Amicus Curiae Brief — Military-Veterans Advocacy Inc., Petitioner v. Denis R. McDonough, Secretary of Veterans Affairs

No. 23-380

In the

Supreme Court of the United States

Military-Veterans Advocacy Inc.,

Petitioner,

v.

Denis R. McDonough, Secretary of

Veterans Affairs,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Federal Circuit

Brief of Amicus Curiae THOMAS A.

Bianco Jr. in Support of Petition

for a Writ of Certiorari

Seth A. Watkins

Counsel of Record

Watkins Law & A dvocacy, PLLC

1455 Pennsylvania Avenue, NW,

Suite 400

Washington, DC 20004

(202) 355-9421

watkins@wlapllc.com

Counsel for Amicus Curiae

November 13, 2023

325453

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

INTEREST OF THE AMICUS CURIAE . . . . . . . . . . 1

INTRODUCTION AND SUMMARY

OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I.

The Plain Meaning of the Phrase “Served in

the Republic of Vietnam” in 38 U.S.C. § 1116

Is Illuminated by the Legislative History . . . . . 7

II. The Unambiguous Meaning of “Republic

of Vietnam” Includes Offshore Waters

Extending 200 Nautical Miles . . . . . . . . . . . . . . 12

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

ii

TABLE OF CITED AUTHORITIES

Page

Cases

Bianco, Jr. v. McDonough,

No. 22-4633, 2023 U.S. App. Vet. Claims

LEXIS 1454 (CAVC Sept. 14, 2023) (unpub.) . . . . . . . 3

Boone v. Lightner,

319 U.S. 561 (1943) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7

Cloer v. Sec’y of HHS,

675 F.3d 1358 (Fed. Cir. 2012) . . . . . . . . . . . . . . . . . . . 7

Military-Veterans Advocacy Inc. v.

Sec’y of Veterans Affairs.,

63 F.4th 935 (Fed. Cir. 2023) . . . . . . . . . . . . . . . . . . . . 3

Procopio v. Wilkie,

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

Smith v. Brown,

35 F.3d 1516 (Fed. Cir. 1994) . . . . . . . . . . . . . . . . . . . . 7

Tcherepnin v. Knight,

389 U.S. 332 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Tennessee Valley Auth. v. Hill,

437 U.S. 153 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

iii

Cited Authorities

Page

Statutes

38 U.S.C. § 1116 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7, 11

38 U.S.C. § 1116A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

38 U.S.C. § 1116A(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

38 U.S.C. § 1116A(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Agent Orange Act, Pub. L. No. 102-4, 105 Stat. 11

(1991) . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4, 5, 7, 11, 12, 13

Blue Water Navy Vietnam Veterans Act, Pub.

L. No. 116-23, 133 Stat. 966 (2019) . . . . . . . . . . . 2, 3, 4

Legislative Materials

137 Cong. Rec.–Senate 2478-79 . . . . . . . . . . . . . . . . . . . . 8

137 Cong. Rec.–Senate 2480 . . . . . . . . . . . . . . . . . . . . . . . 9

137 Cong. Rec.–Senate 2482-83 . . . . . . . . . . . . . . . . . . . . 9

137 Cong. Rec.–Senate 2483 . . . . . . . . . . . . . . . . . . . . . . . 5

137 Cong. Rec.–Senate 2489 . . . . . . . . . . . . . . . . . . . . . . 10

137 Cong. Rec.–Senate 2490 . . . . . . . . . . . . . . . . . . . . . . 10

iv

Cited Authorities

Page

137 Cong. Rec.–Senate 2491 . . . . . . . . . . . . . . . . . . . . . . . 6

137 Cong. Rec.–Senate 2492 . . . . . . . . . . . . . . . . . . . . . . . 6

137 Cong. Rec.–Senate 2493 . . . . . . . . . . . . . . . . . . . . . . 11

H.R. 556 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

S. 238 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Miscellaneous

Blue Water Navy Vietnam Veterans and Agent

Orange Exposure (2011) . . . . . . . . . . . . . . . . . . . . . . 12

C e n t er s f or D is e as e C on t r ol S el e c t e d

Cancers Study and S cientific Reviews of

the Study, Hrg. Before the Committee on

Veterans’ A ffairs, House of Representatives

(Apr. 4, 1990), Serial No. 101-44 (W. Roper,

M.D., M.P.H., Director, CDC) . . . . . . . . . . . . . . . . . 5, 6

O il Pollu tion R esea rch a nd D ev elopment

P ro gr a m R e au t hori z at ion A ct of 2010,

House of Representatives Report 111-553

(July 21, 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Order, Docket No. 17-15 505 (BVA Apr. 13, 2022) . . . . . . 2

v

Cited Authorities

Page

S t r ai g h t B as e li n e s : V i e t n a m , L i m i t s

in the S eas , No . 99, U.S. Dep’t of State

(Dec. 12, 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Veterans and Agent Orange: Health Effects of

