[00:00:00] Speaker 05:
zero one seven dash one eight two one.

[00:00:03] Speaker 05:
Procopia versus.

[00:00:36] Speaker 05:
Mr. Wells, please proceed.

[00:00:38] Speaker 04:
Good morning, Your Honors.

[00:00:40] Speaker 04:
May it please the Court, I'm Commander John Wells, U.S.

[00:00:42] Speaker 04:
Navy retired.

[00:00:43] Speaker 04:
I represent the veteran Procopio.

[00:00:45] Speaker 04:
Every time we have a blue water case, the question of Haas comes up, and I think it's important to see exactly what Haas was addressing.

[00:00:52] Speaker 04:
That bold line here about 100 miles off the mainland of Vietnam was the area that was thought to be restored in Haas, notably the original

[00:01:02] Speaker 04:
General counsel's opinion, which kind of started this mess, said that in order to be considered or presumed to be exposed, had to serve within the boundaries of the Republic of Vietnam.

[00:01:15] Speaker 05:
Is this an exhibit in this case?

[00:01:16] Speaker 04:
Yes.

[00:01:17] Speaker 04:
It's appendix 94, but it's not very clear.

[00:01:19] Speaker 04:
That's why we put this in.

[00:01:21] Speaker 04:
That's an understatement.

[00:01:23] Speaker 04:
Sorry.

[00:01:23] Speaker 04:
We took the actual record, and as we reproduced it and reproduced it, it just went away.

[00:01:29] Speaker 04:
You can see the two lines.

[00:01:31] Speaker 05:
So is the red line the 12-mile line, or what we would call the territory, including the territorial seas?

[00:01:38] Speaker 04:
Actually, the red line is what they call the baseline.

[00:01:41] Speaker 04:
Intersect the outermost islands of Vietnam to dash line 12 miles out from that.

[00:01:46] Speaker 04:
I personally checked the plotting, by the way.

[00:01:48] Speaker 04:
It is the territorial seas.

[00:01:51] Speaker 04:
But under the old Vietnam Service Medal line, which the VA recognized as a resumption,

[00:01:57] Speaker 04:
A ship up here in the Gulf of Tonkin where there was no spraying, we never sprayed off north, would have been presumed to have been exposed.

[00:02:04] Speaker 05:
Okay.

[00:02:05] Speaker 05:
But why don't we talk about why Haas versus Peake doesn't preclude us from getting to your argument in this case?

[00:02:15] Speaker 04:
Well, first of all, your honor, we do feel that Haas versus Peake was wrongly decided and based on a couple of things.

[00:02:21] Speaker 05:
First off, when you say wrongly decided as a panel,

[00:02:25] Speaker 05:
We can't necessarily challenge that unless you're telling me there was an issue they didn't consider, in which case it's not binding on this case court.

[00:02:33] Speaker 04:
There are several issues they did not consider.

[00:02:35] Speaker 04:
And quite frankly, they did not have the evidence that was developed since and brought to the court.

[00:02:41] Speaker 04:
And I would invite the court's review of starting at about 53 in the appendix and going through really to about

[00:02:54] Speaker 04:
Oh gosh, so about 129 in the appendix.

[00:02:57] Speaker 04:
We've been able to develop hydrologist statements, for example, which show that the Agent Orange did actually infiltrate into the South China Sea.

[00:03:07] Speaker 05:
But that has nothing to do with whether or not the words served in Vietnam ought to be interpreted as including the territorial seas or whether it ought to be foot on land only.

[00:03:23] Speaker 04:
Well, not brought up before Haas, but it has been brought up subsequently in the case below.

[00:03:29] Speaker 04:
The United States has actually recognized the territorial seas as part of the sovereign territory of the nation.

[00:03:36] Speaker 04:
They did that in the 1954 Geneva Accords, which we cited in the briefs.

[00:03:41] Speaker 05:
So part of that is your argument that when Congress

[00:03:45] Speaker 05:
passed this legislation saying served in Vietnam, it understood Vietnam to include the territorial seas by virtue of international law and recognition thereof.

[00:03:55] Speaker 04:
That's correct, Your Honor.

[00:03:56] Speaker 04:
Congress is presumed to know the law.

[00:03:58] Speaker 04:
Maybe that's not always the best assumption, but in this case, I think they did.

[00:04:01] Speaker 01:
Is there any legislative history that indicates that when Congress wrote service in the Republic of Vietnam, it was contemplating the law of the sea?

[00:04:12] Speaker 04:
Not specifically into the committee reports.

[00:04:14] Speaker 04:
We have talked with some of the people that were in Congress, Senator Grassley, for example, and who introduced a resolution that's still pending that says that that was the intent to include the territorial seas.

