Petition for Writ of Certiorari — Alfred Procopio, Jr., Petitioner v. Robert Wilkie, Secretary of Veterans Affairs
Supreme Court briefDec 24, 2019
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i
QUESTION(S) PRESENTED
I.
Whether This Court Should Grant Certiorari to
Resolve an Important Point of Law Concerning
the Applicability of the “Substantially Justified”
Standard In Adjudicating Petitions for
Attorneys Fees Under the Equal Access to
Justice Act In Veterans Benefits Cases.
II.
Whether This Court Should Grant Certiorari to
Resolve an Important Point of Law and Judicial
Conflict Narrowing the Definition of
“Substantially Justified,” to Exclude Cases
Where the Government Was Clearly Wrong.
ii
PARTIES TO THE PROCEEDING
All parties to the proceeding are listed on the
cover.
STATEMENT OF RELATED CASES
None.
iii
TABLE OF CONTENTS
Page
QUESTION(S) PRESENTED ........................................................... i
RULE 14.1(B)(i) & (ii) ..................................................................... ii
TABLE OF AUTHORITIES ............................................................. v
OPINIONS BELOW ......................................................................... 1
JURISDICTION ............................................................................... 1
RELEVANT PROVISIONS INVOLVED ......................................... 1
STATEMENT .................................................................................. 4
I.
This Court Should Grant Certiorari to
Resolve an Important Point of Law
Concerning the Applicability of the
“Substantially Justified” Standard In
Adjudicating Petitions for Attorneys Fees
Under the Equal Access to Justice Act In
Veterans Benefits Cases. ............................................. 7
A.
The Court Below’s Interpretation of
“Substantially Justified” Does Not
Comport With the Intent of Congress. ................... 7
B.
In Veterans Matters, the Court Below
Should Interpret Statutes Liberally In
Favor of the Veteran As Required By the
Pro-Veteran Canon of Construction........................9
II.
This Court Should Grant Certiorari to
Resolve an Important Point of Law and
Judicial Conflict Narrowing the Definition of
“Substantially Justified,” to Exclude Cases
Where the Government Was Clearly Wrong .......... 11
iv
A.
The VA Was Placed On Notice That Their
Position Was Not Substantially Justified................11
B.
The Failure of the Haas Court to Use the
Pro-Veteran
Canon
of
Statutory
Construction Was Sufficient to Place the
VA On Notice That Their Litigation
Position Was Not Substantially Justified. ..............12
C.
The Clearly Erroneous Haas Decision
Does Not Sustain the VA Position as
Substantivally Justified..............................................13
CONCLUSION ............................................................................... 16
APPENDIX
Circuit Court Decision on Fees ............................................ 1a
Circuit Court Decision on Merits ......................................... 9a
Relevant Provisions Involved ............................................. 62a
v
TABLE OF AUTHORITIES
Page
CASES
Boone v. Lightner, 319 U.S. 561(1943).................................. 4, 10
Cmty. Heating & Plumbing Co. v. Garret, 2 F.3d
1143 (Fed.Cir. 1993)........................................................... 14, 15
DGR Associates, Inc. v. United States, 690 F.3d 1335
(Fed. Cir. 2012)......................................................................... 13
Doty v. United States, 71 F.3d 384 (Fed.Cir.1995)................. 13
Fishpole v. Sullivan Drydock & Repair Corp., 328
U.S. 275 (1946) ......................................................................... 10
Flora v. United States, 357 U.S. 63, 78 S. Ct. 1079
(1958) ............................................................................................ 7
Gray v. McDonald 27 Vet. App. 313 (2015)...................... 11, 12
Haas v., Peake, 525 F.3d 1168 (Fed. Cir. 2008) ..................... 4,6
Haas v. Peake, 544 F.3d 1306 (Fed. Cir. 2008) ............... 4,12,13
Halverson v. Slater, 206 F.3d 1205 (D.C.Cir.2000) ................ 14
Henderson ex rel. Henderson v. Shinseki, 131
S.Ct.1197 (2011) ....................................................................... 4,6
Johnson v. Robison, 415 U.S. 361(1974) .................................. 10
Marcus v. Shalala, 17 F.3d 1033 (7th Cir.1994) ..................... 14
Nielsen v. Prep., 139 S. Ct. 954, 203 L. Ed. 2d 333
(2019) ............................................................................................ 7
Norfolk Dredging Co., Inc. v. United States, 375 F.3d
1106 (Fed. Cir. 2004)................................................................ 15
Pierce v. Underwood, 487 U.S. 552 (1988) ...................... 7,8,9,14
Procopio v. Shinseki, 26 Vet.App. 76 (2012) ............................. 5
Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019) ............. 1,11
Regan v. Taxation with Representation, 461 U.S.
540 (1983) ................................................................................... 10
Riddle v. Sec’y of Health & Human Servs., 817 F.2d
1238 (6th Cir. 1987)...................................................................... 8
Role Models Am., Inc. v. Brownlee, 353 F.3d 962
(D.C.Cir.2004) ........................................................................... 14
United States v. California, 332 U.S. 19, 67 S.Ct.
1658 (1947) ................................................................................. 11
vi
STATUTES
28 U.S.C. § 1254..............................................................................1
28 U.S.C. § 2412..............................................................................5
38 U.S.C. § 1116..............................................................................4
RULES
Rule 10 of the Rules of the Supreme Court of the
United States..................................................................................1
Rule 13.1 of the Rules of the Supreme Court of the
United States .................................................................................1
Rule 29.4 of the Rules of the Supreme Court of the
United States..................................................................................1
OTHER
Convention on the Territorial Sea and Contiguous
Zone, [1958] 15 U.S.T. 1607, T.I.A.S. No. 5639........................11
H.R. Rep. No. 100–963 (1988), reprinted in 1988
U.S.C.C.A.N. 5782, 5794–95 ........................................................3
https://www.va.gov/opa/publications/celebrate/vamot
to.pdf, ............................................................................................13
S. Rep. No. 96-253 (1979) ..............................................................8
Webster’s New Int’l Dictionary 2514 (2d ed. 1945) ..................6
1
OPINIONS BELOW
The Opinion of the Court of Appeals for the
Federal Circuit denying the petition for attorneys fees
under the Equal Access to Justice Act is unpublished
and shown in Appendix 1a. The underlying decision is
Procopio v. Wilkie, which is reported at 913 F.3d 1371
(Fed. Cir. 2019) and as shown in Appendix 9a.
.
JURISDICTION
These issues are properly before the Supreme
Court of the United States pursuant to 28 U.S.C. § 1254
and Rule 10 of the Supreme Court rules. The final
judgment of the United States Court of Appeals for the
Federal Circuit denying the petition was entered on
September 25, 2019. Appendix 1a. The submission for
filing is within the 90 day requirement of Rule 13.1 of the
Supreme Court Rules.
This proceeding does not
question the constitutionality of any Act of Congress or
any State Legislature. Consequently, the provisions of
Rule 29.4(b) and (c) do not apply.
RELEVANT PROVISIONS INVOLVED (see appendix)
INTRODUCTION
Congress has long required that the attorneys
fees for meritorious cases that rest on the backs of
everyday Americans be shifted to the United States
when, as here, the government has been proven to be in
error. Al Procopio is a disabled veteran who has been
engaged in a decades long fight to obtain his earned
benefits. Fighting against the entire weight of the
federal government, Procopio finally prevailed by
2
successfully arguing the error of the Secretary’s position.
Using the precepts of international law and statutory
construction, Procopio overcame the odds and gained
benefits for himself and up to 90,000 additional veterans.
Applying an over technical interpretation of the
“substantially justified” language of the Equal Access to
Justice Act goes against principals of fundamental
fairness and the intent of Congress. This is especially
true in a veteran’s case, where Congress and this Court
have dictated that any ambiguity in statutory language
should be interpreted in favor of the veteran. Veterans
should be encouraged to challenge unreasonable and
inappropriate VA interpretations and not be punished
by having to bear the entire burden of attorneys fees.
