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

la

63 F.4th 935

United States Court of Appeals, Federal Circuit.

MILITARY-VETERANS ADVOCACY INC.,

Petitioner

v.

SECRETARY OF VETERANS AFFAIRS,

Respondent

2020-1537

Decided: March 22, 2023

Petition for review pursuant to 38 U.S.C. Section 502.

Attorneys and Law Firms

Jeffrey T. Quilici, Orrick, Herrington & Sutcliffe LLP,

Austin, TX, argued for petitioner. Also represented by

Melanie L. Bostwick, Washington, DC; Melanie

Hallums, Wheeling, WV; John B. Wells, Law Office of

John B. Wells, Slidell, LA.

Meen Geu Oh, Commercial Litigation Branch, Civil

Division, United States Department of Justice,

Washington, DC, argued for respondent. Also

represented by Brian M. Boynton, Eric P. Bruskin,

Martin F. Hockey, Jr.; Brian D. Griffin, Brandon A.

Jonas, Office of General Counsel, United States

Department of Veterans Affairs, Washington, DC.

Before Newman,, and Cunningham, Circuit Judges.

2a

Opinion

Newman, Circuit Judge.

Military-Veterans Advocacy Inc. ("MVA")

brings this petition pursuant to 38 U.S.C. § 502 and

asks the court to review and revise certain instructions

and practices of the Secretary of Veterans Affairs

("VA"), as set forth in the Veterans Affairs

Adjudication Procedures Manual (the "M21-1

Manual"). This Manual provides guidance and

instructions to the administrators of veterans' benefits

and claims, by interpreting and coordinating the

application of statutes, regulations, policies, and judicial

decisions. Thus the M21-1 Manual "limits VA staff

discretion, and, as a practical matter, impacts veteran

benefits eligibility for an entire class of veterans." Nat'l

Org. of Veterans' Advocates v. Sec'y of Veterans Affs.,

981 F.3d 1360, 1374 (Fed. Cir. 2020) (en bane)

("NOVA").

BACKGROUND

Section 502 Judicial Review

Direct judicial review of certain VA actions and

practices is authorized as follows:

38 U.S.C. § 502. Judicial review of rules and

regulations.- 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.

3a

Section 502 establishes Federal Circuit jurisdiction for

direct review of VA actions concerning "substantive

rules of general applicability, statements of general

policy and interpretations of general applicability" that

must be published in the Federal Register, as provided

by the Administrative Procedure Act ("APA") at 5

U.S.C. § 552(a)(l)(D). LeFevre v. Sec'y of Veterans Affs.,

66 F.3d 1191, 1196 (Fed. Cir. 1995). These

administrative rules, policies, and interpretations are

the substance of the M21-1 Manual.

Section 553(e) provides "the right to petition for

the issuance, amendment, or repeal of a rule." 5 U.S.C.

§ 553(e). Judicial review is available when the right to

petition for rulemaking is denied, as well as when the

petition is denied on its merits. Preminger v. Sec'y of

Veterans Affs., 632 F.3d 1345, 1351-53 (Fed. Cir. 2011).

However, the Secretary errs in stating that the court

does not thereby have jurisdiction to review the result

when the agency grants a request for rulemaking but

does not provide the relief sought by the requester. See

Sec'y Br. 39; Preminger, 632 F .3d at 1352 ("Indeed,

when Congress reported out § 502 it apparently

contemplated that § 502 would provide for review of the

Secretary's decision not to issue a rule as well as the

decision to issue a rule.") (citing H.R. REP. NO. 100-963

(1988), reprinted in 1988 U.S.C.C.A.N. 5782, 5786).

The APA requires the reviewing court to

"decide all relevant questions of law, interpret

constitutional and statutory provisions, and determine

the meaning or applicability of the terms of an agency

action" to the extent necessary to reach a decision. 5

U.S.C. § 706. Section 502 of Title 38 provides further

oversight of agency actions with respect to veterans'

concerns. See 38 U.S.C. § 502.

4a

Legislation and Rules Relating to the Presumption

of Exposure to Agent Orange

MVA asks the court to review certain

presumptions and procedures concerning Vietnam era

exposure to the Agent Orange defoliant. MVA's

petition is directed to VA practices described in the

M21-1 Manual (1) at Section IV (ii)(l)(H)(4)(a) and

Section IV (ii)(l)(H)(4)(b) (the "Thailand Rules"), (2) at

Section IV (ii)(l)(H)(l) (the "Blue Water Navy Rule"),

and (3) at Section IV (ii)(2)(C)(3)(e) (the "Airspace

Rule"). These rules are founded on legislation that

arose as veterans of the Vietnam era developed

illnesses, such as non-Hodgkin's lymphoma and other

cancers, that came to be understood as related to

exposure to Agent Orange.

Early legislative action concerning Agent

Orange exposure is seen in the Veterans Health

Programs Extension and Improvements Act of 1979,

Pub. L. No. 96-151, § 307; 93 Stat. 1092, 1097-98 (1979),

in which Congress required the VA to conduct a study

of long-term health effects on Vietnam veterans who

were exposed to dioxins that were components of

Agent Orange. After study by the Centers for Disease

Control ("CDC") in 1982, see H.R. REP. NO. 98-592 at 5

(1984), reprinted in 1984 U.S.C.C.A.N. 4449, 4451-52,

Congress enacted the Veterans' Dioxin and Radiation

Exposure Compensation Standards Act, Pub. L. No. 98542, 98 Stat. 2725 (1984) (the "Dioxin Act"). The Dioxin

Act directed the VA to establish guidelines for diseases

shown by "sound scientific or medical evidence" to be

associated with herbicides, including Agent Orange,

containing dioxins. Id. §§ 5(a)(l)(A), 5(b)(2)(B), 98 Stat.

at 2727-29.

