[00:00:03] Speaker 04: The two cases we have consolidated for argument this morning are 16-1782 and 16-1793. [00:00:12] Speaker 04: Gray versus Secretary of Veterans Affairs and Blue Water Navy Vietnam vets versus Secretary of Affairs. [00:00:20] Speaker 04: Please proceed. [00:00:23] Speaker 05: Thank you. [00:00:24] Speaker 05: Good morning, Your Honors. [00:00:25] Speaker 05: I'm Michael Wildhover representing Mr. Gray. [00:00:28] Speaker 05: And with me at council table is Shannon Brewer with the law firm of Hill and Ponton. [00:00:33] Speaker 05: The Secretary's revised definition of... Help me. [00:00:37] Speaker 02: I'm confused as to what I'm supposed to be doing here, okay? [00:00:40] Speaker 02: Let's assume for the moment that this amendment to the manual is reviewable. [00:00:47] Speaker 02: But the problem that I see is there's no official explanation of why the changes to the manual were made the way they were. [00:00:58] Speaker 02: nor is it clear what the record is that we're supposed to be reviewing the manual on the basis of. [00:01:09] Speaker 02: That seems to me to be a problem. [00:01:11] Speaker 05: I would agree, Your Honor, but you have review authority under 502. [00:01:15] Speaker 05: This is what the Secretary did. [00:01:19] Speaker 02: Well, we have review authority, but we don't know why. [00:01:22] Speaker 02: We have no official explanation of why the manual was amended the way it was, which makes it very difficult [00:01:31] Speaker 02: to review the manual amendment. [00:01:33] Speaker 02: I mean, maybe we can review it facially to see if it's facially arbitrary and capricious, but I don't see how we can really review the reasons why this was done the way it was because we have no official statement of the reasons. [00:01:51] Speaker 05: It would seem to me that that would be inherently a reason for the court to find the procedure, the rule that they created arbitrary and capricious. [00:02:01] Speaker 05: this case can't be. [00:02:02] Speaker 02: Why shouldn't this be done by a rulemaking? [00:02:04] Speaker 02: The VA started a rulemaking in 2008 and truncated it after Haas, the veterans petition for rulemaking which was denied, you went to the wrong court to review it. [00:02:17] Speaker 02: In effect there was a request for a rulemaking. [00:02:22] Speaker 02: Why isn't the proper approach here to seek a rulemaking and if the [00:02:28] Speaker 02: VA turns it down to come to us for review of that action? [00:02:35] Speaker 05: What the VA did in this case can't be taken, can't be looked at out of context of the Veterans Court's decision in Gray v. McDonald. [00:02:45] Speaker 05: That was the whole reason this rulemaking was done. [00:02:48] Speaker 05: That case invalidated the Secretary's definition of inland waters. [00:02:56] Speaker 05: and told them specifically in the holding that they were to go back and rewrite it. [00:03:01] Speaker 05: So in effect, that was the rulemaking, the direction for the rulemaking. [00:03:06] Speaker 05: And unlike a veteran... But there wasn't a rulemaking. [00:03:11] Speaker 02: I mean, not a formal notice and comment rulemaking. [00:03:13] Speaker 02: I mean, these are difficult issues. [00:03:16] Speaker 02: There's a lot of conflicting views here, a lot of material. [00:03:20] Speaker 02: I mean, usually those are resolved in a notice and comment rulemaking. [00:03:24] Speaker 02: But the Secretary didn't do that, Your Honor. [00:03:26] Speaker 03: I mean, isn't that your point? [00:03:28] Speaker 03: Do you want us to find this change to be invalid because they didn't go through the rule? [00:03:32] Speaker 05: Exactly, Your Honor. [00:03:34] Speaker 05: I mean, the whole point was that the Court of Veterans' Appeals told them that they needed to go back and use their expertise and their fair and considered judgment to rewrite this rule consistent with the regulation. [00:03:48] Speaker 02: But you didn't ask for a formal notice in common rule. [00:03:51] Speaker 02: I mean, you're not appealing from the denial of a rulemaking petition. [00:03:55] Speaker 05: Well, I don't see why that was necessary, Your Honor, with all due respect, if the Court of Appeals for Veterans Claims told the VA to do it. [00:04:05] Speaker 02: Well, they didn't tell them to conduct a rulemaking. [00:04:10] Speaker 02: They suggested that they shouldn't look at this. [00:04:14] Speaker 02: They had no authority to order them to conduct a rulemaking, and I don't see that they did. [00:04:20] Speaker 05: That was the whole opinion in the Gray case, was that the court [00:04:24] Speaker 05: throughout their rule, their definition of inland waters, and in effect did order them to redo it. [00:04:32] Speaker 05: That's the holding in the case. [00:04:34] Speaker 05: It's a precedent opinion. [00:04:35] Speaker 05: The secretary didn't appeal. [00:04:37] Speaker 05: Instead, in the documentation of the rulemaking procedure that they engaged in, they acknowledged that what they published was required by the court's holding in Gray. [00:04:53] Speaker 02: It just strikes me that this is the wrong way to go about it, because we need a definitive record as to what the facts are, and we need an explanation from the Veterans Administration as to why this has been crafted the way it is. [00:05:11] Speaker 05: Which is exactly the problem, Your Honor. [00:05:14] Speaker 05: That's why we brought this petition. [00:05:15] Speaker 02: So why don't you petition for rulemaking? [00:05:22] Speaker 05: I honestly, Your Honor, I don't see the efficacy of that when the court of veterans' appeals told them to do this, and then they did it. [00:05:30] Speaker 05: They could have chosen to comply with the APA, which we say they should have done. [00:05:35] Speaker 05: They didn't do that. [00:05:37] Speaker 05: They didn't put it in the Federal Register and give people an opportunity to comment on it. [00:05:43] Speaker 05: I can guarantee you if they had done that, there would be plenty of comments about it. [00:05:48] Speaker 05: But we can't make the agency do things that it doesn't want to do. [00:05:53] Speaker 02: Well, you can. [00:05:54] Speaker 02: You can petition for rulemaking. [00:05:55] Speaker 02: And if they turn you down, seek review in this court. [00:06:03] Speaker 05: I understand your point, Your Honor. [00:06:04] Speaker 05: But again, coming from the viewpoint of a veteran trying to get his claim granted, and when you have this Court of Veterans Appeals decision, [00:06:15] Speaker 05: that clearly instructed the VA to do this in a certain way, and then they didn't do it and produced a rule that is binding on everyone. [00:06:26] Speaker 02: Well, if we leave the VA opinion in the Veterans Court that way, then the relief for noncompliance with the mandate, if that's your argument, belongs in the Veterans Court and not with us, right? [00:06:41] Speaker 05: Well, this process is available. [00:06:43] Speaker 05: Congress made it available to veterans. [00:06:45] Speaker 05: And it's a faster process. [00:06:46] Speaker 05: Indeed, we're here before hopefully getting the ruling on this rule. [00:06:53] Speaker 03: So the status of Mr. Gray's case is that now it goes back to the RO who has to apply this new rule. [00:07:01] Speaker 05: Right. [00:07:02] Speaker 05: Well, no, actually, it went back to the Board of Veterans' Appeals. [00:07:06] Speaker 05: And the Board of Veterans' Appeals applied the new rule, continued the denial. [00:07:10] Speaker 05: And we have appealed that to the Court of Appeals for Veterans Claims. [00:07:13] Speaker 05: However, it's in the very early stages. [00:07:16] Speaker 05: And we will make this. [00:07:17] Speaker 05: And in fact, I just remembered that case has been stayed pending the outcome of