ALFRED PROCOPIO, JR. v. ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS
2017-1821
United States Court of Appeals for the Federal Circuit
January 29, 2019
Appeal from the United States Court of Appeals for Veterans Claims in No. 15-4082, Judge Coral Wong Pietsch.
MELANIE L. BOSTWICK, Orrick, Herrington & Sutcliffe LLP, Washington, DC, argued for claimant-appellant. Also represented by THOMAS MARK BONDY, ROBERT MANHAS; MATTHEW R. SHAHABIAN, New York, NY; JOHN B. WELLS, Law Office of John B. Wells, Slidell, LA.
ERIC PETER BRUSKIN, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by JOSEPH H. HUNT, ROBERT E. KIRSCHMAN, JR., MARTIN F. HOCKEY, JR.; BRIAN D. GRIFFIN, BRANDON A. JONAS, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.
CATHERINE EMILY STETSON, Hogan Lovells US LLP, Washington, DC, for amici curiae National Organization of Veterans’ Advocates, Inc., Paralyzed Veterans of America, Military Officers Association of America, AMVETS, Veterans and Military Law Section, Federal Bar Association. Also represented by WILLIAM DAVID MAXWELL. Amicus curiae National Organization of Veterans’ Advocates, Inc. also represented by CHRIS ATTIG, Attig Steel, PLLC, Little Rock, AR.
KENNETH M. CARPENTER, Law Offices of Carpenter Chartered, Topeka, KS, for amicus curiae Joseph A. Taina.
GLENN R. BERGMANN, Bergmann Moore, LLC, Bethesda, MD, for amicus curiae The American Legion. Also represented by JAMES DANIEL RIDGWAY.
ANGELA K. DRAKE, The Veterans Clinic at The University of Missouri School of Law, Columbia, MO, for amicus curiae National Law School Veterans Clinic Consortium.
DORIS HINES, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, DC, for amicus curiae Disabled American Veterans. Also represented by CHARLES COLLINS-CHASE, SEAN DAMON, RONALD LEE SMITH.
STANLEY JOSEPH PANIKOWSKI, III, DLA Piper LLP (US), San Diego, CA, for amici curiae Blue Water Navy Vietnam Veterans Association, Association of the United States Navy, Fleet Reserve Association. Also represented by JACOB ANDERSON, ERIN GIBSON. STEPHEN BLAKE KINNAIRD, Paul Hastings LLP, Washington, DC, for amici curiae National Veterans Legal Services Program, Vetеrans of Foreign Wars of the United States. Amicus curiae National Veterans Legal Services Program also represented by BARTON F. STICHMAN, National Veterans Legal Services Program, Washington, DC.
Before PROST, Chief Judge, NEWMAN, LOURIE, DYK, MOORE, O‘MALLEY, REYNA, WALLACH, TARANTO, CHEN, and STOLL, Circuit Judges.
Opinion for the court filed by Circuit Judge MOORE, in which Chief Judge PROST and Circuit Judges NEWMAN, O‘MALLEY, REYNA, WALLACH, TARANTO, and STOLL join.
Concurring opinion filed by Circuit Judge LOURIE.
Concurring opinion filed by Circuit Judge O‘MALLEY.
Dissenting opinion filed by Circuit Judge CHEN, in which Circuit Judge DYK joins.
Alfred Procopio, Jr., appeals a decision of the Court of Appeals for Veterans Claims denying service connection for prostate cancer and diabetes mellitus as a result of exposure to an herbicide agent, Agent Orange, during his Vietnam War-era service in the United States Navy. Because we hold that the unambiguous language of
BACKGROUND
In 1991, Congress passed the Agent Orange Act, codified at
[A] disease specified in paragraph (2) of this subsection becoming manifest as specified in that paragraph in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; and [B] each additional disease (if any) that (i) the Secretary determines in regulations prescribed under this section warrants a presumption of service-connection by reason of having positive association with exposure to an herbicide agent, and (ii) becomes manifest within the period (if any) prescribed in such regulations in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7,
1975, and while so serving was exposed to that herbicide agent, shall be considered to have been incurred in or aggravated by such service, notwithstanding that there is no record of evidence of such disease during the period of such service.
In 1993, the Department of Veterans Affairs issued regulations pursuant to
We applied the two-step framework of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–43 (1984), to
Mr. Procopio served aboard the U.S.S. Intrepid from November 1964 to July 1967. In July 1966, the Intrepid was deployed in the waters offshore the landmass of the Republic of Vietnam, including its territorial sea.1 Mr. Procopio sought entitlement to service connection for diabetes mellitus in October 2006 and for prostate cancer in October 2007 but was denied service connection for both in April 2009. Diabetes mellitus is listed in the statute under paragraph (2) of
A panel of this court heard oral argument on May 4, 2018, and on May 21, 2018, the parties were directed to file supplemental briefs on “the impact of the pro-claimant canon on step one of the Chevron analysis in this case, assuming that Haas v. Peake did not consider its impact.” On August 16, 2018, the court sua sponte ordered the case be heard en banc. We asked the parties to address two issues:
Does the phrase “served in the Republic of Vietnam” in
§ 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam?What role, if any, does the pro-claimant canon play in this analysis?
