[00:00:00] Speaker 00:
The next argued case is number 20, 1537, Military Veterans Advocacy Incorporated Against the Secretary of Veterans Affairs.

[00:00:13] Speaker 00:
Spirit, when you're ready.

[00:00:14] Speaker 04:
Thank you, Your Honor.

[00:00:17] Speaker 04:
Jeff Quillesey for the petitioner and may it please the court.

[00:00:20] Speaker 04:
The VA promulgated a set of rules in its M21-1 manual in December of 2019.

[00:00:27] Speaker 04:
Those rules continue to deny the presumption of service connection to three separate groups of injured veterans whose life altering and life threatening conditions resulted from their exposure to Agent Orange and other herbicides during their service in the Republic of Vietnam.

[00:00:42] Speaker 04:
The section references in the manual are long and unwieldy.

[00:00:45] Speaker 04:
So we referred to them as the airspace rule, blue water Navy rule, and the Thailand rules.

[00:00:50] Speaker 04:
Both the airspace rule and the blue water Navy rules as promulgated are contrary to US and international law.

[00:00:56] Speaker 01:
can we start with that airspace rule?

[00:00:58] Speaker 01:
So looking at that appendix page 51, I saw the only change being this capitalization of the letter E. Is that right if you're looking at just that one in particular?

[00:01:10] Speaker 04:
The change that was made in the

[00:01:13] Speaker 04:
The difference between the previous section of the manual and the section of the manual that they promulgated in 2019, in that particular sentence, capitalized one particular word.

[00:01:24] Speaker 04:
However, the section that's actually being changed there makes several significant changes to the agency's interpretation of the term of service in the Republic of Vietnam, as you can see on that red line there.

[00:01:38] Speaker 02:
And as we've pointed out in... Tell me which page of the appendix you're talking about.

[00:01:41] Speaker 04:
Appendix 51, Your Honor.

[00:01:44] Speaker 04:
But as we pointed out in the briefing, the agency doesn't publish just the red lines.

[00:01:51] Speaker 04:
The agency action that's being challenged in this particular case is not the issuance of a red line against the previous manual section.

[00:01:58] Speaker 04:
They republish the entire manual section on their website in its entirety, and that new version of the

[00:02:06] Speaker 04:
manual section goes into effect at the time that it's published.

[00:02:10] Speaker 01:
But is that the only substantive change, this capitalization of that letter, or was there any other substantive change for this rule in particular that we're discussing?

[00:02:18] Speaker 04:
On the sentence that is being referred to in the airspace rule, the capitalization change is the only change that was made in that particular promulgation of the section.

[00:02:29] Speaker 04:
But as you can see on the red line, there are other changes that are made to the term service in the Republic of Vietnam.

[00:02:36] Speaker 04:
This is merely one of them.

[00:02:38] Speaker 04:
So the definition of service in the Republic of Vietnam has been substantively changed in that particular section of the manual when it was promulgated in 2019.

[00:02:49] Speaker 02:
So what is your view in terms of

[00:02:57] Speaker 02:
how much change there needs to be in order to avoid a statute of limitations problem.

[00:03:02] Speaker 02:
Let's assume hypothetically you change the word, you change the spelling, which is where Judge Cunningham started, and then you republish it because you changed the spelling or the capitalization of one word.

[00:03:13] Speaker 02:
Does that start the clock running again?

[00:03:15] Speaker 04:
If the agency elects to republish the rule in its entirety, that section of the manual in its entirety, then yes, it starts the clock for a challenge to that section of the manual.

[00:03:26] Speaker 02:
Is there any case law that supports your position in that regard?

[00:03:31] Speaker 04:
Well, we pointed in the briefing, for example, to the New Mexico Health Connections case from the 10th Circuit, where the new rule that was issued in that particular case made no substantive changes to the wording of the regulation that was issued at the time.

[00:03:44] Speaker 04:
The substance was exactly the same.

[00:03:46] Speaker 04:
They changed an explanation of it.

[00:03:48] Speaker 04:
And the 10th Circuit held in that particular case that the new rule had superseded the old rule.

[00:03:53] Speaker 04:
And as a result, the statute of limitations would begin running again at the time that the new rule was issued.

[00:04:03] Speaker 04:
That's the one.

[00:04:04] Speaker 04:
What are you seeking here?

[00:04:05] Speaker 02:
Let's stick with, I guess, the airplane.

[00:04:08] Speaker 02:
We were talking about the airplane.

[00:04:10] Speaker 02:
The airspace rule.

[00:04:12] Speaker 02:
What do you want the VA to do here?

[00:04:15] Speaker 04:
What we're asking the court for in terms of relief is to strike down that section of the manual and simply leave the regulatory gap that would otherwise exist so that the veterans who would otherwise be denied the presumption of service connection under the VA's manual provision can instead receive that presumption under the correct interpretation of the

[00:04:39] Speaker 04:
Agent Orange Act, section 1116.

[00:04:42] Speaker 02:
So you think under the Agent Orange Act, in the absence of this, the statute would require that the Thailand rule and the airplane rule create a presumption?

[00:04:56] Speaker 02:
That there would automatically under the statute unambiguously be a presumption that the high flying airspace thing that we're talking about, that they would be entitled to a presumption?

[00:05:07] Speaker 02:
Have we ever held that?

[00:05:09] Speaker 04:
Not in so many words, Your Honor, but the logic of Procopio does dictate that result, for example, in the case of the airspace rule that we're discussing right now.

[00:05:18] Speaker 04:
Procopio dealt with 12 nautical miles.

[00:05:21] Speaker 04:
Procopio in Procopio, the court, the en banc court held that Congress had spoken clearly in using the statutory phrase service in the Republic of Vietnam.

[00:05:32] Speaker 04:
And when it, when it spoke, what it invoked was the notion of the Republic's territorial sovereignty.

[00:05:39] Speaker 04:
Now in Procopio is applied to the facts there that referred to the 12 mile territorial sea.

[00:05:45] Speaker 04:
and the court looked to the UN Convention on the Law of the Sea, it looked to the 1958 Convention and so forth.

