Procopio v. Wilkie

United States Court of Appeals

for the Federal Circuit

______________________

ALFRED PROCOPIO, JR.,

Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS

AFFAIRS,

Respondent-Appellee

______________________

2017-1821

______________________

Appeal from the United States Court of Appeals for

Veterans Claims in No. 15-4082, Judge Coral Wong

Pietsch.

______________________

Decided: January 29, 2019

______________________

MELANIE L. BOSTWICK, Orrick, Herrington & Sutcliffe

LLP, Washington, DC, argued for claimant-appellant.

Also represented by THOMAS MARK BONDY, ROBERT

MANHAS; MATTHEW R. SHAHABIAN, New York, NY; JOHN

B. WELLS, Law Office of John B. Wells, Slidell, LA.

ERIC PETER BRUSKIN, Commercial Litigation Branch,

Civil Division, United States Department of Justice,

Washington, DC, argued for respondent-appellee. Also

represented by JOSEPH H. HUNT, ROBERT E. KIRSCHMAN,

JR., MARTIN F. HOCKEY, JR.; BRIAN D. GRIFFIN, BRANDON

2 PROCOPIO v. WILKIE

A. JONAS, Office of General Counsel, United States De-

partment of Veterans Affairs, Washington, DC.

CATHERINE EMILY STETSON, Hogan Lovells US LLP,

Washington, DC, for amici curiae National Organization

of Veterans' Advocates, Inc., Paralyzed Veterans of Amer-

ica, Military Officers Association of America, AMVETS,

Veterans and Military Law Section, Federal Bar Associa-

tion. Also represented by WILLIAM DAVID MAXWELL.

Amicus curiae National Organization of Veterans' Advo-

cates, Inc. also represented by CHRIS ATTIG, Attig Steel,

PLLC, Little Rock, AR.

KENNETH M. CARPENTER, Law Offices of Carpenter

Chartered, Topeka, KS, for amicus curiae Joseph A.

Taina.

GLENN R. BERGMANN, Bergmann Moore, LLC, Bethes-

da, MD, for amicus curiae The American Legion. Also

represented by JAMES DANIEL RIDGWAY.

ANGELA K. DRAKE, The Veterans Clinic at The Uni-

versity of Missouri School of Law, Columbia, MO, for

amicus curiae National Law School Veterans Clinic

Consortium.

DORIS HINES, Finnegan, Henderson, Farabow, Garrett

& Dunner, LLP, Washington, DC, for amicus curiae

Disabled American Veterans. Also represented by

CHARLES COLLINS-CHASE, SEAN DAMON, RONALD LEE

SMITH.

STANLEY JOSEPH PANIKOWSKI, III, DLA Piper LLP

(US), San Diego, CA, for amici curiae Blue Water Navy

Vietnam Veterans Association, Association of the United

States Navy, Fleet Reserve Association. Also represented

by JACOB ANDERSON, ERIN GIBSON.

PROCOPIO v. WILKIE 3

STEPHEN BLAKE KINNAIRD, Paul Hastings LLP, Wash-

ington, DC, for amici curiae National Veterans Legal

Services Program, Veterans of Foreign Wars of the United

States. Amicus curiae National Veterans Legal Services

Program also represented by BARTON F. STICHMAN, Na-

tional Veterans Legal Services Program, Washington, DC.

______________________

Before PROST, Chief Judge, NEWMAN, LOURIE, DYK,

MOORE, O’MALLEY, REYNA, WALLACH, TARANTO, CHEN, and

STOLL, Circuit Judges.

Opinion for the court filed by Circuit Judge MOORE, in

which Chief Judge PROST and Circuit Judges NEWMAN,

O’MALLEY, REYNA, WALLACH, TARANTO, and STOLL join.

Concurring opinion filed by Circuit Judge LOURIE.

Concurring opinion filed by Circuit Judge O’MALLEY.

Dissenting opinion filed by Circuit Judge CHEN, in which

Circuit Judge DYK joins.

MOORE, Circuit Judge.

Alfred Procopio, Jr., appeals a decision of the Court of

Appeals for Veterans Claims denying service connection

for prostate cancer and diabetes mellitus as a result of

exposure to an herbicide agent, Agent Orange, during his

Vietnam War-era service in the United States Navy.

Because we hold that the unambiguous language of 38

U.S.C. § 1116 entitles Mr. Procopio to a presumption of

service connection for his prostate cancer and diabetes

mellitus, we reverse.

BACKGROUND

In 1991, Congress passed the Agent Orange Act, codi-

fied at 38 U.S.C. § 1116, granting a presumption of ser-

vice connection for certain diseases to veterans who

“served in the Republic of Vietnam”:

4 PROCOPIO v. WILKIE

[A] disease specified in paragraph (2) of this

subsection becoming manifest as specified in that

paragraph in a veteran 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;

and [B] each additional disease (if any) that (i) the

Secretary determines in regulations prescribed

under this section warrants a presumption of

service-connection by reason of having positive

association with exposure to an herbicide agent,

and (ii) becomes manifest within the period (if

any) prescribed in such regulations in a veteran

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, and while so serving was exposed

to that herbicide agent, shall be considered to

have been incurred in or aggravated by such

service, notwithstanding that there is no record of

evidence of such disease during the period of such

service.

38 U.S.C. § 1116(a) (emphasis added). Under § 1116(f),

such a veteran “shall be presumed to have been exposed

during such service to [the] herbicide agent . . . unless

there is affirmative evidence to establish that the veteran

was not exposed to any such agent during that service.”

In 1993, the Department of Veterans Affairs issued

regulations pursuant to § 1116 that stated “‘Service in the

Republic of Vietnam’ includes service in the waters off-

shore and service in other locations if the conditions of

service involved duty or visitation in the Republic of

Vietnam.” 38 C.F.R. § 3.307(a)(6) (1993) (“Regula-

tion 307”). In 1997 in a General Counsel opinion about a

different regulation, the government interpreted Regula-

tion 307 as limiting service “in the Republic of Vietnam”

PROCOPIO v. WILKIE 5

to service in waters offshore the landmass of the Republic

of Vietnam only if the service involved duty or visitation

on the landmass, including the inland waterways of the

Republic of Vietnam, (“foot-on-land” requirement). Gen.

Counsel Prec. 27-97 (July 23, 1997); 62 Fed. Reg. 63,603,

63,604 (Dec. 1, 1997).

A panel of this court considered the government’s in-

terpretation of § 1116 in Haas v. Peake, 525 F.3d 1168

(Fed. Cir. 2008). Mr. Haas had served in waters offshore

the landmass of the Republic of Vietnam but was denied

§ 1116’s presumption of service connection because he

could not meet the government’s foot-on-land require-

ment. Id. at 1173. Accordingly, we were asked to decide

whether “serv[ice] in the Republic of Vietnam” in § 1116

required presence on the landmass or inland waterways of

the Republic of Vietnam. Id. at 1172.

We applied the two-step framework of Chevron

U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837, 842–43 (1984), to § 1116 and Regula-

tion 307. At Chevron step one, the Haas court held that

§ 1116 was ambiguous as applied to veterans who, like

Mr. Haas, served in the waters offshore the landmass of

the Republic of Vietnam but did not meet the foot-on-land

requirement. 525 F.3d at 1184. At Chevron step two, the

Haas court held Regulation 307 was “a reasonable inter-

pretation of the statute” but itself ambiguous. Id. at

1186. It then “[a]ppl[ied] the substantial deference that is

due to an agency’s interpretation of its own regulations”

under Auer v. Robbins, 519 U.S. 452, 461–63 (1997), to

uphold the government’s interpretation of Regulation 307,

i.e., the foot-on-land requirement. Id. at 1195. See also

Haas v. Peake, 544 F.3d 1306 (Fed. Cir. 2008).

Mr. Procopio served aboard the U.S.S. Intrepid from

November 1964 to July 1967. In July 1966, the Intrepid

6 PROCOPIO v. WILKIE

was deployed in the waters offshore the landmass of the

Republic of Vietnam, including its territorial sea. 1

Mr. Procopio sought entitlement to service connection for

diabetes mellitus in October 2006 and for prostate cancer

in October 2007 but was denied service connection for

both in April 2009. Diabetes mellitus is listed in the

statute under paragraph (2) of § 1116(a), and prostate

cancer is listed in the pertinent regulation, 38 C.F.R.

§ 3.309(e). The Board of Veterans’ Appeals likewise

denied him service connection in March 2011 and again in

July 2015, finding “[t]he competent and credible evidence

of record is against a finding that the Veteran was pre-

sent on the landmass or the inland waters of Vietnam

during service and, therefore, he is not presumed to have

been exposed to herbicides, including Agent Orange,”

under § 1116. The Veterans Court affirmed, determining

it was bound by our decision in Haas. Mr. Procopio timely

appealed.

A panel of this court heard oral argument on May 4,

2018, and on May 21, 2018, the parties were directed to

file supplemental briefs on “the impact of the

pro-claimant canon on step one of the Chevron analysis in

this case, assuming that Haas v. Peake did not consider

its impact.” On August 16, 2018, the court sua sponte

ordered the case be heard en banc. We asked the parties

to address two issues:

Does the phrase “served in the Republic of

Vietnam” in . . . § 1116 unambiguously include

service in offshore waters within the legally

recognized territorial limits of the Republic of

Vietnam, regardless of whether such service

1 The Board of Veterans’ Appeals found, and the

parties do not dispute, that Mr. Procopio served in the

Republic of Vietnam’s territorial sea. J.A. 32, 49-52.

PROCOPIO v. WILKIE 7

included presence on or within the landmass of

the Republic of Vietnam?

What role, if any, does the pro-claimant canon

play in this analysis?

In addition to the parties’ briefs, we received seven

amicus briefs. The en banc court heard oral argument on

December 7, 2018.

DISCUSSION

Section 1116 extends the presumption of service con-

nection to veterans who “served in the Republic of Vi-

etnam” during a specified period if they came down with

certain diseases. At issue is whether Mr. Procopio, who

served in the territorial sea of the “Republic of Vietnam”

during the specified period, “served in the Republic of

Vietnam” under § 1116.

Chevron sets forth a two-step framework for inter-

preting a statute, like § 1116, that is administered by an

agency. 467 U.S. at 842. Step one asks “whether Con-

gress has directly spoken to the precise question at issue.”

Id. “If the intent of Congress is clear, that is the end of

the matter,” and we “must give effect to the unambiguous-

ly expressed intent of Congress.” Id. at 842–43. If, on the

other hand, “the statute is silent or ambiguous with

respect to the specific issue,” we proceed to Chevron step

two, at which we ask “whether the agency’s answer is

based on a permissible construction of the statute.” Id. at

843.

