Petition for Writ of Certiorari — Military-Veterans Advocacy Inc., Petitioner v. Denis R. McDonough, Secretary of Veterans Affairs

IN THE

Supreme Court of the United States

PETITION FOR WRIT OF CERTIORARI





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OPINIONS BELOW

The opinion of the Secretary of Veterans Affairs

is unreported. The March 22, 2023 opinion of the United

States Court of Appeals for the Federal Circuit is

reported at Mil.-Veterans Advoc. Inc. v. Sec'y of

Veterans Affs., 63 F.4th 835 (Fed. Cir. 2023). The July 5,

2023 denial of the petition for rehearing en bane from

the Federal Circuit is unpublished.

JURISDICTION

The judgement of the United States Court of

Appeals for the Federal Circuit was entered on March

22, 2023. A timely petition for rehearing en bane was

denied on July 5, 2023 .. The jurisdiction of the Court is

invoked under 28 U.S.C. 1254(1).

RELEVANT PROVISIONS INVOLVED

United States Constitution, Article III, Section 2,

Clause 1:

The judicial Power shall extend to all Cases, in

Law and Equity, arising under this Constitution,

the Laws of the United States, and Treaties

made, or which shall be made, under their

Authority;-to all Cases affecting Ambassadors,

other public Ministers and Consuls;-to all Cases

of admiralty and maritime Jurisdiction; to

Controversies to which the United States shall

be a Party;-to Controversies between two or

more States; between a State and Citizens of

another State, between Citizens of different

States,-between Citizens of the same State

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claiming Lands under Grants of different States,

and between a State, or the Citizens thereof, and

foreign States, Citizens or Subjects.

38 u.s.c. §502

An action of the Secretary to which section

552(a)(l) or 553 of title 5 (or both) refers is

subject to judicial review. Such review shall be

in accordance with chapter 7 of title 5 and may

be sought only in the United States Court of

Appeals for the Federal Circuit. However, if

such review is sought in connection with an

appeal brought under the provisions of chapter

72 of this title, the provisions of that chapter

shall apply rather than the provisions of chapter

7 of title 5.

38 U.S.C. §7292(c)

The United States Court of Appeals for the

Federal Circuit shall have exclusive jurisdiction

to review and decide any challenge to the

validity of any statute or regulation or any

interpretation thereof brought under this

section, and to interpret constitutional and

statutory provisions, to the extent presented and

necessary to a decision. The judgment of such

court shall be final subject to review by the

Supreme Court upon certiorari, in the manner

provided in section 1254 of title 28.

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38 U.S.C. §501(a)

The Secretary has authority to prescribe all

rules and regulations which are necessary or

appropriate to carry out the laws administered

by the Department and are consistent with those

laws, including-(!) regulations with respect to the nature and

extent of proof and evidence and the method of

taking and furnishing them in order to establish

the right to benefits under such laws.

(2) the forms of application by claimants under

such laws.

(3) the methods of making investigations and

medical examinations; and

(4) the manner and form of adjudications and

awards.

38 U.S.C. §553( e)

petition for the issuance, amendment, or repeal

of a rule.

38 U.S.C. §1116(c)

For purposes of establishing service connection

for a disability or death resulting from exposure

to a herbicide agent, including a presumption of

service-connection under this section, a veteran

who performed covered service, shall be

presumed to have been exposed during such

service to an herbicide agent containing dioxin or

2,4-dichlorophenoxyacetic acid, and may be

presumed to have been exposed during such

service to any other chemical compound in an

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herbicide agent, unless there is affirmative

evidence to establish that the veteran was not

exposed to any such agent during that service.

5 u.s.c. §706

To the extent necessary to decision and when

presented, the reviewing court shall decide all

relevant

questions

of

law,

interpret

constitutional and statutory provisions, and

determine the meaning or applicability of the

terms of an agency action. The reviewing court

shall-(1) compel agency action unlawfully withheld or

unreasonably delayed; and

(2) hold unlawful and set aside agency action,

findings, and conclusions found to be-(A) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law.

(B) contrary to constitutional right, power,

privilege, or immunity.

(C) in excess of statutory jurisdiction, authority,

or limitations, or short of statutory right.

(D) without observance of procedure required by

law.

(E) unsupported by substantial evidence in a

case subject to sections 556 and 557 of this title

or otherwise reviewed on the record of an

agency hearing provided by statute; or

(F) unwarranted by the facts to the extent that

the facts are subject to trial de novo by the

reviewing court.

In making the foregoing determinations, the

court shall review the whole record or those

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parts of it cited by a party, and due account shall

be taken of the rule of prejudicial error.

Blue Water Navy Vietnam Veterans Act,

Pub.L. No. 116-23, 113 Stat. 966 (2019)

An Act To amend title 38, United States Code, to

clarify presumptions relating to the exposure of

certain veterans who served in the vicinity of the

Republic of Vietnam, and for other purposes.