[00:04:26] Speaker 01:
And Your Honor, I think... What is the status of the bill about amending the statute to specifically include bays, harbors,

[00:04:38] Speaker 01:
territorial waters.

[00:04:39] Speaker 04:
I'm glad you asked that question because I was going to have to disclose that.

[00:04:43] Speaker 04:
Currently, the statute is, or excuse me, the bill is pending before the House Veterans Affairs Committee with 329 co-sponsors.

[00:04:53] Speaker 04:
We held a legislative hearing on it in April 2017.

[00:04:56] Speaker 04:
It was brought up for a markup, which is final passage in November the 2nd.

[00:05:01] Speaker 04:
Unfortunately, there's a problem with what they call the pay for or the offset under the Pay As You Go Act.

[00:05:08] Speaker 04:
There was a political issue, and it was tabled.

[00:05:11] Speaker 04:
It's being brought up again this coming Tuesday.

[00:05:14] Speaker 04:
In fact, I just saw this morning the revised bill, which actually includes a different method of paying for the bill.

[00:05:23] Speaker 04:
I can't guarantee you that it's going to be passed out of committee on Tuesday.

[00:05:28] Speaker 04:
The indications are that we believe it will be.

[00:05:31] Speaker 05:
OK, but why don't we get back to this case?

[00:05:33] Speaker 05:
Is it your view that Haas doesn't bind us because

[00:05:38] Speaker 05:
The Haas panel expressly said that the veteran waived and did not raise the pro-veteran canon, namely the statutory canon that says statutes ought to be construed when possible in light of the remedial nature of the veteran statute.

[00:05:55] Speaker 05:
And so that that issue is not off the table and that it opens the door since the court said it expressly did not

[00:06:01] Speaker 05:
decide that in the first case, that we can therefore revisit that statutory interpretation here?

[00:06:06] Speaker 04:
That is exactly correct, Your Honor, and I think we mentioned that in the briefs.

[00:06:08] Speaker 04:
We also had to look at, you know, your previous decision in Sears in 2003 seemed to limit that, but that was before Henderson, and Henderson has reaffirmed

[00:06:21] Speaker 04:
the pro-veteran canon of statutory structure.

[00:06:23] Speaker 05:
Let me be clear about something.

[00:06:24] Speaker 05:
Sears says that you can't use the pro-veteran canon to sort of trump at step two the agency's gap-filling authority.

[00:06:36] Speaker 05:
But what Sears doesn't say is that you can't apply the pro-veteran canon at step one and therefore determine the statute is not, in fact, ambiguous.

[00:06:45] Speaker 04:
That's exactly right, Your Honor.

[00:06:46] Speaker 04:
That was the second point I was going to make.

[00:06:47] Speaker 04:
And the other point I wanted to make is in Sears, it was basically

[00:06:51] Speaker 04:
Let's take the pro-veteran cannon, and that was the only thing going for the veteran.

[00:06:55] Speaker 03:
Here we have a wide body of hydrological evidence, military evidence, and even the Institute of Medicine, which shows... It's interesting that the carrier was within, and the log shows, within the 12-mile limit.

[00:07:13] Speaker 04:
Yes, sir.

[00:07:15] Speaker 04:
And what would happen is these carriers would turn into the wind.

[00:07:19] Speaker 04:
The wind was offsetting from Vietnam.

[00:07:21] Speaker 04:
So they would go in to launch and recover aircraft, or sometimes if an aircraft was shot up, they would go in to pick it up.

[00:07:29] Speaker 04:
But you're right, this is an excellent case in that respect because the LLONG actually says that they entered the territorial seas.

[00:07:36] Speaker 03:
Is there anything that shows when the distillers were running?

[00:07:41] Speaker 03:
Did they just go 24-7?

[00:07:43] Speaker 04:
Your Honor, they're 24-7.

[00:07:45] Speaker 04:
I was chief engineer on a number of those ships.

[00:07:48] Speaker 04:
The same distillation plants were used to make water for the boilers and potable drinking water.

[00:07:54] Speaker 04:
And especially off of Vietnam, you're in more of a tropical climate where you've got a very high sea injection temperature without trying to get too technical.

[00:08:04] Speaker 04:
That reduces your efficiency and makes water a problem.

[00:08:07] Speaker 04:
As an engineer on these ships, sometimes in the middle of the night, I was having to get hourly reports on the water situation.

[00:08:15] Speaker 04:
Water was my business, and it was a problem.

