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Procopio v. Wilkie

United States Court of Appeals, Federal Circuit

January 29, 2019

ALFRED PROCOPIO, JR., Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee

          Appeal from the United States Court of Appeals for Veterans Claims in No. 15-4082, Judge Coral Wong Pietsch.

          Melanie L. Bostwick, Orrick, Herrington & Sutcliffe LLP, Washington, DC, argued for claimant-appellant. Also represented by Thomas Mark Bondy, Robert Manhas; Matthew R. Shahabian, New York, NY; John B. Wells, Law Office of John B. Wells, Slidell, LA.

          Eric Peter Bruskin, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by Joseph H. Hunt, Robert E. Kirschman, Jr., Martin F. Hockey, Jr.; Brian D. Griffin, Brandon A. Jonas, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

          Catherine Emily Stetson, Hogan Lovells U.S. LLP, Washington, DC, for amici curiae National Organization of Veterans' Advocates, Inc., Paralyzed Veterans of America, Military Officers Association of America, AMVETS, Veterans and Military Law Section, Federal Bar Association. Also represented by William David Maxwell. Amicus curiae National Organization of Veterans' Advocates, Inc. also represented by Chris Attig, Attig Steel, PLLC, Little Rock, AR.

          Kenneth M. Carpenter, Law Offices of Carpenter Chartered, Topeka, KS, for amicus curiae Joseph A. Taina.

          Glenn R. Bergmann, Bergmann Moore, LLC, Bethesda, MD, for amicus curiae The American Legion. Also represented by James Daniel Ridgway.

          Angela K. Drake, The Veterans Clinic at The University of Missouri School of Law, Columbia, MO, for amicus curiae National Law School Veterans Clinic Consortium.

          Doris Hines, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, DC, for amicus curiae Disabled American Veterans. Also represented by Charles Collins-Chase, Sean Damon, Ronald Lee Smith.

          Stanley Joseph Panikowski, III, DLA Piper LLP (US), San Diego, CA, for amici curiae Blue Water Navy Vietnam Veterans Association, Association of the United States Navy, Fleet Reserve Association. Also represented by Jacob Anderson, Erin Gibson.

          Stephen Blake Kinnaird, Paul Hastings LLP, Washington, DC, for amici curiae National Veterans Legal Services Program, Veterans of Foreign Wars of the United States. Amicus curiae National Veterans Legal Services Program also represented by Barton F. Stichman, National Veterans Legal Services Program, Washington, DC.

          Before Prost, Chief Judge, Newman, Lourie, Dyk, Moore, O'Malley, Reyna, Wallach, Taranto, Chen, and Stoll, Circuit Judges.

          OPINION

          Moore Circuit Judge.

         Alfred Procopio, Jr., appeals a decision of the Court of Appeals for Veterans Claims denying service connection for prostate cancer and diabetes mellitus as a result of exposure to an herbicide agent, Agent Orange, during his Vietnam War-era service in the United States Navy. Because we hold that the unambiguous language of 38 U.S.C. § 1116 entitles Mr. Procopio to a presumption of service connection for his prostate cancer and diabetes mellitus, we reverse.

         Background

         In 1991, Congress passed the Agent Orange Act, codified at 38 U.S.C. § 1116, granting a presumption of service connection for certain diseases to veterans who "served in the Republic of Vietnam":

[A] disease specified in paragraph (2) of this subsection becoming manifest as specified in that paragraph in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; and [B] each additional disease (if any) that (i) the Secretary determines in regulations prescribed under this section warrants a presumption of service-connection by reason of having positive association with exposure to an herbicide agent, and (ii) becomes manifest within the period (if any) prescribed in such regulations in a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, and while so serving was exposed to that herbicide agent, shall be considered to have been incurred in or aggravated by such service, notwithstanding that there is no record of evidence of such disease during the period of such service.

38 U.S.C. § 1116(a) (emphasis added). Under § 1116(f), such a veteran "shall be presumed to have been exposed during such service to [the] herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service."

         In 1993, the Department of Veterans Affairs issued regulations pursuant to § 1116 that stated "'Service in the Republic of Vietnam' includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam." 38 C.F.R. § 3.307(a)(6) (1993) ("Regulation 307"). In 1997 in a General Counsel opinion about a different regulation, the government interpreted Regulation 307 as limiting service "in the Republic of Vietnam" to service in waters offshore the landmass of the Republic of Vietnam only if the service involved duty or visitation on the landmass, including the inland waterways of the Republic of Vietnam, ("foot-on-land" requirement). Gen. Counsel Prec. 27-97 (July 23, 1997); 62 Fed. Reg. 63, 603, 63, 604 (Dec. 1, 1997).

         A panel of this court considered the government's interpretation of § 1116 in Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). Mr. Haas had served in waters offshore the landmass of the Republic of Vietnam but was denied § 1116's presumption of service connection because he could not meet the government's foot-on-land requirement. Id. at 1173. Accordingly, we were asked to decide whether "serv[ice] in the Republic of Vietnam" in § 1116 required presence on the landmass or inland waterways of the Republic of Vietnam. Id. at 1172.

