Petition for Writ of Certiorari — Bross v. Derwinski

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@9 - 1 3 t Py } Ji I ” Sepreme Court, US

FILED

No. FEE -© 1090

POSER Esp ttt ee

IN THE CLERK

Supreme Court of the United States

October Term, 1989

IRWIN D. BROSS,

Petitioner,

vs.

THOMAS K. TURNAGE, As Administrator of Veterans Affairs for

the United States Veterans Administrations THE VETERANS

ADVISORY COMMITTEE ON ENVIRONMENTAL

HAZARDS; THE SCIENTIFIC COUNCIL OF THE

VETERANS ADVISORY COMMITTEE ON

ENVIRONMENTAL HAZARDS; and THE UNITED STATES

VETERANS ADMINISTRATION,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

Court OF APPEALS FOR THE SECOND CIRCUIT.

PETITION FOR WRIT OF CERTIORARI

JOHN G. BRENON, ESQ. LEWIS STEELE, ESQ.

Counsel of Record COUNSELOR AT LAW, P.C.

5330 Main Street P.O. Box 1235

Williamsville, New York 14221 Albany, New York 12201

Telephone: (716) 633-7860 Telephone: (518) 854-9582

Attorneys for Petitioner

Batavia Times Publishing Co

Batavia. NY. (716) 344-2000

Questions Presented

1. Whether an individual who presents a scientific

study to the Scientific Counsel of the Veterans Advisory

Committee on Environmental Hazards (‘Scientific

Council’) and/or the Veterans Advisory Committee on

Environmental Hazards (‘‘Committee’’) for review

pursuant to 38 U.S.C. Section 354, note (Supp. V 1987)

at Section 6 has standing to challenge adverse

determinations relative to such studies made by said

entities.

2. Whether an individual who presents a scientific

study to the Scientific Council and/or to the Committee

for review pursuant to 38 U.S.C. Section 354, note (Supp.

V 1987) at Section 6 has standing to challenge adverse

determinations made by those entities relative to such

studies as a result of that review on the basis that the

Scientific Council and/or the committee failed to follow

the review procedures mandated by the statute or

otherwise conducted an inadequate and/or unfair review.

3. Whether an author of a scientific study within the

purview of 38 U.S.C. Section 354, note (Supp. V 1987)

has standing to raise challenges to whether, or the

manner in which, that statute is followed in the review,

consideration, and/or evaluation by the Committee, the

Scientific Council, the Veterans Administration, and/or

its Administrator of that study.

4. Whether the violation of the review procedures set

forth in 38 U.S.C. Section 354, note (Supp. V 1987) at

Section 6, or the otherwise failure of the Scientific

Council and/or the Committee to adequately, completely

and/or fairly review scientific studies submitted to them

in accordance with that statute deprive the authors

thereof of a constitutionally protected property interest.

ii.

List of Parties

All parties to the proceeding before the United States

Court of Appeals for the Second Circuit appear in the

present caption.

iii.

TABLE OF CONTENTS.

Page

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Cree ca bhicndsedésaesdrvevecees 2

Statutes and Rules Involved .................... 2

I scence sc ce cbs cwsccvereevn 3

The Provisions of the Radiation Exposure

EE, Sr ee 3

The Procedure and Resuits Below............. 6

ee BR SEE Oe ae 10

Reasons for Granting the Writ................... 16

I. The Second Circuit’s holding that the

petitioner does not have standing is

inconsistent with the Court’s previous decisions

relating to standing and the decisions of the

District of Columbia and the Eighth Circuits... 16

A) The Conclusion That The Petitioner Has

Not Been Injured in Fact in This Case is

Contrary to the Major Standing Decisions of

This Court and Including Valley Forge,

Investment Company Institute, Data

Processing, Sierra Club and Barlow, as Well

as Numerous Other Decisions of the Circuit

ee Cea ehh eee h ies ee ee brs 16

iv.

Page

B) The Second Circuit’s Conclusion That

The Interest Asserted By Dr. Bross is Not

Within The Zone of Interests of the Veterans’

Dioxin and Radiation Exposure

Compensation Act Is Inconsistent With and

Contrary to The Court’s Policies With

Respect To Standing Enunciated By the

Court in Clarke, Valley Forge, Data

Processing, Investment Company Institute,

Block, Barlow, and Other Cases And Of

Relevant Holdings of the District of

Columbia and Eighth Circuit Courts of

ee er eer Peer 20

C) The Lower Courts have ignored this

Court’s Principles of ‘‘jus terti’’ Standing

And As Set Forth in Cases Such As Munson

and Craig v. Boren And As Implemented, For

Example, In Circuit Courts and Including the

District of Columbia Circuit............... 27

II. The Second Circuit’s holding that the

petitioner’s claims set forth no_ interest

protected by due process ignore this Court’s

seminal decision in Board of Regents v. Roth

and decisions of applicable Circuit Courts ..... 28

ae RECESS SREB ts deh tea Saree Rd hy Mie 04 Ap = a rg a 30

Page

Appendix:

Decision and Order of the United States District

Court for the Western District of New York

Dated March 29, 1989..................2 0008s la

Judgment of the United States District Court for

the Western District of New York Dated March

Bhs: PE hhh 055s 6kd eo ON ees DERE ERR ES 12a

Decision of the United States Court of Appeals for

the Second Circuit Dated November 17, 1989 .... 14a

House Report No. 98-592 reported at 1984

USC Cong. and Adm. News pp. 4453, 4454...... 19a

Se Rs oo o5 4k vc newb ae as Gene eeeee 38a

DE a6 50 5050 bbns bs 45034440 R ECT 39a

Ds 0s 66005440404 504 04 enn eereeee 39a

3) rere re ror rr rr iy 40a

SI 0k s 0a desi aseseei eee 42a

> Sy Sener Aremne pair 42a

SRO 5 3c 00 05 vaneeeeGAc eek sae 43a

Se EE nk 0 6-0 60 on bck bu 53 bck acer Sla

Be EE I ono nb esd oes bee sbanseee oa 52a

38 U.S.C. §354, Note (Supp. V 1987)—Veterans’

Dioxin and Radiation Exposure Compensation

EE BS ok os ok 5- ove bea ate ee Veen 53a

Amendment V, United States Constitution......... 69a

Federal Rule of Civil Procedure, Rule 12........... 70a

Federal Rule of Civil Procedure, Rule 56 ........... Tla

Page

TABLE OF AUTHORITIES.

Cases:

Abbott Laboratories v. Gardner, 387 U.S. 136, 87

As MEE oh 0b ka eeckeenccbawcunaeibas 25

Albert Elia Bldg. Co., Inc. v. Sioux City, 418

F.Supp. 176 (N.D. Iowa 1976) ................. 19

Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832

ee ey ee er seen 16,20,21

Bartel v. FAA, 725 F.2d 1403 (D.C. Cir. 1984)...... 29

Block v. Community Nutrition Institute, 467 U.S.

340, 104 S.Ct. 2450 (1984) .................08. 20,21

Board of Regents of State College v. Roth, 408 U.S.

664, OB'G.Ce. STOOL (LOPE) 2... ccc cence ences 28,29

Bowsher v. Synar, 106 S.Ct. 3181 (1986)........... 20

Calloway v. Block, 763 F.2d 1283 (11th Cir. 1985)... 29

Clarke v. Securities Industry Ass’n., 479 U.S. 388,

ROT TGR. TOO Gee te sc nck sncvccvewcus 20,21,22,25,26

Committee for Full Employment v. Blumenthal, 606

ee a ee ereeerrer tee 19

Craig v. Boren, 97 S.Ct. 451 (1976) ............... 27

Data Processing Service v. Camp, 397 U.S. 105, 90

SER. GRE eens uh vie Sa cwaeesnteke 16,18,19,20,21,22

DeLoss v. HUD, 822 F.2d 1460 (8th Cir. 1987) ..... 26

Doe v. Blum, 729 F.2d 186 (2nd Cir. 1984) ........ 19,21

Duke Power Company v. Carolina Env. Study

Group, 438 U.S. 59 (1978) ...... 0... cece eee eee 17

Ellis v. U.S. Dep't. of Housing and Urban

Development, 551 F.2d 13 (3rd Cir. 1977)........ 19

FAIC Securities Inc. v. Unived States, 768 F.2d 352

CER. SI, Dis o's bc kha cba dcbak 0cenceatiaees 27

Foxman v. Renison, 625 F.2d 429 (2nd Cir. 1980)

cert. denied 10 S.Ct. 530 (1980) ................ 29

Gardner v. F.C.C., 530 F.2d 1086 (D.C. Cir. i976)... 19

Page

Hazardous Waste Council v. EPA, 861 F.2d 277

I ues he oO we oe ee 26

Investment Co. v. FDIC, 815 F.2d 1540 (D.C.

SE ACd ceed hab boakb sci eeécnneehheee mes 26

Investment Company Institute v. Camp, 401 U.S.

wR Go. me os 16,18,20,21

Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318

Re ee ee ere ee 19

Larry v. Lawler, 605 F.2d 954 (7th Cir. 1978)....... 19

Maryland v. Munson, 104 S.Ct. 839 (1984)......... 27

Matos v. Secretary of HEW, 581 F.2d 282 (lst Cir.

SE SEL hn og o's SCAMS ARES RE ees 19

National Coal Ass’n. v. Hodel, 825 F.2d 523 (D.C.

SN ere nile a ee Seiad PLN Cie 5 oe 26

National Conservative Political Action Comm. v.

FEC, 626 F.2d 953 (D.C. Cir. 1980)............. 19

NWRA v. Finch, 429 F.2d 725 (D.C. Cir. 1970) ..... 23

Pickus v. U.S. Board of Parole, 507 F.2d 1107 (D.C.

. | ere eres re ee ee ee ee ee 19

Sierra Club v. Morton, 465 U.S. Ct. 727, 92 S.Ct.

CEE bck bec bG de keeA Seek ene Wen eews 16,19,20

U.S. v. Briggs, 514 F.2d 794 (5th Cir. 1975)........ 20

Valley Forge Christian College v. Americans United

for Separation of Church and State, Inc., 454 U.S.

464, 103 G.CK. TER (1GBR)... www ccc c ccc ccees 16,17,20

Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197

EEE re Pere eee eee ee eee ee ee 16

Wright v. Allen, 104 S.Ct. 3315. ..............4.. 20

Zucker v. U.S., 758 F.2d 637 (Fed. Cir. 1985), cert.

Gomi, BOG Be. TR CIs 6 6 vce ccc cece acces 29

viii.

Page

Statutes:

Administrative Procedure Act, 5 U.S.C. §§701, 702,

on ee oes cdeeneeaenaea 2

Lhe er aed ew eh ules ea aus 2,6

2) Obs ee Gh ee 2,25,26

ss pe a ge ee ae es 2,26

Veterans’ Dioxin and _ Radiation Exposure

Compensation Standards Act, 38 U.S.C. Section

Dey SUN I WH MOD oc enc cncscccsnsseses 2,3

ec eect ckae cuvartoecvéaenes 3

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i cece ke avbeneseeebasadseu 5

ins ocak enn eee bueeh eb euew es 26

rs a aa ls ka wees eneeaenee aes 25

ee eae sc cae Pbk 6 ee eae a ee tb 5

i asl te Gaw ee ve ee eek ok ea 5

RRR LS agar a ne 5

RRR SRS rey ee, “aie fe rtigy 6

Soa 6 os Gdn kee ko eee 6,13,14,18

ee ce eat hae eke Cea ewe 14,28

Rules and Regulations:

Federal Rules of Civil Procedure:

ERE oe ae er ee 2

Pt io. t ChbGksk eek eeeeeaweweNe he's e tan 2

38 C.F.R

DDC Civahiecbiscacckgusdhbekbewn bean eee en en 2

EE ee eee eee ee ee ee 2,3,4,5

Re Gite ae Si eee ea i Sia cae oe eS 2

Page

Constitution:

Fifth Amendment to the United States

EE SEE REY NAPE Ry Mie oi Se na 2,28,29

Other Authorities:

House Report No. 98-592 reported at 1984

USC Cong. and Adm. News pp. 4453, 4454. ...... 22

IN THE

Supreme Court of the United States

October Term, 1989

IRWIN D. BROSS,

Petitioner,

vs.

THOMAS K. TURNAGE, As Administrator of Veterans

Affairs for the United States Veterans Administration;

THE VETERANS ADVISORY COMMITTEE ON

ENVIRONMENTAL HAZARDS; THE SCIENTIFIC

COUNCIL OF THE VETERANS’ ADVISORY

COMMITTEE ON ENVIRONMENTAL HAZARDS;

and THE UNITED STATES VETERANS

ADMINISTRATION,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.

PETITION FOR WRIT OF CERTIORARI

To the Honorable, the Chief Justice of the United States

and the Associate Justices of the Supreme Court of the

United States:

Petitioner prays a Writ of Certiorari issue to the Court

of Appeals for the Second Circuit to review the

November 17, 1989 Judgment and Order in this

proceeding.’

‘Counsel herein acknowledge and recognize the assistance and

contribution of Mr. Lee A. Albert, Esq., Professor of Law and

Associate Dean, Faculty of Law and Jurisprudence, State University

of New York, University at Buffalo.

Opinions Below

The Judgment and Opinion of the United States Court

of Appeals for the Second Circuit from which review is

sought is reported at 889 F.2d 1256 (2nd Cir. 1989), and

is attached at pages 14a-18a in the Appendix to this

Petition.

The Judgment and Memorandum Opinion of the

United States District Court for the Western District of

New York from which Petitioner appealed is not reported

but is attached at pages la-13a in the Appendix to this

Petition.

Jurisdiction

The United States Court of Appeals for the Second

Circuit entered the Judgment from which review is now

sought on November 17, 1989. Jurisdiction is now

conferred upon this Court by 28 U.S.C. Section 1254(1).

Statutes and Rules Involved

This matter involves the Court’s review and

interpretation of the Veterans’ Dioxin and Radiation

Exposure Compensation Standards Act, 38 U.S.C.

Section 354, note (Supp. V 1987); the Administrative

Procedure Act at Sections 701, 702, 704, and 706,

appearing as 5 U.S.C. Section 701, 702, 704, and 706; 28

U.S.C. 1361; 38 U.S.C. 211, 223; 38 C.F.R. 1.12, 1.17,

3.311b; the Fifth Amendment to the United States

Constitution; and Rules 12(b))6) and 56 of the Federal

Rules of Civil Procedure.

The aforesaid statutes, rules, regulations, and

constitutional provisions are set forth at pages 19a-

56a in the Appendix to this Petition.

Statement of the Case

This case concerns the legality and constitutionality of

particular actions and inactions of the Administrator of

Veterans Affairs (the Administrator), the Veterans

Advisory Committee on Environmental Hazards (the

Committee), the Scientific Council of the Veterans

Advisory Committee on Environmental Hazards (the

Scientific Council), and the U.S. Veterans Administration

(the VA). In particular, this case is based on the failure

of the defendants to properly review and analyze these

scientific studies and to make findings and evaluations

with respect thereto as required by the Veterans Dioxin

and Radiation Exposure Compensation Standards Act

(38 U.S.C. Section 354) (hereafter referenced as the

“Radiation Exposure Act’’ or the ‘‘Act’’) and the

regulations promulgated pursuant thereto at 38 CFR

1.17, 3.311b(f), etc. and the Due Process Clause of the

United States Constitution.

The Provisions of the Radiation

Exposure Act

The Veterans Dioxin and Radiation Exposure

Compensation Standards Act (the Act) was enacted in

1984 and it appears as a note under Section 354 of Title

38 of the United States Code. It is set forth in its

entirety within the Appendix.

The purpose of the Act is, inter alia, to insure that

appropriate Veterans Administration disability

compensation is provided to veterans who were exposed

to ionizing radiation as a result of their military service

and in connection with atmospheric nuclear tests and for

disabilities that are connected, based on sound scientific

and medical evidence, with such exposure during such

service. See 38 U.S.C. 354, n. 1, Section 3.

In order for the Veterans Administration to arrive at

appropriate compensation determinations and to promote

consistency in Veterans claims’ processing and decisions,

the Act requires that the Veterans Administration

promulgate regulations to ‘‘(1) establish guidelines and

(where appropriate) standards and criteria for the

resolution of claims for (service connected death or

disability) ... based on ... exposure during service (,) . . .

in connection with ... participation in atmospheric

nuclear tests, to ionizing radiation from the detonation of

a nuclear device.’”’ 38 U.S.C. 354, Note 1, Section

5(a)(1)(B).

The Act specifies that these guidelines are to include

‘guidelines governing the evaluation of the findings of

scientific studies relating to the possible increased risk of

adverse health effects of exposure to ... ionizing

radiation.” 38 U.S.C. 354, n. 1, Section 5(b)(1)(A).

The Act requires that the evaluations of such scientific

studies be made by the Administrator of Veterans

Affairs of the Veterans Administration after receiving

the advice of the appropriate (radiation) panel of the

Scientific Council of the Veterans’ Advisory Committee

on Scientific Hazards. See 38 U.S.C. 354, n. 1, Section

5(b)(1)(B).

The Administrator of Veterans Affairs of the Veterans

Administration is to evaluate these studies on the basis

of:

(A) The statistical significance of the

results;

(B) The capability of the results to be replicated;

and

review.