Often proceeding pro se or represented by sole
practitioners, the veteran is left to face the
overwhelming barrage of legal theories brought by an
army of government attorneys. Hiring an experienced
veterans law attorney works to even the playing field.
When this uneven battle results in a victory for the
veteran, the government should be required to assume
some or all of the attorneys fees.
While existing precedent may be a defense in an
EAJA case, it is not an automatic exclusion for the
benefit of the government.
When, as here, the
government position was clearly wrong there is no basis
to find substantial justification.
Since World War II, the United States has
promoted a special relationship with its veterans. In
enacting the Veteran’s Judicial Review Act and
Veterans' Benefits Improvement Act of 1988, the
legislative history noted:
Congress has designed and fully intends to
maintain a beneficial non-adversarial system of
3
veterans benefits. This is particularly true of
service-connected disability compensation where
the element of cause and effect has been totally
by-passed in favor of a simple temporal
relationship between the incurrence of the
disability and the period of active duty.
I[m]plicit in such a beneficial system has been an
evolution of a completely ex-parte system of adjudication
in which Congress expects [the DVA] to fully and
sympathetically develop the veteran's claim to its
optimum before deciding it on the merits. Even then,
[the DVA] is expected to resolve all issues by giving the
claimant the benefit of any reasonable doubt. In such a
beneficial structure there is no room for such adversarial
concepts as cross examination, best evidence rule,
hearsay evidence exclusion, or strict adherence to
burden of proof. H.R. Rep. No. 100–963, at 13 (1988),
reprinted in 1988 U.S.C.C.A.N. 5782, 5794–95 (emphasis
added).
Here, the court below has taken an inelastic and
rigid approach which may jeopardize judicial review of
the Secretary’s arbitrary decisions by limiting
compensation for attorneys. Without allowing or even
encouraging attorney participation in the veterans
benefits system, veterans will be forced to accept the
dictates of the federal bureaucracy without recourse.
This not only strips veterans of meaningful review, but
creates conflicts with other Circuits. This Court’s action
is required to resolve between the Federal Circuit and
other Circuit Courts of Appeal.
4
STATEMENT
In 1991, Congress passed the Agent Orange Act,
codified at 38 U.S.C. § 1116, granting a presumption of
service connection for certain diseases to veterans who
“served in the Republic of Vietnam.” Since 2002, the VA
has refused to grant the presumption of exposure to
“Blue Water Navy” veterans who served in bays,
harbors and the territorial seas of the Republic of
Vietnam.1 Since then “Blue Water Navy” veterans like
Al Procopio have fought a recalcitrant Department of
Veterans Affairs in Congress and the courts for their
earned benefits. In Haas v. Peake, 525F.3d 1168 (Fed.
Cir. 2008), a panel of the court below ignored the plain
meaning of the statute and the pro-claimant canon
recognized by Boone v. Lightner, 319 U.S. 561, 575
(1943). In a 2-1 decision the Haas court below applied
Chevron2 deference to the VA’s decision to deny the
presumption of exposure to those who served off the
coastline. On rehearing, the Haas Court noted that they
did not apply the pro-veteran canon of construction
required by Henderson ex rel. Henderson v. Shinseki 131
S.Ct.1197 (2011). Haas v. Peake, 544 F.3d 1306, 1308
(Fed. Cir 2008). Additionally, Haas only addressed the
area bounded by the Vietnam Service Medal
demarcation line, and did not specifically speak to the
territorial sea of the Republic of Vietnam.
1
reviously the crews of ships operating within the Vietnam Service
Medal demarcation area, approximately 100 nautical miles from
shore, were granted the presumption.
2
The Chevron Court found that considerable weight should be
accorded to an executive department's construction of a statutory
scheme it is entrusted to administer, and the principle of deference
to administrative interpretations. Chevron, U.S.A., Inc. v. Nat. Res.
Def. Council, Inc., 467 U.S. 837, 844 (1984).
5
In the instant case, an en banc Court overruled
Haas in a 9-2 decision and found for Mr. Procopio.
Appellant hereby filed an application for an award
under the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412(d), for reasonable attorneys’ fees and
expenses incurred by Appellant in this litigation.
The veteran served in the U.S. Navy from
September 1963 to August 1967. He was assigned to the
U.S.S. Intrepid, (CV-11), an aircraft carrier, from
November 1964 through July 1967. In July 1966, the
Intrepid was deployed off the coast of Vietnam within,
the territorial sea of that nation.
In October 2006, Mr. Procopio sought entitlement
to service connection for diabetes mellitus. In October
2007, Mr. Procopio sought entitlement to service
connection for prostate cancer. Both claims were denied
and Mr. Procopio submitted his Notice of Disagreement
(NOD).
Mr. Procopio's claims were subsequently
transferred to the Board of Veterans Appeals. In
September 2010, the Board held a hearing. In March
2011, the Board issued a decision denying service
connection for prostate cancer and diabetes, based on
herbicide exposure. This decision was based on their
interpretation that Mr. Procopio "did not serve or visit
on-shore in Vietnam" and was "not exposed to herbicide
while on active duty."
Mr. Procopio appealed the Board's decision to the
Court of Veterans Claims and, in October 2012, the
Court vacated and remanded the Board's decision.
Procopio v. Shinseki, 26 Vet.App. 76 (2012). A panel of
the court below held that remand was warranted
because Mr. Procopio was not provided with an adequate
Board hearing.
6
In March 2013, the Board remanded Mr.
Procopio's claims for further adjudication and
development, to include additional VA notice.
Additional evidence was received, including the deck log
book of the U.S.S. Intrepid, showing the ship's
deployment off the coast of Vietnam commencing on July
1, 1966, at Yokosuka, Japan, and ending on July 31, 1966,
at Dixie Station, in the South China Sea to include the
territorial sea of the Republic of Vietnam. A hearing
was held on November 13, 2014.
In July 2015, the Board issued the decision
denying both claims. The court below affirmed in a nonprecedential decision on December 12, 2016. This appeal
followed.
On April 26, 2017, Appellant filed a Petition for an
en banc hearing. The basis of the Petition was the
Appellant’s intent to argue that Haas v. Peake, 525 F.3d
1168 (Fed. Cir. 2008) should be overruled. Appellant
argued that Haas should be overruled or limited to its
facts because it violated the plain meaning of the statute
and did not apply the pro-claimant canon of statutory
construction reiterated by Henderson v. Shinseki 131
S.Ct. 1197, 1206 (2011). On June 12, 2017, the court
denied the petition, after vigorous opposition by the
Secretary.
Oral argument was held on May 4, 2018 before a
panel of three Judges. Subsequently the Court ordered
supplemental briefing. On August 16, 2018, the Court
sua sponte ordered en banc consideration. Another oral
argument was heard on December 7, 2018. The opinion
reversing and remanding the case was issued on January
29, 2019.
On September 25, the court below denied
petitioner’s request for attorneys fees under EAJA
7
despite a strong dissent by Judge O’Malley. Appendix
3a-8a.
REASONS FOR GRANTING THE PETITION
I. This Court Should Grant Certiorari to
Resolve an Important Point of Law
Concerning
the
Applicability
of
the
“Substantially
Justified”
Standard
In
Adjudicating Petitions for Attorneys Fees
Under the Equal Access to Justice Act In
Veterans Benefits Cases.
A. The Court Below’s Interpretation of
“Substantially
Justified”
Does
Not
Comport With the Intent of Congress.
In matters of statutory construction the Court’s
duty is to give effect to the intent of Congress beginning
with the literal meaning of words employed. Flora v.
United States, 357 U.S. 63, 65, 78 S. Ct. 1079, 1081, 2 L.
Ed. 2d 1165 (1958), on reh'g, 362 U.S. 145, 80 S. Ct. 630, 4
L. Ed. 2d 623 (1960). At issue here is the definition that
should be ascribed to the term “substantially justified.”
This Court has held that the government’s position
would satisfy a reasonable person.” Pierce v.
Underwood, 487 U.S. 552, 565 (1988). Effectively the
Court has adopted an objective or “reasonable person”
standard.
