Tuesday, January 06, 2009

Update on Haas

According to the United States Supreme Court's docketing record, Haas v Peake, docket number 08-525 was opened on October 17, 2008 with a Petition for a writ of certiorari [a writ from a petitioner for a court to request the procedings of a lower court for review...in this case the United States Court of Appeals for the Federal Circuit, who heard oral arguments in November of 2007, and issued their decision to overturn the ruling of the United States Court of Appeals for Veterans Claims this past May].

[note: Petitioner is Jonathan Haas, represented by the most able attorneys at the National Veterans Legal Services Program - Barton F. Stichman, Louis J. George, and Richard V. Spataro,and the law firm of Paul, Hastings, Janofsky & Walker, LLP, led my Stephen B. Kinnaird, Counsel of Record, Sean D. Unger, and Elizabeth A. Stevens.

Respondent is Dr. James B. Peake, Secretary of Veterans Affairs, and attorneys from the Department of Justice, Gregory G. Garre, Solicitor General and Counsel of Record, Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson, and todd M. Hughes*.

*Mr. Hughes, you might recall, was the government attorney who argued the DVA's case at the Court of Appeals for the Federal Circuit in November 2007 oral arguments. We have used unofficial transcripts from his arguments on here to demonstrate the separate status of Blue Water Sailors with Non-Hodgkins Lymphoma [NHL], which the DVA ordered corrected in September of 2008.
On November 13th, the Department of Veterans Affairs [DVA] requested a 30 day extension to file their brief in response to the Petition of a request for certiorari.

On November 21, and amici curiae [friends of the court] brief was filed by the American Legion and others.

On December 18th, the DVA filed its response to the petitioner's request for a writ of certiorai.

On December 29th, the petitioner's response was filed.

On December 30th, all documents were distributed to the Justices for a conference on January 16th.

The Conference will result in a decision by the Justices as to whether they will hear [oral arguments in] the case, or will decline to take the case.

That is the current status of the Haas case.

The Documents noted above can be accessed by clicking on the appropriate button on the VNVets Files website.

Having read the submission of the DVA we were not at all impressed. Tortured logic is supported in many cases by mere assertions rather than a definitive citation in court cases, or in law. We believe the DVA's response to be full of obfuscations in an attempt to snow the court. That is a bad idea. The case will likey be argued in court by the Solicitor General of the United States, Mr. Gregorey Garre. But the brief smacks of Todd Hughes, the man who argued the DVA's case at the Federal Circuit level in 2007. You can see some of his twisted logic in this brief.

Of much more interest is the far easier, and actually fun to read, Haas SC Reply Brief filed by the attorneys for Haas. We think this was written, as the original petition of the writ of certiorari was, by Steven B. Kinnaird. As that petition was very logically constructed and built a case that rebutted every argument the DVA makes, it also, as we pointed out in our earlier post, Hass Appeals to the Supreme Court shows that the heart of the Haas appeal lies in the pro-veterans canon from the precedential case Brown v. Gardner,513 U.S. 115 (1994). The canon is applied when legislative ambguity exists [as it does with the definition of Service in the Republic of Vietnam] and, as Kinnaird points out in this latest brief, it must be applied before the Chevron Deference is applied. The Chevron Deference, a precedent from the case Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984), allows leeway for governmental agencies to be the final arbiter of policy interpretation from enacted laws.

It was on this point the US Court of Appeals for the Federal Circuit erred in their overturning of the US Court of Appeals for Veterans Claims in May of 2008. And Mr. Kinnaird makes this point very clear in the latest response to the DVA. He does so by applying reverse logic: if Chevron were applied BEFORE the pro-veteran canon, then the pro-veteran canon is rendered pointless, useless, and of no value. This is what the VA has been claiming all along, that it is the final arbiter of what congressional language means in reference to acts passed by Congress that pertain to Veterans. Indeed, this is the point on which the Haas case will finally rest and which will make it a case which, if the Supremes see it the same way as Mr. Kinnaird, will be a precedent that will evaporate the difference between the Blue Water Navy and the Brown Water Navy as far as claims for Agent Orange presumption are concerned.

As Billy Mays says, "But wait, there's more!" Mr. Kinnaird skillfully and logically takes the entire DVA case apart one point at a time, smoothly reducing their arguments to absurdities. One gets the feeling of a hint of near-contempt when one argument after another is destroyed by crystal clear logic. This document is a joy to read, and should warm the heart of any Blue Water Sailor, or his family or survivors.

Give yourself a treat, and something to feel good about. Read the Haas SC Reply Brief We are sure you will see an absolutely exquisitely crafted legal argument. We pray the Supremes will take this case, and can hardly wait for oral arguments.

Once again, visit the VNVets Files webpage to access these documents.

Enjoy!

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

"It follows than as certain as that night succeeds the day, that without a decisive naval force we can do nothing definitive, and with it, everything honorable and glorious."--President George Washington

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