See 38 U.S.C. 354, n. 1, Section 5(b)(1)(A). When

completed, the evaluations are to be published in the

Federal Register. 38 U.S.C. 354, n.1, Section 5(b)(1)(B);

38 C.F.R. 1.17.

Importantly, the Act also requires that the Veterans

Administration promulgate regulations with respect to

the use of such evaluations in the adjudication of

individual claims for compensation based on injuries

ascribed to service connected exposure to ionizing

radiation resulting from participation in atmospheric

nuclear weapons tests. See 38 U.S.C. 354, n. 1, Section

5(b)(1)(C). The promulgated regulations provide that the

determination of service connection in the adjudication of

claims for injury from exposure to ionizing radiation

must give due consideration to the evaluations published

pursuant to 38 C.F.R. 1.17 (emphasis supplied). See 38

C.F.R. 3.31 1b(f).

Section 6 of the Act establishes the Veterans’

Advisory Committee on Environmental Hazards of the

Veterans Administration (‘‘Committee’’). See 38 USC

354, n. 1, Section 6(a). According to the Act, and with

certain restrictions, the Committee is to be appointed by

the Administrator of Veterans Affairs and is to be

composed of (a) three individuals who are recognized

medical or scientific authorities in fields pertinent to

understanding the health effects of exposure to dioxin,

(b) three individuals who are recognized medical or

scientific authorities in fields pertinent to understanding

the health effects of exposure to ionizing radiation, (c)

five individuals who are recognized medical or scientific

authorities in fields such as epidemiology and other

scientific disciplines, pertinent to determining and

assessing the health effects of exposure to dioxin or

ionizing radiation in exposed populations, and (d) four

individuals from the general public, including at least one

disabled veteran, having a demonstrated interest in, and

experience relating to, veterans’ concerns regarding

exposure to dioxin or ionizing radiation. See 38 USC 354,

n.1, Section 6(a)(1), (2).

Section 6 of the Act also establishes a Scientific

Council of this Committee (‘Scientific Council’’ or

“Council’’) which is to be composed of all members of the

Committee, excepting the four individuals from the

general public. See 38 U.S.C. 354, n.1, Section 6(d)(1).

The Scientific Council is divided into two eight member

panels, one with responsibility for evaluating scientific

studies relating to possible adverse health effects of

dioxin, (the ‘‘dioxin panel’) and the other with

responsibility for evaluating such effects of exposure to

ionizing radiation (the ‘radiation panel’’). See 38 U.S.C.

354, n.1, Section 6(d)(2).

The Act provides that ‘the (Scientific) Council shall

make findings and evaluations regarding pertinent

scientific studies and shall submit to the Committee and

the Administrator directly periodic reports on such

findings and evaluations.’’ 38 U.S.C. 354, n.1, Section

6(d)(1) (emphasis supplied).

The Procedure and Results Below

Dr. Bross filed his complaint on September 4, 1987

pursuant to the Administrative Procedure Act (hereafter

referenced to as the APA), the Mandamus provisions of

the United States Code (28 U.S.C. 1361), and the Due

Process provisions of the U.S. Constitution challenging

the failure of the government to comply with the

provisions of the Act and the Due Process Clause of the

Constitution.

The various claims raised by Dr. Bross are (that):

1. The refusal of the Administrator of the

Veterans Administration to refer to the Radiation

Panel of the Scientific Council of the Veterans

Advisory Committee on Environmental Hazards for

review his scientific studies relating to the adverse

health effects of exposure to ionizing radiation;

2. The refusal of the Administrator of the

Veterans Administration to publish in the Federal

to the adverse health effects of exposure to ionizing

radiation’;

3. The refusal of the Veterans Administration, the

Veterans Advisory Committee for Environmental

Hazards and the radiation panel of the Council to

properly consider, review, evaluate, and/or properly

process his scientific studies is actionable under the

APA, and/or has violated his right to due process,

and

4. The determination by the Veterans Advisory

Committee on Environmental Hazards that his

scientific studies provides no. basis _ for

recommending changes in the Veterans

Administration guidelines for compensation is

erroneous as a matter of law, arbitrary and

capricious, and not supported by _ substantial

evidence and thus is actionable under the APA.

Dr. Bross requested that the District Court provide

him with the following relief:

(1) A declaratory judgment that the Veterans’

Advisory Committee on Environmental Hazards and its

Scientific Council is constituted contrary to the

requirements of the Radiation Exposure Compensation

Standards Act and Order that the Administrator of

Veterans Affairs properly constitute said bodies;

? Evaluations of two of the petitioner's four studies were ultimately

published. Publication however came only after strong and vigorous

encouragement from staff counsel at the Court of Appeals during the

Circuit Court’s pre-argument conference and after the preparation

and service upon the defendants of the Petitioner’s Court of Appeals

Brief. Moreover, the two published evaluations were flawed because

they were not carried out in accordance with the requirements of

the Act in that they were not prepared after receipt by the

Administrator of the relevant advice of the Radiation Panel of the

Scientific Council and the advice which did serve as the basis for their

proffered evaluation resulted from an improper and unconstitutional

review process as set forth herein.

(2) An Order that the Veterans Administration

proceed with evaluations of his four scientific studies

referenced herein and specifying that Court retain

jurisdiction in this case so as to insure the adequacy and

good faith of each of said evaluations;

(3) An Order declaring null and void the findings and

evaluations of the Veterans Advisory Committee on

Environmental Hazards relating to the scientific

studies entitled, “‘Do Atomic Veterans Have Excess

Cancer? Conclusive New Evidence on Radiation

Hazards’’, and “Additional Information on the Risks of

the Servicemen Exposed to Fallout from Atmospheric

Nuclear Weapons Tests”’;

(4) An Order that the Scientific Council of the

Committee and its radiation panel make applicable

findings and evaluations with respect to his four studies

including a finding that a statistical review of the

Plumbbob test series shows that there is excess

digestive, respiratory, leukemia, and other cancers for

veterans who received exposure of 300 millirems of

radiation or more and that said veterans have a 62%

greater chance than veterans who did not receive such

exposure of having cancer; and

(5) An Order that the Veterans Advisory Committee

on Environmental Hazards, when properly constituted,

recommend to the Administrator of Veterans Affairs of

the Veterans Administration that it develop and apply

compensation standards and procedures so_ that

Plumbbob veterans who were exposed to at or above 300

millirem of radiation and who develop or have developed

digestive, respiratory, leukemia, and other cancers

receive all applicable veterans compensation ir cluding

disability compensation and death benefits to their

families and/or to their survivors.

On December 6, 1987, the government filed an

omnibus Motion to Dismiss asserting that’, inter alia,

Dr. Bross lacked standing to bring his lawsuit and that

he had no constitutionally protected rights with respect

to the matters raised in his litigation.

The District Court’s March 30, 1989 decision agreed

that, inter alia, Dr. Bross did not have standing to

prosecute his case and that his allegations did not set

forth violations of a constitutionally protected property

interest.

On appeal, the United States Court of Appeals for the

Second Circuit held in a decision issued on November 17,

1989 that the Petitioner did not have the standing to

pursue this case and agreed with the District Court that

Dr. Bross’ Due Process rights had not been violated.

* It was pointed out to the lower Court that the government's Motion

_o Dismiss made inappropriate reference to Rule 56. Rule 56 is the

Summary Judgment provision of the Federal Rules of Civil Procedure

and so is not relevant for a Motion to Dismiss. Because of this. and

because the government denomenated the Motion as one to Dismiss

and not one for Summary Judgment, the motion was treated as a

Motion to Dismiss. At the same time, because the government

included the affidavit of Frederick Conway III, as part of the motion

papers, Dr. Bross’s papers below included an affidavit of himself

relative to the issues raised in the Motion to Dismiss.

It was also pointed out to the lower Court that a Motion for

Summary Judgment on all of Dr. Bross’s claims was premature. This

was because the government had not filed the administrative record,

and because, given the pendency of the Motion to Dismiss and the

work involved therein, Dr. Bross did not have an opportunity to

conduct discovery to insure that all relevant documents and

information would be before the Court for a determination on such a

motion.

In this regard, the plaintiff advised the lower Court that in the

event the Court believed it appropriate to consider the government's

papers as setting forth a Motion for Summary Judgment, he wished

to be notified thereof and to have an opportunity to prepare and

submit additional papers in opposition to such a motion.

Facts

Petitioner Irwin D. Bross, Ph.D., is the President of

Biomedical Metatechnology, Inc., Buffalo, New York,

and resides at 109 Maynard Drive, Eggertsville, New

York. He has a Bachelor's degree in Mathematics from

the University of California at Los Angeles, a Master’s

degree in Experimental Statistics from the North

Carolina State University, and a Ph.D. degree in

Experimental Statistics from the University of North

Carolina at Chapel Hill. Dr. Bross has taught and/or

conducted statistical research on cancer and the ability

of low level ionizing radiation to cause that disease and

other adverse health conditions at the Johns Hopkins

University, the Cornell University Medical College, the

Sloan Kettering Institute, the State University of New

York at Buffalo and the Roswell Park Memorial

Institute. During the period 1959 until his retirement in

1983, he was the Director of Biostatistics at the New

York State Department of Health’s Roswell Park

Memorial Institute. Dr. Bross is a longstanding fellow of

the American Statistical Association, the American

College of Epidemiology, the American Association for

the Advancement of Science and a member of the

Biometric Society. He is also the author of four books,

including Design for Decision; Scientific Strategies in

Human Affairs: To Tell the Truth; Scientific Strategies

to Save Your Life; and Crimes of Official Science; A

Casebook; and the author or co-author as well of more

than 350 publications and/or articles relating to

biostatistics, epidemiology, cancer research, public

health, and/or linguistics and including ones on the effect

on health of exposure to low Jevel ionizing radiation.

Since 1985, Dr. Bross has written four scientific

studies relating to the adverse health effects of exposure

to ionizing radiation. These studies are:

1. Do Atomic Veterans Have Excess

Cancer—Conclusive New Evidence on Radiation

Hazards;

a A

2. Additional Information on the Risks of the

Servicemen Exposed to Fallout from Atmospheric

Nuclear Weapons Tests;

3. Excess Cancer Among Soldiers at the 1957

Atmosphere Nuclear Weapons Tests in Nevada

(published in the May 1987 issue of the American

Statistician, the Official Journal of the American

Statistical Society); and

4. Do Atomic Veterans Have Excess Cancer?

New Results for Correcting the Healthy Soldier Bias

(published in the December 1987 issue of the

American Journal of Epidemiology).

These studies concern the effects of ionizing radiation

on U.S. armed services personnel. In this regard,

between 1951 and 1957, the United States government

deliberately and intentionally exposed at or about 48,148

members of the United States Armed Forces to iow level

ionizing radiation during five nuclear weapons test

series. The test series were code-named Greenhouse

(1951), Upshot Knothole (1953), Castle (1954), Redwing

(1956) and Plumbbob (1957). The Upshot-Knothole and

Plumbbob test series were conducted in the United

States’ Nevada Proving Grounds. The Greenhouse,

Castle, and Redwing series took place in the United

States Pacific Proving Grounds at Enewetak and Bikini.

The Plumbbob series involved 30 atmospheric nuclear

weapons shots and approximately 13,685 soldiers. An

analysis by the United States Center for Disease Control

in 1979 of one of the Plumbbob shots, test shot

‘“Smoky’”’, indicated that the group of persons identified

as being exposed to low level ionizing radiation as a

result of that test subsequently developed leukemia at a

statistically significant rate approximately 230% higher

than anticipated. Excess leukemia among those exposed

to ionizing radiation as a result of that test shot was

confirmed by an analysis released by the National

Research Council of the National Academy of Sciences in

June of 1985. This latter analysis also indicated that the

highest incidence of excess leukemia among Smoky

participants was apparent in that cohort of persons who

received at or above 300 millirems of radiation.

Dr. Bross’s scientific studies show that, inter alia:

(A) A reanalysis of the data in the 1985 National

Research Council report on the mortality of armed

services nuclear weapons test participants, when

corrected for a serious selection bias, shows inter

alia, that at atomic test series Plumbbob, there is

excess digestive, respiratory, leukemia and other

cancers among those veterans exposed to at or

above 300 millirems of ionizing radiation. The

analysis also provides internal evidence to suggest

that radiogenic and non radiogenic diseases are

clearly distinguished, and demonstrate that existing

data does provide a valid basis fo: providing fair

compensation to the atomic veterans.

(B) Mathematical models can be constructed

which will provide cancer risk estimates for

individual servicemen who were exposed to atomic

fallout so as to provide information as to the extent

to which his/her injury and/or death was caused by

exposure to atomic radiation and which can then be

submitted to the Veterans Administration in

support of veterans’ compensation claims.

Council report on the mortality of nuclear weapons

test participants, when corrected for a statistical

“healthy soldier bias’, also shows 62% excess

cancers (including respiratory, digestive, leukemia,

and other cancers) among soldiers who had

exposures to fallout of 300 millirems or more at the

Plumbbob atmospheric nuclear test series. On the

basis of this, the Veterans Administration is able to

award claims and provide compensation to

Plumbbob veterans who have been harmed by their

exposure to atomic fallout. The findings set forth

therein also show the urgent need to reevaluate

official risk estimates for radiological and chemical

mutagens which in some cases are and have been

underestimated by several orders of magnitude;

Consistent with the requirement of the Act and its

implementing regulations, Dr. Bross submitted two of

his studies to the Veterans Administration and to the

Veterans Committee on Environmental Hazards for

review, consideration, and evaluation in 1985 and 1986.

In its November 1986 meeting, the Advisory

Committee reviewed and considered these scientific

studies and determined that they provided no basis for a

change in the current Veterans Administration

compensation procedures for veterans exposed to

ionizing radiation from atmospheric nuclear weapons

tests and setting forth claims of service-connected

disability with respect thereto.

In its November 1986 meeting, the Committee

reviewed and considered these scientific studies. The

Committee determined that they provided no basis for a

change in the current Veterans Administration

compensation procedures for veterans exposed to

ionizing radiation from atmospheric nuclear weapons

tests and setting forth claims of service connected

disability with respect thereto.

The Committee’s consideration of Dr. Bross’s studies

violated the Act, its implementing regulations, used

inappropriate procedures, was otherwise unlawful, and

violated the petitioner’s constitutional rights.

In particular, the Veterans Administration failed to

forward Dr. Bross’s studies to the Radiation Panel of the

Scientific Council for review and comment as required by

the Act. See Act at Section 6(d)(2).

Moreover, the Scientific Council failed to evaluate Dr.

Bross’ studies, make findings relating thereto, and

forward those findings to the Committee and to the

Administrator as it was required to do under the Act.

See Act at Section 6(d)(2), (3).

Importantly, the government admitted and conceded

in the Courts below that Dr. Bross’ studies should have

been properly referred, evaluated, and published and that

they were not. In this regard, the government conceded

and admitted that the plaintiff's four scientific studies

fall within the areas of review responsibility of the Act

and the government therefore conceded that the Council

had a statutory responsibility to review and make

findings with respect to the studies in accordance with

the Radiation Exposure Act and that the Administrator

was required to publish evaluations of those studies. The

government further conceded and admitted that the

Scientific Council of the Veterans Advisory Committee

on Environmental Hazards did not normally have

separate and independent meetings from the Committee

and that the Radiation Panel of the Scientific Council did

not report to the Advisory Committee.‘

Finally, the government conceded that the

Administrator had not published the _ required

evaluations of the Petitioner's studies in the Federal

The facts presented also show that th2 review of Dr.

Bross’ studies by the Committee and the Veterans

Administration were improperly carried out because:

‘For all practical purposes, and but for the inatters raised in its

Motion to the lower Court, the government thus conceded outright to

the lower Court the validity of Dr. Bross’s First and (much of) the

Second Causes of Action.

* Thus, and but for the matters raised in the Motion to Dismiss, the

government essentially conceded the validity of those facts set forth

in Dr. Bross’s third, fourth, and fifth Causes of Action and thus

admitted the validity of those Causes of Action.

* See Footnote 2, above.

(1) the major Committee reviewers of his studies

did not possess the requisite expertise to comment

on them;

(2) the Committee and/or the Veterans

Administration solicited non-Committee members to

review and comment upon the studies and circulated

among Committee members misleading, erroneous

and libelous statements about Dr. Bross and/or his

studies,

(3) the Committee and the Agency failed to

advise Dr. Bross that its meeting whereat it

reviewed his studies was open to the public;

(4) the Committee withheld from him reviews of

and comments on his studies which were presented

and relied upon at the November 1986 Committee

meeting;

(5) the Committee failed to prepare a

contemporaneous transcript of the meeting at which

Dr. Bross’ studies were discussed’; and

(6) the membership of the Committee did not

comply with the membership requirements of the

Radiation Exposure Act and/or its implementing

regulations, and its membership included

inappropriate persons.

’That this prejudiced Dr. Bross is underscored by the many

“inaudibles’’ present in the reconstructed ‘transcript’ of the

November meeting of the Committee included as part of the Conway

declaration.

REASONS FOR GRANTING THE WRIT

I. The Second Circuit’s holding that the petitioner |

does not have standing is inconsistent with the Court’s

previous decisions relating to standing and the decisions

of the District of Columbia and the Eighth Circuits.