This rule seems to fly in the face of the plain
meaning of the statute, however. It is well settled that
“[w]ords are to be given the meaning that proper
grammar and usage would assign them. Nielsen v.
Prep., 139 S. Ct. 954, 965, 203 L. Ed. 2d 333 (2019).
8
As Judge O’Malley noted in her concurrence,
Congress could have, but did not, adopt a reasonableness
standard. Appendix 4a. As Judge O’Malley pointed out,
the Senate Judiciary Committee considered and rejected
an amendment” to replace “substantially” with
“reasonably.” Pierce, 487 U.S. at 576 (Brennan, J.,
concurring) (citing S. Rep. No. 96-253, at 8 (1979)).
The reasoned O’Malley concurrence went on to
say:
I would instead adopt a standard that breathes
life back into the text and purpose of the EAJA.
At the very least, I would adopt a standard that
recognizes that the statutory language requires
something more than reasonableness. The term
“substantially” precedes and thus modifies
“justified.” Accordingly, the word “substantially”
must do some work in defining precisely how
justified the government’s position must be. The
Supreme Court has noted that the word
“substantially” can have two definitions.
Pierce, 487 U.S. at 564.
It can mean
“[c]onsiderable in amount, value, or the like;
large.” Id. (citing Webster’s New Int’l Dictionary
2514 (2d ed. 1945)). Or, it can mean “[t]hat is such
in substance or in the main,” id., as in, having a
“firm foundation,” id. at 577 (Brennan J.,
concurring). Notably, neither definition invokes a
reasonableness standard and instead connotes
something more than mere reasonableness. In
fact, “‘reasonable’ simply means ‘not absurd,’ ‘not
ridiculous,’ ‘not conflicting with reason.’” Riddle v.
Sec’y of Health & Human Servs., 817 F.2d 1238
(6th Cir. 1987) (Jones, J.) (quoting 1 Webster’s
9
Third New Int’l Dictionary Unabridged 1892
(1965)). And, as Justice Brennan noted in his
concurrence in Pierce, “substantially justified”
reflects Congress’s attempt to occupy a middle
ground between those who would award fees
whenever the government loses and those who
would award fees only when the government’s
position was not reasonable. 487 U.S. at 578
(Brennan J., concurring) (citing S. Rep., at 2–3).
Thus, the plain meaning of the statutory text
requires that the government’s position be
justified by a considerable amount or, at least,
that it have a solid foundation in substance.
(Appendix 4a-5a).
Here the VA Secretary denied earned benefits to
tens of thousands of veterans based on a conducted
interpretation of the Agent Orange Act that violated
international law and this Court’s precedent. They
disregard the canons of statutory interpretation,
recognized by this Court, in their opposition to this
request. Unfortunately, the court below took a narrow
view of the
B. In Veterans Matters, the Court Below
Should Interpret Statutes Liberally In
Favor of the Veteran As Required By the
Pro-Veteran Canon of Construction.
The pro-claimant or pro-veteran canon has been
repeatedly recognized as an accepted canon of statutory
construction. This Court unanimously re-affirmed “the
canon that provisions for benefits to members of the
Armed Services are to be construed in the beneficiaries'
favor.” Henderson ex rel. Henderson v. Shinseki 561 U.S.
10
428, 441, 131 S.Ct. 1197, 1206 (2011). See, also, Gamble v.
Shinseki, 576 F.3d 1307, 1317 (Fed. Cir.2009). The
Gamble court described the process as uniquely proclaimant.” Id. at 1316.
Since the days of World War II, the United
States, has properly recognized that “legislation is to be
liberally construed for the benefit of those who left
private life to serve their country in its hour of great
need.” Fishpole v. Sullivan Drydock & Repair Corp., 328
U.S. 275, 285 (1946) (citing Boone v. Lightner, 319 U.S.
561, 575 (1943). Military veterans have “been obliged to
drop their own affairs and take up the burdens of the
nation” (Boone, 319 U.S. at 575), “subjecting themselves
to the mental and physical hazards as well as the
economic and family detriments which are peculiar to
military service” (Johnson v. Robison, 415 U.S. 361, 380
(1974)). The United States adopted the “long standing
policy of compensating veterans for their past
contributions by providing them with numerous
advantages.” Regan v. Taxation with Representation,
461 U.S. 540, 550-551 (1983). This led to the pro-claimant
canon which requires interpretative ambiguities to be
resolved in favor of the beneficiaries. See, e.g., Brown v.
Gardner, 513 U.S. 115, 118 (1994).
Accordingly, even if there was some ambiguity to
the term “substantially justified” any ambiguity must be
resolved in favor of the veteran.
Nothing in this Court’s jurisprudence limits the
pro-veteran canon. It’s application to EAJA requests is
an appropriate utilization of the canon. Requiring the
government to bear the cost or a substantial portion of
the cost of proving them wrong, is fundamentally fair
and may help them to engage in a more pro-veteran
attitude when interpreting statutes and regulations.
11
Consequently the Court should grant certiorari to
resolve this important point of law.
II. This Court Should Grant Certiorari to
Resolve an Important Point of Law and
Judicial Conflict Narrowing the Definition of
“Substantially Justified,” to Exclude Cases
Where the Government Was Clearly Wrong.
A. The VA Was Placed On Notice That Their
Position Was Not Substantially Justified.
In her concurrence Judge O’Malley noted that the
Secretary’s position was “plainly wrong.” Appx 6a. The
Procopio court, sitting en banc clearly stated that
“Congress 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
Vietnam.” He did.” Procopio v. Wilkie, 913 F.3d 1371,
1375 (Fed. Cir. 2019). There was no ambiguity in the
Court’s finding.
The Convention on the Territorial Sea and
Contiguous Zone, [1958] 15 U.S.T. 1607, T.I.A.S. No.
5639 clearly states that the territorial sea was part of the
sovereign territory of the nation state. The pertinent
provisions of the Convention were adopted by this Court
in United States v. California, 332 U.S. 19, 33, 67 S.Ct.
1658, 91 L.Ed. 1889 (1947).
Additionally, Gray v. McDonald 27 Vet.App. 313
(2015) redefined the Blue Water Navy problem for the
VA. The Gray court has found that the Secretary acted
irrationally in excluding the bays and harbors from the
presumption of exposure. The VA had historically
argued that spraying took place only over land and not
over the water areas. In doing so, they limited the
12
presumption of exposure to those who set foot on the
ground or entered the rivers.
Gray gives rise to the question of where the
inland river ends. Certainly there is an area where the
fresh water of the river mixes with the salt water of the
sea. While the salinity will increase as the river
discharge plume goes farther and farther from land, the
VA failed to ascertain the point where the river
discharge ceases. That plume can be significant and
actually can extend for miles.
In Gray, the veterans court found the VA
definition of inland waters irrational. Gray, 27 Vet.App.
At 326. The Gray court went on to vacate the regulation
and direct the Secretary to ‘exercise its fair and
considered judgment to define inland waterways in a
manner consistent with the regulation's emphasis on the
probability of exposure.” Id at 327. The Secretary
defied this invitation and doubled down on his previous
exclusions. Accordingly the rule prior to Procopio today
remained “boots on the ground” without any rational
analysis of where the river discharge ends.
Accordingly, the VA was placed on notice that
their “boots on the ground” policy was erroneous. Their
arbitrary decision to pursue this irrational policy in the
Procopio case was not justified, substantially or
otherwise.
B.
The Failure of the Haas Court to Use the
Pro-Veteran
Canon
of
Statutory
Construction Was Sufficient to Place the
VA On Notice That Their Litigation
Position Was Not Substantially Justified.
As discussed supra, this Court has historically
found that when dealing with veterans issues,
13
interpretations of statutes and regulations should be
construed in favor of the veteran. In Haas, supra, the
Federal Circuit specifically refused to apply the proveterans canon. Haas v. Peake, 544 F.3d 1306, 1308
(Fed. Cir. 2008). In light of this Court’s validation of the
canon in Henderson, supra., the VA was on notice that
Haas was clearly erroneous, or at best, limited to its
facts.
