[00:00:00] Speaker 00:
Okay.

[00:00:00] Speaker 00:
The next argued case this morning is number 20, 20, 2086, military veterans advocacy against the secretary of veterans affairs, Mr. Flynn.

[00:00:16] Speaker 04:
Thank you, your honor.

[00:00:17] Speaker 04:
May it please the court, James Anglin Flynn for the petitioner, MVA.

[00:00:21] Speaker 04:
Veterans who served on these South Pacific islands were systematically exposed to toxic herbicides.

[00:00:27] Speaker 04:
The military sprayed them around bases to clear runways,

[00:00:29] Speaker 04:
and communication lines.

[00:00:31] Speaker 04:
To train in firefighting, crews crawled through the burning remnants of herbicide barrels.

[00:00:35] Speaker 04:
And on Johnston Island, the military stored and spilled enormous quantities of Aged Orange as it prepared for incineration.

[00:00:42] Speaker 04:
Now, when these veterans seek service connection for diseases arising from that exposure, they are denied because, for example... There's no question, just getting to the heart of the matter.

[00:00:52] Speaker 02:
I mean, these folks are not covered by the Aged Orange Act because they didn't fight Vietnam.

[00:00:58] Speaker 04:
They are not covered by, under the current interpretation, they are not covered by the statutory presumption in the ancient Torrance Act.

[00:01:03] Speaker 02:
So what are you seeking here?

[00:01:05] Speaker 02:
That the independent of what Congress should or shouldn't do.

[00:01:10] Speaker 02:
Yes.

[00:01:10] Speaker 02:
I assume there are bills pending on this.

[00:01:12] Speaker 02:
There are bills pending on everything.

[00:01:14] Speaker 02:
But independent of congressional action.

[00:01:18] Speaker 02:
Yes.

[00:01:19] Speaker 02:
You're saying what?

[00:01:21] Speaker 02:
That the Veterans Administration is required

[00:01:26] Speaker 02:
to undertake rulemaking for coverage?

[00:01:29] Speaker 04:
Yes.

[00:01:30] Speaker 04:
So I want to emphasize the narrowness of the determination before the court today.

[00:01:34] Speaker 04:
It was just that the secretary erred in refusing to initiate rulemaking and to guess that rulemaking is warranted to determine.

[00:01:40] Speaker 02:
And what is the standard of review that we have in terms of what is their authority in terms of making the decision on whether or not to undertake rulemaking?

[00:01:50] Speaker 04:
Karen, it's the traditional APA review.

[00:01:53] Speaker 04:
A higher burden in this context in the petition for rulemaking, we acknowledge.

[00:01:58] Speaker 04:
But where there's, for instance, an error of laws, there was here with statutory interpretation, there is no deference to VA on that question.

[00:02:05] Speaker 04:
And then as to the factual questions, those are arbitrary and capricious review.

[00:02:10] Speaker 04:
So familiar APA standard.

[00:02:12] Speaker 02:
OK, so you're saying because the errors of law are sufficient to compel rulemaking.

[00:02:17] Speaker 02:
What are those errors?

[00:02:18] Speaker 04:
That's right.

[00:02:18] Speaker 04:
There are two errors.

[00:02:19] Speaker 04:
One was an interpretation of the Agent Orange Act that imposes a distinction between tactical and commercial herbicides.

[00:02:25] Speaker 04:
It's found nowhere in that statute.

[00:02:27] Speaker 04:
It's found nowhere in the legislative history.

[00:02:28] Speaker 04:
It's not within the purpose of the statute.

[00:02:31] Speaker 04:
VA has no support for this.

[00:02:33] Speaker 02:
So let's take that off.

[00:02:37] Speaker 02:
I guess I'm not clear there's no support.

[00:02:39] Speaker 02:
We have a history.

[00:02:41] Speaker 02:
I mean, this Agent Orange Act dealt with cases that occurred between 62

[00:02:46] Speaker 02:
and 75, thousands and thousands of veterans have received compensation and have had claims under the Agent Orange Act.

[00:02:56] Speaker 02:
Is there any evidence whatsoever that the persons who received benefits under this statute were exposed to anything other than a toxic herbicide?

[00:03:12] Speaker 02:
So isn't that what the statute was about?

[00:03:14] Speaker 02:
I mean, there's plenty of legislative history.

[00:03:18] Speaker 02:
Some of us even rolled enough to live through it.

[00:03:21] Speaker 02:
And it was all about, it wasn't about commercial herbicides.

[00:03:25] Speaker 02:
It was about this thing going on in Vietnam.

[00:03:27] Speaker 02:
In fact,

[00:03:28] Speaker 02:
the statute isn't really completely silent because the statute connects the herbicide spraying to a window of exposure.

[00:03:38] Speaker 02:
And that exposure ended in 75 when the government figured out that it was going to stop doing this spraying of what we now call tactical herbicide to distinguish it from commercial herbicide.

[00:03:53] Speaker 02:
So where is the strong statutory bent that gives you the ability to overcome

[00:03:58] Speaker 02:
the otherwise very liberal standard of review.

[00:04:03] Speaker 04:
Yes, Your Honor.

[00:04:04] Speaker 04:
So I agree that there's a history of enormous exposure to the so-called tactical herbicides.

[00:04:09] Speaker 04:
There's no indication in the legislative history here that the statute was intended to be cabined to those herbicides.

[00:04:14] Speaker 04:
To the contrary, the statute identifies the herbicides by chemical composition.

[00:04:19] Speaker 04:
And the commercial herbicides contains those same molecules.