The Courts below held that the petitioner lacks

standing to bring his claims. The Second Circuit held

that the petitioner did not fall within that class of

persons protected by the Act and upheld, sub silentio,

the District Court’s holding that the Petitioner had

alleged no legally cognizable ‘‘injury in fact’’.

Standing has both a ‘constitutional’ and a

“prudential’’ dimension. See Valley Forge Christian

College v. Americans United for Separation of Church

and State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 758

(1982), Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197,

2204 (1975). Evaluated from both of these perspectives,

Dr. Bross has the standing to commence his lawsuit and

the lower Court’s holdings must be reversed.

Reversal of the Circuit Court’s holding is important for

it will establish a precedent which can be relied upon to

provide those who have been, are, and will be adversely

affected by the defendants’ administrative processes and

practices to have access to the basic and essential right

of judicial review of adverse agency action. This is no

insignificant right. Since the passage of the Act, a

multitude of scientific studies have been considered, |

reviewed, disposed of and rejected ostensibly in the name

of the processes and structure established thereby.

A) The Conclucion That The Petitioner Has Not Been

Injured in Fact in This Case is Contrary to the Major Standing

Decisions of This Court and Including Valley Forge, Investment

Company Institute, Data Processing, Sierra Club and Barlow, as

Well as Numerous Other Decisions of the Circuit Courts.

From a constitutional point of view, Supreme Court |

doctrine requires for standing that the petitioner ‘‘show |

that he personally has suffered some actual or threatened

injury as a result of the putatively illegal conduct of the

defendant, that the injury fairly can be traced to the

challenged action and (that it) is likely to be redressed by

a favorable decision.” Valley Forge, supra, 102 S.Ct. at

758 (citations omitted).*

Except in taxpayer suits, there need be no nexus

between the injuries relied on for Article III standing

and the claim of right. It is sufficient that relief on the

statutory claim will prevent or redress the injury. Duke

Power Company v. Carolina Evn. Study Group, 438 U.S. 59,

78-81 (1978).

Dr. Bross’ has been injured in this case as a result and

because of the defendant’s conduct, and by an injury

which can be redressed by the defendants.

Dr. Bross’s injuries include the following:

(a) the failure of the Veterans Administrator to

publish evaluations of his studies as required by law’;

(b) the failure of the Veterans Administration to

forward to the Radiation Panel of the Scientific Council

his studies for review and comment as required by law.

no reason to modify the Veterans Administration's

existing guidelines for adjudicating veterans claims for

service connected, radiation induced injuries.

(d) the failure of the Scientific Council to, as required

by law and regulation, evaluate his studies, make

findings relating thereto, and forward those findings to

the Committee and to the Administrator.

*There is no dispute in this case that Dr. Bross satisfies the

remaining two prongs of the constitutional standing test: that the

demonstrated injury is the result of actions taken by the defendants

and that he will benefit from the remedy requested. In this regard,

the complaint makes clear that the injuries discussed above ere

caused by and are the result of the actions of the defendants.

Secondly, the relief Dr. Bross requests (supra) is within the power of

the Court to grant and would provide him with exactly that which he

has been unlawfully deprived.

* See Footnote 2, above.

(e) The improper and unlawful review of Dr. Bross’s

studies by the Committee and the Veterans

Administration including the fact that, inter alia:

(1) the major reviewers of his studies did not

possess the requisite expertise to comment on his

studies;

(2) the solicitation of non-Committee members to

review and comment upon his studies and the

circulation among Committee members of

misleading, erroneous and libelous statements about

him and/or his studies;

(3) the failure of the Committee and the Agency

to advise him that its meeting whereat it reviewed

his studies was open to the public;

(4) the withholding from him of reviews and

comments on his studies which were presented at

and relied upon at the Committee meeting where his

studies were discussed;

(5) the failure of the Committee to prepare a

contemporaneous transcript of the meeting at which

his studies were discussed; and

(6) the failure of the Committee membership to

be in compliance with the membership requirements

of the Radiation Exposure Act andor its

implementing regulations, and its inclusion of

inappropriate persons on the Committee.

(f) due process violations regarding the review and

evaluation of his studies and as set forth in (e), above.

These injuries without a doubt give rise to the case

and controversy required by the Article III standing

component. See Investment Company Institute v. Camp,

401 U.S. 617, 620, 91 S.Ct. 1091, 1093 (1971), Data

Processing Service v. Camp, 397 U.S. 105, 153-54, 90

S.Ct. 827, 830 (1970).

In the face of all of this, the District Court's

characterization of the petitioner’s injuries as not

“personal’’ and “highly speculative’, and the Second

Circuit’s sub silentio affirmance thereof is difficult to

understand and clearly ignores the detailed wrongs

imposed upon Dr. Bross by the defendants.

Furthermore, any argument that procedural and

statutory wrongs and determinations are too ethereal for

consideration and that standing is limited to physical

and/or financial injury is inconsistent with and flies in

the face of Supreme Court law. Standing is a very broad

concept; the types of injuries which it protects are

broadly encompassing. See Data Processing, supra, 90

S.Ct. at 830, See also Sierra Club v. Morton, 465 U.S. Ct.

727, 734-35, 92 S.Ct. 1361; 1366 (1972). There are many

Circuit Court cases which stand for the proposition that

violation of a person’s statutory and/or procedural rights

provides one with cognizable standing. See e.g., Doe v.

Blum, 729 F.2d 186, 189 (2nd Cir. 1984); National

Conservative Political Action Comm. v. FEC, 626 F.2d

953, 957-58 (D.C. Cir. 1980); Committee for Full

Employment v. Blumenthal, 606 F.2d 1062, 1064-66

(D.C. Cir. 1979); Ellis v. U.S. Dep’t. of Housing and

Urban Development, 551 F.2d 13, 16 (3rd Cir. 1977);

Gardner v. F.C.C., 530 F.2d 1086, 1090-91 (D.C. Cir.

1976); Pickus v. U.S. Board of Parole, 507 F.2d 1107

(D.C. Cir. 1974). And certainly, when one’s constitutional

rights are violated a right to sue exists. See Laird v.

Tatum, 408 U.S. 1, 10-13, 92 S.Ct. 2318, 2324-25 (1972),

Larry v. Lawler, 605 F.2d 954, 962-63 (7th Cir. 1978);

Matos v. Secretary of HEW, 581 F.2d 282, 286 n.6 (lst

Cir. 1978), Albert Elia Bldg. Co., Inc. v. Sioux City, 418

F.Supp. 176, 178 (N.D. Iowa 1976).

However, and beyond this, the actions of the

defendants have deprived Dr. Bross of income, status,

and recognition. The Supreme Court is clear that

impairment of economic, financial, and professional

interests are also sufficient to confer standing. See

Barlow v. Collins, 397 U.S. 159, 161-65, 90 S.Ct. 832,

835-36 (1970), Data Processing, supra, 397 U.S. at 151,

90 S.Ct. at 829, Sierra Club, supra, 92 S.Ct. at 1365 and

cases cited at n.6 thereat, Bowsher v. Synar, 106 S.Ct.

3181, 3186 (1986), Wright v. Allen, 104 S.Ct. 3315, 3326

3327, 3328 n.22. Accord, U.S. v. Briggs, 514 F.2d 794,

797-799 (5th Cir. 1975).

B) The Second Circuit’s Conclusion That The Interest

Asserted By Dr. Bross is Not Within The Zone of Interests of

the Veterans’ Dioxin and Radiation Exposure Compensation

Act Is Inconsistent With and Contrary to The Court’s Policies

With Respect To Standing Enunciated By the Court in Clarke,

Valley Forge, Data Processing, Investment Company Institute,

Block, Barlow, and Other Cases And Of Relevant Holdings of

the District of Columbia and Eighth Circuit Courts of Appeals.

The ‘prudential’ dimension of standing is also

satisfied in this case. This Supreme Court principle

requires that (1) a plaintiff assert his own legal rights

and interests and not rest his claim on the rights of third

parties, (2) a plaintiff refrain from litigating “‘abstract

questions’’ amounting to ‘generalized grievances’ and

(3) a plaintiff's complaint ‘falls within the zone of

interest to be protected or regulated by the statute or

constitutional guarantee in question.’’ Valley Forge,

supra, 102 S.Ct. at 760.

The circumstances and facts of this case make it clear

that Dr. Bross asserts his own procedural and

substantive rights and that he raises specific claims

regarding particular statutory, regulatory, and

constitutional violations of law as it relates to him.

The Second Circuit rests its conclusions that Dr. Bross

fails to meet the prudential standing test on the

argument that ‘“‘the Act is chiefly centered around the

procedures for awarding VA compensation ... (and that)

the interest of a scientist like Dr. Bross in seeking

professional and governmental recognition of his views

... is not reasonably connected to the awarding of VA

benefits to fall within the Act’s zone of interests”’.

The Supreme Court has recently analyzed the ‘‘zone of

interest’’ test. See Clarke v. Securities Industry Ass'n.,

479 U.S. 388, 107 S.Ct. 750 (1987). The Court there

reiterated that relevant cases in this area approved a

“trend ... toward (the) enlargement of the class of

people who may protest administrative action’ (Clarke,

supra, 107 S.Ct. at 756), reiterated the point that it is

sufficient for standing that a person’s interest be only

“arguably”’ within the zone of interest of the relevant

statute (Data Processing, supra, 90 S.Ct. at 829,

Investment Co., supra, 91 S.Ct. at 1094, Clarke, supra,

107 S.Ct. at 756), recognized that there is a

“presumption in favor of judicial review of agency

action”’ and that it is overcome only when Congressional

intent to preclude judicial review is ‘‘fairly discernible in

the statutory scheme’’; and held that the zone of interest

test “is not meant to be especially demanding”’ (Clarke,

supra, 107 S.Ct. at 757).

According to the Court, the inquiry is an assessment

of ‘‘whether Congress intended for a particular class of

persons to be relied upon to challenge agency disregard

of the law.’’ Clarke, supra, 107 S.Ct. at 757. In answering

this question, one is not to look at the person qua

person. The Supreme Court held in Clarke that ‘‘there

need be no indication of congressional purpose to benefit

the would-be plaintiff’ in determining whether Congress

intended to permit the suit. Clarke, supra, 107 S.Ct. at

757. The relevant focus is on the interests of the person

and whether or not the relevant statute is explicitly

structured to indicate that the person is not to have

access to the Courts with respect to the matter at issue.

See Clarke, supra, 107 S.Ct. at 759, Block v. Community

Nutrition Institute, 467 U.S. 340, 347, 104 S.Ct. 2450,

2454 (1984), Investment Company Institute, supra, 91

S.Ct. at 1093-94, Data Processing, supra, 397 U.S. at

153-158, 90 S.Ct. at 830-33, Barlow, supra, 90 S.Ct. at

838, Doe v. Blum, 729 F.2d 186, 189 (2nd Cir. 1984).

The Supreme Court is clear that the zone of interest

test ‘‘denies a right of review (only) if the plaintiff's

interests are so marginally related to or inconsistent with

the purposes implicit in the statute that it cannot

reasonably be assumed that Congress intended to permit

the suit’’. Clarke, supra, 107 S.Ct. at 757.

Moreover, when as here, the construction involves the

standing related provisions of the APA, the ‘‘zone of

interest’ test is to be viewed and _ interpreted

‘generously.’ See Clarke, supra, 107 S.Ct. at 758 n.10,

citing Data Processing, supra, 397 U.S. at 156, 90 S.Ct.

at 831.

From this discussion of Supreme Court law, it should

be clear that, contrary to the position suggested by the

Circuit Court, standing is not to be decided by the

identification of the ‘“‘primary beneficiary under the

relevant statutory program’’. The issue instead, is

whether the interest the claimant asserts and represents

are among those interests arguably protected under the

relevant statutory program.

The terms of the Act reveal a clear and direct

relationship between scientific studies like the

Petitioner’s and the goals of the statute. The Act

manifests Congressional recognition that’ the

determination of adverse health effects many years after

exposure is marked by exceptional uncertainty and

acknowledges that this uncertainty has worked against

the award of benefits by the Veterans Administration for

serious disabilities.'* See e.g. Section 2(2), House Report

No. 98-592 reported at 1984 USC Cong. and Adm. News

pp. 4453, 4454 attached at pages 19a-37a in the

Appendix to this Brief.

'° Statistics provided counsel to the Petitioner by the Veterans

Administration and part of the record below indicate that during the

period 1978 to date, 6,000 claims asserting disability based on

exposure to ionizing radiation were filed and that of those, the VA

approved only 2. Similarly, the VA indicated that it had no record of

the number of claims that have ever been filed but states that only a

total of 25 such disability claims have ever been approved.

The Act’s premise is that scientific evidence is

necessary to reduce the uncertainty and increase the

likelihood of disability awards. To do that, the Act ‘“‘calls

in’’ the scientific community to assist in achieving its

goals by undertaking scientific studies of the connection

between exposure and health effects and providing such

studies to the government. The Act in turn imposes on

the Administrator an elaborate set of obligations and

procedures for addressing these studies and makes it

absolutely clear that the Administrator and _ the

defendants may not informally dismiss or ignore them.

Review of the statute compels the conclusion that

scientific studies like the Petitioner’s are the ‘‘critical

means’ for dealing with the problem of uncertainty and

the adverse effects of such uncertainty on the

adjudication of benefit claims. Consideration of scientific

studies is a prescribed duty of the Administrator under

the Act and it is that mandate which creates a zone of

interests.

In this case then, the relevant interest that standing

depends on is that of a scientist whose study of the

relationship between exposure and health effects has

been considered in an agency proceeding pursuant to

statutory mandate. As such, petitioner scientist is a

member of a group which Congress has identified in the

Act as critical to the achievement of its purpose. Thus,

the petitioner’s interests are identical to the values

promoted by and in the Act.

Moreover, petitioner’s acknowledged right to present

his scientific studies to the agency and his right to have

those studies considered is participation of a nature that

implies an interest sufficient to provide for standing to

seek judicial review. This is particularly relevant where

as here the issues for which judicial review are sought

are related to the statutory right of participation, See

NWRA uv. Finch, 429 F.2d 725 (D.C. Cir. 1970).

Providing petitioner scientist with standing makes

eminent sense because it places the control of judicial

review of agency action in the hands of people closely

related to the goals and operation of the statute.

Moreover, acknowledging standing to the petitioner with

respect to this statute poses no threat of unfairness in

holding later litigants to a decision in this case.

With this in mind, the critical and important question

raised by this case is whether the duties imposed on the

defendants relative to considering and making use of

scientific studies are enforceable obligations. And the

question of whether a scientist who has participated in

an administrative proceeding under the Act has standing

to obtain judicial review of the administrative review and

procedures is in the final analysis a question of the

reviewability of agency action. In this regard, if

petitioner scientist’s interest in compelling conformity

with the rulemaking provisions governing the

consideration of scientific studies is not within the zone

of interest protected by the statute, then no one has a

qualifying interest in enforcing these statutory

provisions."' In such circumstances, the Administrator’s

and the administrative disregard of scientific studies and

the procedures applicable to them becomes final and

unreviewable agency action.

This result, while mandated by the Circuit Court’s

disposal of this case is inconsistent with and contrary to

the well-established ‘“‘presumption of reviewability”’

''Any attempt by a ‘Veteran’ to litigate a claim such as the

petitioner's is illusionary for he/she would be met at the threshold

with the position that the challenge was premature. His challenge

would be premature until such time as a claim for disability benefits

was filed and he can show that the challenged action adversely

affected his claim in a concrete way. In such a proceeding, the issue

would quickly become whether the particular claimant was entitled to

particular disability benefits on the facts of the individual case. Any

such “complaining veteran’ would face additional difficulties because

under the 1988 amendments of Title 38 decisions in adjudicatory

proceedings are reviewable only in the Court of Veterans Appeals, a

purely administrative tribunal.

under the Administrative Procedure Act and required by

this Court pursuant to the policies laid down in Abbott

Laboratories v. Gardner, 387 U.S. 136, 139-41, 87 S.Ct.

1507 (1967); Clarke, supra, 479 U.S. at 399-400.

Nonreviewable administrative action in this case is

particularly inappropriate. This is because the Act itself

is a Congressional expression of dissatisfaction with the

VA and administrative lack of response to veterans’

claims for disability based on exposure to ionizing

radiation. The Act here has sought to increase the level

of administrative awareness and responsiveness by

imposing on the defendants here an elaborate process to

ensure full and careful consideration of scientific studies

and the duty to act on such studies in establishing

standards and guidelines unless there is defensible

reasons to reject the learning in such studies. Therefore,

the unreviewable agency discretion to interpret and

implement the Act as is administratively pleasing

significantly undermines the legislative purpose behind

the Act and the program constructed by it. Moreover,

such an outcome is contrary to the marked trend

favoring judicial review so as to insure administrative

accountability in circumstances where agency bias

arising from its mission or past practice threatens

legislative objectives.

It is further relevant that the terms of the Act do not

provide any reason to discard the Supreme Court

presumption of judicial review. To the contrary, the

statute in relevant part suggests that its enforcement is

not to be limited to ‘“‘Veterans with radiation-induced

cancer.’ In particular, the Act at Section 5(c)(1) requires

“public review and comment’”’ on proposed regulations

and/or amendments issued in accordance with that

statute. The petitioner is, of course, a member of the

public.

