An Analysis of some Background for the En Blanc Petition

By Wallace Ward


Reviewing Chevron Deference

Oddly enough, both the dissenting judge (Fogel) and the NVLSP are raising the fact that scientific evidence is being bypassed. The exact requirement that Congress set in place to enact presumption! Ref: Public Law 102- 4, SEC. 2. PRESUMPTION OF SERVICE CONNECTION FOR DISEASES ASSOCIATED WITH EXPOSURE TO CERTAIN HERBICIDE AGENTS, "(4) For purposes of this section, the term `herbicide agent' means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era.
"(b)(1) Whenever the Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease for the purposes of this section.
"(2) In making determinations for the purpose of this subsection, the Secretary shall take into account (A) reports received by the Secretary from the National Academy of Sciences under section 3 of the Agent Orange Act of 1991, and (B) all other sound medical and scientific information and analyses available to the Secretary. In evaluating any study for the purpose of making such determinations, the Secretary shall take into consideration whether the results are statistically significant, are capable of replication, and withstand peer review.

Step 1 of Chevron was not met for the following reason. The Agent Orange Act of 1991 required input of scientific finding. This fact was totally ignored. RE: "(A) reports received by the Secretary from the National Academy of Sciences under section 3 of the Agent Orange Act of 1991, and (B) all other sound medical and scientific information and analyses available to the Secretary. In evaluating any study for the purpose of making such determinations, the Secretary shall take into consideration whether the results are statistically significant, are capable of replication, and withstand peer review."

Statistical significance of the mortality studies of the Australian Government for a class specific "Navy" were ignored in total. Statistical significance was also ignored in the finding of the CDC Selected Cancer Studies, page 11.

Furthermore, the inaction of the DVA to direct NAS/IOM to actively seek addition study of these scientific epidemiology statistics demonstrates that DVA did not conform to the intent of the Congress in enactment of the Agent Orange Act of 1991 (Public Law 102-4).

Reference: In Professor Mark Seidenfeld's words, "[t]o the ex-tent that Chevron has generated dissension among lower courts, the dispute primarily concerns the vigor with which judges inquire, at step one, whether a statute has resolved the question addressed by the agency."21 Professor Seidenfeld notes that "deferential courts" see Chevron "as a strong signal from the Supreme Court that courts should not interfere with agency interpretations unless all would agree that the statute clearly evidences a contrary meaning on the precise question before the agency."22 Thus, such courts "generally find statutes silent or ambiguous at step one of the Chevron analysis."23 On the other side of the spectrum, "active courts" view Chevron "as a more limited suggestion that courts may overturn an agency interpretation, but only if the court itself is certain about congressional intent regarding the meaning of the statute," which leads these courts to "resolve more cases by finding statutes clear at step one."24 Despite the prominence of this divergence, courts have not generally provided any justification for their differential treatment of the Step One inquiry.

[21 - 21 Mark Seidenfeld, A Syncopated Chevron: Emphasizing Reasoned Decision-making in Re-viewing Agency Interpretations of Statutes, 73 TEX. L. REV. 83, 94-95 (1994).]
[22 -Id. at 95]
[23 - 23 Id. Professor Seidenfeld cites Massachusetts Department of Education v. United States Department of Education, 837 F.2d 536 (1st Cir. 1988), which noted that "[o]rdinarily . . . an agency's interpretation will carry the day, unless it is determined to be clearly erroneous or inconsistent with the statutory plan," id. at 541, as an example of such a "deferential" decision. See Seidenfeld, supra note 21, at 95 n.66. An example from the Supreme Court might be Rust v. Sullivan, 500 U.S. 173 (1991)]
[24 - 24 Seidenfeld, supra note 21, at 95. Maybe the most notable Supreme Court case illustrating this "active" approach is INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), whose Step One analysis was so searching that it prompted Justice Scalia to argue that it "implies that courts may substitute their interpretation of a statute for that of an agency whenever . . . they are able to reach a conclusion as to the proper interpretation of the statute." Id. at 454 (Scalia, J., concurring in the judgment). Justice Scalia protested that the Court's "approach would make deference a doctrine of desperation, authorizing courts to defer only if they would otherwise be unable to construe the enactment at issue. This is not an interpretation but an evisceration of Chevron." Id]


HARVARD LAW REVIEW [Vol. 118:1687]

In conclusion, when the application of Chevron is started, dispute primarily concerns the vigor with which judges inquire, at step one. Since the judges did little to inquire and in my opinion used weak examples of prior rulings, the application of Chevron deference is unwarranted.