[00:04:22] Speaker 04:
So we're talking about Congress identifying substances

[00:04:24] Speaker 04:
based on chemical composition, not purpose.

[00:04:27] Speaker 04:
I agree that there's a nexus in the statute that has to do with support of military operations in Vietnam.

[00:04:34] Speaker 04:
That language also clearly includes places like Guam and Johnston Island, where commercial herbicides, and we submit tactical herbicides, were sprayed in support of military operations in Vietnam.

[00:04:46] Speaker 02:
Actually, where is that language of the support?

[00:04:47] Speaker 02:
Because I was really not clear on what your argument about the support language was

[00:04:53] Speaker 02:
getting to, because clearly this statute covers beginning to end the Republic of Vietnam and not folks in other countries.

[00:05:05] Speaker 02:
So whether they were supportive of it, I'm sure there were thousands of military bases all across the world that were supportive of the.

[00:05:14] Speaker 02:
So I'm not understanding what that support language gives you.

[00:05:18] Speaker 04:
Sure.

[00:05:18] Speaker 04:
So there are two statutory subsections at issue here.

[00:05:21] Speaker 04:
I think your honor is referring to 1116F, which certainly is restricted to veterans who served in the Republic of Vietnam.

[00:05:29] Speaker 04:
The statutory subsection that the secretary was interpreting was 1116A3, which is not limited to service in Republic of Vietnam.

[00:05:38] Speaker 04:
It's just limited to military operations in the Republic of Vietnam.

[00:05:41] Speaker 04:
So there were, for example, service members who served in Guam did not set foot in the Republic of Vietnam.

[00:05:46] Speaker 04:
but may have even flown planes over to Vietnam and were exposed on Guam.

[00:05:52] Speaker 02:
Where is one?

[00:05:53] Speaker 02:
I'm looking at three.

[00:05:54] Speaker 02:
Three what?

[00:05:55] Speaker 04:
In support of the United States and Allied military operations.

[00:06:00] Speaker 04:
That's 38 USC 1116A3.

[00:06:02] Speaker 04:
Yeah, what is it?

[00:06:06] Speaker 02:
I guess I'm not sure where that gets you.

[00:06:09] Speaker 02:
It means...

[00:06:11] Speaker 02:
A herbicide agent means a chemical and an herbicide used in support of the U.S.

[00:06:19] Speaker 02:
Assistant Allied Minister.

[00:06:22] Speaker 02:
That's about, again, used

[00:06:24] Speaker 02:
in military operations in the Republic of Vietnam.

[00:06:28] Speaker 02:
This doesn't have to do with coverage of individuals who are exposed.

[00:06:32] Speaker 02:
There's no debate that the Agent Orange Act only applied to people who served in Vietnam.

[00:06:37] Speaker 02:
So you're saying the support language expands the coverage of the Agent Orange Act?

[00:06:42] Speaker 04:
No, Your Honor.

[00:06:44] Speaker 04:
Over time, since the enactment of the Agent Orange Act, VA has promulgated regulatory presumptions that expand the coverage of the Agent Orange Act beyond the Republic of Vietnam.

[00:06:52] Speaker 02:
But not to everybody.

[00:06:54] Speaker 02:
No, no.

[00:06:56] Speaker 02:
Not based on this language that they supported.

[00:06:58] Speaker 04:
Yes, this was the statutory subsection they cited.

[00:07:02] Speaker 02:
But the DMZ was after, as Judge Newman referred to in another case, they've expanded it to the DMZ zone.

[00:07:09] Speaker 02:
I think Congress did that, right?

[00:07:10] Speaker 04:
Congress did that, not the C123s.

[00:07:11] Speaker 04:
That was regulatory.

[00:07:13] Speaker 02:
OK, the C123s.

[00:07:14] Speaker 02:
And those are just people who were flying these planes and dropping the Agent Orange in Vietnam.

[00:07:20] Speaker 04:
Or even serving in the United States cleaning these planes.

[00:07:23] Speaker 04:
I believe it also covers veterans who served in the United States maintaining those planes.

[00:07:29] Speaker 02:
Okay.

[00:07:30] Speaker 04:
Yes.

[00:07:31] Speaker 02:
So you're saying therefore that they're required to extend the benefits of the statute, which covers folks who served in Vietnam to every place that provided some support.

[00:07:44] Speaker 02:
I'm not seeing what you're doing with this language in support of.

[00:07:48] Speaker 04:
So it was the secretary who said that this language prevents him from issuing the presumption.

[00:07:52] Speaker 04:
So the secretary is interpreting this language, and he says, no, MBA.

[00:07:56] Speaker 04:
You can't get a presumption because the HFOR Injects definition of herbicide agent doesn't cover commercial herbicides.

[00:08:02] Speaker 02:
Did he say anything about the insupportive language?

[00:08:05] Speaker 04:
Yes, I believe so.

[00:08:06] Speaker 04:
And that's the basis on which they describe it.

[00:08:08] Speaker 02:
Where is that?

[00:08:09] Speaker 02:
I've got the letter in front.

[00:08:10] Speaker 02:
Are you talking about the February 2021 letter?

[00:08:13] Speaker 02:
Yes.

[00:08:20] Speaker 04:
So that's it, page three.

[00:08:23] Speaker 04:
And that's the first full paragraph.

[00:08:25] Speaker 04:
The end of that is citing section A3, the in support of language.

[00:08:35] Speaker 04:
And so they say that that applies, for instance, to the C123, because that was so-called tactical herbicides, but not to Guarong, for instance, because in their view, that was just commercial herbicides.

[00:08:47] Speaker 02:
All they cite is the statutory language.