The pro-claimant canon stands out as a public
policy designed to ensure that veterans obtain their
earned benefits. It is based on the belief that a thankful
nation must care, in the words of Abraham Lincoln, “to
care for him who shall have borne the battle and for his
widow, and his orphan.” This maxim, although adopted
as the VA motto, and adorns the outside wall of VA
Headquarters,
https://www.va.gov/opa/publications/
celebrate/vamotto.pdf, has been widely ignored by the
burgeoning bureaucracy the VA has become.
Nevertheless, the VA should have reviewed their
litigation position in light of this venerated canon of
construction. Their failure to do so precludes a finding
that their position was substantially justified.
C. The Clearly Erroneous Haas Decision
Does Not Sustain the VA Position as
Substantivally Justified.
It is well settled that in the Federal Circuit. the
Government’s position must be evaluated with respect to
both the underlying agency action that gave rise to the
civil litigation and the arguments made during the
litigation itself. DGR Associates, Inc. v. United States,
690 F.3d 1335, 1340 (Fed. Cir. 2012)
The burden of establishing that its position was
substantially justified is on the government. Doty v.
14
United States, 71 F.3d 384, 385 (Fed.Cir.1995). This
includes proof that the government's position was
“justified in substance or in the main,” and had a
“reasonable basis both in law and fact.” Pierce v.
Underwood, 487 U.S. 552, 565 (1988). This requires the
government to establish that it adopted a reasonable,
albeit incorrect, interpretation of a particular statute or
regulation.
Id. at 566 n. 2. (emphasizing that an
erroneous position could be substantially justified “if a
reasonable person could think it correct”).
Other Circuit Courts of Appeal have taken a more
liberal approach, holding that the government’s position
is not substantially justified if the statutory
interpretation is contrary to the plain language of the
statue. See, Role Models Am., Inc. v. Brownlee, 353
F.3d 962, 967 (D.C. Cir.2004) (concluding that the
government's position was not substantially justified
where “it was wholly unsupported by the text of the
applicable regulations” (citations and internal quotation
marks omitted); Halverson v. Slater, 206 F.3d 1205, 1212
(D.C.Cir.2000) (holding that the government's position
was not substantially justified where it was contrary to
“the easily ascertainable plain meaning of” a statute);
Marcus v. Shalala, 17 F.3d 1033, 1038 (7th Cir.1994)
(concluding that the government's position was not
substantially justified where it was “manifestly contrary
to the statute.” Notably, even this Court’ decision in
Pierce, relied upon by the government and the court
below, does not include an automatic rejection of an
EAJA claim if it simply based on the fact that a
controlling precedent existed. Pierce, 487 U.S. at 569,
108 S.Ct. 2541. Nor is the fact that the government
prevailed in the court below dispositive on whether they
were substantially justified. Cmty. Heating & Plumbing
15
Co. v. Garret, 2 F.3d 1143, 1145 (Fed.Cir.1993).. Instead,
the Court must consider all pertinent factors.
As discussed supra., the government litigation
position was not supported by the plain language of the
statute. Even the Haas court did not hold that the
statutory language supported the government. Instead
they found the statute ambiguous, allowing it to move to
step two of Chevron. The Secretary had the
responsibility to review the statute as part of their
litigation strategy and to temper that strategy with the
plain meaning of the language chosen by Congress. The
plain meaning of the statute must be derived from both
text and structure. Norfolk Dredging Co., Inc. v. United
States, 375 F.3d 1106, 1110 (Fed.Cir.2004). See, also,
McEntee v. Merit Sys. Prot. Bd., 404 F.3d 1320, 1328
(Fed. Cir. 2005). Applying the plain meaning canon, the
Court found that “Congress has spoken directly to the
question of whether those who served in the 12 nautical
mile territorial sea of the “Republic of Vietnam” are
entitled to § 1116’s presumption if they meet the
section’s other requirements. They are.” Procopio, 913
F.3d at 1380–81. Given that the Secretary’s position was
contrary to the plain meaning of the statute, the inquiry
stops and the Court must find their position
substantially unjustified. See, e.g. Patrick v. Shinseki,
supra.
16
CONCLUSION
For the reasons delineated herein, petitioner prays
that a writ of certiorari be issued to the United States
Court of Appeals for the Federal Circuit.
JOHN B. WELLS
Counsel of Record
LAW OFFICE OF JOHN B. WELLS
769 ROBERT BLVD., SUITE 201D
SLIDELL, LA 70458
985-641-1855
JohnLawEsq@msn.com
1a
NOTE: This order is nonprecedential.
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.
ON MOTION
Before PROST, Chief Judge, NEWMAN, LOURIE,
DYK, MOORE, O’MALLEY, REYNA, WALLACH,
TARANTO, CHEN, and STOLL, Circuit Judges.∗
Order for the court filed PER CURIAM. Concurrence
in the denial of fees filed by Circuit Judge O’MALLEY.
PER CURIAM.
ORDER
Upon consideration of Appellant Alfred Procopio,
Jr.’s motion for attorney fees and expenses under the
Equal Access to Justice Act,
IT IS ORDERED THAT:
Appellant’s motion is denied.
2a
FOR THE COURT
Date September 25, 2019
/s/ Peter R. Marksteiner
Peter R. Marksteine
Clerk of Court
Footnote
*Circuit Judge Hughes did not participate.
3a
NOTE: This order is nonprecedential.
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 in denial of
fees.
Today, the court concludes that the government
was “substantially justified” in maintaining for over a
decade its position that the phrase “Republic of
Vietnam” does not encompass the Republic of
Vietnam’s own territorial waters. But the plain
language of the Agent Orange Act, 38 U.S.C. § 1116,
unambiguously provides otherwise, despite the
government’s own failed attempts to inject ambiguity
into the statute. Procopio v. Wilkie, 913 F.3d 1371, 1376
(Fed. Cir. 2019) (en banc). And, in that decade’s time,
countless veterans of the Vietnam War who were
presumptively exposed to Agent Orange were denied
their rightful benefits under § 1116 to great personal
detriment. Thus, while I agree with my colleagues that
both Supreme Court and our precedent1 compel us to
4a
deny Procopio’s motion for fees under the Equal Access
to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A), I
write separately to express my belief that the
governing interpretation of “substantially justified”
sets the bar far too low for the government in a way
that is contrary to the plain text of the EAJA and its
underlying purpose.
The EAJA provides that we “shall award to a
prevailing party . . . fees and other expenses, . . . unless
[we] find[] that the position of the United States2 was
substantially justified.” Id. (emphasis added). The
Supreme Court has held that the government’s position
is “substantially justified” if it is “justified to a degree
that could satisfy a reasonable person.” Pierce v.
Underwood, 487 U.S. 552, 565 (1988) (emphasis added).
But such a reasonableness standard is unsupported by
the text of the statute. Rather, it is cherry-picked from
the legislative history. Id. at 563– 64 (citing H.R. Rep.
No. 96-1434, p. 22 (1980) (Conf. Rep.)). If Congress had
meant to impose a reasonableness standard, it would
have used the word “reasonable” in the statute.
Indeed, “[t]he Senate Judiciary Committee considered
and rejected an amendment” to replace “substantially”
with “reasonably.” Pierce, 487 U.S. at 576 (Brennan,
J.,concurring) (citing S. Rep. No. 96-253, at 8 (1979)).
I would instead adopt a standard that breathes
lifeback into the text and purpose of the EAJA. At the
veryleast, I would adopt a standard that recognizes
that the statutory language requires something more
than reasonableness.
The term “substantially”
precedes and thus modifies “justified.” Accordingly, the
word “substantially” mus tdo some work in defining
precisely how justified the government’s position must
be. The Supreme Court has noted that the word
“substantially” can have two definitions. Pierce, 487
5a
U.S. at 564. It can mean “[c]onsiderable in amount,
value, or the like; large.” Id. (citing Webster’s New Int’l
Dictionary 2514 (2d ed. 1945)). Or, it can mean “[t]hat is
such in substance or in the main,” id., as in, having a
“firm foundation,” id. at 577 (Brennan J., concurring).