Be it enacted by the Senate and House of

Representatives of the United States of America

in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the "Blue Water Navy

Vietnam Veterans Act of2019".

SEC.

2.

CLARIFICATION

OF

PRESUMPTIONS OF EXPOSURE FOR

VETERANS WHO SERVED IN VICINITY

OF REPUBLIC OF VIETNAM.

(a) IN GENERAL.-Chapter 11 of title 38,

United States Code, is amended by inserting

after section 1116 the following new section:

1116A. Presumptions of service connection for

veterans who served offshore of the Republic of

Vietnam

"(a) SERVICE CONNECTION.-For the

purposes of section 1110 of this title, and subject

to section 1113 of this title, a disease covered by

section 1116 of this title becoming manifest as

specified in that section in a veteran who, during

active military, naval, or air service, served

offshore of the Republic of Vietnam during the

period beginning on January 9, 1962, and ending

on May 7, 1975, shall be considered to have been

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incurred in or aggravated by such service,

notwithstanding that there is no record of

evidence of such disease during the period of

such service.

"(b) EXPOSURE.-A veteran who, during

active military, naval, or air service, served

offshore of the Republic of Vietnam during the

period beginning on January 9, 1962, and ending

on May 7, 1975, shall be presumed to have been

exposed during such service to an herbicide

agent unless there is affirmative evidence to

establish that the veteran was not exposed to

any such agent during that service.

"(c) EFFECTIVE DATE OF AWARD.-(1)

Except as provided by paragraph (2), the

effective date of an award under this section

shall be determined in accordance with section

5110 of this title.

"(2)(A) Notwithstanding subsection (g) of section

5110 of this title, the Secretary shall determine

the effective date of an award based on a claim

under this section for an individual described in

subparagraph (B) by treating the date on which

the individual filed the prior claim specified in

clause (i) of such subparagraph as the date on

which the individual filed the claim so awarded

under this section.

"(B) An individual described m this

subparagraph is a veteran, or a survivor of a

veteran, who meets the following criteria:

"(i) The veteran or survivor submitted a claim

for disability compensation on or after

September 25, 1985, and before January 1, 2020,

for a disease covered by this section, and the

claim was denied by reason of the claim not

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establishing that the disease was incurred or

aggravated by the service of the veteran.

"(ii) The veteran or survivor submits a claim for

disability compensation on or after January 1,

2020, for the same condition covered by the prior

claim under clause (i), and the claim is approved

pursuant to this section.

"(d) DETERMINATION OF OFFSHORE.Notwithstanding any other provision of law, for

purposes of this section, the Secretary shall treat

a location as being offshore of Vietnam if the

location is not more than 12 nautical miles

seaward of a line commencing on the

southwestern demarcation line of the waters of

Vietnam and Cambodia and intersecting the

following points:

"Points Geographic Names

Latitude North

Longitude East

At Hon Nhan Island, Tho Chu Archipelago Kien

Giang Province 9°15.0 103°27.0

At Hon Da Island southeast of Hon Khoai Island

Minh Hai Province 8°22.8 104°52.4

At Tai Lon Islet, Con Dao Islet in Con Dao-Vung

Toa Special Sector 8°37.8 106°37.5

At Bong Lai Islet, Con Dao Islet 8°38.9 106°40.3

At Bay Canh Islet, Con Dao Islet 8°39. 7

106°42.1

At Hon Hai Islet (Phu Qui group of islands)

Thuan Hai Province 9°58.0 109°5.0

At Hon Doi Islet, Thuan Hai Province 12°39.0

109°28.0

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At Dai Lanh point, Phu Khanh Province 12°53.8

109°27.2

At Ong Can Islet, Phu Khanh Province 13°54.0

109°21.0

At Ly Son Islet, Nghia Binh Province 15°23.1

109° 9.0

At Con Co Island, Binh Tri Thien Province

17°10.0 107°20.6

"(e) HERBICIDE AGENT.-In this section, the

term 'herbicide agent' has the meaning given

that term in section 1116(a)(3) of this title.".

(b) CLERICAL AMENDMENT.-The table of

sections at the beginning of such chapter is

amended by inserting after the item relating to

section 1116 the following new item:

"1116A. Presumptions of service connection for

veterans who served offshore of the Republic of

Vietnam.".

IMPLEMENTATION.(1) GUIDANCE.-Notwithstanding section 501

of such title, the Secretary of Veterans Affairs

may issue guidance to implement section 1116A

of title 38, United States Code, as added by

subsection (a), before prescribing new

regulations under such section.

(2) UPDATES.-(A) Not later than 120 days

after the date of the enactment of this Act, the

Secretary shall submit a report to the

Committees on Veterans' Affairs of the House of

Representatives and the Senate regarding the

plans of the Secretary(i) to conduct outreach under subsection (d); and

(ii) to respond to inquiries from veterans

regarding claims for disability compensation

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under section 1116A of title 38, United States

Code, as added by subsection (a) of this section.

