Opposition Brief — Bross v. Derwinski

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| Supreme Court, U.S.

Aa FILED

No. 89-1313 MAY 4 1990

eqyGtiiie SPANIOL, JR,

In the Supreme Court of the United States —

OCTOBER TERM, 1989

IRWIN D. BROSS, PETITIONER

EDWARD J. DERWINSKI, SECRETARY OF VETERANS

AFFAIRS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

BARBARA C. BIDDLE

MARILYN S.G. URWITZ

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether petitioner has standing under the Veter-

ans’ Dioxin and Radiation Exposure Compensation

Standards Act to obtain judicial review of the De-

partment of Veterans Affairs’ evaluation of his scien-

tific research studies.

(I)

TABLE OF CONTENTS

Page

I 2 cia aeatuaeneabenduaeaemniedanunseedenes 1

EC re a 1

a houmenndancnnuenlaseomamcvenn 2

ESE ERT LE Ce a ea aE 7

bce peas emdciatedesesunieoeneucans 16

TABLE OF AUTHORITIES

Cases:

Association of Data Processing Serv. Orgs., Inc. V.

oe oe. | Be Gy. | ar: Aen 6, 7

Block v. Community Nutrition Inst., 467 U.S. 340

de a 12

Board of Regents v. Roth, 408 U.S. 564 (1972).... 6

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

| Ee Oe eS 6, 9,11, 12

Committee for Full Employment vy. Blumenthal,

Goo F.20 1062 (D.C. Cir. 1978) ............................. 8

DeLoss Vv. HUD, 822 F.2d 1460 (8th Cir. 1987)...... 12

FAIC Securities, Inc. v. United States, 768 F.2d

352 (D.C. Cir. 1985) ...... BS ania tel ieee: Sao 11

Hazardous Waste Treatment Council vy. EPA, 861

F.2d 277 (D.C. Cir. 1988), cert. denied, 109

eo , cebuseueienanindioneosennen 11

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

Cir.), cert. denied, 484 U.S. 847 (1987).............. 12

Maryland Vv. Munson, 467 U.S. 947 (1983) ..00...... 10, 11

Metcalf v. National Petroleum Council, 553 F.2d

rn Pe ss spensnstbuscseunnees 12

NCPAC V. FEC, 626 F.2d 953 (D.C. Cir. 1980)... 8

Nehmer v. United States Veterans’ Admin., 712

F. Supp. 1404 (N.D. Cal. 1989) ............................. 14

Paul v. Davis, 424 U.S. 693 (1976) .........000000000000..... 15

Schlesinger V. Reservists to Stop the War, 418

ok ee So ot | ren Ba RNS EOLA MER 8

Singleton v. Wulff, 428 U.S. 106 (1976) -................ 11

(III)

Cases—Continued: Page

Valley Forge Christian College v. Americans

United for Separation of Church & State, Inc.,

nn ac ercrnsecadndonces 7

Warth v. Seldin, 422 U.S. 490 (1975) ......000000002000... 7, 8,10

Constitution, statutes and regulations:

U.S. Const. Amend. V (Due Process Clause)........ 15

Department of Veterans Affairs Act, Pub. L. No.

100-527, § 1, 102 Stat. 2635 (to be codified at

38 U.S.C. 201 note) :

BF aa 2

§ 10(1)-(2), 102 Stat. 2640 .......... panna RIN 2

Federal Advisory Committee Act, 5 U.S.C. App.

at 1175:

| PERS TP ee eh. at sae REED OECTA 12

ea a eS 12

RI Av natn Ge epi AUP aa eB IIe PRs el PRE OR ST 12

Veterans’ Dioxin and Radiation Exposure Com-

pensation Standards Act, 38 U.S.C. 354 note

(Supp. V 1987):