this case here. [00:07:24] Speaker 05: Because this ruling about the legitimacy of the definition of inland waters would settle this case. [00:07:30] Speaker 05: And in fact, the Secretary is moving to stay all similar cases. [00:07:36] Speaker 04: And that's another reason that the similar cases being other individual complaints that are proceeding. [00:07:40] Speaker 05: That are with the same factual pattern, that they were on ships that went into bays and harbors in Vietnam. [00:07:47] Speaker 05: And the secretary is saying that that doesn't constitute service on inland waters. [00:07:53] Speaker 05: And there are a number of those. [00:07:55] Speaker 04: But you said that they were seeking to stay those cases. [00:08:00] Speaker 04: Stay those cases. [00:08:01] Speaker 05: I'm aware of several cases where they moved the court of [00:08:04] Speaker 05: to stay pending the outcome of this case here at the Federal Circuit, specifically this case, because it would be dispositive of all those cases. [00:08:14] Speaker 05: And that would be another reason to bring this 502 petition, because it's not just Mr. Gray. [00:08:21] Speaker 05: There are hundreds, thousands perhaps, of other similarly situated Vietnam veterans that are in the same situation. [00:08:31] Speaker 02: But how can we decide whether [00:08:33] Speaker 02: The amendment to the manual is arbitrary and capricious without knowing, having some formal decision by the VA explaining why it did what it did, which we don't have, right? [00:08:46] Speaker 05: Well, no, we do have that, Your Honor. [00:08:49] Speaker 05: They produce documents as part of the... Where's the explanation? [00:08:54] Speaker 05: It's in the appendix. [00:08:56] Speaker 02: No, no, no. [00:08:56] Speaker 02: What documents? [00:08:57] Speaker 02: All there is is a fact sheet, but it doesn't explain what they're doing. [00:09:05] Speaker 05: I agree, exactly. [00:09:07] Speaker 05: That being said, they're still applying this rule. [00:09:14] Speaker 05: To them it's a rule, and it binds all of their adjudicators. [00:09:18] Speaker 04: So is your view that based on what Judge Dyke is raising, the absence of that explanation just should mean that you should win because it is arbitrary, because they can't explain it? [00:09:29] Speaker 05: Exactly, Your Honor. [00:09:31] Speaker 05: That's a perfect explanation of what kind of remedy we think we should get. [00:09:35] Speaker 03: Do we even need to get to the arbitrary and capricious question if we conclude that they should have gone through the formal rulemaking process? [00:09:42] Speaker 05: Yes, Your Honor. [00:09:43] Speaker 05: You don't need to do that. [00:09:44] Speaker 05: That's one remedy. [00:09:46] Speaker 03: So there's two different options in terms of what you're requesting. [00:09:50] Speaker 03: Right. [00:09:50] Speaker 03: Correct. [00:09:51] Speaker 03: One is to say they should have gone through formal rulemaking, and so therefore this rule is invalid. [00:09:57] Speaker 03: The other option is to go all the way down to the road to say it's arbitrary and capricious because they didn't explain themselves. [00:10:04] Speaker 05: Exactly. [00:10:05] Speaker 03: And because they just threw a line. [00:10:07] Speaker 05: Right. [00:10:07] Speaker 05: And in addition to that, then they also have to go back and do the notice and comment so that they get the right information [00:10:15] Speaker 05: on which to base their rule. [00:10:20] Speaker 05: I might not be the correct person to talk to about that. [00:10:28] Speaker 05: My colleague Mr. Wells who is representing the Blue Water Veterans [00:10:31] Speaker 05: He may know more about that because his organs. [00:10:33] Speaker 02: Let's stick with your case for the moment. [00:10:35] Speaker 02: You say they should have held a rulemaking, but isn't it unfair to say that they should have held a rulemaking if you didn't raise that issue and that contention before the VA in the course of this proceeding? [00:10:49] Speaker 02: The Veterans Court did that, Your Honor. [00:10:52] Speaker 03: And there was a separate request for rulemaking, was there not, in the case that went before the DC Circuit? [00:10:59] Speaker 05: Again, that's a Blue Water organization. [00:11:01] Speaker 05: issue and Mr. Wells might be better. [00:11:04] Speaker 03: You did request a rulemaking on what constitutes inland versus offshore. [00:11:08] Speaker 05: I'm not exactly sure what they sought in that piece of litigation. [00:11:13] Speaker 02: Whatever they sought there, that case is over. [00:11:16] Speaker 02: Yes. [00:11:16] Speaker 02: They sought review in the wrong court and the time is run to seek review of that petition for rulemaking now. [00:11:25] Speaker 05: I see my time is into my rebuttal. [00:11:38] Speaker 01: Good morning, Your Honors. [00:11:40] Speaker 01: Oh, here we go. [00:11:42] Speaker 01: Looks like 30 minutes here. [00:11:44] Speaker 01: No, it's not. [00:11:47] Speaker 04: They'll get to 15 in a minute. [00:11:52] Speaker 01: Roger. [00:11:52] Speaker 01: 15. [00:11:52] Speaker 01: All right. [00:11:55] Speaker 01: Good morning, Your Honors. [00:11:56] Speaker 01: Commander John Wells for the Blue Water Navy Vietnam Veterans Association. [00:12:00] Speaker 01: It's Judge Dick to answer your question, initial question. [00:12:03] Speaker 01: There's a couple of issues why we filed the 502. [00:12:06] Speaker 01: First of all, [00:12:07] Speaker 01: In the Haas case, it specifically said the M-21 was an interpretive manual and notice and comment rulemaking was not required. [00:12:14] Speaker 02: Secondly, as... Did you ask for a notice and comment rulemaking in connection with the manual amendment? [00:12:21] Speaker 01: We did not. [00:12:22] Speaker 01: And again, based somewhat on Haas, but the other issue is we had made a request for rulemaking, which you'll find in the supplemental appendix. [00:12:32] Speaker 01: or we had made a request on the VA, which they treated as a request for rule making. [00:12:37] Speaker 01: That was in 2011? [00:12:38] Speaker 01: That's 2013, I believe. [00:12:39] Speaker 01: 2013. [00:12:40] Speaker 01: Double check. [00:12:41] Speaker 01: And that led to the DC case. [00:12:44] Speaker 01: One of the reasons why we filed the DC case is because there was confusion in our mind, although perhaps not in the DC court's mind, as to whether or not this would even be a 502 case. [00:12:56] Speaker 01: I know the VA argued successfully that we could have pursued it under 502. [00:13:01] Speaker 01: And when this new regulation came out, that's why we decided to take the 502 approach. [00:13:05] Speaker 01: We have a separate request for rulemaking, which is pending. [00:13:10] Speaker 01: And unfortunately, it's not part of the record, because it's not part of this case. [00:13:13] Speaker 01: But a separate request for rulemaking asked that two of the harbors down on Harbor and Nha Trong Harbor, Mr. Ruskin and I actually met with the secretary on that just a couple of weeks ago. [00:13:24] Speaker 01: And that is pending. [00:13:24] Speaker 04: We don't know what they're going to do. [00:13:27] Speaker 01: Do you recall when you filed that request? [00:13:28] Speaker 01: I want to say it was, uh, [00:13:31] Speaker 01: It was sometime in 2016, I believe it was the summer of 2016. [00:13:35] Speaker 04: I'm trying to remember, in Haas, was the similar argument, was this disputed when, you're right, I mean, the Haas opinion says, no, we don't want to notice and comment rulemaking, this is an interpretive rule, right? [00:13:47] Speaker 01: Yes, ma'am. [00:13:48] Speaker 04: And you were disputing that, that was part of the issue, the dispute that arose with respect to the Haas. [00:13:52] Speaker 01: Well, actually, I was not the lead counsel on Haas, I was NVLSP. [00:13:56] Speaker 01: We filed an amicus brief on factual issues dealing with the [00:14:00] Speaker 01: hydrological effects and the desalination process. [00:14:06] Speaker 01: My experience in how I got into this is I was an engineer on a number of those ships, and as a retired commander, I became kind of the technical expert on what the water does and what it does once it goes into the distilling plant. [00:14:20] Speaker 01: But that's the background of why we did what we did, is Haas had convinced us that [00:14:29] Speaker 01: we did not have to ask for notice and comment. [00:14:32] Speaker 01: In fact, our separate rulemaking request is just on the two harbors for that sole purpose, because we have a different set of evidence concentrated on just those two harbors that we don't have on the others. [00:14:43] Speaker 02: Would anybody be better off if we had a notice and comment rulemaking in which you could put in your evidence and we could get an actual official explanation as to why they're doing what they're doing? [00:14:56] Speaker 01: I agree, Your Honor, but that would make [00:14:59] Speaker 01: you would have to do some sort of a departure from Haas to do that, or at least that would be our interpretation is you would have to depart from Haas. [00:15:06] Speaker 03: I was pretty shocked to see the government's arguments in the D.C. [00:15:11] Speaker 03: Circuit because they appear to be directly at odds with what they're arguing here. [00:15:15] Speaker 01: We noticed that, Your Honor. [00:15:16] Speaker 03: So the government argues that what you should have done is come to us under 502, and now they're saying that you can't come to us under 502. [00:15:23] Speaker 03: And they said that these substantive manual changes actually fall within the bounds of our jurisdiction under 502, right? [00:15:30] Speaker 01: Yes, ma'am. [00:15:31] Speaker 01: We used to call that catch 22 with a vengeance. [00:15:33] Speaker 03: Right. [00:15:33] Speaker 03: So I was trying to figure out, does that mean that they're somehow judicially stopped from making the alternative argument here? [00:15:39] Speaker 03: But I can't tell what the basis for the DC judgment was. [00:15:44] Speaker 03: I can't tell whether the DC court actually relied upon that argument that the government made for purposes of its ultimate ruling. [00:15:52] Speaker 01: I think that was in their final opinion. [00:15:56] Speaker 01: It was either in the district court or the public court. [00:15:59] Speaker 01: I'm sorry. [00:15:59] Speaker 01: It's been a while. [00:16:01] Speaker 01: That was kind of the secondary reasoning, is that we had the 502 option. [00:16:05] Speaker 01: The primary reasoning was that the Veterans Tradition Reform Act actually blocked us from going into the Federal District Court. [00:16:17] Speaker 01: That we had to come, basically, we had to come to you. [00:16:20] Speaker 01: Now, that was obviously pre-monk, where the aspect of a class action suit could be brought in the Court of Appeals of Veterans Claims. [00:16:31] Speaker 01: that was on anybody's radar at that time. [00:16:33] Speaker 03: But even if that's ultimately available, that's something that's way down the road. [00:16:38] Speaker 03: Yes, ma'am. [00:16:39] Speaker 03: So the government keeps finding ways to kick this issue down the road, even though they're continuing to apply this new policy. [00:16:49] Speaker 01: Well, you're exactly right. [00:16:51] Speaker 01: And the problem we have is we have about 90,000 Blue Water Navy veterans that we've not been able to get coverage of. [00:16:57] Speaker 01: We started at 174,000. [00:16:59] Speaker 01: Some are getting older, some are dying. [00:17:04] Speaker 01: And it's become a significant issue. [00:17:08] Speaker 01: We have bills in Congress with wide bipartisan support that have been basically stymied because of the cost issues under the Pay As You Go Act. [00:17:17] Speaker 01: And what I understand and I appreciate, you know, there's some confusion on, at least in my head, [00:17:26] Speaker 01: on what the right place to file and how we file it. [00:17:30] Speaker 01: As we continue to go with this, these folks are dying every day. [00:17:33] Speaker 01: And we're trying to push here where we can. [00:17:36] Speaker 01: Like I say, Mr. Bruskin and I have met with the secretary. [00:17:39] Speaker 01: We're pushing it in Congress. [00:17:40] Speaker 01: And we're pushing it into the court. [00:17:43] Speaker 01: I've got another one coming up through the Court of Veterans Appeals, or Court of Appeals for Veterans Claims. [00:17:47] Speaker 01: But Judge O'Malley, we've got to do something for these veterans. [00:17:52] Speaker 01: And if you want to make a decision, [00:17:54] Speaker 01: against us, certainly we would respect that, but at least we'd have a decision for them. [00:17:59] Speaker 03: We can be sympathetic all we want, but we can't make a decision that's inconsistent with the law just because it's better policy. [00:18:09] Speaker 01: I might suggest to Your Honors that as we look at this rule as it came out, and there was a fact sheet with it, again that's in the supplemental appendix, [00:18:20] Speaker 01: I think even on the face of the rule, you can say it's not in consonance with the original Code of Federal Regulations or the officer general counsel's opinion came out. [00:18:29] Speaker 01: Because notably in those opinions, they indicated that a veteran had to be covered or should be covered if they were within the boundaries of the nation of Vietnam. [00:18:40] Speaker 01: And as you look at these harbors, and the harbors is a completely different set of hydrological dynamics than it was in Haas. [00:18:48] Speaker 01: You look at these harbors, and you've got the posts over there, but even on page 51 of your appendix, you've got an area that's surrounded by three sides by land. [00:18:57] Speaker 01: There's no question that Vietnam exercised sovereignty over those harbors up until the time that the Republic fell. [00:19:04] Speaker 01: They are, by definition, by treaties which we've signed and ratified, natural basin harbors. [00:19:12] Speaker 02: And it seems to me to be a different argument. [00:19:15] Speaker 02: What you're really saying is that the [00:19:18] Speaker 02: drinking water on these ships was contaminated by dioxin. [00:19:22] Speaker 01: It was. [00:19:22] Speaker 02: And as a result of that, the VA ought to recognize that the presumption applies there. [00:19:28] Speaker 02: But the difficulty, I've got to find something to review. [00:19:34] Speaker 02: And do you view Haas as telling the government they don't have to conduct a rulemaking? [00:19:40] Speaker 02: I don't read Haas that way. [00:19:43] Speaker 02: It seems to me what Haas says is that this [00:19:46] Speaker 02: provision of the manual is not invalid for failure to have a rulemaking, but it's not saying that if they were presented with a rulemaking petition, that they wouldn't be compelled to do that. [00:19:58] Speaker 01: I don't read Haas as saying that they cannot respond to rulemaking petition. [00:20:04] Speaker 01: I read Haas as saying that, you know, absent such a petition, they don't have to do it on a sui sponte basis, very much like, and actually, if you remember, in April of 2018, or 2016, [00:20:16] Speaker 01: 2008, they did come out with a proposed rule. [00:20:21] Speaker 01: They never made it a final rule because Haas basically said you don't have to follow 553. [00:20:25] Speaker 02: That's right. [00:20:29] Speaker 01: But that's why, again, if you're looking for something to tie your hat to or tie a line to, on the law, if you look just at the interpretation of the