The 1988 Amendments to the Veterans Administration

Statute at 38 U.S.C. Section 211 et. seg. provide

additional authority in support of the presumption of

reviewability under the APA _ with respect to

determinations of the Veterans Administration. Such

amendments explicitly provide that VA determinations

in rulemaking, rulemaking and related procedures are

susceptible to judicial review in a federal court. See 38

U.S.C. 211, 223.

It matters not that this law appears in Section 5(c) of

the Act and in other Veterans statutes and not in those

provisions specifically relevant here. In determining

whether a statute leaves persons in or out, it is

appropriate to look at the entire statutory text. See

Clarke, supra, 107 S.Ct. at 758.

Finally, this is not a case where the questions arising

for which review are sought are within the arrow band

of agency determinations that are ‘‘beyond the keen and

competence of the Courts’’. In fact this is clearly not the

case as the Congress has taken steps in the statute to

remove the sole consideration of these matters from the

agency by providing and setting forth therein the

rulemaking process which the Petitioner has participated

in.

Given the congruence between the petitioner’s interest

and the explicit purposes of the Act, the Second Circuit's

reliance on Clarke is misplaced and not consistent with

Supreme Court law.

The District of Columbia and the Eighth Circuit

Courts of Appeals have also held in appropriate

circumstances that the ‘‘zone of interest test’’ should be

construed in a manner which would allow standing here.

See e.g., Hazardous Waste Council v. EPA, 861 F.2d 277,

281-86 (D.C. Cir. 1988); National Coal Ass’n. v. Hodel,

825 F.2d 523, 526-27, 529-31 (D.C. Cir. 1987); DeLoss v.

HUD, 822 F.2d 1460, 1462-66 (8th Cir. 1987);

Investment Co. v. FDIC, 815 F.2d 1540, 1543-46 (D.C.

Cir. 1987).

C) The Lower Courts have ignored this Court's Principles of

‘jus tertii’’ Standing And As Set Forth in Cases Such As

Munson and Craig v. Boren And As Implemented, For Example,

In Circuit Courts and Including The District of Columbia

Circuit.

Assuming arguendo that Dr. Bross’ interests are not

among those protected by the Act, the Supreme Court-

constructed principles of third party standing, or ‘‘jus

tertii'’, provide him with the ability to raise the matters

at issue in this lawsuit. See Maryland v. Munson, 194

S.Ct. 839, 2845-48 (1984), Craig v. Boren, 97 S.Ct. 451,

455-46 (1976). It is relevant here that Veterans aggrieved

by the refusal of the defendants to comply with the

statute would face severe practical problems and

obstacles in litigating this case and others like it because

of a lack of specialized expertise relating to statistics,

epidemiology and appropriate scientific methods. Such a

consideration is relevant in determining whether a party

has third party standing. See FAIC Securities Inc. v.

United States, 768 F.2d 352, 360 (D.C. Cir. 1985)

(Decision by Justice Scalia). The petitioner is

exceptionally skilled, trained, and talented in this area,

and so he can be expected to ‘‘properly frame the issues

and present them with the necessary adversarial zeal.”

Munson, supra, 104 S.Ct. at 2846.

Veterans would face other practical problems as well

including as discussed above, their lack of access to the

Courts. This provides another reason for providing the

petitioner with third party standing on their behalf.

Moreover, and as is required in third party standing

cases, the direct interests of the plaintiff here are less

important than the interests of the non-party veterans;

the third party plaintiff's action serves the non-party

veterans interests as well as his own; and providing third

party standing to the petitioner is here an appropriate

means of enforcing the right in question.

II. The Second Circuit's holding that the petitioner's

claims set forth no interest protected by due process

ignore this court’s seminal decision in Board of Regents v.

Roth and decisions of applicable circuit courts.

In response to the Petitioner's proof that the actions of

the defendants with respect to the (lack of) review of his

scientific studies deprived him of due process in violation

of the Fifth Amendment of the Constitution, the Second

Circuit Court of Appeals held that the petitioner had set

forth no constitutionally ‘‘protected property interest.”

The Circuit Court of Appeals’ decision was premised on

its reading of the meaning and interpretation of this

Court's decision in Board of Regents of State College v.

Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709 (1972).

The Second Circuit Court's holding is erroneous. More

specifically, it is in conflict and not in agreement with

the relevant Supreme Court authority in Roth and its

progeny.

Dr. Bross’ due process claims are twofold in this case.

First, Section 6(d)(3) of the Act provides him with the

“legitimate claim’’ to be entitled to obtain from the

Scientific Council Findings and Evaluations of his

scientific studies for presentation to the Committee and

to the Administrator. Simply put, the required

‘findings’ and “‘evaluations’’ of his scientific studies by

the Council are benefits and/or entitlements in which Dr.

Bross has a property interest. The Petitioner has such an

interest in these because they are required to be provided

in accordance with the terms of the Radiation Exposure

Act. See Act at Section 6(d)(2), (3). Moreover, these

statutorily required Findings and Evaluations are clearly

different from circumstances where persons merely

possess an “abstract need or desire’’ or ‘‘unilateral

expectations’ of receiving something. See Roth, supra,

408 U.S. at 577, 92 S.Ct. at 2709 (1972).

The Petitioner thus has a protectable property interest.

See generally, Roth, supra, 92 S.Ct. at 2709, Foxman v.

Renison, 625 F.2d 429, 432 (2nd Cir. 1980) cert. denied,

10 S.Ct. 530 (1980), Calloway v. Block, 763 F.2d 1283,

1290 (llth Cir. 1985), Zucker v. U.S., 758 F.2d 637, 639

(Fed. Cir. 1985), cert. denied, 106 S.Ct. 129 (1985).

Importantly, there is nothing in Board of Regents v.

Roth, supra, or other relevant caselaw to suggest or

otherwise indicate that Dr. Bross’s statutory benefit

and/or entitlement under the Act are not deserving of,

and do not merit, due process protection. They do.

Published evaluations of, and findings related to, a

scientist's scientific studies are no less meaningful or

important to him than is employment or shelter to

others. In fact, since the content of such evaluations and

findings impact on one’s scholarly reputation and

scientific competence, such findings and evaluations do

affect one’s shelter and employment.

Second, the circulation of erroneous, libelous, and

misleading statements at the Committee meeting about

the petitioner and his scientific studies which are at issue

in this litigation involves an actionable violation of the

petitioner's liberty interest as protected by the due

process provisions of the Fifth Amendment. This is so

because the Committee relied upon these materials in

arriving at its findings that Dr. Bross’s studies provided

no basis upon which to modify the Veterans

Administration compensation procedures and _ so

“removed’’, ‘‘extinguished”’ and/or ‘‘significantly altered’’

his statutory right to obtain impartial Findings and

Evaluations of his scientific studies. See Bartel v. FAA,

725 F.2d 1403, 1415 (D.C. Cir. 1984).

Conclusion

For the reasons set forth above, Petitioner respectfully

prays that a Writ of Certiorari issue to review the

November 17, 1989 Judgment and Opinion of the United

States Court of Appeals for the Second Circuit with

respect to this case.

Dated: Albany, New York

February 14, 1990

Respectfully submitted,

JOHN G. BRENON

Counsel of Record

5530 Main Street

Williamsville, New York 14221

(716) 633-7860

LEWIS STEELE

Counselor at Law, P.C.

Post Office Box 1235

Albany, New York 12201

(518) 854-9582

Attorneys for Petitioner

APPENDIX

Decision and Order of the United States

District Court for the Western District

of New York Dated March 29, 1989

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

CIVIL 87-1167C

IRWIN D. BROSS, Ph.D.,

Plaintiff,

vs.

THOMAS K. TURNAGE, as Administrator of

Veterans Affairs for the United States

Veterans Administration, et al.,

Defendants.

SIR/MADAM: Take NOTICE of an ORDER, & a

JUDGMENT of which the within is a copy, duly granted

in the above entitled action on the 29th & 31st days of

March, and entered in the Office of the Clerk of the

United States District Court, Western District of New

York, on the 30th & 31st days of March.

Dated: Buffalo, New York

March 31, 1989

MICHAEL J. KAPLAN, Clerk

United States District Court

Western District of New York

Buffalo, New York 14202

cc: Lewis Steele, Esq.

Martin Littlefield, AUSA

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

CIV-87-1167C

IRWIN D. BROSS,

Plaintiff,

vs.

THOMAS K. TURNAGE, As Administrator of Veterans

Affairs for the United States Veterans Administration;

THE VETERANS ADVISORY COMMITTEE ON

ENVIRONMENTAL HAZARDS; THE SCIENTIFIC

COUNCIL OF THE VETERANS’ ADVISORY

COMMITTEE ON ENVIRONMENTAL HAZARDS;

and THE UNITED STATES VETERANS

ADMINISTRATION,

Defendants.

APPEARANCES:

LEWIS STEELE, ESQ., Buffalo, New York, for

Plaintiff.

DENNIS C. VACCO, ESQ., United States Attorney

(MARTIN J. LITTLEFIELD, ESQ., Assistant

United Attorney, of Counsel), Buffalo, New York,

for Defendants.

The defendants have moved to dismiss the present

action pursuant to Rules 12 and 56 of the Federal Rules

of Civil Procedure.’

‘The defendants’ motion is directed to the complaint principally on

the standing issue; therefore, the court will address the motion under

Rule 12.

On September 4, 1987, the plaintiff filed a complaint

asserting six causes of action under the Veterans’ Dioxin

and Radiation Exposure Compensation Standards Act,

38 U.S.C. §354, note (1988) (‘Act’’), and the Fifth

Amendment to the United States Constitution.

The first cause of action alleges that the Veterans

Administration (“VA’’) violated the Act by failing to

publish in the Federal Register its evaluations of two

studies submitted by the plaintiff, and by failing to refer

the studies to a scientific subcommittee created pursuant

to the Act.

The second cause of action requests that the Court

issue a writ of mandamus ordering the Administrator of

the VA to do both.’

The third cause of action states that by determining

that the plaintiff's studies provided no basis for

modifying existing VA _ guidelines regarding the

adjudication of claims submitted by veterans, and by

failing to refer the studies to the aforementioned

subcommittee, the VA’s Advisory Committee violated

the Act by failing to properly ‘‘consider, review, evaluate

and process’’ his studies. The third cause of action also

alleges that the members of the Advisory Committee

were selected in violation of the Act.

The fourth cause of action alleges that the procedures

employed by the defendants in considering the plaintiff's

studies violated the plaintiff's right to due process of

law.

*The second ‘‘cause of action’’ thus does not actually allege a

separate claim.

The plaintiff states that he has not submitted two other studies to

the VA because to do so would be futile in light of the defendants’

actions in regard to his other studies; nonetheless, he is requesting

that any review and publication ordered by the Court also include

these previously unsubmitted studies.

The fifth cause of action requests that the court issue

a writ of mandamus ordering the defendants to ‘‘properly

consider, review, evaluate and process”’ his studies.°

The sixth cause of action, repeating all previous

allegations contained in the complaint, asserts that the

plaintiff has a right of action under the Administrative

Procedure Act (“APA”), 5 U.S.C. §§702, 704, and

charges that the Advisory Committee’s conclusions

regarding the plaintiff's analysis are arbitrary and

capricious, and that they are not supported by

substantial evidence.

The defendants claim that the plaintiff lacks standing

to bring the present action. They argue that he has failed

to demonstrate that any of their actions caused him

“injury in fact,’’ or that his complaint falls within the

“zone of interests’’ protected or regulated by the Act,

citing, among other cases, Sierra Club v. Morton, 405

U.S. 727 (1972), and Valley Forge Christian College v.

Americans United, 454 U.S. 464 (1982). The defendants

also assert that the plaintiff has failed to exhaust all

potential administrative remedies, citing the Federal

Advisory Committee Act, 5 U.S.C. App. 2, and the APA,

5 U.S.C. §553(e). See Item 7 at 16, 19-20, 22-23. In

addition, the defendants argue that the plaintiff has no

right to sue under the APA, see Item 7 at 20-22, and

that the plaintiff has failed to identify a property

interest to support his due process claim. See id. at 23-

> The fifth ‘cause of action” thus also does not state a separate claim.

24. Finally, the defendants argue that, in any event, the

Advisory Committee and the scientific subcommittee

cannot be sued under the APA. /d. at 24-25.‘

In his response, the plaintiff essentially repeats the

actions of the defendants cited in his complaint and

asserts that these actions themselves constitute

sufficient injury to establish standing, see Item 12 at 20-

21, although he also asserts that as a result of the

defendants’ actions he has been deprived of income,

status, and recognition. See id. at 23.5 He then asserts

that ‘the objective and lawful evaluations of [his]

studies” is the ‘interest which this lawsuit is all about,”’

id. at 26, and that he has a property interest in the

‘findings’ and ‘‘evaluations’’ of the _ scientific

subcommittee. Id. at 46. See also Item 13 at 4412, 23, 36,

37, 54-57, 64-69. In any event, he argues, he should be

granted standing as a third party attempting to protect

the interests of veterans. Jd. at 28.

‘The defendants also contend that the Administrator does intend to

publish the plaintiff's studies. See Item 7 at 10.

To put it mildly, the court is puzzled by the Administrator's lack of

attention to this requirement. It seems that there is no reason why

the plaintiff's studies could not have been published some time ago.

It is true that the statute and the regulation give the Administrator

much discretion; however, although the letter of the law may not

have been violated, it appears that the spirit of the law has been

breached.

‘ The plaintiff also claims that the Advisory Committee committed an

“actionable violation of {his} liberty’’ by circulating ‘‘erroneous,

libelous, and misleading statements’’ about him at one of its

meetings, see Item 12 at 47, and that the defendants’ delay in

properly reviewing and publishing his studies is itself actionable

conduct. Jd. at 30.

BACKGROUND

The plaintiff has a Ph.D. in Experimental Statistics

and is President of Biomedical Metatechnology, Inc., of

Buffalo, New York. He has conducted statistical research

on cancer and the capability of low-level ionizing

radiation to cause cancer, and has written extensively on

biostatistics, epidemiology, and cancer research. The

basis of his complaint is that his opinion was not

accepted by the VA’s Advisory Committee, and that the

Administrator of the Veterans Administration did not

embrace his studies and modify existing regulations

accordingly. The plaintiff asserts that the Act provides

support for the relief he seeks.

The Act requires the Administrator of the Veterans

Administration to establish guidelines and standards for

the resolution of claims for benefits arising from

radiation exposure, and to provide for the evaluation of

scientific studies relating to the possible increased risk of

adverse health effects from exposure to ionizing

radiation. These evaluations are to be made after

receiving the advice of the Scientific Council of the

Veterans’ Advisory Committee on Environmental

Hazards, and the evaluations are required to be

published in the Federal Register. The Act also provides

for the creation of the VA Advisory Committee and

requires the Administrator to specify the factors to be

considered in adjudicating claims.

Regulations were issued in 1985 and provided for

amendment through a public review and comment

process. The Act provides that this may include

consideration by the Administrator of the

recommendations of the Advisory Committee regarding

final regulations and amendments. The Act provides for

the membership of the Committee and directs that the

Advisory Committee is to have a Scientific Council

comprised of two subcommittees—one directing its

attention to dioxin exposure and the other to ionizing

radiation exposure. It directs that the Scientific Council

is to make findings and evaluations regarding pertinent

scientific studies and to submit its findings to the

Committee and the Administrator periodically.

In the Act, there is no requirement that the

Administrator publish the periodic reports, although it

appears that the Administrator is free to do so if he

desires. See 38 U.S.C. §354, note at sec. (5)(b)(1)(B). The

regulations provide a _ procedure by which the

Administrator reviews applications for disability benefits

by those who claimed that they were exposed. The

regulations also provide that the Administrator shall

publish evaluations of scientific or medical studies

relating to exposure to ionizing radiation in the Federal

(1988).

In his complaint, the plaintiff alleges that he has

performed studies which evaluated and re-analyzed data

that the Council had considered. In his analysis, he

disagreed with the Council’s report, and concluded that

it had a built-in bias that limited the number of veterans

found to have been exposed to ionizing radiation. If his

re-analysis were adopted, the regulations would have to

be amended. He submitted his re-analysis to the

Advisory Committee and, at the same time, to the

Scientific Council in November of 1986. The plaintiff

alleges that he has submitted four scientific studies

relating to the adverse health effects of exposure to

ionizing radiation. See Item 1 at 421; see also Item 7 at

9. The plaintiff appeared before the Advisory Committee,

but the Committee did not accept his re-analysis.

In November of 1986, the Committee reviewed the

documents and made findings that the studies provided

no reason to modify the existing guidelines. See Item 1

at 9449, 75; Item 7 at 9.

The government concedes that the plaintiff's studies

have not as yet been published in the Federal Register,

but asserts that eventually they will be published. See

Item 7 at 10; Item 8 at 46. Furthermore, no changes in

the existing regulations are contemplated. See Item 7 at

10.