[00:08:18] Speaker 04:
Uh, the, uh, your honors, uh, I think that one of the things we've shown and was not available to Haas was the fact that, uh, there has been the infiltration into the South China Sea.

[00:08:35] Speaker 04:
If you look at, you know, appendix 107, uh, talked about off the Mekong Delta, the Mekong River, how the.

[00:08:44] Speaker 03:
So that brown water is coming out into the.

[00:08:47] Speaker 03:
into the South China Sea goes for a long... It certainly goes through the 10-mile long... Definitely.

[00:08:54] Speaker 04:
No question.

[00:08:55] Speaker 04:
And, you know, as Mr. Bruskin said in his brief, you know, you have to serve in the estuarine.

[00:09:00] Speaker 04:
Well, the estuarine goes way out.

[00:09:02] Speaker 03:
And, in fact, here... It looks like, from the log, that the vessel is actually going through past the Mekong Delta.

[00:09:16] Speaker 03:
That's right.

[00:09:17] Speaker 03:
And within that 10-mile limit, it looks like it's going right through that brown plume.

[00:09:22] Speaker 04:
Yes, Your Honor.

[00:09:22] Speaker 04:
And off the Mekong, it will actually go out past the territorial seas, past the Vietnam servicemen area.

[00:09:29] Speaker 04:
The Chen report in there says that it'll go out several hundred kilometers in about two weeks.

[00:09:38] Speaker 04:
So, you know, it's just no question.

[00:09:40] Speaker 01:
And that's... I guess just so I can keep things straight in my head, all of this data and test studies that you're explaining about brown water going into the blue water, that goes to the question of whether the VA's choice of interpreting the statute the way it did, foot on land, is reasonable or unreasonable.

[00:10:07] Speaker 01:
Is that right?

[00:10:08] Speaker 01:
That's correct, John.

[00:10:09] Speaker 01:
As opposed to the question of

[00:10:10] Speaker 01:
whether the statute itself, when it says service in the Republic of Vietnam, is inherently unambiguous, inherently clear, and necessarily includes territorial waters.

[00:10:24] Speaker 01:
I think there's two separate questions here.

[00:10:26] Speaker 04:
I think you're exactly right, Your Honor.

[00:10:28] Speaker 04:
And in the answer, both of them favor the veteran.

[00:10:32] Speaker 04:
Service in the Republic of Vietnam, when you factor in the recognition of the United States, would include the territorial seas.

[00:10:38] Speaker 04:
You know, even in Haas, went off on kind of a tangent, a Zang decision.

[00:10:42] Speaker 04:
But even in the underlying Code of Federal Regulations article in Zang said, territorial seas are part of the sovereign territory.

[00:10:49] Speaker 01:
How should we read what I'll just call Haas Part 2, which is the panel opinion's denial of the request for rehearing, where it explained that in Haas, the appellant did not raise the

[00:11:07] Speaker 01:
the pro-veteran claimant canon in the original appeal.

[00:11:13] Speaker 01:
And it raised it on request for rehearing, which was in the panel's view waived.

[00:11:19] Speaker 01:
But nevertheless, the panel went on and addressed the pro-veteran claimant canon and explained, I think it explained why it didn't feel like it would, if applied, create a different result.

[00:11:36] Speaker 04:
That's correct, Your Honor.

[00:11:38] Speaker 01:
So could you explain how we should think about that?

[00:11:41] Speaker 01:
I mean, on one level, it didn't address it in the first opinion, but it did address it in the second opinion and concluded that it wasn't going to, in this particular case, help the veteran.

[00:11:53] Speaker 04:
Yes, Your Honor.

[00:11:53] Speaker 04:
But you remember, that was based somewhat on the Sears opinion, and it was before the Henderson opinion, which came out in 2011.

[00:12:01] Speaker 04:
And I think you have to read what Haas said in light of Henderson.

[00:12:06] Speaker 04:
that in applying Henderson, I believe, had Henderson been decided before Haas, I think the Haas Court would probably have come to a different result.

[00:12:15] Speaker 01:
So is it your view that Sears is not good law in light of the Supreme Court's Henderson opinion?

[00:12:25] Speaker 04:
The issue with Sears was the only thing they had going for it was the pro-veteran claimant.

[00:12:31] Speaker 04:
Here in Procopio, we have a body of evidence in addition to the

[00:12:36] Speaker 04:
pro-veteran claim.

[00:12:37] Speaker 04:
And, Your Honors, I am into my rebuttal time.

[00:12:41] Speaker 05:
Yes, let me say that.

[00:12:42] Speaker 05:
Thank you very much.

[00:12:44] Speaker 05:
Thank you.

[00:12:44] Speaker 05:
Let's hear from Mr. Breskin.