general counsel, of the Code of Federal Regulations, which talks about [00:20:44] Speaker 01: the veteran being within the land border. [00:20:46] Speaker 01: I mean, I agree with you. [00:20:47] Speaker 01: We're making different alternative arguments. [00:20:50] Speaker 01: But on this one issue, these ships in these harbors were within the natural boundaries of Vietnam. [00:20:59] Speaker 01: I don't think there's anybody in the world that can say that Da Nang Harbor was not subject to Vietnamese sovereignty anymore. [00:21:08] Speaker 01: We can say that Chesapeake Bay was not subject to United States sovereignty. [00:21:13] Speaker 02: Yeah, I don't think that's your best argument. [00:21:18] Speaker 01: I don't think that's your best argument. [00:21:22] Speaker 03: You have to go all the way back to what is it that [00:21:26] Speaker 03: you're asking that we interpret, or that the VA is interpreting. [00:21:29] Speaker 03: And they're interpreting the language in the statute that says the Republic of Vietnam. [00:21:33] Speaker 03: Right. [00:21:34] Speaker 03: And in Haas, the Haas court said, OK, well, perhaps the Congress was legislating against the backdrop of what sovereignty was recognized. [00:21:44] Speaker 03: But perhaps it was also legislating against the backdrop of an already existing regulation that differentiated between offshore waters and Vietnam. [00:21:55] Speaker 01: I understand that. [00:21:57] Speaker 01: harbors are not offshore waters. [00:21:59] Speaker 01: And that's where the arbitrary and capriciousness of it comes in. [00:22:02] Speaker 01: And what was reasonable in Haas, or arguably reasonable in Haas, as to the effects in offshore waters is unreasonable in the harbors, which are big mixing bowls with Agent Orange coming out through the rivers and constantly being churned up from a shallow water harbor by the maritime traffic, the boats, [00:22:25] Speaker 01: the anchoring evolutions, the shooting of the guns, and things of that nature. [00:22:29] Speaker 01: Not to mention the fact that in Dunong Harbor, at least, they were getting contaminated water from a place called Monkey Mountain that was brought up to the ship. [00:22:38] Speaker 03: But do you need to argue that the drinking water was impacted? [00:22:40] Speaker 01: That's correct. [00:22:41] Speaker 03: There was actually dioxin on the deck of the ships. [00:22:45] Speaker 01: We said that there was dioxin on the deck of the ships due to wind drift, but the primary was through the drinking water. [00:22:51] Speaker 01: And, you know, they would bring in the distillation system, [00:22:53] Speaker 01: They used it for boiler feed water and for potable water. [00:22:57] Speaker 01: Even if they didn't make potable water in a harbor, it certainly contaminated the entire system. [00:23:02] Speaker 01: And I'm running away into my rebuttal time. [00:23:06] Speaker 01: Thank you. [00:23:21] Speaker 00: May it please the court. [00:23:22] Speaker 00: I'd like to start with Judge Dyke's questions about what is reviewable here and whether or not this is the proper venue for hearing this. [00:23:30] Speaker 00: And the government agrees that the reason why administrative staff manuals are excluded from 502 review as a practical matter is that there is no formal explanation set forth in a Federal Register notice for this court to review, which results in an appendix that cobbles together the decisional documents [00:23:51] Speaker 00: and fact sheets and other documents of the nature that does set forth the VA's position. [00:23:56] Speaker 00: But we agree, it's not a formalized position as would be in the Federal Register. [00:24:00] Speaker 03: Well, how do you deal with what you said to the DC Circuit? [00:24:03] Speaker 03: I mean, it's pretty shockingly different than what you said here. [00:24:07] Speaker 03: And I admit that it didn't come up till the reply brief, so you haven't had a chance to respond. [00:24:11] Speaker 03: But I mean, those arguments were pretty on point and said, this should be a 502 question. [00:24:17] Speaker 00: Respectfully, we disagree with that sort of definitive point. [00:24:20] Speaker 00: The argument made in the district court in the D.C. [00:24:23] Speaker 00: Circuit was that under 511, the district court did not have jurisdiction. [00:24:27] Speaker 03: And what the government said was, to the extent that this policy is reviewable, and the court recognized it wasn't... You said it's clearly, and you said because it's been published in the Federal Register and we've got all of this information out there, they should be going to the Federal Circuit under 503. [00:24:45] Speaker 00: to challenge the policy that was upheld in Haas. [00:24:48] Speaker 00: But what they did not specifically challenge was the administrative staff manual in this case. [00:24:53] Speaker 00: And so in the district court case, they were not arguing about whether or not an administrative staff manual, the M21, was reviewable by the district court. [00:25:02] Speaker 00: So the government didn't go in and say, oh, you're challenging the same thing as you're challenging in the Federal Circuit. [00:25:08] Speaker 00: That should be in the Federal Circuit. [00:25:09] Speaker 00: All it said was to the extent. [00:25:11] Speaker 00: And the district court said it's unclear what they're challenging here. [00:25:15] Speaker 00: They seem to just be challenging the policy that was at issue in Haas. [00:25:19] Speaker 00: And it cites a number of documents that set forth that policy and said it's not clear what exactly is being challenged. [00:25:25] Speaker 00: They said to the extent that there is any jurisdiction, 511 divests the district court. [00:25:31] Speaker 00: And so if there is jurisdiction to review this policy, it's in the federal circuit. [00:25:35] Speaker 00: And we don't disagree that there are proper ways that this court could review the M21, in fact, [00:25:42] Speaker 02: But the problem with the whole M21 thing is you don't have an explanation from the VA as to why it did what it did, nor do we know what the real record is on which we should be reaching a judgment. [00:25:55] Speaker 02: The petitioners appear to agree that the best way to do this is by notice and comment rulemaking. [00:26:03] Speaker 02: Is the government resisting that? [00:26:05] Speaker 02: Why not have a notice and comment rulemaking to resolve these things? [00:26:11] Speaker 00: The VA's position is that there was notice and comment rulemaking when it set forth its interpretation of 1116 in the regulation, and that when it is providing instructions... The regulation that was originally adopted years ago doesn't tell us very much. [00:26:26] Speaker 02: It doesn't really address the issues that we're concerned with now, particularly the drinking water thing. [00:26:31] Speaker 02: That wasn't considered at that time. [00:26:33] Speaker 02: You know, there's a significant issue that's been raised here. [00:26:37] Speaker 02: What's going to happen? [00:26:39] Speaker 02: What's going to happen with the [00:26:40] Speaker 02: the current rulemaking petition. [00:26:42] Speaker 02: Is that, you know, when are we going to get a decision about that? [00:26:47] Speaker 00: I'm not aware exactly when that petition is going to come out, but that petition will have with it a full reviewable decision by the agency, which is what we suggested would have been appropriate in this case because of the effect that the agency's decision to publish this in the manual. [00:27:03] Speaker 00: The manual here, at issue here, did not change the policy. [00:27:08] Speaker 00: clarified its instructions to the adjudicators in Haas. [00:27:11] Speaker 03: Well, it did change the policy. [00:27:13] Speaker 03: Come