5a

The Dioxin Act also instructed the VA to

presume that a veteran experienced toxic herbicide

exposure "if the information in the veteran's service

records and other records of the Department of

Defense is not inconsistent with the claim that the

veteran was present where and when the claimed

exposure occurred." Id. § 5(b)(3)(B). In 1986, the VA

promulgated 38 C.F .R. § 3.311a, a regulation presuming

exposure to herbicides containing dioxins for veterans

who "served in the Republic of Vietnam." 38 C.F .R. §

3.311a(b) (1986). This presumption applied to service in

mainland Vietnam, as well as "service in the waters

offshore and service in other locations, if the conditions

of service involved duty or visitation in the Republic of

Vietnam." Id. § 3.311a(a)(l).

In 1990, the CDC reported the results of a

comprehensive study, showing a statistically significant

relation between service in Vietnam and illnesses such

as non-Hodgkin's lymphoma and other cancers. See The

Association of Selected Cancers with Service in the U.S.

Military in Vietnam: Final Study, I. Non-Hodgkin's

Lymphoma, 150 ARCHIVES INTERNAL MED. 2473

(1990); see also Claims Based on Service in Vietnam, 55

Fed. Reg. 43123, 43124 (Oct. 26, 1990) (38 C.F.R. pts. 3,

4).

There followed the Agent Orange Act of 1991,

Pub. L. No. 102-4, 105 Stat. 11. This Act established a

presumption of service connection for veterans afflicted

with designated illnesses who "served in the Republic

of Vietnam." Id.§ 2 (codified as amended at 38 U.S.C. §

1116). The legislative history records the congressional

understanding that the VA could amend the list of

diseases for which Agent Orange service connection

would be presumed, after considering the advice of the

National Academy of Sciences. See 137 CONG. REC.

6a

H719-01 (1991). The M21-1 Manual provided

instructions, forms, questionnaires, and other guidance

for implementation by the VA's regional offices

throughout the nation, establishing "service in

Vietnam" if a veteran received the Vietnam Service

Medal. See M21-1 Manual § 4.08(k)(l) (Nov. 8, 1991)

(citation omitted). However, in 2002 the VA amended

the M21-1 Manual, replacing the Vietnam Service

Medal test for presumptive "service in the Republic of

Vietnam," and instead requiring veterans to show a

"foot-on-land" or "boots-on-the-ground" presence

within Vietnam during their service. See M21-1 Manual,

Pt. III, para. 4.24(e)(l) (Feb. 27, 2002).

Studies of medical causation and service relation

continued as the nation's experience with diseases

associated with Agent Orange enlarged with an aging

veteran population. See, e.g., Herbicide Exposure and

Veterans With Covered Service in Korea, 74 Fed. Reg.

36640-02 (July 24, 2009) (proposed rule).

Representative Bob Filner, the Chairman of the

House Committee on Veteran Affairs, introduced the

Agent Orange Equity Act of 2009 to clarify that 38

U.S.C. § 1116 includes veterans who served in waters

offshore of Vietnam or at any level of airspace above

Vietnam, or who received the Vietnam Service Medal.

See H.R. 2254, 111th Cong. § 2 (2009). The bill was not

enacted, although it received hearings. See Vietnam

Veterans Longitudinal Study, 2010 WL 1785800 (May 5,

2010).

Congressional attention continued in 2013, when

the Blue Water Navy Vietnam Veterans Act of 2013

was introduced. See H.R. 543, 113th Cong. (2013). This

bill would have extended the presumption of service

connection to include service on the territorial seas of

Vietnam. Several versions of the bill were reintroduced

7a

over the next six years. See, e.g., S. 681, 114th Cong.

(2015); H.R. 299, 115th Cong. (2018)Several states,

including Hawaii, Alaska, and Arizona, urged Congress

to assure the presumption of service connection to

veterans who "served in the waters defined by the

Combat Zone" and "in the airspace over the Combat

Zone" in Vietnam. 160 CONG. REC. S3290-05, S2393

(May 22, 2014) ("Congress is respectfully urged [by the

House of Representatives of Hawaii] to restore the

presumption of a service connection for Agent Orange

exposure to United States veterans who served in the

waters defined by the Combat Zone and in the airspace

over the Combat Zone in Vietnam ...."); 160 CONG.

REC. S6197-01, S6201 (Nov. 20, 2014) ("[T]he Alaska

State Legislature urges the United States Congress to

restore the presumption of a service connection for

Agent Orange exposure to United States Veterans who

served in the waters defined by the combat zone and in

the airspace over the combat zone ...."); see also 160

CONG. REC. S4217-01, S4423 (July 7, 2014) ("[T]he

House of Representatives of the State of Arizona,

prays ... [t]hat the United States Congress restore the

presumption of a service connection between Agent

Orange exposure and subsequent illnesses to United

States Vietnam War veterans who served in the waters,

which is defined as the combat zone, and in the airspace

over the combat zone."). Other states and localities

urged Congress to apply the presumption for veterans

who served in the "territorial waters" or "offshore

waters," and "airspace" of Vietnam. See 155 CONG.

REC. E2166-04, E2167 (July 31, 2009) ("The 81st

Legislature of the State of Texas respectfully urge

[Congress] to restore the presumption of a service

connection for ... veterans who served on the inland

waterways, in the territorial waters, and in the airspace

8a

of the Republic of Vietnam ...."); 160 CONG. REC.

S3290-05, S3291 (May 22, 2014) ("The House of

Representatives [of Pennsylvania] respectfully urge ...

Congress ... to restore the presumption of a service

connection for ... veterans who served on the inland

waterways, territorial waters and in the airspace of

Vietnam ...."); 159 CONG. REC. E1889-01, E1889 (Dec.

16, 2013) ("The United States Congress should ... direct

the [VA] to administer the Agent Orange Act under the

presumption that herbicide exposure ... includes

[Vietnam's] inland waterways, offshore waters, and

.

")

airspace

.....