[00:12:59] Speaker 00:
Good morning.

[00:13:00] Speaker 00:
May it please the Court?

[00:13:01] Speaker 03:
Mr. Breskin, if a U.S.

[00:13:03] Speaker 03:
naval vessel sails within

[00:13:06] Speaker 03:
12 miles of the shoreline of the Republic of Vietnam, the Democratic Republic of Vietnam.

[00:13:13] Speaker 03:
Is it the decision of the United States that that vessel is subject to the legal jurisdiction of the Democratic Republic of Vietnam?

[00:13:22] Speaker 00:
I don't know an exact answer, Your Honor.

[00:13:25] Speaker 00:
I think the question stems though from combining both defining the reach of the sovereignty of a nation

[00:13:33] Speaker 00:
with defining what the terms of the Agent Orange Act meant.

[00:13:38] Speaker 03:
When Congress passed the Agent Orange Act, they were not seeking... Well, no, you can answer my question whether that ship is in Vietnam or not.

[00:13:45] Speaker 00:
I believe it is considered in Vietnam for purposes of maritime jurisdiction and other purposes of international law.

[00:13:55] Speaker 00:
The Haas Court addressed this same argument in determining whether Congress's intent was clear enough.

[00:14:02] Speaker 00:
They looked at the legislative history.

[00:14:03] Speaker 00:
Mr. Haas suggested that there was a treaty that defined the sovereignty of Vietnam as including its territorial waters.

[00:14:11] Speaker 00:
And the court said there's no indication that Congress chose any of these competing methods for defining the phrase Republic of Vietnam in the Agent Orange Act.

[00:14:21] Speaker 00:
And therefore, it moved on to step two.

[00:14:22] Speaker 00:
Mr. Haas?

[00:14:24] Speaker 03:
But if Haas' court was incorrect, I may be presidential.

[00:14:29] Speaker 03:
That's a different question.

[00:14:30] Speaker 03:
But if it was incorrect about

[00:14:32] Speaker 03:
Step one, it never needed to get to step two.

[00:14:38] Speaker 03:
If that statute is clear, that in Vietnam means within the legal territory of Vietnam, including its offshore.

[00:14:46] Speaker 00:
If this court were to believe that it was clear, I believe it would need to overrule Haas-Ambank, because Haas determined that that statutory phrase was ambiguous.

[00:14:57] Speaker 05:
How determined the statutory phrase was ambiguous, but it expressly indicated that it did not take into account the pro-veteran canon.

[00:15:04] Speaker 05:
And that would be taken into account in the determination of whether it's ambiguous or not.

[00:15:09] Speaker 05:
All canons are taken into account in step one, not step two of Chevron.

[00:15:13] Speaker 00:
But step one of Chevron is looking at whether or not Congress's intent is clear from the language of the statute itself.

[00:15:21] Speaker 00:
So I'm not sure exactly where the pro-veteran canon would come into

[00:15:26] Speaker 00:
say that a language that is otherwise ambiguous becomes unambiguous.

[00:15:29] Speaker 03:
What an interesting argument you could make on behalf of drug smugglers who are apprehended within 12 miles of the United States shoreline.

[00:15:38] Speaker 00:
Except that if there is an indication in the laws that govern the jurisdiction of the United States, then that would be clearly applicable there.

[00:15:48] Speaker 00:
Here, the statute itself was not seeking to define Vietnam's jurisdictional reach or

[00:15:54] Speaker 00:
the powers that Vietnam would have over its waters, it was simply seeking to define which veterans can use presumption of exposure to herbicides.

[00:16:03] Speaker 00:
And that was based not on the sovereignty of the nation, which is completely unrelated to- Can you help us think through this pro-veteran claimant canon?

[00:16:12] Speaker 01:
I mean, I've seen the Supreme Court has referred to it as a canon of construction, which suggests that it's some tool for interpreting the statute.

[00:16:23] Speaker 01:
And so now it's one more tool of the many tools you use to try to understand the meaning of the statute.

[00:16:31] Speaker 01:
And so what is the government's view of how that applies in the context of statutes relating to veterans benefits?

[00:16:40] Speaker 01:
Are you saying that it

[00:16:41] Speaker 01:
really doesn't have any role to play?

[00:16:43] Speaker 00:
No, I think it's wrapped up into the Chevron step two review of the agency's interpretation.

[00:16:48] Speaker 01:
But I would assume you would agree that opinions like Sears, Terry, Dara, et cetera, all say that the pro-veteran claimant canon cannot override a reasonable agency interpretation of an ambiguous statute.

[00:17:06] Speaker 01:
Correct.

