We are previewing three cases scheduled to be argued next week at the Federal Circuit that attracted amicus briefs. Today we highlight Military-Veterans Advocacy, Inc. v. Secretary of Veterans Affairs. In this case, Military-Veterans Advocacy, Inc. appeals a denial of rulemaking by the Secretary of Veterans Affairs that would have sought to extend the presumption of herbicide exposure to veterans who served on Guam from January 9, 1962, through December 31, 1980; Johnston Island from January 1, 1972 until September 30, 1977; and American Samoa. Two amicus briefs support MVA on appeal. This is our argument preview.
In its opening brief, MVA first argues it has “standing to bring this petition for judicial review of the Secretary’s denial” by “associational standing.” On the merits, MVA contends “[t]he Secretary’s denial of MVA’s petition was contrary to law because it was based on an impermissible interpretation of the Agent Orange Act” given that it “conflicts with the plain text of the Act, its purpose, and its history.” MVA also contends the Secretary’s interpretation “renders a key statutory term surplusage, it ignores the legislative and historical records, and it conflicts with VA’s own regulations.” MVA also argues that “[t]he Secretary’s denial of MVA’s petition was arbitrary and capricious” because it “lacked a rational factual basis in this record.”
In his response brief, the Secretary of Veterans Affairs notes that “[a]n agency decision not to institute a requested rule may only be overturned in ‘the rarest and most compelling of circumstances.’” Here, while the Secretary refused to create a presumption of exposure, “the lack of a presumption would not foreclose veterans from proving herbicide exposure in their individual claims.” The Secretary explains that he “declined to institute a broad-based presumption where the record did not support making that finding.” Moreover, the Secretary argues, while “MVA disputes the Secretary’s determination, . . . MVA fails to prove how the Secretary’s explanation does not satisfy this Court’s ‘extremely limited’ and ‘highly deferential’ standard of review.” Finally, the Secretary contends, attacks by the MVA regarding how the Secretary gives weight to evidence lacks persuasion and fails to “show how the Secretary’s decision to credit certain credible evidence over less persuasive evidence amounts to one of these ‘rarest and most compelling of circumstances’ that warrants judicial intervention.”
In its reply brief, MVA reiterates three of its arguments. First, it contends it “has standing to bring this petition.” Second, it argues, “VA adopted an erroneous statutory interpretation.” Third, MVA contends, due to the lack of any “rational connection between the evidence before the Secretary and his factual determination,” the Secretary’s action “is arbitrary and capricious action under the Administrative Procedure Act.”
Therese Terlaje, the Speaker of the Guam Legislature, filed an amicus brief in support of the petitioner. In it, Terlaje argues that “[t]he VA’s refusal to engage in rulemaking here rests on two flawed premises.” First, she argues, “the statutory definition of herbicide agent is fully satisfied here” by use of commercial herbicides. Second, Terlaje argues, application of “the VA’s ‘official record’ requirement is unreasonable” because the “VA is not authorized to ignore facts simply because no official government record contains them.” In the case, she contends, “[t]he diversity of these sources—veterans’ affidavits, historical records, a Superfund investigation, and more—testifies to the strength of the evidence.”
The Association of the U.S. Navy also filed an amicus brief in support of the petitioners. The Association argues, first, that “the Secretary has overlooked the volume of facts in the record and decisions made by the Board.” Second, it contends, the Secretary “cites evidence that is improper to consider.”
This case will be argued on Thursday, December 9. We will report on developments.