Wednesday, June 25, 2008

NVLSP Files for Review of Haas Decision

The National Veterans Legal Services Program [NVLSP] filed its brief with the United States Court of Appeals for the Federal Circuit [CAFC] requesting an en banc review, or a re-hearing of the Haas case. This is the same court that in May issued the stunning reversal of the lower court [United States Court of Appeals for Veterans Claims, or CAVC] in Haas vs. Peake.

The brief lays out the case where the NVLSP attorneys believe the CAFC erred in Haas. In essence, the NVLSP contends that:

    1. Congressional intent when it enacted the Agent Orange Act in 1991 was to include Blue Water Veterans. Service in Vietnam must include those who served off shore in "territorial waters" because ALL accepted legal definitions of national territorial sovereignty recognize adjacent waters as a part of the national territory. Boundaries drawn around a nation do not coincide with a shoreline, but with a territorial limit, usually 12 miles out to sea for any coastal areas. National sovereignty is extended to that maritime territorial limit.
    2. The court ignored Supreme Court dicta which places deference to government agencies must always come after resolving cases of statutory ambiguity in favor of the Veteran.
    3. "Foot on the Ground" policy violates all precedential case histories, and is made wholly wwithout the benefit of scientific evidence that Blue Water Sailors were NOT exposed to Dioxins.
We would like to address the last two of these points.

One of the cornerstones of the DVA's oral arguments last November was that the Department was entitled to deference to allow it to interpret the law as the exclusive agency suited to interpreting the law it was to administer. It is, we believe, the basis for the majority decision in Haas by the CAFC last month which said the "foot on the ground" rule was "permissible". That was the majority opinion's word: "permissible".

Deference to an agency is given because the law recognizes that the agency, in interpreting Congressionally enacted laws into administrative policy should, by right, have the expertise to do so. In Haas, the Department of Veterans Affairs [DVA] argued that it pretty much didn't matter how the DVA interpreted the laws that Congress passed that dealt with Veterans Affairs because as the agency that deals in that area, they have the expertise to do so. [Agencies like the DVA frequently work with Congress in constructing laws that Congress later enacts. This adds to their expertise.] This is called the Chevron defense from the caselaw of a precedential decision.

What the brief points out is that precedential cases from the CAFC and the Supreme Court have repeatedly and historically relied on what is called the Pro Veterans Canon: "The Supreme Court has instructed that, before applying Chevron deference, any interpretive ambiguity in the statute must be resolved in the Veterans favor."[Section II on page 12 of the NVLSP brief in the Haas case.]

In reference to the Foot on the Ground policy being without scientific evidence to prove there was no Agent Orange exposure at sea, it is something we have been saying for a while here. We even emphasized it in both our recent comments on the propsed rule change of the Definition of Service in Vietnam. It is what makes Mr. Hughes [the DVA's arguing attorney in the oral Aarguments last November] so glaringly arrogant [and dishonest] when he dismissed the Australian Study as being "of questionable science". At least the Australian Study exists, and it proves the Blue Water Navy's case. But the DVA dismisses it, ignores it, supresses it, in spite of having no scientific evidence of their own to disprove it, or to prove that Blue Water Navy Veterans were not exposed.

While this request for an en banc review, or a rehearing is powerfully constructed, and damning in its laid out arguments and citations of case law precedent that were misinterpreted or ignored by the CAFC, we are still at the mercy of the court. It is only a request. The court does not have to agree to an en banc review, which would proceed on the basis of this brief to compare it to the May decision in the Haas case, or would grant a re-hearing, probably another session of oral arguments in the Washington, D. C. Court building where the CAFC convenes.

We were impressed with the brevity and terseness of this brief. We think this is an excellent petition.