[00:05:51] Speaker 02:
None of that has any bearing on airspace, right?

[00:05:54] Speaker 04:
However, international law of equally long stature makes clear that the Republic of Vietnam's sovereign territory includes the airspace both above its landmass.

[00:06:05] Speaker 02:
Just to be clear, whether you're right or wrong, am I missing something?

[00:06:08] Speaker 02:
Has that question ever been adjudicated?

[00:06:11] Speaker 04:
No, that question has not been decided.

[00:06:13] Speaker 02:
Oh, OK.

[00:06:13] Speaker 02:
All right.

[00:06:14] Speaker 02:
I just wanted to make sure I wasn't missing anything.

[00:06:16] Speaker 02:
Because, I mean, you're right.

[00:06:18] Speaker 02:
And there may be another Procopio out there that involves airspace.

[00:06:21] Speaker 02:
But in terms of where the law and practice is right now, veterans are not entitled to a presumption based on the airspace rule.

[00:06:32] Speaker 02:
As I said.

[00:06:33] Speaker 02:
You would need a rule to get them.

[00:06:35] Speaker 02:
I mean, if you prevail here,

[00:06:40] Speaker 02:
There's no automatic legal rule that they're entitled to a presumption that exists anywhere, right?

[00:06:45] Speaker 02:
That's something that would have to be adjudicated.

[00:06:47] Speaker 04:
There is not a rule in place in the manual or in the VA's regulations that specifically speaks to airspace in that sense.

[00:06:56] Speaker 04:
The point that I'm making is that under this court's decision in Procopio and under the statutory language, the conclusion is inescapable that those veterans would in fact be entitled to the presumption.

[00:07:08] Speaker 02:
Well, that's a legal argument, but I guess that's not been adjudicated.

[00:07:12] Speaker 02:
Do you anticipate that would need to be adjudicated?

[00:07:14] Speaker 04:
I anticipate that that would need to be adjudicated, but under those cases, I would expect that in the absence of the manual provision, the ROs and the board would in fact reach that decision because the logic of Procopio.

[00:07:27] Speaker 02:
But in order to adjudicate it, you don't need us to do anything in this case, right?

[00:07:31] Speaker 02:
If a veteran comes in, he says, I can prove I was in the airspace.

[00:07:35] Speaker 02:
I'm entitled to a presumption.

[00:07:37] Speaker 02:
and there'd be a case that we could adjudicate.

[00:07:40] Speaker 02:
Nothing we do here affects that, right?

[00:07:46] Speaker 04:
Because the M21.1 manual binds the frontline adjudicators at the VA, those adjudicators, as it stands right now with the manual provision in place, they can't reach the conclusion that they should under Procopio and the plain text of the statute.

[00:08:03] Speaker 04:
The manual prevents them from doing so.

[00:08:06] Speaker 04:
And so as a result, the veterans who are affected simply can't get that relief from the frontline adjudicators at the VA.

[00:08:13] Speaker 02:
Can I move you on to just the Thailand rule?

[00:08:16] Speaker 02:
Yes.

[00:08:16] Speaker 02:
That also has a little bit of a twist, because the VA, at about the same time while this is being adjudicated and appealed, as you know probably better than I, the VA has decided to do rulemaking on Thailand.

[00:08:30] Speaker 02:
So I don't understand what you're seeking in this case, which I assume you're very happy about, that they're undertaking the rulemaking on Thailand.

[00:08:41] Speaker 02:
So what are you seeking in our case?

[00:08:47] Speaker 02:
Are you seeking something that would obviate the need to do rulemaking, because automatically all of these folks would be entitled to a presumption?

[00:08:55] Speaker 02:
What are you seeking here?

[00:08:56] Speaker 04:
Again, the manual provision as it stands is treating like veterans in a dissimilar manner.

[00:09:03] Speaker 04:
That's the way that the Thailand rules currently operate.

[00:09:07] Speaker 04:
They grant the presumption to service members whose duties took place at the perimeter of these Thailand bases, but not to those who are... But the VA is undertaking rulemaking, so presumably there's going to be input and notice and comment and clarification

[00:09:23] Speaker 02:
of that, which could be challenged by you or by others if you don't like what the outcome is.

[00:09:29] Speaker 02:
So it seems to me, what is going this route challenging this serve?

[00:09:36] Speaker 02:
What would you expect the court to say?

[00:09:38] Speaker 02:
Would you think that we would say something that would obviate the need for the court, for the VA to do any rulemaking?

[00:09:43] Speaker 04:
Uh, no, not necessarily.

[00:09:45] Speaker 04:
The VA would certainly be capable of doing rulemaking in the way... What should we say about that?

[00:09:50] Speaker 02:
What is the relief you seek from us?

[00:09:52] Speaker 04:
The relief, again, that we seek would be striking down the existing manual provision as arbitrary and capricious because it's treating similarly situated service members dissimilarly.

[00:10:05] Speaker 04:
And as a result, allowing the service members who would be affected by the manual provision as it stands to make their arguments to the regional offices, to those frontline adjudicators, and get the result that they are precluded from getting under the current manual provision.

[00:10:22] Speaker 02:
And let me ask you just back to sort of a follow up to Judge Cunningham's questions with respect to the other rule.

[00:10:29] Speaker 02:
This is also a statute of limitations issue.

[00:10:31] Speaker 02:
Question arises, because this was

[00:10:33] Speaker 02:
early 2010 right or 1993?

[00:10:36] Speaker 02:
One of them was 1993 and one was 2010.

[00:10:38] Speaker 04:
The airspace provision there was a there was a General Counsel decision in 1993 that they referred to.

[00:10:45] Speaker 02:
So this one is 2010.

[00:10:46] Speaker 02:
2010 is what they referred to.

[00:10:48] Speaker 02:
So the complaint you're raising here with treating people differently, was that the change that was made between 22 and the more recent publication of this?

[00:10:59] Speaker 04:
No, the

[00:11:02] Speaker 04:
substantive provision as we've discussed before in the Thailand rule was that wording was changed only very slightly in the 2019 promulgation of the rule.