[00:08:50] Speaker 02:
That's what I'm seeing.

[00:08:51] Speaker 04:
So that was the basis on which they

[00:08:53] Speaker 04:
promulgated a presumption for C123.

[00:08:56] Speaker 04:
We think there's no distinction to be made between the C123, for instance, and the Guam exposure, except for this tactical commercial distinction, which we believe is not supported by the statute.

[00:09:09] Speaker 02:
So your argument is that they have to do rulemaking because there's no difference between this and the C123?

[00:09:16] Speaker 04:
Our argument is they have to do rulemaking because they gave a reason for not doing so.

[00:09:20] Speaker 04:
And that was in support of this clause doesn't cover commercial herbicides.

[00:09:25] Speaker 04:
And we think that reason was wrong.

[00:09:26] Speaker 02:
Well, that had to do with the commercial herbicide stuff.

[00:09:28] Speaker 02:
Yes.

[00:09:29] Speaker 02:
Right.

[00:09:29] Speaker 02:
OK.

[00:09:29] Speaker 02:
So then I understand your argument about commercial herbicides.

[00:09:34] Speaker 02:
I may not agree with it, but I understand it.

[00:09:37] Speaker 02:
So your view is that any other location in the world

[00:09:44] Speaker 02:
I mean, your argument would be expanded beyond Guam and Johnson Islands and Samoa if you're talking about the use of commercial herbicides, which are still being used everywhere, right?

[00:10:06] Speaker 02:
I don't know what you're looking for in legislative history.

[00:10:08] Speaker 02:
It's quite clear in my view.

[00:10:10] Speaker 02:
There's years of documentation as to the Agent Orange Act being passed because of this extra potent tactical herbicide that was sprayed in Vietnam, not for purposes of doing reading, but for purposes of controlling the vegetation in a very specific way.

[00:10:31] Speaker 02:
So you're saying,

[00:10:33] Speaker 02:
The statute doesn't compel that, so that shouldn't be a constraining force.

[00:10:37] Speaker 02:
And any use of commercial herbicides should count in terms of allowing the presumption?

[00:10:44] Speaker 04:
Your Honor, the... Sorry, could you repeat that again?

[00:10:50] Speaker 04:
Just the last... Sorry.

[00:10:52] Speaker 04:
I'm trying to make sure I understand the question there.

[00:10:55] Speaker 02:
Is your position that commercial herbicides are sufficient for the presumption?

[00:10:59] Speaker 02:
Exposure to commercial herbicides by

[00:11:03] Speaker 02:
any military in any military location in the world that may be okay if it's they were all involved or plenty of them were involved in supporting the efforts in Vietnam.

[00:11:16] Speaker 02:
That's right.

[00:11:16] Speaker 02:
That they are all, they all should get the presumption that Congress has made available only to the DMZ zone and to Vietnam veterans who served in Vietnam.

[00:11:29] Speaker 04:
We think at the very least that rulemaking is warranted to make that determination and that the secretary's interpretation of the statute in denying rulemaking was an error.

[00:11:37] Speaker 04:
I also want to note that I respectfully disagree with your characterization of the historical record.

[00:11:41] Speaker 04:
The records replete with evidence that so-called commercial herbicides, or herbicides generally of a toxic nature, were sprayed by hand, by boat, by backpack.

[00:11:50] Speaker 04:
So it was not just the aerial, especially toxic, especially watered spraying.

[00:11:54] Speaker 02:
So why did they stop?

[00:11:55] Speaker 02:
The statute covers a specific period, 61 to 75.

[00:11:59] Speaker 02:
And I thought there's plenty of historical documentation.

[00:12:02] Speaker 02:
Maybe I'm wrong.

[00:12:03] Speaker 02:
There's historical documentation, because once they figured out what was going on and that this was not really a good idea to expose people to it, they got rid of it.

[00:12:12] Speaker 02:
That all had to do with tech.

[00:12:14] Speaker 02:
That wasn't commercial herbicides.

[00:12:15] Speaker 02:
Those were tactical herbicides.

[00:12:17] Speaker 04:
Right.

[00:12:17] Speaker 04:
So a couple of points.

[00:12:19] Speaker 04:
They're identical chemically, right?

[00:12:20] Speaker 04:
So other than the Agent Orange Act, the blue, the white, the pink, those agents were identical to the commercial herbicides.

[00:12:25] Speaker 04:
It's just is it packaged in a barrel that has a blue ribbon on it.

[00:12:28] Speaker 04:
So this is an illusory distinction in terms of the materials that are involved.

[00:12:32] Speaker 02:
So the same stuff that I use in my yard is what they were spraying in Vietnam that's covered by the Agent Orange Act?

[00:12:41] Speaker 04:
I'm not sure what you're spraying today in your yard, but at least at the time, yes.

[00:12:44] Speaker 04:
So 2,4-D, for instance, was in commercial herbicides.

[00:12:48] Speaker 02:
And I have at 2580... Isn't the record replete that what they were spraying in Vietnam was substantially different than the normal thing that at the time I could have gone into the local store and purchase?

[00:13:04] Speaker 04:
No, Your Honor.

[00:13:05] Speaker 04:
That is contradicted by VA's own statements and by the report at

[00:13:11] Speaker 04:
2582, which says that of all the herbicides used in South Vietnam, only Agent Orange was formulated differently from the materials used for commercial application.

[00:13:24] Speaker 04:
Agent Blue, Agent Pink, Agent White, those were identical substances to those sold in the United States commercially.

[00:13:29] Speaker 01:
So what do you contend is the difference between commercial and tactical?

