Procopio en Banc Brief
Procopio en Banc Brief
Procopio en Banc Brief
No. 17-1821
IN THE
United States Court of Appeals for the Federal Circuit
ROBERT WILKIE,
Secretary of Veterans Affairs
Respondent-Appellee.
October 1, 2018
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FORM 9. Certificate of Interest Form 9
Rev. 10/17
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
Procopio v. Wilkie
Case No. 17-1821
CERTIFICATE OF INTEREST
4. The names of all law firms and the partners or associates that appeared for the party or amicus now
represented by me in the trial court or agency or are expected to appear in this court (and who have not
or will not enter an appearance in this case) are:
Not Applicable
i
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FORM 9. Certificate of Interest Form 9
Rev. 10/17
5. The title and number of any case known to counsel to be pending in this or any other court or agency
that will directly affect or be directly affected by this court’s decision in the pending appeal. See Fed. Cir.
R. 47. 4(a)(5) and 47.5(b). (The parties should attach continuation pages as necessary).
None
Reset Fields
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TABLE OF CONTENTS
Page
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TABLE OF AUTHORITIES
Page(s)
CASES
Boone v. Lightner,
319 U.S. 561 (1943) .............................................................................. 45
Boyer v. West,
210 F.3d 1351 (Fed. Cir. 2000) ...................................................... 68, 71
Brown v. Gardner,
513 U.S. 115 (1994) .................................... 45, 46, 47, 51, 64, 65, 66, 71
Burden v. Shinseki,
727 F.3d 1161 (Fed. Cir. 2013) ............................................................ 70
FAA v. Cooper,
566 U.S. 284 (2012) .............................................................................. 32
vi
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Gazelle v. Shulkin,
868 F.3d 1006 (Fed. Cir. 2017) ............................................................ 60
Haas v. Nicholson,
20 Vet. App. 257 (2006).................................................................. 51, 52
Haas v. Peake,
525 F.3d 1168 (Fed. Cir. 2008) .................. 21, 39, 41, 50, 51, 52, 53, 59
Haas v. Peake,
544 F.3d 1306 (Fed. Cir. 2008) .................. 22, 48, 49, 50, 54, 55, 56, 57
Heino v. Shinseki,
683 F.3d 1372 (Fed. Cir. 2012) ............................................................ 68
Hodge v. West,
155 F.3d 1356 (Fed. Cir. 1998) ............................................................ 64
Holton v. Shinseki,
557 F.3d 1362 (Fed. Cir. 2009) ............................................................ 10
vii
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Lawrence v. Shaw,
300 U.S. 245 (1937) .............................................................................. 45
In re Li,
71 F. Supp. 2d 1052 (D. Haw. 1999) ................................................... 56
Louisiana v. Mississippi,
202 U.S. 1 (1906) .................................................................................. 33
Manchester v. Massachusetts,
139 U.S. 240 (1891) .............................................................................. 33
Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803) ............................................................... 69
McGee v. Peake,
511 F.3d 1352 (Fed. Cir. 2008) ............................................................ 68
viii
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Nielson v. Shinseki,
607 F.3d 802 (Fed. Cir. 2010) .............................................................. 68
Pereira v. Sessions,
138 S. Ct. 2105 (2018) .............................................................. 55, 65, 69
Saunders v. Wilkie,
886 F.3d 1356 (Fed. Cir. 2018) ............................................................ 29
Yang v. Maugans,
68 F.3d 1540 (3d Cir. 1995) ........................................................... 54, 55
Zhang v. Slattery,
55 F.3d 732 (2d Cir. 1995) ............................................................. 54, 55
STATUTES
ix
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26 U.S.C. § 638.......................................................................................... 56
38 U.S.C. § 1151........................................................................................ 66
38 U.S.C. § 4324........................................................................................ 67
49 U.S.C. § 40102...................................................................................... 56
x
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OTHER AUTHORITIES
137 Cong. Rec. 2341 (Jan. 29, 1991) ...................................... 39, 40, 42, 43
xi
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Dep’t of Veterans Affairs, Op. Gen. Counsel Prec. 27-97 (1997) ............ 18
Judith C. Erdheim, Market Time (U) CRC 280, Center for Naval
Analyses, App’x I (1975), https://tinyurl.com/ydbbota9 ..................... 35
xii
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xiii
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Bill White & Robert Gandt, Intrepid: The Epic Story of America’s
Most Legendary Warship (2008) .......................................................... 23
xiv
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Court was previously before this or any other appellate court. A panel
this appeal.