DISCUSSION

On the present motion, the court must accept all of the

allegations contained in the complaint as true. It is the

plaintiff's burden, however, to show that, as a result of

the allegedly illegal conduct of the defendants, he has

personally suffered some actual or threatened

injury—that is, an “injury in fact,’ Valley Forge

Christian College v. Americans United, 454 U.S. at 472-

73—that is ‘‘distinct and palpable.’’ Warth v. Seldin, 422

U.S. 490, 501 (1975). Furthermore, he must demonstrate

that his complaint falls within the ‘‘zone of interests to

be protected or regulated by the statute or constitutional

guarantee in question.” Association of Data Processing

Service Organizations v. Camp, 397 U.S. 150, 153 (1970),

quoted in Valley Forge Christian College v. Americans

United, 454 U.S. at 475.

The interests intended to be addressed by the Act do

not include those asserted by the plaintiff. The plaintiff

does not claim that he is a veteran who has been exposed

to ionizing radiation or who has developed any form of

cancer, and the unrelated and highly speculative injuries

that he claims to have suffered clearly fall outside the

scope of the Act. The plaintiff thus cannot claim to be a

person who has been “‘injured in fact,’ or who falls

within any ‘‘zone of interest’’ protected or regulated by

the Act. See, e.g., Valley Forge Christian College v.

Americans United, 454 U.S. at 464, 472-75; Sierra Club

uv. Morton, supra; Capital Legal Foundation ov.

Commodity Credit Corp., 711 F.2d 253 (D.C. Cir. 1983).

Consequently, the plaintiff has failed to establish

standing to pursue his claims.

Moreover, examination of the separate causes of action

asserted by the piaintiff provides additional grounds

supporting this conclusion.

In his first and second causes of action, the plaintiff

alleges that he has been injured by the failure to publish

his studies in the Federal Register. However, the Act

does not specify any time frame within which the

Administrator must publish an evaluation. The statute

requires that once the Scientific Council has made such

evaluations, it must report them to the Advisory

Committee and the Administrator. Although the

regulations require publication, publication must be

made only ‘‘from time to time.’’ The court trusts that the

Administrator will follow the regulations and will

eventually publish the studies. But under neither the

statute nor the regulation does the court have the power

or authority to order the studies published forthwith.

The plaintiff thus has suffered no cognizable injury by

the failure to publish.

In his third, fourth, and fifth causes of action, the

plaintiff, by merely challenging the composition of the

Advisory Committee and the Scientific Council, has

shown no personal “‘‘injury in fact.’’ Furthermore, it

appears that Congress has provided for review of the

10a

standards and procedures employed by such purely

advisory bodies in the Federal Advisory Committee Act,

5 U.S.C. App. 2. See generally Metcalf v. National

Petroleum Council, 553 F.2d 176 (D.C. Cir. 1977). See

also National Nutritional Foods Association v. Califano,

603 F.2d 327, 336 (2d Cir. 1979).

In his sixth and final cause of action, the plaintiff

seeks an order of the court finding that the Advisory

Committee's conclusions regarding the plaintiff's

analysis are arbitrary and capricious, and that they are

not supported by substantial evidence. As noted above,

the Act permits the Administrator to consider

recommendations from an advisory committee as to any

possible amendment of the regulations. However, the

Administrator is not bound by such recommendations.

See 38 U.S.C. §354, note at sec. 5(c)(1). See also 5 U.S.C.

App. 2, §2(b)(6) (‘‘[T]he function of advisory committees

should be advisory only, and ... all matters under their

consideration should be determined, in accordance with

law, by the official, agency, or officer involved.’’) In fact,

in the sixth cause of action, the plaintiff challenges the

recommendation of the Advisory Committee before it has

even been considered by the Administrator and before

the Administrator has made a final determination.

Consequently, the plaintiff's invocation of the APA is

improper. See generally Valley Forge Christian College v.

Americans United, 454 U.S. at 488 n.24 (“Neither the

Administrative Procedure Act, nor any other

congressional enactment, can lower the threshold

requirements of standing under Art. III.’’)

These examples, which are not intended as exhaustive

of the deficiencies in the complaint, are further evidence

of the plaintiff's failure to establish standing.

lla

Finally, with regard to the claim in his fourth cause of

action that the defendants’ actions violated his right to

due process of law, the plaintiff has failed to establish

that he has been deprived of a constitutionally protected

property interest. Indeed, his complaint appears directed to

alleged deficiencies in the process per se employed by the

defendants rather than the deprivation of any

constitutionally-protected property interest caused by

that process. Cf. Board of Regents v. Roth, 408 U.S. 564

(1972).

Accordingly, the defendants’ motion is granted, and

the complaint is dismissed.

So ordered.

JOHN T. CURTIN

John T. Curtin

United States District Judge

Dated: March 29, 1989

[x]

12a

Judgment of the United States District

Court for the Western District of New

York Dated March 31, 1989

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

Case Number: CIV 87-1167C

IRWIN D. BROSS, Ph.D.,

Plaintiff,

vs.

THOMAS K. TURNAGE, As Administrator of

Veterans Affairs for the U.S. Veterans

Administration, etc., et al,

Defendants.

JUDGMENT IN A CIVIL CASE

Jury Verdict. This action came before the Court for

a trial by jury. The issues have been tried and the

jury has rendered its verdict.

Decision by Court. This action came to hearing

before the Court. The issues have been heard and a

decision has been rendered.

13a

IT IS ORDERED AND ADJUDGED

That defendants’ motion is granted, and the

complaint is dismissed.

March 31, 1989

MICHAEL J. KAPLAN

FRANCES MOSTILLER

(By) Deputy Clerk

FILED

89 MAR 31 AM 8:45

U.S. DISTRICT COURT

W.D.N.Y.—BUFFALO

l4a

Decision of the United States Court

of Appeals for the Second Circuit

Dated November 17, 1989

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 235—August Term, 1989

(Argued/Submitted October 26, 1989

Decided November 17, 1989)

Docket No. 89-7531

mae

IRWIN D. BROSS,

Appellant,

—Y —

THOMAS K. TURNAGE, as Administrator of Veterans

Affairs for the United States Veterans Administration;

THE VETERANS ADVISORY COMMITTEE ON ENVI-

RONMENTAL HAZARDS; THE SCIENTIFIC COUNCIL

OF THE VETERANS ADVISORY COMMITTEE ON ENVI-

RONMENTAL HAZARDS; and THE UNITED STATES

VETERANS ADMINISTRATION,

Appellees.

Before:

OAKES, Chief Judge,

KEARSE and ALTIMARI, Circuit Judges.

15a

Appeal from a judgment dismissing appellant’s claims

under the Veterans’ Dioxin and Radiation Exposure Com-

pensation Standards Act, 38 U.S.C. § 354, note (Supp. V

1987), and the Due Process Clause of the Fifth Amend-

ment.

Judgment affirmed.

LEWIS STEELE, Albany, NY, for Appellant.

DENNIS C. VACCO, United States Attorney

for the Western District of New York

(Martin J. Littlefield, of counsel), for

Appellees.

PER CURIAM:

Irwin D. Bross appeals from a judgment of the United

States District Court for the Western District of New

York, John T. Curtin, Judge, dismissing his complaint

pursuant to Fed. R. Civ. P. 12(b)(6). We affirm.

The Veterans’ Dioxin and Radiation Exposure Compen-

sation Standards Act (‘‘the Act’’), 38 U.S.C. § 354, note

(Supp. V 1987), requires the Administrator of Veterans’

Affairs (‘‘the Administrator’’) to establish guidelines for

resolving claims involving exposure by service personnel to

dioxin or ionizing radiation. See id. § 5(a)(1). Under the

Act, the Administrator, after receiving the advice of the

Scientific Council (‘‘Scientific Council’) of the Veterans’

Advisory Committee on Environmental Hazards (‘‘the

Advisory Committee’’), is to evaluate findings of scientific

l6a

studies relating to risks of exposure. See id. § 5(b)(1)(B).

The Act sets forth additional provisions pertaining to pro-

cedures for prescribing regulations based upon such scien-

tific evidence, see id. § 5(b)(2)-(3) & (c), and to the

composition of the Advisory Committee. See id. § 6.

The plaintiff, Irwin Bross, has written a number of

papers on the link between ionizing radiation and cancer.

Dr. Bross’s studies essentially have argued that there is a

much stronger causal connection between ionizing radia-

tion and cancer than what the Veterans’ Administration

(‘‘VA’’) currently recognizes. Dr. Bross has submitted his

studies to both the VA and the Advisory Committee for

review. Dr. Bross claims that the VA’s and Advisory Com-

mittee’s evaluations of his studies have not complied with

the substantive and procedural commands of the Act.

On September 4, 1987, Dr. Bross filed a complaint with

the United States District Court for the Western District of

New York against the Administrator, the VA, the Advi-

sory Committee, and the Scientific Council. He alleged,

first, that the VA and the Administrator unlawfully failed

to publish evaluations of his reports; second, that the

defendants failed to consider fairly his conclusions; third,

that the processes employed by the defendants violated his

due process rights; and, fourth, that the defendants’ con-

clusions that Dr. Bross’s studies provided no basis for

altering current VA policy were arbitrary and capricious.’

On March 29, 1989, the district court dismissed the com-

plaint, holding, among other things, that Dr. Bross did

not have proper standing to bring his claims.

1 Dr. Bross’s complaint sets forth six separate claims for relief. Two

of them are requests for mandamus and thus refer to the remedies

sought rather than constituting separate claims for relief.

17a

We hold that the district court properly dismissed Dr.

Bross’s complaint. In pursuing statutory claims for viola-

tions of the Act, Dr. Bross alleges that his right to sue

stems from the Administrative Procedure Act, which

grants the right of judicial review to ‘‘[a] person...

aggrieved by agency action within the meaning of a rele-

vant statute.’’ 5 U.S.C. § 702 (1988). A person suing

under § 702 must show that the interests he asserts are

‘arguably within the zone of interests to be protected or

regulated by the statute or constitutional guarantee in

question.’’ Association of Data Processing Service Orgs.,

Inc. v. Camp, 397 U.S. 150, 153 (1970). Judicial review of

an agency action will not lie ‘‘if the plaintiff’s interests are

sO marginally related to or inconsistent with the purposes

implicit in the statute that it cannot reasonably be assumed

that Congress intended to permit the suit.’’ Clarke v.

Securities Indus. Ass’n, 479 U.S. 388, 399 (1987).

We find that the interest asserted by Dr. Bross is not

within the zone of interests protected by the Act. Because

the Act is chiefly centered around the procedures for

awarding VA compensation, a veteran aggrieved by the

VA’s refusal to consider scientific evidence potentially rel-

evant toa claim for benefits conceivably could have a right

to seek judicial review. However, the interest of a scientist

like Dr. Bross in seeking professional and governmental

recognition of his views, although unquestionably genu-

ine, is not reasonably connected to the awarding of VA

benefits to fall within the Act’s zone of interests. Accord-

ingly, we rule that the district court correctly dismissed Dr.

Bross’s statutory claims.

Additionally, we hold that the district court properly

dismissed Dr. Bross’s due process claim. It is fundamental

that to establish a procedural due process violation, a

18a

plaintiff must show a deprivation of a protected life, lib-

erty or property interest. See, e.g., Board of Regents v.

Roth, 408 U.S. 564, 570-72 (1972). Dr. Bross has not iden-

tified a protected entitlement, nor is one readily discern-

ible from his complaint.

Judgment affirmed.

19a

House Report No. 98-592 reported at 1984

USC Cong. and Adm. News pp. 4453, 4454

P.L. 98542, see page 98 Stat. 2725

House Report (Veterans’ Affairs Committee) No. 98-592,

Jan. 25, 1984

[To accompany H.R. 1961]

Cong. Record Vol. 130 (1984)

DATES OF CONSIDERATION AND PASSAGE

House January 30, October 3, 1984

Senate May 22, October 4, 1984

No Senate Report was submitted with this legislation.

The House Report (this page) and an Explanatory

Statement (page 4170) are set out.

HOUSE REPORT NO. 98-592

[page 1]

The Committee on Veterans’ Affairs, to which was

referred the bill (H.R. 1961) to amend title 38, United

States Code, to provide a presumption of service

connection for the occurrence of certain diseases related

to exposure to herbicides or other environmental hazards

or conditions in veterans who served in Southeast Asia

during the Vietnam era, having considered the same,

reports favorably thereon with amendments and

recommends that the bill as amended do pass.

7. +: + * *

20a

[page 3]

Introduction

On April 26 and 27 and July 12, 1983, the

Subcommittee on Compensation, Pension and Insurance

conducted hearings on the bill, H.R. 1961, introduced on

March 8, 1983, by the Honorable Tom Daschle, to

authorize temporary monetary benefits, pending the

results and receipt of the epidemiological study

mandated by Public Law 96-151, for Vietnam veterans

who suffer from soft-tissue sarcoma, porphyria cutanea

tarda (PCT) and chloracne. The bill, as introduced, would

provide a statutory presumption of service-connection

for any veteran who served in Southeast Asia during the

Vietnam era and who later is shown to have one of the

conditions identified in the bill. There would be no time

limit for the initial manifestation of the disabilities under

the original bill.

Two major veterans’ organizations in testimony before

the Committee strongly opposed the bill on the basis

that there was not sufficient credible scientific evidence

to warrant a presumption of service-connection. Other

service organizations supported the bill as introduced.

The Subcommittee received testimony from a number

of Members of Congress, representatives of the Veterans’

Administration, the Department of the Air Force, the

Centers for Disease Control (CDC) of the Department of

Health and Human Services, the Armed Forces Institute

of Pathology, a number of veterans’ organizations and

from members of the scientific community and other

interested individuals.

On July 28, 1983, the Subcommittee adopted an

amendment in the nature of a substitute offered by the

Chairman of the Subcommittee, the Honorable Douglas

Applegate, and recommended the bill, as amended, to the

full Committee.

a ee

2la

On November 3, 1983, the full Committee adopted an

amendment offered by the Honorable John Paul

Hammerschmidt, to include benefits for certain veterans

who participated in the testing

[page 4]

of nuclear devices or who served in the occupation forces

in Hiroshima or Nagasaki immediately after World War

II and, by a vote of 30 to 0, ordered the bill, as amended,

to be reported to the House.

Background

Agent Orange

During the 9-year period from 1961 through 1969, the

herbicide Agent Orange was used in South Vietnam

primarily for the purpose of denying the enemy the cover

of dense jungle foliage. Two phenoxy herbicides, 2,4-D

and 2,4,5-T were used to formulate Agent Orange. Each

of these components has been used extensively in

agriculture since the mid-1940’s. During this 9-year

period, approximately 78 million pounds of 2,4,5-T were

used domestically in the United States; while between

1961 and 1971, approximately 52 million pounds of 2,4,5-T

were disseminated in South Vietnam. The 2,4,5-T

contained the contaminant dioxin, a compound formed

during the production processes and highly toxic to

certain animal species. The amount of dioxin

disseminated in the United States during the 9-year

period between 1961 and 1969 was probably at least four

times the amount disseminated in South Vietnam,

according to an Air Force witness before the Committee.

The Committee recognizes the use of Agent Orange in

Vietnam has caused much apprehension and concern

among some Vietnam veterans and their families, giving

22a |

rise to controversy. Much publicity has been given to the

alleged ill-health effects among some Vietnam veterans

which they attribute to exposure to the dioxin in Agent

Orange.

Since 1978 the Committee on Veterans’ Affairs has

held the following hearings on this issue:

October 11, 1978, Subcommittee on Medical

Facilities and Benefits.

February 25, 1980, Subcommittee on Medical

Facilities and Benefits.

July 22, 1980, Subcommittee on Medical Facilities

and Benefits.

September 16, 1980, Subcommittee on Medical

Facilities and Benefits.

May 6, 1981, Subcommittee on Oversight and

Investigations.

September 15, 1982, Subcommittee on Oversight

and Investigations.

April 26, 27 and July 12, 1983, Subcommittee on

Compensation, Pension and Insurance.

May 3, 1983, Subcommittee on Oversight and

Investigations.

Dozens of witnesses have testified with widely

divergent views on the issue. The question of toxicity of

dioxin is not in doubt—dioxin is one of the most highly

toxic substances known to the scientific community

although its toxicity for humans is unknown. What is

less clear is how much exposure to the dioxin was

experienced by Vietnam veterans, how much exposure

can be expected to produce long-term health effects, and

at what rate, or frequency, if any, are

A ———

ae a

23a

[page 5]

these effects being experienced by veterans who served

in Southeast Asia.

While a number of professionals in the scientific

community have stated that some Vietnam veterans are

suffering a high rate of cancers, skin and liver

conditions, as well as a multiplicity of other conditions,

there are no data or studies which substantiate this.

There is no concensus of opinion in the scientific

community that exposure to dioxin causes any

identifiable disability other than chloracne.

Because of the concern and apprehension in the

veteran community, the Congress mandated in Public

Law 96-151 an epidemiological study on the effects of

exposure to Agent Orange. At the suggestion of the

Chairman and Ranking Minority Member of the

Committee and other Members of the Congress,

responsibility for conducting the study was transferred

from the Veterans’ Administration to the CDC in 1982.