Here, we determine at Chevron step one that Con-

gress has spoken directly to the question of whether

Mr. Procopio, who served in the territorial sea of the

“Republic of Vietnam,” “served in the Republic of Vi-

etnam.” He did. Congress chose to use the formal name

of the country and invoke a notion of territorial bounda-

ries by stating that “service in the Republic of Vietnam” is

included. The intent of Congress is clear from its use of

8 PROCOPIO v. WILKIE

the term “in the Republic of Vietnam,” which all available

international law unambiguously confirms includes its

territorial sea. Because we must “give effect to the un-

ambiguously expressed intent of Congress,” we do not

reach Chevron step two.

In 1954, the nation then known as Vietnam was parti-

tioned by a “provisional military demarcation line” into

two regions colloquially known as “North Vietnam” and

“South Vietnam.” Geneva Agreements on the Cessation

of Hostilities in Vietnam, art. 1, July 20, 1954, 935

U.N.T.S. 149 (“Geneva Accords”). In 1955, South Vietnam

was formally named, by proclamation of its president, the

“Republic of Vietnam.” Provisional Constitutional Act

Establishing the Republic of Viet-Nam, Oct. 26, 1955,

reprinted in A.W. Cameron (ed.), Viet-Nam Crisis: A

Documentary History, Volume I: 1940-1956 (1971).

International law uniformly confirms that the “Re-

public of Vietnam,” like all sovereign nations, included its

territorial sea. This was true in 1955 when the “Republic

of Vietnam” was created. Geneva Accords at art. 4 (ex-

tending the provisional military demarcation line into the

“territorial waters”). And this was true in 1991 when

Congress adopted the Agent Orange Act. In 1958, the

United States entered into the Convention on the Territo-

rial Sea and the Contiguous Zone (“1958 Convention”),

agreeing that “[t]he sovereignty of a State extends, be-

yond its land territory and its internal waters, to a belt of

sea adjacent to its coast, described as the territorial sea.”

1958 Convention, art. 1(1), 15 U.S.T. 1606, T.I.A.S. No.

5639 (Apr. 29, 1958); see also United States v. California,

381 U.S. 139, 165 (1965) (stating the 1958 Convention

provides “the best and most workable definitions availa-

ble” for defining coastal boundaries); Legal Issues Raised

by the Proposed Presidential Proclamation to Extend the

Territorial Sea, 12 O.L.C. 238, 247 (1988) (“[T]he modern

view is that the territorial sea is part of a nation and that

a nation asserts full sovereignty rights over its territorial

PROCOPIO v. WILKIE 9

sea . . . .”). In 1982, the United Nations Convention on

the Law of the Sea (“UNCLOS”) echoed the 1958 Conven-

tion, stating “[t]he sovereignty of a coastal State extends

. . . to an adjacent belt of sea, described as the territorial

sea,” having a breadth “not exceeding 12 nautical miles.”

Part II, arts. 2, 3, 1833 U.N.T.S. 397, 400 (Dec. 10, 1982).

And the Restatement of Foreign Relations Law in effect

when the Agent Orange Act was passed provided that “[a]

state has complete sovereignty over the territorial sea,

analogous to that which it possesses over its land territo-

ry, internal waters, and archipelagic waters,” meaning

“[t]he rights and duties of a state and its jurisdiction are

the same in the territorial sea as in its land territory.”

Restatement (Third) of Foreign Relations Law §§ 511,

cmt. b, 512, cmt. a (1987); see also id. (“[I]nternational law

treats the territorial sea like land territory . . . .”); Presi-

dential Proclamation 5928, 103 Stat. 2981 (1988) (“Inter-

national law recognizes that coastal nations may exercise

sovereignty and jurisdiction over their territorial seas.”). 2

2 The dissent criticizes that these sources of inter-

national law merely “define the territorial waters over

which a sovereign nation has dominion and control” but

“do not purport to define territorial waters as part of the

definition of the country itself.” Dissent at 5. But the

area over which a sovereign nation has dominion and

control is a definition of the country itself, and the dissent

points to no sources supporting any other definition of the

“Republic of Vietnam.” The dictionaries and maps the

dissent cites define other terms (“Vietnam,” “United

States,” “Socialist Republic of Vietnam”). Dissent at 6, 8

nn.2-3. When trying to discern what Congress meant by

“in the Republic of Vietnam,” we think the contemporane-

ous definition provided by international law is a better

source than the definitions of other countries provided by

these generalist dictionaries and maps.

10 PROCOPIO v. WILKIE

Thus, all available international law, including but

not limited to the congressionally ratified

1958 Convention, confirms that, when the Agent Orange

Act was passed in 1991, the “Republic of Vietnam” includ-

ed both its landmass and its 12 nautical mile territorial

sea. 3 The government has pointed to no law to the con-

trary. This uniform international law was the backdrop

against which Congress adopted the Agent Orange Act.

By using the formal term “Republic of Vietnam,” Congress

unambiguously referred, consistent with that backdrop, to

both its landmass and its territorial sea. 4 We also note

that the statute expressly includes “active military, naval,

or air service . . . in the Republic of Vietnam,”

§ 1116(a)(1), reinforcing our conclusion that Congress was

expressly extending the presumption to naval personnel

who served in the territorial sea. We conclude at Chevron

step one that the intent of Congress is clear from the text

of § 1116: Mr. Procopio, who served in the territorial sea

of the “Republic of Vietnam,” is entitled to § 1116’s pre-

sumption.

We find no merit in the government’s arguments to

the contrary. Its primary argument is that it injected

ambiguity into the term “Republic of Vietnam” prior to

the Agent Orange Act by promulgating two regulations,

38 C.F.R. § 3.311a(a)(1) (“Regulation 311”) and § 3.313(a)

3 There is no dispute that, when the Agent Orange

Act was passed in 1991, a nation’s territorial sea had a

breadth “not exceeding 12 nautical miles.” UNCLOS,

1833 U.N.T.S. at 400.

4 We do not, as the dissent contends, “create[] a new

canon of statutory construction that any use of a formal

country name necessarily includes the nation’s territorial

seas.” Dissent at 6. This case requires us to determine

only what Congress meant when it used the phrase “in

the Republic of Vietnam” in 1991.

PROCOPIO v. WILKIE 11

(“Regulation 313”). According to the government, Regula-

tion 311 imposed the foot-on-land requirement, but Regu-

lation 313 did not. The government contends that § 1116

codified both regulations and that, accordingly, it is

ambiguous whether Congress intended to impose the foot-

on-land requirement. We are not persuaded.

Regulation 311 created a presumption of service con-

nection for chloracne and later soft-tissue sarcomas for

veterans who served in “the Republic of Vietnam.” It

stated:

“Service in the Republic of Vietnam” includes

service in the waters offshore and service in other

locations, if the conditions of service involved duty

or visitation in the Republic of Vietnam.

Regulation 313 created a presumption of service connec-

tion for Non-Hodgkin’s lymphoma for veterans who served

in “Vietnam.” It stated:

“Service in Vietnam” includes service in the

waters offshore, or service in other locations if the

conditions of service involved duty or visitation in

Vietnam.

The government asks us to infer that Regulation 311

imposed the foot-on-land requirement, and that Regula-

tion 313 did not. This distinction is essential to its argu-

ment that § 1116, which codified both, is ambiguous. We

do not agree. We do not read Regulation 311, Regula-

tion 313, or even later-adopted Regulation 307 as articu-

lating the government’s current foot-on-land requirement.

And there is no indication anyone, including the govern-

ment, did before § 1116 was adopted.

Regulation 311 grants a presumption of service con-

nection for “service in the waters offshore and service in

other locations, if the conditions of service involved duty

or visitation in the Republic of Vietnam.” Regulation 313

grants the presumption for “service in the waters offshore,

12 PROCOPIO v. WILKIE

or service in other locations if the conditions of service

involved duty or visitation in Vietnam.” We do not read

these minor grammatical differences to compel the dis-

tinction the government urges. At best, the addition of a

comma in Regulation 311 permits the clause “if the condi-

tions of service involved duty or visitation in the Republic

of Vietnam” to modify both “service in the waters off-

shore” and “service in other locations.” But even if Regu-

lation 311 is so read, it still does not impose the foot-on-

land requirement: it covers everyone whose service in-

cluded duty or visitation “in the Republic of Vietnam,”

which, under background law, embraces the territorial

sea.

That is the straightforward meaning of the regulation

even after taking full account of the comma. As the

government concedes, the “waters offshore” are broader

than the territorial sea. See Oral Argument at 55:08–

55:19 (government’s counsel acknowledging offshore

waters “can also include beyond the territorial seas”); id.

at 55:40–56:10 (government’s counsel confirming offshore

waters extend beyond the territorial sea); cf. id. at 2:00–

2:16 (Mr. Procopio’s counsel stating “[t]he offshore water

is broader than the territorial sea . . . and it’s an im-

portant difference because a nation is sovereign only in its

territorial sea.”). Regulation 311’s requirement of “duty

or visitation in the Republic of Vietnam” brings within

coverage only a subset of all those who served “offshore,”

namely, those whose service included presence on land, in

the inland waterways, or in the territorial sea, consistent

with international law. That is, veterans who served in

the waters offshore or in other locations would be eligible

for the presumption if during such service they visited the

Republic of Vietnam (which is defined as the landmass

and territorial sea by international law).

Given the undisputed distinction between offshore

waters and territorial seas, we see no basis for incorporat-

ing a foot-on-land requirement into Regulation 311. The

PROCOPIO v. WILKIE 13

only discussion of this provision appears in the proposed

rulemaking where the government explains that,

“[b]ecause some military personnel stationed elsewhere

may have been present in the Republic of Vietnam, ‘ser-

vice in the Republic of Vietnam’ will encompass services

elsewhere if the person concerned actually was in the

Republic of Vietnam, however briefly.” 50 Fed. Reg. at

15,848, 15,849 (Apr. 22, 1985). We see no evidence that

the government understood Regulation 311 to include the

foot-on-land requirement until after the Agent Orange Act

was passed. The government first articulated this posi-

tion in 1997, six years after the Act. Gen. Counsel Prec.

27-97 (July 23, 1997). We cannot read into § 1116 an

ambiguity that relies on a distinction made only after

§ 1116 was adopted.