Counsel are not aware of any cases in this or any other court or
Affairs may be directly affected by the outcome of this case. Those cases
xv
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INTRODUCTION
to service. Soldiers, sailors, and airmen fought a brutal war and then
like Navy veteran Alfred Procopio, Jr.—fell ill, they turned to the
suffered could be traced to their service. This was especially true for
infamous Agent Orange widely used for defoliation during the War.
deployment, Congress enacted the Agent Orange Act in 1991. The Act
1
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troops whose boots touched the ground of the Vietnamese landmass and
so-called “Brown Water Navy” veterans who patrolled its rivers. This
thousands of “Blue Water Navy” veterans, like Mr. Procopio, who served
Veterans Court denied Mr. Procopio’s claim for disability benefits, even
that are eligible for the presumptive service connection afforded to other
Vietnam veterans.
2
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sea. By using the official name of the former nation of South Vietnam—
veterans canon, that canon is one of the traditional tools that can be
service connection that Congress enacted for the benefit of all veterans
who served in the Republic of Vietnam. This Court should reject the
3
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analysis?2
routed French forces at Dien Bien Phu and effectively ended French
4
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States Navy and the Vietnam Conflict 263 (1976). The Geneva Accords
just been recognized, into two zones divided by the 17th parallel of
President Ngo Dinh Diem. See id. at 328; see also Marilyn B. Young,
5
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the South. The guerillas were aided (first unofficially and later
officially) by support from the North, which was in turn backed by the
Soviet Union and China. The U.S. military began providing training to
Marolda & Oscar P. Fitzgerald, The United States Navy and the
The U.S. Navy played a critical role during this period. U.S. naval
air support, Navy-SEAL raids launched from small boats, and technical
200; see also id. at 24. Naval forces in the offshore coastal seas were
called the “Blue Water” Navy, in contrast to the “Brown Water” Navy
6
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force in the wake of the Gulf of Tonkin incident. The Blue Water Navy
the U.S. military began using several herbicides to defoliate the forests
fed enemy forces. Adm. E.R. Zumwalt, Jr., Report to the Secretary of the
Report”). The herbicides were sprayed from aircraft, from boats, and
7
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Update”). Each herbicide was known by the color of the band painted
fact “the most toxic” form of dioxin. Id. at 54. Its toxic biological effects
8
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of the Mekong River Delta, at the interface between land and water.
The Mekong River exits into the South China Sea, where its
considerable discharge “plume” can carry river water—and the dirt and
silt that washes into the river—hundreds of miles into the open sea.
26-27. The Department of Defense phased out the use of Agent Orange
by 1971, see IOM 2010 Update at 57, but concerns remained about the
9
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Improvement Act of 1979, Pub. L. No. 96-151 § 307, 93 Stat. 1092, 1097-
reassigned to the Centers for Disease Control. See H.R. Rep. No. 98-
592, at 5 (1984).
(Fed. Cir. 2009) (quotation marks omitted). Mounting such proof was
10
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chemical was used. See, e.g., Institute of Medicine, Veterans and Agent
Pub. L. No. 98-542, 98 Stat. 2725 (1984) (the “Dioxin Act”). Congress
cutanea tarda, and soft tissue sarcoma are associated with exposure to
11
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the language of the Dioxin Act and did not purport to limit the
and that Blue Water Navy veterans had an even higher risk than those
who served in the Brown Water Navy or on the ground. Centers for
12
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311, Regulation 313 did not purport to limit its scope to presence on the
Vietnam landmass.
52 (Oct. 15, 1991); see also Nehmer v. U.S. Veterans’ Admin., 712 F.
13
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culminated in 1991 with the Agent Orange Act, Pub. L. No. 102-4, 105
Stat. 11. The Act relieved the VA of some of its regulatory discretion by
§ 1116(f).