[00:13:33] Speaker 04:
We contend there is no difference, that these identical chemical substances were sometimes used for tactical purposes.

[00:13:40] Speaker 04:
sometimes used for what the secretary calls commercial purposes, but that this was an illusory distinction because the same chemicals were being used for both purposes.

[00:13:47] Speaker 04:
The Agent Orange was used on flight lines and communication lines, for example.

[00:13:53] Speaker 04:
So this is an illusory distinction that the secretary is trying to retroactively impose, despite the fact that he recognized.

[00:13:59] Speaker 04:
So VA's own report at 1593 acknowledges this small-scale spraying.

[00:14:04] Speaker 04:
And that's true also at the legislative history citations.

[00:14:07] Speaker 00:
Well, to be clear, you're not drawing or pressing the line that I got the impression was of concern, for example, for Guam, which seemed to be the only location where there was at least attempt to, and the record at least to represent that there had been tactical use.

[00:14:28] Speaker 00:
of Agent Orange or Johnston Island, where it was seen not disputed that there was leakage from the storage tanks, but no other usage in Johnston Island.

[00:14:40] Speaker 00:
But you're not saying that those areas should at least achieve some sort of presumption.

[00:14:47] Speaker 04:
We are saying this.

[00:14:48] Speaker 00:
So you're saying it's all or nothing, which is what I think I just heard in the back and forth.

[00:14:54] Speaker 04:
No, Your Honor.

[00:14:54] Speaker 04:
So we offer there two errors here.

[00:14:56] Speaker 04:
The first one is the one we've been talking about, the statutory error.

[00:14:59] Speaker 04:
We say the statute should cover these substances because it identifies these substances by chemical composition.

[00:15:05] Speaker 04:
We say that the tactical commercial distinction should not apply here because they're identified by chemical composition.

[00:15:11] Speaker 04:
The second error we assert is that even accepting that interpretation, that the statute is cabin to tactical herbicides, that tactical herbicides were used for small-scale spraying for commercial purposes on Guam.

[00:15:23] Speaker 02:
But on that point, if I could follow up, assuming you can establish that, at least make the argument, and I think maybe this is what, that there was something.

[00:15:33] Speaker 02:
I mean, they were stored it, even if they were stored by private contractors.

[00:15:37] Speaker 02:
I think, why isn't the answer to that sufficient?

[00:15:40] Speaker 02:
I mean, in Vietnam, there were serious studies and Vietnam is not that huge a country.

[00:15:45] Speaker 02:
And there was so much use of Agent Orange that Congress passed an unprecedented statute saying that anyone who stepped foot, any veteran, any military officer who stepped foot in Vietnam had enough exposure.

[00:16:01] Speaker 02:
None of that has been said in Guam.

[00:16:05] Speaker 02:
People who served in Guam and contracted some sort of disease that is connected to the use of Agent Orange or whatever, they can file a claim.

[00:16:16] Speaker 02:
And if they can make their cases, Judge Newman suggested, that there is evidence that they were exposed individually, then they will win.

[00:16:24] Speaker 02:
What the difference is is in this case, you're saying what?

[00:16:29] Speaker 02:
That every veteran would you're

[00:16:31] Speaker 02:
Would your proposed rule apply, as the Agent Orange Act does, that any military officer who stepped foot in Guam should be entitled to this presumption, even though you have some evidence, perhaps, but very limited evidence in terms of potential exposure?

[00:16:51] Speaker 02:
That's the difference here.

[00:16:52] Speaker 02:
Nobody's saying they shouldn't be allowed to establish their case.

[00:16:55] Speaker 02:
and get paid.

[00:16:57] Speaker 02:
The question is whether every military person who stepped foot in Guam should be able to get the presumption because of what you're saying we know happened there.

[00:17:05] Speaker 04:
I disagree, Your Honor.

[00:17:06] Speaker 04:
VA is saying that these veterans should not be able to recover if they were exposed only to commercial herbicides.

[00:17:11] Speaker 04:
That they are not warranted with a presumption if they were only exposed to commercial herbicides.

[00:17:16] Speaker 04:
So they're looking for tactical herbicides.

[00:17:18] Speaker 04:
I would say with respect to why a presumption is warranted.

[00:17:21] Speaker 04:
And again, all we are arguing is that.

[00:17:22] Speaker 02:
No, but I thought the evidence that you put on that we were discussing with Judge Newman were about tactical herbicides.

[00:17:29] Speaker 04:
There's no dispute commercial herbicides were also sprayed on these islands.

[00:17:32] Speaker 02:
Well, but don't you think they were sprayed everywhere in the world?

[00:17:36] Speaker 04:
They were toxic and they were sprayed in many places, Your Honor.

[00:17:39] Speaker 02:
So we're talking about a new regime.

[00:17:41] Speaker 02:
We're pretty far away from Agent Orange, which we all, I think everybody in the world has some idea what that means.

[00:17:48] Speaker 02:
We're talking about any government use of commercial herbicides on any government facility.

[00:17:56] Speaker 02:
I don't know what the timeframe is between not starting in 1950 and going to now is entitled to a presumption

[00:18:05] Speaker 02:
the same presumption that the Agent Orange veterans are entitled to?

[00:18:09] Speaker 04:
Well, Your Honor, it would be limited by, for example, the nexus to the conflict in Vietnam that the statute requires.

[00:18:15] Speaker 02:
Well, wouldn't you say that our bases in Germany, India, there are plenty of places, right?

[00:18:22] Speaker 02:
I mean, Vietnam War lasted a long time.