If the judges had made vigorous enquiry, which they did not by citing that scientific merit was beyond their purview, then Chevron would not have been considered.


The following issues come to mind:

The decision is based on the application of Chevron deference for rules of presumption. The court did not make any ruling on merit of scientific merit or valid statistical analysis.

In the application of the Chevron deference, certain criteria must be met. The first of those criteria:

“Step one” of the Chevron analysis considers whether “Congress has directly spoken to the precise question at issue,” a question that we analyze using the traditional tools of statutory interpretation.

I have included some text from two court cases, with my comments listed a “WMWARD comment.”

CAVC

The court explained that “[t]here are many ways in which to interpret the boundaries of a sovereign nation such as the former Republic of Vietnam” and that the “legislative history of the 1991 act . . . is silent concerning what constitutes ‘service in the Republic of Vietnam.’”

Page 10

On the merits, the parties disagree about the proper resolution of virtually every issue in this case: whether the phrase “served in the Republic of Vietnam” in the Agent Orange Act of 1991 is ambiguous; whether the DVA’s regulation that interprets that phrase is itself ambiguous; whether the agency’s interpretation of that regulation is entitled to deference, or instead is unreasonable and inconsistent with the agency’s previous, longstanding interpretation of the regulation………….

Page 15

In litigation initiated by veterans’ advocacy groups, however, a federal district court ruled that the agency, by then renamed the Department of Veterans Affairs, had applied too stringent a standard for determining which diseases to include in its regulations promulgated under the 1984 Dioxin Act. See Nehmer v. U.S. Veterans Admin., 712 F. Supp. 1404, 1420 (N.D. Cal. 1990).

Page 17

The government does not dispute that the 1990 non-Hodgkin’s lymphoma regulation, which is still in effect, applies to veterans who served “offshore” and never visited the landmass of Vietnam, as those veterans were among those found to have an elevated risk of non-Hodgkin’s lymphoma in the 1990 CDC study. In fact, in 1993 the DVA issued a General Counsel opinion in which the agency explicitly stated that the non-Hodgkin’s lymphoma regulation covers service members who served in the waters off the shore of Vietnam, although the opinion concluded that the regulation does not cover service members whose involvement in the Vietnam theater was limited to high-altitude missions in Vietnamese airspace. DVA Op. Gen. Counsel Prec. 7-93 (Aug. 12, 1993).

Page 17

Congress included non-Hodgkin’s lymphoma on the list of diseases specifically identified in the Agent Orange Act based on evidence that, contrary to the conclusion of the 1990 CDC study, non-Hodgkin’s lymphoma was in fact associated with exposure to Agent Orange. See Report to the Secretary of Veterans Affairs on the Association Between Adverse Health Effects and Exposure to Agent Orange, reprinted in Links Between Agent Orange, Herbicides, and Rare Diseases: Hearing before the Human Resources and Intergovernmental Relations Subcomm. of the Comm. on Gov’t Relations, 101st Cong., 2d Sess. 22, 41 (1990).

Page 22

In its final rulemaking order, the DVA responded that it is “commonly recognized” that the statutory term “in the Republic of Vietnam” includes the inland waterways. 66 Fed. Reg. at 23,166. With respect to service in the offshore waters, however, the DVA explained that even before the enactment of the Agent Orange Act, the agency had taken the position that service offshore required some duty or visitation within the Republic of Vietnam to qualify for the presumptions of herbicide exposure and service connection, and that service on a deepwater vessel offshore did not constitute such service.