Congress did not stop with these three diseases. The Act also
directed the VA to identify other any other disease shown over time to
U.S.C. § 1116(b)(1)).
14
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Blue Water Navy veterans were at all relevant times eligible for the
Appx225. Blue Water veterans thus qualified for benefits with respect
that tracks Regulations 311 and 313, albeit with slightly different
15
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of force in August 1964. Now, for veterans who “served in the Republic
16
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when U.S. forces were already present in Vietnam. Pub. L. No. 104-
of war” to include “the Vietnam era”); see also, e.g., 38 U.S.C. § 1521(a)
benefits).
“boots-on-the-ground” requirement.
coast. In dicta, the General Counsel suggested that the same term in
17
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the Agent Orange Act likewise did not cover offshore service. Dep’t of
Veterans Affairs, Op. Gen. Counsel Prec. 27-97 (1997). Similarly, the
III, ¶ 4.24(e)(1) (Feb. 27, 2002). The VA also twice proposed to codify its
but neither rulemaking was finalized. See 69 Fed. Reg. 44,614, 44,620
(July 27, 2004); 73 Fed. Reg. 20,566, 20,567 (Apr. 16, 2008).
18
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with the runoff from areas sprayed with Agent Orange. Id. at 9-10.
Shipboard distillers converted the marine water into water for the
boilers and potable water by vaporizing and then condensing the liquid
that is, the toxin evaporated and then recondensed along with the
19
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hundred miles into the South China Sea. See, e.g., Appx107-109; see
foot in the Republic of Vietnam.” IOM 2008 Update at 655; see also id.
plausible exposure pathways for the Blue Water Navy via wind drift
and the flow of TCDD-polluted water down rivers and streams and into
the open sea, particularly in the Mekong River Delta area. See IOM
The IOM could not state with certainty whether or to what extent
data” meant that it likewise could not quantify the exposure, if any,
20
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with respect to Brown Water sailors or ground forces. Id. at 133. The
Water Navy veterans. See 77 Fed. Reg. 76,170, 76,171 (Dec. 26, 2012).
sought disability benefits under the Agent Orange Act for multiple
(Fed. Cir. 2008) (“Haas II”). A divided panel held that the statutory
coast. See id. at 1183-86. The majority deferred to the VA’s asserted
21
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denying rehearing, the panel majority held that Mr. Haas had waived
that argument by not raising it earlier and that, in any event, “it [was]
by no means clear” that applying the canon would have changed the
majority’s decision. See Haas v. Peake, 544 F.3d 1306, 1308-09 (Fed.
enlist in the U.S. Navy. Appx225. He was not drafted. Id. He chose to
Less than one year later, Mr. Procopio found himself preparing to
Campaign Medal, and the Vietnam Service Medal with two bronze
stars. Id.
22
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Appx225. In July 1966, the Intrepid was deployed off the coast of the
Bill White & Robert Gandt, Intrepid: The Epic Story of America’s Most
Officer (E-5), Mr. Procopio was honorably discharged from active duty
23
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office refused to afford Mr. Procopio this presumption and denied his
ruling after a court-ordered remand, the Board cited Haas and stated
that Mr. Procopio was not entitled to the statutory presumption because
Appx21 (Mr. Procopio was not “present on the landmass or the inland
waters of Vietnam”). The Board also found that he had not directly
The Veterans Court also accepted the Board’s finding that Mr. Procopio
24
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Mr. Procopio asked this Court for en banc hearing in the first
instance, arguing that Haas should be overruled. See Dkt. 10. The
government objected, and the Court denied the request. See Dkt. 19,
supplemental briefing. Dkt. 50; see also Dkt. 56, Dkt. 57, Dkt. 60.
ordered an en banc hearing. Dkt. 63. The Court directed the parties to
file new briefs addressing (1) whether the phrase “served in the
Vietnam,” and (2) what role, if any, the “pro-claimant canon play[s] in
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service-connection presumption.