Now we wait for the court to decide whether to take the case underreview, and if so, how. [Note: If the court grants the review, and overturns the decision from May, do not be surprised if it only extends to the 12 mile limit. This is hit hard in the brief filed by the NVLSP, and they do a good job of linking it to the extended Combat Zone, which generally coincides with the eligibility for the Vietnam Service Medal. Nevertheless, this was a topic hit hard in the oral arguments, and again in this brief. Just be aware of the possibility. That said, we find it very difficult to believe that the DVA would enforce that to the extent of tracking ship movements, and verifying ships positions. All the more reason to get copies of your ships' log books entries for the periods you were in the Combat Zone. You can get this information from the National Archives and Records Agministration [NARA] in College Park, Maryland. If you can't get there, you can request copies of the documents from NARA for a cost. It isn't exorbitant, but it is not cheap either. So do your own research if you can. Check your ship's website for copies, many of them do have the logs posted. You can also contact other crewmembers to see if they have copies. See the link
Where to get Navy Ship's Deck Logs in the link section of the left sidebar, and our post Obtaining & Using Documents to Support Your Claim [VA and SSA] under the "Useful Posts" section of the right sidebar.

In the meantime, keep sending your medals back, keep pressuring your Senators and Representatives, the media, and all the Veterans Service Organizations. Don't sit back and wait for this to rescue you. The NVLSP has done a beautiful job in stating its case. Let's keep pushing ours.

[Read the
Petition for an En Banc Review by the NVLSP]

VNVets

”It is a stain on this nation's honor that the Department of Veterans Affairs has become a deadlier and more difficult adversary to the American veteran than any they have ever faced on a battlefield."-- VNVets

"The concept that Agent Orange, and its effects, stopped dead in its tracks at the shoreline is simply too illogical, and too ludicrous to accept. What does that say about the Bush Administration and his Department of Veterans Affairs?"--VNVets

"With malice toward none; with charity for all; with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in; to bind up the nation's wounds; to care for him who shall have borne the battle, and for his widow, and his orphan--to do all which may achieve and cherish a just and lasting peace, among ourselves, and with all nations." --President Abraham Lincoln

"Without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious."--President George Washington

Copyright © 2005-2008: VNVets Blog; All Rights Reserved.

2 comments:

  1. Thomas Laliberte17:47

    By now I am sure you have read the latest DVA actions to decide who's a Vietnam Veteran. I am so disgusted to think that the DVA is so arrogant to think they have the power to decide who's a Vietnam Veteran or not. Especially Senator John McCain who was a POW. I am sure that the Senator will not take kindly to the DVA's audacity of striping him of his Veteran Status. I find it inconceivable that DVA management can be so Un-American and still be able to sleep at night.

    So, who decides if AM74 gets to be approved and adopted by the DVA?
    Does Congress have any say in this matter at all?
    Recently, I was on Military.com and found that Tom Philpott had published one of my letters to him on his site. Its certainly helpful to have support such as his for the Blue Water Navy Veterans.
    I ahve also sent simular letters to U.S. Senator Kerry, U.S. Rep Delahunt and Massachusetts Rep. Thomas Calter. All have responded to me and future meetings are to be scheduled to discuss further my(our) concerns for the Blue Water Navy Veterans. And just today, I had a meeting with Ma Rep Calter and he was truly concerned with the recent DVA actions being as he is very active in Massachusetts with Veteran Affairs. Rep Calter said that he would be with Senator Kerry and Rep Delahunt in Wash. DC next month to discuss DVA matters and assured me that he would discuss the Blue Water Navy Veteran issues with them. When Rep.Calter returns, he said that he would contact me to discuss what progress he made. And, in turn, I will forward that info on to you.

    Thomas Laliberte
    Former Navy Photographer (PH3)
    Plymouth, MA

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  2. Tom,

    The DVA will decide on what action to take after the public comment period. Don't hold your breath, however.

    Even though the majority of the comments were against the change, someof them scathingly so, the DVA is just going through the motions, and has no intent to listen to, or credit anything anyone said against their action.

    They will annouce shortly that they will proceed with the change as advertised, and will single out some of the comments for rebuttal, but the rebuttals will be weak, arrogant and dismissive.

    VNVets

    ReplyDelete