[00:11:12] Speaker 04:
The argument that we're making, however, is that the agency had before it all of the

[00:11:19] Speaker 04:
information that it needed.

[00:11:22] Speaker 04:
It had promised to do rulemaking in response to petitions that had been submitted as early as 2015, and it re-promulgated this rule in 2019 while maintaining the arbitrary and capricious distinction that it had previously.

[00:11:35] Speaker 02:
There's no change though.

[00:11:36] Speaker 02:
What you're seeking as being the problem in the rule existed in 2010, the same as it existed in the republish.

[00:11:44] Speaker 04:
The wording of that portion of the manual was the same in 2010 as it is in 2019.

[00:11:50] Speaker 04:
However, since we've been discussing the Thailand rule, the agency does not make any attempt to show that the rule as it exists is not arbitrary and capricious.

[00:12:04] Speaker 04:
They simply don't address any of the evidence whatsoever in their briefing.

[00:12:10] Speaker 04:
The agency's only objection is that the relief that we're seeking is premature because they've promised to do rulemaking.

[00:12:18] Speaker 04:
Of course, the agency has been promising to do rulemaking on Thailand since at least 2017, other than promulgating the rule that it did in 2019, which made no changes to that particular system.

[00:12:31] Speaker 02:
Well, you say they've been promising.

[00:12:32] Speaker 02:
Didn't they do something recently that was more substantive than that, like announcing they're doing rulemaking, not promising?

[00:12:38] Speaker 04:
In 2017 in response to the Beck report.

[00:12:41] Speaker 02:
What did they do in 20 or 22?

[00:12:42] Speaker 04:
In 2020, they responded to a petition from MVA and again said that they would be doing rulemaking, but they haven't given a date for it or any sort of schedule.

[00:12:53] Speaker 04:
It's the same.

[00:12:54] Speaker 04:
It's a promise.

[00:12:54] Speaker 02:
So at some point in the future, the third leg of this case is the blue water Navy change and

[00:13:03] Speaker 02:
I will tell you candidly, maybe it's me, I'm not understanding what you're arguing about in this case.

[00:13:10] Speaker 02:
I don't understand.

[00:13:11] Speaker 02:
So could you just explain to me what you're seeking and what the problem is with this rule?

[00:13:17] Speaker 04:
Absolutely.

[00:13:18] Speaker 04:
As with the other two, what we're seeking is for the manual provision that was promulgated in 2019 to be struck down.

[00:13:25] Speaker 04:
The Blue Water Navy rule that was promulgated in the manual unambiguously makes substantive changes to the way that the... What's the page in the appendix?

[00:13:36] Speaker 02:
Let me pull that up.

[00:13:37] Speaker 04:
I believe it is... It's in the 20s.

[00:13:45] Speaker 04:
Find it right here.

[00:13:48] Speaker 04:
Starting at appendix 16 is the Blue Water Navy rule.

[00:13:54] Speaker 04:
And it does two specific things that affect the substantive change.

[00:13:59] Speaker 04:
First of all, it removes from the regional offices and those frontline adjudicators any authority whatsoever to adjudicate the presumption of service connection for herbicide exposure for these veterans.

[00:14:12] Speaker 04:
And it assigns that responsibility to new centralized processing teams.

[00:14:16] Speaker 02:
Yeah, but I thought you really didn't have that much of a beef in your briefs with this claim processing thing, recognizing that

[00:14:23] Speaker 02:
Frankly, probably everybody thinks it's a good idea to help these Blue Water Navy people have their claims expeditiously processed.

[00:14:31] Speaker 02:
So I thought you said, I'm not really complaining about that.

[00:14:36] Speaker 02:
What you're really complaining about is something else.

[00:14:38] Speaker 02:
And I want to know what that is.

[00:14:40] Speaker 02:
If I'm correctly asserting your position, what's the something else?

[00:14:43] Speaker 04:
You're correct.

[00:14:44] Speaker 04:
We do not object to them shifting the processing to centralized teams, but they only granted part of the authority to the centralized processing teams.

[00:14:51] Speaker 04:
And they've left the gap where there are veterans who simply can't get the relief that they need.

[00:14:56] Speaker 02:
That's a nice statement, but it doesn't give... What specifically are you talking about that veterans are denied that they should have it?

[00:15:08] Speaker 04:
On Appendix 16, for example,

[00:15:13] Speaker 04:
authority that is granted to the centralized teams in that bullet at the very bottom of the page is to adjudicate or to concede qualifying service to include service on the eligible offshore waters as defined in the new law.

[00:15:27] Speaker 04:
And that new law is the Blue Water Navy Act, Public Law 116-23.

[00:15:33] Speaker 04:
So the authority that's been granted to the centralized processing system is only to concede service connection within the geographic points that are defined in the Blue Water Navy Act.

[00:15:47] Speaker 02:
The Blue Water Navy Act... Oh, and service in inland waterways and service... What more are you saying they should... So you're saying they're essentially excluding

[00:16:01] Speaker 02:
certain veterans from including this presumption.

[00:16:05] Speaker 04:
Correct.

[00:16:05] Speaker 02:
What group are they excluding?

[00:16:07] Speaker 04:
The Agent Orange Act, which is codified at 1116, is a separate statutory section from the Blue Water Navy Act, which is codified in the following section, 1116A.

[00:16:18] Speaker 04:
And the Agent Orange Act has a broader scope than the Blue Water Navy Act.

[00:16:22] Speaker 04:
They've assigned here authority for, as far as naval veterans go, they've assigned to the centralized authority

[00:16:28] Speaker 04:
the centralized processing teams, the authority to grant the service connection within the areas covered by the Blue Water Navy Act, but not those covered by the broader scope of the agronomy.

[00:16:39] Speaker 02:
Well, they're not talking about, this isn't intended, I mean, they're doing this processing not for people who have, what is the phrase they use, foot on the land.

[00:16:47] Speaker 02:
Is that what you're saying, that they should have put the foot on the land people?

[00:16:51] Speaker 04:
No, this does not involve the boots on the ground or foot on the land.

[00:16:55] Speaker 02:
Okay.