Page 25

We first address the government’s argument that the pertinent language of 38 U.S.C. § 1116 is ambiguous and that the DVA’s regulation issued pursuant to that statute, 38 C.F.R. § 3.307(a)(6)(iii), is entitled to deference as a permissible interpretation of the statute. Under the Chevron doctrine, “when an agency invokes its authority to issue regulations, which then interpret ambiguous statutory terms, the courts defer to its reasonable interpretations.” Fed. Express Corp. v. Holowecki, 128 S. 2007-7037 25

Ct. 1147, 1154 (2008); Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984) (a court will defer to an agency’s regulatory interpretation of a statute if the statute is ambiguous or contains a gap that Congress has left for the agency to fill through regulation). “Step one” of the Chevron analysis considers whether “Congress has directly spoken to the precise question at issue,” a question that we analyze using the traditional tools of statutory interpretation.

It is here, I take issue with the application of the Chevron doctrine.

In another Federal Circuit Court of Appeals decision,

66 F.3d 1191

Jennie R. LEFEVRE, Sally M. Hill, Frederick L. Rada and Mary Christina Veldman, Petitioners, v. SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, Respondent.

No. 94-7050.

United States Court of Appeals,

Federal Circuit. Sept. 15, 1995. Rehearing Denied Oct. 13, 1995.

Before RICH and MICHEL, Circuit Judges, and FRIEDMAN, Senior Circuit Judge.

Page 2 - 4

A. In 1984, Congress recognized that it would be virtually impossible to determine on a case-by-case basis whether exposure to herbicides in Vietnam caused a disease in a particular veteran. 130 Cong.Rec. 13,159 (remarks of Senator Simpson). It therefore decided to require the Secretary to create or reject a presumption-of-service connection for particular diseases, based upon the statistical probability of such connection, as reflected in scientific studies of the relationship between those diseases and exposure to herbicides and the incidence of those diseases in persons and animals subject to herbicide exposure. Id. at 13,157-59; See Veterans' Dioxin and Radiation Exposure Compensation Act of 1984, Pub.L. No. 98-542, 98 Stat. 2725 (1984 Act).

3

By 1991 Congress had concluded that the Secretary's administration of the 1984 Act had created doubt about the way the Act was being applied. A Senate Committee report on the 1991 Act stated:

4

A number of reviews of the scientific literature on the effects of exposure to dioxin have been carried out under contract with VA and published by VA pursuant to the mandate in [the 1984 Act].... General acceptance of these reviews has been impaired because of concern that VA may have exerted influence on their content. Although the Committee does not share such a concern, it nevertheless recognizes that the perception of a possibility of some taint does exist and cannot be dismissed out of hand. Other than these reviews, the Committee is unaware of any other unified analysis of the results obtained from studies on the effects of dioxin exposure or of any up-to-date analysis.

5

S.Rep. No. 101-82, 101st Cong., 1st Sess. 41 (1989).

6

Congress therefore enacted the 1991 Act to provide

7

a review, by an entity completely independent of VA, that will yield unified compilation and analysis of the results from the various scientific studies.

8

In order to accomplish this result, the Committee bill would provide for an independent contract scientific organization--the National Academy of Sciences unless NAS is unwilling to undertake this effort--to undertake a comprehensive review and evaluation of all of the scientific evidence, literature, and studies--including the Selected Cancers (SC) Study being carried out by CDC--

pertaining to the adverse health effects in humans or other animals of exposure to dioxin and other substances in herbicides used in Vietnam.

9

Id. at 42.

10

The 1991 Act directed the Secretary to seek to enter into an agreement with the National Academy of Science (the Academy or NAS), an independent non-profit, non-governmental scientific organization, under which the Academy would "review and summarize the scientific evidence and assess the strength thereof, concerning the association between exposure to an herbicide used in support of military operations in Vietnam," and "each disease suspected to be associated with such exposure." 38 U.S.C. Sec. 1116, Note, Sec. 3(c). The agreement was to require the Academy to transmit to the Secretary written reports over ten years, the first within 18 months and the remaining ones at least every two years. Id., Note Sec. 3(g)(1).