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was to cut through the scientific and evidentiary uncertainty over Agent
Orange exposure and its health effects by allowing all Vietnam veterans
Act’s pertinent statutory text, context, and legislative history, the canon
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Haas majority found Mr. Haas had waived reliance on the pro-veterans
II. Even if this were a close case after consulting the text, context,
if, after using the traditional tools of statutory interpretation, the court
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the Chevron inquiry. That not only accords with the primary duty of
the judiciary to interpret the law, it makes good sense. The canon is not
meaning.
STANDARD OF REVIEW
This Court sets aside any decision of the Court of Appeals for
novo. See Saunders v. Wilkie, 886 F.3d 1356, 1360 (Fed. Cir. 2018).
29
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ARGUMENT
the veteran, “during active military, naval, or air service, served in the
involvement and the start of herbicide use in the Vietnam War. Read in
there were any lingering basis for interpretive doubt, the pro-veterans
canon would require resolving that doubt in favor of Blue Water Navy
To the extent a divided panel of this Court held otherwise in Haas, that
30
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In the Agent Orange Act, Congress made clear that any veteran
technical meaning. See McDermott Int’l, Inc. v. Wilander, 498 U.S. 337,
342 (1991); Johnson v. United States, 559 U.S. 133, 139 (2010). The
31
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dictated that any service within the sovereign boundaries of that nation
Orange. See FAA v. Cooper, 566 U.S. 284, 292 (2012) (“[W]hen
cluster of ideas that were attached to each borrowed word in the body of
(1987) (emphasis added). “The rights and duties of a state and its
jurisdiction are the same in the territorial sea as in its land territory.”
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States territorial sea is a “settled fact” that is “binding upon this Court”
(1891)).
the Territorial Sea and the Contiguous Zone (the “1958 Convention”).
The United States and the other signatories to that treaty codified
State extends, beyond its land territory and its internal waters, to a belt
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Convention, art. 1(1), 15 U.S.T. 1606, T.I.A.S. No. 5639 (Apr. 29, 1958);
accord United Nations Convention on the Law of the Sea, art. 2, 1833
U.N.T.S. 397 (Dec. 10, 1982, entered into force on Nov. 16, 1994)
Reporters’ n.1.
Not only has this understanding been long settled in the United
that the definitions adopted in the 1958 Convention provided “the best
5Although the United States has not formally ratified UNCLOS III, it
“has recognized,” for example, “that its baseline provisions reflect
customary international law.” United States v. Alaska, 503 U.S. 569,
588 n.10 (1992) (quotation marks omitted).
34
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the general line of the coast.” Id. art. 4.6 And in April 1965, the
Republic of Vietnam and the Law of the Sea 48-49 (1998) (citing
Erdheim, Market Time (U) CRC 280, Center for Naval Analyses, App’x
6 Although the United States did not sign the Geneva Accords, it later
incorporated their terms into the Paris Accords ending the Vietnam
War. See Agreement on Ending the War and Restoring Peace in
Vietnam, art. I, 24 U.S.T. 1, 4-23, T.I.A.S. No. 7542 (Jan. 17, 1973).
35
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S.A., 542 U.S. 155, 164 (2004) (citing, inter alia, Murray v. The
Light Prods., Inc., 523 F.3d 1353, 1363-64 (Fed. Cir. 2008). That
other language in the Agent Orange Act underscores that a veteran who
36
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States ex rel. Wilson, 559 U.S. 280, 290 (2010) (quotation marks
omitted); see also King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991)
who, during active military, naval, or air service, served in the Republic
statutory phrase thus makes even more plain that the presumption of
Vietnam, including Blue Water Navy sailors like Mr. Procopio. Indeed,
37
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stand out.
service “in the Republic of Vietnam” with Blue Water Navy service. As
discussed above (at 12-13), before the Agent Orange Act, the VA had
38 C.F.R. § 3.313(a).7
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Veterans’ Affairs in conjunction with the bill that became law. That
statement explains that the bill “would … codify [the] decision[] the
served in Vietnam.” 137 Cong. Rec. 2341, 2349 (Jan. 29, 1991); see also
The government has previously conceded that the clause “if the
conditions of service involved duty or visitation in Vietnam” does not
modify “service in the waters offshore,” and that Regulation 313 thus
applies to veterans who “never visited the landmass of Vietnam.” Haas
II, 525 F.3d at 1179.