In addition to the parties’ briefs, we received seven amicus briefs. The en banc court heard oral argument on December 7, 2018.
Section 1116 extends the presumption of service connection to veterans who “served in the Republic of Vietnam” during a specified period if they came down with certain diseases. At issue is whether Mr. Procopio, who served in the territorial sea of the “Republic of Vietnam” during the specified period, “served in the Republic of Vietnam” under
Chevron sets forth a two-step framework for interpreting a statute, like
Here, we determine at Chevron step one that Congress has spoken directly to the question of whether Mr. Procopio, who served in the territorial sea of the “Republic of Vietnam,” “served in the Republic of Vietnam.” He did. Congress chose to use the formal name of the country and invoke a notion of territorial boundaries by stating that “service in the Republic of Vietnam” is included. The intent of Congress is clear from its use of the term “in the Republic of Vietnam,” which all available international law unambiguously confirms includes its territorial sea. Because we must “give effect to the unambiguously expressed intent of Congress,” we do not reach Chevron step two.
In 1954, the nation then known as Vietnam was partitioned by a “provisional military demarcation line” into two regions colloquially known as “North Vietnam” and “South Vietnam.” Geneva Agreements on the Cessation of Hostilities in Vietnam, art. 1, July 20, 1954, 935 U.N.T.S. 149 (“Geneva Accords“). In 1955, South Vietnam was formally named, by proclamation of its president, the “Republic of Vietnam.” Provisional Constitutional Act Establishing the Republic of Viet-Nam, Oct. 26, 1955, reprinted in A.W. Cameron (ed.), Viet-Nam Crisis: A Documentary History, Volume I: 1940-1956 (1971).
International law uniformly confirms that the “Republic of Vietnam,” like all sovereign nations, included its territorial sea. This was true in 1955 when the “Republic of Vietnam” was created. Geneva Accords at art. 4 (extending the provisional military demarcation line into the “territorial waters“). And this was true in 1991 when Congress adopted the Agent Orange Act. In 1958, the United States entered into the Convention on the Territorial Sea and the Contiguous Zone (“1958 Convention“), agreeing that “[t]he sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea.” 1958 Convention, art. 1(1), 15 U.S.T. 1606, T.I.A.S. No. 5639 (Apr. 29, 1958); see also United States v. California, 381 U.S. 139, 165 (1965) (stating the 1958 Convention provides “the best and most workable definitions available” for defining coastal boundaries); Legal Issues Raised by the Proposed Presidential Proclamation to Extend the Territorial Sea, 12 O.L.C. 238, 247 (1988) (“[T]he modern view is that the territorial sea is part of a nation and that a nation asserts full sovereignty rights over its territorial sea . . . .“). In 1982, the United Nations Convention on the Law of the Sea (“UNCLOS“) echoed the 1958 Convention, stating “[t]he sovereignty of a coastal State extends to an adjacent belt of sea, described as the territorial
Thus, all available international law, including but not limited to the congressionally ratified 1958 Convention, confirms that, when the Agent Orange Act was passed in 1991, the “Republic of Vietnam” included both its landmass and its 12 nautical mile territorial sea.3 The government has pointed to no law to the contrary. This uniform international law was the backdrop against which Congress adopted the Agent Orange Act. By using the formal term “Republic of Vietnam,” Congress unambiguously referred, consistent with that backdrop, to both its landmass and its territorial sea.4 We also note that the statute expressly includes “active military, naval, or air service . . . in the Republic of Vietnam,”
We find no merit in the government‘s arguments to the contrary. Its primary argument is that it injected ambiguity into the term “Republic of Vietnam” prior to the Agent Orange Act by promulgating two regulations,
“Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations, if the conditions of service involved duty or visitation in the Republic of Vietnam.
Regulation 313 created a presumption of service connection for Non-Hodgkin‘s lymphoma for veterans who served in “Vietnam.” It stated:
“Service in Vietnam” includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam.
The government asks us to infer that Regulation 311 imposed the foot-on-land requirement, and that Regulation 313 did not. This distinction is essential to its argument that
Regulation 311 grants a presumption of service connection for “service in the waters offshore and service in other locations, if the conditions of service involved duty or visitation in the Republic of Vietnam.” Regulation 313 grants the presumption for “service in thе waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam.” We do not read these minor grammatical differences to compel the distinction the government urges. At best, the addition of a comma in Regulation 311 permits the clause “if the conditions of service involved duty or visitation in the Republic of Vietnam” to modify both “service in the waters offshore” and “service in other locations.” But even if Regulation 311 is so read, it still does not impose the foot-on-land requirement: it covers everyone whose service included duty or visitation “in the Republic of Vietnam,” which, under background law, embraces the territorial sea.
