Argument Recap / Panel Activity

In December, the court heard oral argument in Military-Veterans Advocacy, Inc. v. Secretary of Veterans Affairs, a case arising from the Department of Veterans Affairs. We have been following this case because it attracted two amicus briefs in support of the petitioner, Military-Veterans Advocacy, Inc. MVA challenges 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. Judges Newman, Prost, Cunningham heard last month’s argument. This is our argument recap.

James Anglin Flynn argued for MVA. Judge Prost quickly asked if veterans who did not physically serve in Vietnam are covered by the current interpretation of the Agent Orange Act. Flynn noted this is correct. Flynn then highlighted how he seeks a determination that the Secretary of Veterans Affairs erred in failing to initiate rulemaking in this narrow case. Judge Prost followed up with a question about the governing standard of review. Flynn argued the standard here is no deference for rules of law.

Flynn argued there were two errors of law that compel rulemaking in this case.

First, Flynn argued, there should not be any distinction between tactical and commercial herbicides for those seeking benefits from exposure. He accepted the idea that there is great support for providing relief for exposure to tactical herbicides, but, he argued, there is no basis to exclude benefits for exposure to conventional herbicides. In particular, he noted, the statute denotes herbicides by composition and conventional herbicides use the same molecules as the tactical variety.

Judge Prost asked how there is support for finding a nexus between Vietnam and the other locations. Flynn argued there is support for a nexus to Vietnam from Guam, Johnston Island, and American Samoa because 38 U.S.C. § 1116(a)(3) allows for benefits to those places in support of operations in Vietnam, not just those places in Vietnam. Flynn argued, moreover, that over time the VA has created regulatory presumptions to expand Agent Orange Act coverage to those things in support of operations, such as pilots or people cleaning planes that dropped herbicide. Flynn noted that the Secretary denied rulemaking for the provided reason that conventional herbicides were not included under the Act. But, Flynn argued, under the statute there is no distinction between tactical and commercial herbicides.

Second, Flynn argued, small-scale spraying on the other islands was enough to warrant granting a presumption of exposure. Judges Newman and Prost asked why small-scale exposure should apply to anyone stepping foot in Guam, Johnston Island, or American Samoa given that there is an individual method of proving exposure that a veteran can use to obtain benefits without the blanket presumption. Flynn argued by the language of the statute any veteran in one of these locations with a nexus to support operations in Vietnam should be eligible for the presumption of benefits under the Act via rulemaking.

Meen Guo Oh argued for the Secretary of Veterans Affairs. Judge Prost asked why the Secretary is not compelled to complete rulemaking. First, Oh argued, evidence must be present and reviewed by the Secretary (using a deferential standard) to determine if herbicide exposure is pervasive enough to warrant a broad-based presumption of exposure. Second, Oh maintained, a claim must be hard to prove on an individual basis. Oh argued that these two factors were considered by the Secretary. Indeed, Oh noted, the Secretary had the results of a Department of Defense review that was exhaustive and found no evidence of broad and pervasive exposure.

Judge Cunningham asked Oh to comment on whether the tactile and conventional herbicides were the same, as contended by Flynn. Oh argued that Flynn’s position fails to take into account the potency or diluted nature of some herbicides. In response, Judge Prost noted how the other side argues the statute simply notes chemical compounds that are present in both types of herbicides and not the potency. Oh directed the court to the Act’s language and argued it limits the definition of herbicide to use in Vietnam, which, she argued, means this is not a question of statutory interpretation and is simply evidentiary. Oh contended that the exhaustive reports and anecdotal evidence does not prove pervasive exposure.

Judge Prost asked how rulemaking to include those that touched particular airplanes is different from this case. Oh argued this rulemaking was not a required by statute, but maintained that the circumstances of Agent Orange being sprayed by these planes led the agency to initiate rulemaking to protect service members when there was evidence of pervasive exposure. Oh argued this case is different because this case does not have substantial evidence of use of a toxic herbicide that was pervasive enough to warrant rulemaking.

Judge Cunningham asked about standing. Oh maintained that associational standing looks to be “barely” met in this case because affidavits are included only for service members from Guam. Oh said he would defer to the court to evaluate associational standing, but highlighted that the government is not opposing standing in this case.

In rebuttal, Flynn argued that the two factors needed for the Secretary to initiate rulemaking are met due to the exposure levels found via water aquifers on the islands. Flynn also argued that the evidence used by the Secretary only looked for Agent Orange usage, while use of chemical-equivalent Agent Blue on the islands is substantiated by eyewitness accounts. Finally, Flynn argued, there was an error by the Secretary in statutory interpretation by not including conventional herbicides. He maintained, moreover, that any doubt should allow the pro-veteran canon to apply and cause the statute to be read broadly.

We’ll continue to monitor the case and report on any developments.