[00:16:56] Speaker 02:
So what are we talking, I mean, you've got the Blue Water Navy Act,

[00:16:58] Speaker 02:
And you've got the boots on the ground, which was prior to Procopio, what the Agent Orange Act had determined, what we had concluded was the presumptive stuff.

[00:17:10] Speaker 02:
So what else is there?

[00:17:12] Speaker 02:
What are you saying should have been in there?

[00:17:14] Speaker 02:
What specific group of veterans

[00:17:17] Speaker 02:
service should have been articulated here that is left out of either of the blue water neighbor statutes?

[00:17:25] Speaker 04:
The Agent Orange Act and its reference to service in the Republic of Vietnam was understood by the VA for a decade after the publication or the enactment of the Agent Orange Act to include service anywhere in the entire theater of conflict surrounding Vietnam.

[00:17:43] Speaker 04:
They issued regulations in 1991, and they didn't change those until 2002.

[00:17:48] Speaker 04:
And so the proper scope of the presumption that is afforded in the Agent Orange Act covers that entire theater.

[00:17:57] Speaker 02:
You just got to be a little more specific.

[00:17:59] Speaker 02:
I'm sorry.

[00:17:59] Speaker 02:
Am I asking just a stupid question?

[00:18:02] Speaker 02:
Are you talking about certain waterways, certain non-land locations?

[00:18:07] Speaker 02:
other than the 12-mile nautical rule established by Procopio?

[00:18:12] Speaker 02:
You've got to give me more specific.

[00:18:14] Speaker 02:
And you're saying we had a regulation in 91, but we got rid of it in 2002, so it's not in existence.

[00:18:20] Speaker 02:
So what coverage has been adjudicated for what group of people's service

[00:18:27] Speaker 02:
that's been adjudicated that should exist and is excluded from this.

[00:18:33] Speaker 02:
Tell me, are we talking about water service?

[00:18:36] Speaker 04:
We're talking about naval service in the theater of conflict in the Southeast Asian, the Vietnamese theater of conflict, the area that was covered by the Vietnamese service medal.

[00:18:47] Speaker 01:
Are you worried about Phu Quoc?

[00:18:49] Speaker 01:
What are you worried about?

[00:18:50] Speaker 04:
Phu Quoc is an example of how the coverage of the Agent Orange Act is separate from that in the Blue Water Navy Act.

[00:18:58] Speaker 04:
So Focac Island is covered under the 12-mile territorial sea.

[00:19:03] Speaker 04:
whereas it's not within the points that are outlined in the Blue Water Navy Act.

[00:19:08] Speaker 04:
But as I've mentioned, the Agent Orange Act doesn't simply cover the 12-mile sea.

[00:19:15] Speaker 04:
In Procopio, this court held that it included at least the 12-mile

[00:19:20] Speaker 02:
Well, Picopio came, as you well know, after 10 years of litigation and our court having decided the reverse before.

[00:19:28] Speaker 02:
So Picopio says, we're going to do something that's not been done before, that we've never said before, that we've said the opposite, and we're going to extend the boundaries of the foot on land to include this 12 nautical miles.

[00:19:44] Speaker 02:
So I'm just thinking

[00:19:46] Speaker 02:
It sounds to me, and I don't want to undermine your position, that there are other stuff that you plan to adjudicate or you think is covered by the Agent Orange Act, but that this court has never said was covered and goes beyond what Procopio said, and you want the veterans

[00:20:06] Speaker 02:
administration to put that in the wreck.

[00:20:08] Speaker 02:
Am I being unfair?

[00:20:10] Speaker 04:
I certainly wouldn't characterize it that way.

[00:20:13] Speaker 04:
The regulations that the VA issued in the wake of the Agent Orange Act, things like 38 CFR 3.307, that includes, in the presumption, as they've interpreted the Agent Orange Act, the waters offshore the Republic of Vietnam.

[00:20:32] Speaker 04:
And that regulatory language has never changed since the 1990s, and the VA uniformly interpreted that for a decade after it issued that regulation as including the entire theater of conflict where the Vietnam Service Medal could be issued.

[00:20:49] Speaker 00:
concerns me in Procopio, as we're talking about it, there was evidence that even in this area, this blue water area, and then the line was drawn sort of in the statutory at 12 miles.

[00:21:02] Speaker 00:
I don't know if the evidence went out, but there was evidence of contamination of the water, drinking water, the air.

[00:21:10] Speaker 00:
But I didn't see such evidence here, certainly not for Johnston Island.

[00:21:17] Speaker 00:
Maybe they attempt to show that there was at least a reasonable possibility, not a probability.

[00:21:25] Speaker 04:
You are correct, Your Honor.

[00:21:28] Speaker 04:
In this particular case, there's a second case for MVA that's coming up later in the session today that concerns Johnston Island.

[00:21:35] Speaker 04:
In this particular case, we're not making an argument based on specific evidence in front of the agency.

[00:21:41] Speaker 04:
This is a statutory interpretation question as to the Blue Water Navy Act.

[00:21:45] Speaker 02:
But the group that you're saying you think is covered by the water stuff, have we ever adjudicated that?

[00:21:53] Speaker 02:
No, the court has not addressed that.

[00:21:56] Speaker 02:
And it's something that you may well adjudicate, but it's nothing, I mean, as I said, this court went through 10 years of effort to just get the, following up on what Judge Newman said, to just get the expansion for Blue Water Navy and spilled a lot of ink explaining why we think that ought to be covered.

[00:22:16] Speaker 02:
We've not gone there with respect to the other areas that you're

[00:22:20] Speaker 02:
concerned about.

[00:22:22] Speaker 04:
This court has not held a specific clarification.

[00:22:25] Speaker 04:
Absolutely true.

[00:22:27] Speaker 01:
One last question.

[00:22:28] Speaker 01:
Page 52, is that also kind of a good summary of what you were talking about on DWN?

[00:22:35] Speaker 04:
Are you referring to Appendix 52?

[00:22:36] Speaker 04:
Yes, I am.

[00:22:37] Speaker 04:
Can you pull that up?

[00:22:39] Speaker 01:
Just to make sure I'm on the same page.