BRAC IRS er ee tek OR GE PA cased leone 2,9

§ 5(a) (1) (B) }......... Gailebe so taaneiantccabctiratanet espiammmerente 2

i ee b eterrete bie enol De 14

a I hiss isn sects cies \acucies pein tilentenates 3

I an SS a ee oe 3

§ 6(a) (1) -........... EE OST ee WS SALE 3

Se a aves siopeoracsnconsnevereradaarebeenorateieneas 3

§ 6(d) (1) ........ Ee Re NETS ew Re 3

§ 6(d) (2) .... dsddncminadaeeae ena 3, 14

§ 6(d) (3) ee me

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

687, 102 Stat. 4105:

§ 101(a), 102 Stat. 4105 (to be codified at 38

Seay ie a. caeom 10

§ 102(a), 102 Stat. 4106 (to be codified at 38

un oa, . } Ree UF 10

§$ 201(a), 102 Stat. 4109 (to be codified at 38

U.S.C. 4001 (b) ) . 10

$301, 102 Stat. 4113 (to be codified at 38

RNs, I cece ere ea og 10

Eo _

Statutes and regulations—Continued: Page

Ah 2 oth Ree Re ie eae aganticataninedtepana wien 6

ge oy DS Ear comet eel Gowen aan orate 10

38 C.F.R. (1989):

a eG TE Y eee Dial teadiscsdatetiacsaeeaen 3,14

section 1.17 (b) (1)-(5) .......000......... Re peter eae 3

54 Fed. Reg. 40,391-40,392 (1989) (to be codified

Cae trae Gere 14

Miscellaneous:

54 Fed. Reg. (1989) :

i 1 SOOeRoee ate Peers

pp. 31,139-31,140 sssande cronies D

p. 31,140 .....4, 5, 14

p. 40,388 __.. ihe Reg 14

Au the Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-1313

IRWIN D. BROSS, PETITIONER

NSKI, SECRETARY OF VETERANS

EDWARD J. DERWIN:

FFAIRS, ET AL.

BRIEF FOR THE FEDERAL RESPONDENT

IN OPPOSITION

OPINIONS BELOW

rT’ 1. = “ . J a — > =

he opinion of the court of appeals (Pet. App. 14a-

. M _ + 1 a4 { LL’. OA IPT 'T’L, awrAF .

lSa) is reported at S89 F.2d 1256. The opinion of

+ 7 7 + +

» i (] \) la-lla) » I yc re-

The rme} tne l I appeals was entered

i.” ocd en - ;

n N mber 17, 1989. The petition for a writ of

legs

Cr n February 15, 1990. Tl u-

I ~ { » ( ‘ ~ l? e! 2s [ S.C

STATEMENT

Petitioner is a research scientist who has con-

ducted studies on the connection between low-level

ionizing radiation and cancer. Pet. App. 6a. He

seeks review of the court of appeals’ ruling that he

lacks standing under the Veterans’ Dioxin and Ra-

diation Exposure Compensation Standards Act (the

Dioxin Act) to challenge the consideration given his

research by the Department of Veterans Affairs,

formerly the Veterans Administration.’

The purpose of the Dioxin Act is “to ensure

that * * * compensation is provided to veterans who

were exposed during service * * * to * * * dioxin or

to ionizing radiation * * * for all disabilities arising

after that service that are connected, based on sound

Gas and medical evidence, to such service * * *.”’

38 U.S.C. 354 note, $3 (Supp. V 1987). To further

this go + the Act authorizes the Secretary of the VA

to conduct rulemaking to determine which of the

diseases claimed to be caused by radiation exposure

will be deemed to be service connected for purposes

of compensation. 38 U.S.C. 354 note, §$ 5(a)(1)(B)

(Supp. V 1987)

The Act also requires the Secretary to promulgate

reculations governing the evaluation of scientific

. ais — ss © i wen P a y — —

studies relating to the health risks of exposure to

Sut sequent to many of the events in this case, Congress

redesignated the Veterans Administration as the Department

of Veterans Affairs (see Department of Veterans Affairs Act

Pub. L. No. 100-527, § 1, 102 Stat. 2635 (to be codified at 38

U.S.C. 201 note, § 2)), and provided that, after March 1, 1989,

references in other laws to the Veterans Administration and

the Administrator would be deemed to refer, respectively, t

the Department of Veterans Affairs and the Secretary

4 on 1 rey . > * ‘ ~ “ i> Vas 1 Ie 4 «

Veterans Affairs. $1, 102 Stat. 2640 (to be codified at 38

ionizing radiation. 38 U.S.C. 354 note, § 5(b)‘1)

(A) (Supp. V 1987). Such evaluations are to be

made by the Secretary after receiving advice from

the appropriate panel of the Scientific Council (the

Council) of the Veterans’ Advisory Committee on

Environmental Hazards (the Committee). 38 U.S.C.