It is undisputed that Regulation 313 covering Non-

Hodgkin’s lymphoma does not include the foot-on-land

requirement, meaning the presumption of service connec-

tion for Non-Hodgkin’s lymphoma would have applied to

veterans who served on the landmass or in the territorial

sea. The government asserts that Regulation 311 pre-

sumed service connection for diseases—chloracne and

soft-tissue sarcomas—linked to herbicide exposure, while

Regulation 313 presumed service connection for a dis-

ease—Non-Hodgkin’s lymphoma—not linked to herbicide

exposure. But that asserted distinction does not indicate

ambiguity in § 1116. Indeed, when Congress enacted

§ 1116 it expressly extended the presumption to Non-

Hodgkin’s lymphoma, as well as chloracne and soft-tissue

sarcomas. And the government argues that § 1116 in-

tended to codify Regulation 311 and Regulation 313. No

fair reading of § 1116 can exclude the very veterans

suffering from Non-Hodgkin’s lymphoma that were enti-

tled to Regulation 313’s presumption, yet the govern-

ment’s (and the dissent’s) reading does just that:

According to the government, a veteran with Non-

Hodgkin’s lymphoma who served in the Republic of Vi-

14 PROCOPIO v. WILKIE

etnam’s territorial sea would have been entitled to service

connection under Regulation 313, but this same veteran

would not be entitled to service connection under § 1116.

This cannot be right. We decline to read § 1116, as the

dissent urges, to both codify Regulation 313 and erode

that regulation’s coverage. We see no basis to conclude

that Congress chose to reduce the scope of service connec-

tion for Non-Hodgkin’s lymphoma without explanation.

In short, we do not understand Regulation 311 or

Regulation 313 to articulate a foot-on-land requirement.

We find no merit to the government’s argument that

§ 1116 is ambiguous because “Congress’s codification of

the existing regulatory presumptions . . . tells, at best, a

conflicting story.” Appellee’s Br. 39–40. In 1991, Con-

gress legislated against the backdrop of international law

that had defined the “Republic of Vietnam” as including

its territorial sea for decades. The government’s foot-on-

land requirement, first articulated in 1997, does not

provide a basis to find ambiguity in the language Con-

gress chose.

The government also argues the “Republic of Vi-

etnam” in § 1116 does not include its territorial sea be-

cause when Congress intends to bring a territorial sea

within the ambit of a statute, it says so expressly. 5 But

the examples the government points to address not a

nation’s territorial sea, but only “waters adjacent.” 10

U.S.C. §§ 3756, 6258, 8756 (extending the Korea Defense

Service Medal to those who “served in the Republic of

5 The government conceded, though, at oral argu-

ment that if Congress were to pass a statute forbidding

military action within a nation, that statute would be

violated if the President sent forces into the nation’s 12-

mile territorial sea, as that would “impact the sovereign

boundary of [the nation].” See Oral Argument at 27:37-

28:13.

PROCOPIO v. WILKIE 15

Korea or the waters adjacent thereto”); Veterans’ Rehabil-

itation and Education Amendments of 1980, Pub. L.

No. 96-466, § 513(b) (providing for the publishing of labor

statistics on “veterans . . . who served . . . in naval mis-

sions in the waters adjacent to Vietnam”); 38 U.S.C.

§ 101(30) (defining the term “Mexican border period” in

the case of “a veteran who . . . served in Mexico, on the

borders thereof, or in the waters adjacent thereto”).

While the dissent calls this distinction “speculative,”

Dissent at 10, both parties conceded at oral argument

that the “waters adjacent” to a nation are distinct from,

and extend beyond, its territorial sea. See Oral Argument

at 26:50-27:18 (Mr. Procopio); id. at 55:00–55:15 (govern-

ment). It is precisely because “waters adjacent” go beyond

a nation’s landmass and territorial sea that Congress

needed to specify “waters adjacent” in these statutes. See,

e.g., Keene Corp. v. United States, 508 U.S. 200, 208

(1993) (“[I]t is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or

exclusion” of “particular language”); W. Va. Univ. Hosps.,

Inc. v. Casey, 499 U.S. 83, 88-92 (1991) (comparing dis-

tinct usage of “attorney’s fees” and “expert fees” among

statutes). These statutes cast no doubt on our conclusion

that, by using the formal term “Republic of Vietnam,”

Congress unambiguously referred, consistent with uni-

form international law, to both its landmass and its 12

nautical mile territorial sea.

The other statutes the government cites likewise cast

no doubt on this conclusion. The government has failed to

cite any instance in which the unmodified use of a formal

sovereign name has been construed to not include its

territorial sea. Instead, the government would have us

infer that because several statutes refer to both the

“United States” and its “territorial seas” or “territorial

waters,” the term “United States” cannot be generally

understood to include territorial sea. We see no basis for

drawing that inference. As the Supreme Court has ob-

16 PROCOPIO v. WILKIE

served, there are “many examples of Congress legislating

in that hyper-vigilant way, to ‘remov[e] any doubt’ as to

things not particularly doubtful in the first instance.”

Cyan, Inc. v. Beaver Cty. Employees Ret. Fund, 138 S. Ct.

1061, 1074 (2018). 6

6 In several cases, it is clear Congress’ express ref-

erence to territorial sea was to remove any doubt as to a

provision’s meaning. For instance, in 16 U.S.C.

§ 2402(8)’s definition of “import,” the statement that “any

place subject to the jurisdiction of the United States”

“include[s] the 12-mile territorial sea of the United

States,” clearly reflects Congress’ express concern that

“import” as defined in § 2402(8) could be misread to have

the same meaning as it has under the customs laws of the

United States. For customs purposes a good may not be

imported until it arrives at a port, see, e.g., 19 C.F.R. §

101.1, and the “customs territory of the United States” is

limited to the States, the District of Columbia, and Puerto

Rico, and does not include other sovereign territory of the

United States, see Harmonized Tariff Schedule of the

United States, General Note 2. Similarly, the reference to

“United States waters” in 8 U.S.C. § 1158(a)(1) serves a

clarifying purpose in light of caselaw holding “physical

presence” is a term of art in immigration law requiring an

alien to have landed on shore, see Zhang v. Slattery, 55

F.3d 732, 754 (2d Cir. 1995). Nothing in these provisions,

18 U.S.C. § 2280(b)(1)(A)(ii), or 33 U.S.C. § 1203, suggests

Congress did not understand the term “United States” to

generally include its territorial sea.

It is also unsurprising that Congress has found it ex-

pedient to define phrases including the term “United

States” for use in particular statutes and in some of those

instances it referred to the territorial sea of the United

States. E.g., 16 U.S.C. § 1362(15); 26 U.S.C. § 638(1);

46 U.S.C. §§ 2301, 4301, 4701(3). That provides little

PROCOPIO v. WILKIE 17

Respectfully, the Haas court went astray when it

found ambiguity in § 1116 based on “competing methods

of defining the reaches of a sovereign nation” and the

government’s urged distinction between Regulations 311

and 313. 525 F.3d at 1184–86. As discussed above,

international law uniformly confirms that the “Republic of

Vietnam” included its territorial sea. And we cannot read

into § 1116 an ambiguity that relies on a distinction

between Regulations 311 and 313 made by the govern-

ment only after § 1116 was adopted. Haas is overruled. 7

insight into Congress’ use of the formal name of a foreign

country absent an express definition. In short, none of

these statutes sheds any light on how Congress under-

stood the “Republic of Vietnam” when it passed the Agent

Orange Act in 1991, and none create any ambiguity in the

face of long-established, uniform international law recog-

nizing the “Republic of Vietnam” includes its territorial

sea.

7 “[W]e have never applied stare decisis mechanical-

ly to prohibit overruling our earlier decisions determining

the meaning of statutes.” Monell v. Dep’t of Social Servs.

of City of New York, 436 U.S. 658, 695 (1978). Charging

that “stare decisis in respect to statutory interpretation

has ‘special force,’ for ‘Congress remains free to alter what

we have done,’” the dissent seems to suggest we can never

overrule a precedent interpreting a statute. Dissent at 4

(quoting John R. Sand & Gravel Co. v. United States, 552

U.S. 130, 139 (2008)). But we see no reason here to “place

on the shoulders of Congress the burden of the Court’s

own error.” Monell, 436 U.S. at 695. The parties have

presented arguments and evidence not considered in

Haas. Haas, 525 F.3d at 1183-86. Moreover, the dissent’s

concern for “stability in the law” is misplaced. Dissent at

3 (quoting Robert Bosch, LLC v. Pylon Mfg. Corp., 719

F.3d 1305, 1316 (Fed. Cir. 2013). While there are certain-

18 PROCOPIO v. WILKIE

The parties and amici have differing views on the role

the pro-veteran canon should play in this analysis. See

generally Henderson v. Shinseki, 562 U.S. 428, 441 (2011);

Brown v. Gardner, 513 U.S. 115, 117-18 (1994); King v.

St. Vincent’s Hosp., 502 U.S. 215, 220 n.9 (1991); Fishgold

v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285

(1946); Boone v. Lightner, 319 U.S. 561, 575 (1943). Given

our conclusion that the intent of Congress is clear from

the text of § 1116—and that clear intent favors veterans—

we have no reason to reach this issue.

No judge on this court has determined that this veter-

an should be denied benefits under § 1116. One concur-

rence concludes that § 1116 is ambiguous but finds the

agency’s interpretation unreasonable. See Lourie, J.,

concurring. Because we decide that the statute is unam-

biguous, we need not decide whether the agency’s inter-

pretation is reasonable. The dissent concludes that

§ 1116 is ambiguous but claims it is “premature” to decide

whether the agency’s interpretation is unreasonable.

Dissent at 17 (refusing to consider the reasonableness of

the agency’s interpretation). Respectfully, by declining to

reach Chevron step two, the dissent fails to decide this

case. 8

ly situations where parties’ reliance on our settled law is

of paramount concern (see, e.g., Dickerson v. United

States, 530 U.S. 428, 443 (2000) (declining to overrule

Miranda v. Arizona, 384 U.S. 436 (1966), because “Mi-

randa has become embedded in routine police practice to

the point where the warnings have become part of our

national culture”)), no such reliance concern exists here.

8 The dissent criticizes our interpretation of § 1116

as a “policy choice [that] should be left to Congress,”

noting the “cost of expanding the presumption of service

connection.” Dissent at 16. Respectfully, we are inter-

preting a statute, not making a policy judgment. Moreo-

PROCOPIO v. WILKIE 19

CONCLUSION

Congress has spoken directly to the question of

whether those who served in the 12 nautical mile territo-

rial sea of the “Republic of Vietnam” are entitled to

§ 1116’s presumption if they meet the section’s other

requirements. They are. Because “the intent of Congress

is clear, that is the end of the matter.” Chevron, 467 U.S.

at 842. Mr. Procopio is entitled to a presumption of

service connection for his prostate cancer and diabetes

mellitus. Accordingly, we reverse.