[00:22:41] Speaker 04:
I mean, that's part of the same section of the manual, and you can see it's heavily edited, and there are significant substantive changes.

[00:22:50] Speaker 04:
That is part of the change that was made that we refer to as the Blue Water Navy role.

[00:22:53] Speaker 04:
Yes, absolutely.

[00:22:55] Speaker 04:
And I'm well over my time, so.

[00:22:57] Speaker 00:
Thank you.

[00:22:57] Speaker 04:
Unless there are any other questions.

[00:22:59] Speaker 04:
Thank you.

[00:23:00] Speaker 00:
Okay, let's hear from the VA.

[00:23:02] Speaker 00:
Mr. O?

[00:23:04] Speaker 03:
May I please support?

[00:23:06] Speaker 03:
I'd like to start by addressing two of the three issues in this case.

[00:23:09] Speaker 03:
First, as court is aware, there are three colloquial rules that are being challenged in this case.

[00:23:14] Speaker 03:
The Vietnamese airspace rule, the Thailand rule, and the Blue Water Navy rule.

[00:23:21] Speaker 03:
With respect to the Thailand rule and the Vietnamese airspace rule, those are time barred.

[00:23:24] Speaker 03:
point the court to three cases that might be helpful.

[00:23:27] Speaker 03:
They cite a 10th Circuit case.

[00:23:29] Speaker 03:
It's not a statute of limitations case.

[00:23:30] Speaker 03:
It's a mootness case.

[00:23:31] Speaker 03:
It doesn't reference 2401, which is the statute of limitations statute at issue in this case.

[00:23:36] Speaker 03:
They do cite NOVA, and NOVA actually says note

[00:23:41] Speaker 03:
Is this all covered in your brief, by the way?

[00:23:43] Speaker 03:
No, because we raised the statute of limitations argument in our response.

[00:23:47] Speaker 03:
And then they came back and said, well, republishing the... OK.

[00:23:50] Speaker 03:
Yeah, they argued republishing restarts the statute of limitations.

[00:23:53] Speaker 03:
But what NOVA says in note 16 is manual provisions that merely republish... Which NOVA case?

[00:24:00] Speaker 03:
Oh, sorry, NOVA 2020, the unbound one.

[00:24:02] Speaker 03:
Manual provisions that merely republish prior agency interpretations are not reviewable under Section 502.

[00:24:09] Speaker 03:
And then Note 16 cites Hyatt, a previous decision of this court in 2018.

[00:24:14] Speaker 03:
Agency renewals of an earlier decision do not restart the statute of limitations.

[00:24:19] Speaker 03:
They also say DC Circuit cases that say the same thing.

[00:24:21] Speaker 03:
So this is pretty decisive.

[00:24:23] Speaker 03:
All you're saying is we're republishing the rule, you're not substantively changing it.

[00:24:27] Speaker 03:
That doesn't re-trigger the statute of limitations.

[00:24:29] Speaker 02:
And what about the 10th Circuit?

[00:24:30] Speaker 02:
You said that that was a moot.

[00:24:31] Speaker 03:
It's not a statute of limitations case.

[00:24:32] Speaker 03:
It's a mootness case.

[00:24:34] Speaker 03:
And it does involve a rulemaking, but they were arguing that a new iteration of a rule mooted the prior one.

[00:24:40] Speaker 03:
And so that's a different sort of question.

[00:24:42] Speaker 03:
It doesn't even touch section 2401.

[00:24:43] Speaker 03:
So that case is not relevant.

[00:24:45] Speaker 03:
The only case they do cite, and they use a C also signifier or call signal for that case, which I think is why they use that call signal, the case immediately preceding that is NOVA.

[00:24:55] Speaker 03:
And NOVA just undermines their position that they're taking in this case.

[00:24:58] Speaker 03:
So that's one easy way, I think, to just kind of dispel of the Vietnamese airspace and the Thailand rules.

[00:25:03] Speaker 01:
Do you agree the change is as limited as I was discussing with your opponent council?

[00:25:07] Speaker 01:
It is that limited.

[00:25:08] Speaker 01:
But then they tried to indicate that there were some more changes that were being made and pointed some redlining.

[00:25:14] Speaker 03:
I think what they're trying to do, because their position is by virtue of republishing the rule, you're restarting it, they're pointing to other irrelevant sections and saying, look at all these other changes that are going on here.

[00:25:25] Speaker 03:
So clearly, this was, in its totality, a big change in total.

[00:25:29] Speaker 03:
So look at that.

[00:25:30] Speaker 03:
But really, what the court has to do is look at the specific thing they're challenging.

[00:25:33] Speaker 03:
And here, that's the airspace rule.

[00:25:35] Speaker 03:
And say, OK, on APPX page 52,

[00:25:38] Speaker 03:
For the airspace rule, what change did they make?

[00:25:41] Speaker 03:
They capitalized the knee.

[00:25:42] Speaker 03:
That's not a substantive change.

[00:25:43] Speaker 03:
That doesn't re-trigger the statute of limitations.

[00:25:46] Speaker 03:
I will note, just for full disclosure, in Hyatt, which I think is a really helpful case, if you go to that case, Judge Hughes says you can actually republish a rule and restart the statute of limitations if, and this is a big if, if it shows a serious reconsideration on the part of the agency.

[00:26:02] Speaker 03:
If there were strong evidence,

[00:26:03] Speaker 03:
that the agency went back in time and said, let's reconsider the rule.

[00:26:07] Speaker 03:
And there was a thoughtful, deliberative kind of rulemaking process all over again.

[00:26:12] Speaker 03:
Hyatt says, OK, now you've restarted it.

[00:26:14] Speaker 02:
By the way, we've also had a lot of cases called Hyatt.

[00:26:19] Speaker 02:
And when you said Judge Hughes, I mean, I think Hyatt, and I think of the Umbank and so forth.

[00:26:24] Speaker 02:
So what was the year, or do you have the site for that?

[00:26:27] Speaker 03:
Yeah, I do.

[00:26:27] Speaker 03:
It's 904 F3D, 1361.

[00:26:32] Speaker 03:
It's actually cited in note 16 of NOVA 2020.