[00:18:26] Speaker 04:
including bases in the United States, right?

[00:18:40] Speaker 04:
support provided in California by an attorney was support of contingent military operations across the world.

[00:18:47] Speaker 02:
I believe it was... Well, again, I emphasize, individual proof in an individual case is one thing.

[00:18:53] Speaker 02:
What we are talking here is the presumption.

[00:18:56] Speaker 02:
Doesn't it strike you as, I mean, Congress worked for a long time and really cared about the Agent Orange Act.

[00:19:01] Speaker 02:
They got involved in the DMZ.

[00:19:04] Speaker 02:
They've been involved in Thailand.

[00:19:06] Speaker 02:
I mean, they played a very, very active role.

[00:19:09] Speaker 02:
If you scroll down and look at the bills that have been, has anyone in Congress ever proposed that anyone who served in a military base that supported Vietnam during 1960 to 1975 should be given a presumption of exposure to Agent Orange?

[00:19:32] Speaker 04:
Your Honor, I'm not aware of a bill that would cover anyone on any military base.

[00:19:35] Speaker 04:
There is a bill that would cover some of these islands, for example, Guam and Johnson Island.

[00:19:40] Speaker 04:
I guess two points.

[00:19:43] Speaker 04:
One is that in support of can-be-limited, courts limit things like that all the time.

[00:19:47] Speaker 04:
O'Farrell was not concerned with the slippery slope in that regard.

[00:19:50] Speaker 04:
A court might conclude that in support of needed to be in the South Pacific Theater, for instance.

[00:19:54] Speaker 04:
It might conclude that commercial herbicides sprayed on a runway in Germany were not in support of operations in Vietnam.

[00:20:01] Speaker 04:
But that commercial herbicide sprayed on a runway in Guam were because those planes were flying over Vietnam and dropping bombs there.

[00:20:07] Speaker 04:
Those were military operations in Vietnam.

[00:20:10] Speaker 04:
So that, for instance, might be one.

[00:20:11] Speaker 02:
You're asking us to decide that.

[00:20:13] Speaker 04:
No, we're asking you to decide that rulemaking is warranted to make these decisions.

[00:20:19] Speaker 04:
Unless there are questions left.

[00:20:20] Speaker 00:
All right, let's hear from the video.

[00:20:22] Speaker 00:
Thank you.

[00:20:25] Speaker 00:
OK, Mr. Oh.

[00:20:27] Speaker 03:
May I please report?

[00:20:31] Speaker 03:
Rather than going through all the evidence, I'd like to pose a way about holistically thinking about the issues.

[00:20:37] Speaker 03:
I think Judge Prost, you were centering your questions on this issue.

[00:20:40] Speaker 03:
There are instances where a presumption is required by law, where Congress says, VA, you have to do it.

[00:20:48] Speaker 03:
That's the Agent Orange Act.

[00:20:49] Speaker 03:
There are instances where the VA, using its Section 501 authority for rulemaking, can say, persuade us that a presumption in this case is necessary.

[00:20:59] Speaker 03:
We are not in a statutory universe.

[00:21:01] Speaker 03:
Congress did not say, VA, you must issue a presumption that covers every veteran that served in the Vietnam era.

[00:21:08] Speaker 03:
Judge Pross, you had a slippery slope question, which was, doesn't this essentially cover every base during the Vietnam era?

[00:21:14] Speaker 03:
Is that your position?

[00:21:16] Speaker 03:
You asked your position for that question.

[00:21:18] Speaker 03:
On page 17 and 18 of the reply brief, the answer is yes.

[00:21:22] Speaker 02:
And their answer is- So let's finish what you were saying about how, okay, Congress didn't legislate.

[00:21:27] Speaker 02:
So it's up to you to do rulemaking and evaluate this.

[00:21:30] Speaker 02:
So why is there not at least enough to compel you to do rulemaking?

[00:21:35] Speaker 03:
So that's where I think the battle here lies.

[00:21:37] Speaker 03:
What does evidence show?

[00:21:38] Speaker 03:
So we're in that second universe, the evidentiary question.

[00:21:41] Speaker 03:
And again, these are highly deferential levels of review, overturned only in the rarest and most compelling circumstances.

[00:21:47] Speaker 03:
So let's look at the evidence.

[00:21:48] Speaker 03:
Well, there are two factors that drive the inquiry in this universe.

[00:21:51] Speaker 03:
The first factor is,

[00:21:53] Speaker 03:
For something like herbicide exposure, does the aggregate evidence strongly show why an impervasive toxic herbicide exposure warranting a broad-based presumption?

[00:22:02] Speaker 03:
That makes sense because a presumption is broad-based and it's indiscriminate.

[00:22:06] Speaker 03:
So in that universe, you need evidence that the presumption is warranted in order to use a blunt force over inclusive tool like a presumption, where you're saying, okay, we're out of the universe of individually proving your claims.

[00:22:18] Speaker 03:
We're just going to presume you all got it.

[00:22:20] Speaker 03:
We need broad-based evidence.

[00:22:21] Speaker 03:
That's factor one.

[00:22:22] Speaker 03:
Factor two is, would the claim otherwise be hard to prove on an individual basis?

[00:22:27] Speaker 03:
If the claim were easy to prove on an individual basis, you wouldn't need a presumption because everyone could just prove it.

[00:22:33] Speaker 03:
So those are the two factors that drove the secretary's inquiry.

[00:22:36] Speaker 03:
And conceptually, if you look at the secretary's decision, APPX 1 through 9, that's precisely what the secretary did.