Herbicides Used in Vietnam (1994) . . . . . . . . . . . . . 10

1

INTEREST OF THE AMICUS CURIAE1

LCdr. Thomas A. Bianco Jr., ret. (“Bianco” or “amicus

curiae”), is a 92-year old veteran of the Korean and

Vietnam Wars who served a career on active duty in the

U.S. Navy from 1951-82. A “Blue Water Navy” veteran,

he was the S-1 Division Officer aboard the aircraft carrier

USS Constellation (CV 64) from July 1967 to August 1969,

responsible for providing material support to the entire

warship. The Constellation was part of Task Force 77,

conducting naval air operations from “Yankee Station”

in the Gulf of Tonkin roughly 100 miles off the coastal

city of Da Nang.

Subsequent to his service in the theatre of conflict

surrounding Vietnam—where herbicides such as Agent

Orange were present and used—Bianco suffered from

debilitating prostate cancer. He contends that his inservice exposure to such herbicides, during the time he

served on the Constellation, caused his disease.

Bianco has been seeking recognition from the

Department of Veterans Affairs (“VA”) in the form of

service connection for residuals of his prostate cancer for

over two decades. In an April 13, 2022 decision, the Board

of Veterans’ Appeals (“BVA”) denied service connection—

1. Pursuant to Supreme Court Rule 37.6, amicus curiae

affirms that no counsel for a party authored this brief in whole or

in part, that no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief, and

that no person other than the amicus or his counsel made such

a monetary contribution. Pursuant to Supreme Court Rule 37.2,

counsel for all parties received notice at least 10 days before the

due date of amicus curiae’s intention to file this brief.

2

contrary to Bianco’s arguments concerning exposures as

well as a positive “private medical opinion” proffered in

support—purportedly because:

. . . [T]he Veteran did not set foot in the Republic of

Vietnam based on the evidence of the claims file.

While the USS Constellation did deploy twice to

the Republic of Vietnam based on the deck logs,

the ship did not travel in the territorial waters.

As such, there is no evidence that documents

that the USS Constellation docked or anchored

in a qualifying bay or harbor in Vietnam or that

the USS Constellation traveled along inland

waterways or within twelve nautical miles off

the coast of the Republic of Vietnam during the

Veteran’s service.

See Order, Docket No. 17-15 505 (BVA Apr. 13, 2022). 2 The

BVA relied upon the Blue Water Navy Vietnam Veterans

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

Act”) with its non-limiting recognition of presumptions of

service connection for those who “served offshore” while

“not more than 12 nautical miles seaward.” Id., citing 38

U.S.C. § 1116A(b) & (d).

Service connection was denied by BVA because

Bianco’s “ship did not travel in the territorial waters” of

Vietnam, which BVA only recognized to extend “within

twelve nautical miles off the coast of the Republic of

Vietnam during the Veteran’s service.” Id. However,

Bianco contends that the BWN Act supplemented but not

txt.

2. Available at https://www.va.gov/vetapp22/Files4/22021802.

3

supplanted the Agent Orange Act, Pub. L. No. 102-4, 105

Stat. 11 (1991). Thus, Bianco contends that he is entitled

to presumptive service connection for his prostate cancer

in view of the latter. In particular, the legally recognized

territorial limits of the Republic of Vietnam extend

offshore to include a 200-nautical-mile exclusive economic

zone which certainly encompassed Yankee Station where

Bianco and the Constellation were deployed.

Bianco appealed BVA’s denial to the U.S. Court of

Appeals for Veterans Claims (“CAVC”) and in a brief

September 14, 2023 Memorandum Decision affirming

the BVA, CAVC relied on the Federal Circuit’s decision

in Military-Veterans Advocacy Inc. v. Sec’y of Veterans

Affairs., 63 F.4th 935, 945 (Fed. Cir. 2023). 3 The Federal

Circuit’s Military-Veterans Advocacy decision occurred

subsequent to BVA’s decision on Bianco’s appeal and also is

the subject of the present petition for a writ of certiorari.