11

Under the 1991 Act the Academy is directed, "[f]or each disease reviewed," to

12

determine (to the extent that available scientific data permit meaningful determinations)--

13

(A) whether a statistical association with herbicide exposure exists, taking into account the strength of the scientific evidence and the appropriateness of the statistical and epidemiological methods used to detect the association;

14

(B) the increased risk of the disease among those exposed to herbicides during service in the Republic of Vietnam during the Vietnam era; and

15

(C) whether there exists a plausible biological mechanism or other evidence of a causal relationship between herbicide exposure and the disease.

16

(2) the Academy shall include in its reports under subsection (g) a full discussion of the scientific evidence and reasoning that led to its conclusions under this subsection.

17

Id., Note Sec. 3(d).

18

Within 60 days of receiving the Academy's report, the Secretary is to determine whether a "positive association existed between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans...." 38 U.S.C. Sec. 1116(b)(1). There is such a positive association "if the credible evidence for the association is equal to or outweighs the credible evidence against the association." 38 U.S.C. Sec. 1116(b)(3). If the Secretary determines, "on the basis of sound medical and scientific evidence," that such positive association exists, he is required to establish a presumption of service connection for the disease. 38 U.S.C. Sec. 1116(b)(1).

19

In making his determinations, the Secretary is required to "take into account" the Academy's report and "all other sound medical and scientific information and analysis available to the Secretary." 38 U.S.C. Sec. 1116(b)(2). "In evaluating any study for the purpose of making such determinations, the Secretary shall take into consideration whether the results are statistically significant, are capable of replication, and withstand peer review." Id.

Page 7 – 8

II.

36

The jurisdiction of this court directly to review acts of the Secretary is set forth in 38 U.S.C. Sec. 502 (Supp.V.1993):

37

An action of the Secretary to which section 552(a)(1) or 553 of title 5 (or both) refers, other than an action relating to the adoption or revision of the schedule of ratings for disabilities under section 355 of title 38, is subject to judicial review. Such review shall be in accordance with [the Administrative Procedure Act] and may be sought only in the United States Court of Appeals for the Federal Circuit.

38

Section 552(a)(1) requires each agency to publish in the Federal Register, among other things, "substantive rules of general applicability ... and statements of general policy or interpretations of general applicability...." Section 553, captioned "Rule making," specifies the procedure for rulemaking.

39

Thus, we may directly review rules promulgated by the Department of Veteran's Affairs, including substantive rules of general applicability, statements of general policy and interpretations of general applicability because these are all actions "to which section 552(a)(1) refers...."

Emphasis added

The Secretary contends that his determination is not a substantive rule because it will not have binding effect, since a claimant may establish service connection for any disease or injury by showing that it was incurred in service. Not only is this position unrealistic, but it is inconsistent with the reasons that led Congress in the 1984 Act to adopt the procedure of the Secretary creating presumptions of service connection for various diseases associated with herbicide exposure. Congress did so because it recognized that ordinarily it would be impossible for an individual veteran to establish that his disease resulted from exposure to herbicides in Vietnam.

Comment by WMWARD

The above statement shows that Congress recognized that ordinarily it would be impossible for an individual veteran to establish that his disease resulted from exposure to herbicides in Vietnam.