(B) On a quarterly basis during the period

beginning on the date of the enactment of this

Act and ending on the date on which regulations

are prescribed to carry out such section 1116A,

the Secretary shall submit to the Committees on

Veterans'

Affairs

of the

House

of

Representatives and the Senate updates on the

status of such regulations.

(3) PENDING CASES.(A) AUTHORITY TO STAY.-The Secretary

may stay a claim described in subparagraph (B)

until the date on which the Secretary commences

the implementation of such section 1116A.

(B) CLAIMS DESCRIBED.-A claim described

in this subparagraph is a claim for disability

compensation(i) relating to the service and diseases covered

by such section 1116A; and

(ii) that is pending at the Veterans Benefits

Administration or the Board of Veterans'

Appeals on or after the date of the enactment of

this Act and before the date on which the

Secretary commences the implementation of

such section 1116A.

(d) OUTREACH.(1) REQUIREMENT.-The Secretary of

Veterans Affairs shall conduct outreach to

inform veterans described in paragraph (2) of the

ability to submit a claim for disability

compensation under section 1116A of title 38,

United States Code, as added by subsection (a).

Such outreach shall include the following:

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(A) The Secretary shall publish on the website of

the Department a notice that a veterans

described in paragraph (2) may submit or

resubmit a claim for disability compensation

under such section 1116A.

(B) The Secretary shall notify in writing the

veteran service organization community of the

ability of veterans described in paragraph (2) to

submit or resubmit claims for disability

compensation under such section 1116A.

(2) VETERAN DESCRIBED.-A veteran

described in this paragraph is a veteran who,

during active military, naval, or air service,

served offshore of the Republic of Vietnam

during the period beginning on January 9, 1962,

and ending on May 7, 1975.

(e) REPORTS.-Not later than January 1, 2021,

and annually thereafter for 2 years, the

Secretary of Veterans Affairs shall submit to the

Committees on Veterans' Affairs of the House of

Representatives and the Senate a report

regarding claims for disability compensation

under section 1116A of title 38, United States

Code, as added by subsection (a). Each report

shall include, with respect to the calendar year

preceding the report, disaggregated by the

regional offices of the Department of Veterans

Affairs, the following:

(1) The number of claims filed under such

section.

(2) The number of such claims granted.

(3) The number of such claims denied.

(f) HEALTH CARE.-Section 1710(e)(4) of title

38, United States Code, is amended by inserting

"(including offshore of such Republic as

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described in section 1116A(d) of this title)" after

"served on active duty in the Republic of

Vietnam".

(g) EFFECTIVE DATE.-The amendments

made by this section shall take effect on January

1, 2020.

STATEMENT

After covering 90,000 Navy veterans for agent

orange benefits, the court below left an additional

55,000 adrift. The Court's decision improperly

eliminates a statutory presumption of service

connection for Blue Water Navy veterans who served

within certain waters off Vietnam. Certiorari is

necessary to bring the panel's ruling in line with the

Agent Orange Act and the Federal Circuit's en bane

decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir.

2019).

Additionally, the Court below ignores

international law that provided, countries have full

sovereignty over the airspace above their territory. See

Convention on International Civil Aviation, T.I.A.S.

No. 1591 (Dec. 7, 1944) (Chicago Convention). The

Chicago Convention, which the United States ratified

in 1946, states: "The contracting States recognize that

every State has complete and exclusive sovereignty

over the airspace above its territory." Id., art. 1.

During the Vietnam War, millions of Americans

served in the U.S. military across Southeast Asia,

including on bases in Vietnam and Thailand, in air

operations over the Vietnamese mainland and

surrounding seas, and in the waters offshore of

Vietnam. After the war, many veterans returned home

with nascent cancers and other diseases linked to

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exposure to herbicides such as Agent Orange, a

defoliant used to clear vegetation during the war.

When their illnesses manifested-years or

decades later-it was often difficult to prove that they

resulted from their wartime service.

Recognizing this obstacle, Congress passed the

Agent Orange Act in 1991. The Act provides that

veterans suffering from certain diseases associated

with herbicide exposure need not prove that their

diseases are linked to their service. Instead, "military,

naval, or air service." Veterans may rely on a

presumption that their diseases are service connected

so long as they "served in the Republic of Vietnam"

during the thirteen years of the War (from 1962 to

1975). 38 U.S.C. § 1116(a) (2021).

Despite this broad language, for many years the

Department of Veterans Affairs denied a presumption

of service connection to Blue Water Navy veterans who

served on ships in the offshore waters of Vietnam. The

agency instead applied a misconceived "foot-on-land" or

''boots-on-the ground" policy, which afforded the

presumption only to veterans who served on the

landmass or inland waterways of the Republic of

Vietnam. In 2019, the Federal Circuit corrected the

VA's misinterpretation of the Agent Orange Act and

held that the "Republic of Vietnam" unambiguously

includes its "territorial sea." Procopio v. Wilkie, 913

F .3d 1371, 1376 (Fed. Cir. 2019). As a result, "those who

served in the 12 nautical mile territorial sea of the

'Republic of Vietnam' are entitled to § 1116's

presumption" of service connection. Id. at 1380-81.