[00:26:34] Speaker 03:
OK, thank you.

[00:26:35] Speaker 03:
The en banc decision.

[00:26:37] Speaker 03:
So we think the statute of limitations is a

[00:26:39] Speaker 03:
very convenient way to kind of just dispose of those issues because they are time barred.

[00:26:43] Speaker 03:
That doesn't mean they're out of ways to kind of vindicate that right.

[00:26:45] Speaker 03:
You can always seek a petition for rulemaking.

[00:26:47] Speaker 03:
You can adjudicate an individual claim.

[00:26:50] Speaker 03:
These issues can be revisited, but at least for purposes of this case under Section 502, we think they're time barred.

[00:26:56] Speaker 03:
The real meat of this case is what they call the Blue Water Navy rule.

[00:26:59] Speaker 03:
And I do want to get into that because I think there is some question about what they're really challenging here.

[00:27:03] Speaker 03:
And I don't want to characterize my friend's position here, but the way I understand it, what they're saying is there's the Agent Orange Act.

[00:27:11] Speaker 03:
There's a particular interpretation of the Agent Orange Act under Procopio, how territorial waters were defined.

[00:27:20] Speaker 03:
And they're saying you measure out 12 miles out from the coastline.

[00:27:24] Speaker 03:
And that's in the Republic of Vietnam, those offshore waters count.

[00:27:28] Speaker 03:
In the meantime, after that decision, you have the Blue Water Navy Act.

[00:27:32] Speaker 03:
We believe the Blue Water Navy Act codifies Procopio because the legislative history supports that.

[00:27:36] Speaker 03:
The text seems to support that.

[00:27:38] Speaker 03:
And you have this determination of offshore in the Blue Water Navy Act subpart D of the statute that says, notwithstanding any other provision of law, this is how you define offshore for in-service claims in the Republic of Vietnam.

[00:27:51] Speaker 03:
What they're arguing is that there's a delta.

[00:27:53] Speaker 03:
There's a difference between those two statutes.

[00:27:55] Speaker 03:
What they're saying is, and I think this is based on a misinterpretation of Procopio,

[00:28:02] Speaker 03:
Procopio said the core thrust of the holding in that case is territorial waters are included.

[00:28:09] Speaker 03:
And that can include, under international law conventions, up to 12 nautical miles out.

[00:28:15] Speaker 03:
So that's what it said.

[00:28:15] Speaker 03:
It could be less.

[00:28:16] Speaker 03:
I think even during the oral argument, they said, well, it could be three.

[00:28:19] Speaker 03:
It could be 12.

[00:28:20] Speaker 03:
It could be a variety of things.

[00:28:22] Speaker 03:
But under the conventions of international law, it could be 12.

[00:28:25] Speaker 03:
So what they're saying is, no, it's 12.

[00:28:28] Speaker 02:
Now when you get the Blue Water Navy... They're saying meaning they who?

[00:28:31] Speaker 02:
Our court?

[00:28:32] Speaker 03:
Oh no, my friend over here on the other side.

[00:28:35] Speaker 03:
So he's saying, no, it's 12 and possibly more if you include all these regulations, the Vietnam Service Medal Policy, which by the way, when they're talking about theater of conflict, they're talking about service members in Guam and Hawaii.

[00:28:46] Speaker 03:
It literally reaches across the globe.

[00:28:49] Speaker 03:
But let's not take that regulatory argument, which expands it beyond any reasonable interpretation,

[00:28:54] Speaker 03:
and just stick with the interpretation of Procopio.

[00:28:56] Speaker 03:
They're saying, no, it means 12, everywhere, all around.

[00:28:59] Speaker 03:
Just imagine like an aurora shack kind of drawing around the Republic of Vietnam.

[00:29:04] Speaker 03:
If you take the Blue Water Navy Act, the Blue Water Navy Act actually took the coordinates for what counted as the territorial waters of that country at the time the Agent Orange Act was enacted.

[00:29:16] Speaker 03:
And it drew a line.

[00:29:18] Speaker 03:
And when you look at the line, sometimes it's less than 12 miles.

[00:29:22] Speaker 03:
And the reason why it's less than 12 miles at some points is because they didn't claim certain parts as their territorial waters.

[00:29:29] Speaker 03:
It actually took direct evidence and said, what coordinate points did the Socialist Republic of Vietnam count as their territorial waters?

[00:29:37] Speaker 03:
So you get this drawing around the country.

[00:29:39] Speaker 03:
And in some places, it's less than 12 miles.

[00:29:42] Speaker 03:
And again, under international conventions, under Procopio,

[00:29:46] Speaker 03:
The holding of that case is the territorial waters count.

[00:29:49] Speaker 03:
It wasn't necessarily that 12 miles always counts.

[00:29:52] Speaker 03:
It was that it can be up to 12 miles.

[00:29:54] Speaker 03:
That was the holding in that case.

[00:29:56] Speaker 01:
What about, and I don't know if I'm pronouncing this right, but Phu Quoc, what about that?

[00:29:59] Speaker 01:
I talked a little bit with your friend about that.

[00:30:02] Speaker 03:
Yeah, so that is a dicey thing.

[00:30:04] Speaker 03:
But again, we're using the same coordinates that the Socialist Republic of Vietnam claimed in 1982 to claim the territorial waters.

[00:30:11] Speaker 03:
They didn't claim anything regarding the Phu Quoc Islands, regarding the water surrounding that territory.

[00:30:16] Speaker 03:
So it got cut out under the Blue Water Navy Act.

[00:30:18] Speaker 03:
But I think the central holding in Procopio is that the territorial waters count.

[00:30:23] Speaker 03:
The Blue Water Navy Act said, yes, the territorial waters count.

[00:30:27] Speaker 03:
Let's draw these lines based on the coordinates that the Socialist Republic of Vietnam claimed.

[00:30:33] Speaker 03:
And it drew it.

[00:30:33] Speaker 03:
And then it codified Procopio.

[00:30:35] Speaker 03:
Their argument is that, well, no, the Blue Water Navy Act didn't necessarily codify Procopio.

[00:30:41] Speaker 03:
It actually did something else.