REVERSED AND REMANDED

ver, the dissent’s criticism seems out of place where it has

not concluded that the agency’s determination is reasona-

ble or that Mr. Procopio should be denied his benefits.

United States Court of Appeals

for the Federal Circuit

______________________

ALFRED PROCOPIO, JR.,

Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS

AFFAIRS,

Respondent-Appellee

______________________

2017-1821

______________________

Appeal from the United States Court of Appeals for

Veterans Claims in No. 15-4082, Judge Coral Wong

Pietsch.

______________________

LOURIE, Circuit Judge, concurring in the judgment.

I join the majority in reversing the judgment of the

Veterans Court, but, respectfully, I would do so for differ-

ent reasons.

I do not agree with the majority that international

law and sovereignty principles, which would include the

territorial waters of the Republic of Vietnam, render the

phrase “served in the Republic of Vietnam” in 38 U.S.C.

§ 1116 unambiguous. See Majority at 8–10. Sovereign

borders are not necessarily what Congress had in mind

when it enacted statutes for veterans’ benefits, and specif-

ically, when it enacted the Agent Orange Act. See Haas v.

Peake, 525 F.3d 1168, 1175–83 (Fed. Cir. 2008) (discuss-

2 PROCOPIO v. WILKIE

ing the difficulty in determining the likelihood of exposure

to herbicides rather than any sovereignty concerns). The

majority’s holding thus covers more legal territory than

necessary and decides an issue not before us.

I instead agree with the court in Haas, see id. at

1183–86, and the dissent, see Dissent at 5–15, that

“served in the Republic of Vietnam” is ambiguous under

Chevron step one. The statute entitles a veteran to a

presumption of service connection for certain diseases if

the veteran “served in the Republic of Vietnam.” 38

U.S.C. § 1116(a). That qualification does not tell us

whether offshore waters are or are not included. Thus, as

to that issue, the statute surely is ambiguous.

I also agree with the Haas court that under Chevron

step two, the regulation promulgated by the agency

reflects a reasonable interpretation of the statute. See

Haas, 525 F.3d at 1186. However, unlike the court in

Haas, I would hold that the agency’s interpretation of its

regulation is not owed any deference as generally re-

quired by Auer v. Robbins, 519 U.S. 452, 461–63 (1997),

because the regulation is not ambiguous, see Christensen

v. Harris Cty., 529 U.S. 576, 588 (2000) (“Auer deference

is warranted only when the language of the regulation is

ambiguous.”). Contra Haas, 525 F.3d at 1186–97.

The agency’s regulation states that “‘[s]ervice in the

Republic of Vietnam’ includes service in the waters off-

shore and service in other locations if the conditions of

service involved duty or visitation in the Republic of

Vietnam.” 38 C.F.R. § 3.307(a)(6)(iii) (emphasis added).

In interpreting the regulation, we need not resort to

international definitions of national sovereignty over

waters adjacent to land or to the pro-veteran canon; we

should simply read the plain language of the regulation.

And, the plain reading of this inclusive regulation speci-

fies that service in the Republic of Vietnam includes

(1) “service in the waters offshore” and (2) “service in

PROCOPIO v. WILKIE 3

other locations if the conditions of service involved duty or

visitation in the Republic of Vietnam.” Id. Thus, a veter-

an who served in the “waters offshore” is included within

the meaning of “service in the Republic of Vietnam” and

entitled to presumptive service connection.

The agency in this case appears to have interpreted

the “duty or visitation” clause to modify not only the

service in “other locations,” but also “waters offshore,”

creating a foot-on-land requirement. See Majority at 4–5

(discussing the agency’s interpretation). However, if

“duty or visitation” were required for all Vietnam veter-

ans, the phrases “waters offshore” and “other locations”

would be superfluous. Cf. Hibbs v. Winn, 542 U.S. 88, 102

(2004) (citation omitted) (“A statute should be construed

so that effect is given to all its provisions, so that no part

will be inoperative or superfluous, void or insignificant

. . . .”). Under the agency’s interpretation, it would matter

not whether the veteran served in the “waters offshore” or

“other locations” as long as the veteran set foot on the

Vietnam landmass, which renders the “duty or visitation”

clause the only operative phrase. That is contrary to the

regulation’s plain language.

While we, at least until higher law says otherwise, are

obligated to give some degree of deference to an agency in

interpreting its own regulation, see Auer, 519 U.S. at 461,

deference has its limits. We are not obligated to give an

agency deference when the regulation is not ambiguous,

see Christensen, 529 U.S. at 588, or when an “alternative

reading is compelled by the regulation’s plain language,”

Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512

(1994) (quoting Gardebring v. Jenkins, 485 U.S. 415, 430

(1988)), as it does here. Thus, I would reverse the judg-

ment of the Veterans Court because the agency’s regula-

tion plainly entitled Mr. Procopio to a presumption of

service connection for his prostate cancer and diabetes

mellitus based on his service in the offshore waters of

Vietnam.

United States Court of Appeals

for the Federal Circuit

______________________

ALFRED PROCOPIO, JR.,

Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS

AFFAIRS,

Respondent-Appellee

______________________

2017-1821

______________________

Appeal from the United States Court of Appeals for

Veterans Claims in No. 15-4082, Judge Coral Wong

Pietsch.

______________________

O’MALLEY, Circuit Judge, concurring.

I agree with the majority’s well-reasoned decision.

The term “Republic of Vietnam,” as it appears in

38 U.S.C. § 1116, unambiguously encompasses its territo-

rial waters.

I write separately because I believe the pro-veteran

canon of construction adds further support to the majori-

ty’s conclusion. Specifically, I write to explain that: (1)

the pro-veteran canon, like every other canon of statutory

construction, can and should apply at step one of Chevron

to help determine whether a statutory ambiguity exists;

and, (2) even when a statute remains irresolvably ambig-

2 PROCOPIO v. WILKIE

uous, when a choice between deferring to an agency

interpretation of that statute—or particularly where that

interpretation is itself ambiguous—and resolving any

ambiguity by application of the pro-veteran canon come to

a head, traditional notions of agency deference must give

way. 1

The Supreme Court has made clear that courts are ob-

ligated to apply all traditional tools of statutory interpre-

tation at step one of Chevron. 467 U.S. at 843 n.9.

Indeed, “we owe an agency’s interpretation of the law no

deference unless, after ‘employing traditional tools of

statutory construction,’ we find ourselves unable to dis-

cern Congress’s meaning.” SAS Inst., Inc. v. Iancu, 138 S.

Ct. 1348, 1358 (2018) (quoting Chevron, 467 U.S. at 843

n.9.); see also Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612,

1630 (2018) (“[D]eference is not due unless a court, em-

ploying traditional tools of statutory construction, is left

with an unresolved ambiguity. And [here,] that [] is

missing: the canon against reading conflicts into statutes

is a traditional tool of statutory construction and it, along

with the other traditional canons we have discussed, is

more than up to the job of solving today’s interpretive

puzzle. Where, as here, the canons supply an answer,

Chevron leaves the stage.” (internal citations and quota-

tions omitted)); Food & Drug Admin. v. Brown & Wil-

liamson Tobacco Corp., 529 U.S. 120, 132–33 (2000)

(employing at Chevron step one the “fundamental canon

of statutory construction that the words of a statute must

1 I address both Chevron and Auer deference be-

cause we relied on both in Haas v. Peake to uphold the

agency’s regulation. We deferred to the agency’s interpre-

tation of its own ambiguous regulation under Auer, and

then, in turn, found “that the regulation reflects a reason-

able interpretation of the statute” under Chevron. 525

F.3d 1168, 1186 (Fed. Cir. 2008).

PROCOPIO v. WILKIE 3

be read in their context and with a view to their place in

the overall statutory scheme”); Gazelle v. Shulkin, 868

F.3d 1006, 1011–12 (Fed. Cir. 2017) (employing at Chev-

ron step one the canon that “Congress ‘legislate[s] against

the backdrop of existing law’” (citation omitted)).

A court similarly may not defer to an agency’s inter-

pretation of its own regulation or any other interpretive

ruling unless, after applying the same interpretative

principles that apply in the context of statutory interpre-

tation, the court finds the regulation or interpretation to

be ambiguous. Christensen v. Harris County, 529 U.S.

576, 588 (2000) (“Auer deference is warranted only when

the language of the regulation is ambiguous.”); Aqua

Prods., Inc. v. Matal, 872 F.3d 1290, 1316 (Fed. Cir. 2017)

(en banc) (“We use the same interpretive rules to construe

regulations as we do statutes[.]”); Roberto v. Dep’t of

Navy, 440 F.3d 1341, 1350 (Fed. Cir. 2006) (same). Thus,

there is no doubt that courts must apply all traditional

tools of statutory construction before resort to agency

deference, regardless of at what point the agency seeks

deference.

There is also no doubt that the pro-veteran canon is

one such traditional tool. Henderson v. Shinseki, 562 U.S.

428, 441 (2011) (“We have long applied the canon that

provisions for benefits to members of the Armed Services

are to be construed in the beneficiaries’ favor.” (quotations

omitted)); see Antonin Scalia, Judicial Deference to Ad-

ministrative Interpretations of Law, 1989 DUKE L.J. 511,

515 (1989) (“[T]he consideration and evaluation of policy

consequences” is “part of the traditional judicial tool-kit

that is used in applying the first step of Chevron[.]”). The

pro-veteran canon instructs that provisions providing

benefits to veterans should be liberally construed in the

veterans’ favor, with any interpretative doubt resolved to

their benefit. See, e.g., King v. St. Vincent’s Hosp., 502

U.S. 215, 220 n.9 (1991). The Supreme Court first articu-

lated this canon in Boone v. Lightner to reflect the sound

4 PROCOPIO v. WILKIE

policy that we must “protect those who have been obliged

to drop their own affairs to take up the burdens of the

nation.” 319 U.S. 561, 575 (1943). This same policy

underlies the entire veterans benefit scheme. Barrett v.

Principi, 363 F.3d 1316, 1320 (Fed. Cir. 2004) (“[T]he

veterans benefit system is designed to award entitlements

to a special class of citizens, those who risked harm to

serve and defend their country. This entire scheme is

imbued with special beneficence from a grateful sover-

eign.” (quotations omitted)).