Following the Procopio decision, Congress

passed the Blue Water Navy Vietnam Veterans Act of

2019, Pub. L. No. 116-23, 133 Stat. 966 ("BWN Act").

Although Congress passed the BWN Act to codify

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Procopio's protections and expand the presumption of

service connection to veterans who served in the

offshore waters of Vietnam, VA instead issued a new

rule that effectively limits the presumption to fewer

geographic areas (and fewer veterans) than those

covered by the Agent Orange Act.

Military-Veterans Advocacy, Inc. ("MVA")

challenged VA's new rule in a petition for review,

arguing that the rule conflicts with statute,

international law, and this Court's rulings.

Nevertheless, the Court below upheld the new rule,

despite its erroneous interpretation of the Agent

Orange Act and its divergence from Procopio. The

Federal Circuit agreed with the govemment's reading

of the BWN Act-that Congress intended the

geographic points listed in § 1116A to provide an

exclusive definition, overriding any other statute that

might afford a presumption of service connection for

veterans who served in the offshore waters of Vietnam.

Certiorari is warranted to correct the Federal Circuit's

flawed statutory interpretation, which eliminates a

presumption of service connection for Blue Water Navy

veterans who served within certain territorial waters of

Vietnam. This is contrary to the plain language of the

Agent Orange Act, the clear intent of Congress, and

their decision in Procopi,o.

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REASONS FOR GRANTING THE PETITION

I.

The Federal Circuit's Decision

Warrants Certiorari When the "Airspace"

Rule was upheld despite its Conflict with

the . " Convention on International Civil

Aviation, T.I.A.S. No. 1591, arts. 1-2 (Dec. 7,

1944) (Chicago Convention).

The Airspace Rule, which precludes the

presumption of exposure for the airspace over Vietnam,

is inconsistent with the plain text of the governing

statute and the Court bellow's ruling in Procopio.

App 32a

___

[p 11 of Petition for review] The Agent Orange

Act requires VA to grant a presumption of service

connection to all veterans, including those in the air

service, who served "in the Republic of Vietnam." As

the Court below explained in Procopio, Congress

intended that statutory phrase to include at least the

land and sea over which the Republic of Vietnam held

sovereignty. But the same logic applies to airspace.

Under the Convention on International Civil Aviation,

every country holds sovereignty over the airspace over

both its land and its territorial sea. This Court has

recognized this Convention as controll9ng authority.

Wardair Canada, Inc. v. Fla. Dep't of Revenue, 477

U.S. 1, 9-10, 106 S. Ct. 2369, 2374, 91 L. Ed. 2d 1 (1986).

Yet the Airspace Rule is inconsistent with the plain

text of this treaty, the governing statute and this

Court's jurisprudence.

As an initial matter, the Airspace Rule

contradicts the plain text of the governing statute, 38

U.S.C. § 1116. Under Chevron, U.S.A., Inc.v. Natural

Resources Defense Council, Inc., courts use a two-step

framework for "review[ing] an agency's construction of

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the statute which it administers." 467 U.S. 837, 842

(1984); see, e.g., Procopio, 913 F.3d at 1375, Epic

Systems Corp. v. Lewis, 584 U.S._ (2018)

"First, always, is the question whether Congress

has directly spoken to the precise question at issue. If

the intent of Congress is clear, that is the end of the

matter; for the court, as well as the agency, must give

effect to the unambiguously expressed intent of

Congress." Chevron, 467 U.S. at 842-43. Determining

whether Congress has directly spoken involves

"employing

traditional

tools

of

statutory

construction"-including the text, legislative history,

and

canons

of interpretation-to

determine

"congressional intent." Id. at 843 n.9.

Chevron's second step comes into play only if,

after employing these traditional tools of statutory

construction, the court is "unable to discern Congress's

meaning." SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1358

(2018).

Here, there is no room for the VA's Airspace

Rule because the statute is clear. The statute grants a

presumption of service connection to "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." 38 U.S.C.

§ 1116(f). The statute does not limit the presumption to

veterans who served only on Vietnamese land or water.

Rather, it extends the presumption to all veterans who

served in the "active military, naval, or air service ... in

the Republic of Vietnam." Id. (emphasis added). By its

plain language, the presumption applies to veterans

who served in the "air" in the Republic of Vietnam

during the relevant time period. And under clear

principles of international and U.S. law, this includes

the airspace above the Republic of Vietnam.

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Under international law, countries have full

sovereignty over the airspace above their territory. See

Convention on International Civil Aviation, T.I.A.S.

No. 1591 (Dec. 7, 1944) (Chicago Convention). The

Chicago Convention, which the United States ratified

in 1946, states: "The contracting States recognize that

every State has complete and exclusive sovereignty

over the airspace above its territory." Id., art. 1.