[00:22:42] Speaker 03:
He said, well, look, I'm looking at the evidence.

[00:22:45] Speaker 03:
And here's what I see with this lens of broad and pervasive toxic herbicide exposure.

[00:22:50] Speaker 03:
He says, well, look, we did a DOD review.

[00:22:53] Speaker 03:
It was pretty exhaustive.

[00:22:54] Speaker 03:
It went through.

[00:22:55] Speaker 03:
It had this joint search criteria between the VA and the DOD.

[00:22:58] Speaker 03:
We looked at all these documents, all the official records.

[00:23:01] Speaker 03:
Government reports, unit history, shipping logs, contracts, scientific reports, photographs, no evidence of broad and pervasive herbicide use in Guam, or I should say the herbicides that VA is worried about.

[00:23:14] Speaker 03:
There was commercial herbicide use, but they said the ones that we're worried about, we don't see it.

[00:23:18] Speaker 03:
There's no evidence of that.

[00:23:20] Speaker 01:
So they contended that it was basically an illusory distinction between tactical and commercial.

[00:23:26] Speaker 01:
Can you speak to that?

[00:23:27] Speaker 03:
I think what they're saying is

[00:23:30] Speaker 03:
And it kind of tailors on their Agent Orange Act argument.

[00:23:33] Speaker 03:
They're saying, as long as you find the chemical compositions that were in Agent Orange anywhere, you should automatically assume that that's how you're required to define herbicide.

[00:23:48] Speaker 03:
You can't make any distinction between the harmful thing that everyone cares about, which is stuff like Agent Orange, which was unregistered,

[00:23:57] Speaker 03:
undiluted, just poured over Vietnam, or the stuff that you would buy at Lowe's and Home Depot.

[00:24:02] Speaker 03:
They're saying because of that, you can't make any distinction.

[00:24:05] Speaker 03:
So the mere fact that the VA said, yeah, we're not worried about the stuff at Home Depot.

[00:24:10] Speaker 03:
We're worried about the stuff that Congress was worried about when they passed Agent Orange.

[00:24:15] Speaker 03:
That's the shorthand the VA is using when they're saying tactical versus commercial.

[00:24:18] Speaker 02:
But the other side says there's nothing in the statute that differentiates between, that makes, that draws those distinctions.

[00:24:26] Speaker 02:
And therefore we ought to be guided by the broad statutory language of the Agent Orange Act.

[00:24:30] Speaker 03:
And I'd like to direct the court to the Agent Orange Act, specifically subpart A3.

[00:24:40] Speaker 03:
And this is actually, they omit the leading language in their brief repeatedly.

[00:24:46] Speaker 03:
They cite the rest of it, but they omit the part that says, for purposes of this section.

[00:24:52] Speaker 03:
Well, historically, what does that language do?

[00:24:53] Speaker 03:
It limits application of that definition to purposes of this section, which is the Agent Orange Act.

[00:25:00] Speaker 03:
So as soon as you add that language back in, this whole thing about, well, used in support of

[00:25:06] Speaker 03:
you know, in the Republic of Vietnam, what does that modify?

[00:25:09] Speaker 03:
It becomes useless because that definition of herbicide agent only applies to the Agent Orange Act, which only applies to military operations in the Republic of Vietnam.

[00:25:19] Speaker 03:
So the statutory question has no bearing on the question before this court.

[00:25:22] Speaker 03:
It's really an evidentiary question.

[00:25:24] Speaker 03:
What we do have

[00:25:25] Speaker 03:
is the DOD search criteria, no evidence.

[00:25:28] Speaker 03:
The GAO report investigated all the shipping logs, interviewed all the witnesses who had said they saw Agent Orange and they said we can't substantiate any of that.

[00:25:37] Speaker 03:
Okay, so we have that weight of evidence.

[00:25:39] Speaker 03:
The secretary looked at it, analyzed it, and said, it's pretty convincing.

[00:25:42] Speaker 03:
What do we have as a counterweight?

[00:25:43] Speaker 03:
Well, we have some affidavits.

[00:25:45] Speaker 03:
Some people saying, well, I think I saw it.

[00:25:47] Speaker 03:
I think only one affidavit actually says, I sprayed it.

[00:25:50] Speaker 03:
It's by Leroy Foster.

[00:25:51] Speaker 03:
I think it's ABPX, page 18.

[00:25:54] Speaker 03:
And he says, I sprayed it.

[00:25:55] Speaker 03:
But, you know, the GAO actually interviewed Affiance itself and said, you know, you say you saw it.

[00:26:01] Speaker 03:
They couldn't substantiate it.

[00:26:02] Speaker 03:
Nothing backed it up other than someone saying, I think I did it.

[00:26:06] Speaker 03:
And so the VA said, well, look, that's anecdotal evidence.

[00:26:09] Speaker 03:
These people are still able to prove their claim on an individual basis.

[00:26:13] Speaker 03:
It doesn't prove this wide and pervasive exposure that we're looking for.

[00:26:16] Speaker 02:
How does this, your friend cited specifically the C123 rulemaking.

[00:26:22] Speaker 02:
So how in your view is this

[00:26:25] Speaker 02:
is the case that they're seeking, the rulemaking they're seeking, not as compelling as the C123.

[00:26:30] Speaker 03:
So the C123, if the court's aware, the way we describe the factual scenario in our brief, C123s are what flew over Vietnam to spray the herbicides.

[00:26:39] Speaker 03:
And so what Congress said, or not Congress, I'm sorry, when the VA promulgated a rulemaking on that issue.

[00:26:45] Speaker 03:
And again, this was not necessarily an Agent Orange Act required promulgation of this presumption.