8This Court has recognized that statements by floor managers and
committee chairs “are … particularly reliable indication[s] of
congressional intent.” New Mexico v. United States, 831 F.2d 265, 268-
69 (Fed. Cir. 1987); see also Robert A. Katzmann, Judging Statutes 48-
49, 54 (2014) (same).
39
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surrounding the 1990 bill from which the Agent Orange Act was
derived.9 The House Committee Report for that bill explained that it
the Act’s use of the phrase “served in the Republic of Vietnam” to reflect
and match Regulation 313’s inclusion of the Blue Water Navy. But
Congress did not limit its codification of Regulation 313’s scope or its
9 See 137 Cong. Rec. at 2349. The 1990 House bill, similar to the bill
that was ultimately enacted, used the phrase “service in the Republic of
Vietnam.” Veterans’ Compensation Amendments of 1990, H.R. 5326,
101st Cong. § 304 (Oct. 15, 1990). This bill was passed by the House
and referred to the Senate committee but was not enacted before the
legislative session expired.
40
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Agent Orange exposure under the statute and VA regulations. See Pub.
L. No. 102-4 § 2(a), 105 Stat. 11, 11-13. This uniform standard,
Haas has not identified.” Haas II, 525 F.3d at 1185. Mr. Haas did not
cite the 1991 joint explanatory statement, the 1990 House Committee
legislative history.
the Agent Orange Act, explained that the entire reason for adopting a
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veterans the benefit of the doubt and attempt[] to settle one of the most
complex and contentious veterans’ issue[s] ever brought before this body
for consideration”).
The Act, in other words, gave Vietnam veterans the benefit of the
Blue Water Navy veterans just as it affected others who served in the
first place. See 137 Cong. Rec. at 2347 (noting “the difficulty in
42
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leading to cancellation).
Vietnam.” 137 Cong. Rec. at 2347 (emphasis added). This finding led to
and in the Agent Orange Act, even though the study—noting the
Agent Orange exposure. See 55 Fed. Reg. 43,123, 43,123 (Oct. 26,
of NHL”); see also IOM Blue Water Report at 133 (concluding that lack
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exposures for Blue Water and Brown Water Navy sailors and, so far, for
discussed above (at 16-17), Congress in 1996 expanded the time period
constituting the “Vietnam era” for those veterans who “served in the
those veterans who actually served within the borders of the Republic of
supra § I.A.
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For at least 75 years, the Supreme Court has made clear that
those who have been obliged to drop their own affairs to take up the
burdens of the nation.” Boone v. Lightner, 319 U.S. 561, 575 (1943); see
Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 441 (2011) (“We
have long applied [the pro-veterans canon].”). This Court has likewise
U.S. 115, 118 (1994). This means that an argument that might
45
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intent and support a finding of ambiguity does not have that effect in
after applying” the pro-veterans canon); King, 502 U.S. at 220-21 n.9;
1991 is thus presumed to have known and intended that the statutory
accordingly.
This case, like Gardner and King, is not a close case that requires
resort to the pro-veterans canon. In those cases, as here, the other tools
statute’s text and context revealed its plain meaning and did not
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ambiguity even if some doubt remained. See King, 502 U.S. at 220-21
without any explicit time limit. 502 U.S. at 218. In contrast, related
provisions expressly stated that there was no time limit for similar
the reading of the otherwise plain statute in other contexts, the Court
interpretive doubt.
veterans’ favor. In denying rehearing, the panel majority held that the
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such that the pro-veterans canon did not necessarily favor interpreting
“Republic of Vietnam” to include its territorial sea. Haas III, 544 F.3d
at 1308. The panel posited that the VA “already interpreted the statute
not just the landmass of Vietnam, but also its territorial sea, is the pro-
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veterans canon also fall wide of the mark. The majority noted that
applying the canon “would raise the question of whether the statute
(including the airspace above the territorial seas) but never landed in
Foreign Relations Law §§ 512 & 513, cmt. i (citing Chicago Convention
1180, T.I.A.S. No. 1591, 15 U.N.T.S. 295). The VA may rebut the
traversed inland waters in Vietnam.” Haas III, 544 F.3d at 1309. But
49
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this case belies that point. The record contains contemporaneous deck
52. Such documents will allow the VA to apply the plain language of
the statute for the benefit of all of the veterans whom Congress
intended to cover.
