Opinions / Panel Activity

In June, the Federal Circuit issued its opinion in Military-Veterans Advocacy Inc. v. Secretary of Veterans Affairs, a case we have been following because it attracted an amicus brief. In this case, Military-Veterans Advocacy petitioned the Secretary of Veterans Affairs to issue a rule that would presume Agent Orange herbicide exposure for veterans who had served during specified periods in Guam or Johnston Island. After VA denied MVA’s petition, MVA petitioned the Federal Circuit to set aside VA’s denial and remand the case for rulemaking. In an opinion authored by Judge Prost and joined by Judges Newman and Cunningham, the Federal Circuit denied MVA’s petition. This is our opinion summary.

Judge Prost presented the facts of the case:

The U.S. military sprayed over 17 million gallons of herbicides over the Republic of Vietnam during the Vietnam War. Dubbed “Operation Ranch Hand,” this operation had two main objectives: (1) defoliate trees and plants to improve visibility for further military operations, and (2) destroy enemy food supplies.

Agent Orange was the primary herbicide used in Operation Ranch Hand. . . .

Concerns about the health effects of veterans’ exposure to Agent Orange led Congress to pass the Agent Orange Act of 1991, Pub. L. No. 102-4, 105 Stat. 11. For veterans who “served in the Republic of Vietnam” during a specified period, the Act presumes exposure to an herbicide agent containing 2,4-D or dioxin. 38 U.S.C. § 1116(f). It also presumes (for those same veterans) service connection for certain diseases associated with herbicide-agent exposure, such as non-Hodgkin’s lymphoma and soft-tissue sarcoma. Id. § 1116(a)(2).

The VA has since issued regulations extending similar presumptions to other groups of veterans. For example, in light of Department of Defense (“DoD”) information that herbicides were applied near the Korean demilitarized zone (“DMZ”), the VA presumes herbicide-agent exposure for veterans who served during a specified period “in a unit that, as determined by the [DoD], operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period.” 38 C.F.R. § 3.307(a)(6)(iv); see Herbicide Exposure and Veterans With Covered Service in Korea, 74 Fed. Reg. 36,640, 36,641, 36,646 (July 24, 2009) (proposed rule).

. . .

In December 2018, MVA petitioned the VA to issue rules presuming herbicide-agent exposure for veterans who served in Guam or Johnston Island during specified periods.

In the Federal Circuit’s opinion, Judge Prost addressed MVA’s two arguments in turn. First, MVA argued “that the VA’s rulemaking denial was ‘contrary to law’ for resting on an impermissible interpretation of the Agent Orange Act.” Judge Prost explained that “[t]he Agent Orange Act does not give presumptions to anyone other than those who ‘served in the Republic of Vietnam’—nor does it require the VA to do so.” Moreover, she elaborated by explaining that “[t]he VA looked to [the relevant] circumstances, compared them to Guam’s, found them not comparable, and ultimately declined to exercise rulemaking authority to extend a presumption to Guam.” Moreover, she concluded, “[t]hat comparison and judgment did not rest on any misconception about what the Act itself does.” As a result of these findings, the Federal Circuit concluded that “MVA has not shown that the VA’s decision was contrary to law.”

Second, MVA argued “that the denial ‘lacked a rational basis in this record’ and was therefore arbitrary and capricious.” The Federal Circuit was not persuaded by MVA’s “primary contention.” MVA had argued “that the VA erred by relying on the GAO’s and DoD’s findings of ‘no evidence’ of tactical herbicides there because those findings rested on the absence of official records documenting as much.” Judge Prost explained that VA “was determining whether the nature and extent of herbicide activity in Guam ‘warrant[ed] a presumption of exposure for all [v]eterans’ who served there during the relevant period.” Anyway, she indicated that the Federal Circuit was not convinced “that, in making that determination, it was arbitrary (or capricious, or irrational) for the VA to rely on the GAO’s and DoD’s no-evidence findings.” Moreover, as to MVA’s arguments regarding Johnston Island, the Federal Circuit found nothing in MVA’s petition for review that convinced the court that VA’s assessment that civilian contractors, not military personnel, were responsible for activities concerning the storage of Agent Orange drums was arbitrary or capricious.

In short, in this case the Federal Circuit held that MVA’s arguments concerning Guam and Johnston Island “simply do not overcome” the court’s “narrow, highly deferential standard of review,” given that the Federal Circuit asks “only whether the VA ‘employed reasoned decisionmaking in rejecting the petition.’”

As a result of its analysis, the Federal Circuit denied MVA’s petition for review.