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

The second and third “Questions Presented” in the

petition for a writ of certiorari ask: [II.] Whether 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 banc); and [III.] Whether the

3. Bianco, Jr. v. McDonough, No. 22-4633, 2023 U.S. App.

Vet. Claims LEXIS 1454, at *3 (CAVC Sept. 14, 2023) (unpub.)

(“We are bound to follow Federal Circuit precedent.”).

4

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. It is amicus curiae’s position that grant

of certiorari is warranted for these questions presented.

The BWN Act did not override the scope of the Agent

Orange Act. Rather, Seamen who served on aircraft

carriers within the legally recognized territorial limits

of the Republic of Vietnam—in the offshore waters

comprising a 200-nautical-mile exclusive economic zone—

are covered by the latter. The Federal Circuit’s decision

to exclude such seamen from a statutory presumption

of service connection simply cannot be squared with the

Agent Orange Act.

“When confronted with a statute which is plain

and unambiguous on its face, we ordinarily do not

look to legislative history as a guide to its meaning.”

Tennessee Valley Auth. v. Hill, 437 U.S. 153, 184 n.29

(1978) (emphasis added). But the pro-veteran canon of

statutory construction has long dictated that veteran’s

law 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.” Boone v. Lightner, 319 U.S.

561, 575 (1943) (emphasis added). In order to effectuate

this canon—which is unique in its treatment of a class

of individuals (veterans)—it is appropriate to look to

the legislative history of the Agent Orange Act of 1991

to illuminate and confirm the natural, plain, and broad

meaning of having served “in the Republic of Vietnam”

as used in 38 U.S.C. § 1116. That legislative history puts

to rest any debate about the remedial nature of the Act

and supports the conclusion that there is no ambiguity in

5

the phrase at issue. Quite simply, the meaning is broad

because Congress sought to short-circuit an endless

inquiry—by the scientific community and the executive

and legislative branches—into who had been exposed and

whether the exposure was clinically meaningful. Without

firm answers, Congress chose a wide net for the veterans

to be covered.

Courts are obligated to construe the terms of a

remedial statute in a manner that does not depart from

its remedial purpose. To that end, the plain meaning of

service “in the Republic of Vietnam” is consistent with

and best effectuates that purpose. The phrase contains

no plain words of limitation and indeed the legislative

history does not support a narrow construction. Rather,

it reflects a recognition that “[v]eterans of the Vietnam

war ha[d] waited over 20 years for a meaningful response

to the complex issues surrounding their hidden wounds.”

137 Cong. Rec.-Senate 2483 (1991).

The Agent Orange Act was signed into law in the

shadow of a study by the Centers for Disease Control

(“CDC”) curiously finding an increased risk of nonHodgkin’s lymphoma in those who served in the Blue

Water Navy during the war, while the CDC was “unable

to explain the increased risk” yet acknowledged that

“[w]e don’t believe it is a fluke.”4 See Centers for Disease

C ontrol S elected Ca ncers S tudy a nd S cientific

Reviews of the Study, Hrg. Before the Committee on

4. It needs scarcely to be emphasized that when the Agent

Orange Act became law in 1991, presumptions of service connection

were established for three specific diseases: chloracne, soft-tissue

sarcoma, and non-Hodgkin’s lymphoma.

6

Veterans’ A ffairs, House of Representatives (Apr. 4,

1990), Serial No. 101-44, at 16 (W. Roper, M.D., M.P.H.,

Director, CDC). The legislative history demonstrates that

Congress rejected the temptation to exclude any service

members—e.g., Blue Water sailors—from presumptive

exposure based on “inconclusive evidence”:

. . . For too long, we have tried to placate

the victims of agent orange with yet another

study. Nearly two decades and a generation

are enough.

. . . [A]nother study would be just another way

of saying: “We’re working on it. We’ll get back

to you.” Well, we’ve worked on it, and the time

to get back to our veterans is now.

***

. . . When there is inconclusive evidence, we have

always been generous toward our veterans.

This legislation is not treating Vietnam

veterans differently. It is a guarantee that they

will finally be treated the same.