In Congressional hearings, the Congressional

Budget Office provided data and estimated that 229,000

veterans were presumptively exposed to Agent Orange

in the Vietnam Service Medal area, 55,000 more

veterans than the Congressional Research Service

estimated were serving in the territorial seas of

Vietnam. See Veteran Benefits Legislation, 2015 WL

3378295 (May 13, 2015). The MVA participated in

Congressional hearings and pointed out differences

between various criteria used to determine "service in

the Republic of Vietnam," including the Vietnam

Service Medal area, the territorial seas of Vietnam, and

the "foot-on land" rule. See id. ("Historically ... the M211 Manual[ ] allowed the presumption to be extended to

all veterans who had received the Vietnam service

medal .... In a February 2002 revision to the M21-1

Manual, the VA ... required a showing that the veteran

has set foot on the land or entered an internal river or

stream."); Pending Legislation, 2017 WL 1281456 (Apr.

5, 2017) ("Prior to 2002, the VA granted the

presumption of exposure to any ship that crossed the

[Vietnam Service Medal demarcation line]. [The Blue

Water Navy Vietnam Veterans Act] will restore the

9a

presumption only to a ship that crosses the [line

demarcating the territorial seas].").

In 2015, an Institute of Medicine of the National

Academy of Sciences report led the VA to presume

herbicide-agent exposure for veterans who "regularly

and repeatedly operated, maintained, or served

onboard C-123 aircraft known to have been used to

spray an herbicide agent during the Vietnam era." 38

C.F.R. § 3.307(a)(6)(v); see also Presumption of

Herbicide Exposure and Presumption of Disability

During Service for Reservists Presumed Exposed to

Herbicide, 80 Fed. Reg. 35246-01, 35247 (June 19, 2015)

(interim final rule).

A Senate resolution in 2017 "recognize[d] the

intent of the Agent Orange Act of 1991 (Public Law

102-4) included the presumption that those veterans

who served in the Armed Forces in the bays, harbors,

and territorial seas of the Republic of Vietnam ...

served in the Republic of Vietnam for all purposes

under the Agent Orange Act of 1991." 163 CONG. REC.

S2219-03, S2220 (Apr. 4, 2017). In 2018, the National

Academy of Sciences issued its Veterans and Agent

Orange: Update 11, stating that "there was inadequate

information to determine the extent of exposure

experienced by Blue Water Navy personnel, but that

there were possible routes of exposure," including ships

drawing contaminated seawater to distill for potable

water. NAT'L ACAD. SCI, VETERANS AND

AGENT ORANGE: UPDATE 11 at 36 (The National

Academics Press, 2018).

In 2019, this court held that the Republic of

Vietnam includes its 12 mile territorial sea. Procopio v.

Wilkie, 913 F .3d 1371, 1380-81 (Fed. Cir. 2019). This

was codified by the Blue Water Navy Vietnam

Veterans Act of 2019, Pub. L. No. 116-23, § 2, 133 Stat.

10a

966 (codified at 38 U.S.C. § 1116A), stating "[a] veteran

who ... served offshore of the Republic of Vietnam ...

shall be presumed to have been exposed." The Act then

defines the boundaries of "offshore" service based on a

list of geographical coordinates that represent

Vietnam's claimed territorial waters. See 38 U.S.C. §

1116A.

However, the airspace over Vietnam was not

included in the scope of the Act, as Congressman Mark

Takano submitted 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." H.R. REP. NO. 116-58, at

11-12 (2019), reprinted in 2019 U.S.C.C.A.N. 279, 28082. Still, Rep. Takano stated that "the Committee

intends that VA's definition ... be broad and

comprehensive." Id. at 11. The House Report also

referred to the Institute of Medicine's conclusion that,

given the passage of time and lack of data collected

during the conflict, definitive answers concerning Blue

Water Navy Veterans' exposure to Agent Orange are

not available, and are unlikely to ever become available.

Id. at 10.

Debate continued, along with legislative

attention. On August 10, 2022, President Eiden signed

the Sergeant First Class Heath Robinson Honoring

Our Promise to Address Comprehensive Toxics Act of

2022, Pub. L. No. 117-168, 136 Stat. 1759 (codified at 38

U.S.C. §§ 1116 and 1710) ("the PACT Act"), effective

October 1, 2022. The PACT Act included provisions

relevant to Agent Orange exposure for Vietnam era

veterans who served in Thailand, as we shall discuss.

lla

DISCUSSION

MVA's 38 U.S.C. § 502 petition is directed to the

designated "Thailand Rules," the "Blue Water Navy

Rule," and the "Airspace Rule," with respect to

presumptions of Agent Orange exposure and service

connection, as administered by VA statutes,

regulations, and M21-1 Manual provisions. Similar

issues for other areas and additional background are

reported in our decision in Military-Veterans

Advocacy, Inc. v. Secretary of Veterans Affairs, 38

F .4th 154 (Fed. Cir. 2022).

We review § 502 petitions to "decide all relevant

questions of law, interpret constitutional and statutory

provisions, and determine the meaning or applicability

of the terms of an agency action." 5 U.S.C. § 706;

McKinney v. McDonald, 796 F.3d 1377, 1383 (Fed. Cir.

2015). We will "hold unlawful and set aside agency

action" that is "arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law." 5

U.S.C. § 706(2)(A).

A

THE THAILAND RULES

The challenged Thailand Rules concern the scope

of the presumption of exposure to Agent Orange for

veterans who served on military bases in Thailand.

The relief that MVA requested of the VA, and

subsequently this court, relating to the Thailand Rules

has now been provided in part by the PACT Act as

follows.

In 2010, the Secretary responded to

congressional concern and amended the M21-1 Manual

to apply the presumption of service connection to

12a

veterans who were stationed in Thailand during the

Vietnam era. However, the presumption was limited to

veterans whose duties placed them "at or near the base

perimeter," for defoliant use was primarily at the

perimeter. M21-1 Manual, Section IV (ii)(2)(C)(l0)(q)

(Oct. 4, 2010). This provision had not substantively

changed since 2010, despite petitions for rulemaking,

legislative hearings, and the filing of this § 502 petition.