At no time does Congress address in its discussions, specific class or type of any veteran who served in Vietnam. The Congress does discuss scientific studies, statistical analysis and quantification of those results to be contracted outside the Department of Veterans’ Affairs. The Secretary of the Department of Veterans’ Affairs is to make a judgment on the materials presented and make a determination of presumption. The Congress did not limit the boundaries of service in Vietnam and as such, the presumption of Non Hodgkin’s Lymphoma by serving in the waters off-shore because of the findings of the CDC Select Cancer Study. In fact, the results and findings of this study should have set off alarm bells to the Department of Veterans’ Affairs to further explore other disease associated with off-shore veterans. The Department of Veterans’ Affairs could have replicated studies performed by other foreign nations and compared mortality studies, but did not take any action. By taking no action and not considering any scientific investigation, the Department of Veterans’ Affairs is remiss in its performance of duties as charged by Congress. The Department of Veterans’ Affairs appears to be back tracking to gain approval of its activities of more than one decade by asking for and receiving a grant of Chevron deference. It is clearly shown that the Department of Veterans’ Affairs makes excuses in just now trying to obtain information on how a distilling process worked on a U.S. Naval vessel that operated in the theater of operations in Vietnam. It is unknown if the request of the Department of Veterans’ Affairs to the DoD was ever made or answered concerning distilling processes aboard such naval vessels. The Department of Veterans’ Affairs also has degraded the EXAMINATION OF THE POTENTIAL EXPOSURE OF ROYAL AUSTRALIAN NAVY (RAN) PERSONNEL TO POLYCHLORINATED DIBENZODIOXINS AND POLYCHLORINATED DIBENZOFURANS VIA DRINKING WATER, A REPORT TO THE DEPARTMENT OF VETERAN AFFAIRS, AUSTRALIA; THE NATIONAL RESEARCH CENTRE FOR ENVIRONMENTAL TOXICOLOGY (ENTOX), QUEENSLAND HEALTH SCIENTIFIC SERVICES (QHSS), but continues to mention this study in every court hearing concerning CDR. Haas and proposed regulation changes. Actually, this degradation has not been challenged, other than by hearsay provided by the department itself when this study and accompanying mortality rates has been reviewed by peers from other countries (New Zealand, Australia and mentioned in European scientific research).

While I am on the topic of hearsay, it has been reported in news media that the Department of Veterans’ Affairs is currently cutting or curtailing many veteran benefits because of budget considerations. If true, this is bias toward the veteran population. It has been recently reported to me that state VSO’s in Portland, Oregan have stated that the Department of Veterans’ Affairs is holding all Brown Water, Blue Water, Dual Status Blue Water and Blue Water NHL claims under its current stay.

End Comment

Page 11

During the debate on the 1991 Act, Senator Daschle stated that

54

the Secretary's determination that a particular disease does not warrant a presumption of service connection would be subject to judicial review. For example, the Secretary's published determination that a presumption of service connection is not warranted for a particular disease clearly seems to be a "statement of general policy ... subject to judicial review under the Veterans Judicial Review Act."

Page 11

55

137 Cong.Rec. S1271 (daily ed. January 30, 1991). Senator DeConcini, the floor manager, agreed "that such a determination would be reviewable." Id. Accord 137 Cong.Rec. H731 (daily ed. Jan. 29, 1991) (statement of Rep. Evans). Moreover, in the 1984 Act, which first required the Secretary to determine whether a presumption was warranted, one of the bill's primary sponsors stated:

56

The Administrator's compliance with the required process, as well as any regulations issued by the Administrator would be subject to judicial review.

57

I cannot overstate the importance of judicial review ... It is only just that ... Vietnam veterans have their day in court.

WMWARD Comment:

This particular case is to show that no presumption by the Secretary of the Department of Veterans’ Affairs can be judicially challenged. The presumption that Blue Water veterans were not affected by the effects of dioxin exposure contains no scientific basis. The CDC has proven that a statistical study of cancer rates in Blue Water veterans shows a higher increase of cancer in such veterans compared to their land based counterparts.

These two cases both address the topic of presumption. One is administrative in nature; the other is based in academic review of scientific data. The intent of the Congress for presumption is clearly shown to be for academic review of scientific data. Therefore, step one of the Chevron deference is not met.

I would also like to call attention to the fact that Judge MICHEL served on both cases, both of which address presumption from two different perspectives. Since a previous ruling had been made, shouldn’t the judge have recused in this instance?



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