"[T]he principle of airspace sovereignty . . . is

today an unquestioned principle of international law."

National Soverei,gnty of Outer Space, 74 Harv. L. Rev.

1154, 1163-64 (1961). The United States likewise

exercises absolute sovereignty over its own airspace.

See 49 U.S.C. § 40103(a)(l) ("The United States

Government has exclusive sovereignty of airspace of

the United States.").

Indeed, in Procopio, the Court below explained

that the Agent Orange Act must be interpreted

consistent with international law. The Court held that,

under the plain text of 38 U.S.C. § 1116(a), veterans

who served in the territorial sea of the Republic of

Vietnam are entitled to the service-connection

presumption if they meet the section's other

requirements. Procopio, 913 F .3d at 1380-81. The Court

explained: "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." Id. at 1375. And because

"international law unambiguously confirms" that the

"Republic of Vietnam" includes its territorial sea, the

Court concluded that Congress's intent was clear.

Id. "International law uniformly confirms that the

'Republic of Vietnam,' like all sovereign nations,

included its territorial sea." Id. Veterans "who served

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in the territorial sea of the 'Republic of Vietnam' [are]

entitled to § 1116's presumption." Id. at 1376.

The Chicago Convention explains that "[f]or the

purposes of this Convention the territory of a State

shall be deemed to be the land areas and territorial

waters adjacent thereto under the sovereignty,

suzerainty, protection or mandate of such State."

T.I.A.S. No. 1591, art. 2. Accordingly, countries have

full sovereignty over the airspace above their land

areas and territorial waters. This convention clearly

establishes that the "Republic of Vietnam" includes the

airspace above its territory. Chicago Convention,

T.I.A.S. No. 1591, art. 1. "This was true in 1955 when

the 'Republic of Vietnam' was created. And this was

true in 1991 when Congress adopted the Agent Orange

Act." Procopio, 913 F.3d at 1375 (citation omitted). The

intent of Congress is therefore clear from the text of §

1116---veterans who served in the airspace of the

"Republic of Vietnam" are entitled to § 1116's

presumption.

When, as here, a statute is clear on its face, there

is no need to resort to legislative history. Bostock v.

Clayton Cnty., 140 S. Ct. 1731, 1749 (2020) ("This Court

has explained many times over many years that, when

the meaning of the statute's terms is plain, our job is at

an end.

In addition, Procopio noted that the statute's

express inclusion of "active military, naval, or air

service . . . in the Republic of Vietnam," § 1116(a)(l),

"reinforc[ed] [its] conclusion that Congress was

expressly extending the presumption to naval

personnel who served in the territorial sea." Id. at 1376.

So too for the veterans who served in the

"air ... in the Republic of Vietnam." 38 U.S.C. §

1116(a)(l)(A).

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Congress clearly intended to extend the

presumption of service connection to air personnel who

served in the "air ... in the Republic of Vietnam." The

Court below, however, relied upon a statement by

Mark Takano that the Blue Water Navy Act did not

apply to the airspace over offshore waters. H.R. REP.

NO. 116-58, at 11-12 (2019), See App16a

_ _, [opinion at pg 9).

Mr. Takano limited his statement to the area over the

waters offshore and not the land mass. Takano went on

to say that: "an aircraft that passed in the airspace

above the offshore waters would not have drawn water

from the sea and therefore is not considered present

within the offshore waters for purposes of this

legislation." Id.

The Takano statement only makes sense when it

is limited to offshore waters. It makes no sense over

land. Aircraft strike missions were over contaminated

land. The bombs, missiles, rockets and cannon of the F4, A-4, A-6 and A-7 aircraft flew low, sometimes at treetop level, and sprayed dup geysers of contaminated dirt

and debris which often adhered to the bottom of the

aircraft. There is no indication in the legislative history

that airspace rule was never intended to apply to flights

over land. 1

This Court should vindicate Congress's intent

and invalidate the provision of the Airspace Rule that

purports to deprive air personnel of that presumption.

Accordingly, certiorari is required to reconcile

the intent of Congress and the Chicago Convention

with the holding of the Court below.

B-52 aircraft that flew high level missions were based in Guam.

Those aircrews are covered under 38 U.S.C. § 1116(d)(5).

1

II.

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A Proper Construction of the BWN

Act Warrants Certiorari when the

Federal Circuit's decision and the

VA's BWN Rule conflicts with the

plain statutory language and departs

from the plain meaning of the Agent

Orange Act and the Federal Circuit's

Own decision in Procopio v. Wilkie,

913 F.3d 1371 (Fed. Cir. 2019) (en

bane)

A. The BWN Rule conflicts with the plain statutory

language.

Agent Orange Act grants a presumption of

service connection to any veteran who, "during active

military, naval, or air service, served in the Republic of

Vietnam" during specified dates. 38 U.S.C. §

1116(a)(l)(B) (2021). It does not limit that presumption

any further.