         We applied the two-step framework of Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984), to § 1116 and Regulation 307. At Chevron step one, the Haas court held that § 1116 was ambiguous as applied to veterans who, like Mr. Haas, served in the waters offshore the landmass of the Republic of Vietnam but did not meet the foot-on-land requirement. 525 F.3d at 1184. At Chevron step two, the Haas court held Regulation 307 was "a reasonable interpretation of the statute" but itself ambiguous. Id. at 1186. It then "[a]ppl[ied] the substantial deference that is due to an agency's interpretation of its own regulations" under Auer v. Robbins, 519 U.S. 452, 461-63 (1997), to uphold the government's interpretation of Regulation 307, i.e., the foot-on-land requirement. Id. at 1195. See also Haas v. Peake, 544 F.3d 1306 (Fed. Cir. 2008).

         Mr. Procopio served aboard the U.S.S. Intrepid from November 1964 to July 1967. In July 1966, the Intrepid was deployed in the waters offshore the landmass of the Republic of Vietnam, including its territorial sea.[1]Mr. Procopio sought entitlement to service connection for diabetes mellitus in October 2006 and for prostate cancer in October 2007 but was denied service connection for both in April 2009. Diabetes mellitus is listed in the statute under paragraph (2) of § 1116(a), and prostate cancer is listed in the pertinent regulation, 38 C.F.R. § 3.309(e). The Board of Veterans' Appeals likewise denied him service connection in March 2011 and again in July 2015, finding "[t]he competent and credible evidence of record is against a finding that the Veteran was present on the landmass or the inland waters of Vietnam during service and, therefore, he is not presumed to have been exposed to herbicides, including Agent Orange," under § 1116. The Veterans Court affirmed, determining it was bound by our decision in Haas. Mr. Procopio timely appealed.

         A panel of this court heard oral argument on May 4, 2018, and on May 21, 2018, the parties were directed to file supplemental briefs on "the impact of the pro-claimant canon on step one of the Chevron analysis in this case, assuming that Haas v. Peake did not consider its impact." On August 16, 2018, the court sua sponte ordered the case be heard en banc. We asked the parties to address two issues:

Does the phrase "served in the Republic of Vietnam" in . . . § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam?
What role, if any, does the pro-claimant canon play in this analysis?
In addition to the parties' briefs, we received seven amicus briefs. The en banc court heard oral argument on December 7, 2018.

         Discussion

         Section 1116 extends the presumption of service connection to veterans who "served in the Republic of Vietnam" during a specified period if they came down with certain diseases. At issue is whether Mr. Procopio, who served in the territorial sea of the "Republic of Vietnam" during the specified period, "served in the Republic of Vietnam" under § 1116.

         Chevron sets forth a two-step framework for interpreting a statute, like § 1116, that is administered by an agency. 467 U.S. at 842. Step one asks "whether Congress has directly spoken to the precise question at issue." Id. "If the intent of Congress is clear, that is the end of the matter," and we "must give effect to the unambiguously expressed intent of Congress." Id. at 842-43. If, on the other hand, "the statute is silent or ambiguous with respect to the specific issue," we proceed to Chevron step two, at which we ask "whether the agency's answer is based on a permissible construction of the statute." Id. at 843.

         Here, we determine at Chevron step one that Congress has spoken directly to the question of whether Mr. Procopio, who served in the territorial sea of the "Republic of Vietnam," "served in the Republic of Vietnam." He did. Congress chose to use the formal name of the country and invoke a notion of territorial boundaries by stating that "service in the Republic of Vietnam" is included. The intent of Congress is clear from its use of the term "in the Republic of Vietnam," which all available international law unambiguously confirms includes its territorial sea. Because we must "give effect to the unambiguously expressed intent of Congress," we do not reach Chevron step two.

         In 1954, the nation then known as Vietnam was partitioned by a "provisional military demarcation line" into two regions colloquially known as "North Vietnam" and "South Vietnam." Geneva Agreements on the Cessation of Hostilities in Vietnam, art. 1, July 20, 1954, 935 U.N.T.S. 149 ("Geneva Accords"). In 1955, South Vietnam was formally named, by proclamation of its president, the "Republic of Vietnam." Provisional Constitutional Act Establishing the Republic of Viet-Nam, Oct. 26, 1955, reprinted in A.W. Cameron (ed.), Viet-Nam Crisis: A Documentary History, Volume I: 1940-1956 (1971).