That is the straightforward meaning of the regulation even after taking full account of the comma. As the government concedes, the “waters offshore” are broader than the territorial sea. See Oral Argument at 55:08–55:19 (government‘s counsel acknowledging offshore waters “can also include beyond the territorial seas“); id. at 55:40-56:10 (government‘s counsel confirming offshore waters extend beyond the territorial sea); cf. id. at 2:00–2:16 (Mr. Procopio‘s counsel stating “[t]he offshore water is broader than the territorial sea . . . and it‘s an important difference because a nation is sovereign only in its territorial sea.“). Regulation 311‘s requirement of “duty or visitation in the Republic of Vietnam” brings within coverage only a subset of all those who served “offshore,” namely, those whose service included presence on land, in the inland waterways, or in the tеrritorial sea, consistent with international law. That is, veterans who served in the waters offshore or in other locations would be eligible for the presumption if during such service they visited the Republic of Vietnam (which is defined as the landmass and territorial sea by international law).
Given the undisputed distinction between offshore waters and territorial seas, we see no basis for incorporating a foot-on-land requirement into Regulation 311. The only discussion of this provision appears in the proposed rulemaking where the government explains that, “[b]ecause some military personnel stationed elsewhere may have been present in the Republic of Vietnam, ‘service in the Republic of Vietnam’ will encompass services elsewhere if
It is undisputed that Regulation 313 covering Non-Hodgkin‘s lymphoma does not include the foot-on-land requirement, meaning the presumption of service connection for Non-Hodgkin‘s lymphoma would have applied to veterans who served on the landmass or in the territorial sea. The government asserts that Regulation 311 presumed service connection for diseases—chloracne аnd soft-tissue sarcomas—linked to herbicide exposure, while Regulation 313 presumed service connection for a disease—Non-Hodgkin‘s lymphoma—not linked to herbicide exposure. But that asserted distinction does not indicate ambiguity in
In short, we do not understand Regulation 311 or Regulation 313 to articulate a foot-on-land requirement. We find no merit to the government‘s argument that
The government also argues the “Republic of Vietnam” in
Korea or the waters adjacent thereto“); Veterans’ Rehabilitation and Education Amendments of 1980, Pub. L. No. 96-466, § 513(b) (providing for the publishing of labor statistics on “veterans . . . who served . . . in naval missions in the waters
The other statutes the government cites likewise cast no doubt on this conclusion. The government has failed to cite any instance in which the unmodified use of a formal sovereign name has been construed to not include its territorial sea. Instead, the government would have us infer that because several statutes refer to both the “United States” and its “territorial seas” or “territorial waters,” the term “United States” cannot be generally understood to include territorial sea. We see no basis for drawing that inference. As the Supreme Court has observed, there are “many examples of Congress legislating in that hyper-vigilant way, to ‘remov[e] any doubt’ as to things not particularly doubtful in the first instance.” Cyan, Inc. v. Beaver Cty. Employees Ret. Fund, 138 S. Ct. 1061, 1074 (2018).6
The parties and amici have differing views on the role the pro-veteran canon should play in this analysis. See generally Henderson v. Shinseki, 562 U.S. 428, 441 (2011); Brown v. Gardner, 513 U.S. 115, 117-18 (1994); King v. St. Vincent‘s Hosp., 502 U.S. 215, 220 n.9 (1991); Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285 (1946); Boone v. Lightner, 319 U.S. 561, 575 (1943). Given our conclusion that the intent of Congress is clear from the text of
No judge on this court has determined that this veteran should be denied benefits under
CONCLUSION
Congress has spoken directly to the question of whether those who served in
REVERSED AND REMANDED
LOURIE, Circuit Judge, concurring in the judgment.
I join the majority in reversing the judgment of the Veterans Court, but, respectfully, I would do so for different reasons.
I do not agree with the majority that international law and sovereignty principles, which would include the territorial waters of the Republic of Vietnam, render the phrase “served in the Republic of Vietnam” in
ing the difficulty in determining the likelihood of exposure to herbicides rather than any sovereignty concerns). The majority‘s holding thus covers more legal territory than necessary and decides an issue not before us.
I instead agree with the court in Haas, see id. at 1183-86, and the dissent, see Dissent at 5-15, that “served in the Republic of Vietnam” is ambiguous under Chevron step one. The statute entitles a veteran to a presumption of service connection for certain diseases if the veteran “served in the Republic of Vietnam.”
I also agree with the Haas court that under Chevron step two, the regulation promulgated by the agency reflects a reasonable interpretation of the statute. See Haas, 525 F.3d at 1186. However, unlike the court in Haas, I would hold that the agency‘s interpretation of its regulation is not owed any deference as generally required by Auer v. Robbins, 519 U.S. 452, 461-63 (1997), because the regulation is not ambiguous, see Christensen v. Harris Cty., 529 U.S. 576, 588 (2000) (“Auer deference is warranted only when the language of the regulation is ambiguous.“). Contra Haas, 525 F.3d at 1186-97.
The agency‘s regulation states that “[s]ervice in the Republic of Vietnam” includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.”
