Veteranclaims’s Blog

June 17, 2022

MILITARY-VETERANS ADVOCACY INC., v. SECRETARY OF VETERANS AFFAIRS, No. 2020-2086 (Decided: June 17, 2022); highly toxic contaminant, 2,3,7,8-tetrachlorodibenzo-p-dioxin (“TCDD” or “dioxin”).; other tactical herbicides (e.g., Agents Pink, Purple, Green, Blue, and White); petition would presume herbicide exposure for veterans who served in Guam or Johnston Island during specified periods; Korean demilitarized zone (“DMZ”); 38 C.F.R. § 3.307(a)(6)(iv); see Herbicide Exposure and Veterans With Covered Service in Korea, 74 Fed. Reg. 36,640, 36,641, 36,646 (July 24, 2009); presume herbicide-agent exposure for veterans who “regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era.” 38 C.F.R. § 3.307(a)(6)(v); see Presumption of Herbicide Exposure and Presumption of Disability During Service for Reservists Presumed Exposed to Herbicide, 80 Fed. Reg. 35,246, 35,246, 35,248–49 (June 19, 2015); J.A. 2188 (“[W]hile [DoD] documents identify the use of commercial herbicides on Guam, they do not identify the use of tactical herbicides there.”); J.A. 2201 (“Available records show that [the DoD] stored and used commercial herbicides on Guam, possibly including those containing n-butyl 2,4,5-T, during the 1960s and 1970s, but documents do not indicate the use of tactical herbicides on Guam.”);

Filed under: Uncategorized — veteranclaims @ 11:02 pm

United States Court of Appeal for the Federal Circuit


MILITARY-VETERANS ADVOCACY INC.,
Petitioner
v.
SECRETARY OF VETERANS AFFAIRS,
Respondent


2020-2086


Petition for review pursuant to 38 U.S.C. Section 502.


Decided: June 17, 2022


JAMES ANGLIN FLYNN, Orrick, Herrington & Sutcliffe
LLP, Washington, DC, argued for petitioner. Also represented
by MELANIE L. BOSTWICK; JOHN B. WELLS, Law Office
of John B. Wells, Slidell, LA.
MEEN GEU OH, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington,
DC, argued for respondent. Also represented by BRIAN M.
BOYNTON, ERIC P. BRUSKIN, MARTIN F. HOCKEY, JR.; BRIAN
D. GRIFFIN, JONATHAN KRISCH, Office of General Counsel,
United States Department of Veterans Affairs, Washington,
DC.
SASHA RAO, Sterne Kessler Goldstein Fox PLLC,
Case: 20-2086 Document: 56 Page: 1 Filed: 06/17/2022
MILITARY-VETERANS ADVOCACY v.
SECRETARY OF VETERANS AFFAIRS
2
Washington, DC, for amicus curiae Association of the
United States Navy. Also represented by KRISTINA CAGGIANO
KELLY, MICHAEL E. JOFFRE.
STANLEY JOSEPH PANIKOWSKI, III, DLA Piper LLP
(US), San Diego, CA, for amicus curiae Therese M. Terlaje.


Before NEWMAN, PROST, and CUNNINGHAM, Circuit
Judges.
PROST, Circuit Judge.
Military-Veterans Advocacy Inc. (“MVA”) petitioned
the Secretary of Veterans Affairs (“VA”)1 to issue a rule
that would presume herbicide exposure for veterans who
served in Guam or Johnston Island during specified periods
.
The VA denied MVA’s rulemaking petition. MVA now
petitions this court under 38 U.S.C. § 502 to set aside the
VA’s denial and remand for rulemaking. We deny the petition.
BACKGROUND
I
The U.S. military sprayed over 17 million gallons of
herbicides over the Republic of Vietnam during the Vietnam
War. Dubbed “Operation Ranch Hand,” this operation
had two main objectives: (1) defoliate trees and plants
to improve visibility for further military operations, and
(2) destroy enemy food supplies.
1 Because neither party identifies any distinction between
the Secretary of Veterans Affairs and the Department
of Veterans Affairs that is relevant to the issues
presented here, this opinion refers to the two interchangeably
as the VA.
Case: 20-2086 Document: 56 Page: 2 Filed: 06/17/2022
MILITARY-VETERANS ADVOCACY v.
SECRETARY OF VETERANS AFFAIRS
3
Agent Orange was the primary herbicide used in Operation
Ranch Hand. It consisted of an undiluted mixture of
equal parts 2,4-dichlorophenoxyacetic acid (“2,4-D”) and
the n-butyl ester of 2,4,5-trichlorophenoxyacetic acid
(“2,4,5-T”). The latter ingredient, 2,4,5-T, includes a highly
toxic contaminant, 2,3,7,8-tetrachlorodibenzo-p-dioxin
(“TCDD” or “dioxin”).

