However, in early December, 2006, Secretary of Veterans Affairs Nicholson issued a decree sidetracking and stalling all claim decisions from Naval Vietnam Veterans under Agent Orange presumptive rules until the Department of Veterans Affairs can appeal the Haas v. Nicholson decision.
Almost immediately, the National Veterans Legal Services Program filed a writ of mandamus with the CAVC (Ribaudo v. Nicholson) seeking extraordinary relief from Nicholson’s delaying tactics.
The court granted the writ on January 9th. [see the decision by clicking here: Ribaudo v Nicholson]. The Ribaudo decision states that Nicholson overstepped his authority by attempting to contravene an order of the court. In so doing, he crossed the bounds between the three branches of government [Executive, Legislative, and Judicial] as laid out in the early Supreme Court case Marbury v. Madison, to wit: "It is emphatically the province and duty of the judicial department to say what the law is."
However, in taking the Secretary to task for overstepping his authority, the CAVC also inserted language telling Nicholson what his remedy is, and how and where to file a request for a stay. They also outlined the four criteria for issuing the stay:
(1) The likelihood of success on the merits of the moving party's appeal;
(2) whether the moving party will suffer irreparable harm in the absence of a stay;
(3) the impact on the non-moving party of that stay; and
(4) the public interest.
The VA has decided to file a request for a stay of Haas, and to lift the writ of mandamus in Ribaudo.
Stay tuned folks. The request is to be filed with the same court that overturned the original VA policy against Naval vets in the Haas case. Lets take a look at the four criteria listed above.
The likelihood of success on the merits of the moving party's appeal
Since the request is to be filed in the same court (CAVC) that ruled on the Haas case, it would logically follow that the CAVC would not deem the likelihood of success for the appeal of Haas to be viable. However, courts have issued even stranger rulings than this would be. In effect, the CAVC would be admitting it will likely be reversed on Haas.
whether the moving party will suffer irreparable harm in the absence of a stay
This is the criteria the VA will attack most heavily. Their appeal of Haas, and the subsequent illegal memorandum instructing the Department to sidetrack and suspend decisions on Naval veterans’ claims under the provisions of the Agent Orange legislation is based almost solely on this criteria. Essentially, Nicholson claims that processing the number of claims—he says as many as 500,000—would stress the VA’s staff beyond the breaking point, essentially destroying their ability to handle any claims at all. Further, Nicholson claims the amount of money required to begin paying Agent Orange benefits to Naval veterans exceeds his budgets by “billions” of dollars. In short, he has neither the staff to process the claims, nor the money to pay them. Is this irreparable harm? We think not. Nicholson pointedly ignores another remedy that would solve everything. He could go to Congress and request emergency funding to cover the cost of outsourcing the claims process. It is a one time deal in terms of no more Naval veterans will be created…in fact, the numbers will diminish, as they have been for decades due to the deaths of many Naval veterans who have waited in vain for their government to fulfill its obligation to all those who served. Once the claims are processed and those requiring adjudication are complete, the issue becomes one of maintenance, and that is far easier to handle as part of the regular Congressional annual budget process.
Nicholson would also be required to ask for a second emergency funding bill to cover the cost of paying the claims. Again, once the initial claims are processed, the matter becomes part of the annual budgetary process. At that point, the VA, and Congress will have a much better idea how much this will cost them annually.
the impact on the non-moving party of that stay; and the public interest
The Haas decision, if upheld, will result in the payout of millions, perhaps billions of dollars in claims to Naval veterans, and the cost of processing and adjudicating those claims. Such a hit to the annual national budget would have an effect that might require some sort of tax increase.
Haas will also result in the financial relief of tens of thousands of Naval veterans who have been suffering from Agent Orange exposure for the past several decades, and have been unable to gain any relief from the government. Such financial relief can in many cases result in medical relief as well.
There is an excellent website from which you all can keep up to date on the latest machinations of the VA’s discrimination against the Naval veterans of the Vietnam War. It is called Blue Water Navy. It is run by two very remarkable ladies, Susan Belanger, and Taura King, who have been in this fight for years and deserve a great deal of respect, honor and gratitude for their tireless efforts to assist Blue Water sailors in their fight for benefits that are due them. As they say on their main page:
“Approximately 19 million gallons of Agent Orange sprayed in Vietnam between 1963 and 1970 Where do you suppose they went?”
Please visit their website often. Click here: Blue Water Navy
When I first got involved in this fight in 2003, Taura and Susan were of great assistance to me in helping me with my claim, and with understanding the system. We all did research together, but those two were the ones who came up with the evidence floating around that proves exposure to Agent Orange through ship’s desalinization systems. My hat is off to them, and always will be.
Had the VA, and the Congress not conspired to discriminate against all those who served in the offshore waters of Vietnam during the war, tens of thousands, of those veterans might possibly still be alive today, having received benefits and treatment for the vicious diseases inflicted on those subject to Agent Orange. Others would have enjoyed a better lifestyle, not being forced, for example, to decide between paying for the heat in the winter, or paying for insulin, or chemotherapy drugs. Others who were diagnosed with Type II Diabetes may not have suffered from their secondary diseases of the heart, kidneys, teeth, legs and feet. There is much more.
The decision taken over a decade ago to exclude those who served in the “Blue Water” borders on criminal negligence. It could be that is what Nicholson fears most, the lawsuits that will inevitably pop up from vets, dependents, and survivors.
As far as this sailor is concerned, the VA has never really been there for us. It is time they stood up to their responsibility under the law, and stop killing innocent victims simply because they think they can’t afford to do what the law intended. There is something very wrong with that kind of twisted logic.
What can you do?
Visit the Blue Water Navy website often. Contribute if you can, in time or money, or both, and talent if you have it. Contact your Congressional Representative and Senator. Tell them to support emergency funding for the VA to fund the claims of the Naval vets so long overdue.
File your initial claim if you have not. File to reopen if you have. File an appeal if you have been denied.
If you need further motivation, go to the VA’s website and search for the appeal decisions of Navy vets denied for Agent Orange benefits because of their discriminatory policy. It is gut-wrenching, heart rending reading. But even that cannot match the dozens of emails I received from daughters, sons, and wives of Naval veterans who were forced to watch their loved ones die because the VA would not help. Personally, after a while, I could not go on, and I dropped away from Taura and Susan. I regret that, but the emotional toll was too much. I do not know how they do it. But they have my undying respect for what they have done, and what they do.