137 Cong. Rec.-Senate 2491 (J. Biden). By covering all

veterans regardless of whether their service included

presence on or within the landmass of the Republic

of Vietnam, Congress provided a “fair and equitable

approach to deal with the controversy that surrounds

agent orange” by settling matters “once and for all.” 137

Cong. Rec.-Senate 2492 (J. McCain). Here, the broad

plain meaning of service “in the Republic of Vietnam”

complements the remedial purpose.

7

There can be no doubt that Congress intended 38

U.S.C. § 1116 to be liberally construed to effectuate its

remedial spirit and purpose. When Congress passed the

Agent Orange Act, all those who served “in the Republic

of Vietnam”—including seamen “brown” or “blue”—were

presumed to have been exposed to herbicide agents

including Agent Orange.

ARGUMENT

I.

The Plain Meaning of the Phrase “Served in

the Republic of Vietnam” in 38 U.S.C. § 1116 Is

Illuminated by the Legislative History.

The pro-veteran canon of statutory construction

requires that a statute concerning veteran’s matters is

“always to be liberally construed.” Boone, 319 U.S. at

575 (emphasis added). Similarly, “[i]t is of course true

that courts are to construe remedial statutes liberally

to effectuate their purposes.” Smith v. Brown, 35 F.3d

1516, 1525 (Fed. Cir. 1994) (citations omitted); see also

Cloer v. Sec’y of HHS, 675 F.3d 1358, 1362 (Fed. Cir.

2012) (en banc) (citation omitted) (“Remedial legislation

. . . should be construed in a manner that effectuates its

underlying spirit and purpose.”); Tcherepnin v. Knight,

389 U.S. 332, 336 (1967) (“we are guided by the familiar

canon of statutory construction that remedial legislation

should be construed broadly to effectuate its purposes”).

To determine whether a statute is remedial in nature,

the legislative history can be quite instructive and it can

confirm a liberal, broad, plain meaning.

When the U.S. Senate considered S. 238, a bill

substantively identical to H.R. 556 on which it voted, an

echo was heard throughout the chamber.

8

Senator Cranston stated:

. . .[T]his bill represents an historic compromise

. . . Enactment of this bill will be a major step

toward putting behind us one of the most

contentious and divisive issues remaining from

the war in Vietnam.

***

[This] is an excellent, well-considered bill that

addresses in a comprehensive way the concerns

of Vietnam veterans and their families about

agent orange.

137 Cong. Rec.-Senate 2478-79.

Senator Specter stated:

. . . [T]his legislation is the conclusion of very

lengthy efforts on a very complex matter where

there has been a great deal of pain and suffering

by the Vietnam veterans who were exposed to

agent orange in many ways, themselves and

their families. . . .

***

. . . We have a contract with the veterans of

America to treat them fairly, and Vietnam

veterans have not been treated fairly. . . . Much

too much time has passed in the failure of the

Government to come to grips with this very

important item, and we are taking a significant

9

step in correcting that by the action we are

taking today.

137 Cong. Rec.-Senate 2480.

Senator Daschle stated:

. . . [W]e are finally beginning to resolve a

problem that has plagued Vietnam veterans and

their families for over 20 years. That problem

stems both from veterans’ exposure to agent

orange and from an inadequate Government

response to the consequences of that exposure.

***

Enactment of this legislation is long overdue.

. . . Veterans of the Vietnam war have waited

over 20 years for a meaningful response to

the complex issues surrounding their hidden

wounds.

137 Cong. Rec.-Senate 2482-83.

Senator Kerry stated:

. . . There are countless numbers of veterans

who have died since the war whose families are

convinced they died as a consequence of their

exposure and who believed as they died that

they were doing so as a consequence of their

exposure.

***

10

. . . [T]he fact is that 20 years after they

returned when the first appearances of this

problem really began to manifest themselves,

that over a 10-year period there has been a gap

between the speeches and the making good

on the promises that helped send them there,

and everybody knows that. I think all of us are

committed that that is not going to be repeated

this time.

137 Cong. Rec.-Senate 2489.

Senator Akaka stated:

. . . [I]n this compromise legislation, we now

have an opportunity to put behind us one of the

most troubling legacies of the war in Southeast

Asia, a legacy that has called into question

this country’s basic commitment to care for

those who served under arms, and which has

embittered thousands of Vietnam veterans and

their families.