Few provisions embody this veteran-friendly purpose

more than § 1116’s presumption of service connection for

those who served in the Republic of Vietnam. Congress

enacted this presumption in response to concerns that the

agency was “utilizing too high a standard for determining

if there is a linkage between exposure to Agent Orange

and a subsequent manifestation of a disease” and was

thereby “failing to give the benefit of the doubt to veter-

ans in prescribing the standards in the regulations for VA

to use in deciding whether to provide service connection

for any specific disease.” Sidath Viranga Panangala et

al., Cong. Research Serv., R41405, Veterans Affairs:

Presumptive Service Connection and Disability Compen-

sation 14 (2014) (quoting Nehmer v. United States Veter-

ans’ Admin.¸712 F. Supp. 1420, 1423 (N.D. Cal. 1989)); see

also Agent Orange Legislation and Oversight: Hearing on

S. 1692 & S. 1787 Before the S. Comm. on Veterans’

Affairs, 1988 Leg., 2nd Sess. 5 (statement of Sen. Thomas

A. Daschle, Member, S. Comm. on Veterans’ Affairs)

(“[T]here is a time for study and more study, and there is

a time for leadership. In the case of veterans exposed to

Agent Orange . . . science will never be able to dictate

policy. That is our role.”). Section 1116 was designed to

afford veterans the benefit of the doubt in the face of

scientific uncertainty.

Courts have “long applied” the pro-veteran canon of

construction to such provisions. Henderson, 562 U.S. at

PROCOPIO v. WILKIE 5

441. And, because we presume Congress legislates with

the knowledge of judicial canons of statutory construction,

we should apply this canon to resolve doubt in a claim-

ant’s favor because that is precisely what Congress in-

tended when it enacted the Agent Orange Act in 1991

against the backdrop of Boone. King, 502 U.S. at 220 n.9.

Thus, when interpreting such statutes, or regulations

promulgated thereunder, we may not resort to agency

deference unless, after applying the pro-veteran canon

along with other tools of statutory interpretation, we are

left with an unresolved ambiguity. 2

The government contends that applying the pro-

veteran canon before resorting to agency deference would

usurp the agency’s role of gap-filling. But the government

forgets that an agency has no responsibility to fill gaps if

we find that Congress did not leave such a gap. SAS, 138

S. Ct. at 1358; City of Arlington v. F.C.C., 569 U.S. 290,

327 (2013) (Roberts, C.J., dissenting) (“We do not leave it

to the agency to decide when it is in charge.”). And,

2 Of course, application of the pro-veteran canon

will not always resolve ambiguities in a statute or regula-

tion in the veterans’ favor. For example, in Nat’l Org. of

Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs, we

resorted to agency deference despite applying the pro-

veteran canon because other canons of statutory construc-

tion and the pro-veteran canon pulled in opposite direc-

tions. 260 F.3d 1365, 1378 (Fed. Cir. 2001). And, in

Burden v. Shinseki, we found that the pro-veteran canon

was not enough to resolve a statutory ambiguity when

deciding whether to award benefits to a veteran’s surviv-

ing common law spouse over the veteran’s children be-

cause neither interpretation had a particularly pro-

veteran reading. 727 F.3d 1161, 1169–70 (Fed. Cir. 2013).

Thus, while application of the pro-veteran canon may

resolve any apparent ambiguity, it will not always do so.

6 PROCOPIO v. WILKIE

importantly, it ignores that “the duty to interpret statutes

as set forth by Congress is a duty that rests with the

judiciary.” Bankers Tr. N.Y. Corp. v. United States, 225

F.3d 1368, 1376 (Fed. Cir. 2000). Deference cannot dis-

place either this duty or the duty to consider appropriate

legal doctrines when exercising it.

When the pro-veteran canon and agency deference

come to a head, it is agency deference—the weaker of two

doctrines at any level—that must give way. Several

justices of the Supreme Court have urged their colleagues

“to reconsider, in an appropriate case, the premises that

underlie Chevron and how courts have implemented that

decision.” Pereira v. Sessions, 138 S. Ct. 2105, 2121

(2018) (Kennedy, J., concurring); see also Michigan v.

E.P.A., 135 S. Ct. 2699, 2712 (2015) (Thomas, J., concur-

ring) (“I write separately to note that [the agency’s] re-

quest for deference raises serious questions about the

constitutionality of our broader practice of deferring to

agency interpretations of federal statutes.”). By requiring

courts to defer to an agency’s interpretation of a statute—

not because it is the correct interpretation but because it

is merely reasonable—Chevron deference “wrests from

Courts the ultimate interpretative authority to say what

the law is,” and thereby “raises serious separation-of-

powers questions.” Michigan, 135 S. Ct. at 2712.

The case for Auer deference is even weaker. Not only

have several justices expressed concerns with Auer defer-

ence, the Supreme Court recently granted certiorari on

the question of whether the Court should overrule Auer

entirely. Kisor v. Shulkin, 880 F.3d 1378 (Fed. Cir. 2018),

cert. granted, Kisor v. Wilkie, 2018 WL 6439837 (2018)

(granting certiorari on question of “[w]hether the Court

should overrule Auer and Seminole Rock” and declining to

consider “[a]lternatively”-presented question of “whether

Auer deference should yield to a substantive canon of

construction”). As I have previously opined, Auer defer-

ence “encourages agencies to write ambiguous regulations

PROCOPIO v. WILKIE 7

and interpret them later, which defeats the purpose of

delegation, undermines the rule of law, and ultimately

allows agencies to circumvent the notice-and-comment

rulemaking process.” Kisor v. Shulkin, 880 F.3d 1378,

1379–80 (Fed. Cir. 2018) (O’Malley, J., dissenting from

denial of en banc) (internal quotations and alterations

omitted) (citing Hudgens v. McDonald, 823 F.3d 630, 639

n.5 (Fed. Cir. 2016) (O’Malley, J.); Johnson v. McDonald,

762 F.3d 1362, 1366–68 (Fed. Cir. 2014) (O’Malley, J.,

concurring)). In this way, Auer deference leaves agencies’

rulemaking authority unchecked and, as with Chevron,

raises serious questions regarding separation of powers.

Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 621 (2013)

(Scalia, J., dissenting) (explaining that Auer “contravenes

one of the great rules of separation of powers” that “[h]e

who writes the law must not adjudge its violation”)

Of course, we have no authority to overturn either

Chevron or Auer. But we can and should consider these

well-documented weaknesses when agency deference

conflicts with the pro-veteran canon of construction.

Questionable principles of deference should not displace

long-standing canons of construction. Here, there is no

justification for deferring to the agency’s interpretation of

“Republic of Vietnam” when that interpretation fails to

account for the purpose underlying the entire statutory

scheme providing benefits to veterans. See Util. Air

Regulatory Grp. v. E.P.A., 573 U.S. 302, 321 (2014) (“Even

under Chevron’s deferential framework, agencies must

operate within the bounds of reasonable interpreta-

tion. . . . A statutory provision that may seem ambiguous

in isolation is often clarified by the remainder of the

statutory scheme because only one of the permissible

meanings produces a substantive effect that is compatible

with the rest of the law.” (internal quotations and altera-

tions omitted)). Rather, deference should yield to the

canon that embodies this very purpose. To hold otherwise

would not only wrest from us our interpretative authority

8 PROCOPIO v. WILKIE

to say what the law is, it would displace congressional

intent.

Similarly, there is no justification for deferring to the

agency’s interpretation of its own ambiguous regulation

when it twice attempted and failed to codify the foot-on-

land requirement through the notice-and-comment rule-

making process. Presumptions of Service Connection for

Certain Disabilities, and Related Matters, 69 Fed. Reg.

44,614, 44,620 (July 27, 2004); Definition of Service in the

Republic of Vietnam, 73 Fed. Reg. 20,566, 20,567 (Apr. 16,

2008). We should not reward the agency with Auer defer-

ence when it circumvents the rules mandated by Congress

in the Administrative Procedure Act in its effort to reach

a result contrary to the pro-veteran canon. And, when the

agency does not deny that its interpretation of the regula-

tions to which it now points to support the foot-on-land

requirement has been inconsistent over the years, the

case for deference is weaker still. Haas, 525 F.3d at 1190

(“[T]he agency’s current interpretation of its regulations

differs from the position it took in some previous adjudi-

cations and seemed to take in its Adjudication Manu-

al[.]”). Thus, in a case like this one, where questionable

resort to agency deference and the pro-veteran canon

come to a head, agency deference must yield.

The government contends that the pro-veteran canon,

like the rule of lenity—which “requires interpreters to

resolve ambiguity in criminal laws in favor of defend-

ants”—is a canon of last resort that cannot trump agency

deference. Whitman v. United States, 135 S. Ct. 352, 353

(2014). This comparison misses the mark. While the

Supreme Court cautions against the overuse of the rule of

lenity, it has treated the pro-veteran canon more favora-

bly. Compare Moskal v. United States, 498 U.S. 103, 108

(1990) (“[W]e have always reserved lenity for those situa-

tions in which a reasonable doubt persists about a stat-

ute’s intended scope even after resort to the language and

structure, legislative history, and motivating policies of

PROCOPIO v. WILKIE 9

the statute.” (internal quotations omitted)), with Hender-

son, 562 U.S. at 441 (“We have long applied the canon

that provisions for benefits to members of the Armed

Services are to be construed in the beneficiaries’ favor.”

(quotations omitted)). This is not surprising considering

that the principles animating the rule of lenity differ

greatly from those of the pro-veteran canon. The rule of

lenity merely reflects a “presupposition of our law to

resolve doubts in the enforcement of a penal code against

the imposition of a harsher punishment,” but it is “not out

of any sentimental consideration, or for want of sympathy

with the purpose of Congress in proscribing evil or anti-

social conduct.” Bell v. United States, 349 U.S. 81, 83

(1955). In contrast, the pro-veteran canon recognizes this

country’s equitable obligation to “those who have been

obliged to drop their own affairs to take up the burdens of

the nation.” Boone, 319 U.S. at 575.

In this way, the pro-veteran canon is more analogous

to the substantive canon of construction applied in the

context of Indian law, which instructs that “statutes are

to be construed liberally in favor of Indians, with ambigu-

ous provisions interpreted to their benefit.” Montana v.

Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985). As

the Supreme Court has explained, “standard principles of

statutory construction do not have their usual force” when

weighed against the pro-Indian canon because the canon

is “rooted in the unique trust relationship between the

United States and the Indians.” Id.

Applying this principle, courts have found that the

pro-Indian canon trumps agency deference under Chev-

ron. Cobell v. Norton, 240 F.3d 1081, 1101 (D.C. Cir.