The divided Haas panel held that the term “served in the Republic
Vietnam.” Haas III, 544 F.3d at 1307-08; accord Haas II, 525 F.3d at
1184. As shown, the Court reached this conclusion without the full
the role of the pro-veterans canon, and with a flawed discussion of that
canon in dicta.
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should not make the same mistake. It should overrule Haas to the
extent that opinion held that the statutory phrase “served in the
To begin with, the Haas majority did exactly what the pro-
Vet. App. 257, 263 (2006) (“Haas I”)). According to the majority, the
extend up to 200 miles from the coastline.” Id. (citing Haas I, 20 Vet.
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App. at 263-64); see also Haas I, 20 Vet. App. at 263-64 (citing CIA
World Factbook; UNCLOS III). From this, the majority concluded that
“served in the Republic of Vietnam” was ambiguous. Haas II, 525 F.3d
at 1184.
not, as the Haas majority believed, invoke any “source” that “define[s]
Rather, the Veterans Court cited the unclassified Internet version of the
at 263. The notion that Congress would have legislated with the
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publications/resources/the-world-factbook/geos/vm.html (follow
(last visited Oct. 1, 2018). Nothing in the Factbook displaces the settled
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coastal nation does not exercise complete sovereignty over its 200-mile
§ 511 & cmt. b; see UNCLOS III, art. 58 (a coastal state must give “due
regard” to the “rights and duties of other States” within its exclusive
alien is not present “in” the United States until he has touched its soil.
Haas III, 544 F.3d at 1309 (citing Zhang v. Slattery, 55 F.3d 732, 754
(2d Cir. 1995); Yang v. Maugans, 68 F.3d 1540, 1548 (3d Cir. 1995)).
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between the rights of an alien who “enters” the United States and one
who does not, and between those who “enter” with inspection and
regulate the travel of human beings, whose habitat is land, not the
the Agent Orange Act, which applies by its terms to all members of the
military, naval, or air service.” See Pereira v. Sessions, 138 S. Ct. 2105,
term the “United States” that were cited by the Haas majority. See
Haas III, 544 F.3d at 1309. Sometimes these statutes expressly refer to
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the territorial waters of the United States. See 26 U.S.C. § 638 (tax
section for air commerce and safety provisions). Sometimes they do not.
Supp. 2d 1052, 1056 (D. Haw. 1999) (“[T]he term United States has
Stat. 2171, 2208, codified at 38 U.S.C. § 4107 note). The majority also
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related statute to which the Haas majority alluded did not refer to the
South and also added language to make clear that “Vietnam” would be
note.
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Furthermore, the “waters adjacent to” Vietnam (or Mexico) are not
equivalent to the territorial sea. The territorial sea is merely the first
adjacent” to Vietnam as extending well into the South China Sea more
Reg. 5817 (1965). This statute thus has a broader scope than § 1116.
But that does not mean that either provision is ambiguous. Context
matters, and here the statutory text and context are clear and
dispositive.
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Vietnam” includes service in the territorial sea and precludes the VA’s
part of the first step of Chevron. The Supreme Court has repeatedly
statutes. Both the Supreme Court and this Court have strongly
And doing so accords with the primary duty of the judiciary to interpret
the law. The canon, properly applied, therefore forecloses any possible
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Congress is clear.” Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 842
(1984). If it is, “that is the end of the matter; for the court, as well as
tools” include the statutory text, context, legislative history, and canons
of construction. See Gazelle v. Shulkin, 868 F.3d 1006, 1010 (Fed. Cir.
2017); Kyocera Solar, Inc. v. ITC, 844 F.3d 1334, 1338 (Fed. Cir. 2016).
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Systems Corp. v. Lewis, the Court provided a capsule view of how these
1612 (2018). In that case, the Court consulted, among other things, the
at 1624, 1630 (quotation marks and brackets omitted). The Court relied
separate rights under the National Labor Relations Act. Id. at 1623-24.