Then, in 2022 the requested change was partially made

in the PACT Act, enacted while this case was pending:

PACT Act § 403. Presumptions of service

connection for diseases associated with

exposures to certain herbicide agents for

veterans who served in certain locations.***

(d) In this section, the term "covered service"

means active military, naval, air, or space

service-.... (2) performed in Thailand at any

United States or Royal Thai base during the

period beginning on January 9, 1962, and ending

on June 30, 1976, without regard to where on the

base the veteran was located or what military

job specialty the veteran performed ....

136 Stat. 1759, 1780--81 (amending 38 U.S.C. § 1116).

In view of this enactment, we requested briefing

from the parties concerning its effect on MVA's § 502

petition.

The Secretary responded that "the PACT Act

does not moot MVA's 'Thailand Rules' challenge ....

because it does not provide MVA with the full extent of

the relief that it had sought from VA and this court,"

referring to a discrepancy in the chronological period

covered by the PACT Act (January 9, 1962--June 30,

13a

1976), and the period used by the VA in the Thailand

Rules context (February 28, 1961-May 7, 1975). Sec'y

Suppl. Resp. Br. 2-3, Sept. 14, 2022, ECF No. 56. The

Secretary stated that "there is [a] portion of MVA's

'Thailand Rules' challenge that remains live even after

the PACT Act." Id. at 3--4.

But the MVA wrote that "the PACT Act

provides the full relief requested by MVA on behalf of

its Thailand veteran members, and any relief provided

by this Court would not affect their legal interests."

MVA Suppl. Resp. Br. 7, Sept. 14, 2022, ECF No. 57

(citations omitted). MVA did not agree with the

Secretary that any part of its challenges to the Thailand

Rules remained live, so it appears that the MVA has

waived its challenges to the Thailand Rules to the

extent that its challenges were not moot.

The Thailand Rules portion of the petition is

accordingly dismissed.

B

THE BLUE WATER NAVY RULE

As an initial matter, the Secretary argues that

MVA does not have associational standing to challenge

the Blue Water Navy Rule, as well as the other M21-1

Manual provisions at issue. To establish associational

standing, an organization must show that:

(a) its members would otherwise have standing

to sue in their own right; (b) the interests it

seeks to protect are germane to the

organization's purpose; and (c) neither the claim

asserted nor the relief requested requires the

participation of individual members in the

lawsuit.

14a

NOVA, 981 F.3d at 1368 (citations omitted). The

Secretary accepts that this§ 502 action meets NOVA's

requirements as described in (b) and (c), but the

Secretary argues that "[n]one of the manual revisions

MVA disputes affect any of its members' substantive

rights." Sec'y Br. 29.

The MVA filed affidavits of two of its members,

stating uncertainty as to whether their claims are

covered by the current Blue Water Navy rule. Section

502 authorizes petitions for clarification of VA Rules

when there is "an actual or potential claim [that] is

sufficiently affected by the particular challenged rule to

meet the requirements of actual or imminently

threatened concrete harm and the other requirements

for that member to have Article III standing." NOVA,

981 F .3d at 1370. Having reviewed the record, we do

not agree with the Secretary that the MVA lacks

organizational standing here.

With respect to the Blue Water Navy Rule

portion of the § 502 petition, we do not share MVA's

view that the VA's interpretation of the Blue Water

Navy Vietnam Veterans Act of 2019 unduly narrowed

the presumption of exposure and service connection as

applied to shipboard service. MVA Br. 1-5.

The initial regulations as adopted in 1993 stated

that the presumption of service connection regarding

Agent Orange exposure applied to shipboard veterans

with "[s]ervice in the waters offshore and service in

other locations if the conditions of service included duty

or visitation in the Republic of Vietnam." 38 C.F .R. §

3.307(a)(6)(iii) (1993). As noted su'[Yf'a, in 2002 the VA

began interpreting this regulation to require a veteran

to show some service on land within Vietnam applying

the "foot-on-land" or "boots-on-the-ground" policy. See

M21-1 Manual, Pt. III, para. 4.24(e)(l) (Feb. 27, 2002).

15a

This court previously upheld that interpretation as

within the Secretary's discretion. See Haas v. Peake,

525 F.3d 1168, 1193 (Fed. Cir. 2008) ("Drawing a line

between service on land, where herbicides were used,

and service at sea, where they were not, is prima facie

reasonable."). Thus naval service without foot-on-land

presence did not create a presumption of service

connection for veterans who became afflicted with the

designated conditions.

The foot-on-land rule was the subject of ongoing

debate, and in 2019 we overruled Haas and held that

the presumption of service connection does not require

presence on mainland Vietnam. Procopio, 913 F .3d at

1376 ("[W]hen the Agent Orange Act was passed in

1991, the 'Republic of Vietnam' included ... its 12

nautical mile territorial sea."). The requirement for

"duty or visitation" onshore was eliminated. Id. at

1377-78. This decision led to the Blue Water Navy

Vietnam Veterans Act of 2019, which provides:

38 U.S.C. § 1116A(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.

This presumption is implemented in the M21-1 Manual,

Section IV (ii)(l)(H)(l)(g), referring to service on

vessels operating in "eligible offshore waters." The

question as presented in MVA's § 502 petition relates to

the definition of "eligible offshore waters." The Blue

16a

Water Navy Vietnam Veterans Act of 2019 defines

"offshore of Vietnam" as within the traditional 12

nautical mile limit of territorial sea:

38 U.S.C. § 1116A(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 ... [longitudinal and latitudinal

coordinates].