The agency in this case appears to have interpreted the “duty or visitation” clause to modify not only the service in “other locations,” but also “waters offshore,” creating a foot-on-land requirement. See Majority at 4-5 (discussing the agency‘s
While we, at least until higher law says otherwise, are obligated to give some degree of deference to an agency in interpreting its own regulation, see Auer, 519 U.S. at 461, deference has its limits. We are not obligated to give аn agency deference when the regulation is not ambiguous, see Christensen, 529 U.S. at 588, or when an “alternative reading is compelled by the regulation‘s plain language,” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (quoting Gardebring v. Jenkins, 485 U.S. 415, 430 (1988)), as it does here. Thus, I would reverse the judgment of the Veterans Court because the agency‘s regulation plainly entitled Mr. Procopio to a presumption of service connection for his prostate cancer and diabetes mellitus based on his service in the offshore waters of Vietnam.
O‘MALLEY, Circuit Judge, concurring.
I agree with the majority‘s well-reasoned decision. The term “Republic of Vietnam,” as it appears in
I write separately because I believe the pro-veteran canon of construction adds further support to the majority‘s conclusion. Specifically, I write to explain that: (1) the pro-veteran canon, like every other canon of statutory construction, can and should apply at step one of Chevron to help determine whether a statutory ambiguity exists; and, (2) even when a statute remains irresolvably ambig- uous, when a choice between deferring to an agency interpretation of that statute—or particularly where that interpretation is itself ambiguous—and resolving any ambiguity by application of the pro-veteran canon come to a head, traditional notions of agency deference must give way.1
The Supreme Court has made clear that courts are obligated to apply all traditional tools of statutory interpretation at step one of Chevron. 467 U.S. at 843 n.9. Indeed, “we owe an agency‘s interpretation of the law no deference unless, after ‘employing traditional tools of statutory construction,’ we find ourselves unable to discern Congress‘s meaning.” SAS Inst., Inc. v. Iancu, 138 S. Ct. 1348, 1358 (2018) (quoting Chevron, 467 U.S. at 843 n.9.); see also Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1630 (2018) (“[D]eference is not due unless a court, employing traditional tools of statutory construction, is left with an unresolved ambiguity. And
A court similarly may not defer to an agency‘s interpretation of its own regulation or any other interpretive ruling unless, after applying the same interpretative principles that apply in the context of statutory interpretation, the court finds the regulation or interpretation to be ambiguous. Christensen v. Harris County, 529 U.S. 576, 588 (2000) (”Auer deference is warranted only when the language of the regulation is ambiguous.“); Aqua Prods., Inc. v. Matal, 872 F.3d 1290, 1316 (Fed. Cir. 2017) (en banc) (“We use the same interpretive rules to construe regulations as we do statutes[.]“); Roberto v. Dep‘t of Navy, 440 F.3d 1341, 1350 (Fed. Cir. 2006) (same). Thus, there is no doubt that courts must apply all traditional tools of statutory construction before resort tо agency deference, regardless of at what point the agency seeks deference.
There is also no doubt that the pro-veteran canon is one such traditional tool. Henderson v. Shinseki, 562 U.S. 428, 441 (2011) (“We have long applied the canon that provisions for benefits to members of the Armed Services are to be construed in the beneficiaries’ favor.” (quotations omitted)); see Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 515 (1989) (“[T]he consideration and evaluation of policy consequences” is “part of the traditional judicial tool-kit that is used in applying the first step of Chevron[.]“). The pro-veteran canon instructs that provisions providing benefits to veterans should be liberally construed in the veterans’ favor, with any interpretative doubt resolved to their benefit. See, e.g., King v. St. Vincent‘s Hosp., 502 U.S. 215, 220 n.9 (1991). The Supreme Court first articulated this canon in Boone v. Lightner to reflect the sound policy that we must “protect those who have been obliged to drop their own affairs to take up the burdens of the nation.” 319 U.S. 561, 575 (1943). This same policy underlies the entire veterans benefit scheme. Barrett v. Principi, 363 F.3d 1316, 1320 (Fed. Cir. 2004) (“[T]he veterans benefit system is designed to award entitlements to a special class of citizens, those who risked harm to serve and defend their country. This entire scheme is imbued with special beneficence from a grateful sovereign.” (quotations omitted)).
Few provisions embody this veteran-friendly purpose more than § 1116‘s presumption of service connection for those who served in the Republic of Vietnam. Congress enacted this presumption in response to concerns that the agency was “utilizing too high a standard for determining if there is a linkage between exposure to Agent Orange and a subsequent manifestation of a disease” and was thereby “failing to give the benefit of the doubt to veterans in prescribing the standards in
Courts have “long applied” the pro-veteran canon of construction to such provisions. Henderson, 562 U.S. at 441. And, because we presume Congress legislates with the knowledge of judicial canons of statutory construction, we should apply this canon to resolve doubt in a claimant‘s favor because that is precisely what Congress intended when it enacted the Agent Orange Act in 1991 against the backdrop of Boone. King, 502 U.S. at 220 n.9. Thus, when interpreting such statutes, or regulations promulgated thereunder, we may not resort to agency deference unless, aftеr applying the pro-veteran canon along with other tools of statutory interpretation, we are left with an unresolved ambiguity.2
The government contends that applying the pro-veteran canon before resorting to agency deference would usurp the agency‘s role of gap-filling. But the government forgets that an agency has no responsibility to fill gaps if we find that Congress did not leave such a gap. SAS, 138 S. Ct. at 1358; City of Arlington v. F.C.C., 569 U.S. 290, 327 (2013) (Roberts, C.J., dissenting) (“We do not leave it to the agency to decide when it is in charge.“). And, importantly, it ignores that “the duty to interpret statutes as set forth by Congress is a duty that rests with the judiciary.” Bankers Tr. N.Y. Corp. v. United States, 225 F.3d 1368, 1376 (Fed. Cir. 2000). Deference cannot displace either this duty or the duty to consider appropriate legal doctrines when exercising it.