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drafting presumptions. See id. at 1624 (noting that the canon against
Court, for example, has applied at Step One the canon against
penalize noncitizens. INS v. St. Cyr, 533 U.S. 289, 315-16, 320 & n.45
Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 574-75 (1988);
accord Solid Waste Agency v. U.S. Army Corps of Engineers, 531 U.S.
159, 172-74 (2001) (noting that, even had statute been unclear, the
Court would not have deferred to agency given the avoidance canon).
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Indeed, the Court has even applied canons like the presumption
good sense. Again, as the Supreme Court and this Court have
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(Fed. Cir. 2018); Starry Assocs., Inc. v. United States, 892 F.3d 1372,
1378 (Fed. Cir. 2018); Kirkendall, 479 F.3d at 845 (plurality op.); see
claimant.” Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998); see also,
e.g., Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285
those who left private life to serve their country in its hour of great
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220-21 n.9. Courts must give the statute “as liberal a construction for
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“injury” that occurs “as the result of” VA medical treatment, so long as
the injury was not the result of the veteran’s “own willful misconduct.”
a showing that the injury was caused by “fault” on the part of the VA or
One holding, the Court noted that the “most … that the Government
could claim” on the basis of the term “injury” connoting fault “is the
at 117-18 (emphasis added). Thus, while the Court did not need to rely
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This Court has done the same. In Kirkendall, the en banc Court
concluded that the statute was ambiguous (and therefore favored the
that “[e]ven if this were a close case”—that is, if there might be some
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that, even if that statute “still fairly permitted of more than one
Panels of this Court have also indicated that the canon applies at
511 F.3d 1352, 1356 (Fed. Cir. 2008); Nat’l Org. of Veterans’ Advocates,
Inc. v. Sec’y of Veterans Affairs, 260 F.3d 1365, 1378 (Fed. Cir. 2001);
Disabled Am. Veterans v. Gober, 234 F.3d 682, 691-92 (Fed. Cir. 2000);
Boyer v. West, 210 F.3d 1351, 1355 (Fed. Cir. 2000). To be sure, the
Court has not consistently so held. See, e.g., Nielson v. Shinseki, 607
F.3d 802, 808 (Fed. Cir. 2010) (stating that the canon is “only applicable
Chevron”); see also Heino v. Shinseki, 683 F.3d 1372, 1379 n.8 (Fed. Cir.
2012) (“It is not clear where the [pro-veterans] canon fits within the
should treat the canon like any other traditional tool of interpretation
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Congress is a duty that rests with the judiciary.” Bankers Tr. New York
Corp. v. United States, 225 F.3d 1368, 1376 (Fed. Cir. 2000) (citing
Chevron displaces this duty. See SAS Institute, 138 S. Ct. at 1358; cf.
law is. Only after concluding that it is not, and that genuine ambiguity
said and whether it has spoken clearly. See supra § II.B. It therefore
Affording the canon its proper analytical position does not mean,
as the government has suggested, that courts are foreclosed from ever
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at 6. For one thing, ambiguity can certainly exist where a given statute
role. See Burden v. Shinseki, 727 F.3d 1161, 1169 (Fed. Cir. 2013)
Even where the canon would favor one reading over another, it
need not foreclose ambiguity in every possible instance. The canon long
predates Chevron, and the Supreme Court has never equated the
above, Gardner and King can be read to suggest that the interpretive
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draw such lines in order to resolve this case. It is enough to say, as the
Supreme Court has already made clear, that the canon is at least a
Gardner and King, the canon can confirm the pro-veterans reading
where there is little (if any) reason to interpret the statute differently.
See Gardner, 513 U.S. at 117-18; King, 502 U.S. at 220-21 n.9; see also
Kirkendall, 479 F.3d at 846 (plurality op.). This case certainly is not
Fishgold, 328 U.S. at 285 (refusing to apply the canon to “distort the
Applying the canon at Chevron Step One also will not, as the
Sec’y of Veterans Affairs, 818 F.3d 1336, 1350 (Fed. Cir. 2016). Indeed,
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CONCLUSION
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