Thursday, October 23, 2008

Haas Appeals to Supreme Court

Legal pleadings, as reading material, are usually dry, and often filled with convoluted references to other cases and decisions, and of course, the ubiquitous legal terms that are often foreign to us and sometimes approach the opposite of what they should mean in their definitions. We must be getting used to such after reading the filings of the Haas case over the past two years. We actually understand what they are saying, now. Mostly. Pretty much.

Our first read through of Friday's filing to the Supreme Court for a review of the decision at the Federal Circuit in the Haas case was begun with intimidation. This is a case going to the Supreme Court, perhaps the only governmental entity this nation has that is closest to being something to worship. But the pleading filed by Paul, Hastings, Janofsky & Walker LLP's Stephen Kinnaird, assisted and advised by the National Veterans Legal Services Program's attorneys [NVLSP], is, for all its length, a fairly simple document. It is perhaps the most complete, and well laid out legal document we've ever read.

We have become familiar with some of the more frequently cited case precedents such as the "Chevron deference" [Chevron, U.S.A., Inc. v. NRDC], and the "Pro-Veteran Canon" [Brown v Gardner, and King v St. Vincent's Hospital].

The first gives a cabinet level department the right, duty, and authority to interpret legislation as it sees fit when translating the language of the legislation into workable, usable policy for the employees of that department to carry out. It was this precedent that the Federal Circuit Court cited as the main reason for reversing the Veterans Court decision in the Haas case.

The second, the "Pro-Veteran Canon", is a precedent established by the Supreme Court itself, which is, legislative ambiguity must be resolved in favor of the Veteran, even before applying deference [Chevron]. Translated, this means the "Pro-Veteran Canon" trumps the "Chevron deference".

In the Haas case, "Chevron" gives the Department of Veterans Affairs the right to define legislation it must administer as it sees fit to do under its charter. Therefore, it may define "Service in Vietnam" as it sees fit. This is what the Federal Circuit Court ruled in May. When the NVLSP asked for an en banc review, that is, a review by the entire Federal Circuit Court of the decision rendered in May by a two judges to one decision, it raised the question of the "Pro-Veteran Canon". The court responded by refusing the review the case, and rejecting the NVLSP claim of failure to apply the "Pro-Veteran Canon" because the NVLSP had not raised it in its pleading in the appeal.

In the pleading filed last Friday, Mr. Kinnaird takes the issue that the "Pro-Veteran Canon" need not be raised by a party to the suit, but should be applied by the courts.

He also pleads for a swift review by the Supreme Court:
"This Court’s review is justified alone by the critical importance of this case to the numerous blue-water Navy veterans who served in Vietnam and who have been (or will be) stricken with covered diseases. But it is especially critical that this Court grant review now. The Federal Circuit, which has exclusive jurisdiction over this statute, has definitively resolved this issue. Vietnam veterans who have contracted the serious diseases addressed in Section 1116 are likely to be in dire financial straits. Delay in receiving benefits could be severely prejudicial to many veterans. Many veterans will also be deprived of free, priority VA medical care available to persons with Agent Orange diseases, see 38 U.S.C. §1710(e)(1)(A), and may forego medical care altogether, with serious consequences.

"Moreover, if this Court were to deny review and the CAVC were to lift the current stay on Haas-related claims, many pending claims will be denied. Even if this Court were later to review and overturn the Federal Circuit’s rule, many claims will never be revived, and others would face a demanding standard of clear and unmistakable error. 38 C.F.R. § 20.1403(e); see also Jordan v. Nicholson, 401 F.3d 1296 (Fed. Cir. 2005). Other veterans may never file claims, and still others will lose benefits from preclaim periods if they are deterred by the decision below from filing. This Court’s immediate review is imperative."
As you can see from the above, not only does the filing take the legal question to hand and deal with it quite well, it takes the ethical question to hand as well, asking the court to show some mercy toward the already-ailing Blue Water Navy Veterans.There is much more to the brief that was filed on Friday, and most of it is technical points of law. We think the case will rise or fall on the merits of the "Pro-Veteran Canon" and the absurdity of the DVA's definition of "Service in Vietnam".

[Read the actual brief: click here, then click on the light green link labeled "Haas v Peake-Supreme Court".

Folks this is a job well done.

That said, it will be unusual for the court to agree to review the case, and even more so to overturn the Federal Circuit Court. Keep that in mind. The NVLSP hopes to have an answer sometime after the first of the year [delete: in November]
on whether the Supreme Court will review the case.

In the meantime, keep hitting your Congressional Representatives and Senators to support the Agent Orange Equity Act of 2009!

And keep recording your successes in the ongoing poll at the top right of the page.

Keep up the fight, keep up the good work.


”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

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


  1. Anonymous15:30

    I would like to read the brief also, especially if it is so well written. Tried the Supreme Court website but it is not posted there. If a link exists to this brief I hope someone posts it here.

  2. Unfortunately, even if the BNV ultimately are recognized as having been "in Vietnam", thereby qualifying them for aid, the standard of care practiced in the facilities that they will have access to fails to adequately and currently provide the care that will produce the most health benefits for them.

    Our "traditional" medicine and our current medical system is falling far short of providing health care for the entire nation, much less the veterans.

    That being said, the Veterans of this country have earned every right guaranteed in the Constitution and the Bill of Rights which is more than most of us can say and they deserve the best this country has to offer.


  3. Anonymous wrote, "I would like to read the brief...".You can read the brief. I have posted it on our new website devoted to posting files of interest to our readers.

  4. Anonymous wrote, "I would like to read the brief...".You can read the brief. I have posted it on our new website devoted to posting files of interest to our readers.