Concerns about the health effects of veterans’ exposure
to Agent Orange led Congress to pass the Agent Orange
Act of 1991, Pub. L. No. 102-4, 105 Stat. 11. For veterans
who “served in the Republic of Vietnam” during a specified
period, the Act presumes exposure to an herbicide agent2
containing 2,4-D or dioxin. 38 U.S.C. § 1116(f). It also presumes
(for those same veterans) service connection for certain
diseases associated with herbicide-agent exposure,
such as non-Hodgkin’s lymphoma and soft-tissue sarcoma.
Id. § 1116(a)(2).
The VA has since issued regulations extending similar
presumptions to other groups of veterans. For example, in
light of Department of Defense (“DoD”) information that
herbicides were applied near the Korean demilitarized
zone (“DMZ”)
, the VA presumes herbicide-agent exposure
for veterans who served during a specified period “in a unit
that, as determined by the [DoD], operated in or near the
Korean DMZ in an area in which herbicides are known to
2 The Agent Orange Act defines “herbicide agent” as
“a chemical in an herbicide used in support of the United
States and allied military operations in the Republic of Vietnam
during the period beginning on January 9, 1962, and
ending on May 7, 1975.” 38 U.S.C. § 1116(a)(3). VA regulations
mirror this statutory definition and further provide
that herbicide agents are “specifically: 2,4-D; 2,4,5-T and
its contaminant TCDD; cacodylic acid; and picloram.”
38 C.F.R. § 3.307(a)(6)(i).
Case: 20-2086 Document: 56 Page: 3 Filed: 06/17/2022
MILITARY-VETERANS ADVOCACY v.
SECRETARY OF VETERANS AFFAIRS
4
have been applied during that period.”3 38 C.F.R.
§ 3.307(a)(6)(iv); see Herbicide Exposure and Veterans
With Covered Service in Korea, 74 Fed. Reg. 36,640,
36,641, 36,646 (July 24, 2009)
(proposed rule). Likewise,
an Institute of Medicine report led the VA to presume herbicide-
agent exposure for veterans who “regularly and repeatedly
operated, maintained, or served onboard C-123
aircraft known to have been used to spray an herbicide
agent during the Vietnam era.” 38 C.F.R. § 3.307(a)(6)(v);
see Presumption of Herbicide Exposure and Presumption
of Disability During Service for Reservists Presumed Exposed
to Herbicide, 80 Fed. Reg. 35,246, 35,246, 35,248–49
(June 19, 2015)
(interim final rule).
II
In 2017, the Armed Services Committee of the U.S.
House of Representatives expressed concern that additional
exposures to Agent Orange may have occurred in
Guam. H.R. Rep. No. 115-200, at 113 (2017). It therefore
directed the U.S. Comptroller General to review and submit
a report on the issue. Id. at 114. The U.S. Governmental
Accountability Office (“GAO”) submitted its report in 2018. J.A. 2164–266.
The GAO report began by characterizing Agent Orange
as a “tactical” herbicide—i.e., one “developed specifically by
[the] DoD to be used in combat operations”—as distinguished
from a “commercial” herbicide. J.A. 2169 & n.1;
see J.A. 2178–80. Although the report acknowledged that
tactical and commercial herbicides might have shared
some of the same chemical compounds, see J.A. 2179, it
noted differences between the two. For example, according
3 Congress later did similarly via statute. See Blue
Water Navy Vietnam Veterans Act of 2019, Pub. L.
No. 116-23, sec. 3(a), 133 Stat. 966, 969 (codified at
38 U.S.C. § 1116B).
Case: 20-2086 Document: 56 Page: 4 Filed: 06/17/2022
MILITARY-VETERANS ADVOCACY v.
SECRETARY OF VETERANS AFFAIRS
5
to the report, tactical herbicides were (1) centrally managed
by the military; (2) unauthorized for domestic use;
and (3) undiluted and sprayed aerially. J.A. 2176 n.21,
2178–79; see also J.A. 1592 (VA-commissioned report noting
that, “[u]nlike civilian applications of the components
contained in Agent Orange[,] which are diluted in oil and
water, Agent Orange was sprayed undiluted in Vietnam”).
Commercial herbicides, by contrast, were (1) widely available
worldwide for vegetation management; (2) approved
for use by all federal agencies; and (3) diluted and sprayed
by hand or truck when used on military installations.
J.A. 2178–79.
The GAO report then examined the extent of the government’s
information concerning the procurement, distribution,
storage, use, and disposition of Agent Orange in
Guam. See J.A. 2170; see also J.A. 2225–34 (Appendix I
identifying objectives, scope, and methodology). Recognizing
that ships from the continental United States carried
most of the tactical herbicides supporting U.S. military operations
in Vietnam, the GAO obtained the available logbooks
for 152 of the 158 identified voyages that transported
Agent Orange to Southeast Asia.4 J.A. 2195 (noting further
that, for three of the six voyages for which logbooks
could not be located, the GAO obtained copies of the vessels’
shipping articles). The report identified just four voyages