The study is expected to cost between $70 million and

$100 million when it is completed. The sum of $2.3

million was allocated to the CDC by the Veterans’

Administration in fiscal year 1983, and $53,974,000 is

contained in Public Law 96-181 for the conduct of the

study. Additional amounts will probably be necessary in

future appropriations acts. Spokesmen for the CDC have

projected the completion date of the study to be between

1987 and 1989.

There are numerous scientific human studies currently

underway related to Agent Orange, dioxins and the

Vietnam experience as a whole. The costs for the more

than 67 projects involving the Veterans’ Administration,

the Environmental Protection Agency, and_ the

Departments of Health and Human Services, Defense

24a

and Agriculture are quoted as $150 million from fiscal

years 1980 to 1985 and beyond. One of the more

significant efforts now underway is an epidemiological

study (known as the Ranch Hand Study) of Air Force

personnel assigned to do the actual spraying of the

herbicides. Approximately 1,300 servicemen were

assigned to this unit from 1962 to 1971 and were the

individuals who loaded the chemical on aircraft and flew

the spraying missions. This group probably received

more exposure, and on a repeated basis, than any other

unit in Vietnam, although it is the position of many that

ground troops may have experienced a higher level of

exposure than those personnel involved in the air-

spraying operations.

The first phase of the Ranch Hand Study on mortality

was released in August 1983. Because of the small

number of deaths the data contained no significant

findings. No unusual grouping of causes of death was

shown. The next phase of the study on morbidity is

expected to be released in February or March 1984 and

is expected to reflect the current health status of this

group.

Veterans who believe they have been exposed to Agent

Orange have complained of a variety of illnesses for

which they seek medical treatment and disability

compensation. These illnesses include, among others,

skin conditions, cancers, nervousness, numbness in

extremities, vision and/or hearing impairments, birth

defects in their offspring and reduced libido. Veterans

have also complained about the paucity of scientific

information available on the health effects of Agent

Orange and the perceived delays in the VA’s response.

Ae ee ete Set 2

ee a

25a

[page 6]

The VA maintains that it has responded to veterans’

concerns from the outset by initiating health programs

to identify veterans who may have been exposed and by

implementing research projects on health effects and

prompt implementation of Public Law 97-72 that

authorizes the VA to treat Vietnam veterans for

conditions that may be attributable to Agent Orange.

Since 1978 the VA has provided physical examinations

for Vietnam veterans who thought they were exposed to

Agent Orange.

Current law requires the Veterans’ Administration to

provide in-patient and out-patient care and treatment to

veterans who may have been exposed to Agent Orange

while serving in Vietnam for any disability that may

have resulted from such exposure, notwithstanding that

there is insufficient medical evidence to conclude that

such disability may be associated with exposure to

Agent Orange.

The VA maintains a registry of all veterans who come

to VA hospitals and health care facilities for Agent

Orange examinations. The registry also contains

information collected during the examination. As of

October 1, 1983, 125,649 veterans had received the initial

examination and about 75 percent of the key information

had been entered into a computer.

As of October 1, 1983, veterans had filed 18,518

disability claims with the VA for disorders they attribute

to Agent Orange exposure. Only half of these claimants

had any disability at all. The other half either claimed no

disability or had none diagnosed on _ physical

examination. Of the 9,170 who had a diagnosed

disability, 7,709 were denied because the evidence failed

to show the condition had its inception in service.

26a

The VA _ acknowledges that the skin disorder,

chloracne, is causally related to Agent Orange

exposure. Ninety-five percent of the remainder of 1,461

(16 percent) claims which were granted service

connection were for skin conditions and the remaining 5

percent were for cancer, psychiatric, and neurological

conditions, among others.

The VA denied 7,709 claims after there was a

confirmed diagnosis of the condition for which the

veteran had filed a claim. The denied claims fall into the

following categories: 4,959 for various skin conditions

other than chloracne; 2,484 for nervousness and

headache or fatigue; 926 for paralysis or numbness; 841

for gastrointestinal or genito-urinary conditions; 567 for

malignancies which include leukemia, lymphoma,

melanoma, and Hodgkin's disease; 363 for impaired

sexual activity; 472 for eye, ear, nose and throat

pathology, 299 for lung conditions; 263 for

cardiovascular conditions, and 152 claims denied for

miscellaneous conditions.

Under current VA policy the resolution of disability

claims for conditions that are now defined as non-service-

connected (and therefore denied) will depend on the

results of scientific studies which are now either pending

or underway. Since it is expected that these studies will

take years to complete, a spokesman for the VA has

testified before the committee that “it may well be that

the Congress cannot wait for scientific answers in the

short term, in which case it may well be that the

sociopolitical aspect of this problem will have to be

addressed.”

27a

[page 7)

Members of the Committee have demonstrated their

strong desire to respond to the apprehension and concern

among some Vietnam veterans and their families about

the possible long-term health effects that may have been

caused by their exposure to the herbicide Agent Orange

while serving in South Vietnam. Extensive hearings have

been held, and it is generally agreed that there is

insufficient credible scientific evidence that this group of

veterans has demonstrated they are experiencing any

higher incidence or frequency of medical problems related

to their possible exposure to dioxin while in service as to

warrant a statutory presumption that such medical

problems are related to military service. Notwithstanding

this fact, the Committee is proposing the temporary

payment of benefits for certain disabilities until the

Agent Orange Epidemiological Study has been completed

and the results of such study are submitted to the

Congress.

Atomic Veterans

Beginning in 1945 and continuing until 1963, the U.S.

Government exploded approximately 235 nuclear devices

in the atmosphere over the American Southwest and

Pacific Ocean. The Department of Defense estimates

that approximately 220,000 military personnel

participated in those tests. Additional personnel may have

been exposed while in the occupation forces in Japan

after the atomic bombings of Hiroshima and Nagasaki in

1945. Many of these troops were exposed to low-level

ionizing radiation which may or may not have been

accurately documented with proper exposure devices or

methodologies. To compound the problem, there is

limited scientific understanding of the relationship

between exposure to low doses of ionizing radiation and

subsequent health problems.

28a

Public concern about the health effects of low-level

ionizing radiation has been heightened in recent years by

the results of several studies. Since 1982, when cancer

was first attributed to overexposure to X-rays, the U.S.

Government has spent close to $2 billion (approximately

$80 million per year in recent years) for research on the

health effects of exposure to low-level ionizing radiation.

At least 80,000 scientific papers on the subject have

been published worldwide. While much has been learned

about the carcinogenic effects of high doses of radiation

exposure, scientists still are uncertain how low-level

ionizing radiation exposure causes cancer, and how to

predict the effects of exposure to low doses of ionizing

radiation.

The Subcommittee on Oversight and Investigations

held a hearing on May 24, 1983, to review Federal

studies on health effects of low-level radiation exposure

and implementation of Public Law 97-72. Included

among the witnesses were spokespersons from the VA,

the Center for Environmental Health (which is part of

the CDC of the Department of Health and Human

Services), the Defense Nuclear Agency, the National

Academy of Sciences, Members of Congress, and

representatives of a number of veterans’ organizations.

The CDC conducted a study of the participants in the

atmospheric nuclear test Smoky. There were 3,217

persons confirmed as present during the detonation of

Smoky on August 31, 1957. The

[page 8}

CDC could not locate or determine the vital status of

only 145 participants. Of the remaining 3,072 (95.5

percent of the total), CDC reviewed the death certificates

of the 146 who are deceased and contacted the remaining

2,926 participants or their next of kin. Only 20 of those

contacted refused to be included in the study.

29a

According to United States mortality statistics, 365

deaths from all causes would have been expected in this

population to date. In fact, there have been 320 deaths in

Smoky participants.

CDC also calculated the expected number of cancer

deaths for this population to be 64.3. In fact, they found

64. Of deaths from leukemia, 9 were found compared to

3.1 expected. This difference is statistically significant.

One other disease, polycythemia vera, was aiso found

to have occurred at a higher than expected frequency in

the nuclear test participants. CDC expected no more

than 1 case but found 4. This disease, which is

characterized by an inappropriate increase in the number

and production of red blood cells, has not been

previously shown to be caused by ionizing radiation.

In summary, the study of Smoky participants by the

CDC found an increased frequency of the occurrence of

leukemia and polycythemia vera. The study did not find

evidence of increased frequency of cancer or death from

cancer, but did observe less than the number of total

deaths expected. Seymour Jablon of the National

Academy of Sciences testified concerning his studies into

the mortality among 52,000 veterans who had

participated in five atmospheric tests, including the test

series of which Smoky was a part (code-name

PLUMBBOB). In contrast to the CDC findings

concerning only Smoky participants, which Jablon's

work verified, preliminary results show no excess

mortality from leukemia, nor from other forms of cancer

or other illnesses, among this much larger study cohort.

He also testified that, given the timing of the

introduction of the MHiroshima/Nagasaki occupation

forces, mone could have received radiation doses

exceeding one-tenth rad.

30a

There is an extensive body of information, mostly from

follow-up studies of the health histories of the Japanese

who were exposed at Hiroshima and Nagasaki, about the

health effects of radiation exposure caused by nuclear

detonation. However, there is very little information

specifically related to veterans who were exposed during

the weapons test program.

Public law 98160, signed by the President on

November 21, 1983, requires the Administrator of

Veterans’ Affairs to consider the feasibility of

conducting an epidemiological study of the effects of low-

level ionizing radiation on veterans who participated in

the testing of nuclear devices or who were in the

occupation forces at Hiroshima and Nagasaki

immediately after World War II. If such a study is

conducted it would be by an outside entity—not the

Veterans’ Administration.

It is expected that this study, if conducted, will be

completed and submitted to the Congress well before the

results of the Agent Orange epidemiological study are

available. In the event the radiation study is received by

the Congress prior to receipt of the Agent Orange

epidemiological study, and should it contain clear

evidence as to the health effects of radiation exposure

suffered by

[page 9]

veterans, the Committee will at that time exercise its

right to consider and recommend such legislation as it

deems appropriate.

Veterans exposed to ionizing radiation while

participating in nuclear tests, or the occupation of

Hiroshima or Nagasaki, have a slightly stronger basis

for consideration. Studies have shown a slightly higher

oy ee

_— a

3la

incidence of leukemia and polycythemia vera among

participants of the Smoky test. Similar data reflecting

increased health problems among veterans who served in

Vietnam and who may have been exposed to Agent

Orange are lacking. Although current evidence indicates

that some veterans exposed to ionizing radiation are

experiencing serious medical problems, available data

falls far short of meeting the test that the exercise of

sound medical judgment reflects that these disabilities

are related to military service.

According to information furnished by the Defense

Nuclear Agency, the duration of the military occupation

of Hiroshima and Nagasaki was relatively short. The

first U.S. units to occupy Hiroshima arrived October 6,

1945. U.S. Forces in Hiroshima were relieved by an

Australian unit on March 6, 1946, and U.S. occupation in

the vicinity came to an end at that time. The first

advance party of the U.S. occupation force (about 12

personnel) arrived in Nagasaki on September 16, 1945.

The last units departed Nagasaki in June 1946. The

occupation of these two sites was completely within the

World War II period as defined in title 38, United States

Code.

Some Members of the Committee feel it would be

better to wait for the results of the Agent Orange

Epidemiological Study being conducted by the CDC

before granting benefits for disabilities contained in the

bill. Some feel that Congress should abide by its

longstanding tradition that benefits should be paid only

where substantive evidence is clearly available to

establish that the disabling conditions existed while on

active duty or are clearly related to such period of

service. It was apparent, however, that this option did

not reflect the view of all Members of the Committee and

the reported bill represents a compromise on the highly

emotional issues.

caliente

32a

Summary of the Reported Bill

The reported bill, H.R. 1961, would provide that

effective October 1, 1983, a temporary disability (or

death) allowance would be payable to veterans who

served in Southeast Asia during the Vietnam era and

who later suffer from one of three conditions: soft-tissue

sarcoma, porphyria cutanea tarda (a liver condition

known as PCT), or chloracne (a skin condition). The soft-

tissue sarcoma must be shown to exist within 20 years

from date of departure from Southeast Asia and the

other two disabilities, porphyria cutanea tarda (PCT) and

chloracne must be manifested within 1 year from such

departure. Monetary benefits would be paid at the rates

prescribed in chapter 11 and chapter 13 of title 38,

United States Code. Derivative benefits which flow from

chapters 11 and 13 would also be available to persons

eligible under the new chapter 14. Benefits would

terminate under the sunset clause 1 year after the

epidemiological study authorized by Public Law 96-151 is

submitted to the Congress.

[page 10]

The reported bill would also provide that effective

October 1, 1983, a temporary disability (or death)

allowance would be payable to veterans who, while in

service participated in the testing of a nuclear device or

who served in the occupation forces at Hiroshima or

Nagasaki after the bombing in 1945 and who, within 20

years after such participation, suffers from cancer of the

thyroid polycythemia vera (a bone marrow disease) or

leukemia. These benefits would be available under the

same eligibility criteria and procedures as provided for

veterans exposed to Agent Orange. Veterans eligible for

benefits under the reported bill must have been

33e

physically present at or near the test site at the time of

detonation or shortly thereafter and not simply involved

in the planning of the test.

The Committee intends that receipt of this new benefit

be treated as if it were receipt of disability compensation

or DIC for purposes of all Federal laws other than

chapters 11 and 13 of title 38.

Section-By-Section Analysis

Section 1 provides that this act may be cited as the

Agent Orange and Atomic Veterans Relief Act.

Section 2 declares the act’s purposes—to provide

benefits to veterans who served in Southeast Asia during

the Vietnam era, and their survivors, if the veteran

suffers or dies from a disease that may be attributable to

Agent Orange exposure, and to veterans who

participated in atomic tests or the occupation of

Hiroshima or Nagasaki and their survivors, if the

veteran suffers or dies from a disease that may be

attributable to ionizing radiation, notwithstanding the

lack of medical evidence sufficient to conclude that the

disease is service connected.

Section 3 provides the statutory language for the new

chapter 14.

Subsection (a) of section 3 would amend title 38,

United States Code, by adding a new chapter 14 titled

“Disability and Death Allowances for Certain Veterans

and Survivors,” consisting of new sections 451 through

455.

New section 451, relating to Agent Orange veterans

and survivors, would consist of subsections (a) through

(c).

34a

Subsection (a) of new section 451 would require the VA

to pay, at rates established under new section 452, a

‘disability allowance’ to any veteran who served on

active duty in Southeast Asia during the Vietnam era

and after such service suffers from a disease described in

subsection (b) of this new section, and a ‘‘death

allowance” to any such veteran's survivors, if the

veteran died from the disease.

Subsection (b) of new section 451 would establish, as

diseases referred to in subsection (a), the following three:

soft-tissue sarcoma appearing within 20 years of the

veteran's departure from Southeast Asia; porphyria

cutanea tarda appearing within 1 year of the veteran's

departure from Southeast Asia, and chloracne appearing

within 1 year of the veteran's departure from Southeast

Asia.

Subsection (c) of new section 451 would bar the

payment of benefits under this section if there is

affirmative evidence that the veteran's disease was not

incurred during his or her Southeast Asian

[page 11]

service or is a result of an intercurrent injury or another

disease sustained post-service.

New section 452, relating to atomic veterans and

survivors, would consist of subsections (a) through (c).

Subsection (a) of new section 452 would require the VA

to pay, at rates established under new section 453, a

disability allowance to any veteran who participated

during the veteran's military service by being present at

the detonation of an atomic bomb or device, or the

occupation of Hiroshima or Nagasaki by the United

States forces during World War II, and who, within 20

35a

years after such participation, suffers from a disease

described in subsection (b) of this new section, and a

death allowance to any such veteran's survivors, if the

; veteran died from the disease.

Subsection (b) of new section 452 would establish, as

diseases referred to in subsection (a), the following three:

leukemia, polycythemia vera, and carcinoma of the

thyroid.

Subsection (c) of new section 452 would bar the

payment of benefits under this section if there is

affirmative evidence that the veteran's disease was not

incurred as a result of his or her participation in the

testing of an atomic bomb or device, or military

occupation of Hiroshima or Nagasaki, or is the result of

an intercurrent injury or another disease sustained

postservice.

New section 453, relating to rates payable as section

451 or 452 disability and death allowances, would key

veterans’ rates to compensation rates payable to

veterans under chapter 11 of title 38, United States

Code, according to the degree of disability, and

survivors’ rates and eligibility criteria to dependency and

indemnity compensation rates and criteria under chapter

13 of title 38.

New section 454, relating to other benefits, would

provide that a disease that established a veteran's or

survivor's eligibility for section 451 benefits shall be

considered as if it were service connected for purposes of

all Federal laws (except chapters 11 and 13 of title 38),

shall be treated as if the benefit were compensation or

dependency and indemnity compensation, as appropriate,

for purposes of Federal law.

36a

New section 455, relating to termination, would

provide for the termination of new chapter 14 authority

to grant benefits 1 year after the VA’s submission to

Congress of the first report required by section 307(b)(2)

of Public Law 96-151, the statute mandating a

comprehensive epidemiological study of the effects of

Agent Orange exposure on veterans’ health.

Subsection (b) of section 3 would amend the chapter

tables at the beginning of title 38 and the beginning of

part II of such title to reflect the insertion of the new

chapter 14.

Section 4 would provide for an effective date of

October 1, 1983, and rule out payment of section 451

benefits for any period prior to that date.