[00:17:08] Speaker 01:
So then the pro-veteran claimant canon really has no role if it doesn't have any role in step one, and I guess we've already said it has no role in step two.

[00:17:19] Speaker 01:
So what role does it really have?

[00:17:20] Speaker 00:
Well, the way the Haas court en bancs in denying the rehearing en bancs seemed to view it was it is something to factor in into determining whether or not how the agency has defined an ambiguous phrase is reasonable.

[00:17:33] Speaker 00:
They found that the VA's interpretation of the ambiguous statutory phrase was owed deference and was reasonable and was not overcome by the pro-claimant canon, because it would not necessarily result in a pro-veteran result in every instance.

[00:17:53] Speaker 00:
And they noted that the VA had already interpreted the ambiguous statutory language in a pro-veteran manner.

[00:18:00] Speaker 03:
Does their denial and in-banks

[00:18:01] Speaker 03:
prohibit us from applying a canon to determine the validity in step one?

[00:18:08] Speaker 00:
No, it's not binding on this court in the same way that the Haas panel decision is.

[00:18:13] Speaker 00:
But I think it is helpful and instructive that the court recognize it was waived, but then said, we're nevertheless going to look at this and determine whether or not it would have had an effect on the way we.

[00:18:24] Speaker 01:
So do you understand the denial of rehearing in Haas, that opinion?

[00:18:30] Speaker 01:
to be considering the pro-veteran claimant canon in the context of step two as to whether the VA's choice of interpreting the statute was reasonable.

[00:18:42] Speaker 01:
Yes, Your Honor.

[00:18:42] Speaker 01:
Okay, and then ultimately it said it was reasonable or it was going to defer to it and the fact that there was this canon didn't override it, although I guess you're saying that it still gets some consideration in the context of the overall

[00:18:56] Speaker 01:
question of reasonableness of the VA statutes.

[00:18:59] Speaker 00:
I believe that's correct, and I think that's with the unbound.

[00:19:01] Speaker 01:
But now that gets us back to Haas, nor any other case in this kind of context with VA benefit statutes, ever expressly talking about this canon in the context of what we can just call step one, in trying to figure out whether the statute

[00:19:20] Speaker 01:
is clear whether congressional intent is clear?

[00:19:23] Speaker 00:
As I stand here, I'm not aware of a case where the proclamant canon was used to take language that was otherwise viewed as ambiguous and render it unambiguous in favor of the veteran.

[00:19:38] Speaker 00:
And I would suggest that that use of it doesn't necessarily make sense, because the VA is in a position where they're interpreting ambiguous statutory phrases, and they are

[00:19:50] Speaker 00:
the experts at doing so, and they're empowered to do so.

[00:19:54] Speaker 00:
And so they're looking at what are the consequences of the different interpretations that we can give to statutory language.

[00:20:01] Speaker 00:
And so I think it is much better in the first instance to give the VA the opportunity to take that into account when it's considering how to interpret ambiguous statutory phrase than having the court do so in the first instance.

[00:20:14] Speaker 03:
And it's ambiguous.

[00:20:16] Speaker 02:
On the other hand, if we look at the language in Vietnam,

[00:20:20] Speaker 02:
And we say, well, it could be ambiguous, or it could be perfectly straightforward.

[00:20:25] Speaker 02:
And by the way, we have a canon of statutory construction, which tells us it should be looked at as unambiguous.

[00:20:32] Speaker 02:
We stop right there, don't we?

[00:20:35] Speaker 00:
You can.

[00:20:35] Speaker 00:
I mean, in some ways, that is what the Henderson court did.

[00:20:39] Speaker 00:
It said, you know, we find the plain meaning of this rule to be x. Oh, and by the way, this supports with the proclamative canon, but they didn't use it as the

[00:20:48] Speaker 00:
a tool of construction to take something they viewed as ambiguous.

[00:20:52] Speaker 00:
So I think to apply the pro-claiming canon here, the court would need to disagree with the Haas panel in that the language of section 1116 was ambiguous.

[00:21:02] Speaker 05:
Well, that's only if we agree with you that the canon is limited to step two.

[00:21:07] Speaker 00:
Correct, Your Honor.

[00:21:07] Speaker 05:
If we find that the canon is applicable at step one, then Haas doesn't bind this court, does it?

[00:21:18] Speaker 00:
I don't know the answer, Your Honor.

[00:21:20] Speaker 05:
Yes, you do.

[00:21:20] Speaker 05:
You just don't want to say it.

[00:21:21] Speaker 00:
Well, I mean, I haven't thought through that hypothetical, because Mr. Procopio.