354 note, $ 5(b)(1)(B) (Supp. V 1987).

The Advisory Committee consists of 15 individ-

uals: 11 from the medical and scientific community

(three experts in dioxin exposure, three experts in

. i ie . . . . , ;

Tatahichh ate. ‘Qarllatyi ) +.) ‘ | tix wyte

lOnIZINE raadlatlon exposure, and five experts in bDotn

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AITIUIS), WLiUS IOV! m mbders OI tne gvyenerai WDUODUILIC, 2 |

Tran or, 4 a re 1 amon 24 Ya 4 ( Fi

U.S.C. 504 note, »60(a)(i) and (2) (Supp. 1987).

ha ~ sittpDo Noam nare . tna Yorliesa!l

ihe 11 Committee members from the medical

S\ nt commu! uso COmMmprist ¢ scient C

{ l? 1 Nn 1S ]} ( t ; I , t { ria =

ng &8-member panels respons evaluation

r stu S hneerning poss t else < a. ¢ Cis

ane i + . , [ Fr ~ +

Ia Lln and re CA SUT oO S. 4 +e N

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' y ; } y \ { | ,

‘ Suon 1t to tne ( mm ee y Tne sé p=

: reports” on its findings ;

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note f )(3) (Supp. V 1987

I secretary 18s require t S { US

T ne T +h ’ ’ y . ,

i c ‘ ia ‘ ’ Vid ( 4 I Aitéariiil — »

ssessment of the studies. 38 U.S.C 4 not

> (1)(f ) (S1TNN V 14s , ~ 8,

) ) i } ‘ i to) » } I A\.

] 7 } 1) 5 ‘hy LS + Tr - ( 1?

{ { se >? { VIEWS OT ‘ ]

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tin - NOD 1; aan F . no _ Wti th . a -- P? 4 \)

Ing medical and sclentine studies) ae

1S Th » yeas F t] ns «| 7), Tprpet Tt} ~

toa. ne regulations also instruct the f

} ] tT .

~ 1} ne YY y

LD sucn evaluations fron im

y ) 4 ) ’ 2 R "7 | 4.)

[ Req >) Te) ( . IN ] we \ Pat

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t al iit ALLILL LCE = 4 S LULILOEL Iii -

adverse health effects of veterans’ exposure to ioniz-

ing radiation. Pet. 10, 13. The studies consisted of

a re-analysis of data previously considered by the

Council on the effects of exposure to low-level radia-

tion at various nuclear test sites. in his analysis,

petitioner disagreed with the Council’s previous con-

clusions that the data showed no significant adverse

health effects. Pet. App. 7a.

In its November 1986 meeting, the full Committee

reviewed and considered petitioner's studies and de-

termined that they provided no basis for a change in

current compensation policy for veterans claiming in-

jury from exposure to ionizing radiation. Pet. 15;

Pet. App. 8a. The views of the Committee are con-

tained in the minutes of the meeting, copies of which

are available to the public. See 04 Fed. Reg. 31,140

(1989).

3. On September 4, 1957, petitioner filed a com-

plaint in the United States District Court. Among

other things, he alleged that the VA failed to publish

evaluations of his reports or to refer his studies to

the proper subcommittee in violation of pertinent

provisions of the Dioxin Act. Pet. App. 3a, 16a. He

also claimed that the process employed by the VA

in assessing his research—including the selection and

composition of the Scientific Council—violated his

due process rights, and that the Committee’s con-

clusion that his studies provided no basis for revis-

ing VA compensation policy was arbitrary and capri-

cious. Pet. App. 3a.

