]he solicitude of Congress for veterans is of long standing.” United States v. Oregon, 366 U.S. 643, 647 (1961). The beneficence of a grateful nation suffuses the laws Congress writes. Bailey v. West, 160 F.3d 1360, 1370 (Fed. Cir. 1998)(Michel, J., concurrence), overruled on other grounds by Henderson ex rel. Henderson v. Shinseki, 589 F.3d 1201 (Fed. Cir. 2009).
Indeed, in a case involving a question of whether a veteran must prove VA fault in a service-connection by medical malpractice claim (aka, a §1151 claim), the Supreme Court found that if any ambiguity existed in 38 U.S.C. §1151, the interpretation of that ambiguity must first survive application of the pro-veteran canon. Brown v. Gardner, 513 U.S. 115, 117 – 118, citing King v. St. Vincent’s Hospital, 502 U.S. 215, 200 – 221, n. 9 (1991).
And then, in a case involving the interpretation of the jurisdictional statute of the U.S. Court of Appeals for Veterans Claims, 38 U.S.C. §7266, the Supreme Court noted it had "long applied 'the canon that provisions for benefits to members of the Armed Services are to be construed in the beneficiaries’ favor,' " and went on to interpret that statute "in the light of this canon." Henderson v. Shinseki, 562 U.S. 428, citing King v. St. Vincent’s Hospital, 502 U.S. 215, n. 9 (1991); see also Coffy v. Republic Steel Corp., 447 U.S. 191, 196 (1980); Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285 (1946).
No Court has ever found that the VA has the authority to write laws pertaining to veterans. To many, the pro-veteran canon is a judicial recognition of – indeed, judicial deference to – congressional solidarity with veterans.
"Procopio, Procopio, wherefore art thou Procopio?"
These four major issues - the plight of Blue Water Navy veterans, the 2008 precedential decision in Haas, the future of Chevron as a viable interpretive tool, and the role of the pro-veteran canon in statutory interpretation have all converged in a case known as Procopio v. Wilkie.
Mr. Procopio's appeal started as just another challenge to Haas v. Peake coupled with an attempt to directly connect Mr. Procopio's disabilities to his direct exposure to Agent Orange while drinking the shipboard water on a US Navy vessel in the territorial waters of Vietnam.
He introduced evidence at the BVA showing what I will call the technical nautical and scientific evidence showing how dioxin came to be in the brown and blue water around Vietnam. Mr. Procopio tried to use this evidence as circumstantial evidence that Mr. Procopio was directly exposed to Agent Orange by drinking water on a Navy ship in the territorial waters of Vietnam.
He also used this evidence to argue that the Haas decision should be limited to its facts because it did not consider this evidence in relationship to the pro veteran canon of construction in finding that the presumption of Agent Orange exposure did not extend to Blue Water Navy Veterans.
The Veterans Court rejected both arguments, and Mr. Procopio appealed to the Circuit.
That is when things got interesting.
As you will hear in the oral arguments before the Federal Circuit Panel, Mr. Procopio focused his argument on how the technical nautical and scientific evidence showing that dioxin was in the shipboard drinking water rendered unreasonable the Secretary's interpretation of Section 1116 in its regulations and/or M-21 manuals.
The Court worked to shift that focus to where in the Chevron analysis the pro-veteran canon applied. Judge Moore's questioning seemed to focus on the applicability of the canon at step one, while Judges Wallach and Chen seemed, as near as I can tell, suspicious of that conclusion.
And the Secretary's attorney appeared to be steering his argument to a need for supplemental briefing on the applicability of the pro veteran canon within the Chevron framework. While I do not agree with the government's arguments or position, the deftness with which Mr. Bruskin fielded and steered the Court's questioning was noticeable and a good example, in my opinion, of solid oral advocacy.
The Court sought supplemental briefing asking exactly that question: where does the pro-veteran canon fit in the Chevron statutory interpretation framework. Mr. Procopio argued that it applied at Step One, and should be used to determine whether there was an ambiguity in the first place. The government argued it should be considered at or after Step Two, in determining the reasonableness of the government's interpretation of an ambiguous veterans benefits statute.
The National Organization for Veterans Advocates (NOVA) submitted an amicus brief arguing, essentially, that the pro-veteran canon was a tool that was used not to interpret a statute per se, but to ensure that the judiciary respected Congressional primacy in excluding large classes of veterans from benefits.
The Court then issued an order indicating it was sitting en banc.