MVA argues that the 12 nautical mile limit should

not apply, for Procopio and 38 U.S.C. § 1116(d) did not

limit Vietnam's territorial waters to any specific

nautical mileage, nor did the court define offshore

waters by longitude and latitude as in 38 U.S.C. §

1116A. MVA argues that these delineations are

contrary to this court's holding in Procopio and asks

this court to assure that the presumption of service

connection applies to all naval and air service

"throughout the Vietnamese theater of combat." MVA

Reply Br. 32. MVA points out that "§ 1116A captures

some 360 square nautical miles of the sea that lie

outside the territorial sea of the Republic of Vietnam."

MVA Br. 39. MVA also argues that "§ 1116A does not

capture the entire territorial sea of the Republic of

Vietnam," such as the sea near the island of Phu Quoc,

id., and states that those areas should be deemed

covered by the presumption in view of our ruling in

Procopio, where we stated that "all available

international law, including but not limited to the

17a

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," 913 F .3d at 1376.

The Secretary states that it was Congress, not

the VA, that defined the geographic scope of what

"offshore" areas were included within the Blue Water

Navy Vietnam Veterans Act of 2019. See Sec'y Br. 52.

The Secretary argues that Phu Quoc is not within §

1116A and that, "[i]f MVA wishes to challenge the

scope of the plain reach of the statute, it must direct

that grievance toward Congress." Id. We agree with

the Secretary that, if any changes are warranted, the

legislative process is the appropriate forum.

MVA also objects to the remand of authority

from the regional offices to a centralized team of

administrators for processing claims for Agent Orange

exposure. In accordance with the Blue Water Navy

Vietnam Veterans Act of 2019, the M21-1 Manual was

amended to state:

ROs are no longer authorized to establish if a

Veteran's service qualifies for herbicide exposure in

RVN claims. The centralized processing teams will be

responsible for all adjudication activities involved in

processing blue water Navy contentions ....

M21-1 Manual, Section IV (ii)(l)(H)(l)(a). MVA

states that the 2019 "withdrawal of authority from the

Regional Offices leaves Blue Water Navy veterans who

served outside the area defined in § 1116A completely

unable to obtain a presumption of service connection in

the initial adjudication of their claims." MVA Reply Br.

19. MVA's criticism appears to be unwarranted, and

unresponsive to the notion that a centralized team of

experienced claim administrators is a desirable step in

the area of complex medical science.

18a

The petition with respect to review of the Blue Water

Navy Rule is denied.

C

THE AIRSPACE RULE

After the Agent Orange Act was enacted in 1991,

questions soon arose as to what should constitute

service "in the Republic of Vietnam" under the Act.

The VA's general counsel issued an opinion that

concluded, for purposes of the presumption of service

connection regarding Agent Orange exposure under 38

C.F .R. § 3.313, " 'service in Vietnam' does not include

service of a Vietnam era veteran whose only contact

with Vietnam was flying high-altitude missions in

Vietnamese airspace." VA Office Gen. Couns., Pree. Op.

7-93 Service in Vietnam under 38 C.F.R. § 3.313 (Aug.

12,

1993),

https://www.va.gov/ogc/opinions/1993precedentopinions

.asp. This position was reflected in the M21-1 Manual,

Section IV (ii)(2)(C)(3)(e) (the "Airspace Rule"). Efforts

to remove the "high-altitude missions" limitation have

not succeeded, as summarized supra. MVA asks us to

act under § 502 to "invalidate the Airspace Rule as

contrary to the governing statute, international law,

and [our] recent decision in Procopio." MVA Br. 29.

MVA states that our reasoning in Procopio that

explained the Agent Orange Act should be interpreted

consistently with international law compels the

conclusion that the "Republic of Vietnam" includes the

airspace above its territory. Thus MVA states that a

regulatory exception for "high-altitude missions"

should be corrected by action under § 502.

MVA provided the affidavit of Frederick

Hinchliffe, a U.S. Navy veteran who flew bombing

19a

missions over Vietnam, but never landed in the country.

Hinchliffe states that on one of his bombing runs over

South Vietnam at 3,000 feet, "the air was significantly

thick with yellowish haze" and "all vegetation was

defoliated." Id. at A3-A4. However, flying at 3,000 feet

is not a high-altitude mission, as admitted by MVA. Id.

at 26-27.

MVA states that "if the Airspace Rule were

vacated, Mr. Hinchcliffe [sic] would be able to show that

he should be granted the presumption of service

connection under a correct interpretation of the

governing statutes and case law." MVA Reply Br. 11.

The Secretary argues that MVA's challenge to

the Airspace Rule is time barred under 28 U.S.C. §

2401(a), for the exclusion of high-altitude missions from

the presumption of service connection has been the rule

since 1993, and that the December 2019 M21-1 Manual

revisions merely republished the Airspace Rule with a

change to capitalization. See Sec'y Br. 34-37; 28 U.S.C.

§ 2401(a) ("Except as provided by chapter 71 of title 41,

every civil action commenced against the United States

shall be barred unless the complaint is filed within six

years after the right of action first accrues." (emphasis

added)). We agree with the Secretary that MVA's

challenge to the Airspace Rule is barred by the six-year

limit provided in § 2401(a) because the rule has been in

full force and effect since 1993. See Sec'y Br. 34-35.

However, even if the time bar did not apply, we

also agree with the Secretary on the merits. The

Secretary supports the current Airspace Rule by citing

the statement in H.R. REP. NO. 116-58, at 11-12 (2019),

reprinted in 2019 U.S.C.C.A.N. 279, 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

20a

purposes of this legislation." Because Congress is

presumed to have had knowledge of the VA's Airspace

Rule, the Secretary argues this statement signals that

Congress chose not to enlarge the presumption of

service connection with respect to high-altitude flights.

See Sec'y Br. 44--45.