On March 29, 1989, the district court dismissed

the complaint, holding that petitioner lacked stand-

ing. The court explained that petitioner had failed

to show “injury in fact” from the composition of the

Council, and that he likewise suffered no injury from

failure to publish evaluations of his studies, because

there was no requirement that studies be published

within a definite period of time. Pet. App. 9a. With

respect to petitioner’s argument that the conclusions

of the Committee were arbitrary and capricious, the

court indicated that petitioner could claim no harm

from the Committee’s conclusions because the Admin-

istrator was not bound to adopt the recommenda-

tions of the Committee. Pet. App. 10a. Finally, the

court rejected the due process complaint, finding that

petitioner was deprived of no constitutionally pro-

tected property interest. Pet. App. 11a.

4. On July 26, 1989, before oral argument in the

Second Circuit, the Department published a notice in

the Federal Register setting forth its evaluation of

petitioner’s studies pursuant to the Dioxin Act and

the regulations. See 4 Fed. Reg. 31,159-31,140

(1989). The evaluation summarized petitioner’s

studies and conclusions and reviewed the Committee’s

comments on the research. See 54 Fed, Reg. 31,140

(1989). The Department noted, inter alia, that the

Committee had criticized petitioner’s work for failing

to take into account a relevant statistical phenomenon

—the decline over time of the so-called “healthy vet-

eran effect’—and for using a correction factor in

its analysis that may have biased the results. [bid.

The Committee also believed petitioner’s analysis was

flawed because it failed to explain the absence of uni-

form results across veterans exposed to radiation at

different sites. bid. The Department indicated that

‘t concurred in the Committee's analysis and critique

of petitioner's research studies. Ibid.

5 On November 17, 1989, the court of appeals

affirmed the district court decision’s dismissing peti-

tioner’s complaint. Pet. App. 14a. The court of ap-

peals noted that the Administrative Procedure Act

grants the right of judicial review to “(aj person

* * * aggrieved by agency action within the meaning

of a relevant statute,” Pet. App. 17a (citing 5 U.S.C.

702). But, the court stated, a person suing under

Section 702 must show that the interests he asserts

are “arguably within the zone of interests to be pro-

tected or regulated by the statute or constitutional

guarantee in question.” Pet. App. 17a (citing Asso-

ciation of Data Processing Serv. Orgs., Inc. (ADPSO)

v. Camp, 397 U.S. 150, 153 (1970)). A plaintiff

lacks standing to sue, the court explained, if his “in-

terests are so marginally related to or inconsistent

with the purposes implicit in the statute that it can-

not reasonably be assumed that Congress intended

to permit the suit.” Pet. App. 17a (citing Clarke v.

Securities Indus. Ass'n, AT9 U.S. 3588, 399 (1987) ).

The court found that petitioner’s asserted interest

was not within the zone of interests protected by the

Act. Pet. App. 17a. The court suggested that, since

the Act is “chiefly centered around the procedures

for awarding VA compensation,” ‘/id., a veteran ag-

grieved by the VA’s refusal to consider scientific evi-

dence potentially relevant to his claim for benefits

conceivably would have a right to judicial review of

an action alleging failure to comply with the Dioxin

Act. Ibid. The court concluded, however, that peti-

tioner’s interest as a scientist in seeking professional

and governmental recognition of his views was not

“reasonably connected to the awarding of VA bene-

fits [so as] to fall within the Act’s zone of interests.”

Thid. ;

The court of appeals also decided that, because pe-

titioner had not shown the requisite deprivation of a

protected life, liberty, or property interest, the dis-

trict court properly dismissed petitioner’s due process

claim. Pet. App. 17a-18a (citing Board of Regents

v. Roth, 408 U.S, 564, 570-572 (1972) ).

ARGUMENT

The court below correctly ruled that petitioner

lacked standing to challenge the VA’s compliance

with the Dioxin Act in evaluating his research stud-

ies. Because that decision does not conflict with the

decisions of other courts of appeals or of this Court,

further review is unwarranted.