on. [00:27:13] Speaker 03: Before, there were specific bays and harbors that were included in the policy, that if they were in those waters, then they were covered. [00:27:22] Speaker 03: And now, after the Veterans Court said you need to actually have some basis for drawing these lines, you then said, OK, we're going to draw a line and exclude all those bays and harbors that used to be covered, and we're going to draw a line across water. [00:27:36] Speaker 03: I mean, that is a change in policy, is it not? [00:27:38] Speaker 00: Well, I would suggest it's not. [00:27:40] Speaker 00: And I would suggest that the Haas Court found the policy is the foot on land policy. [00:27:45] Speaker 00: And the problem that resulted after Haas was that the instructions to the RO adjudicators was not clear enough. [00:27:52] Speaker 00: So that it did include two bays and harbors, but there was no explanation for why those were included. [00:27:57] Speaker 03: Well, how do the rivers constitute foot on land? [00:28:02] Speaker 00: Because the foot on land policy is tied, as the Haas Court noted, [00:28:06] Speaker 00: The spraying of the Agent Orange with the dioxin was the appropriate proxy for the presumption, and the spraying took place over inland waters as well as over land. [00:28:16] Speaker 03: But there's still no foot on land if you're only on the waters. [00:28:21] Speaker 00: Right, but the interpretation of 1116 as including inland waters was [00:28:26] Speaker 00: upheld in Haas. [00:28:27] Speaker 00: And so that's the policy at issue. [00:28:29] Speaker 04: But Haas is not clear, explicit, as to whether their reference to inland waters included the harbors or bays or not. [00:28:36] Speaker 00: Correct. [00:28:37] Speaker 00: It did not expressly discuss that. [00:28:38] Speaker 03: But what it does discuss... It was only talking about the deep water. [00:28:42] Speaker 03: It actually used the phrase, deep water offshore. [00:28:45] Speaker 00: It did that because that's where Mr. Haas served. [00:28:47] Speaker 00: But the analysis... Right. [00:28:48] Speaker 03: The courts can only decide the facts before them if they're in an individual case, which is what Haas was. [00:28:53] Speaker 00: But the analysis that they were conducting was on the foot on land policy. [00:28:56] Speaker 00: And there's references in the Haas decision to waters adjoining the coastline. [00:29:01] Speaker 00: And the discussion of the over and under inclusiveness of the presumption discusses specifically someone who's stationed directly offshore, directly off the land, who they recognize may have. [00:29:12] Speaker 04: So you think that Haas resolved the question of inland waterways and whether or not basin harbors are included? [00:29:19] Speaker 00: Yes, Your Honor. [00:29:21] Speaker 00: The policy is foot on land to include inland waterways. [00:29:24] Speaker 02: Yeah, but it didn't resolve the particular issues, the line drawing that's involved here and whether that's arbitrary and capricious in light of the potential drinking water contamination and so on. [00:29:35] Speaker 02: Are those issues raised in the current petition for rulemaking? [00:29:40] Speaker 00: The current petition for rulemaking does raise those issues, I believe, with respect to two bays and harbors, but I think it's tied to the use of a reservoir near those bays. [00:29:50] Speaker 00: And so it's not a one-for-one, but certainly as the court noted in 2013 the military veterans advocates did file a petition for rulemaking and could have sought review of this policy with respect to Bays and Harbors, so Not in the decision itself no, but in the in the m21 at issue in that case there was a [00:30:15] Speaker 00: an indication of what the VA considered to be inland waters. [00:30:19] Speaker 00: It just wasn't clearly defined enough. [00:30:21] Speaker 04: But after Haas, UNO included at least two bays or harbors in terms of being available. [00:30:27] Speaker 04: So I don't understand what you're telling us. [00:30:29] Speaker 04: I mean, you're telling us that as of Haas and based on what Haas said, that included the rule now that we're talking about, the manual now, that it ends at the line? [00:30:40] Speaker 04: If that were the case, then why were you covering the bays and harbors after Haas? [00:30:44] Speaker 00: Well, that's why the M21 instructions were tossed, because there was not a good reason for including those two bays, because the line upheld in Haas was the geographic land border of Vietnam, because that's where spray missions started. [00:30:59] Speaker 00: And that's really the basis for the decision in Haas. [00:31:02] Speaker 00: And so the VA recognized that's why they didn't appeal the Gray decision, because there was not a reasoned basis for having included those two bays [00:31:11] Speaker 00: that related to the likelihood of exposure. [00:31:13] Speaker 03: But drawing a line across water is a reasoned basis? [00:31:16] Speaker 00: There is. [00:31:16] Speaker 00: As the record demonstrates, although not in a formal way, the VA has reviewed all of the military history and the scientific history and the medical history with respect to... How can I consider that? [00:31:29] Speaker 02: That strikes me as ridiculous. [00:31:31] Speaker 02: You have no formal decision for us to review. [00:31:35] Speaker 02: and you say, oh, well, they've reviewed this. [00:31:37] Speaker 02: That sounds like a description of the internal processes of the agency. [00:31:40] Speaker 02: We can't review that. [00:31:42] Speaker 00: Right, Your Honor. [00:31:42] Speaker 00: And that's why actions under 552A2C and administrative staff manuals are not within this court's 502 jurisdiction. [00:31:51] Speaker 03: So here's the problem. [00:31:51] Speaker 03: You're saying that if it's a manual, you can do anything you want, and it's completely nonreviewable. [00:31:58] Speaker 03: But how do you deal with all the case law that says, [00:32:01] Speaker 03: The first inquiry is whether what's in the manual is really a substantive versus an interpretive analysis. [00:32:08] Speaker 03: Are you saying we should throw out all that caseload? [00:32:11] Speaker 00: No, Your Honor, but the fact is that the Haas Court found the M21 provisions at issue here. [00:32:16] Speaker 00: They've been amended, but the original to be interpretive. [00:32:19] Speaker 00: And under the 2015 Supreme Court in Paris, the Court said even if an agency completely changes its interpretation of a regulation, [00:32:27] Speaker 00: If it was an interpretive rule to begin with, it is an interpretive rule unless the agency decides to publish it under notice and comment. [00:32:35] Speaker 00: And so here, where there is not a complete reversal of the position, Perez counsels that this is an interpretive rule, not a substantive rule. [00:32:44] Speaker 00: And the fact that it was published in the administrative staff manual as a choice the agency is entitled to make, it has certain effects. [00:32:51] Speaker 00: The effect on this court's jurisdiction is it divestits from direct review on 502, [00:32:56] Speaker 00: That's not to say that this court can't review it if a petition for rulemaking is filed and denied, or that it can't review it in the context of a benefits appeal like Haas. [00:33:06] Speaker 00: And I would assume, like Gray's case, if he were to lose at the Veterans Court. [00:33:11] Speaker 03: And that's basically another couple years before we can get to that. [00:33:16] Speaker 00: It's possible. [00:33:16] Speaker 00: There are two cases pending right now that would, I believe, challenge the M21 provisions. [00:33:23] Speaker 04: Are those the ones that the government has tried to stay? [00:33:26] Speaker 00: No, those are before this court right