[00:21:25] Speaker 00:
OK, well, think through it now.

[00:21:26] Speaker 05:
You've got six minutes and 35 seconds.

[00:21:27] Speaker 05:
I'd like the government's position on whether or not, if step one must consider pro-veteran canon, if that's where we find it applies and not in step two, then did the Haas Court decide the statute was ambiguous, and does that bind us under those circumstances?

[00:21:48] Speaker 00:
I suppose a panel decision would not, no, Your Honor.

[00:21:51] Speaker 00:
But I do think that the Court should take into account that the same panel, in a request for rehearing, noted that it would not have changed the result of their review, both with respect to 1116 or the VA's interpretation.

[00:22:07] Speaker 03:
The only question that Judge Moore posed was binding or not binding.

[00:22:13] Speaker 02:
That's either or, and you've already given your answer.

[00:22:19] Speaker 00:
Perhaps not, but I'm sort of now moving on to the next step, which is what would the court do with that predicate determination.

[00:22:25] Speaker 00:
And I would suggest that to some extent that issue hasn't been very well developed in the briefing here because Mr. Procopio was not, he was arguing that Haas in general should be limited to its facts because it didn't apply the pro-clinic canon.

[00:22:42] Speaker 00:
But the extent to which it fits into Chevron step one or Chevron step two

[00:22:48] Speaker 00:
is admittedly something I haven't spent sufficient amount of time investigating to answer the court's question.

[00:22:54] Speaker 01:
Do you think we should ask for additional briefing on this?

[00:22:56] Speaker 00:
I think if the court was thinking about making a determination that Haas does not bind the panel because the proclamative canon should apply at step one, and that would make Haas not binding, then yes, you're on.

[00:23:09] Speaker 05:
But he argued that in his blue brief.

[00:23:11] Speaker 05:
Let me show you the places where he did.

[00:23:13] Speaker 05:
You had an opportunity to respond to that exact argument.

[00:23:17] Speaker 05:
And your response was it applies in step two.

[00:23:20] Speaker 00:
My response to the question here, what he was saying was that Haas in general does not bind this court because Henderson reaffirmed the pro-claimant canon that wasn't applied.

[00:23:31] Speaker 05:
No, he said Haas doesn't bind this court because it didn't take into account the pro-claimant canon when it made its determination.

[00:23:41] Speaker 00:
Right, but its entire determination, not specifically at step one of the Chevron

[00:23:47] Speaker 00:
analysis.

[00:23:47] Speaker 00:
And that's the more granular point that I think if the court were inclined to rule that way, the court might benefit from some additional briefing on that question.

[00:23:58] Speaker 00:
What he was arguing is that Henderson, in effect, overrules Sears and means that if there's any ambiguity in a statute that the agency is per se unreasonable in making an interpretation that can be viewed as

[00:24:13] Speaker 00:
not being pro-veteran in every instance.

[00:24:17] Speaker 01:
I get the feeling we might come back to this, but let me ask a related question, which is my understanding of this canon, the veteran canon.

[00:24:26] Speaker 01:
The origins of it is in this notion that this is like a remedial statute, and we want to give liberal construction to remedial statutes, which is a doctrine that's used and applied to other statutes that are deemed to be remedial.

[00:24:42] Speaker 01:
And I guess I'm wondering, do you have a view of what that actually means and how it actually operates in statutory construction, this notion that we give liberal construction to remedial statutes?

[00:24:57] Speaker 01:
How does that actually work when we're trying to use that doctrine with all the other traditional tools of statutory construction?

[00:25:06] Speaker 00:
I think if you are looking at whether or not an agency has reasonably interpreted an ambiguous statutory phrase, you have to look at whether the agency's view of it is pro-claimant in some manner, not in every instance.

[00:25:22] Speaker 00:
I mean, this court has already held this here.

[00:25:24] Speaker 00:
Is it just because it doesn't result in the veteran getting benefits?

[00:25:26] Speaker 01:
You're immediately putting my question in the context of an interpretation that an agency does.

[00:25:33] Speaker 01:
And I'm wondering if that's really

[00:25:36] Speaker 01:
necessarily the context.

[00:25:38] Speaker 01:
It's really more a question of maybe the courts.

[00:25:40] Speaker 01:
Maybe the courts have to figure out what the meaning of the statutory term is.

[00:25:44] Speaker 01:
And then in that context, what do we do?

[00:25:47] Speaker 01:
How do we apply this so-called liberal construction of remedial statutes?

[00:25:53] Speaker 01:
There's a few different ways of thought.

[00:25:55] Speaker 01:
One is maybe their statute is not clear.

