Appeal from the United
States Court of Appeals for Veterans Claims in 04-4091, Judge William A.
Moorman
Stephen B.
Kinnaird, Sidley Austin LLP, of Washington, DC, filed a combined petition for
panel rehearing and rehearing en banc for claimant-appellee. On the petition
were Barton F. Stichman and Louis J. George, National Veterans Legal Services
Program, of Washington, DC.
Todd M.
Hughes, Deputy Director, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, filed a response to the
petition for respondent-appellant. With him on the response were Gregory G.
Katsas, Assistant Attorney General and Jeanne E. Davidson, Director. Of counsel
on the response were David J. Barrans, Deputy Assistant General Counsel, and
Ethan G. Kalett, Attorney, United States Department of Veterans Affairs, of
Washington, DC.
Stanley J.
Panikowski, DLA Piper US LLP, of San Diego, California, for amici curiae the
American Legion, et al.
John B.
Wells, of Slidell, Louisiana, for amicus curiae Patricia McCulley.
Before
MICHEL, Chief Judge, BRYSON, Circuit Judge, and FOGEL, District Judge.*
ON PETITION FOR REHEARING
PER CURIAM.
Mr. Haas has
sought rehearing of this court's decision in Haas v. Peake, 525 F.3d 1168 (Fed.
Cir. 2008). This supplemental opinion is principally addressed to an issue that
was raised for the first time in the petition for rehearing.
Page 2
In our
original opinion in this case, we held that the Department of Veterans Affairs
("DVA") had reasonably interpreted 38 U.S.C. § 1116(a)(1)(A), which
governs the provision of benefits to veterans who may have been exposed to
Agent Orange or other herbicides during the Vietnam War and have subsequently
developed one of a specified set of diseases. The statute presumes herbicide
exposure, and consequently provides for a presumption of service connection, if
the veteran has one of certain specified diseases and served "in the
Republic of Vietnam." Id. The DVA promulgated a regulation interpreting
the statutory phrase "served in the Republic of Vietnam" to mean that
the veteran's service must have involved "duty or visitation" in the
Republic of Vietnam in order for the veteran to receive the statutory
presumption of service connection. See 38 C.F.R. § 3.307(a)(6)(iii). The DVA
has interpreted that regulation to mean that the presumption of service
connection applies only to those servicemembers who physically set foot in the
Republic of Vietnam; that interpretation does not include veterans, such as Mr.
Haas, who served on ships that traveled outside the land borders of Vietnam and
who never came ashore.
In the
original appeal, Mr. Haas argued that the statutory phrase "in the
Republic of Vietnam" had an unambiguous meaning that precluded the DVA
from adopting its "foot-on-land" requirement. Mr. Haas contended that
the statute had to include at least those servicemembers who had served in the
coastal waters of Vietnam, supporting his arguments with the traditional tools
of statutory interpretation—an analysis of the statute's language, structure,
and legislative history. This court's opinion addressed and rejected these
arguments. Instead, we agreed with the conclusion reached by the Veterans
Court, that the statute's language was ambiguous on that point. Then, like the
Page 3
Veterans Court, we proceeded to consider whether deference
to the DVA's interpretation of the statute was appropriate under the Chevron
line of cases. We held that it was.
In his
petition for rehearing, Mr. Haas argues that any ambiguity in the meaning of
section 1116 should have been resolved in his favor under the canon of
statutory interpretation that ambiguity in a veterans benefits statute should
be resolved in favor of the veteran. Brown v. Gardner, 513 U.S. 115, 117-18
(1994). Because Mr. Haas failed to raise that argument in his brief on appeal,
despite the Veterans Court's ruling that the statute was ambiguous and despite
otherwise extensive briefing on the issue of statutory interpretation, the
argument has been waived. Pentax v. Robison, 135 F.3d 760, 762 (Fed. Cir. 1998)
(declining to address "the government's new theory raised for the first
time in its petition for rehearing"), citing United States v. Bongiorno,
110 F.3d 132, 133 (1st Cir. 1997) ("a party may not raise new and
additional matters for the first time in a petition for rehearing").
In any
event, application of the pro-claimant canon of statutory construction in this
case is not as simple as Mr. Haas's petition suggests. In cases such as this one,
where the statutory language is ambiguous, this court has held that deference
to the DVA's interpretation of the statute is nonetheless appropriate because
this court must "take care not to invalidate otherwise reasonable agency
regulations simply because they do not provide for a pro-claimant outcome in
every imaginable case." Sears v. Principi, 349 F.3d 1326, 1331-32 (Fed.