Notably, neither definition invokes a reasonableness
standard and instead connotes something more than
mere reasonableness. In fact, “‘reasonable’ simply
means ‘not absurd,’ ‘not ridiculous,’ ‘not conflicting with
reason.’” Riddle v. Sec’y of Health & Human Servs., 817
F.2d 1238 (6thCir. 1987) (Jones, J.) (quoting 1 Webster’s
Third New Int’l Dictionary Unabridged 1892 (1965)).
And, as Justice Brennan noted in his concurrence in
Pierce, “substantially justified” reflects Congress’s
attempt to occupy a middle ground between those who
would award fees whenever the government loses and
those who would award fees only when the
government’s position was not reasonable. 487 U.S. at
578 (Brennan J., concurring) (citing S. Rep., at 2–3).
Thus, the plain meaning of the statutory text requires
that the government’s position be justified by a
considerable amount or, at least, that it have a solid
foundation in substance.
This is consistent with the purpose underlying the
EAJA, which recognizes that the average litigant
should not have to bear the financial burden of
correcting the government’s error. Gavette v. Office of
Pers. Mgmt., 785 F.2d 1568, 1571 (Fed. Cir. 1986);
Comm’r, I.N.S. v. Jean, 496 U.S. 154, 163 (1990); H.R.
Rep. No. 96-1418, at 10 (1980)(“The Bill thus recognizes
that the expense of correcting error on the part of the
government should not rest wholly on the party whose
willingness to litigate or adjudicate has helped to define
the limits of federal authority.” (emphasis added)). The
EAJA “rests on the premise that a party who chooses
6a
to litigate an issue against the government is not only
representing his or her own vested interest but is also
refining and formulating public policy.” H.R. Rep. 961418, at 10.
This is the very type of case for which Congress
enacted the EAJA. The government’s position here was
plainly wrong. We held in Procopio that “[t]he intent of
Congress is clear from its use of the term ‘in the
Republic of Vietnam,’ which all available international
law unambiguously confirms includes its territorial
sea.” Procopio v. Wilkie, 913 F.3d 1371, 1375 (Fed. Cir.
2019). To the extent there was any doubt regarding
the scope of the “Republic of Vietnam,” the
government’s position was still unjustified because it
should have resolved any such doubt in favor of the
veterans under the pro veteran canon of construction.
Id. at 1383 (O’Malley, J., concurring) (citing Henderson
v. Shinseki, 562 U.S. 428, 441 (2011)). Thus, the
government’s position here lacked a firm foundation.3
Mr. Procopio is the very type of prevailing party,
moreover, for whom Congress enacted the EAJA. Mr.
Procopio changed the law for all Vietnam War veterans
who served in the Republic of Vietnam’s territorial
waters. And his financial burden in doing so was only
increased by the government’s failure to codify its
tenuous position into a type of rule whose validity we
may review on its face rather than as applied to any
individual case. Indeed, in Gray v. Sec’y of Veterans
Affairs,
875
F.3d
1102,
1109
(Fed.
Cir.
2017),“Petitioners sought direct review in this court” of
the government’s interpretation of § 1116 in order “to
bypass yet another years-long course of individual
adjudications or petitions for rulemaking.” Id. We
sympathized,
finding
Petitioners’
urgency
understandable “[g]iven the health risks that many of
7a
these veterans face” and “the costs that [the] outcome
imposes on Petitioners and the veterans they
represent.” Id. But, “constrained by the narrow scope
of the jurisdiction that Congress has granted to us,” we
dismissed Petitioners’ facial challenge to “await an
individual action to assess the propriety of the VA’s
interpretation of the Agent Orange Act and attendant
regulations.” Id.
As it happens, that “individual action” became Mr.
Procopio’s case. In this way, Mr. Procopio’s prolonged
litigation costs resulted, at least in part, from the
government’s use of Congress’s jurisdictional statute as
a shield for what the government must have
understood was increasingly obvious—its position was
a weak one. The access to justice for veterans who
served in the territorial waters of Vietnam was far
from equal under these circumstances. Thus, while I
agree that we must deny Mr. Procopio’s motion for fees
under governing law, I write separately to
interpretation of the EAJA, it does not, in my view,
justify a disallowance of them. Nor does it render the
position taken by the government at all stages of this
litigation “substantially justified.”
Footnotes
1
See Pierce v. Underwood, 487 U.S. 552, 565 (1988);
Owen v. United States, 861 F.2d 1273, 1274 (Fed. Cir.
1988).
2
The EAJA defines the “position of the United
States” to mean, “in addition to the position taken by
the United States in the civil action, the action or
failure to act by the agency upon which the civil action
is based.” 28 U.S.C. § 2412(d)(2)(D).
8a
3
I recognize that our decision in Haas v. Peake, 525
F.3d 1168 (Fed. Cir. 2008), upholding the government’s
treatment of these veterans, may have encouraged—for
a time—the government’s adherence to its position. But
our analysis there stood upon layers and layers of what
we now know are questionable deference principles,
aggravated by the government’s promulgation of its
own ambiguous regulations—none of which actually
interpreted the relevant statutory language. While the
decision in Haas might be relevant to the amount of
fees recoverable under a correct express my view that
the statutory text requires more from the government
under the EAJA.
9a
913 F.3d 1371
United States Court of Appeals, Federal Circuit.
Alfred PROCOPIO, Jr., Claimant-Appellant
v.
Robert WILKIE, Secretary of Veterans Affairs,
Respondent-Appellee
2017-1821
Decided: January 29, 2019
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-4082, Judge Coral Wong
Pietsch.
Attorneys and Law Firms
Melanie L. Bostwick, Orrick, Herrington &
Sutcliffe LLP, Washington, DC, argued for claimantappellant. 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 respondentappellee. Also represented by Joseph H. Hunt, Robert
E. Kirschman, Jr., Martin F. Hockey, Jr.; Brian D.
Griffin, Brandon A. Jonas, Office of General Counsel,
United States Department 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 America, Military Officers Association of
America, AMVETS, Veterans and Military Law
10a
Section, Federal Bar Association. Also represented by
William David Maxwell. Amicus curiae National
Organization of Veterans' Advocates, 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,
Bethesda, MD, for amicus curiae The American Legion.
Also represented by James Daniel Ridgway.
Angela K. Drake, The Veterans Clinic at The
University 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.
Stephen Blake Kinnaird, Paul Hastings LLP,
Washington, 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, National Veterans Legal Services Program,
Washington, DC.
11a
Before Prost, Chief Judge, Newman, Lourie, Dyk,
Moore, O’Malley, Reyna, Wallach, Taranto, Chen, and
Stoll, Circuit Judges.
Opinion
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 Warera 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,
codified at 38 U.S.C. § 1116, granting a presumption of
service connection for certain diseases to veterans who
“served in the Republic of Vietnam”:
12a
[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 offshore 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)
13a
(“Regulation 307”). In 1997 in a General Counsel
opinion about a different regulation, the government
interpreted Regulation 307 as limiting service “in the
Republic of Vietnam” 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 interpretation 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 requirement. 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, 104 S.Ct. 2778, 81 L.Ed.2d
694 (1984), to § 1116 and Regulation 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
interpretation 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–
14a
63, 117 S.Ct. 905, 137 L.Ed.2d 79 (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 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 present 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
15a
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?
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
connection to veterans who “served in the Republic of
Vietnam” 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
interpreting a statute, like § 1116, that is administered
by an agency. 467 U.S. at 842, 104 S.Ct. 2778. Step one
asks “whether Congress 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 unambiguously expressed intent of
Congress.” Id. at 842–43, 104 S.Ct. 2778. 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,
104 S.Ct. 2778.
16a
Here, we determine at Chevron step one that
Congress 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 Vietnam.” He did. Congress chose to use the formal
name of the country and invoke a notion of territorial
boundaries by stating that “service in the Republic of
Vietnam” is included. The intent of Congress is clear
from its use of 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 unambiguously expressed intent of
Congress,” we do not reach Chevron step two.