When the pro-veteran canon and agency deference come to a head, it is agency deference—the weaker of two doctrines at any level—that must give way. Several justices of the Supreme Court have urged their colleagues “to reconsider, in an appropriate case, the premises that underlie Chevron and how courts have implemented that decision.” Pereira v. Sessions, 138 S. Ct. 2105, 2121 (2018) (Kennedy, J., concurring); see also Michigan v. E.P.A., 135 S. Ct. 2699, 2712 (2015) (Thomas, J., concurring) (“I write separately to note that [the
The case for Auer deference is even weaker. Not only have several justices expressed concerns with Auer deference, the Supreme Court recently granted certiorari on the question of whether the Court should overrule Auer entirely. Kisor v. Shulkin, 880 F.3d 1378 (Fed. Cir. 2018), cert. granted, Kisor v. Wilkie, 2018 WL 6439837 (2018) (granting certiorari on question of “[w]hether the Court should overrule Auer and Seminole Rock” and declining to consider “[a]lternatively“-presented question of “whether Auer deference should yield to a substantive canon of construction“). As I have previously opined, Auer deference “encourages agencies to write ambiguous regulations and interpret them later, which defeats the purpose of delegation, undermines the rule of law, and ultimately allows agencies to circumvent the notice-and-comment rulemaking process.” Kisor v. Shulkin, 880 F.3d 1378, 1379-80 (Fed. Cir. 2018) (O‘Malley, J., dissenting from denial of en banc) (internal quotations and alterations omitted) (citing Hudgens v. McDonald, 823 F.3d 630, 639 n.5 (Fed. Cir. 2016) (O‘Malley, J.); Johnson v. McDonald, 762 F.3d 1362, 1366-68 (Fed. Cir. 2014) (O‘Malley, J., concurring)). In this way, Auer deference leaves agencies’ rulemaking authority unchecked and, as with Chevron, raises serious questions regarding separation of powers. Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 621 (2013) (Scalia, J., dissenting) (explaining that Auer “contravenes one of the great rules of separation of powers” that “[h]e who writes the law must not adjudge its violation“)
Of course, we have no authority to overturn either Chevron or Auer. But we can and should consider these well-documented weaknesses when agency deference conflicts with the pro-veteran canon of construction. Questionable principles of deference should not displace long-standing canons of construction. Here, there is no justification for deferring to the agency‘s intеrpretation of “Republic of Vietnam” when that interpretation fails to account for the purpose underlying the entire statutory scheme providing benefits to veterans. See Util. Air Regulatory Grp. v. E.P.A., 573 U.S. 302, 321 (2014) (“Even under Chevron‘s deferential framework, agencies must operate within the bounds of reasonable interpretation. . . . A statutory provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” (internal quotations and alterations omitted)). Rather, deference should yield to the canon that embodies this very purpose. To hold otherwise would not only wrest from us our interpretative authority to say what the law is, it would displace congressional intent.
Similarly, there is no justification for deferring to the agency‘s interpretation of its own ambiguous regulation when it twice attempted and failed to codify the foot-on-land requirement through the notice-and-comment rulemaking process. Presumptions
The government contends that the pro-veteran canon, like the rule of lenity—which “requires interpreters to resolve ambiguity in criminal laws in favor of defendants“—is a canon of last resort that cannot trump agency deference. Whitman v. United States, 135 S. Ct. 352, 353 (2014). This comparison misses the mark. While the Supreme Court cautions against the overuse of the rule of lenity, it has treated the pro-veteran canon more favorably. Compare Moskal v. United States, 498 U.S. 103, 108 (1990) (“[W]e have always reserved lenity for those situations in which a reasonable doubt persists about a statute‘s intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute.” (internal quotations omitted)), with Henderson, 562 U.S. at 441 (“We have long applied the canon that provisions for benefits to members of the Armed Services are to be construed in the beneficiaries’ favor.” (quotations omitted)). This is not surprising considering that the principles animating the rule of lenity differ greatly from those of the pro-veteran canon. The rule of lenity merely reflects a “presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment,” but it is “not out of any sentimental consideration, or for want of sympathy with the purpose of Congress in proscribing evil or antisocial conduct.” Bell v. United States, 349 U.S. 81, 83 (1955). In contrast, the pro-veteran canon recognizes this country‘s equitable obligation to “those who have been obliged to drop their own affairs to take up the burdens of the nation.” Boone, 319 U.S. at 575.