now, so they're not state. [00:33:29] Speaker 03: And what cases are those? [00:33:30] Speaker 00: They're Procopio, which my colleague, Mr. Wells, is... There's an unbond petition on HAAS, and there's another one, Tana, I believe, are the two cases. [00:33:39] Speaker 00: T-A-I-N-A, that Mr. Carpenter is... Say it again. [00:33:43] Speaker 00: Tana, I believe. [00:33:44] Speaker 00: I don't know how to... Say it again. [00:33:47] Speaker 00: T-A-I-N-A. [00:33:48] Speaker 00: How did those cases arise? [00:33:49] Speaker 00: There are appeals from decisions from the Veterans Court. [00:33:52] Speaker 00: Individuals. [00:33:52] Speaker 00: Individuals, benefit appeals. [00:33:55] Speaker 00: And so just like in HAAS, where the M21 provisions were reviewed by this court, they can be reviewed when they're applied to veterans' claims and those claims arise to this court. [00:34:06] Speaker 00: And the benefit of doing it that way, either a petition for rulemaking where you will have a reasoned formal decision by the agency or in a benefit stream appeal is that there will be lower court decisions and positions from the agency that can be easily reviewed by this court and the court won't have to [00:34:24] Speaker 00: take on a record where there has been no formal process, and there are things like fact sheets to the public. [00:34:29] Speaker 04: Well, do those individual cases necessarily, do the record in those cases include all of the studies upon which the Vietnamese administration has relied in coming up with this pursuit? [00:34:39] Speaker 00: I don't know. [00:34:39] Speaker 00: I mean, the cases are fairly early. [00:34:42] Speaker 00: But I would expect that they wouldn't have entirely all of the evidence. [00:34:46] Speaker 00: But a petition for rulemaking, in theory, would require citation to the specific evidence. [00:34:52] Speaker 00: To be fair to the VA in this instance, they did go back and review the evidence from the IOM that is directly related to the issues here. [00:35:01] Speaker 00: So it's not like they simply decided to draw a line and called it a day. [00:35:05] Speaker 00: They went through the evidence, they spoke to experts in the VHA, and they asked them to [00:35:10] Speaker 00: advise on this. [00:35:11] Speaker 03: I think there's a fair debate as to how much they really went through the science or the evidence, but that's a different issue. [00:35:18] Speaker 03: Let me go back to your interpretation of Haas, because I thought that the manual provision that Haas was talking about, separate from the regulation, the manual provision, had to do with the Vietnam Service Medal. [00:35:30] Speaker 03: And in that case, they said that manual provision was interpretive. [00:35:36] Speaker 03: And that's the manual provision that was an issue in Haas, not [00:35:40] Speaker 03: the not a manual provision that drew lines with respect to inland and waterways. [00:35:46] Speaker 00: Well, I mean, the receipt of the Vietnam Service Medal was the way in which VA was instructing its adjudicators on how to determine. [00:35:54] Speaker 03: It's a lot easier to call something like that interpretive because there's nothing in the statute that talks about receiving a Vietnam Service Medal. [00:36:02] Speaker 03: That was something that was just a practice that the VA used as a shortcut. [00:36:08] Speaker 00: Right, but the characteristic of the provision that rendered an interpretive was not what it said specifically, it was what it was doing. [00:36:16] Speaker 00: It was providing an interpretation of the agency's rule as set forth in the regulation. [00:36:22] Speaker 03: You're saying every time the agency decides what comes within the bounds of a regulation or a statutory provision, that every time they decide what comes within the bounds of that, that's purely interpreted. [00:36:37] Speaker 00: It is interpretive, yes, under this court's case law in Guerra and the Supreme Court's decision in Perez and Guernsey. [00:36:44] Speaker 00: The question is, where do they publish it? [00:36:46] Speaker 00: If they choose to publish it in the Federal Register, then it is reviewable because it would be under 552A1. [00:36:51] Speaker 00: So it would be within this court's 502 jurisdiction. [00:36:54] Speaker 00: But where they choose to put it in an administrative staff manual, it is not. [00:36:58] Speaker 02: And there are practical... That can't be the test. [00:37:00] Speaker 02: I mean, if you fail to publish it, it's still reviewable if you should have published it in the Federal Register. [00:37:06] Speaker 02: And does the government agree that the manual amendments here are binding on the adjudicators? [00:37:13] Speaker 02: They're binding on the adjudicators. [00:37:15] Speaker 02: Okay, well that's different from what the court in Haas said, where it said that this was not binding, it just provided guidance. [00:37:23] Speaker 00: Well, I mean, it's not binding on the board, but it is binding on the adjudicators. [00:37:27] Speaker 00: And I don't recall the government taking a different position than Haas. [00:37:32] Speaker 02: Well, I don't know that the government took a different position. [00:37:34] Speaker 02: But what the court said is that it simply provided guidance on how to adjudicate the cases that did not define the boundaries of the TVA's legal responsibility with precision. [00:37:47] Speaker 02: So it seemed to rest in court on the notion that the manual wasn't binding on the adjudicators, whereas now you agree that it is. [00:37:56] Speaker 00: I'm not sure I read that section you just read as saying it's not binding on the adjudicators. [00:38:01] Speaker 00: It's simply not a formal statement of the agency's position as would be something published in the Federal Register. [00:38:11] Speaker 03: So you think the agency gets to decide [00:38:12] Speaker 03: what's reviewable by this court by they can make the most dramatic change in the world, but as long as they don't bother to tell the public in the federal register, then it's not reviewable. [00:38:24] Speaker 00: Not necessarily. [00:38:25] Speaker 00: There could be. [00:38:25] Speaker 00: I'm not saying that simply put it. [00:38:27] Speaker 00: Well, I think you could go that far. [00:38:30] Speaker 00: That's right. [00:38:30] Speaker 00: The reading of 502, which is very specific to actions referred to in 552A1, renders actions under 552A2C not reviewable by this court. [00:38:42] Speaker 00: Publishing something in an administrative staff manual has impacts on the agency. [00:38:46] Speaker 00: It does not have the force and effect of law. [00:38:48] Speaker 03: It has the impacts on everyone that comes before the agency. [00:38:52] Speaker 00: Right. [00:38:52] Speaker 00: But just because it has a substantial impact does not render it substantive. [00:38:57] Speaker 00: The court in Perez, the agency decision there completely reversed a prior interpretation. [00:39:03] Speaker 00: And the court said, even though there's a significant change, if it was done through an interpretive rule, [00:39:08] Speaker 00: It does not render it substantive simply because it has a significant impact. [00:39:12] Speaker 00: Moreover, the language of 552A2C is administrative staff manuals and instructions to staff that affect a member of the public. [00:39:21] Speaker 00: So if the effect of an action that's in an administrative staff manual could render it substantive, then there would be no agency actions in the M21 that essentially that would fall under 552A2C rendering it essentially superfluous with respect to the Veterans Court. [00:39:38] Speaker 00: That's not the appropriate way to read this. [00:39:41] Speaker 03: The agency accepts... Why is the agency trying so hard to be so stingy with