The appeal has been fully briefed at the time of this post, including 6 amicus briefs for 11 veterans advocacy organizations, including the Big 6 VSOs, law school clinics, NOVA and NVLSP, MOAA and Carpenter Chartered, the law firm of one of the most prolific veterans' advocates: attorney Ken Carpenter.
Oral arguments are set for December 7, 2018, and yours truly will be there to report back to you on how the arguments progressed.
Essentially, the Court is going to consider who wins the tug of war between the pro veterans canon and the Chevron statutory interpretation framework.
How does this affect YOU, the attorney representing veterans?
#1: If you have a client who is a Blue Water Navy Veteran - and I think this reasonably includes Gray veterans who allege exposure to Agent Orange in the so-called "Open Water ports" - and you are being denied benefits because the Agent Orange exposure presumption does not currently extend to you, consider finding a way to delay adjudication of your appeal until after Procopio. Attig | Steel has stayed all of its cases at the CAVC and the Federal Circuit if they involve the issue of Agent Orange exposure for a Blue Water or Open Water Port Navy Veteran. If Procopio overturns Haas, and extends the presumption of Agent Orange exposure to those veterans, they could finally see benefits.
#2: Talk to veterans about this case - include it in your law firm's email and paper newsletters, blogs, social media posts, and presentations. Tell Blue Water Navy veterans about the Procopio case and suggest that they keep their claims open and pending at least until the Federal Circuit decides Procopio.
#3: Listen to oral arguments in Procopio.
#4: Start thinking about the pro-veteran canon. How can it apply to statutory interpretations in your appeals? Can it allow the CAVC or Federal Circuit to revisit a prior statutory interpretation that did not consider the canon? Can it affect how the CAVC or Circuit interprets the Appeals Modernization Act or the regulations enacted to execute that Act? Remember - the pro veteran canon is not just a tool to interpret statutes - it is tool that can assist in the interpretation of regulations, too.
In closing, I am reminded of an incident in my childhood. Kids being kids, we got our hands on some fireworks. One promised to be an amazing display of noise, light and power. We snuck into the tree line by the corn filed behind our house, lit the fuse, and....nothing. The darn thing fizzled out.
Procopio could very well reshape the entire practice of veterans law by giving new control to veterans through a more defined role for the pro veteran canon.
It could over-rule Haas and extend the Agent Orange presumption to Blue Water Navy Veterans.
It could result in a decision that allows the viability of Chevron as a interpretive methodology to be directly challenged in the Supreme Court.
Alternatively, nothing could happen.
I am reminded that the law moves slowly. Even when dramatic changes happen in the law, seemingly overnight, they are often the culmination of years and decades spent developing the caselaw that will form the foundation for a shift in the law.
Until the last appeal has been decided, it is impossible to know if Procopio is the culmination of years of work, or the cornerstone of a new foundation.
The case so far.....
U.S. Court of Appeals for Veterans Claims
Procopio v. McDonald, 15-4082 (Click here to see CAVC Docket)
Counsel for Appellant: John Wells, Attorney (Commander, USN Retired) (link to Commander Wells' bio on his website)
Counsel for Appellee: Dustin Elias
Veterans Court Judge Coral W. Pietsch
U.S. Court of Appeals for the Federal Circuit
Procopio v. Wilkie, 17-1821 (Docket available on PACER)
Before the Panel
Supplemental Briefing
Appellant's Response to Supplemental Briefing Order
Appellee's Response to Supplemental Briefing Order
En Banc Order
Appellant's Response to En Banc Briefing Order
Appellee's Response to En Banc Briefing Order
BRIEFS OF AMICUS CURIAE IN RESPONSE TO EN BANC BRIEFING ORDER:
National Law School Veterans Clinics Consortium
National Organization for Veterans Advocates (NOVA)
Joined by Paralyzed Veterans of America, Military Officers Association of America (MOAA), AMVETS, and Federal Bar Association (Veterans and Military Law Section)
National Veterans Legal Service Project (NVLSP)
Joined by Veterans of Foreign Wars (VFW)
Parties and People
Briefing and Arguing Counsel for Appellant at panel and supplemental: John Wells, Attorney (Commander, USN Retired) (link to Commander Wells' bio on his website)
Briefing Counsel for Appellant at en banc: Melanie Bostwick, Attorney (Orrick, Herrington, and Sutcliffe LLP)
Counsel for Appellee: Eric P. Bruskin, Attorney
Veterans Court Judge Coral W. Pietsch
Federal Circuit Panel:
Circuit Judge Kimberly A. Moore (link to bio on Court website)
Circuit Judge Raymond T. Chen (link to bio on Court website)
Circuit Judge Evan J. Wallach (link to bio on Court website)