[00:26:52] Speaker 03:
They said, hey, you know, if we're going to cover this territory of Vietnam, it makes sense to cover the planes that are pouring the stuff over Vietnam, because it's very conceivable that they would have remnants of the toxic herbicides that we are worried about on them and the people that would work on those

[00:27:09] Speaker 03:
So that's the connection there.

[00:27:10] Speaker 03:
So when we're looking at, again, the factors where the VA is not necessarily compelled by statute to issue the presumption, the circumstances themselves, the evidence shows, okay, these planes were pouring tons of Agent Orange over Vietnam.

[00:27:24] Speaker 03:
We're worried about those service members because the levels of exposure, which we've measured, show that the planes carried this amount around the shells of the planes or wherever else in the plane.

[00:27:33] Speaker 03:
And so we want to cover the people working on those planes too.

[00:27:35] Speaker 03:
That was a very limited grant of presumption.

[00:27:38] Speaker 03:
Same goes for Korea.

[00:27:40] Speaker 03:
Under Section 501, the VA's 501 authority said, let's cover this very small strip of land on the DMZ zone in Korea, because we know we actually sprayed Agent Orange there over this period of two years.

[00:27:54] Speaker 03:
And so they covered that, too.

[00:27:56] Speaker 02:
Congress did that, too?

[00:27:58] Speaker 03:
They promulgated it later.

[00:28:00] Speaker 03:
I think it's under a subpart of the Blue Water Navy Act.

[00:28:03] Speaker 03:
So it was codified later, but first it was a regulation.

[00:28:06] Speaker 03:
So again, we're talking about a different universe.

[00:28:09] Speaker 03:
In this universe, you have to convince the secretary that a broad-based presumption is warranted.

[00:28:13] Speaker 03:
The other evidence they have was photographs, photographs of brown vegetation.

[00:28:18] Speaker 03:
Well, that could be caused by commercial herbicides.

[00:28:20] Speaker 03:
Photographs of unlabeled drums.

[00:28:23] Speaker 03:
Who knows what they contain?

[00:28:24] Speaker 03:
The best evidence they have maybe is some trace sampling reports, but what the secretary said there is

[00:28:30] Speaker 03:
Hey look, like we can find trace levels of 24D and 245T but that stuff's available in commercial herbicides and we know commercial herbicides were used.

[00:28:39] Speaker 03:
So that in itself doesn't establish the kind of

[00:28:42] Speaker 03:
necessary evidence for a presumption that we're looking for.

[00:28:45] Speaker 03:
It might prove the evidence of a commercial herbicide, the stuff we're not worried about, but it doesn't prove the pervasive broad levels of toxic herbicide exposure, the one that we are worried about.

[00:28:56] Speaker 03:
That's in a nutshell the Secretary's decision, and we think that decision is supported by substantial evidence.

[00:29:03] Speaker 03:
This is not one of those situations where we're facing a circumstance where the Secretary doesn't explain his decision, doesn't address all the evidence.

[00:29:10] Speaker 03:
He's merely weighing the evidence and reach a particular outcome.

[00:29:13] Speaker 03:
With all respect, this doesn't reach the rarest and most compelling circumstances where the court does not affirm the secretary's denial of the potential for rulemaking.

[00:29:21] Speaker 03:
We respectfully request the court affirm this.

[00:29:23] Speaker 02:
Just one further question.

[00:29:24] Speaker 02:
Here in this case that you cite, I guess, in the secretary's nine-page response, you cite and you mentioned the DOD study and the GAO study.

[00:29:34] Speaker 02:
Were those undertaken for purposes of evaluating where else, what else might be covered or undertaken during rulemaking?

[00:29:44] Speaker 03:
I am not 100% sure.

[00:29:46] Speaker 03:
I'm sorry.

[00:29:47] Speaker 03:
I'm not prepared to answer that.

[00:29:48] Speaker 01:
I have a couple of questions.

[00:29:50] Speaker 01:
What about the standing issue?

[00:29:51] Speaker 01:
Do you believe that those declarations that were provided in the reply are sufficient to show?

[00:29:56] Speaker 03:
No.

[00:29:56] Speaker 03:
And Judge Cunningham, I appreciate you bringing us back to that, because that is a question I wanted to address.

[00:30:01] Speaker 03:
So for the associational standing issue, we mentioned in our response that they had included affidavits from only individuals from Guam.

[00:30:10] Speaker 03:
They didn't include individuals from Johnson Island, American Samoa.

[00:30:14] Speaker 03:
Um, we've evaluated the affidavits that they've provided in their reply on the face of it.

[00:30:20] Speaker 03:
It appears they have, and we will say barely met.

[00:30:23] Speaker 03:
the standard for associational standing, but we defer the court to evaluate it for itself.

[00:30:27] Speaker 03:
The one thing I will mention though is procedurally raising these affidavits in a reply is procedurally improper.

[00:30:34] Speaker 02:
Well, leaving that aside, but you're saying the government is not opposing standing on the basis if we consider these affidavits.

[00:30:44] Speaker 03:
Yes, we are not opposing the associational standing, but I do think procedurally how it was brought up

[00:30:49] Speaker 03:
Um, it can, it can wreak all sorts of havoc on the briefing process.

[00:30:53] Speaker 02:
Yeah, I know.

[00:30:53] Speaker 02:
But you know, we've all lived through the past few years and this was an issue that was brought up by the court started at Suez Ponte and that really quite a recent vintage.

[00:31:05] Speaker 02:
Yeah.