[00:30:42] Speaker 03:
It did something broader.

[00:30:43] Speaker 03:
It actually included the entire Vietnamese theater of conflict.

[00:30:46] Speaker 03:
There is essentially no limitation regarding how broadly the statute.

[00:30:50] Speaker 02:
I'm really confused now, because I thought what this thing does is codify.

[00:30:59] Speaker 02:
I thought their complaint was, don't you cite the Blue Water Navy Act?

[00:31:04] Speaker 02:
Isn't that what this says?

[00:31:06] Speaker 02:
I'm misunderstanding you because they seem to be saying, wait, what's 116-23?

[00:31:13] Speaker 03:
That's the Blue Water Navy Act.

[00:31:16] Speaker 02:
Okay, so they seem to be complaining, and that's what the reg says.

[00:31:20] Speaker 02:
They seem to want something more than the Blue Water Navy Act.

[00:31:23] Speaker 02:
They do.

[00:31:24] Speaker 02:
What you seem to be saying is they want

[00:31:27] Speaker 02:
They're complaining we're not giving them what they get under the Blue Water Navy Act.

[00:31:31] Speaker 02:
They seem to be saying it's not enough to codify the Blue Water Navy Act because the Agent Orange Act gave us more than the Blue Water Navy Act.

[00:31:42] Speaker 03:
That's right.

[00:31:43] Speaker 03:
That's right.

[00:31:43] Speaker 03:
If I misstated something that what you're saying Judge Prost is entirely accurate.

[00:31:47] Speaker 03:
What they're saying is

[00:31:49] Speaker 03:
they're actually challenging something that the manual doesn't say.

[00:31:53] Speaker 03:
They're saying, well, you concede claims for Blue Water Navy Act claims, but what about the Offshore Agent Orange Act claims?

[00:31:59] Speaker 03:
Why isn't that also manifested in the provision?

[00:32:02] Speaker 03:
But essentially what they're asking the court to do is say, can you also urge the VA or order the VA to institute a rule in the manual that also says,

[00:32:13] Speaker 03:
Agent Orange Act offshore water claims are included.

[00:32:17] Speaker 02:
Has anybody ever said that?

[00:32:19] Speaker 03:
Nobody's ever said that.

[00:32:21] Speaker 03:
That would be putting the court in the position of legislating.

[00:32:24] Speaker 02:
They can adjudicate that.

[00:32:25] Speaker 02:
Are there cases pending where veterans have claimed, as they did for decades on the Blue Water Navy, people had numerous claims pending before the VA for their presumption?

[00:32:37] Speaker 03:
I'm not aware of anyone taking this new position below.

[00:32:41] Speaker 03:
Conceivably, they could adjudicate it.

[00:32:45] Speaker 03:
I do know that the VA is, and this is a high priority for them because they've been tasked by Congress to do so, but promulgating a regulation regarding the bounds and scopes of the Blue Water Navy Act.

[00:32:55] Speaker 03:
So this is something the VA is in the active practice of doing for purposes of applying the Blue Water Navy Act.

[00:33:00] Speaker 03:
But I think what the petitioner is asking the court to do is to use the M21 manual.

[00:33:06] Speaker 03:
The court should take it away from the VA.

[00:33:09] Speaker 03:
compel the VA to pass a rule that says something the M21.1 manual doesn't say, and then make that the new rule.

[00:33:16] Speaker 03:
But that, again, puts the court in a position of legislating.

[00:33:19] Speaker 03:
And I know this point.

[00:33:21] Speaker 03:
I'll just end with this point.

[00:33:23] Speaker 03:
You can't have it both ways.

[00:33:24] Speaker 03:
You can't say that the VA can't promulgate rules in the M21.1 manual without notice and comment, and then seek to invalidate it.

[00:33:32] Speaker 03:
And on the other hand, say, court, you have to come enforce the VA to promulgate a rule in the M21.1

[00:33:39] Speaker 03:
one manual without notice of comment.

[00:33:40] Speaker 03:
They're inherently contradictory positions.

[00:33:42] Speaker 03:
We respectfully request that the court dismiss or deny a views petition.

[00:33:46] Speaker 00:
Well, maybe they could say that, depending on the evidence.

[00:33:51] Speaker 00:
A lot of time has passed.

[00:33:52] Speaker 00:
The opportunity, the manifestations of illnesses that some take years to develop, but might very well have started with an exposure.

[00:34:04] Speaker 03:
Judge Newman, I take your point.

[00:34:06] Speaker 03:
I think it would really depend on what the manual says and what the petitioners coming into this court would be asking the court to do.

[00:34:14] Speaker 03:
What they are asking the court to do is not simply invalidate that Blue Water Navy Act provision.

[00:34:19] Speaker 03:
They want that provision.

[00:34:20] Speaker 03:
What they're asking the court to do is add on to the manual, compel the VA to add on to the manual.

[00:34:26] Speaker 03:
And that's something we think is a different variety, something that 502 jurisdiction wouldn't normally allow.

[00:34:32] Speaker 03:
With all respect, we request that the court

[00:34:33] Speaker 03:
dismiss or in the alternative deny the petition of MBA.

[00:34:38] Speaker 00:
Thank you.

[00:34:40] Speaker 04:
Thank you, Your Honor.

[00:34:43] Speaker 01:
Could you respond to what he just indicated?

[00:34:45] Speaker 01:
He said, you guys are asking, I just want to make sure that we're meeting.

[00:34:49] Speaker 04:
I disagree with the government on that point.

[00:34:52] Speaker 04:
We're not asking the court to legislate.

[00:34:54] Speaker 04:
We're not asking the court to issue new rules or write new sections of the M21-1 manual.

[00:35:01] Speaker 04:
We're asking to invalidate the sections that were challenging so that effective veterans can make their arguments to those frontline adjudicators that they should be given the presumption under the statute as it stands.

[00:35:12] Speaker 02:
So tell me, can you look at what you're saying in terms of how you would rewrite it?

[00:35:17] Speaker 02:
I mean a lot of this we all agree is very good for the veterans because they're doing this new processing stuff which hopefully will speed things up.