1. As petitioner recognizes (Pet. 16), standing

has both a “constitutional” and a “prudential” dimen-

sion. See Warth v. Seldin, 422 U.S. 490, 498 (1975).

Constitutional standing is established only if the pe-

titioner shows “injury in fact” as a result of the al-

legedly illegal conduct of the defendant—injury that

is “likely to be redressed by a favorable decision.”

Valley Forge Christian College y. Americans United

for Separation of Church & State, Inc., 454 U.S. 464,

472 (1982). To establish prudential standing, peti-

tioner must show that his alleged injury falls “within

the zone of interests to be protected or regulated by

the statute” in question. Valley Forge, 454 U.S. at

475 (quoting ADPSO v. Camp, 397 U.S. at 153).

a. Petitioner lacks both constitutional and pruden-

tial standing. Petitioner contends that he has suf-

fered injury from, inter alia, the improper composi-

tion and lack of expertise of the Scientific Council and

the Advisory Committee; the Scientific Council’s fail-

ure to evaluate his studies and forward its findings

to the Committee and the Secretary; the Advisory

Committee’s determination that his studies provided

no reason to modify VA guidelines; the Advisory

Committee’s and Department’s “improper and unlaw-

ful review” of his studies; and the VA’s alleged fail-

ure to publish evaluations of his studies. Pet. 17-18.

But the only concrete injury that petitioner can iden-

tify resulting from these alleged shortcomings is an

asserted loss of “income, status, and recognition” be-

cause of the government’s refusal to credit his scien-

tific work.? See Pet. App. 5a; Pet. 19.

The impact of the VA’s handling of petitioner’s

studies on his status and income is speculative at

best, since petitioner would gain the “status and rec-

ognition” he seeks only if his studies received a favor-

able evaluation and formed the basis for a change in

VA compensation policy. Obviously, however, the Ad-

visory Committee has no obligation under the Dioxin

Act to accept petitioner’s conclusions as valid. And,

as the district court recognized, even if the Advisory

Committee approved petitioner’s studies, the Secre-

tary would be under no obligation to accept the Ad-

visory Committee’s assessment of petitioner’s work,

ov to alter the compensation program based on peti-

2 Petitioner cites a number of court of appeals cases (Pet.

19) to support his contention that “procedural and statutory

wrongs,” without more, constitute injury sufficient for stand-

ing. However, in those cases a regulation or statutory provi-

sion specifically entitled the complainant either to participate

in a decision-making process, see, €.9., NCPAC v. FEC, 626

F.2d 953, 957-958 (D.C. Cir. 1980), or to obtain review of

failure to comply with procedural and other requirements of

applicable law, see, ¢.9., Committee for Full Employment V.

Blimenthal, 606 F.2d 1062, 1065 (D.C. Cir. 1979). In the

absence of these special circumstances, petitioner’s claim that

the mere presence of “procedural and statutory wrongs” con-

fers standing amounts to the per se equation of “injury” with

an absence of statutory enforcement—a theory that fails to

distinguish petitioner from any other citizen seeking agency

compliance with a statute. Such a “generalized citizen’s in-

terest,” however, cannot confer standing. See Schlesinger V.

Reservists to Stop the War, 418 US. 208, 220-221 (1973);

Warth v. Seldin, 422 U.S. at 498-499.

tioner’s findings. Thus, there can be no guarantee

that, even if each of the alleged procedural shortcom-

ings petitioner has identified were corrected, he would

gain the “income, status, and recognition” he seeks.

b. In addition, petitioner lacks prudential stand-

ing because his interest in personal scientific recog-

nition is not within the zone of interests of the stat-

ute at issue. See Clarke vy. Securities Indus. Ass’n,

479 U.S. 388, 394-403 (1986).

By its own terms, the purpose of the Dioxin Act is

“to ensure * * * compensation” to veterans suffering

service-connected disability due to ionizing radiation

and dioxin exposure “based on sound scientific and

medical evidence.” 58 U.S.C. 354 note, $3 (Supp. V.