2001) (“Chevron deference is not applicable” in the context

of Indian law because “the special strength” of this canon

trumps the normally-applicable deference.); see also

Ramah Navajo Chapter v. Lujan, 112 F.3d 1455, 1461–62

(10th Cir. 1997) (“[T]he canon of construction favoring

Native Americans controls over the more general rule of

10 PROCOPIO v. WILKIE

deference to agency interpretations of ambiguous stat-

utes.”). The same should be true in this context.

As explained above, this country’s relationship with

its veterans is also both unique and important. The policy

that we owe a debt of gratitude to those who served our

country, which is the driving purpose behind the Agent

Orange Act, is derived from the same sources as the pro-

veteran canon, i.e., that those who served their country

are entitled to special benefits from a grateful nation.

See, e.g., 137 Cong. Rec. E1486-01, 137 Cong. Rec. E1486-

01, E1486, 1991 WL 65877, *1 (“We owe it to our Vietnam

veterans to enact badly needed legislation such as this so

that they are given a full and proper ‘thank you.’”); Bar-

rett, 363 F.3d at 1320. Therefore, when the pro-veteran

canon and reflexive agency deference conflict, the canon

should control.

By codifying in § 1116 a presumption of service con-

nection for those who served in the Republic of Vietnam,

Congress recognized that veterans should not have to

fight for benefits from the very government they once

risked their lives to defend. We ignore this purpose when

we fail to apply the pro-veteran canon to resolve ambigui-

ties in statutes and regulations that provide benefits to

veterans; and, by failing to hold that agency deference

must yield to the pro-veteran canon, we permit agencies

to do the same. The practical result is that veterans like

Mr. Procopio, even after returning home, are still fighting.

Therefore, while I agree with the majority’s decision, I

write separately to lament the court’s failure—yet again—

to address and resolve the tension between the pro-

veteran canon and agency deference. 3

3 While the Supreme Court will consider whether

Auer should be overruled and, thus, not available in any

cases, it did not agree to consider a second question

PROCOPIO v. WILKIE 11

raising whether principles of agency deference generally

must yield when at odds with the pro-veteran canon of

construction.

United States Court of Appeals

for the Federal Circuit

______________________

ALFRED PROCOPIO, JR.,

Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS

AFFAIRS,

Respondent-Appellee

______________________

2017-1821

______________________

Appeal from the United States Court of Appeals for

Veterans Claims in No. 15-4082, Judge Coral Wong

Pietsch.

______________________

CHEN, Circuit Judge, dissenting, with whom Circuit

Judge DYK joins.

Mr. Procopio suffers from prostate cancer and type 2

diabetes. He claims that his conditions are service con-

nected, relying on a statutory provision, 38 U.S.C. § 1116,

that creates a presumption of service connection for

service members who “served in the Republic of Vietnam

during the period beginning on January 9, 1962, and

ending on May 7, 1975.” We granted en banc review to

determine whether this provision unambiguously applies

to Blue Water Navy veterans, like Mr. Procopio, who

served in the territorial waters of Vietnam.

2 PROCOPIO v. WILKIE

The majority concludes that the statute unambiguous-

ly applies to Blue Water Navy veterans who did not set

foot on the Vietnam landmass and overrules our prior

decision to the contrary in Haas v. Peake, 525 F.3d 1168

(Fed. Cir. 2008). In my view, the statute is ambiguous,

and the majority inappropriately preempts Congress’s

role in determining whether the statute should apply in

these circumstances—an issue which Congress is grap-

pling with at this very time.

Our court has already confronted this precise inter-

pretive question for veterans who served on ships off the

coast of Vietnam during the Vietnam War. And we con-

cluded, after considering the statute and its legislative

history, that this statutory phrase is ambiguous. See id.

at 1185–86. By repudiating a statutory interpretation

from a 10-year old precedential opinion without any

evidence of changed circumstances, today’s decision

undermines the principle of stare decisis.

Contrary to the majority’s conclusion, international

law and sovereignty principles do not dictate that Con-

gress unambiguously intended “Republic of Vietnam” to

include its territorial waters. No prior case has an-

nounced a principle that a statute’s reference to a country

name should be treated as a term of art that encompasses

both the country’s landmass and territorial waters. Such

a rule is particularly anomalous in the context of a statute

governing veterans’ disability benefits, which in no way

implicates a foreign country’s sovereignty over territorial

waters. Further, I see nothing in the legislative history of

§ 1116 suggesting that Blue Water Navy veterans would

be covered by the presumption of service connection.

Because herbicides were sprayed throughout the land-

mass of the Republic of Vietnam, it is at least a reasona-

ble understanding of the statute that Congress at the

time of the Agent Orange Act directed its statutory pre-

sumption of service connection towards those service

members who had actually served within the country’s

PROCOPIO v. WILKIE 3

land borders. I would therefore find, as we did in Haas,

that § 1116 is ambiguous under Chevron step one. Ac-

cordingly, I respectfully dissent.

STARE DECISIS AND HAAS V. PEAKE

This court has already ruled on the statutory inter-

pretation of service “in the Republic of Vietnam” under 38

U.S.C. § 1116(a)(1). In Haas, we addressed whether a

veteran who served on a ship that traveled in the territo-

rial waters of Vietnam but who never went ashore “served

in the Republic of Vietnam.” 525 F.3d at 1172. There, we

reviewed the statute and legislative history and concluded

that the phrase was ambiguous. Id. at 1184.

Despite our court’s settled statutory interpretation

from a decade ago, the majority nevertheless elects to re-

open this already-decided interpretive issue. In doing so,

the majority disregards stare decisis, which serves an

important purpose in American law. See Deckers Corp. v.

United States, 752 F.3d 949, 956 (Fed. Cir. 2014) (“[S]tare

decisis exists to ‘enhance [ ] predictability and efficiency

in dispute resolution and legal proceedings’ through

creation of settled expectations in prior decisions of the

court.”) (citation omitted).

In Robert Bosch, LLC v. Pylon Manufacturing Corp.,

we considered what effect stare decisis has when this

court reviews panel decisions en banc. 719 F.3d 1305,

1316 (Fed. Cir. 2013) (en banc). We pointed out that “the

implications of stare decisis are less weighty than if we

were [reconsidering] a precedent established by the court

en banc.” Id. (internal quotation marks omitted). Never-

theless, we concluded that “panel opinions, like en banc

opinions, invoke the principle of stare decisis,” reasoning

that, “because [our precedent] represents the established

law of the circuit, a due regard for the value of stability in

the law requires that we have good and sufficient reason

to reject it at this late date.” Id. (internal quotation

marks and citation omitted) (alteration in original).

4 PROCOPIO v. WILKIE

The Supreme Court has warned that “stare decisis in

respect to statutory interpretation has ‘special force,’ for

‘Congress remains free to alter what we have done.’”

John R. Sand & Gravel Co. v. United States, 552 U.S.

130, 139 (2008) (citation omitted). “A difference of opinion

within the Court . . . does not keep the door open for

another try at statutory construction . . . .” Watson v.

United States, 552 U.S. 74, 82 (2007). Indeed, “the very

point of stare decisis is to forbid us from revisiting a

debate every time there are reasonable arguments to be

made on both sides.” Lighting Ballast Control LLC v.

Philips Elecs. N. Am. Corp., 744 F.3d 1272, 1283 (Fed.

Cir. 2014) (en banc), abrogated by Teva Pharm. USA, Inc.

v. Sandoz, Inc., 135 S. Ct. 831 (2015) (quoting Morrow v.

Balaski, 719 F.3d 160, 181 (3d Cir. 2013) (Smith, J.,

concurring)). Congress has the responsibility for revising

its statutes; the Judiciary should be more circumspect

before forsaking prior statutory interpretations. See Neal

v. United States, 516 U.S. 284, 295–96 (1996). Indeed, the

recent debates in Congress, which required consideration

of the significant cost of the proposed addition of Blue

Water Navy veterans underscores why Congress, rather

than the courts, should be the one to revisit our interpre-

tation in Haas. See Citation of Supplemental Authority 1,

ECF No. 39; Blue Water Navy Vietnam Veterans Act,

H.R. 299, 115th Cong. (2017–18) (“Blue Water Navy

Vietnam Veterans Act of 2018”). The Supreme Court’s

admonishment against overruling prior statutory inter-

pretation is particularly apt here, where Congress has

been actively considering whether to take any action in

response to this court’s interpretation.

Our statutory interpretation in Haas has been the law

of this court for over ten years. Neither party has identi-

fied any intervening development of the law that has

removed or weakened the conceptual underpinnings from

Haas in this regard. I would therefore follow Haas to

conclude that the statutory phrase at issue is ambiguous.

PROCOPIO v. WILKIE 5

STATUTORY AMBIGUITY

I do not find persuasive the majority’s conclusion that

international law dictates its interpretation. The Haas

court considered similar sources of evidence but still

concluded that the statutory phrase was ambiguous.

Haas, 525 F.3d at 1184. All of the international law

sources relied upon by the majority relate to laws that

statutorily define the territorial waters over which a

sovereign nation has dominion and control. See, e.g.,

Restatement (Third) of Foreign Relations Law § 511(a)

(“The territorial sea: a belt of sea that may not exceed 12

nautical miles, measured from a baseline that is either

the low-water line along the coast or the seaward limit of

the internal waters of the coastal state or, in the case of

an archipelagic state, the seaward limit of the archipelag-

ic waters”); United States v. California, 332 U.S. 19, 33

(1947) (“That the political agencies of this nation both

claim and exercise broad dominion and control over our

three-mile marginal belt is now a settled fact.”); 1958

Convention on the Territorial Sea and the Contiguous

Zone, art. 1(1), 15 U.S.T. 1606, T.I.A.S. No. 5639 (Apr. 29,

1958) (“The sovereignty of a State extends, beyond its

land territory and its internal waters, to a belt of sea

adjacent to its coast, described as the territorial sea.”);

United Nations Convention on the Law of the Sea, art. 2,

1833 U.N.T.S. 397, 400 (Dec. 10, 1982, entered into force

on Nov. 16, 1994) (“The sovereignty of a coastal State

extends, beyond its land territory and internal waters

and, in the case of an archipelagic State, its archipelagic

waters, to an adjacent belt of sea, described as the territo-

rial sea.”). They do not purport to define territorial wa-

ters as part of the definition of the country itself.

Section 1116, a U.S. veterans’ disability benefits stat-

ute, has nothing to do with the dominion and control of a

foreign sovereign over territorial waters. Nor would an

opinion construing a U.S. veterans’ disability benefits

statute be in any danger of violating the law of the na-

6 PROCOPIO v. WILKIE

tions. See Murray v. Schooner Charming Betsy, 6 U.S. 64

(1804).