In 1954, the nation then known as Vietnam was
partitioned 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 VietNam, 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
“Republic 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 (extending 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 Territorial Sea and the Contiguous
Zone (“1958 Convention”), agreeing that “[t]he
17a
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.”
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, 85 S.Ct. 1401, 14 L.Ed.2d
296 (1965) (stating the 1958 Convention provides “the
best and most workable definitions available” 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 sea ....”). In 1982, the United Nations
Convention on the Law of the Sea (“UNCLOS”) echoed
the 1958 Convention, stating “[t]he sovereignty of a
coastal State extends ... to an adjacent belt of sea,
described as the territorial *1376 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
territory, 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 ....”); Presidential Proclamation 5928, 103
Stat. 2981 (1988) (“International law recognizes that
coastal nations may exercise sovereignty and
jurisdiction over their territorial seas.”).2
18a
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” included
both its landmass and its 12 nautical mile territorial
sea.3 The government has pointed to no law to the
contrary. 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
presumption.
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) (“Regulation 313”). According to the
government, Regulation 311 imposed the foot-on-land
requirement, but Regulation 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
connection for chloracne and later soft-tissue sarcomas
19a
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
connection 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
Regulation 313 did not. This distinction is essential to
its argument that § 1116, which codified both, is
ambiguous. We do not agree. We do not read
Regulation 311, Regulation 313, or even later-adopted
Regulation 307 as articulating the government’s
current foot-on-land requirement. And there is no
indication anyone, including the government, did before
§ 1116 was adopted.
Regulation 311 grants a presumption of service
connection 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, or service in other locations if the
conditions of service involved duty or visitation in
20a
Vietnam.” We do not read these minor grammatical
differences to compel the distinction the government
urges. At best, the addition of a comma in Regulation
311 permits the clause “if the conditions of service
involved duty or visitation in the Republic of Vietnam”
to modify both “service in the waters offshore” and
“service in other locations.” But even if Regulation 311
is so read, it still does not impose the foot-on-land
requirement: it covers everyone whose service included
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 important 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).
21a
Given the undisputed distinction between offshore
waters and territorial seas, we see no basis for
incorporating a foot-on-land requirement into
Regulation 311. The 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, ‘service in the Republic of
Vietnam’ will encompass services elsewhere if *1378 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
position 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-onland requirement, meaning the presumption of service
connection 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 presumed service connection for
diseases—chloracne and soft-tissue sarcomas—linked
to herbicide exposure, while Regulation 313 presumed
service connection for a disease—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
22a
intended 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
entitled to Regulation 313’s presumption, yet the
government’s (and the dissent’s) reading does just that:
According to the government, a veteran with NonHodgkin’s lymphoma who served in the Republic of
Vietnam’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 connection 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,
Congress 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 Congress chose.
The government also argues the “Republic of
Vietnam” in § 1116 does not include its territorial sea
because 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
23a
Defense Service Medal to those who “served in the
Republic of Korea or the waters adjacent thereto”);
Veterans’ Rehabilitation 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 missions in the waters *1379 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 1391, 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 (government). 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, 113 S.Ct. 2035, 124 L.Ed.2d 118 (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, 111 S.Ct. 1138, 113 L.Ed.2d
68 (1991) (comparing distinct 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 uniform 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
24a
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 observed, 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, ––– U.S. ––––, 138 S.Ct. 1061,
1074, 200 L.Ed.2d 332 (2018).6
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 government only after § 1116 was adopted.
Haas is overruled.7
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, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011); Brown
v. Gardner, 513 U.S. 115, 117-18, 115 S.Ct. 552, 130
L.Ed.2d 462 (1994); King v. St. Vincent’s Hosp., 502
U.S. 215, 220 n.9, 112 S.Ct. 570, 116 L.Ed.2d 578 (1991);
Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S.
275, 285, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946); Boone v.
Lightner, 319 U.S. 561, 575, 63 S.Ct. 1223, 87 L.Ed. 1587
(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.
25a
No judge on this court has determined that this
veteran should be denied benefits under § 1116. One
concurrence concludes that § 1116 is ambiguous but
finds the agency’s interpretation unreasonable. See
Lourie, J., concurring. Because we decide that the
statute is unambiguous, we need not decide whether
the agency’s interpretation 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 1395–96
(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
Conclusion
Congress has spoken directly to the question of
whether those who served in *1381 the 12 nautical mile
territorial 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, 104 S.Ct. 2778. Mr. Procopio is
entitled to a presumption of service connection for his
prostate cancer and diabetes mellitus. Accordingly, we
reverse.
REVERSED AND REMANDED
Footnotes
1The 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.
26a
2The dissent criticizes that these sources of
international 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
1389. 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 1389–90, 1390–91 nn.2-3. When
trying to discern what Congress meant by “in the
Republic of Vietnam,” we think the contemporaneous
definition provided by international law is a better
source than the definitions of other countries provided
by these generalist dictionaries and maps.
3There 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.
4We 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 1390. This case requires us
to determine only what Congress meant when it used
the phrase “in the Republic of Vietnam” in 1991.
5The government conceded, though, at oral argument
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 12mile territorial sea, as that would “impact the sovereign
boundary of [the nation].” See Oral Argument at 27:3728:13.
27a
6In several cases, it is clear Congress’ express
reference 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
expedient 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 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
understood the “Republic of Vietnam” when it passed
28a
the Agent Orange Act in 1991, and none create any
ambiguity in the face of long-established, uniform
international law recognizing the “Republic of
Vietnam” includes its territorial sea.
7“[W]e have never applied stare decisis mechanically 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, 98 S.Ct.
2018, 56 L.Ed.2d 611 (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 1388–89 (quoting John R. Sand & Gravel Co.
v. United States, 552 U.S. 130, 139, 128 S.Ct. 750, 169
L.Ed.2d 591 (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, 98 S.Ct.
2018. 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 1388–89 (quoting
Robert Bosch, LLC v. Pylon Mfg. Corp., 719 F.3d 1305,
1316 (Fed. Cir. 2013) ). While there are certainly
situations where parties’ reliance on our settled law is
of paramount concern (see, e.g., Dickerson v. United
States, 530 U.S. 428, 443, 120 S.Ct. 2326, 147 L.Ed.2d
405 (2000) (declining to overrule Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),
because “Miranda 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.
8The dissent criticizes our interpretation of § 1116 as a
“policy choice [that] should be left to Congress,” noting
29a
the “cost of expanding the presumption of service
connection.” Dissent at 1394–95. Respectfully, we are
interpreting a statute, not making a policy judgment.
Moreover, the dissent’s criticism seems out of place
where it has not concluded that the agency’s
determination is reasonable or that Mr. Procopio should
be denied his benefits.
30a
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
different 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 1375–76. Sovereign borders are not
necessarily what Congress had in mind when it enacted
statutes for veterans’ benefits, and specifically, when it
enacted the Agent Orange Act. See Haas v. Peake, 525
F.3d 1168, 1175–83 (Fed. Cir. 2008) (discussing 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 1389–94, 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
31a
deference as generally required by Auer v. Robbins,
519 U.S. 452, 461–63, 117 S.Ct. 905, 137 L.Ed.2d 79
(1997), because the regulation is not ambiguous, see
Christensen v. Harris Cty., 529 U.S. 576, 588, 120 S.Ct.
1655, 146 L.Ed.2d 621 (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
offshore 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
specifies that service in the Republic of Vietnam
includes (1) “service in the waters offshore” and (2)
“service in other locations if the conditions of service
involved duty or visitation in the Republic of Vietnam.”
Id. Thus, a veteran 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 1393–94 (discussing the agency’s *1382
interpretation). However, if “duty or visitation” were
required for all Vietnam veterans, the phrases “waters
offshore” and “other locations” would be superfluous.
Cf. Hibbs v. Winn, 542 U.S. 88, 102, 124 S.Ct. 2276, 159
L.Ed.2d 172 (2004) (citation omitted) (“A statute should
32a
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, 117 S.Ct. 905,
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, 120 S.Ct.