Oversight Findings

No oversight findings have been submitted to the

Committee by the Committee on Government

Operations.

[page 12]

Budget Statement

As required by the Rules of the House, the following

letter was received from the Congressional Budget Office

concerning the cost of H.R. 1961, as amended.

37a

U.S. Congress,

Congressional Budget Office,

Washington, D.C., November 8, 1983.

Hon. G. V. Montgomery,

Chairman, Committee on Veterans’ Affairs, U.S. House

of Representatives, Washington, D.C.

Dear Mr. Chairman: Pursuant to Section 403 of the

Congressional Budget Act of 1974, the Congressional

Budget Office has prepared the attached cost estimate of

H.R. 1961, the Agent Orange and Atomic Veterans

Relief Act, as ordered reported by the House Committee

on Veterans’ Affairs, November 3, 1983.

Should the Committee so desire, we would be pleased

to provide further details on this estimate.

Sincerely,

Rudolph G. Penner, Director.

Congressional Budget Office Cost Estimate

1. Bill number: H.R. 1961.

2. Bill title: Agent Orange and Atomic Veterans

Relief Act.

3. Bill status: As ordered reported by the House

Committee on Veterans’ Affairs, November 3, 1983.

4. Bill purpose: This bill would provide a new

category of benefits identical in dollar amounts to those

provided under veterans’ dis-

* + ®

38a

5 § 701. Application; definitions

(a) This chapter applies, according to the provisions

thereof, except to the extent that—

(1) statutes preclude judicial review; or

(2) agency action is committed to agency

discretion by law.

(b) For the purpose of this chapter—

(1) ‘“‘agency’’ means each authority of the

Government of the United States, whether or not it

is within or subject to review by another agency,

but does not include—

(A) the Congress;

(B) the courts of the United States;

possessions of the United States;

(D) the government of the District of

Columbia;

(E) agencies composed of representatives of

the parties or of representatives of organizations

of the parties to the disputes determined by them;

(F) courts martial and military commissions;

(G) military authority exercised in the field in

time of war or in occupied territory; or

(H) functions conferred by sections 1738, 1739,

1743, and 1744 of title 12; chapter 2 of title 41; or

sections 1622, 1884, 1891-1902, and former section

1641(b)(2), of title 50, appendix; and

(2) “‘person’’, ‘“‘rule’’, ‘‘order’’, ‘‘license’’,

‘‘sanction”’, ‘“‘relief’’, and ‘‘agency action’’ have the

meanings given them by section 551 of this title.

Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 392.

es ae

SE Ae Oe oe 6 meee -

5 § 702. Right of review

A person suffering legal wrong because of agency

action, or adversely affected or aggrieved by agency

action within the meaning of a relevant statute, is

entitled to judicial review thereof. An action in a court of

the United States seeking relief other than money

damages and stating a claim that an agency or an officer

or employee thereof acted or failed to act in an official

capacity or under color of legal authority shall not be

dismissed nor relief therein be denied on the ground that

it is against the United States or that the United States

is an indispensable party. The United States may be

named as a defendant in any such action, and a

judgment or decree may be entered against the United

States: Provided, That any mandatory or injunctive

decree shall specify the Federal officer or officers (by

name or by title), and their successors in office, personally

responsible for compliance. Nothing herein (1) affects

other limitations on judicial review or the power or duty

of the court to dismiss any action or deny relief on any

other appropriate legal or equitable ground; or (2) confers

authority to grant relief if any other statute that grants

consent to suit expressly or impliedly forbids the relief

which is sought.

Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 392; Pub.L. 94-574,

§ 1, Oct. 21, 1976, 90 Stat. 2721.

5 § 704. Actions reviewable

Agency action made reviewable by statute and final

agency action for which there is no other adequate

remedy in a court are subject to judicial review. A

preliminary, procedura!, or intermediate agency actic® or

ruling not directly reviewable is subject to review on the

review of the final agency action. Except as otherwise

40a

expressly required by statute, agency action otherwise

final is final for the purposes of this section whether or

not there has been presented or determined all

applications for a declaratory order, for any form of

reconsideration, or, unless the agency otherwise requires

by rule and provides that the action meanwhile is

inoperative, for an appeal to superior agency authority.

Pub.L. 9-554, Sept. 6, 1966, 80 Stat. 392.

5 § 706. Scope of review

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;

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 parts of it cited by a

party, and due account shall be taken of the rule of

prejudicial error.

Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 393.

42a

38 CFR Ch. 1

Public Participation

§ 1.12 Public participation in regulatory development.

It is the policy of the Veterans’ Administration to

afford the public general notice, published in the Federal

opportunity to participate in the regulatory development

in accordance with the provisions of the Administrative

Procedure Act (APA). All written comments received will

be available for public inspection. Exceptions to the

policy of permitting public participation in the regulatory

development may be authorized by the Administrator or

one of his Deputies if adequately justified and concurred

in by the General Counsel. Such exceptions, unless public

comment is required by statute, may be recommended

when: (a) The proposed regulations consist of

interpretative rules, general statements of policy, or rules

of Veterans’ Administration organization procedure or

practice, or (b) when the Veterans’ Administration for

good cause finds (and incorporates the finding and a

brief statement of reasons therefor in the rules issued)

that notice and public procedure thereon are

impacticable, unnecessary, or contrary to the public

interest.

§ 1.17 Evaluation of studies relating to health effects of

dioxin and radiation exposure.

(a) From time to time, the Administrator shall publish

evaluations of scientific or medical studies relating to the

adverse health effects of exposure to 2,3,7,8

tetrachlorodibenzo-p-dioxin or ionizing radiation in the

Notices” section of the Federal Register.

43a

(b) Factors to be considered in evaluating scientific

studies include:

(1) Whether the study's findings are statistically

significant and replicable.

(2) Whether the study and its findings have withstood

peer review.

(3) Whether the study methodology has been

sufficiently described to permit replication of the study.

(4) Whether the study's findings are applicable to the

veteran population of interest.

(5) The views of the appropriate panel of the Scientific

Council of the Veterans’ Advisory Committee on

Environmental Hazards, (Pub. L. 98-542).

§ 3.311b Claims based on exposure to ionizing radiation.

(a) Determinations of exposure and dose—(1) Dose

assessment. In all claims in which it is established that a

radiogenic disease, iisted in paragraph (b)(2) of this

section, first became manifest after service and was not

manifest to a compensable degree within any applicable

presumptive period as specified in § 3.307, and it is

contended the disease is a result of exposure to ionizing

radiation in service, an assessment will be made as to the

size and nature of the radiation dose or doses. When

dose estimates provided pursuant to paragraph (a)(2) of

this section are reported as a range of doses to which a

veteran may have been exposed, exposure at the highest

level of the dose range reported will be presumed.

(2) Request for dose information. Where necessary

pursuant to paragraph (a)(1) of this section, dose

information will be requested as follows:

dia

(i) Atmospheric nuclear weapons test participation

claims. In claims based upon participation § in

atmospheric nuclear testing, dose data will in all cases be

requested from the appropriate office of the Department

of Defense.

(ii) Hiroshima and Nagasaki occupation claims. In all

claims based on purticipation in the American occupation

of Hiroshima or Nagasaki, Japan, prior to July 1, 1946,

dose data will be requested from the Department of

Defense.

(iii) Other exposure claims. In all other claims

involving radiation exposure, a request will be made for

any available records concerning the veteran's exposure

to radiation. These records normally include but may not

be limited to the veteran’s Record of Occupational

Exposure to Ionizing Radiation (DD Form 1141), if

maintained, service medical records, and other records

which may contain information pertaining to the

veteran's radiation dose in service. All such records will

be forwarded to the Chief Medical Director, who will be

responsible for preparation of a dose estimate, to the

extent feasible, based on available methodologies.

(3) Referral to independent expert. When necessary to

reconcile a material difference between an estimate of

dose, from a credible source, submitted by or on behalf

of a claimant, and dose data derived from official

military records, the estimates and supporting

documentation shall be referred to an independent expert,

selected by the Director of the National Institutes

of Health, who shall prepare a separate radiation dose

estimate for consideration in adjudication of the claim.

For purposes of this paragraph:

45a

(i) The difference between the claimant's estimate and

dose data derived from official military records shall

ordinarily be considered material if one estimate is at

least double the other estimate.

(ii) A dose estimate shall be considered from a

‘credible source’ if prepared by a person or persons

certified by an appropriate professional body in the field

of health physics, nuclear medicine or radiology and if

based on analysis of the facts and circumstances of the

particular claim.

(4) Exposure. In cases described in paragraph (a)(2)\i)

and (ii) of this section:

(i) If military records do not establish presence at or

absence from a site at which exposure to radiation is

claimed to have occurred, the veteran's presence at the

site will be conceded.

(ii) Neither the veteran nor the veteran's survivors

may be required to produce evidence substantiating

exposure if the information in the veteran's service

records or other records maintained by the Department

of Defense is consistent with the claim that the veteran

was present where and when the claimed exposure

occurred.

(b) Initial review of claims. (1).When it is determined:

(i) A veteran was exposed to ionizing radiation as a

result of participation in the atmospheric testing of

nuclear weapons, the occupation of Hiroshima or

Nagasaki, Japan, from September 1945 until July 1946,

or other activities as claimed;

(ii) The veteran subsequently developed a radiogenic

disease specified in paragraph (b)(2) of this section; and

46a

(iii) Such disease first became manifest within the

period specified in paragraph (b)(4) of this section; before

its adjudication the claim will be referred to the Chief

Benefits Director for further consideration in accordance

with paragraph (c) of this section. If any of the foregoing

3 requirements has not been met, it shall not be

determined that a disease has resulted from exposure to

ionizing radiation under such circumstances. (But see

paragraph (h) of this section.)

(2) For purposes of paragraphs (a)(1) and (b)(1) of this

section, “‘radiogenic disease’’ shall include only the

following:

(i) All forms of leukemia except chronic lymphatic

leukemia:

(ii) Thyroid cancer;

(iii) Female breast cancer;

(iv) Lung cancer;

(v) Bone-cancer;

(vi) Liver cancer;

(vii) Skin cancer;

(viii) Esophageal cancer;

(ix) Stomach cancer;

(x) Colon cancer;

(xi) Pancreatic cancer;

(xii) Kidney cancer;

(xiii) Urinary bladder cancer;

(xiv) Salivary gland cancer; and

(xv) Multiple myeloma.

(3) For purposes of paragraphs (a)(1) and (b)(1) of this

section, ‘‘radiogenic disease’’ shall not include

polycythemia vera.

47a

(4) For purposes of paragraph (b)(1) of this section:

(i) Leukemias and bone cancer must become manifest

within 30 years after exposure;

(ii) Other forms of cancer specified in paragraph (b)(2)

of this section must become manifest 5 years or more

after exposure.

claim is forwarded for review pursuant to paragraph

(b)\(1) of this section, the Chief Benefits Director shall

consider the claim with reference to the factors specified

in paragraph (e) of this section and may request an

advisory medical opinion from the Chief Medical

Director.

(i) If after such consideration the Chief Benefits

Director is convinced sound scientific and medical

evidence supports the conclusion it is at least as likely as

not the veteran's disease resulted from exposure to

radiation in service, the Chief Benefits Director shall so

inform the regional office of jurisdiction in writing. The

Chief Benefits Director shall set forth the rationale for

this conclusion, including an evaluation of the claim

under the applicable factors specified in paragraph (e) of

this section.

(ii) If the Chief Benefits Director determines there is

no reasonable possibility that the veteran's disease

resulted from radiation exposure in service, the Chief

Benefits Director shall so inform the regional office of

jurisdiction in writing, setting forth the rationale for this

conclusion.

(2) If the Chief Benefits Director, after considering

any opinion of the Chief Medical Director, is unable to

conclude whether it is at least as likely as not, or that

dha

there is no reasonable possibility, the veteran's disease

resulted from radiation exposure in service, the Chief

Benefits Director shall refer the matter to an outside

consultant in accordance with paragraph (d) of this

section.

(3) For purposes of paragraph (c)(1) of this section,

‘sound scientific evidence’ means observations, findings,

or conclusions which are statistically and epidemiologically

valid, are statistically significant, are capable of

replication, and withstand peer review, and ‘‘sound

medical evidence’’ means observations, findings, or

conclusions which are consistent with current medical

knowledge and are so reasonable and logical as to serve

as the basis of management of a medical condition.

(d) Referral to outside consultants. (1) Referrals

pursuant to paragraph (c) of this section shall be to

consultants selected by the Chief Medical Director from

outside the VA, upon the recommendation of the

Director of the National Cancer Institute. The consultant

will be asked to evaluate the claim and provide an

opinion as to the likelihood the disease is a result of

exposure as Claimed.

(2) The request for opinion shall be in writing and

shall include a description of:

(i) The disease, including the specific cell type and

stage, if known, and when the disease first became

manifest;

(ii) The circumstances, including date, of the veteran’s

exposure;

(iii) The veteran's age, gender, and pertinent family

history;

“

(iv) The veteran's history of exposure to known

carcinogens, occupationally or otherwise;

(v) Evidence of any other effects radiation exposure

may have had on the veteran; and

(vi) Any other information relevant to determination

of causation of the veteran’s disease.

The Chief Benefits Director shall forward, with the

request, copies of pertinent medical records and, where

. available, dose assessments from official sources, from

credible sources as defined in paragraph (a)(3)(ii) of this

| section, and from an independent expert pursuant to

paragraph (a)(3) of this section.

(3) The consultant shall evaluate the claim under the

factors specified in paragraph (e) of this section and

respond in writing, stating whether it is either likely,

unlikely, or approximately as likely as not the veteran's

disease resulted from exposure to ionizing radiation in

service. The response shall set forth the rationale for the

consultant’s conclusion, including the consultant’s

evaluation under the applicable factors specified in

paragraph (e) of this section. The Chief Benefits Director

shall review the consultant’s response and transmit it

with any comments to the regional office of jurisdiction

for use in adjudication of tne claim.

(e) Factors for consideration. Factors to be considered

in determining whether a veteran’s disease resulted from

exposure to ionizing radiation in service include:

(1) The probable dose, in terms of dose type, rate and

duration as a factor in inducing the disease, taking into

account any known limitations in the dosimetry devices

employed in its measurement or the methodologies

employed in its estimation;

50a

(2) The relative sensitivity of the involved tissue to

induction, by ionizing radiation, of the _ specific

pathology;

(3) The veteran’s gender and pertinent family history;

(4) The veteran’s age at time of exposure;

(5) The time-lapse between exposure and onset of the

disease; and

(6) The extent to which exposure to radiation, or

other carcinogens, outside of service may have

contributed to development of the disease.

(f) Adjudication of claim. The determination of service

connection will be made under the generally applicable

provisions of this part, giving due consideration to all

evidence of record, including any opinion provided by the

Chief Medical Director or an outside consultant, and to

the evaluations published pursuant to § 1.17 of this title.

With regard to any issue material to consideration of a

claim, the provisions of § 3.102 of this title apply.

(g) Willful misconduct and supervening cause. In no

case will service connection be established if the disease

is due to the veteran’s own willful misconduct, or if there

is affirmative evidence to establish that a supervening,

nonservice-related condition or event is more likely the

cause of the disease.

(h) Service connection otherwise established.

Nothing in this section will be construed to prevent the

establishment of service connection for any injury or

disease otherwise shown by sound scientific or medical

evidence to have been incurred or aggravated during

active service.

(Pub. L. 98-542)

[50 FR 34458, Aug. 26, 1985]

ee Bee me eR a ple na

5la

§ 211. Decisions by Administrator; opinions of Attorney

General

Amendment of Subsec. (a)

Pub.L. 108-687, Div. A, Title I, § 10l(a), Title IV, §

401(a), Nov. 18, 1988, 102 Stat. 4105, 4122, amended

subsec. (a), effective on Sept. 1, 1989, to read as follows:

(aX1) The Administrator shall decide all questions of

law and fact necessary to a decision by _ the

Administrater under a law that affects the provision cf

benefits by the Administrator to veterans or the

dependents or survivors of veterans. Subject to

paragraph (2) of this subsection, the decision of the

Administrator as to any such question shall be final and

conclusive and may not be reviewed by any other official

or by any court, whether by an action in the nature of

mandamus or otherwise.

(2) The second sentence of paragraph (1) of this

subsection does not apply to—

(A) matters subject to section 223 of this title;

(B) matters covered by sections 775 and 784 of

this title;

and

(D) matters covered by chapter 72 of this title.

52a

§ 223.' Rulemaking; procedures and judicial review

(a) In applying section 552(a)(1) of title 5 to the

Veterans’ Administration, the Administrator shall ensure

that subparagraphs (C), (D), and (E) of that section are

complied with, particularly with respect to opinions and

interpretations of the General Counsel.

(b) The provisions of section 553 of title 5 shall apply,

without regard to subsection (a)(2) of that section, to

matters relating to loans, grants, or benefits under a law

administered by the Administrator.

552(a)(1) or 553 of title 5 (or both) refers (other than an

action relating to the adoption or revision of the schedule

of ratings for disabilities adopted under section 355 of

this title) is subject to judicial review. Such review shail

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.

(Added Pub. L. 100-687, Div. A, Title {, §401(a)(1), Nov.