[00:31:07] Speaker 03:
I mean, the one factual distinction I'll bring up is they did it for Guam and they didn't do it for these two other islands.

[00:31:12] Speaker 03:
So I think I'll leave it at that.

[00:31:15] Speaker 01:
Before you leave, I know you're trying to get out of here, but give me one more second.

[00:31:20] Speaker 01:
What about the surplusage argument?

[00:31:22] Speaker 01:
Talking about reading out the support of, or at least that's the argument that I saw was being made.

[00:31:26] Speaker 01:
I want you to address that.

[00:31:28] Speaker 03:
Yeah, I don't think there's any surplusage argument there.

[00:31:30] Speaker 03:
Just, you know, when I read the face of it, subpart 3, A3.

[00:31:35] Speaker 03:
When it defines herbicide agent, it says, for purposes of this section, the term herbicide agent means a chemical in an herbicide used in support of the United States, now led military operations in the Republic of Vietnam.

[00:31:48] Speaker 03:
Maybe I'm not creative enough, I don't see another way to read that.

[00:31:50] Speaker 03:
When you say for purposes of this section, that means only for purposes of the Agent Orange Act.

[00:31:55] Speaker 03:
When you're talking about used in support of military operations in the Republic of Vietnam,

[00:31:59] Speaker 03:
You're talking about in the Republic of Vietnam.

[00:32:01] Speaker 03:
I don't think these are textual points that you can just ignore and say, you know, that Asian Orange Act just has broad application to any geographic area, as page 17 and 18 of the petitioners' reply brief seems to argue.

[00:32:14] Speaker 00:
Okay, any more questions?

[00:32:18] Speaker 00:
Okay, thank you.

[00:32:19] Speaker 00:
Okay, Mr. Flynn, you have the last word.

[00:32:22] Speaker 04:
Thank you, Your Honor.

[00:32:24] Speaker 04:
I'll start with the factors the secretary outlined.

[00:32:27] Speaker 04:
One, whether there was evidence of widespread exposure, and two, how easy it is to prove that exposure.

[00:32:33] Speaker 04:
First, there is evidence of widespread exposure.

[00:32:36] Speaker 04:
For example, we discussed in our brief how the chemicals sprayed in Guam were drawn into the aquifer using dry injection wells, and then the water was drawn out for drinking water in Guam.

[00:32:47] Speaker 04:
The same is true with the swimming pool, the laundry facilities, the cooking facilities.

[00:32:50] Speaker 04:
That was all coming out of that aquifer.

[00:32:52] Speaker 04:
And as we show in the briefs, there was testing indicating that there were high concentrations of herbicides at the intake site for that desalination system, which is quite similar in judgment, as we were observing earlier, to the evidence that was present in Procopio, where there was herbicide exposure at the intake for the water in the ships.

[00:33:10] Speaker 04:
I just want to use Agent Blue as an example here.

[00:33:13] Speaker 04:
So the secretary says that there are herbicides he's concerned about, worried about, and herbicides he's not worried about.

[00:33:19] Speaker 04:
Well, Agent Blue is, I'm going to mispronounce this, but cacodylic acid.

[00:33:23] Speaker 04:
The secretary agrees that that's covered in the Agent Orange Act.

[00:33:26] Speaker 04:
That's part of the statutory coverage.

[00:33:29] Speaker 04:
But for some reason, the secretary is concerned about cacodylic acid when it's in a barrel with a blue label on it called Agent Blue, but not worried about it when it's in a commercial form, even though they're the exact same toxicity, the same chemical components.

[00:33:42] Speaker 04:
So we submit the secretary has not offered a rational distinction between those two.

[00:33:46] Speaker 04:
And also with exposure to Agent Blue, so we have

[00:33:49] Speaker 04:
At appendix 18, a veteran eyewitness explaining that he personally sprayed Agent Blue on Guam.

[00:33:56] Speaker 04:
And there is no evidence on the other side contradicting that.

[00:33:59] Speaker 04:
They point to the GAO report, but that report was exclusively about Agent Orange.

[00:34:04] Speaker 04:
Congress commissioned these reports and specifically instructed them only to consider Orange.

[00:34:10] Speaker 04:
So there's no evidence on the other side about Blue.

[00:34:12] Speaker 04:
There's only this eyewitness testimony.

[00:34:14] Speaker 04:
So we submit the secretary had no factual basis in the record to conclude that there was no exposure to tactical herbicides, because the only evidence in the record is that there was.

[00:34:24] Speaker 04:
On the statutory point, we'd again point to the coverage of the chemical components.

[00:34:31] Speaker 04:
For purposes of this section, we think it's a red herring.

[00:34:34] Speaker 04:
There's no question the secretary was using this section in this denial letter.

[00:34:38] Speaker 04:
He was applying it here, and he was using his interpretation of the Agent Warrant Act as a shield to deny the rulemaking.

[00:34:44] Speaker 04:
And we propose that when he erred in that interpretation, he shouldn't be able to use it as a shield, and instead should have proceeded to rulemaking.

[00:34:51] Speaker 04:
We think if there's any doubt here, the pro-veteran canon should apply, and the statute should be construed broadly to cover both tactical and commercial herbicides.

[00:35:01] Speaker 04:
Unless the court has any other questions.

[00:35:05] Speaker 04:
Thank you very much.

[00:35:05] Speaker 04:
We'd ask you to grant the petition.

[00:35:08] Speaker 00:
Thank you.

[00:35:08] Speaker 00:
Thank you both.

[00:35:09] Speaker 00:
The case is taken under submission.

[00:35:11] Speaker 00:
And that concludes this panel's