1655, or when an “alternative reading is compelled by
the regulation’s plain language,” Thomas Jefferson
Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129
L.Ed.2d 405 (1994) (quoting Gardebring v. Jenkins, 485
U.S. 415, 430, 108 S.Ct. 1306, 99 L.Ed.2d 515 (1988) ), as
it does here. Thus, I would reverse the judgment of the
Veterans Court because the agency’s regulation 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.
33a
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
territorial waters.
I write separately because I believe the proveteran canon of construction adds further support to
the majority’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 ambiguous, 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 obligated to apply all traditional tools of statutory
interpretation at step one of Chevron. 467 U.S. at 843
n.9, 104 S.Ct. 2778. 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 discern Congress’s
meaning.” SAS Inst., Inc. v. Iancu, ––– U.S. ––––, 138
S.Ct. 1348, 1358, 200 L.Ed.2d 695 (2018) (quoting
Chevron, 467 U.S. at 843 n.9, 104 S.Ct. 2778.); see also
Epic Sys. Corp. v. Lewis, ––– U.S. ––––, 138 S.Ct. 1612,
1630, 200 L.Ed.2d 889 (2018) (“[D]eference is not due
unless a court, employing traditional tools of statutory
construction, is left with an unresolved ambiguity. And
*1383 [here,] that [ ] is missing: the canon against
reading conflicts into statutes is a traditional tool of
34a
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 quotations omitted) );
Food & Drug Admin. v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 132–33, 120 S.Ct. 1291, 146 L.Ed.2d
121 (2000) (employing at Chevron step one the
“fundamental canon of statutory construction that the
words of a statute must 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 Chevron 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
interpretation of its own regulation or any other
interpretive ruling unless, after applying the same
interpretative principles that apply in the context of
statutory interpretation, the court finds the regulation
or interpretation to be ambiguous. Christensen v.
Harris County, 529 U.S. 576, 588, 120 S.Ct. 1655, 146
L.Ed.2d 621 (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, 131 S.Ct. 1197, 179 L.Ed.2d
35a
159 (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 Administrative 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, 112 S.Ct. 570, 116 L.Ed.2d 578 (1991). The Supreme
Court first articulated this canon in Boone v. Lightner
to reflect the sound 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, 63
S.Ct. 1223, 87 L.Ed. 1587 (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 sovereign.” (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 veterans in prescribing
36a
the standards in *1384 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
Compensation 14 (2014) (quoting Nehmer v. United
States Veterans’ Admin.,712 F. Supp. 1404, 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 441, 131 S.Ct. 1197. 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 claimant’s favor
because that is precisely what Congress intended when
it enacted the Agent Orange Act in 1991 against the
backdrop of Boone. King, 502 U.S. at 220 n.9, 112 S.Ct.
570. Thus, when interpreting such statutes, or
regulations promulgated thereunder, we may not resort
to agency deference unless, after applying the proveteran canon along with other tools of statutory
interpretation, we are left with an unresolved
ambiguity.2
The government contends that applying the proveteran canon before resorting to agency deference
37a
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, 133 S.Ct. 1863,
185 L.Ed.2d 941 (2013) (Roberts, C.J., dissenting) (“We
do not leave it to the agency to decide when it is in
charge.”). And, 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 displace 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, –
–– U.S. ––––, 138 S.Ct. 2105, 2121, 201 L.Ed.2d 433
(2018) (Kennedy, J., concurring); see also Michigan v.
E.P.A., ––– U.S. ––––, 135 S.Ct. 2699, 2712, 192 L.Ed.2d
674 (2015) (Thomas, J., concurring) (“I write separately
to note that [the *1385 agency’s] request 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
38a
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 deference, 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, ––– U.S.
––––, 139 S.Ct. 657, ––– L.Ed.2d ––––, 2018 WL 6439837
(2018) (granting certiorari on question of “[w]hether the
Court should overrule Auer and [Bowles v.] Seminole
Rock [& Sand Co., 325 U.S. 410, 65 S.Ct. 1215, 89 L.Ed.
1700
(1945)
]”
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
deference “encourages agencies to write ambiguous
regulations and interpret them later, which defeats the
purpose of delegation, undermines the rule of law, and
ultimately allows agencies to circumvent the noticeand-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, 133 S.Ct. 1326,
185 L.Ed.2d 447 (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”)
39a
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, 134 S.Ct.
2427, 189 L.Ed.2d 372 (2014) (“Even under Chevron’s
deferential framework, agencies must operate within
the bounds of reasonable interpretation. ... 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 alterations 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 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-andcomment rulemaking process. *1386 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 deference when it
40a
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
regulations to which it now points to support the footon-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 adjudications and seemed to take in its
Adjudication Manual[.]”). 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
defendants”—is a canon of last resort that cannot
trump agency deference. Whitman v. United States, –––
U.S. ––––, 135 S.Ct. 352, 353, 190 L.Ed.2d 381 (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 favorably.
Compare Moskal v. United States, 498 U.S. 103, 108,
111 S.Ct. 461, 112 L.Ed.2d 449 (1990) (“[W]e have
always reserved lenity for those situations in which a
reasonable doubt persists about a statute’s intended
scope even after resort to the language and structure,
legislative history, and motivating policies of the
statute.” (internal quotations omitted) ), with
Henderson, 562 U.S. at 441, 131 S.Ct. 1197 (“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
41a
the rule of lenity differ greatly from those of the proveteran 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 antisocial conduct.” Bell v. United States, 349 U.S. 81, 83, 75
S.Ct. 620, 99 L.Ed. 905 (1955). In contrast, the proveteran 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, 63 S.Ct. 1223.
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 ambiguous provisions interpreted to their
benefit.” Montana v. Blackfeet Tribe of Indians, 471
U.S. 759, 766, 105 S.Ct. 2399, 85 L.Ed.2d 753 (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
Chevron. 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 deference to agency
42a
interpretations of ambiguous statutes.”). 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. E148601, 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.’ ”); Barrett, 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
connection 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 ambiguities 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
Footnotes
43a
1I address both Chevron and Auer deference because
we relied on both in Haas v. Peake to uphold the
agency’s regulation. We deferred to the agency’s
interpretation of its own ambiguous regulation under
Auer, and then, in turn, found “that the regulation
reflects a reasonable interpretation of the statute”
under Chevron. 525 F.3d 1168, 1186 (Fed. Cir. 2008).
2Of course, application of the pro-veteran canon will not
always resolve ambiguities in a statute or regulation 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
construction and the pro-veteran canon pulled in
opposite directions. 260 F.3d 1365, 1378 (Fed. Cir. 2001).
And, in Burden v. Shinseki, we found that the proveteran canon was not enough to resolve a statutory
ambiguity when deciding whether to award benefits to
a veteran’s surviving common law spouse over the
veteran’s children because neither interpretation had a
particularly pro-veteran reading. 727 F.3d 1161, 1169–
70 (Fed. Cir. 2013). Thus, while application of the proveteran canon may resolve any apparent ambiguity, it
will not always do so.
3While 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
raising whether principles of agency deference
generally must yield when at odds with the pro-veteran
canon of construction.
44a
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 connected, 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.
The majority concludes that the statute
unambiguously 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 grappling with at this very time.
Our court has already confronted this precise
interpretive question for veterans who served on ships
off the coast of Vietnam during the Vietnam War. And
we concluded, 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
45a
dictate that Congress unambiguously intended
“Republic of Vietnam” to include its territorial waters.
No prior case has announced 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
landmass of the Republic of Vietnam, it is at least a
reasonable understanding of the statute that Congress
at the time of the Agent Orange Act directed its
statutory presumption of service connection towards
those service members who had actually served within
the country’s land borders. I would therefore find, as
we did in Haas, that § 1116 is ambiguous under
Chevron step one. Accordingly, I respectfully dissent.
Stare Decisis And Haas V. Peake
This court has already ruled on the statutory
interpretation 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 territorial 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
46a
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). Nevertheless, 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).
