Tuesday, November 13, 2007

The Haas Report

We traveled to Washington last Wednesday to attend the oral arguments for the critical case Haas vs. The Department of Veterans Affairs. The arguments were heard at the United States Court of Appeals for the Federal Circuit, in front of a panel of three Justices.

Presiding was Chief Circuit Judge Paul Michel, Circuit Judge Michael Bryson, and visiting Judge Jeremy Fogel of the United States District Court, Northern District of California. Michel was appointed to the Court in 1988 by President Reagan, and elevated to Chief Judge in December of 2006. Bryson was appointed to the Court in 1994 by President Clinton, and Fogel was appointed to the District Court by President Clinton and assumed his seat on the bench in 1998. Fogel is also a Lecturer at Stanford Law School.

Oral arguments at this level are structured thus: the appellant [the Department of Veterans Affairs [DVA] which was appealing the decision in Haas last August in the United States Court of Appeals for Veterans Claims] is given 15 minutes to argue their case. The respondent [the National Veterans Legal Services Program [NVLSP] on behalf of Jonathan Haas], is then given 15 minutes to respond. Finally, the appellant is given 5 minutes to counter any telling points scored by the respondent.

An attorney representing the Department of Veterans Affairs/United States Government, by the name of Hughes, began his argument and within 30 seconds, he was interrupted by Judge Michel, who began peppering him with questions. Bryson joined in, and for the next 32 minutes [the 15 minute time limit was waived by Judge Michel to allow the appellant to respond to the questions of the panel] Hughes danced his way through such issues as the right of the Department of Veterans Affairs to determine its own policy from the law, and to be the final arbiter of those interpretations, the definition of “in Vietnam”, and the issue of Non-Hodgkins Lymphoma [NHL], and its precedence of being a recognized Agent Orange disease prior to the Agent Orange Act of 1991, and was recognized as predominantly affecting Naval Veterans who served off shore.

NVLSP attorney Bart Stichman then gave the respondent argument for Haas, using his 15 minutes to carefully and methodically deliver a sound argument about the NHL issue in particular. Essentially, Stichman argued that since the DVA was paying Blue Water Navy sailors [BWN -- those who served off the coast of Vietnam but did not set foot on the ground, as the DVA now requires], prior to the Agent Orange Act of 1991, and is apparently still paying NHL victims who are BWN Veterans, and then had it included in the list of Agent Orange Diseases, that it violates the law of legislation to have 2 sets of criteria for a single law…that is, treating victims of one of the eleven official Agent Orange diseases [NHL] differently than the victims of the other ten diseases by requiring victims of the other ten to have “set foot on the ground in Vietnam”. NHL victims are NOT required to do so.

Stichman also got the Australian Study [which detailed how the dioxins from Agent Orange were introduced into the freshwater systems aboard ships offshore] introduced into the argument at the last minute. The study was introduced into the case earlier in an Amicus Brief filed by Navy Veteran and Attorney John Wells.

In sharp contrast to the peppering of the DVA attorney, Stichman was stopped only a few times and did not require extra time.

The final 5 minutes allotted to DVA attorney Hughes was spent attempting to cast doubt on the Australian Study, claiming its science has never been validated [which of course flies in the face of logic and veracity considering Australia and New Zealand both pay their Blue Water Veterans because of the study!].

The general consensus of those we spoke with after the hearing was that it seemed very favorable to the Haas/BWN side, but no one could predict how the Justices would rule after considering the laws and precedents that had been cited in the case.

You can hear [and download] an MP3 file recording of the entire hearing at the United States Court of Appeals for the Federal Circuit. Go to this site and enter the Haas case docket number, 2007-7037, in the box labeled “Case Number”: http://www.cafc.uscourts.gov/oralarguments/ .

Regardless of the outcome of this case, all Blue Water Navy Veterans owe a huge debt of gratitude to Commander Jonathan Haas, who agreed to have his case be an exemplar, to the National Veterans Legal Services Program, who have so steadfastly and capably pursued this case through the system [and who wore Blue Water Navy Vietnam Veterans Association pins at the hearing!], and to Attorney John Wells, who filed the Amicus Brief introducing the Australian Study as evidence.

Fighting these battles builds to an enormous financial cost, and if at all possible, you should consider donating to the cause at both the NVLSP web site [click Donate], and by contacting John Wells at his website [click Contact] to make a donation. Lets give them the kind of hand that is most helpful and practical in this fight: money.


"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

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