The Secretary points out that Congress has

consistently preserved the high-altitude exception since

its adoption in 1993. See id. at 44--46. It appears that

Congress has, again, not accepted the position that

MVA requests of the court. In the recently enacted

PACT Act, in which Congress broadened the Thailand

Rules, Congress explicitly included airspace service in

the toxic exposure presumption for certain designated

locations, but not Vietnam. See PACT Act, 136 Stat. at

1778 (defining "covered veteran" for certain toxic

exposure presumption purposes as "any veteran who ...

performed active military, naval, air, or space service

while assigned to a duty station in, including the

airspace above [the named countries]").

The petition with respect to the Airspace Rule

must be denied.

CONCLUSION

This petition under 38 U.S.C. § 502 is dismissed

as to the Thailand Rules and denied as to the Blue

Water Navy Rule and the Airspace Rule.

DISMISSED IN PART, DENIED IN PART

21a

3/22/23

United States Court of Appeals, Federal Circuit.

MILITARY-VETERANS ADVOCACY INC.,

Petitioner

v.

SECRETARY OF VETERANS AFFAIRS,

Respondent

2020-1537

Decided: March 22, 2023

Petition for review pursuant to 38 U.S.C. Section 502.

JUDGMENT

THIS CAUSE having been considered, it is

ORDERED AND ADJUDGED: DISMISSED IN

PART, DENIED IN PART FOR THE COURT

March 22, 2023 Date

/s/ Peter R. Marksteiner

Peter R. Marksteiner Clerk of Court

22a

7/5/23

United States Court of Appeals, Federal Circuit.

MILITARY-VETERANS ADVOCACY INC.,

Petitioner

v.

SECRETARY OF VETERANS AFFAIRS,

Respondent

2020-1537

ON PETITION FOR REHEARING EN BANC

Before MOORE, Chief Judge, NEWMAN,

LOURIE, DYK, PROST, REYNA, TARANTO,

CHEN, STOLL, CUNNINGHAM, and STARK,

Circuit Judges.*

PER CURIAM.

ORDER

Military-Veterans Advocacy Inc. filed a petition

for rehearing en bane. A response to the petition was

invited by the court and filed by the Secretary of

Veterans Affairs.

The petition was first referred as a petition for

rehearing to the panel that heard the appeal, and

thereafter the petition for rehearing en bane was

referred to the circuit judges who are in regular active

service.

Upon consideration thereof,

IT IS ORDERED THAT:

23a

The petition for panel rehearing is denied.

The petition for rehearing en bane is denied.

The mandate of the court will issue on July 12,

2023

FOR THE COURT

/s/ Jarrett B. Perlow

Jarrett B. Perlow

Clerk of Court

July 5, 2023

Date

Footnote

* Circuit Judge Hughes did not participate.

24a

No. _ _

United States Court of Appeals

for the Federal Circuit

MILITARY-VETERANS ADVOCACY, INC.

Petitioner,

v.

ROBERT L. WILKIE,

SECRETARY OF VETERANS AFFAIRS,

Respondent.

PETITION FOR REVIEW

Military-Veterans

Advocacy

John B. Wells

LA Bar #23970

P. 0. Box 5235

Slidell, LA 70469-5235 (mail)

769 Robert Blvd. Suite 201D

Slidell, LA 70458 (physical)

Phone: (985) 641-1855

Direct: 985-290-6940

Email:

J ohnLaw Esq@msn.com

25a

Basis of the Petition

Pursuant to 38 U.S.C. ' 502, Federal Rules of

Appellate Procedure Rule 15(a), and Federal Circuit

Rules 15 and 47.12, Petitioner Military-Veterans

Advocacy (MVA) petitions the Court for review of final

rules of the

Department of Veterans Affairs

(hereinafter "VA"), entitled "SC for Disabilities From

Exposure to Certain Herbicide Agents or Based on

Service in the RVN' and "Developing Claims Based on

Herbicide Exposure in Thailand During the Vietnam

Era" that were issued by Respondents in the Veterans

Benefits Manual M21-1, Part IV, Subpart ii.

(Hereinafter final rule). The final rule was effective on

its date of issuance, December 31, 2019.

Petitioner's Standing.

MVA is a non-profit corporation organized under

the laws of Louisiana who has been granted tax exempt

status under 26 U.S.C. § 501(c)(3). MVA litigates,

legislates and educates on behalf of members of the

military and military veterans. This includes pursuing

appeals on behalf of veterans who have been

improperly denied earned veterans' benefits.

MVA has in excess of 900 members and is

growing quickly. The corporation has four sections,

Blue Water Navy, (hereinafter BWN, Agent Orange

Survivors of Guam, (hereinafter AOSOG) Veterans of

Southeast Asia (hereinafter VOSEA) and Veterans of

Panama (hereinafter VOP). Two sections, BWN and

VOSEA are directly impacted by the final rule. BWN

includes those who served in the waters offshore

Vietnam including the territorial sea and offshore. This

would include the theater of combat defined by

26a

Executive Orders 11216, 11231 and 32 C.F.R. '578.26.

VOSEA includes those who were stationed in the

nation of Thailand conducting operations in support of

the war in Vietnam.

MV A has been found by this Court to have

standing to bring actions on behalf of veterans.

Procopio v. Sec'y of Veterans Affairs, 943 F.3d 1376,

1378 n. 1 (Fed. Cir. 2019)

Jurisdiction

Jurisdiction is alleged under 38 U.S.C. § 502 for

judicial review pursuant to Chapter 7 of Title 5 of the

United States Code, specifically 5 U.S.C. § 706. This

Court has jurisdiction because the VA failed to publish

the final rule in the Federal Register as required by 5

U.S.C. § 552[1][B] [C][D] and [E]. Specifically the final

rule is a statement of the general course and method by

which its functions are channeled and determined,

constitutes a rule of procedure, is an interpretation of

general applicability formulated and adopted by the

agency and is a revision and/or amendment of the

foregoing under 5 U.S.C. § 552(a)(l)(D). Additionally,

this is an interpretation of law, specifically 38 U.S.C. §§

1113(b), 1116 and 1116A which vests this Court with

jurisdiction. Procopio v. Sec'y of Veterans Affairs, 943

F.3d 1376, 1380 (Fed. Cir. 2019). Finally, the final rule is

a response to requests for rulemaking.