The plain language of the statute thus grants the

presumption to all veterans in "active ... naval ... service

... in the Republic of Vietnam" during the relevant

period, without restricting that presumption to

veterans who served within the specific geographic

points listed in§ 1116A (or within any other geographic

areas).

Instead, as the Court below observed in

Procopio, the boundaries of "the Republic of Vietnam"

are those laid down in a host of long-standing

international laws, including the Geneva Agreements

on the Cessation of Hostilities in Vietnam, art. 1, July

20, 1954, 935 U.N.T.S. 149, the Convention on the

Territorial Sea and the Contiguous Zone, 15 U.S.T.

1606, T.I.A.S. No. 5639 (Apr. 29, 1958), and the United

20

Nations Convention on the Law of the Sea, as well as

the Restatement of Foreign Relations Law. Procopio,

913 F .3d at 1376. These authorities "confirm[] that,

when the Agent Orange Act was passed in 1991, the

'Republic of Vietnam' included ... its 12 nautical mile

territorial sea." Id. Thus, this Court concluded "that the

intent of Congress is clear from the text of § 1116: [a

veteran] who served in the territorial sea of the

'Republic of Vietnam' is entitled to § 1116's

presumption." Id. In enacting the BWN Act, Congress

expressed no intent to change this interpretation. On

the contrary, it left § 1116's language unchanged and

sought to preserve Procopio's protections. See H.R.

Rep. No. 116-58, at 11.

Yet the Federal Circuit's opinion eliminates the

statutory presumption for veterans who fall within the

gap between § 1116 and § 1116A. The distinction

between § 1116 and § 1116A matters because each

includes areas not covered by the other. Whereas §

1116 grants a presumption of service connection to

veterans who served in "the Republic of Vietnam"

(which includes its territorial sea),§ 1116A expands the

presumption to veterans who served "offshore of the

Republic of Vietnam," and lists specific coordinates that

"the Secretary shall treat . . . as being offshore of

Vietnam." Indeed, the coordinates listed in § 1116A

range far off the coast of Vietnam in many places. As a

result, § 1116A captures some 360 square nautical miles

of sea that lie beyond Vietnam's territorial sea.

While encompassing areas beyond Vietnam's

territorial sea would appear to cover Blue Water Navy

veterans who served in Vietnam's territorial sea, the

coordinates listed in § 1116A fail to capture the entire

territorial sea of the Republic of Vietnam. For example,

the island of Phu Quoc lies off the west coast of

21

Vietnam near its border with Cambodia and hosted a

well-known prisoner of war camp during the Vietnam

War. Although Phu Quoc was part of the sovereign

territory of the Republic of Vietnam during all relevant

times, the border outlined in § 1116A passes south of

the island and thus excludes the 12-mile territorial sea

that surrounds it. Id. The same holds true for the

Paracel and Spratley islands archipelago, owned by the

Republic of Vietnam, which lies seaward of the

demarcation line delineated in § 1116A. Here the

Federal Circuit merely ignored Phu Quoc saying that

Congress had defined the field. App17a[opinion at 15]

The Court below seemed to believe that the BWN Act

had legislatively overruled Procopio although the

House Report stated the intent was to codify Procopio.

HR 116-58 at 11.

The differentiation between §1116 and§ 1116A is

confirmed by the first line in §2(a) of the BWN Act

which states: "Chapter 11 of title 38, United States

Code, is amended by inserting after section 1116 the

following new section ... " The BWN Act did not amend

or modify existing law. It merely added a new section.

Of course, under the Agent Orange Act, any

exclusion should not matter. As Procopio held, service

in those waters is "service in the Republic of Vietnam"

and therefore entitled to the presumption of service

connection afforded by § 1116(a). And nothing in the

BWN Act or in the VA's rule purports to limit that

presumption. Indeed, VA's regulations implementing

the Agent Orange Act extend the presumption of

service connection not only to the territorial sea around

Vietnam, but to the "waters offshore" the Vietnamese

coast. See Procopio, 913 F.3d at 1381 (Lourie, J.,

concurring) (Under VA's regulation, "a veteran who

served in the 'waters offshore' is included within the

22

meaning of 'service in the Republic of Vietnam' and

entitled to presumptive service connection.") (citing 38

C.F .R. § 3.307(a)(6)(iii)).

Nevertheless, contravening both the Agent

Orange Act and VA's own regulations, the agency's

BWN Rule limits the presumption of service connection

to fewer Blue Water Navy veterans. Under the BWN

Rule, VA's central processing teams may grant a

presumption of service connection only when a

veteran's naval service falls within the geographic area

defined by § 1116A. They may not grant the

presumption to veterans who served in any other

offshore waters, even if their service was in Vietnam's

territorial sea, such as the waters off of Phu Quoc, the

Paracels and the Spratlys.