1987). The provisions that provide for the evaluation

of scientific information were clearly designed to ad-

vance the statutory goal of ensuring that veterans

receive compensation in accordance with “sound

scientific and medical” information. The Act con-

tains no suggestion whatsoever of any congressional

objective to advance the professional reputation or

economic status of scientists such as petitioner who

submit their research for consideration by the De-

partment. Indeed the interest of any one researcher

in having his studies ratified and his conclusions

(whether favorable or unfavorable to veterans) ac-

cepted as a basis for veterans’ compensation policy

may well conflict with that of another researcher

seeking similar recognition for his work. Moreover,

a scientist presumably would be interested in the en-

dorsement of his work, regardless of its merit or ac-

curacy, and regardless of whether such acceptance

was consistent with the overall statutory goal of en-

suring compensation to deserving veterans based on

sound scientific date.’

° Petitioner claims that he should be allowed to sue for en-

forcement of the Act because no one else would have standing.

As petitioner acknowledges (Pet. 25-26), however, regula-

tions issued by the Department under the Dioxin Act to

determine which diseases are service connected are now judi-

cially reviewable under amendments enacted in 1988. See

Veterans’ Judicial Review Act, Pub. L. No. 100-687, $§ 101 (a),

102(a), 102 Stat. 4105, 4106 (to be codified at 38 U.S.C. 211,

223). Petitioner fails to explain why individual veterans or

groups of veterans could not petition for rulemaking revisions

based on petitioner’s scientific studies, and then seek judicial

review of any decision by the Secretary taken in response to

such a petition. Moreover, it is conceivable, as the court of

appeals hypothesized (Pet. App. 17a), that a veteran could

contest the VA's alleged failure to consider scientific evidence

relevant to his individual claim for benefits. Although judi-

cial review of agency decisions regarding the award of vet-

erans’ benefits was unavailable during the time period

relevant here, see 38 U.S.C. 211(a), since November 18, 1988,

the Court of Veterans Appeals has had jurisdiction to review

decisions of the Board of Veterans Appeals concerning claims

for benefits. See Pub. L. No. 100-687, §§ 201(a), 301, 102

Stat. 4109, 4113 (to be codified at 38 U.S.C. 4001(b), 4052).

Petitioner also claims (Pet. 27) that he can assert “jus

tertii” or third party standing to vindicate the interests of

veterans in enforcement of the Act. Petitioner misunder-

stands the doctrine of third party standing. As a rule, a

plaintiff ‘“‘must assert his own legal rights and interests,” not

“the legal rights or interests of third parties.” Warth Vv.

Seldin, 422 U.S. at 499. An exception has been recognized

for certain cases where “practical obstacles prevent a

party from asserting rights on behalf of itself.” Maryland

Vv. Munson, 467 U.S. 947, 956 (1983). As indicated above,

however, there is no reason to accept petitioner’s speculation

that veterans have no avenue to pursue their own interests

in seeking enforcement of the requirements of the Dioxin

But even if not wholly inconsistent with the pur-

poses of the Act, a researcher’s interest in “status,

income, and recognition,” is at best “marginally re-

lated” to the implementation of the core statutory

purpose—7.e., compensating veterans for service-

related disability. See Clarke v. Securities Indus.

Ass'n, 479 U.S. at 399. There is consequently ‘“no

special reason to suppose that Congress might have

thought [such plaintiffs] suitable advocates” of the

interests underlying the statute. Hazardous Waste

Treatment Council v. EPA, 861 F.2d 277, 285 (D.C.

Cir. 1988), cert. denied, 109 S. Ct. 3157 (1989).

Vindication of researchers’ interests also “carries a

considerable potential for judicial intervention that

would distort the regulatory process.” [hid.*

Act. Also, in order to assert standing to vindicate statutory

or constitutional rights of others, a party must still show

“injury in fact,” id. at 954, and also, arguably, must satisfy

the prudential requirements of standing so that he can be

relied upon “properly [to] frame the issues and present them

with the necessary adversarial zeal.’”’ Id. at 956. See also id.

at 955 n.5; Singleton Vv. Wulff, 428 U.S. 106, 121-122 (1976)

(Stevens, J., concurring in part). But see FAIC Securities,

Inc. V. United States, 768 F.2d 352, 357-358 (D.C. Cir. 1985)

(expressing doubt that third party must satisfy independent

zone of interests requirement).