In this way, the pro-veteran canon is more analogous to the substantive canon of construction applied in the context of Indian law, which instructs that “statutes are to be construed liberally in favor of Indians, with ambiguous provisions interpreted to their benefit.” Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985). As the Supreme Court has explained, “standard principles of statutory construction do not have their usual force” when weighed against the pro-Indian canon because the canon is “rooted in the unique trust relationship between the United States and the Indians.” Id.
Applying this principle, courts have found that the pro-Indian canon trumps agency deference under Chevron. Cobell v. Norton, 240 F.3d 1081, 1101 (D.C. Cir. 2001) (”Chevron deference is not applicable” in the context of Indian law because “the special strength” of this canon trumps the normally-applicable deference.); see also Ramah Navajo Chapter v. Lujan, 112 F.3d 1455, 1461-62 (10th Cir. 1997) (“[T]he
As explained above, this country‘s relationship with its veterans is also both unique and important. The policy that we owe a debt of gratitude to those who served our country, which is the driving purpose behind the Agent Orange Act, is derived from the same sources as the pro-veteran canon, i.e., that those who served their country are entitled to special benefits from a grateful nation. See, e.g.,
By codifying in § 1116 a presumption of service connection for those who served in the Republic of Vietnam, Congress recognized that veterans should not have to fight for benefits from the very government they once risked their lives to defend. We ignore this purpose when we fail to apply the pro-veteran canon to resolve ambiguities in statutes and regulations that provide benefits to veterans; and, by failing to hold that agency deference must yield to the pro-veteran canon, we permit agencies to do the same. The practical result is that veterans like Mr. Procopio, even after returning home, are still fighting. Therefore, while I agree with the majority‘s decision, I write separately to lament the court‘s failure—yet again—to address and resolve the tension between the pro-veteran canon and agency deference.3
CHEN, Circuit Judge, dissenting, with whom Circuit Judge DYK joins.
Mr. Procopio suffers from prostate canсer and type 2 diabetes. He claims that his conditions are service connected, relying on a statutory provision,
The majority concludes that the statute unambiguously applies to Blue Water Navy veterans who did not set foot on the Vietnam landmass and overrules our prior decision to the contrary in Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). In my view, the statute is ambiguous, and the majority inappropriately preempts Congress‘s role in determining whether the statute should apply in these circumstances—an issue which Congress is grappling with at this very time.
Our court has already confronted this precise interpretive question for veterans who served on ships off the coast of Vietnam during the Vietnam War. And we concluded, after considering the statute and its legislative history, that this statutory phrase is ambiguous. See id. at 1185-86. By repudiating a statutory interpretation from a 10-year old precedential opinion without any evidence of changed circumstances, today‘s decision undermines the principle of stare decisis.
STARE DECISIS AND HAAS V. PEAKE
This court has already ruled on the statutory interpretation of service “in the Republic of Vietnam” under
Despite our court‘s settled statutory interpretation from a decade ago, the majority nevertheless elects to reopen this already-decided interpretive issue. In doing so, the majority disregards stare decisis, which serves an important purpose in American law. See Deckers Corp. v. United States, 752 F.3d 949, 956 (Fed. Cir. 2014) (“[S]tare dеcisis exists to ‘enhance [ ] predictability and efficiency in dispute resolution and legal proceedings’ through creation of settled expectations in prior decisions of the court.“) (citation omitted).
In Robert Bosch, LLC v. Pylon Manufacturing Corp., 719 F.3d 1305, 1316 (Fed. Cir. 2013) (en banc). We pointed out that “the implications of stare decisis are less weighty than if we were [reconsidering] a precedent established by the court en banc.” Id. (internal quotation marks omitted). Nevertheless, we concluded that “panel opinions, like en banc opinions, invoke the principle of stare decisis,” reasoning that, “because [our precedent] represents the established law of the circuit, a due regard for the value of stability in the law requires that we have good and sufficient reason to reject it at this late date.” Id. (internal quotation marks and citation omitted) (alteration in original).
The Supreme Court has warned that “stare decisis in respect to statutory interpretation has ‘special force,’ for ‘Congress remains free to alter what we have done.‘” John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 139 (2008) (citation omitted). “A difference of opinion within the Court . . . does not keep the door open for another try at statutory construction . . . .” Watson v. United States, 552 U.S. 74, 82 (2007). Indeed, “the very point of stare decisis is to forbid us from revisiting a debate every time there are reasonable arguments to be made on both sides.” Lighting Ballast Control LLC v. Philips Elecs. N. Am. Corp., 744 F.3d 1272, 1283 (Fed. Cir. 2014) (en banc), abrogated by Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831 (2015) (quoting Morrow v. Balaski, 719 F.3d 160, 181 (3d Cir. 2013) (Smith, J., concurring)). Congress has the responsibility for revising its statutes; the Judiciary should be more circumspect before forsaking prior statutory interpretations. See Neal v. United States, 516 U.S. 284, 295-96 (1996). Indeed, thе recent debates in Congress, which required consideration of the significant cost of the proposed addition of Blue Water Navy veterans underscores why Congress, rather than the courts, should be the one to revisit our interpretation in Haas. See Citation of Supplemental Authority 1, ECF No. 39; Blue Water Navy Vietnam Veterans Act, H.R. 299, 115th Cong. (2017-18) (“Blue Water Navy Vietnam Veterans Act of 2018“). The Supreme Court‘s admonishment against overruling prior statutory interpretation is particularly apt here, where Congress has been actively considering whether to take any action in response to this court‘s interpretation.