By restricting the presumption that Congress

has authorized, the BWN Rule not only conflicts with

the plain text of § 1116, but it also defies Congress's

intent to expand coverage to Blue Water Navy

veterans under the BWN Act. Congress explained the

purpose of proposed legislation: "To ensure that VA

construes this bill to extend the presumption to all

applicable BWN veterans who may have been exposed

to herbicide agents, the Committee intends that VA's

definition of the Republic of Vietnam for this purpose

be broad and comprehensive." H.R. Rep. No. 116-58, at

11 (emphasis added). And Congress emphasized that

"[t]he bills intends to capture all servicemembers who

were present between the shoreline and the

farthermost reaches of the 12 nautical mile radius

during the relevant timeframe." Id. (emphasis added).

23

B. The Federal Circuit's decision departs from the

plain meaning of the Agent Orange Act.

The court below upheld the BWN Rule as

consistent with the BWN Act. Without even trying to

reconcile the BWN Rule with the Agent Orange Act,

the court below adopted the government's cramped

view of the BWN Act-that Congress intended the

geographic points listed in § 1116A to be exclusive,

even if other statutory provisions (such as § 1116)

might afford a presumption of service connection for

veterans who served in different offshore waters. Put

simply, the Federal Circuit agreed that VA may deny a

presumption of service connection to veterans who

served in Vietnamese territorial waters that are not

specifically described in the BWN Act. Although the

Federal Circuit did not explain its reasoning, it

presumably relied on the preamble to§ 1116A(d), which

states in full:

Notwithstanding any other provision of law, for

purposes of this section, the Secretary shall treat

a location as being offshore of Vietnam if the

location is not more than 12 nautical miles

seaward of a line commencing on the

southwestern demarcation line of the waters of

Vietnam and Cambodia and intersecting the

following points: ...

But the plain meaning of § 1116A(d) is strictly

expansive. By instructing the Secretary to treat certain

geographic points as being offshore of Vietnam

"[n]otwithstanding any other provision of law,"

Congress did not purport to override any other statute

or regulation's definition of the word "offshore."

24

Indeed, § 1116A(d) does not even claim to define the

term "offshore." Instead, it merely sets a minimum

geographic boundary that the Secretary must "treat ...

as being offshore of Vietnam." Id. Thus, on its face, §

1116A(d) recognizes that the phrase "offshore of

Vietnam" might encompass additional areas beyond

those expressly listed in subsection (d)-but it must

include at least the listed areas.

Neither did Congress attempt to restrict,

through § 1116A, any presumption of service

connection available through another statute.

Indeed, § 1116A(d) expressly provides that

Congress's list of geographic points is to be treated as

"offshore of Vietnam" only "for purposes of this

section"-namely, § 1116A itself. To the extent that any

other statute or regulation uses the term "offshore," it

may take on a different and perhaps broader meaning.

Moreover,§ 1116A, like§ 1116, uses the term "Republic

of Vietnam," which it does not define or limit in any

way.

In short, consistent with both its plain language

and its purpose,§ 1116A does exactly one thing: ensure

that the geographic area it delineates cannot be cut

down by another statute or by a future VA regulation

or rule interpreting some other portion of Title 38.

Because nothing in§ 1116A limits the scope and force of

the Agent Orange Act, the BWN Rule improperly

deprives a presumption of service connection to Blue

Water Navy veterans who served in portions of

Vietnam's territorial sea not included in § 1116A's

description of "offshore."

Although the precise number of Blue Water

Navy veterans excluded by the VA's BWN Rule is not

known, it is likely significant. As of 2021, for example,

VA had identified 60,492 Blue Water Navy veterans

25

who served in Vietnam's territorial waters, yet whose

claims were denied under VA's prior policy. See

Nehmer v. U.S. Dep't of Veterans Affairs, No. 86-cv6160, Dkt. 495, at 3 (N.D. Cal. Sept. 17, 2021). This

Court should grant review to correct the court bellow's

flawed statutory interpretation.

Because the Federal Circuit's ruling concerning

this important point of law creates confusion among the

VA employees, veterans organizations and the veterans

comm unity at large, this Court should grant certiorari.

III.

The Secretary conducted a flawed

interpretation of the Agent Orange

Act contrary to its own established

precedent and in contravention of the

pro-veteran/pro-claimant canon of

construction.

The issues presented in this case show that the

Secretary impermissibly interpreted the Agent Orange

Act to the detriment of disabled veterans. Before the

enactment of the PACT Act, the Agent Orange Act

stated, in the event of disability or death due to

exposure to an herbicide agent containing dioxin or 2,4dichlorophenoxyacetic acid, a veteran may be presumed

to have been exposed during service "to any other

chemical compound in an herbicide agent" so long as

there is no affirmative evidence to the contrary. 38

U.S.C. §1116(c); 38 CFR §3.307(a)(6)(i) [emphasis

added].2 In interpreting the statute, it is abundantly

clear that Congress intended to extend the

2 Herbicide agent, as described by the statute meant a "chemical in

an herbicide agent used in support of the United States and allied

military operations in the Republic of Vietnam during the Vietnam

Era."

26

presumption to those exposed to herbicides of any type

so long as they were exposed to dioxin or 2,4-D used in

support of operations in the Republic of Vietnam.