18, 1988, 102 Stat. 4122.)

' Another section 223 is set out, ante.

38 § 223 Veterans’ Benefits

Effective Date

Pub.L. 100-687, Div. A, Title I, § 401(a), Nov. 18, 1988,

102 Stat. 4122, provided that this section shall take effect

on Sept. 1, 1989.

53a

38 8354 Veterans’ Benefits

“SHORT TITLE

‘Section 1. This Act [amending this section, enacting

provisions set out as notes under this section, and

amending provisions set out as notes under section 219

of this title] may be cited as the ‘Veterans’ Dioxin and

Radiation Exposure Compensation Standards Act’.

“FINDINGS

‘Sec. 1. The Congress makes the following findings:

(1) Veterans who served in the Republic of Vietnam

during the Vietnam era and veterans who participated in

atomospheric nuclear tests or the American occupation

of Hiroshima or Nagasaki, Japan, are deeply concerned

about possible long-term health effects of exposure to

herbicides containing dioxin or to ionizing radiation.

(2) There is scientific and medical uncertainty

regarding such long-term adverse health effects.

(3) In section 102 of Public Law 97-72 [Probably

means section 102 of Pub.L. 97-72, which amended

sections 610 and 612 of this title], the Congress

responded to that uncertainty by authorizing priority

medical care at Veterans’ Administration facilities for

any disability of a veteran who may have been so

exposed (even though there is insufficient medical

evidence linking such disability with such exposure)

unless the disability is found to have resulted from a

cause other than the exposure.

(4) The Congress has further responded to that

medical and scientific uncertainty by requiring in section

307 of Public Law 96-151 and section 601 of Public Law

54a

96-160, [set out as notes under section 219 of this title]

the conduct of thorough epidermiological studies of the

health effects experienced by veterans in connection with

exposure both to herbicides containing dioxin and (if not

determined to be scientifically infeasible) to radiation and

by requiring in Public Law 97-414, [see Tables volume]

the development of radioepidermiological tables setting

forth the probabilities of causation between various

cancers and exposure to radiation.

(5) There is some evidence that chloracne, porphyria

cutanea tards, and soft tissue sarcoma are associated

with exposure to certain levels of dioxin as found in

some herbicides and that most types of leukemia,

malignancies of the thyroid, female breast, !ung, bone,

liver, and skin, and polycythemia vera are associated

with exposure to certain levels of ionizing radiation.

(6) As of the date of the enactment of this Act

[Oct.24,1984], there are sixty-six Federally sponsored

research projects being conducted relating to herbicides

containing dioxin, at a cost to the Federal Government

in excess of $130,000,000 and, as of 1981, federally

sponsored research projects relating to ionizing radiation

were costing the Federal Government more than

$115,000,000.

(7) The initial results of one project—an

epidermiological study, conducted by the United States

Air Force School of Aerospace Medicine, of the health

status of the ‘‘Ranch Hand”’ veterans who carried out

the loading and aerial spraying of herbicides containing

dioxin in Vietnam and in the process came into direct

skin contact with such herbicides in their most

concentrated liquid form—were released on February 24,

1984, and contained the conclusion ‘that there is

55a

insufficient evidence to support a cause and effect

relationship between herbicide exposure and adverse

health in the Ranch Hand group at this time’.

(8) The ‘film badges’ which were originally issued to

members of the Armed Forces in connection with the

atmospheric nuclear test program have previously

constituted a primary source of dose information for

veterans (and survivors of veterans) filing claims for

Veterans’ Administration disability compensation or

dependency and indemnity compensation in connection

with exposure to radiation.

(9) These film badges often provide an incomplete

picture of radiation exposure, since they were not

capable of recording inhaled, ingested, or neutron doses

(although the Defense Nuclear Agency currently has the

capability to reconstruct individual estimates of such

doses), were not issued to most of the participants in

nuclear tests, often provided questionable readings

because they were shielded during the detonation, and

were worn for only limited periods during and after each

nuclear detonation.

‘(10) Standards governing the reporting of dose

estimates in connection with radiation-related claims for

Veterans’ Administration disability compensation vary

among the several branches of the Armed Forces, and no

uniform minimum standards exist.

‘(11) The Veterans’ Administration has _ not

promulgated permanent regulations setting forth specific

guidelines, standards, and criteria for the adjudication of

claims for Veterans’ Administration disability

compensation based on exposure to herbicides containing

dioxin or to ionizing radiation.

56a

(12) Such claims (especially those involving health

effects with long latency periods) present adjudicatory

issues which are significantly different from issues

generally presented in claims based upon the usual types

of injuries incurred in military service.

(13) It has always been the policy of the Veterans’

Administration and is the policy of the United States,

with respect to individual claims for service connection

of diseases and disabilities, that when, after

consideration of all evidence and material of record, there

is an approximate balance of positive and negative

evidence regarding the merits of an issue material to the

determination of a claim, the benefit of the doubt in

resolving each such issue shall be given to the claimant.

“PURPOSE

‘Sec. 3. The purpose of this Act [Pub.L.98-542, see

section 1 of this note] is to ensure that Veterans’

Administration disability compensation is provided to

veterans who were exposed during service in the Armed

Forces in the Republic of Vietnam to a _ herbicide

containing dioxin or to ionizing radiation in connection

with atmosperic nuclear tests or in connection with the

American occupation in Hiroshima or Nagasaki, Japan,

for all disabilities arising after that service that are

connected, based on sound scientific and medical

evidence, so such _ service (and that Veterans’

Administration dependency and indemnity compensation

is provided to survivors of those veterans for all deaths

resulting from such disabilities).”’

Requirement for and Content of Regulations; Advisory

Committee on Evironmental Standards, Nuclear

Radiation Matters Involving Other Agencies. Sections 5

to 7 of Pub.L 98542, as amended Pub.L. 100-321, §2(c),

May 20, 1988. 102 Stat. 486, provided that:

ee ere sy ho

57a

“REQUIREMENT FOR AND CONTENT

OF REGULATIONS

‘Sec. 5. (a) in carrying out the responsibilities of the

Administrator of Veterans’ Affairs under section

354(a\(2)of title 32, United States Code, [subsec. (a)(2) of

this section] and in order to promote consistency in

claims processing and decisions, the Administrator shall

prescribe regulations to—

(1) establish guidelines and (where appropriate)

standards and criteria for the resolutions of claims

for benefits under laws administered by the

Veterans’ Administration where the criteria for

eligibility for a benefit include a requirement that a

death or disability be service connected and the

claim of service connection is based on a veteran's

exposure during service—

‘“(A) in the Republic of Vietnam during the

Vietnam era to a herbicide containing dioxin, or

“(B) is connected with such _ veteran's

participation in atmospheric nuclear tests or with

the American occupation of Hiroshima or

Nagasaki, Japan, prior to July 1, 1946, to ionizing

radiation from the detonation of a nuclear device,

and

(2) ensure that, with respect to those claims, the

policy of the United States described in section 2(13)

[section 2(13) of Pub.L. 98542, set out as a note

above] is carried out.

‘(b)(1(A) The guidelines required to be established in

regulations prescribed under this section shall include

guidelines governing the evaluation of the findings of

scientific studies relating to the possible increased risk of

adverse health effects of exposure to _ herbicides

containing dioxin or of exposure to ionizing radiation.

Those guidelines shall require that, in the evaluation of

58a

those studies, the Administrator shall take into account

whether the results are statistically significant, are

capable of replication, and withstand peer review.

‘(B) The evaluations described in subparagraph (A)

shall be made by the Administrator of Veterans’ Affairs

after receiving the advice of the appropriate panel of the

Scientific Council of the Veterans’ Advisory Committee

on Environmental Hazards (established under section 6

[this note]). Those evaluations shall be published in the

notice section of the Federal Register.

‘(C) The standards and criteria required to be

established in regulations prescribed under this action

shall include provisions governing the use in the

adjudication of individual claims of the Administrator’s

evaluations made under subparagraph (B).

(2)\A)(i) In prescribing regulations under this section,

the Administrator (after receiving the advice of the

Advisory Committee and of the appropriate panel of the

Scientific Council of the Veterans’ Advisory Committee

on Environmental Hazards regarding the diseases

described in subparagraph (B)) shall make

determinations, based on sound medical and scientific

evidence, with respect to each disease described in

subparagraph (B) as to whether service connection shall,

subject to division (H) of this subparagraph, be granted

in the adjudication of individual cases. In making

determinations regarding such _ diseases, the

Administrator shall give due regard to the need to

maintain the policy of the United States with respect to

the resolution of contested issues as set forth in section

2(13) [section 2(13) of Pub.L. 98-542 set out as a note

above]. The Administrator shall set forth in such

regulations such determinations, with any specification

(relating to exposure or other relevant matter) of

59a

limitations on the circumstances under which service

connection shall be granted, and shall implement such

determination in accordance with such regulations.

(ii) If the Administrator makes a determination,

pursuant to this subparagraph, that service connection

shall be granted in the case of a disease described in

subparagraph (B), the Administrator shall specify in

such regulations that, in the adjudication of individual

cases, service connection shall not be granted where

there is sufficient affirmative evidence to the contrary or

evidence to establish that an intercurrent injury or

disease which is a recognized cause of the described

disease has been suffered between the date of separation

from service and the onset of such disease or that the

disability is due to the veteran's own willful misconduct.

‘(iii) With regard to each disease described in

subparagraph (B), the Administrator shall include in the

regulations prescribed under this section provisions

specifying the factors to be considered in adjudicating

issues relating to whether or not service connection

should be granted in individual cases and _ the

circumstances governing the granting of service

connection for such disease.

‘“(B) The diseases referred to in subparagraph (A) are

those specified in section 2(5) [section 2(5) of Pub.L. 98

542, set out as a note above] and any other disease with

respect to which the Administrator finds (after receiving

and considering the advice of the appropriate panel of

the Scientific Council established under section 6(d)(2)

[this note] that there is sound scientific or medical

evidence indicating—

(i) a connection to exposure to a_ herbicide

containing dioxin, in the case of a veteran who was

exposed to that herbicide during such veteran’s

60a

service in the Republic of Vietnam during the

Vietnam era or

‘(iij) a connection to exposure to _ ionizing

radiation, in the case of a veteran who was exposed

to ionizing radiation in connection with such

veteran’s participation in an atmospheric nuclear

test or with the American occupation of Hiroshima

or Nagasaki, Japan, before July 1, 1946.

‘(3) The regulations prescribed under the section shall

include—

“(A) specification of the maximum period of time

after exposure to such herbicide or ionizing radiation for

the development of those diseases and

‘“(B) a requirement that a claimant filing a claim

based upon a veteran’s exposure to a_ herbicide

containing dioxin or to ionizing radiation from the

detonation of a nuclear device may not be required to

produce evidence substantiating the veteran’s exposure

during active military, naval, or air service 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.

‘‘(c)(1) The Administrator of Veterans’ Affairs shall

develop the regulations required by this section (and any

amendment to those regulations) through a public review

and comment process in accordance with the provisions

of section 553 of title 5, United States Code [Section 553

of Title 5, Government Organization and Employees].

That process may include consideration by the

Administrator of the recommendations of the Veterans’

Advisory Committee on Environmental Hazards and the

Scientific Council thereof (established under section 6

{this note]) with respect to the proposed regulations, and

Paes ee

6la

that process shall include consideration by the

Administrator of the recommendations of the Committee

and the Council with respect to the final regulations and

proposed and final amendments to such regulations. The

period for public review and comment shall be completed

not later than ninety days after the proposed regulations

of proposed amendments are published in the Federal

**(2)(A) Not later than one hundred and eighty days

after the date of the enactment of this Act [Oct. 24,

1984], the Administrator shall develop and publish in the

Federal Register a proposed version of the regulations

required to be prescribed by this section.

‘(B) Not later than three hundred days after the date

of the enactment of this Act [Oct. 24, 1984], the

Administrator shall publish in the Federal Register the

final regulations (together with explanations of the bases

for the guidelines, standards, and criteria contained

therein) required to be prescribed by this section.

“ADVISORY COMMITTEE ON

ENVIRONMENTAL HAZARDS

“Sec. 6. (a) The advisory committee referred to in

subsections (b) and (c) of section 5 [this note], to be

known as the Veterans’ Advisory Committee on

Environmental Hazards (hereinafter in this section

referred to as the ‘Committee’) shall consist of fifteen

members appointed by the Administrator of Veterans’

Affairs after requesting and_ considering

recommendations from veteran organizations, including—

‘“(1) eleven individuals (of whom none may be

members of the Armed Forces on active duty or

employees of the Veterans’ Administration or the

Department of Defense and not more than three

62a

may be employees of other Federal departments or

agencies), appointed, after requesting and

considering the recommendations of the heads of

Federal entities with particular expertise in

biomedical and environmental science, including—

‘(A) three individuals who are _ recognized

medical or scientific authorities in fields pertinent

to understanding the health effects of exposure to

dioxin:

‘(B) three individuals who are _ recognized

medical or scientific authorities in fields pertinent

to understanding the health effects of exposure to

ionizing radiation; and

‘(C) five individuals who are _ recognized

medical or scientific authorities in fields, such as

epidermiology and other scientific disciplines,

pertinent to determining and assessing the health

effects of exposure to dioxin or ionizing radiation

in exposed populations; and

(2) four individuals from the general public,

including at least one disabled veteran, having a

demonstrated interest in and experience relating to

veterans’ concerns regarding exposure to dioxin or

ionizing radiation.

‘(b) The Committee shall include, as ex officio,

nonvoting members, the Chief Medical Director and the

Chief Benefits Director of the Veterans’ Administration,

or their designees.

‘“‘(c) The Committee shall submit to the Administrator

any recommendations it considers appropriate for

administrative or legislative action.

‘“(d)(1) The eleven members of the Committee

described in subsection (a)(1) shall, in addition to serving

as members of the Committee, constitute a Scientific

Council of the Committee (hereinafter in this section

referred to as the ‘Council’)

63a

(2) The Council shall be divided into (A) an eight-

member panel with responsibility for evaluating scientific

studies relating to possible adverse health effects of

exposure to dioxin, and (B) an eight-member panel with

responsibility for evaluating scientific studies relating to

possible adverse health effects of exposure to ionizing

radiation.

(3) The Council shall make findings and evaluations

regarding pertinent scientific studies and shall submit to

the Committee, the Administrator, and the Committee

on Veterans’ Affairs of the Senate and House of

Representatives directly periodic reports on _ such

findings and evaluations.

‘(e) The Administrator shall designate one of the

members to chair the Committee and another member to

chair the Council.

‘“(f) The Administrator shall determine the terms of

service and pay and allowances of members of the

Committee except that a term of service of any member

may not exceed three years. The Administrator may

reappoint any member for additional terms of service.

‘“(g) The Administrator shall provide administrative

support services and fiscal support for the Committee.

“NUCLEAR RADIATION MATTERS

INVOLVING OTHER AGENCIES

“Sec. 7. (a) In connection with the duties of the

Director of the Defense Nuclear Agency, as Department

of Defense Executive Agent for the Nuclear Test

Personnel Review Program, relating to the preparation of

radiation dose estimates with regard to claims for

Veterans’ Administration disability compensation and

64a

dependency and indemnity compensation under chapters

11 and 13 respectively, of title 38, United States Code

[this chapter and 13 of this title}]—

‘(I) the Secretary of Defense shall prescribe

guidelines (and any amendment to those guidelines)

through a public review and comment process in

accordance with the provisions of Section 553 of

title 5, United States Code [section 553 of Title 5,

Government Organization and Employees]—

(A) specifying the minimum standards

governing the preparation of radiation dose

estimates in connection with claims for such

compensation,

‘(B) making such_ standards’ uniformly

applicable to the several branches of the Armed

Forces, and

“(C) requiring that each such estimate

furnished to the Vetercns’ Administration and to

any veteran or survivor include information

regarding all material aspects of the radiation

environment to which the veteran was exposed

and which form the basis of the claim, including

inhaled, ingested, and neutron doses; and

(2) the Secretary of Health and Human Services,

through the Director of the National Institute of Health,

shall—

‘“(A) conduct a review of the reliability and

accuracy of scientific and technical devices and

techniques (such as ‘whole body counters’) which

may be useful in dete-mining previous radiation

exposure.

‘(B) submit to the Administrator of Veterans’

Affairs and the Committees on Veterans’ Affairs of

the House of Representatives and the Senate, not

later than July 1, 1985, a report regarding the

results of such review, including information

65a

concerning the availability of such devices and

techniques, the categories of exposed individuals as

to whom use of such devices and techniques may be

appropriate, and the reliability and accuracy of dose

estimates which may be derived from such devices

and techniques; and

‘“(C) enter into an interagency agreement with

the Administrator of Veterans’ Affairs for the

purpose of assisting the Administrator in

identifying agencies or other entities capable of

furnishing services involving the use of such devices

and techniques.

‘(b) The Administrator of Veterans’ Affairs, in

resolving material differences between a radiation dose

estimate, from a credible source, submitted by a veteran

or survivor and a radiation dose estimate prepared and

transmitted by the Director of the Defense Nuclear

Agency, shall provide for the preparation of a radiation

dose estimate by an independent expert, who shall be

selected by the Director of the National Institute of

Health and who s

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