[00:25:59] Speaker 01:
And there are a handful of reasonable options of what this rather unclear statute means.

[00:26:06] Speaker 01:
And because of the remedial nature of the statute, we want to give a liberal construction to it.

[00:26:11] Speaker 01:
And so therefore, we should select the interpretation that's most beneficial to the largest class of the parties that were intended to be benefited by the statute.

[00:26:25] Speaker 01:
Another way of looking at this doctrine is, well,

[00:26:29] Speaker 01:
The statue is not clear, but it's close.

[00:26:34] Speaker 01:
Maybe it really is leaning in hard in one direction.

[00:26:39] Speaker 01:
And it turns out that direction benefits the intended beneficiaries.

[00:26:47] Speaker 01:
And so therefore, we will put this cherry on top, this liberal construction doctrine, and then confirm that that's in fact what the term, the perhaps unclear but

[00:26:58] Speaker 01:
almost clear term means.

[00:27:02] Speaker 01:
What is the government's view on how to understand this stuff?

[00:27:04] Speaker 00:
My view of the two ways you said it are both reasonable, except that the premise of them is that it should be the court initially interpreting what it is Congress meant.

[00:27:15] Speaker 00:
If Congress's language was clear, then there wouldn't be a question of what Congress meant when it said these words.

[00:27:24] Speaker 00:
It would be clear on its face.

[00:27:25] Speaker 00:
Where it's not,

[00:27:27] Speaker 03:
Well, one can determine that a statue is clearly using canons of a statue for reconstruction.

[00:27:34] Speaker 03:
That's basic Southerland stuff.

[00:27:35] Speaker 01:
Yeah, and you're not suggesting, now let's put it in the context of Chevron.

[00:27:41] Speaker 01:
Chevron's step one, that the agencies get to control step one.

[00:27:47] Speaker 01:
That's a court responsibility.

[00:27:49] Speaker 00:
That is a court responsibility.

[00:27:50] Speaker 01:
OK then, so let's move on.

[00:27:53] Speaker 00:
But what I would suggest is that the court making a determination without the VA's input whatsoever on what is pro-veteran is not necessarily the best use of that tool, which is why I think the Haas Court used it to look at what the VA had done when it interpreted the statutory language.

[00:28:11] Speaker 00:
Because what may appear to be the pro-veteran

[00:28:15] Speaker 00:
on just a reading of a congressional phrase may not necessarily be so.

[00:28:20] Speaker 00:
And it's clear that where there's an ambiguity, the agency has the power to fill gaps and interpret that.

[00:28:28] Speaker 00:
And so I would suggest that although it is clear that tools of statutory construction can be used at Chevron Step 1 to try and determine clear intent, the VA benefit structure and statute are meant to be interpreted by where they're vague.

[00:28:44] Speaker 00:
meant to be interpreted by the VA and then reviewed by this court.

[00:28:47] Speaker 00:
Congress has been clear when it wants courts to, in the first instance, determine the best way to interpret a phrase.

[00:28:56] Speaker 00:
In the United States v. California case that Mr. Procopio cites regarding the Submerged Lands Act in 1965, the Supreme Court made clear that the statute told the court to determine how to define inland waterways.

[00:29:11] Speaker 00:
But without that sort of clear indication that it should be up to the courts to define an otherwise ambiguous phrase, the normal course, which I think makes sense in the veteran system, is for the VA to do so, and then for that to be reviewed.

[00:29:28] Speaker 00:
That's it.

[00:29:28] Speaker 00:
I'm over my time.

[00:29:29] Speaker 05:
That's OK.

[00:29:30] Speaker 05:
Thank you, Mr. Breskins.

[00:29:31] Speaker 05:
Very helpful.

[00:29:32] Speaker 05:
Mr. Wells, you have some rebuttal time.

[00:29:39] Speaker 04:
Thank you, Your Honor, and pleased to court.

[00:29:41] Speaker 04:
One of the interesting things that comes out of this whole question of whether it's a step one, pro-canon, pro-veteran canon, is step one or step two.

[00:29:50] Speaker 04:
Actually, as you can go back to the Sears case, which talks about its applicability onto the Veterans Benefits Legislation, whether or not it conforms with the spirit of the Veterans Benefits Legislation, and that was Sears at 1332.

[00:30:03] Speaker 04:
I think that moves it definitely and completely into the step one

[00:30:09] Speaker 04:
arena, because you have to compare it about what the intent was and what is the intent of the veterans legislation is to take care of the veterans.

[00:30:18] Speaker 04:
Part of the problem we've had is this was supposed to be a non-adversarial system.