Here the text is unambiguous. If veterans who

served this nation, supported US military operations in

Vietnam, and were exposed to dioxin or 2,4-D, they are

irrefutably entitled to a presumption of herbicide

exposure. Indeed, the parties even agree that

herbicides present in Guam and Johnston Island met

the Act's textual criteria-Le., they had the same

chemical compositions as the rainbow herbicides like

Agent Orange.

On three separate occasions, the Secretary has

covered veterans outside of Vietnam. Namely, veterans

who served near the Korean demilitarized zone,

veterans associated with the C-123 aircraft, and

veterans in Thailand who served on the perimeter of

several Royal Thai Airfields. In denying MVA's

rulemaking petition the Secretary claimed that

granting the request would broaden the regulation

beyond its intended function. He refused to consider an

interpretation of the Act which would encompass

anything but "the deliberate application of herbicides

for a tactical military purpose on a broad scale." Id.

The Secretary's flawed interpretation of the

Agent Orange Act runs contrary to the long-standing

duty of the VA and Federal Courts to interpret

statutes in the most veteran friendly manner. Here, the

ambiguity arises over Congress' definition of "offshore"

and its linguistic similarity to the regulation's use of the

term "waters offshore." See, 38 C.F.R. § 3.307(a)(6)(iii)).

The Secretary is obligated to interpret the Act in the

most veteran friendly manner possible. See e.g., Brown

v. Gardner, 513 U.S. 115, 118 (1994); Boone v. Lightner,

27

319 U.S. 561 (1943); Henderson v. Shinseki, 562 U.S.

428 (2011).

In allocating jurisdiction among the federal

courts, Congress has identified a select few areas of law

where there is a pronounced need for national

uniformity and clarity. Veterans' benefit appeals are

one of those categories, and Congress granted the

Federal Circuit exclusive jurisdiction over these

appeals, as well as challenges to VA regulations. See

Veterans Judicial Review Act, Pub. L. No. 100-687, 102

Stat. 4105 (1988); 38 U.S.C. §§ 502, 7292(c). In assigning

this exclusive jurisdiction, Congress was motivated by

a "strong[] desir[e] to avoid the possible disruption of

VA benefit administration which could arise from

conflicting opinions in the same subject due to the

availability of review in the 12 Federal Circuits or the

94 Federal Districts." H.R. Rep. No. 100-963, at 28.

The pro-veteran canon has been a fixture in our

law for nearly 80 years. In Boone v. Lightner, the Court

considered the Soldiers' and Sailors' Civil Relief Act of

1940, a federal law providing protections for activeduty servicemembers and explained that legislation

conferring a benefit to veterans "is always to be

liberally construed to protect those who have been

obliged to drop their own affairs to take up the burdens

of the nation." 319 U.S. 561, 575 (1943).

Since its pronouncement in Boone, the Court has

consistently applied the pro-veteran canon. For

example, in Fishgold v. Sullivan Dr-ydock & Repair

Corp., 328 U.S. 275, 285 (1946) the Court again

explained that it must construe separate provisions of

the Selective Training and Service Act of 1940 "as parts

of an organic whole and give each as liberal a

construction for the benefit of the veteran as a

harmonious interplay of the separate provisions

28

permits." Id. Decades later, in Coffy v. Republic Steel

Corp., 447 U.S. 191 (1980), the Court once again

explained that statutes that confer benefits upon

veterans are "to be liberally construed." Id. at 196. See

also, Henderson v. Shinseki, 562 U.S. 428 (2011) (the

pro-veteran cannon has been "long applied" and

Congress could not have intended for the "harsh

consequences" that would result from applying a

jurisdictional bar").

This pro-veteran/pro-claimant canon requires

that the Secretary and courts resolve any ambiguities

in favor of the disabled veterans. Instead, the Secretary

deliberately interpreted the Agent Orange Act and the

BWN Act to the detriment of disabled veterans,

causing permanent financial harm and decreased life

expectancy to veterans who fought bravely for this

country. While the Federal Circuit's application of the

pro-veteran canon has long been inconsistent, especially

when deciding whether to defer to an agency's

interpretation of a statute, see Chevron U.S.A., Inc. v.

Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), the

long-established precedent of this Court counsels the

application of the pro-veteran canon to an agency's

statutory interpretation.

The finding of the Federal Circuit is in

contravention of this Court's ruling in Boone and its

progeny. Certiorari should be granted to clarify the

application of the pro-veteran canon and the court

below should utilize this venerated canon in their

interpretation of Congressional intent

29

CONCLUSION

For the foregoing reasons and those stated in

this Petition, Petitioner respectfully requests that the

Court grant certiorari.

Respectfully submitted,

John B. Wells

Counsel of Record

MILITARY-VETERANS ADVOCACY INC.

P.O. Box 5235

Slidell, LA 70469-5235

(985) 641-1855

(985) 290-6940 (direct)

J ohnLawEsq@msn.com