Our statutory interpretation in Haas has been the law of this court for over ten years. Neither party has identified any intervening development of the law that has removed or weakened the conceptual underpinnings from Haas in this regard. I would therefore follow Haas to conclude that the statutory phrase at issue is ambiguous.
STATUTORY AMBIGUITY
I do not find persuasive the majority‘s conclusion that international law dictates its interpretation. The Haas court considered similar sources of evidence but still concluded that the statutory phrase was ambiguous. Haas, 525 F.3d at 1184. All of the international law sources relied upon by the majority relate to laws that statutorily define the territorial waters over which a sovereign nation has dominion and control. See, e.g., Restatement (Third) of Foreign Relations Law § 511(a) (“The territorial sea: a belt of sea that may not exceed 12 nautical miles, measured from a baseline that is either the low-water line along the coast or the seaward limit of the internal waters of the coastal state or, in the case of an archipelagic state, the seaward limit of the archipelagic waters“); United States v. California, 332 U.S. 19, 33 (1947) (“That the political agencies of this nation both claim and exercise broad dominion and control over our three-mile marginal belt is now a settled fact.“); 1958 Convention on the Territorial Sea and the Contiguous Zone, art. 1(1), 15 U.S.T. 1606, T.I.A.S. No. 5639 (Apr. 29, 1958) (“The sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea.“); United Nations Convention on the Law of the Sea, art. 2, 1833 U.N.T.S. 397, 400 (Dec. 10, 1982, entered into force on Nov. 16, 1994) (“The sovereignty of a coastal State extends, beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea.“). They do not purport to define territorial waters as part of the definition of the country itself.
Section 1116, a U.S. veterans’ disability benefits statute, has nothing to do with the dominion and control of a foreign sovereign over territorial waters. Nor would an opinion construing a U.S. veterans’ disability benefits statute be in any danger of violating the law of the na- tions. See Murray v. Schooner Charming Betsy, 6 U.S. 64 (1804).
There is no support for a rule that a statute that refers to a country includes
Dictionaries from 1991, when the Agent Orange Act was passed, often defined countries in terms of square miles of the land mass.2 The same is true of maps, which
typically show the land area of a country.3 I am unaware of any dictionary or standard map that defines countries in terms of land plus the territorial sea, nor does the majority point to any.
Congress has repeatedly shown that when it wants to include a country‘s territorial waters, it does so expressly. See, e.g., Veterans’ Rehabilitation and Education Amendments of 1980, Pub. L. No. 96-466, § 513(b), 94 Stat. 2171 (1980) (defining eligibility
By enacting the Agent Orange Act, Congress intended to help Vietnam veterans who had manifested certain specified diseases as a result of having been exposed to Agent Orange. See
The majority errs in dismissing the relevance of §§ 3.311a and 3.313, regulations that existed before the enactment of § 1116. The majority suggests that Congress was enacting the statute against a background in which the existing regulations covered territorial waters, but it misunderstands the history behind each rule. Regulation 3.311a was promulgated in 1985 to implement the Veterans’ Dioxin and Radiation Exposure Compensation Standards Act, Public Law 98-542, 98 Stat. 2725, 2725-34 (1984) (“1984 Dioxin Act“). Section 5 of the 1984 Dioxin Act directed the VA to establish guidelines grounded in “sound scientific and medical evidence” that require the veterans’ death or disability be based on actual exposure to herbicides containing dioxin. Id. at 2727-28. The 1984 Dioxin Act noted that there was evidence that specific diseases—chloracne, porphyria cutanea tarda, and soft tissue sarcoma—were linked to exposure to dioxin-containing herbicides. Id. at 2725. Thereafter, the VA promulgated § 3.311a. The § 3.311a rulemaking notice noted that herbicides “were used during the Vietnam conflict to defoliate trees, remove ground cover, and destroy crops,” and that many veterans “were deployed in or near locations where Agent Orange was sprayed.” Adjudication of Claims Based on Exposure to Dioxin or Ionizing Radiation, 50 Fed. Reg. 15848, 15849 (Apr. 22, 1985). Because the regulation required exposure to diоxin-containing herbicides and herbicides had been sprayed on Vietnam‘s landmass, the VA imposed a foot-on-land requirement for veterans that served offshore or in locations other than Vietnam:
“Service in the Republic of Vietnam” includes service in the waters offshore and service in other locations, if the conditions of service involved duty or visitation in the Republic of Vietnam.
38 C.F.R. § 3.311a(b) (1986). The natural reading of the regulation‘s use of the conjunctive “and” confirms that the prepositional phrase applied both to offshore veterans and those stationed outside of Vietnam.