respect to this presumption that Congress clearly thought was important for these veterans? [00:39:52] Speaker 00: It's not that the agency is being stingy. [00:39:54] Speaker 00: It's that the, you know, a veteran needs to demonstrate entitlement to disability benefits. [00:40:01] Speaker 03: The whole point of the presumption is that they can't. [00:40:03] Speaker 00: Right. [00:40:04] Speaker 00: But the interpretation by the VA of the Agent Orange Act is that where there has been demonstrated evidence of spraying as a proxy for exposure, the agency, as directed by Congress, will make it easier, will provide a way to prove exposure for those veterans. [00:40:23] Speaker 00: But the idea that all veterans are entitled to, [00:40:27] Speaker 00: this presumption, and it's the agency's burden to pull it back from a certain that's not... Does payment for this come out of the general appropriations to the Veterans Administration? [00:40:36] Speaker 00: You mean if they were to change the policy? [00:40:38] Speaker 00: Payment to veterans who make claims under age and warrant? [00:40:42] Speaker 00: I believe so, yes, Your Honor. [00:40:48] Speaker 00: Unless the Court has further questions about the merits or any of the other issues, we'd respectfully ask this Court to [00:40:55] Speaker 00: dismiss these petitions and- Let me do ask you one question about arbitrary and capricious. [00:41:02] Speaker 03: Assuming we get to that. [00:41:05] Speaker 03: I really have a hard time with the notion that drawing a line across the mouth of a river where the water on this side of the line has all covered veterans and the water on this side of the line does not. [00:41:17] Speaker 03: How is that not arbitrary by definition? [00:41:20] Speaker 00: Well, I mean, the court has recognized that presumptions are necessarily under and over inclusive. [00:41:27] Speaker 00: The whole point of a presumption is you can't tell with granularity who was exposed and who was not. [00:41:33] Speaker 00: And so lines always appear to be. [00:41:36] Speaker 03: But it was much easier to say that because the line that was being drawn there was much different. [00:41:41] Speaker 03: We're talking about way off shore. [00:41:43] Speaker 03: versus a line here between a river and a harbor. [00:41:47] Speaker 03: So they're not talking about this much difference between where the water is. [00:41:52] Speaker 00: Well, again, I would disagree that the court in Haas was thinking the line was miles offshore. [00:41:56] Speaker 00: But again, the description of the potential over and under inclusiveness in Haas was referring to someone in a boat directly off the coast for a long period of time versus someone who simply steps foot in Vietnam for five minutes and then leaves. [00:42:10] Speaker 00: And the court recognized that person who stepped foot would be entitled to the presumption [00:42:14] Speaker 00: and the person offshore would not. [00:42:16] Speaker 00: And I think they understood that there would be claims from people saying, look, I spent time right off the coast, and so shouldn't I be entitled to the presumption? [00:42:25] Speaker 03: But what's the coast? [00:42:27] Speaker 03: That's the problem. [00:42:28] Speaker 03: The coast didn't say what the coast was. [00:42:31] Speaker 03: The assumption there was that Vietnam was definable. [00:42:37] Speaker 03: And geographically, it's hard to say that these bays and harbors are not part [00:42:44] Speaker 03: of Vietnam? [00:42:45] Speaker 00: Well, I mean, using spraying as a proxy, which is what the VA did and what was upheld as the basis for the policy in Haas, the VA has repeatedly pointed out that the spray missions took place over land. [00:42:58] Speaker 00: So they did not start spraying over harbors. [00:43:00] Speaker 00: I mean, the Agent Orange is a defoliant, right? [00:43:02] Speaker 00: So it's only used where there are trees. [00:43:06] Speaker 00: And again, I would disagree that Haas did not recognize the fact that this line was being drawn along the geographic [00:43:13] Speaker 00: land border of the coastline. [00:43:16] Speaker 00: I mean, the reference in Haas repeatedly to boots on the ground, foot on the ground, is stepping foot in Vietnam. [00:43:25] Speaker 00: And so we would argue that what the VA did following Gray was recognize, okay, in Haas, this is the line that was affirmed and is reflected in the policy at issue in Haas. [00:43:36] Speaker 00: And the question then is, [00:43:38] Speaker 00: Is there a basis for drawing this line somewhere else to include some other area because there is a comparable likelihood of exposure? [00:43:48] Speaker 00: And on review of the medical and scientific evidence, the VA concluded that it is not. [00:43:53] Speaker 00: And I would just remind the court that the standard of review is quite narrow. [00:43:57] Speaker 00: It's just whether or not there is a rational connection between the facts found and the choice made. [00:44:03] Speaker 00: And so even if this court would look at some of the evidence and find that it doesn't [00:44:07] Speaker 00: meet the preponderance of the evidence test, or they believe that the policy should be different. [00:44:10] Speaker 00: What evidence? [00:44:11] Speaker 02: There's no record. [00:44:13] Speaker 02: You're asking us to make a judgment on something which really isn't before us in any formal way. [00:44:21] Speaker 02: I don't see how we can say that the VA was, even assuming that the manual is reviewable, I don't see what the basis is for making a decision one way or the other as to whether what the VA did was rational. [00:44:36] Speaker 02: And nor did Haas decide the drinking water question, correct? [00:44:40] Speaker 02: Haas did not address drinking water. [00:44:42] Speaker 02: Well, it did address it. [00:44:43] Speaker 02: It didn't decide it. [00:44:44] Speaker 02: It's on page 1194. [00:44:46] Speaker 02: OK. [00:44:47] Speaker 00: No, I agree, Your Honor. [00:44:48] Speaker 00: That's why we argue, first and foremost, that this case should be dismissed so that this issue can reach the court in the proper manner with a more fulsome record to demonstrate exactly the DA's reasoning. [00:44:59] Speaker 03: But that could have happened if you all had just done rulemaking instead of doing this in the manual. [00:45:05] Speaker 00: But the agency is not obligated to do this via rulemaking because it did it via an interpretive rule in the agency manual the first time around. [00:45:14] Speaker 00: It was not obligated to do this in the Federal Register. [00:45:17] Speaker 00: It could have chosen to do so, but in the interest of getting this done quickly and making sure that the adjudicators had the updated policy, they chose to do it this way. [00:45:26] Speaker 00: And it has practical effects on the agency, as I noted. [00:45:29] Speaker 00: But that does not divest this Court from [00:45:32] Speaker 00: jurisdiction to review a properly raised petition for review of these provisions. [00:45:40] Speaker 00: Thank you, Your Honor. [00:45:47] Speaker 05: Thank you. [00:45:49] Speaker 05: I would posit that the Secretary is obligated to do a rulemaking for provisions that's in M21.1 if it's a substantive rule. [00:46:02] Speaker 05: And that's exactly what this was. [00:46:04] Speaker 02: The problem I'm having is you didn't argue to the VA in this proceeding that they were obligated to conduct a notice and comment rulemaking. [00:46:16] Speaker 02: And my memory of your brief is not all that clear. [00:46:21] Speaker 02: But correct me if I'm wrong. [00:46:24] Speaker 02: I don't recall that you argued that we should reverse here because there was a failure to hold a notice and comment rulemaking. [00:46:32] Speaker 05: We did, Your