* Petitioner implies (Pet. 26) that the court of appeals’

application of the zone of interests test conflicts with decisions

of the District of Columbia and Eighth Circuits, which, he

alleges, construe the zone of interests test “in a manner which

would allow standing here.” However, the decisions cited by

petitioner are not inconsistent with the decision in this case.

In each decision, the court of appeals applied the Clarks

“zone of interests” test to a would-be plaintiff by analyzing a

statutory scheme very different from the one at issue here.

See Hazardous Waste Treatment Council y. EPA. 861 F.2d

277, 282-286 (D.C. Cir. 1988) (standing of national trade

2. Even if petitioner’s interests fall within the

zone of interests meant to be protected, petitioner’s

allegations of non-compliance with the Dioxin Act are

not judicially reviewable if Congress did not intend

that such review would take place. Clarke, 479 U.S.

at 400. See Block v. Community Nutrition Inst., 467

U.S. 340, 348-351 (1983). Congress’s intent to pre-

clude challenges to the activities of the Advisory

Committee under the Dioxin Act is suggested by the

existence, in the Federal Advisory Committee Act

(FACA), 5 U.S.C. App. 5, 7, 8, of an alternative

mechanism for oversight of such purely advisory

bodies. This alternative form of review is provided

not by federal courts, but by Congress, the Director

of the Office of Management and Budget, and the

head of the agency to which the Advisory Committee

reports.’ Judicial oversight at the behest of private

organization of firms engaged in the treatment of hazardous

waste to challenge rules concerning burning of hazardous

waste under the Resource Conservation and Recovery Act),

cert. denied, 109 S. Ct. 3157 (1989); DeLoss v. HUD, 822

F.2d 1460. 1464-1166 (Sth Cir. 1987) (standing of owners of

rental property suitable for housing low-income elderly to

challenge HUD decision to subsidize low income project) ;

Investment Co. v. FDIC, 815 F.2d 1540, 1543-1546 (D.C.

Cir.) (standing of representatives of mutual funds and in-

vestment bankers to challenge FDIC regulations permitting

certain non-member banks to affiliate with firms engaged in

securities work, alleging violation of the Glass-Steagall Act

and the Federal Deposit Insurance Act), cert. denied, 481

U.S. 847 (1987). In so doing, these courts said nothing to

undermine the validity of the court of appeals’ assessment of

the purposes and structure of the Dioxin Act as it relates

to petitioner’s standing to challenge the VA’s action here.

5 As the D.C. Circuit observed in Metcalf v. National Pe-

troleum Council, 553 F.2d 176, 182 (1977):

The point to be drawn from these review provisions

in FACA is that federal advisory committees * * *

citizens would seriously disrupt and interfere with

this elaborate process of continuous monitoring of

advisory committees by Congress and the Executive.

It is unlikely, then, that Congress intended to permit

individuals such as petitioner to enforce compliance

of specific requirements relating to the function of

such committees.

3. In any event, review by this Court is unwar-

ranted because the VA has fully complied with the

provisions of the Act that petitioner seeks to enforce.

Petitioner concedes (Pet. 13) that the full Advisory

Committee met in November 1986 and that, at that

time, the two studies he had submitted were reviewed

and evaluated.° Contrary to petitioner’s assertion,

ibid., his studies were evaluated by the Scientific

Council (see 54 Fed. Reg. 31,139 (1989)), which is

a component of the Committee, and includes the ra-

diation panel as the Council subdivision specifically

undergo close periodic examination by sources both within

and without the agencies which charter or utilize the

committees. In addition, the committees of Congress are

given very broad power to correct what they may per-

ceive to be any difficulty in the operation of the advisory

committees and are required by the statute to exercise

their review power on a continuing basis. Also it is ap-

propriate to observe that those who are charged with the

responsibility to review advisory committee activities by

FACA are more closely associated with and possess more

expertise in the subject areas in which the various ad-

visory committee [sic] operate than the federal courts.