As a nation, we are only now beginning to face

up to our responsibilities to this lost generation,

a generation that was unheralded in war and

forgotten in peace. Let us begin to clear our

debt to these veterans . . .

137 Cong. Rec.-Senate 2490.

11

Senator Dole stated:

The [VA] has been in the center of the agent

orange controversy for many years. The issue

has raged for these years with hard fought

opinions, rhetoric and often accusations on all

sides. I believe that this legislation gives us the

opportunity to create an environment where we

can dissipate the rhetoric and controversy and

get on with everyone[’s] real goal.

The best possible care to those valiant

Americans that answered when their Nation

called, the veterans of the United States of

America.

137 Cong. Rec.-Senate 2493.

It is clear from the legislative history that the Agent

Orange Act was meant to (i) remedy a lengthy period

of Congressional paralysis concerning ailing Vietnam

veterans and (ii) provide a universal solution that put

to rest the controversy concerning herbicide exposures.

Those remedial purposes can only be interpreted as

supportive of a broad plain meaning for “served in the

Republic of Vietnam” in 38 U.S.C. § 1116. Nothing in

38 U.S.C. § 1116A can counter this. The pro-veteran canon

of statutory construction requires the plain meaning of

§ 1116 to be in harmony with the remedial purposes.

12

II. The Unambiguous Meaning of “Republic of

Vietnam” Includes Offshore Waters Extending 200

Nautical Miles.

As for the legally recognized territorial limits of

the Republic of Vietnam, such offshore waters include

the 200-nautical-mile exclusive economic zone. See, e.g.,

Straight Baselines: Vietnam, Limits in the Seas, No.

99, U.S. Dep’t of State (Dec. 12, 1983), at 3, available at

https://www.state.gov/wp-content/‌uploads/2019/12/LIS99.pdf. To confine territorial limits within a so-called

“territorial sea” having a breadth of 12 nautical miles

or a contiguous zone of an additional 12 nautical miles,

id. at 2, would be inconsistent with the plain meaning of

“Republic of Vietnam.”5

5. It would be illogical to exclude seamen on aircraft carriers

at “Yankee Station,” about 100 miles offshore from Da Nang,

from those who “served in the Republic of Vietnam”. In 2011, the

Institute of Medicine noted concerns of Blue Water Navy veterans

that they may have been exposed to herbicides via contamination

of their potable (drinking) water (derived from the marine water),

spray drift through the air, and food contamination. See Blue

Water Navy Vietnam Veterans and Agent Orange Exposure

(2011) at 2, available at https://www.nap.edu/catalog/13026/bluewater-navy-vietnam-veterans-and-agent-orange-exposure.

The herbicides may have extended in elevated concentrations

out to Yankee Station. The Institute of Medicine’s report

from 1994 (produced in accordance with the Agent Orange

Act of 19 91) prov ides an accounti ng for approx i mat ely

20 million gallons of herbicides used by U.S. military forces in

Vietnam. See Veterans and Agent Orange: Health Effects of

Herbicides Used in Vietnam (1994) at 85 available at https://www.

nap.edu/catalog/2141/veterans-and-agent-orange-health-effectsof-herbicides-used-in. By comparison, about half that amount

was spilled by the Exxon Valdez yet the oil slick spread over

13

CONCLUSION

No Blue Water Navy veterans should be left behind.

Amicus Curiae served within the 200-nautical-mile

territorial limits of the “Republic of Vietnam,” and thus

he—like so many others—is entitled to presumptive

service connection for his prostate cancer in connection

with Agent Orange disability benefits. Yet the Federal

Circuit has frustrated this statutory presumption, failing

to recognize the remedial nature of the Agent Orange

Act and the dictates of the pre-veteran canon of statutory

construction. Military-Veterans Advocacy has it right in

its petition. The Court should grant the petition.

Respectfully submitted,

Seth A. Watkins

Counsel of Record

Watkins Law & A dvocacy, PLLC

1455 Pennsylvania Avenue, NW,

Suite 400

Washington, DC 20004

(202) 355-9421

watkins@wlapllc.com

Counsel for Amicus Curiae

November 13, 2023

11,000 square miles of ocean. See Oil Pollution Research and

Development Program Reauthorization Act of 2010, House of

Representatives Report 111-553 (July 21, 2010), at 151, available

at https://www.congress.gov/111/crpt/‌hrpt553/CRPT-111hrpt553.

pdf.