Petitioner is cognizant of this Court's

jurisdiction findings in Di,sabled American Veterans v.

Secretary of Veterans Affairs, 859 F.3d 1072 (Fed. Cir.

2017) (DAV), and Gray v. Secretary of Veterans Affairs,

859 F.3d 1072 (Fed. Cir. 2017), that it lacks jurisdiction

under Section 502 to review interpretive rules if VA

promulgates them m its internally binding

27a

administrative staff manual such as the M21-1

Adjudication Manual. Petitioner submits that DAVs

holding is mistaken and notes that the Supreme Court

granted certiorari to review it. Following merits

briefing, however, the Gray case became moot, so the

most the Court could do was vacate the Gray panel's

decision. A current challenge to DAV is pending before

this Court in National Organization of Veterans

Advocates v. Secretary of Veterans Affairs docket

number No. 20- 1321. The Court should find that DAV

was wrongly decided or, alternatively, that for the

reasons discussed herein the instant case is

distinguishable.

The final rule does constitute final agency action

for purposes of a Chapter 7 of Title 5 United States

Code. Review under 5 U.S.C. § 706 is appropriate since

the failure to publish the final rule in the Federal

Register triggers this Court's jurisdiction. Review is

further proper under 5 U.S.C. § 704 since there is no

other remedy at law. Although not issued under the

rulemaking provisions of 5 U.S.C. § 553, the Court is

empowered under this provision to review the final

agency action since the final rule is a rule of general

applicability, interprets a statute, was issued in

response to requests for rulemaking and effectively

denied the provisions of those requests. Preminger v.

Secretary of Veterans Affairs, 632 F.3d 1345, 1352 (Fed.

Cir. 2011).

Factual Background

In December of 2015, Robert Chilsom petitioned

the VA to initiate rulemaking in a document entitled:

Petition to the Department of Veterans Affairs to

Initiate Rule Making: A Request for Examination and

28a

Codification of the Depanment of Veterans Affairs

Herbicide Exposure Policy for Thailand Military

Bases. The Petition specifically asked the Secretary to

(1) codify the policy regarding herbicide exposure in

Thailand during the Vietnam era, and (2) further

expand the scenarios in which VA considers a veteran

to have been exposed to herbicides while serving in

Thailand.

On September 22, 2017, the Respondent granted

the rulemaking request "to the extent that VA will

initiate rulemaking on the issue of herbicide exposure

in Thailand during the Vietnam era."

On December 3, 2018, MVA hand delivered a

rulemaking request to Respondent Secretary of

Veterans Affairs Robert Wilkie entitled Request for

Rulemaking 38 C.F.R. § 3.307 and M21-1 Manual.

On January, this Court, in a 9-2 decision,

overruled their prior decision in Haas v. Peake 525F.3d

1168 (Fed. Cir. 2008) and found that the phrase "in the

Republic of Vietnam," as used in the Agent Orange Act

of 1991 included the territorial sea of that nation.

Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019).

(Procopio I). The Procopio I Court also found, and the

VA conceded, that the "waters offshore," as used in 38

C.F .R. § 3.307(a)(6)(iii) extended past the territorial sea.

Judge Lourie, in his concurrence indicated that 38

C.F .R. § 3.307(a)(6)(iii) required veterans serving in

waters offshore to be covered by the presumption.

On June 12, 2019, Congress passed the Blue

Water Navy Vietnam Veterans Act of 2019. The

legislation was signed by the President on June 25, 2019

and was codified by adding an additional section, 38

U.S.C. § 1116A. The Act, Pub. L. 116-23, extended the

presumption of exposure to an area "offshore" which

29a

generally mirrored the territorial sea. 1 The Act also

included authority for the Secretary to stay

implementation of the Act "until the date on which the

Secretary commences the implementation of such

section 1116A." Pub. L. 116-23 § 2c3a.

On July 1, 2019 the Secretary instituted a stay of

all claims filed under Procopio and Pub.L.116-23.

On July 25, 2019 Petitioner and others filed a

Petition for Expedited Review concerning the

Secretary's ability to stay Procopio claims.

This Court found that the Secretary had the

authority to issue a stay, but only until January 1, 2020

and not beyond. Procopio v. Sec'y of Veterans Affairs,

943 F.3d 1376, 1381 (Fed. Cir. 2019). (Procopio II). The

Procopio II court specifically did not decide whether §

1116A overruled Procopio I or replaced the original

provisions of §1116, upon which Procopio I was decided.

("We do not decide whether § 1116A replaces § 1116.

Both parties have raised arguments as to why the two

sections may have separate applications. Petitioners' Br.

38-42; Government's Br. 34-41.") Procopio II, 943 F .3d

at 1382.

On December 31, 2019, the respondent issued

changes to his M21-1 Manual in response to the

rulemaking request.

On January 1, 2020, the VA began to adjudicate

Blue Water Navy claims.

On January 3, 2020 MVA submitted another

rulemaking request entitled Request for Rulemaking

38C.F.R § 3.307 and M21-l Manual. An amplification

entitled Amplification of rulemaking request

1

Due to an administrative error, the offshore area

added approximately 360 square nautical miles to the

area recognized by Procopio I.

30a

concerning the presence of herbicide and veteran

exposure in Thailand was sent to the Respondent on

February 10, 2020.

No further response has been received.

Failure to Publish for Notice and Comment.

Due to an incorrect interpretation of the law,

Section iv.ii.2.C.3.e.of the Final Rule impermissibly

limits the presumption of exposure from areas that are

covered under 38 C.F .R. § 3.307(a)(6)(3), Procopio I and

the Convention on International Civil Aviation

(Chicago, 7 Dec. 1944) 15 U.N.T.S. 295, T.I.A.S. 1591

(hereinafter the Chicago Convention).