‘ Although petitioner refers at several points to four stud-

ies, see, e.g., Pet. 7 n.2, 10-11, the district court found that

petitioner submitted only two studies to the Department for

review because he believed that submission of two other stud-

ies would be “futile.” Pet. App. 3a n.2.

responsible for reviewing studies on radiation such

as petitioner’s. 38 U.S.C. 354 note, § 6(d) (2) (Supp.

V 1987). The Council’s views and findings were re-

flected in the minutes of the Committee meeting. See

54 Fed. Reg. 31,139, 31,140 (1989).

Since the Committee as a whole was present when

the Council reviewed the studies and made its find-

ings, it is clear that the Council’s findings were “sub-

mitted” to the Committee as required by 38 U.S.C.

354 note, § 6(d)(3) (Supp. V 1987). It is also clear

that the Council’s findings were thereafter submitted

to the Secretary, as required, see ‘bid., since the Sec-

retary took those views into account in subsequently

developing and publishing his own evaluation of the

studies. See 54 Fed. Reg. 31,140 (1989). In pub-

lishing his evaluation, the Secretary fully complied

with 38 U.S.C. 354 note, $5(b)(1) (Supp. V 1987

and 38 C.F.R. 1.17(a).’. There is thus no basis for

netitioner’s various charges (see Pet. 13-14, 17-18)

that his papers were denied proper consideration un-

der the Act.”

7 As a result of the decision in Nehmer v. United States

Veterans’ Admin., 712 F. Supp. 1404 (N.D. Cal. 1989), the

Department recently amended its regulations governing the

evaluation of scientific and medical studies to establish cri-

teria for determining when a significant statistical associa-

tion exists between exposure to dioxin or ionizing radiation

and specific diseases. See 54 Fed. Reg. 40,388, 40,391-40,392

(1989) (to be codified in 38 C.F.R. 1.17(a)-(f)). This reg-

ulation, rather than the version that applies to petitioner’s

case, will govern future cases.

® Petitioner also complains (Pet. 18) that the Scientific

Council lacked the expertise to evaluate his studies. However,

petitioner has pointed to no statutory provision or regulation

4. Petitioner’s claim of a due process violation

(Pet. 28-29) must also fail. The principal basis for

that claim is an alleged ‘“protectable property inter-

est”’ in findings and evaluations by the Secretary, the

Committee, and the Council. Jhid. As the district

court recognized, however, petitioner’s constitutional

claim is nothing more than a restatement of his com-

plaints concerning “deficiencies in the process per se

employed by the defendants.” Pet. App. lla. See

also Pet. App. 17a-18a. Even if petitioner possessed

such a “property interest’”’ in the outcome of the

VA’s deliberations, the Department has not deprived

him of it, as it has made findings and published eval-

uations of petitioner’s studies. Petitioner’s further

allegation that Committee members circulated “er-

roneous, libelous, and misleading’’ statements about

his work in the course of their 1986 deliberations,

thereby depriving petitioner of a “liberty interest’

(Pet. 29), is similarly insufficient to give rise to a

due process claim. Simple defamation, unconnected

to any deprivation of rights guaranteed by statute,

does not amount to a deprivation of liberty in viola-

tion of the Due Process Clause of the Constitution.

Paul v. Davis, 424 U.S. 693, 708-709 (1976).

that was violated by the composition or method of selection

of the members of the Council. Petitioner also challenges the

Wats a) 1++ %s 1a} y vaayt ¢ . mr y) ) Wheatian r thea

Committee's decision not to recommend modification of the

VA’s guidelines for awarding compensation to radiation vic-

tims. hut one ind 1\ot exvlain whv the Committ —_

tims, Dut once again does not explain whv the Committee was

] 7 } } ] D ns le ; » »

obligated by law to endorse petitioner’s conclusions or recom-

mend a revision in compensation guidelines based on them.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.