There is no support for a rule that a statute that re-

fers to a country includes the country’s territorial waters. 1

The majority admonishes the government for “fail[ing] to

cite any instance in which the unmodified use of a formal

sovereign name has been construed to not include its

territorial sea” (Majority Op. at 15) but the same can be

said of the majority. The majority creates a new canon of

statutory construction that any use of a formal country

name necessarily includes the nation’s territorial seas,

without citing a single instance where Congress has

stated this intent or where the Judiciary has construed a

statute’s use of a formal country name to include the

country’s territorial seas.

Dictionaries from 1991, when the Agent Orange Act

was passed, often defined countries in terms of square

miles of the land mass. 2 The same is true of maps, which

1 Moreover, there is no clear evidence that the now-

defunct Republic of Vietnam ever claimed a territorial sea

extending 12 nautical miles from its shore, including

during the Vietnam War. See Majority Op. at 10. Up

until 1988, the United States only claimed a three-mile

nautical belt as its territorial sea. See Territorial Sea of

the United States of America, Presidential Proclamation

5,928, 103 Stat. 2981, 2982 (Dec. 27, 1988); see also Unit-

ed States v. California, 332 U.S. 19, 33–34 (1947). There

is no reason to believe that the Republic of Vietnam, when

it existed, would have done otherwise.

2 See, e.g., Vietnam, RANDOM HOUSE WEBSTER’S

COLLEGE DICTIONARY (1991) (“a country in SE Asia,

comprising the former states of Annam, Tonkin, and

Cochin-China: formerly part of French Indochina; divided

into North Vietnam and South Vietnam in 1954 and

PROCOPIO v. WILKIE 7

reunified in 1976. [pop] 64,000,000; 126,104 sq. mi.

(326,609 sq. km)”); Vietnam, WEBSTER’S NINTH NEW

COLLEGIATE DICTIONARY (1991) (“country SE Asia in

Indochina; state, including Tonkin & N Annam, set up

1945–46; with S. Annam & Cochin China, an associated

state of French Union 1950–54; after civil war, divided

1954–75 at 17th parallel into republics of North Vietnam

(* Hanoi) & South Vietnam (* Saigon) reunited 1975 (*

Hanoi) area 127,207 sq mi (330,738 sq km), pop

52,741,766” (emphasis omitted)); Vietnam, WEBSTER’S

NEW GEOGRAPHIC DICTIONARY (1988) (“Republic, SE Asia,

divided 1954–75 into North Vietnam and South Vietnam .

. .”); United States of America, RANDOM HOUSE WEBSTER’S

COLLEGE DICTIONARY (1991) (“country made up of the

North American area extending from the Atlantic Ocean

to the Pacific Ocean between Canada and Mexico, togeth-

er with Alas. & Hawaii; 3,615,211 sq. mi. (9,376,614 sq.

km); pop. 240,856,000; cap. Washington; also called the

United States”); United States of America, WEBSTER’S

NINTH NEW COLLEGIATE DICTIONARY (2001) (“United

States”); United States, WEBSTER’S NINTH NEW

COLLEGIATE DICTIONARY (2001) (“a republic in the N

Western Hemisphere comprising 48 conterminous states,

the District of Columbia, and Alaska in North America,

and Hawaii in the N Pacific. 249,632,692; conterminous

United States, 3,615,122 sq. mi. (9,363,166 sq. km);

Washington, D.C. . . . Also called United States of Ameri-

ca”); United States of America commonly shortened to

United States, WEBSTER’S NEW GEOGRAPHIC DICTIONARY

(1988) (“Federal republic, North America, bounded on N

by Canada and (in Alaska) by the Arctic Ocean, on E by

the Atlantic Ocean, on S by Mexico and Gulf of Mexico,

and on W by Pacific Ocean; 3,615,123 sq. m. (excluding

Great Lakes); pop. (1980c) 226,545,805; * Washington,

D.C.”).

8 PROCOPIO v. WILKIE

typically show the land area of a country. 3 I am unaware

of any dictionary or standard map that defines countries

in terms of land plus the territorial sea, nor does the

majority point to any.

Congress has repeatedly shown that when it wants to

include a country’s territorial waters, it does so expressly.

See, e.g., Veterans’ Rehabilitation and Education

Amendments of 1980, Pub. L. No. 96-466, § 513(b), 94

Stat. 2171 (1980) (defining eligibility for educational

assistance and other service-connected benefits as “veter-

ans who during the Vietnam era served in Vietnam, in air

missions over Vietnam, or in naval missions in the waters

adjacent to Vietnam shall be considered to be veterans

who served in the Vietnam theatre of operations”); Tax

Reform Act of 1986, H. Rep. No. 99-841, at 599 (1986), as

reprinted in 1986 U.S.C.C.A.N. 4075, 4687 (clarifying that

“income attributable to services performed in the United

States or in the U.S. territorial waters is U.S. source.”); 18

U.S.C. § 2280(b)(1)(A)(ii) (criminalizing certain acts if

committed “in the United States, including the territorial

seas”). 4 This is true even when Congress uses a sovereign

3 See, e.g., NATIONAL GEOGRAPHIC, ATLAS OF THE

WORLD 18–19 (6th ed. 1990) [hereinafter, “ATLAS OF THE

WORLD”] (depicting the United States in terms of land

area); CENTRAL INTELLIGENCE AGENCY, THE WORLD

FACTBOOK 1991 324, 332 (1991). National Geographic’s

Atlas of the World also defined countries in terms of the

size of their land mass. See, e.g., ATLAS OF THE WORLD at

127 (“Socialist Republic of Vietnam Area: 329,556 sq km

(127,242 sq mi)”).

4 See also, e.g., 38 U.S.C. § 101(30) (referring to vet-

erans who “served in Mexico, on the borders thereof, or in

the waters adjacent thereto”); Omnibus Consolidated

Appropriations Act, 1997, Pub. L. No. 104- 208, Division

PROCOPIO v. WILKIE 9

nation’s formal name in the statute. See 10 U.S.C.

§§ 3756, 6258, 8756 (extending the Korea Defense Service

Medal to veterans who “served in the Republic of Korea or

the waters adjacent thereto”). The underlying assump-

tion in each of these statutes is that the use of the country

name is not sufficient to include territorial or adjacent

waters. The majority’s contrary conclusion renders Con-

gress’s express inclusion or exclusion of territorial seas in

these statutes superfluous, which is “at odds with one of

the most basic interpretive canons, that ‘“[a] statute

should be construed so that effect is given to all its provi-

sions, so that no part will be inoperative or superfluous,

void or insignificant.”’” Corley v. United States, 556 U.S.

303, 314 (2009) (quoting Hibbs v. Winn, 542 U.S. 88, 101

(2004) (quoting 2A N. Singer, Statutes and Statutory

Construction § 46.06 pp. 181–186 (rev. 6th ed. 2000))).

And the majority’s attempt to explain a few of these

examples away by creating a distinction between Con-

C, § 604, 110 Stat. 3009 (1996) (codified at 8 U.S.C.

§ 1158(a)(1)) (“[a]ny alien who is physically present in the

United States or who arrives in the United States

(whether or not at a designated port of arrival and includ-

ing an alien who is brought to the United States after

having been interdicted in international or United States

waters), irrespective of such alien’s status, may apply for

asylum in accordance with this section . . . .”); 16 U.S.C.

§ 2402(8) (defining “import” to mean “to land on, bring

into, or introduce into, or attempt to land on, bring into or

introduce into, any place subject to the jurisdiction of the

United States, including the 12-mile territorial sea of the

United States”). Compare 26 U.S.C. § 638(1) (“United

States” includes “subsoil of those submarine areas which

are adjacent to the territorial waters of the United

States”), with id. at § 7701(a)(9) (“United States” includes

“only the States and the District of Columbia”).

10 PROCOPIO v. WILKIE

gress’s use of the term “waters adjacent” versus territorial

waters or seas is speculative and entirely unconvincing.

See Majority Op. at 14–15.

By enacting the Agent Orange Act, Congress intended

to help Vietnam veterans who had manifested certain

specified diseases as a result of having been exposed to

Agent Orange. See 38 U.S.C. § 1116. The VA has ex-

plained that “virtually all herbicide spraying in Vietnam,

which was for the purpose of eliminating plant cover for

the enemy, took place over land.” 73 Fed. Reg. 20566–01,

20568 (Apr. 16, 2008) (citing Jeanne Mager Stellman et

al., The extent and patterns of usage of Agent Orange and

other herbicides in Vietnam, 422 NATURE 681, 681–687

(2003)). It therefore stands to reason that Congress

would restrict the service connection presumption to those

veterans who were actually exposed to Agent Orange on

the landmass of Vietnam. 5 Accord Haas, 525 F.3d at

1192–93. Congress did not possess any information

suggesting that herbicides had been used up to three or

twelve nautical miles from the shore.

The majority errs in dismissing the relevance of

§§ 3.311a and 3.313, regulations that existed before the

5 Mr. Procopio counters this understanding with

another theory—that “ships in the near-shore marine

waters collected water that was contaminated with the

runoff from areas sprayed with Agent Orange,” and the

“[s]hipboard distillers converted the marine water into

water for the boilers and potable water by vaporizing

them and condensing the liquid” in a way that “enhanced

the effect of Agent Orange.” Appellant En Banc Op. Br. at

19. But Mr. Procopio presents no evidence that Congress

at the time of the Agent Orange Act was aware of or had

considered the potential dangers from contaminated

runoff.

PROCOPIO v. WILKIE 11

enactment of § 1116. The majority suggests that Con-

gress was enacting the statute against a background in

which the existing regulations covered territorial waters,

but it misunderstands the history behind each rule.

Regulation 3.311a was promulgated in 1985 to implement

the Veterans’ Dioxin and Radiation Exposure Compensa-

tion Standards Act, Public Law 98–542, 98 Stat. 2725,

2725–34 (1984) (”1984 Dioxin Act”). Section 5 of the 1984

Dioxin Act directed the VA to establish guidelines

grounded in “sound scientific and medical evidence” that

require the veterans’ death or disability be based on

actual exposure to herbicides containing dioxin. Id. at

2727–28. The 1984 Dioxin Act noted that there was

evidence that specific diseases—chloracne, porphyria

cutanea tarda, and soft tissue sarcoma—were linked to

exposure to dioxin-containing herbicides. Id. at 2725.