Honor. [00:46:33] Speaker 05: It was in, it was our subsection, our section, our second section to the, to the brief. [00:46:39] Speaker 05: We did say that they violated the Administrative Procedures Act by failing to publish notice and comment. [00:47:04] Speaker 05: 26 of Mr. Gray's brief. [00:47:12] Speaker 03: Yes, Your Honor. [00:47:20] Speaker 05: And we made that argument in the reply brief even more clear based on the government's argument about that. [00:47:27] Speaker 05: And I also would like to point out that [00:47:31] Speaker 05: It isn't just boots on the ground. [00:47:33] Speaker 05: That's not the rule that the VA has adopted when it interpreted the regulation. [00:47:40] Speaker 05: Inland waters are included. [00:47:44] Speaker 05: They interpreted the regulation to include inland waters. [00:47:48] Speaker 05: Inland waters doesn't require anybody on those waters to step foot on the ground. [00:47:55] Speaker 05: What Haas said about the regulation was that presence [00:47:59] Speaker 05: equals exposure. [00:48:01] Speaker 05: Not spraying equals exposure. [00:48:05] Speaker 05: Spraying hit the ground, hit trees, it was washed into rivers from the rain and floods, and that's how it contaminated the rivers. [00:48:14] Speaker 05: And that's why the VA a long time ago said that veterans serving on the inland waters was included in the definition of somebody that was in Vietnam. [00:48:28] Speaker 05: And [00:48:30] Speaker 05: The government just referenced the Institute of Medicine studies. [00:48:34] Speaker 05: In the record at 232, the Institute of Medicine said that estuarine waters were contaminated because of what the Navy's river forces did to spray the banks of the rivers. [00:48:51] Speaker 05: It wasn't just, doesn't mean that they stepped foot on the river bank. [00:48:54] Speaker 05: It just means that the contamination was in the water. [00:48:57] Speaker 05: Well, by definition, [00:48:58] Speaker 05: scientific definition, geographic terms, whatever you want to call it, bays and harbors are estuarine waters. [00:49:08] Speaker 05: It's where, by definition, that's where saltwater and freshwater meet and mix it up. [00:49:15] Speaker 05: Those are parts of the estuarine waters. [00:49:19] Speaker 05: And the Institute of Medicine has said at 232 that those types of areas were contaminated. [00:49:27] Speaker 05: I see my time is about up if there's anything else. [00:49:30] Speaker 05: Thank you. [00:49:38] Speaker 01: Your Honor, forgive my poor memory. [00:49:39] Speaker 01: Appendix 157 is our letter to the General Counsel until I have 2015 on this issue asking that they actually determine the boundaries based on the 1958 Convention on the Territorial Seas and the Contiguous Zone. [00:49:55] Speaker 01: And that is where we draw the line. [00:49:57] Speaker 01: And I think that would constitute a request for rulemaking. [00:50:00] Speaker 01: It didn't say specifically request for rulemaking, but it certainly did ask for a rule. [00:50:04] Speaker 01: Judge O'Malley, I noted your questions on the arbitrary and capriciousness. [00:50:11] Speaker 01: And yes, the agency is stingy. [00:50:12] Speaker 01: That seems to be the problem. [00:50:14] Speaker 01: They've overestimated. [00:50:16] Speaker 01: And Chief Judge Prost, it does come out of appropriations if the government or the secretary designates [00:50:23] Speaker 01: Uh, this is mandatory spending. [00:50:24] Speaker 01: Otherwise it has to go through the CBO, uh, uh, if it's a congressional act and it's, uh, subject to an offset of other veterans benefits under the pay as you go act of 2010. [00:50:38] Speaker 01: Yes, ma'am. [00:50:39] Speaker 01: Okay. [00:50:39] Speaker 01: Uh, judge O'Malley, you know, your question I think was well, uh, stated on, uh, where we draw the line because effectively the same molecule of water. [00:50:49] Speaker 01: that is considered contaminated inside the mouth of the river. [00:50:53] Speaker 01: Once it goes outside, it is not. [00:50:55] Speaker 01: If you look at the Da Nang Harbor on, I believe it's appendix 51, you'll see the river. [00:51:01] Speaker 01: If you stick the bow of the ship in the river, you get the presumption of you're anchored right off the mouth of the river. [00:51:05] Speaker 01: You don't. [00:51:06] Speaker 01: That was one of the issues that Gray had with this whole thing and why they found the secretary's position irrational. [00:51:14] Speaker 01: What the government refuses to acknowledge but is before you, [00:51:19] Speaker 01: in appendix, starting at appendix 57 is the fact that the Agent Orange was in Nha Trong Harbor 20 years after the war. [00:51:32] Speaker 01: The dioxin was found. [00:51:33] Speaker 01: They found it in the Kay River. [00:51:35] Speaker 01: They found it in transects coming out from the discharge plume of the Kay River. [00:51:40] Speaker 01: And they found it still in toxic levels 20 years after the war. [00:51:43] Speaker 01: The VA will tell you, gee, we can't do, we don't know whether or not it was toxic enough, but in that report, it shows the toxicity levels. [00:51:54] Speaker 01: It also shows lower levels where the rainwater wash off would have washed it off into the harbor. [00:52:01] Speaker 01: It was there, and if it was there and not drowned, it was there in every harbor. [00:52:04] Speaker 01: The natural forces are the same. [00:52:06] Speaker 01: It was mixed with petroleum, JP-4, to be precise, and was actually [00:52:12] Speaker 01: JP-4, like all petroleum, will float. [00:52:14] Speaker 01: It floats into the rivers. [00:52:16] Speaker 01: We sprayed the riverbanks. [00:52:17] Speaker 01: It's washed into the riverbanks. [00:52:19] Speaker 01: Rivers run out to sea. [00:52:21] Speaker 01: Once it gets into the harbor, some of it emulsifies, falls to the bottoms, and the maritime operations there, the maritime traffic, anchoring, cavitation propellers, shooting the guns, small boats back and forth, constantly stir that up where it goes into the [00:52:36] Speaker 01: distillation suction, which is usually about anywhere from 8 to 10 feet below the waterline on a ship. [00:52:44] Speaker 01: That's how it got in there. [00:52:46] Speaker 01: And if you look at the numbers and figures in Nha Trong Harbor, and remember that one, that's 20 years after the war and there's been some half-life deterioration, and two, the enrichment factor of the distillation plants that's found by the Australians, who, by the way, grant the benefits, and as confirmed by two separate committees of the Institute of Medicine, [00:53:05] Speaker 01: The last IOM committee found the enrichment factor was a factor of 10. [00:53:10] Speaker 01: Now, I understand you have some limited powers here, but, you know, as we've said, the sage advice of Marbury versus Madison, if you have a right, and I think that these folks have a right to the benefits, there has to be a remedy. [00:53:25] Speaker 01: We went to the district court first because we weren't sure. [00:53:27] Speaker 01: And frankly, part of the reason we went to the district court was to find out. [00:53:33] Speaker 01: And it was a 50-50 proposition, which one we tried first. [00:53:37] Speaker 01: We went to the district court. [00:53:38] Speaker 01: They said, go to the Federal Circuit. [00:53:40] Speaker 01: So we're coming to you, and we're asking that you grant the remedy. [00:53:44] Speaker 01: I am over time. [00:53:44] Speaker 01: I apologize for that. [00:53:46] Speaker 01: One of the things on expertise is I probably have some naval expertise, being around for 22 years, and hydrological expertise. [00:53:55] Speaker 01: If you have any questions, I'd be happy to answer them. [00:53:59] Speaker 04: Thank you. [00:54:00] Speaker 01: Thank you, Your Honor.