         International law uniformly confirms that the "Republic of Vietnam," like all sovereign nations, included its territorial sea. This was true in 1955 when the "Republic of Vietnam" was created. Geneva Accords at art. 4 (extending the provisional military demarcation line into the "territorial waters"). And this was true in 1991 when Congress adopted the Agent Orange Act. In 1958, the United States entered into the Convention on the Territorial Sea and the Contiguous Zone ("1958 Convention"), agreeing that "[t]he sovereignty of a State extends, beyond its land territory and its internal waters, to a belt of sea adjacent to its coast, described as the territorial sea." 1958 Convention, art. 1(1), 15 U.S.T. 1606, T.I.A.S. No. 5639 (Apr. 29, 1958); see also United States v. California, 381 U.S. 139, 165 (1965) (stating the 1958 Convention provides "the best and most workable definitions available" for defining coastal boundaries); Legal Issues Raised by the Proposed Presidential Proclamation to Extend the Territorial Sea, 12 O.L.C. 238, 247 (1988) ("[T]he modern view is that the territorial sea is part of a nation and that a nation asserts full sovereignty rights over its territorial sea . . . ."). In 1982, the United Nations Convention on the Law of the Sea ("UNCLOS") echoed the 1958 Convention, stating "[t]he sovereignty of a coastal State extends . . . to an adjacent belt of sea, described as the territorial sea," having a breadth "not exceeding 12 nautical miles." Part II, arts. 2, 3, 1833 U.N.T.S. 397, 400 (Dec. 10, 1982). And the Restatement of Foreign Relations Law in effect when the Agent Orange Act was passed provided that "[a] state has complete sovereignty over the territorial sea, analogous to that which it possesses over its land territory, internal waters, and archipelagic waters," meaning "[t]he rights and duties of a state and its jurisdiction are the same in the territorial sea as in its land territory." Restatement (Third) of Foreign Relations Law §§ 511, cmt. b, 512, cmt. a (1987); see also id. ("[I]nternational law treats the territorial sea like land territory . . . ."); Presidential Proclamation 5928, 103 Stat. 2981 (1988) ("International law recognizes that coastal nations may exercise sovereignty and jurisdiction over their territorial seas.").[2]

         Thus, all available international law, including but not limited to the congressionally ratified 1958 Convention, confirms that, when the Agent Orange Act was passed in 1991, the "Republic of Vietnam" included both its landmass and its 12 nautical mile territorial sea.[3] The government has pointed to no law to the contrary. This uniform international law was the backdrop against which Congress adopted the Agent Orange Act. By using the formal term "Republic of Vietnam," Congress unambiguously referred, consistent with that backdrop, to both its landmass and its territorial sea.[4] We also note that the statute expressly includes "active military, naval, or air service . . . in the Republic of Vietnam," § 1116(a)(1), reinforcing our conclusion that Congress was expressly extending the presumption to naval personnel who served in the territorial sea. We conclude at Chevron step one that the intent of Congress is clear from the text of § 1116: Mr. Procopio, who served in the territorial sea of the "Republic of Vietnam," is entitled to § 1116's presumption.

         We find no merit in the government's arguments to the contrary. Its primary argument is that it injected ambiguity into the term "Republic of Vietnam" prior to the Agent Orange Act by promulgating two regulations, 38 C.F.R. § 3.311a(a)(1) ("Regulation 311") and § 3.313(a) ("Regulation 313"). According to the government, Regulation 311 imposed the foot-on-land requirement, but Regulation 313 did not. The government contends that § 1116 codified both regulations and that, accordingly, it is ambiguous whether Congress intended to impose the foot-on-land requirement. We are not persuaded.

         Regulation 311 created a presumption of service connection for chloracne and later soft-tissue sarcomas for veterans who served in "the Republic of Vietnam." It stated:

"Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations, if the conditions of service involved duty or visitation in the Republic of Vietnam.

         Regulation 313 created a presumption of service connection for Non-Hodgkin's lymphoma for veterans who served in "Vietnam." It stated:

"Service in Vietnam" includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam.

         The government asks us to infer that Regulation 311 imposed the foot-on-land requirement, and that Regulation 313 did not. This distinction is essential to its argument that § 1116, which codified both, is ambiguous. We do not agree. We do not read Regulation 311, Regulation 313, or even later-adopted Regulation 307 as articulating the government's current foot-on-land requirement. And there is no indication anyone, including the government, did before § 1116 was adopted.

         Regulation 311 grants a presumption of service connection for "service in the waters offshore and service in other locations, if the conditions of service involved duty or visitation in the Republic of Vietnam." Regulation 313 grants the presumption for "service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in Vietnam." We do not read these minor grammatical differences to compel the distinction the government urges. At best, the addition of a comma in Regulation 311 permits the clause "if the conditions of service involved duty or visitation in the Republic of Vietnam" to modify both "service in the waters offshore" and "service in other locations." But even if Regulation 311 is so read, it still does not impose the foot-on-land requirement: it covers everyone whose service included duty or visitation "in the Republic of Vietnam," which, under background law, embraces the territorial sea.

         That is the straightforward meaning of the regulation even after taking full account of the comma. As the government concedes, the "waters offshore" are broader than the territorial sea. See Oral Argument at 55:08- 55:19 (government's counsel acknowledging offshore waters "can also include beyond the territorial seas"); id. at 55:40-56:10 (government's counsel confirming offshore waters extend beyond the territorial sea); cf. id. at 2:00- 2:16 (Mr. Procopio's counsel stating "[t]he offshore water is broader than the territorial sea . . . and it's an important difference because a nation is sovereign only in its territorial sea."). Regulation 311's requirement of "duty or visitation in the Republic of Vietnam" brings within coverage only a subset of all those who served "offshore," namely, those whose service included presence on land, in the inland waterways, or in the territorial sea, consistent with international law. That is, veterans who served in the ...


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