Thereafter, the VA promulgated § 3.311a. The § 3.311a

rulemaking notice noted that herbicides “were used

during the Vietnam conflict to defoliate trees, remove

ground cover, and destroy crops,” and that many veterans

“were deployed in or near locations where Agent Orange

was sprayed.” Adjudication of Claims Based on Exposure

to Dioxin or Ionizing Radiation, 50 Fed. Reg. 15848, 15849

(Apr. 22, 1985). Because the regulation required exposure

to dioxin-containing herbicides and herbicides had been

sprayed on Vietnam’s landmass, the VA imposed a foot-

on-land requirement for veterans that served offshore or

in locations other than Vietnam:

“Service in the Republic of Vietnam” includes ser-

vice in the waters offshore and service in other lo-

cations, if the conditions of service involved duty

or visitation in the Republic of Vietnam.

38 C.F.R. § 3.311a(b) (1986). The natural reading of the

regulation’s use of the conjunctive “and” confirms that the

prepositional phrase applied both to offshore veterans and

those stationed outside of Vietnam.

12 PROCOPIO v. WILKIE

The VA promulgated § 3.313 for an entirely different

purpose. Contrary to § 3.311a, § 3.313 was not linked to

herbicide exposure, but rather was based on a 1990 CDC

study that determined that all Vietnam veterans—

including those that served on the landmass as well as

those who served offshore—had a higher incidence rate of

non-Hodgkin’s lymphoma than non-Vietnam veterans.

Claims Based on Service in Vietnam, 55 Fed. Reg. 43123–

01 (Oct. 26, 1990). The 1990 study further concluded that

no correlation existed between non-Hodgkin’s lymphoma

and exposure to Agent Orange. Id. The VA therefore

worded § 3.313 specifically to apply to all offshore veter-

ans, without a foot-on-land requirement:

Service in Vietnam includes service in the waters

offshore, or service in other locations if the condi-

tions of service involved duty or visitation in Vi-

etnam.

38 C.F.R. § 3.313(a) (1990). The natural reading of the

regulation’s use of the disjunctive “or” and movement of

the comma to offset “offshore” from the rest of the sen-

tence confirms that the offshore veterans were not subject

to a foot-on-land requirement. While the grammatical

differences between the two regulations may appear to be

small, they set forth critical distinctions driven by the

different purposes between the regulations.

When the VA promulgated these two regulations,

their meanings were not ambiguous. The ambiguity arose

when Congress appeared to codify both VA regulations in

the Agent Orange Act, one regulation with a foot-on-land

requirement and one without. 137 Cong. Rec. H719-01

(1991) (“[T]he bill would . . . codify decisions the Secretary

of Veterans Affairs has announced to grant presumptions

of service connection for non-Hodgkin’s lymphoma and

soft-tissue sarcoma in veterans who served in Vi-

etnam . . . .”). The Agent Orange Act used the term

PROCOPIO v. WILKIE 13

“served in the Republic of Vietnam” without defining the

term:

[A] disease specified in paragraph (2) of this sub-

section becoming manifest as specified in that

paragraph in a veteran who, during active mili-

tary, naval, or air service, served in the Republic

of Vietnam during the period beginning on Janu-

ary 9, 1962, and ending on May 7, 1975;

38 U.S.C. § 1116(a)(1)(A).

As we concluded in Haas, § 1116’s use of “Republic of

Vietnam” rather than “Vietnam” counsels against the

majority’s reading of the statute because the language

more closely tracks that used in § 3.311a, which imposed

the foot-on-land requirement on offshore veterans. Haas,

525 F.3d at 1185–86. A congressional choice to codify the

foot-on-land requirement from § 3.311a would have been a

reasonable one, since both § 3.311a and the Agent Orange

Act—unlike § 3.313—required that the service connection

be based on actual exposure to herbicides during the war.

Moreover, “Congress included non-Hodgkin’s lymphoma

[from § 3.313(a)] on the list of diseases specifically identi-

fied in the Agent Orange Act based on evidence that,

contrary to the conclusion of the 1990 CDC study, non-

Hodgkin’s lymphoma was in fact associated with exposure

to Agent Orange.” Id. at 1179 n.1 (citing Report to the

Secretary of Veterans Affairs on the Association Between

Adverse Health Effects and Exposure to Agent Orange,

reprinted in Links Between Agent Orange, Herbicides, and

Rare Diseases: Hearing before the Human Resources and

Intergovernmental Relations Subcomm. of the Comm. on

Gov't Relations, 101st Cong., 2d Sess. 22, 41 (1990)).

Against this regulatory backdrop prior to the codification

of service connection presumption for certain diseases

through the Agent Orange Act, it is far from clear that

Congress intended § 1116 to encompass veterans who

served in offshore waters up to 12 nautical miles away

14 PROCOPIO v. WILKIE

from Vietnam. During that lead-up to the Agent Orange

Act, the majority cites no evidence that Blue Water Navy

veterans had been receiving service connection presump-

tions for any of these diseases listed in § 3.311a.

The majority’s conclusion that “Republic of Vietnam”

in § 3.311a “covers everyone whose service included duty

or visitation ‘in the Republic of Vietnam,’ which, under

background law, embraces the territorial sea” (Majority

Op. at 12) is incorrect, because it assumes that the VA

also bought into the majority’s newly announced principle

that reciting a sovereign’s formal name in a statute or—

for purposes of § 3.311a—a regulation, necessarily in-

cludes the country’s territorial seas. The majority cites no

case law or other support for this assumption. Nor does

the majority cite support for its subsequent conclusion

that § 3.311a encompasses “only a subset” of offshore

veterans—those that served on land, within the internal

waterways, or within the territorial seas of Vietnam. See

id. There is no evidence in the regulation or its history

that the VA intended this interpretation.

I also disagree with the majority’s conclusion that

§ 1116’s language specifying that the presumption is

applicable to veterans regardless of what military branch

they served in (i.e., “active military, naval, or air service

in the Republic of Vietnam”) has any bearing on whether

offshore veterans are subject to a foot-on-land require-

ment. See Majority Op. at 10. A veteran who served in

the Navy but spent time on the landmass of Vietnam is no

less likely to have a service connection due to exposure to

Agent Orange than a veteran who served on the land in

Vietnam in the Army. Moreover, this statutory phrase is

commonly used in other sections of Title 38, suggesting

that Congress did not have something particular in mind

as to how it repeated this phrase in § 1116. See, e.g., 38

U.S.C. § 1110 (entitling certain veterans to compensation

for disability, injury, or disease contracted or aggravated

“in the active military, naval, or air service, during a

PROCOPIO v. WILKIE 15

period of war”); id. § 1112(b) (establishing presumption of

service connection for prisoners of war where condition

became manifest “after active military, naval, or air

service”).

After reviewing the applicable provisions, it is not

clear to me that Congress unambiguously intended

“served in the Republic of Vietnam” to include Blue Water

veterans. Although international law establishes that

sovereign nations have dominion and control over their

territorial seas, a U.S. veterans’ benefits statute has

nothing to do with regulating interactions with a foreign

sovereign. And the Agent Orange Act’s legislative history

provides no support for the majority’s conclusion. I there-

fore believe, as this court concluded in Haas, that the

statutory phrase “Republic of Vietnam” is ambiguous

when applied to service in the waters adjoining the land-

mass of Vietnam. See Haas, 525 F.3d at 1184.

As for the liberal construction principle known as the

pro-veteran canon, neither the Supreme Court nor this

court has applied it at step one of Chevron as a means for

deeming Congress’s intent clear for an otherwise unclear

statute. But even if it were relevant to the step one

inquiry, I do not view this canon, given its indeterminate

nature, as compelling the conversion of this ambiguous

statute into an unambiguous one.

The significance of the policy choice and budget im-

pact that the court makes today further underscores why

more compelling indicia are required before concluding

that Congress clearly intended the majority’s statutory

interpretation. Congress recently estimated that it would

need to allocate an additional $1.8 billion during fiscal

year 2019, and $5.7 billion over 10 years, to fund the Blue

Water Navy Vietnam Veterans Act of 2018, a bill that

would have explicitly expanded the presumption of Agent

Orange exposure to Blue Water Navy veterans. See Blue

Water Navy Vietnam Veterans Act of 2018: Hearing on

16 PROCOPIO v. WILKIE

H.R. 299 Before the S. Comm. on Veterans’ Affairs, 115th

Cong. 1, 4 (2018) (statement of Dr. Paul R. Lawrence,

Under Secretary, Benefits Department, Veterans’ Affairs).

The bill passed the House unanimously in 2018 but failed

to pass the Senate before the end of the 2018 session, due,

in part, to concerns over the cost of expanding the pre-

sumption of service connection. It is not for the Judiciary

to step in and redirect such a significant budget item—

rather, that policy choice should be left to Congress.

I do not reach the question of whether Haas should be

reaffirmed insofar as it held that at step two of Chevron,

deference was owed to the interpretation of the statute by

the VA. See id. at 1184, 1192–93. Relying on principles of

Auer deference, the Haas panel held that the VA had

interpreted the statute to preclude coverage of Blue Water

Navy veterans who had not set foot on the Vietnam

landmass. See id. at 1186–90, 1197. The court also held

that the interpretation was reasonable in the light of the

evidence available to the VA at the time it made its

interpretation. Id. at 1195, 1197. The court declined to

consider other evidence not considered by the VA. Id. at

1194.

In ordering rehearing en banc we asked that the par-

ties address the question of ambiguity. 6 In accordance

with our order the parties have not, in fact, fully ad-

6 See Order Granting En Banc Rehearing at 2, Pro-

copio v. Wilkie, No. 17-1821 (Fed. Cir. Aug. 16, 2018), ECF

No. 63 (ordering the parties to brief the following issue:

“Does the phrase ‘served in the Republic of Vietnam’ in 38

U.S.C. § 1116 unambiguously include service in offshore

waters within the legally recognized territorial limits of

the Republic of Vietnam, regardless of whether such

service included presence on or within the landmass of

the Republic of Vietnam?”).

PROCOPIO v. WILKIE 17

dressed the step two Chevron issues. At the same time

there have been relevant developments that bear on that

question. The Supreme Court has recently granted

certiorari to address the question of whether Auer should

be overruled. 7 There have been additional studies of the

issue of Blue Water Navy diseases attributable to dioxin

exposure, and the issue continues to be studied, with a

new report predicted to become available next April.

Under these circumstances, I think it premature to ad-

dress Haas’ treatment of step two of Chevron.

7 See Order Granting Certiorari, Kisor v. Wilkie,

No. 18-15, ___ S. Ct. ___ (Dec. 10, 2018) (“The petition for

writ of certiorari is granted limited to Question 1 present-

ed by the petition”); Cert. Pet., Kisor v. Wilkie, No. 18-15

(Jun. 29, 2018) (“1. Whether the Court should overrule

Auer and Seminole Rock.”).