Cir. 2003). Thus, although Mr. Haas argues that the Brown doctrine effectively
means that the DVA is not entitled to deference if its rulemaking resolves a
statutory ambiguity, this court's precedent is to the contrary. See
Page 4
Nat'l Org. of Veterans' Advocates v. Sec'y of Veterans
Affairs, 260 F.3d 1365, 1378 (Fed. Cir. 2001) (stating that DVA's reasonable
interpretation of an ambiguous statute is entitled to deference despite
pro-claimant canon). Moreover, this case would present a practical difficulty
in determining what it means for an interpretation to be
"pro-claimant." While Mr. Haas contends that veterans who served
offshore, but never came to land, should be covered by 38 U.S.C. §
1116(a)(1)(A), the DVA has already interpreted the statute in a pro-claimant
manner by applying it to any veteran who set foot on land, even if for only a
very short period of time.
Although Mr.
Haas advocates defining "in the Republic of Vietnam" to include the
territorial seas adjacent to the Vietnamese mainland, adopting that standard
would raise new questions of interpretation and present new difficulties in
application. For example, Mr. Haas's interpretation would raise the question
whether the statute applies to claimants who flew through Vietnamese airspace
(including the airspace above the territorial seas) but never landed in
Vietnam. In addition, while Mr. Haas argues that the panel's interpretation is
"absurd" because it requires the DVA "to make individualized
inquiries into whether the veteran set foot on land or traversed inland waters
in Vietnam," the task of determining whether a particular veteran's ship at
any point crossed into the territorial seas during an ocean voyage would
seemingly be even more difficult. Thus, even if the argument that Mr. Haas now
raises had not been waived, it is by no means clear that its application would
have required that the statute cover Mr. Haas's case, or that the
"pro-claimant" canon would have provided clear construction and easy
application for the statute in question.
Page 5
While Mr.
Haas contends that the statutory reference to service "in the Republic of
Vietnam" is unambiguous, we are not persuaded that the term can have only
one meaning. In other contexts, as the government points out, statutory
references to presence "in" a country have been understood not to
include presence in the airspace or in the territorial waters surrounding the
country. See Zhang v. Slattery, 55 F.3d 732, 754 (2d Cir. 1995) (an alien does
not enter the United States until he has touched the soil). In the immigration
context, Congress at one time defined the term "United States" to
include "any waters . . . subject to the [U.S.] jurisdiction," but in
a later version of the statute, it defined "United States" without
referring to the territorial waters, and the term has subsequently been
interpreted not to include the territorial waters for those purposes. Yang v.
Maugans, 68 F.3d 1540, 1548 (3d Cir. 1995); see also In re Li, 71 F. Supp. 2d
1052, 1056 (D. Haw. 1999) ("[T]he term United States has several meanings
throughout the United States Code depending on the context.").
In at least
one instance, the term "United States" is defined differently in
different sections within the same title, in one case expressly including the
territorial waters and in another not. See 26 U.S.C. §§ 638 ("United
States" includes "subsoil of those submarine areas which are adjacent
to the territorial waters of the United States"), 7701(a)(9) ("United
States" includes only the States and the District of Columbia").
Thus, a simple reference to an event occurring "in the United States"
(or, by analogy, to an event occurring "in the Republic of Vietnam")
does not unambiguously include an event occurring in the offshore waters. In
fact, in a different statute dealing with Vietnam veterans, in which Congress
intended to cover service occurring in the waters adjacent to Vietnam, it so
specified. See Pub. L. No. 96-466, § 513(b), 94 Stat. 2171,
Page 6
2208 (1980), codified at 38 U.S.C. § 4107 note (referring to
"veterans who during the Vietnam era served in Vietnam, in air missions
over Vietnam, or in naval missions in the waters adjacent to Vietnam");
see also 38 U.S.C. § 101(30) (referring to veterans who "served in Mexico,
on the borders thereof, or in the waters adjacent thereto"); 49 U.S.C. §
40102(a)(46) (defining "United States" to mean "the States of
the United States, the District of Columbia, and the territories and
possessions, including the territorial sea and the overlying airspace").
In the absence of any such reference in section 1116 to the territorial waters
around Vietnam or the airspace above it, we continue to regard that statute as
ambiguous on this point.
The petition
for rehearing is denied.
Judge Fogel
would grant the petition for rehearing and respectfully recommends that the
full court grant rehearing en banc.
---------------
Notes:
* Honorable Jeremy Fogel, District Judge, United States
District Court for the Northern District of California, sitting by designation.
---------------