The VA promulgated § 3.313 for an entirely different purpose. Contrary to § 3.311a, § 3.313 was not linked to herbicide exposure, but rather was based on a 1990 CDC study that determined that all Vietnam veterans—including those that served on the landmass as well as those who served offshore—had a higher incidence rate of non-Hodgkin‘s lymphoma than non-Vietnam veterans. Claims Based on Service in Vietnam, 55 Fed. Reg. 43123-01 (Oct. 26, 1990). The 1990 study further concluded that no correlation existed between non-Hodgkin‘s lymphoma and exposure to Agent Orange. Id. The VA therefore worded § 3.313 specifically to apply to all offshore veterans, without a foot-on-land requirement:
Service in Vietnam includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam.
38 C.F.R. § 3.313(a) (1990). The natural reading of the regulation‘s use of the disjunctive “or” and movement of the comma to offset “offshore” from the rest of the sentence confirms that the offshore veterans were not subject to a foot-on-land requirement. While the grammatical differences
When the VA promulgated these two regulations, their meanings were not ambiguous. The ambiguity arose when Congress appeared to codify both VA regulations in the Agent Orange Act, one regulation with a foot-on-land requirement and one without. 137 Cong. Rec. H719-01 (1991) (“[T]he bill would . . . codify decisions the Secretary of Veterans Affairs has announced to grant presumptions of service connection for non-Hodgkin‘s lymphoma and soft-tissue sarcoma in veterans who served in Vietnam . . . .“). The Agent Orange Act used the term “served in the Republic of Vietnam” without defining the term:
[A] disease specified in paragraph (2) of this subsection becoming manifest as specified in that paragraph in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975;
As we concluded in Haas,
The majority‘s conclusion that “Republic of Vietnam” in § 3.311a “covers everyone whose service included duty or visitation ‘in the Republic of Vietnam,’ which, under background law, embraces the territorial sea” (Majority Op. at 12) is incorrect, because it assumes that the VA also bought into the majority‘s newly announced principle that reciting a sovereign‘s formal name in a statute or—for purposes of § 3.311a—a regulation, necessarily includes the country‘s territorial seas. The majority cites no case law or other support for this assumption. Nor does the majority cite support for its subsequent conclusion that § 3.311a encompasses “only a subset” of offshore veterans—those that served on land, within the internal waterways, or within the territorial seas of Vietnam. See id. There is no evidence in the regulation or its history that the VA intended this interpretation.
After reviewing the applicable provisions, it is not clear to me that Congress unambiguously intended “served in the Republic of Vietnam” to include Blue Water veterans. Although international law establishes that sovereign nations have dominion and control over their territorial seas, a U.S. veterans’ benefits statute has nothing to do with regulating interactions with a foreign sovereign. And the Agent Orange Act‘s legislative history provides no support for the majority‘s conclusion. I therefore believe, as this court concluded in Haas, that the statutory phrase “Republic of Vietnam” is ambiguous when applied to service in the waters adjoining the landmass of Vietnam. See Haas, 525 F.3d at 1184.
As for the liberal construction principle known as the pro-veteran canon, neither the Supreme Court nor this court has applied it at step one of Chevron as a means for deeming Congress‘s intent clear for an otherwise unclear statute. But even if it were relevant to the step one inquiry, I do not view this canon, given its indeterminate nature, as compelling the conversion of this ambiguous statute into an unambiguous one.
The significance of the policy choice and budget impact that the court makes today further underscores why more compelling indicia are required before concluding that Congress clearly intended the majority‘s statutory interpretation. Congress recently estimated that it would need to allocate an additional $1.8 billion during fiscal year 2019, and $5.7 billion over 10 years, to fund the Blue Water Navy Vietnam Veterans Act of 2018, a bill that would have explicitly expanded the presumption of Agent Orange exposure to Blue Water Navy veterans. See Blue Water Navy Vietnam Veterans Act of 2018: Hearing on H.R. 299 Before the S. Comm. on Veterans’ Affairs, 115th Cong. 1, 4 (2018) (statement of Dr. Paul R. Lawrence, Under Secretary, Benefits Department, Veterans’ Affairs). The bill passed the House unanimously in 2018 but failed to pass the Senate before the end of the 2018 session, due, in part, to concerns over the cost of expanding the presumption of service connection. It is not for the Judiciary to step in and redirect such a significant budget item—rather, that policy choice should be left to Congress.
I do not reach the question of whether Haas should be reaffirmed insofar as it held that at step two of Chevron, deference was owed to the interpretation of the statute by the VA. See id. at 1184, 1192-93. Relying on principles of Auer deference, the Haas panel held that the VA had
In ordering rehearing en banc we asked that the parties address the question of ambiguity.6 In accordance with our order the parties have not, in fact, fully addressed the step two Chevron issues. At the same time there have been relevant developments that bear on that question. The Supreme Court has recently granted certiorari to address the question of whether Auer should be overruled.7 There have been additional studies of the issue of Blue Water Navy diseases attributable to dioxin exposure, and the issue continues to be studied, with a new report predicted to become available next April. Under these circumstances, I think it premature to address Haas’ treatment of step two of Chevron.