[00:35:26] Speaker 02:
So what exactly you want them to take out the sentence that refers to the Blue Water Navy stuff?

[00:35:34] Speaker 04:
The change that was made in 2019 that removes the authority from the frontline adjudicators to concede service connection for Blue Water Navy veterans and then assigns only part of the appropriate statutory authority to the centralized teams simply leaves some of those veterans out in the cult.

[00:35:53] Speaker 02:
We think the whole thing should go away and we should wipe out this new centralized system.

[00:35:58] Speaker 04:
that at least the frontline adjudicator should be able to concede service connection under the statute as it stands.

[00:36:07] Speaker 02:
So we both got in front of me.

[00:36:09] Speaker 02:
Look at A16 and tell me, my question is, do you want us to just get rid of it entirely, which would get rid of, I guess, this new claims processing for Blue Water Navy veterans and everybody else, or how would you have us rewrite it?

[00:36:25] Speaker 04:
The removal of the authority from the ROs is certainly what we would want to strike.

[00:36:38] Speaker 04:
So for example, from bottom of appendix 16 to the top of 17, there's a sentence that says effective immediately, ROs are no longer authorized to establish if a veteran's service qualifies for herbicide exposure in RVN claims.

[00:36:51] Speaker 04:
And that prevents those frontline adjudicators from actually reaching the full extent of the statutory... Sorry to take your time on rebuttal.

[00:36:59] Speaker 04:
No, not at all.

[00:37:01] Speaker 04:
A couple of other points that I would want to make in response.

[00:37:04] Speaker 04:
The government's argument is entirely about the... Excuse me.

[00:37:08] Speaker 04:
The government's argument on the Blue Water Navy provision, the Blue Water Navy rule is entirely about the new statute, the Blue Water Navy Act that was passed in the wake of Pocopio.

[00:37:19] Speaker 04:
They simply don't get into the proper scope of the presumption that is established by the Agent Orange Act in its own separate statutory section.

[00:37:27] Speaker 04:
And as this court has commented, our position is that the Agent Orange Act covers a different area than the Blue Water Navy Act itself covers.

[00:37:38] Speaker 04:
So, for example, there are, you know, we give the example of Foucault Island.

[00:37:44] Speaker 04:
There are certainly others that could have been brought up.

[00:37:47] Speaker 04:
The Paracels, Yankee Station, other things like that that were outside of the 12-mile territorial sea.

[00:37:54] Speaker 04:
We'll push back on one other thing that the government has said.

[00:37:58] Speaker 04:
In Procopio itself, the government conceded, and the opinion notes this at least twice, including one additional time in Judge Laurie's concurrence,

[00:38:06] Speaker 04:
The government conceded that the waters offshore of the Republic of Vietnam that are covered under the VA's regulations, like 3.307, they conceded that the waters offshore of the Republic of Vietnam extend beyond the 12-mile sea.

[00:38:23] Speaker 04:
And if you look at the geographic points that are actually in the Blue Water Navy.

[00:38:29] Speaker 02:
Discussed that in the opinion?

[00:38:30] Speaker 04:
Yes.

[00:38:31] Speaker 04:
Twice they noted that the government conceded that the water is off shore.

[00:38:34] Speaker 02:
You happen to have a site?

[00:38:35] Speaker 02:
I have the opinion.

[00:38:36] Speaker 04:
I believe it's 1375 and 1377 in the opinion.

[00:38:42] Speaker 04:
That would be 913 f 3rd, yes, at 1377 and 1379.

[00:38:47] Speaker 04:
Thank you.

[00:38:51] Speaker 04:
Yes.

[00:38:52] Speaker 04:
And then again, as I said, Judge Laurie noted that in his concurrence as well.

[00:38:57] Speaker 04:
In addition, the Blue Water Navy Act, contrary to what I believe the government said during its presentation, it always extends to at least a 12-mile boundary, at least as I understand it.

[00:39:12] Speaker 04:
And we are not, as the government has suggested,

[00:39:15] Speaker 04:
trying to extend coverage to Guam or Hawaii or places like that.

[00:39:18] Speaker 04:
We're looking at the area that is covered by the Vietnam Service Medal.

[00:39:22] Speaker 04:
That's again a specific set of geographic points.

[00:39:25] Speaker 04:
We cite the executive order and the Department of Defense regulations that establish those areas.

[00:39:30] Speaker 04:
Those are in our briefing as well.

[00:39:32] Speaker 04:
I can certainly point those out if need be.

[00:39:35] Speaker 04:
I believe I'm out of time again.

[00:39:37] Speaker 01:
I have just one last one.

[00:39:39] Speaker 01:
What parts of the VWN Act are coextensive with the AJRJ?

[00:39:43] Speaker 01:
Can you just kind of give me

[00:39:44] Speaker 04:
They do overlap quite a bit.

[00:39:47] Speaker 04:
The Agent Orange Act, as I said, extends, properly understood, extends to the entire theater of conflict.

[00:39:52] Speaker 04:
And that will cover the areas within the geographic points to a large extent.

[00:39:59] Speaker 04:
It will cover the geographic points that are listed in the Blue Water Navy Act itself.

[00:40:07] Speaker 04:
And I should point out, because the government brought it up,

[00:40:11] Speaker 04:
The Blue Water Navy Act does not purport to define what the term offshore means.

[00:40:15] Speaker 04:
It simply sets a floor.

[00:40:17] Speaker 04:
If you look at section 1116A, subpart B, what it says is that regardless of any other statutes, for the purposes of this section,

[00:40:27] Speaker 04:
the following areas must be treated as if they were offshore.

[00:40:31] Speaker 04:
So those are included as a minimum, but it does not set a ceiling on what could be included in the Blue Water Navy Act.

[00:40:37] Speaker 04:
It certainly does not purport to limit the presumption that is afforded in the separate statutory section preceding the Agent Orange Act itself.

[00:40:47] Speaker 00:
All right.

[00:40:48] Speaker 00:
Thank you.

[00:40:48] Speaker 00:
Thanks to counsel.

[00:40:49] Speaker 00:
This case is taken under submission.