Due to an incorrect interpretation of the law,

specifically 38 U.S.C. § 1113 and other provisions,

Sections iv.ii.1.H.4.a. and iv.ii.1.H.4.b improperly

excludes veterans exposed to herbicide from the

presumption of exposure. These veterans were directly

exposed to herbicides in the same manner as the

veterans covered by the Final Rule.

Although the Secretary committed to issuing

rules nothing has been published in the Federal

Register as required by law.

Pursuant to the Administrative Procedures Act

(APA) this Final Rule should have been published in

the Federal Register for a period of public notice and

comment prior to its implementation. See 5 U.S.C. §

552(a)(l)(D), § 553(b), § 706(a)(2)(D). Respondents'

failure to comply with the requirements of the APA,

warrants this Court's action to invalidate the Final

Rule.

31a

Failure to Consider Probability of Exposure to

Herbicides.

Judicial review of the Final Rule also is sought

with respect to the general provisions of Sections

IV.ii.1.H.4.a through IV.ii.1.H.4.b. These provisions

purport to provide coverage to all exposed Thailand

veterans. It does not. Coverage is generally limited to

those who served on designated Army or Air bases

with duties on the base perimeter. This rule excludes,

inter alia, veterans whose messing, sleeping and living

quarters abutted the perimeter and those who were

present within the designated wind drift "buffer'' zone.

As more fully deprived in the requests for

rulemaking, sufficient evidence existed to show that

herbicide was sprayed throughout the Army and Air

Force bases in Thailand that were manned by

American military personnel. The limitation of the

exposure presumption to those having duties on the

perimeter ignored the physical location of barracks,

messing facilities, showers, recreation facilities,

workspaces and other areas where military personnel

gathered on and off duty. The Final Rule also ignores

the established 500- meter (approximately 1640 feet)

buffer zone for ground level spraying due to wind drift.

The failure to consider the evidence in formulating the

Final Rule was arbitrary and capricious within the

scope of 5 U.S.C. § 706(2)(A) and the Final Rule's

exclusion is unsupported by substantial evidence as

required by 5 U.S.C. § 706(2)(E).

32a

Failure to Include Veterans Serving in "Waters

Offshore" in the Presumption of Exposure.

Judicial review is sought because Section iv.ii.1.H.1.g

limits the Blue Water Navy to the area defined in Pub.

L. 116-23. The final rule ignores the "waters offshore"

provisions of 38 C.F .R. § 3.307(a)(6)(iii), the holdings of

Procopio I, supra. and Judge Lourie's concurrence in

that decision. Procopio I 913 F .3d at 1381.

This exclusion is arbitrary and capricious within

the scope of 5 U.S.C. § 706(2)(A). Existing evidence

shows that the dioxin drifted off the coast of Vietnam

and deep into the South China Sea. This action is also a

failure to follow their own regulation, specifically 38

C.F .R. § 3.307(a)(iii)(6). Since this regulation was issued

pursuant to statute, specifically 38 U.S.C. § 1116, it is a

violation of 5 U.S.C. § 706(2)(C). Accordingly, the

exclusion was unsupported by substantial evidence

within the scope of 5 U .S.C. § 706(2)(E).

Failure to Include Veterans Serving in the

Sovereign Airspace of the Republic of Vietnam.

Judicial review is sought because Section

iV.ii.2.C.3.e does not allow coverage for .veterans in

aircraft over the territory of the Republic of Vietnam

and specifically excludes the airspace over its territorial

sea. The Final Rule flies in the face of Procopio I in that

it is contrary to the unambiguous meaning of 38 U.S.C.

§ 1116 which, by treaty, includes the airspace and

territorial sea.

The Final Rule is not grounded in statute and

represents an improper interpretation of the statute.

Instead this represents a misreading of the legislative

history of Pub. L. 116-23 which states as follows:

33a

However, 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.

House Report 116-58 at 11-12. The final rule excludes

the sovereign airspace over the territorial sea and the

landmass of Vietnam in violation of Articles 1 and 2 of

the Chicago Convention, su'[Yf'a. Congress is presumed

to be aware of and legislate consistently with

international law. Murray v. The Schooner Charming

Betsy, 6 U.S. 64 (1804).

Consequently, this exclusion, based on a

misinterpretation of legislative history, and not

grounded in the statute itself, is a violation of 5 U.S.C. §

706(2)(C). Additionally, the matter is arbitrary and

capricious within the scope of 5 U.S.C. § 706(2)(A).

Conclusion.

For all of these reasons, MVA and its members

are adversely affected by the unlawful final rules

challenged above, and respectfully petition this Court

for review.

Respectfully Submitted:

Military-Veterans Advocacy

/s/ John B. Wells

John B. Wells

LA Bar #23970

P. 0. Box 5235

Slidell, LA 70469-5235 (mail)

34a

769 Robert Blvd. Suite 201D

Slidell, LA 70458 (physical)

Phone: (985) 641-1855

Direct: 985-290-6940

Email:

J ohnLaw Esq@msn.com

Certificate of Service

The undersigned certifies that the within was

served on the respondent Secretary of Veterans Affairs

by electronic mail and UPS courier the 18th day of

February 2020.

/s/ John B. Wells

John B. Wells

35a

CERTIFICATE OF COMPLIANCE

The brief complies with the type-volume

limitation of Federal Rule of Appellate Procedure

32(a)(7)(B) because it contains 2,165 by computer word

count, excluding the parts of the brief exempted by

Rule 32(a)(7)(B)(iii).

This brief complies with the typeface

requirements of Federal rule of Appellate Procedure

32(a)(5) and the type style requirements of Rule 32(a)(6)

because it has been prepared in a monospaced typeface

using Microsoft Word with 14-point proportionally

spaced face.

Isl John B. Wells

John B. Wells