[00:30:22] Speaker 04:
It was a system to provide benefits for those who went out there and were hurt in the line of duty.

[00:30:27] Speaker 04:
And we've gotten away from that.

[00:30:28] Speaker 04:
We've gotten too esoteric and too legalistic, which is probably why we're here today.

[00:30:34] Speaker 04:
Applying that pro-veterans canon in step one

[00:30:38] Speaker 04:
as I think the Supreme Court so desired, and even as Sears admitted, and by the way, that's on page 30 of my brief, if anybody would like to look at it, you know, shows that we definitely have got to provide these folks this benefit and to take a very liberal and reasonable approach.

[00:31:01] Speaker 04:
And when you talk about reasonableness, let's talk about that for just a second.

[00:31:06] Speaker 04:
getting a little into a more advanced step.

[00:31:09] Speaker 04:
But the whole basis of Chevron, the whole basis of Sears, the whole basis of the law is that the agency's approach has to be reasonable.

[00:31:17] Speaker 04:
Mr. Ruskin talked about VA experts, but one thing he has never brought forth, and the VA has never brought forth and is not in the record, is any expert information to basically refute what we're saying.

[00:31:31] Speaker 04:
We've brought in hydrologists, we've brought in military officers, we've brought in

[00:31:35] Speaker 04:
a number of people, and all of the evidence, not the preponderance, not clear and convincing, all of the evidence goes on to the conclusion that these folks were exposed and the Veterans Benefits Legislation was set up to take care of people who were exposed.

[00:31:54] Speaker 01:
One other thing... Is it your view that jet fighter pilots that fly over

[00:32:04] Speaker 01:
the landmass or the territorial waters would also be serving in the Republic of Vietnam?

[00:32:11] Speaker 04:
No, and I think we may have addressed that, because there was B-52 pilots, for example, that would come from Guam, fly over and attack North Vietnam 30,000 feet and go back, and no, certainly they would not have been exposed and certainly they would not have the problem.

[00:32:28] Speaker 04:
if there was a jet pilot that flew over South Korea.

[00:32:33] Speaker 01:
I'm now going back to your statutory interpretation question, which you were advancing that the territorial waters are necessarily part of Vietnam.

[00:32:44] Speaker 01:
Why, just thinking about the statute and understanding the statute of what does it mean to be in Vietnam, why wouldn't the airspace above the landmass also be in Vietnam

[00:32:56] Speaker 04:
Based on, well, not on North Vietnam, certainly not.

[00:32:59] Speaker 04:
But on South Vietnam, there is a strong possibility that if you apply that to the strict construction of that pro-venerance canon, we won't deny that.

[00:33:10] Speaker 04:
Normally what we've been doing with aviators is a direct exposure theory.

[00:33:15] Speaker 04:
If they flew in through the clouds in South Vietnam or landed in South Vietnam.

[00:33:19] Speaker 01:
There's international law that talks about how territorial waters are part of

[00:33:24] Speaker 01:
the sovereign, but isn't the airspace also... The airspace is also part of the sovereignty, yes.

[00:33:29] Speaker 01:
So then I guess to follow through on your conception of the statutory term, why wouldn't, just talking out loud here, why wouldn't a service member that was flying through the airspace also be included?

[00:33:46] Speaker 04:
The airspace of the Republic of Vietnam would be, okay, not Democratic Republic of Vietnam up there.

[00:33:52] Speaker 04:
but within the Republic of Vietnam it would.

[00:33:57] Speaker 04:
But you know, one of the other interesting things, and I'm sorry I'm out of time, but if I could just make this one last point with the court's indulgence.

[00:34:07] Speaker 04:
We don't really have a problem with the statute.

[00:34:09] Speaker 04:
We don't have a problem with the CFR.

[00:34:11] Speaker 04:
We don't even really have a problem with general counsel's opinion.

[00:34:13] Speaker 04:
They all say within the borders of Vietnam.

[00:34:16] Speaker 04:
This interpretation came out in an M21 manual.

[00:34:19] Speaker 04:
And as this court has found in Gray,

[00:34:21] Speaker 04:
Most recently, we can't touch the M-21 manual on any type of Section 502.

[00:34:29] Speaker 04:
We believe that the plain reading of the statute and the go to federal regulations and the general counsel's opinion, especially when applying these canons, shows that territorial seas and probably the airspace were within the Republic of Vietnam and should be included.

[00:34:47] Speaker 04:
Thank you, Your Honors.

[00:34:48] Speaker 04:
I'm sorry I ran out of time.

[00:34:49] Speaker 05:
Thank both counsels for their argument.

[00:34:51] Speaker 05:
The case is taken under submission.