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, 128 S.Ct. 750, 169 L.Ed.2d 591
(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, 128 S.Ct. 579, 169 L.Ed.2d 472
(2007). Indeed, “the very point of stare decisis is to
forbid us from revisiting a debate every time there are
47a
reasonable arguments to be made on both sides.” *1389
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., ––
– U.S. ––––, 135 S.Ct. 831, ––– L.Ed.2d –––– (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, 116 S.Ct. 763, 133 L.Ed.2d 709
(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 interpretation 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
interpretation 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 identified 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.
Statutory Ambiguity
48a
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 archipelagic waters”); United
States v. California, 332 U.S. 19, 33, 67 S.Ct. 1658, 91
L.Ed. 1889 (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 territorial sea.”).
They do not purport to define territorial waters as part
of the definition of the country itself.
Section 1116, a U.S. veterans’ disability benefits
statute, has nothing to do with the dominion and control
49a
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 nations. See Murray v. Schooner Charming Betsy, 6
U.S. 2 Cranch 64, 2 L.Ed. 208 (1804).
There is no support for a rule that a statute that
refers to a country includes *1390 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 1379) 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 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 *1391 for
educational assistance and other service-connected
benefits as “veterans who during the Vietnam era
served in Vietnam, in air missions over Vietnam, or in
naval missions in the waters adjacent to Vietnam shall
50a
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 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 assumption 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 Congress’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 provisions, so
that no part will be inoperative or superfluous, void or
insignificant.” ’ ” Corley v. United States, 556 U.S. 303,
314, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) (quoting
Hibbs v. Winn, 542 U.S. 88, 101, 124 S.Ct. 2276, 159
L.Ed.2d 172 (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
Congress’s use of the term “waters adjacent” versus
territorial waters or seas is speculative and entirely
unconvincing. See Majority Op. at 1378–79.
By enacting the Agent Orange Act, Congress
intended to help Vietnam veterans who had manifested
certain specified diseases as a result of having been
51a
exposed to Agent Orange. See 38 U.S.C. § 1116. The VA
has explained 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 *1392 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
enactment of § 1116. The majority suggests that
Congress 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 Compensation 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
52a
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 footon-land requirement for veterans that served offshore
or in locations other than Vietnam:
“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.
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.
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 nonVietnam 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
53a
worded § 3.313 specifically to apply to all offshore
veterans, without a foot-on-land requirement:
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.
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
sentence confirms that the offshore veterans were not
subject to a foot-on-land requirement. While the
grammatical differences *1393 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 Vietnam ....”). The
Agent Orange Act used the term “served in the
Republic of Vietnam” without defining the term:
[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
54a
Republic of Vietnam during the period beginning
on January 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 nonHodgkin’s lymphoma [from § 3.313(a) ] on the list of
diseases specifically identified 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 from Vietnam. During that lead-up
to the Agent Orange Act, the majority cites no
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evidence that Blue Water Navy veterans had been
receiving service connection presumptions 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 1377) 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 includes 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
requirement. See Majority Op. at 1376. 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
56a
(entitling certain veterans to compensation for
disability, injury, or disease contracted or aggravated
“in the active military, naval, or air service, during a
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 therefore 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 landmass 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
impact 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
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$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 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 presumption 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 *1395 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
parties address the question of ambiguity.6 In
accordance with our order the parties have not, in fact,
fully addressed the step two Chevron issues. At the
same time there have been relevant developments that
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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 address Haas’ treatment of step
two of Chevron.
Footnotes
1Moreover, there is no clear evidence that the nowdefunct Republic of Vietnam ever claimed a territorial
sea extending 12 nautical miles from its shore, including
during the Vietnam War. See Majority Op. at 1376–77.
Up until 1988, the United States only claimed a threemile 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 United States v. California, 332 U.S. 19, 33–34,
67 S.Ct. 1658, 91 L.Ed. 1889 (1947). There is no reason
to believe that the Republic of Vietnam, when it
existed, would have done otherwise.
2See, 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 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
59a
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, together 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 America”); 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.”).
3See, 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
60a
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)”).
4See also, e.g., 38 U.S.C. § 101(30) (referring to veterans
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
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
including 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”).
5Mr. 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
61a
evidence that Congress at the time of the Agent
Orange Act was aware of or had considered the
potential dangers from contaminated runoff.
6See Order Granting En Banc Rehearing at 2, Procopio
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?”).
7See Order Granting Certiorari, Kisor v. Wilkie, No. 1815, ––– U.S. ––––, 139 S.Ct. 657, ––– L.Ed.2d ––––, 2018
WL 6439837 (Dec. 10, 2018) (“The petition for writ of
certiorari is granted limited to Question 1 presented by
the petition”); Cert. Pet., Kisor v. Wilkie, No. 18-15
(Jun. 29, 2018) (“1. Whether the Court should overrule
Auer and Seminole Rock.”).
62a
28 USC 2412(d)
(1) If, in a civil action brought by the United States or a
proceeding for judicial review of an adversary
adjudication described in section 504(a)(4) of title 5, the
demand by the United States is substantially in excess
of the judgment finally obtained by the United States
and is unreasonable when compared with such
judgment, under the facts and circumstances of the
case, the court shall award to the party the fees and
other expenses related to defending against the
excessive demand, unless the party has committed a
willful violation of law or otherwise acted in bad faith,
or special circumstances make an award unjust. Fees
and expenses awarded under this subparagraph shall
be paid only as a consequence of appropriations
provided in advance.
(2) For the purposes of this subsection-(A) “fees and other expenses” includes the reasonable
expenses of expert witnesses, the reasonable cost of
any study, analysis, engineering report, test, or project
which is found by the court to be necessary for the
preparation of the party's case, and reasonable attorney
fees (The amount of fees awarded under this subsection
shall be based upon prevailing market rates for the kind
and quality of the services furnished, except that (i) no
expert witness shall be compensated at a rate in excess
of the highest rate of compensation for expert
witnesses paid by the United States; and (ii) attorney
fees shall not be awarded in excess of $125 per hour
unless the court determines that an increase in the cost
of living or a special factor, such as the limited
availability of qualified attorneys for the proceedings
involved, justifies a higher fee.);
(B) “party” means (i) an individual whose net worth did
not exceed $2,000,000 at the time the civil action was
63a
filed, or (ii) any owner of an unincorporated business, or
any partnership, corporation, association, unit of local
government, or organization, the net worth of which did
not exceed $7,000,000 at the time the civil action was
filed, and which had not more than 500 employees at the
time the civil action was filed; except that an
organization described in section 501(c)(3) of the
Internal Revenue Code of 1986 (26 U.S.C. 501(c)(3))
exempt from taxation under section 501(a) of such
Code, or a cooperative association as defined in section
15(a) of the Agricultural Marketing Act (12 U.S.C.
1141j(a)), may be a party regardless of the net worth of
such organization or cooperative association or for
purposes of subsection (d)(1)(D), a small entity as
defined in section 601 of title 5;
(C) “United States” includes any agency and any
official of the United States acting in his or her official
capacity;
(D) “position of the United States” means, in addition
to the position taken by the United States in the civil
action, the action or failure to act by the agency upon
which the civil action is based; except that fees and
expenses may not be awarded to a party for any portion
of the litigation in which the party has unreasonably
protracted the proceedings;
(E) “civil action brought by or against the United
States” includes an appeal by a party, other than the
United States, from a decision of a contracting officer
rendered pursuant to a disputes clause in a contract
with the Government or pursuant to chapter 71 of title
41;
(F) “court” includes the United States Court of Federal
Claims and the United States Court of Appeals for
Veterans Claims;
64a
(G) “final judgment” means a judgment that is final and
not appealable, and includes an order of settlement;
(H) “prevailing party”, in the case of eminent domain
proceedings, means a party who obtains a final
judgment (other than by settlement), exclusive of
interest, the amount of which is at least as close to the
highest valuation of the property involved that is
attested to at trial on behalf of the property owner as it
is to the highest valuation of the property involved that
is attested to at trial on behalf of the Government; and
(I) “demand” means the express demand of the United
States which led to the adversary adjudication, but
shall not include a recitation of the maximum statutory
penalty (i) in the complaint, or (ii) elsewhere when
accompanied by an express demand for a lesser amount.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.