involving a stop in Guam; one ship stopped on the way to
Vietnam, and the other three stopped on the way back to
the United States. J.A. 2197–98. After reviewing available
4 The GAO report focused primarily on Agent Orange,
as opposed to other tactical herbicides (e.g., Agents
Pink, Purple, Green, Blue, and White)
. See J.A. 2169 n.1;
see also J.A. 2194 n.57 (observing that there are limited
shipment records available for Agents Pink, Green, and
Purple and that Agents Blue and White did “not contain nbutyl
2,4,5-T”).
Case: 20-2086 Document: 56 Page: 5 Filed: 06/17/2022
MILITARY-VETERANS ADVOCACY v.
SECRETARY OF VETERANS AFFAIRS
6
shipment documentation, the GAO “found no evidence indicating
that Agent Orange or any other tactical herbicides
were offloaded” from those ships. J.A. 2197; see
J.A. 2198–200 (noting that each stop appeared related to
offloading injured crew members).
The GAO also recounted veteran statements alleging
Agent Orange use in Guam, but it nonetheless “could not
substantiate the presence or use of Agent Orange or other
tactical herbicides” there. J.A. 2203. Rather, these allegations
were consistent with DoD information indicating that
commercial herbicides were available in Guam for controlling
vegetation. See J.A. 2203; see also J.A. 2188 (“[W]hile
[DoD] documents identify the use of commercial herbicides
on Guam, they do not identify the use of tactical herbicides
there.”); J.A. 2201 (“Available records show that [the DoD]
stored and used commercial herbicides on Guam, possibly
including those containing n-butyl 2,4,5-T, during the
1960s and 1970s, but documents do not indicate the use of
tactical herbicides on Guam.”)
.
The GAO did conclude, however, that a DoD list on the
VA’s website that identified herbicide-testing and -storage
locations outside of Vietnam was inaccurate and incomplete.
The report included several recommendations to the
DoD and VA related to updating and clarifying the list. After
receiving the GAO report, the DoD conducted an
18-month review of records to update the list. The DoD and
VA also developed joint criteria for what should be listed
as a location where tactical herbicides were used, tested, or
stored. Those joint criteria required that (1) an official record
existed (e.g., a government report, unit history, shipping
log, or contract); and (2) the location was a DoD
installation, land under DoD jurisdiction, or a non-DoD location
where service members were present during use,
testing, storage, or transportation. The DoD’s record
search and these joint criteria resulted in an updated list,
which identified 24 locations outside of Vietnam where tactical
herbicides were used, tested, or stored. J.A. 2267–82.
Case: 20-2086 Document: 56 Page: 6 Filed: 06/17/2022
MILITARY-VETERANS ADVOCACY v.
SECRETARY OF VETERANS AFFAIRS
7
Such locations included Cambodia, Canada, India, Johnston
Island,5 Korea, and Laos—but not Guam.
III
In December 2018, MVA petitioned the VA to issue
rules presuming herbicide-agent exposure for veterans
who served in Guam or Johnston Island during specified
periods.6 J.A. 10–12. As to Guam, MVA’s petition included
photographs and four veterans’ affidavits in support. The
photographs showed browned-out vegetation that purportedly
evidenced herbicide spraying in Guam, see J.A. 13,
while the affidavits recounted the veterans’ Vietnam-era
service in Guam and attested to their being aware of, witnessing,
or conducting herbicide spraying there,
J.A. 14–19. As to Johnston Island, MVA noted that it was
a storage site for Agent Orange drums between 1972 and

MVA asserted that corrosion caused the drums to
leak during that storage period and that military personnel
stationed there were exposed to that leakage. J.A. 11.
When discussing Guam, MVA’s rulemaking petition
discouraged distinguishing between tactical and commercial
herbicides. According to MVA, because commercial
herbicides contained 2,4,5-T, and because exposure to
5 Johnston Island is the largest island in the Johnston
Atoll. This opinion’s references to Johnston Island
contemplate both the island and the atoll.
6 In later supplements to its petition, MVA mentioned
including American Samoa along with Guam and
Johnston Island. See J.A. 2087; J.A. 2134. The VA denied
MVA’s petition as to American Samoa, J.A. 9, and MVA’s
opening brief to this court did not include any argument
concerning American Samoa that was separate and distinct
from its arguments concerning Guam or Johnston Island.
See Pet’r’s Br. 17 n.1. We therefore do not address
American Samoa separately.
Case: 20-2086 Document: 56 Page: 7 Filed: 06/17/2022
MILITARY-VETERANS ADVOCACY v.
SECRETARY OF VETERANS AFFAIRS
8
herbicides with that compound can suffice to establish service
connection for certain diseases, “[w]hether that exposure
came from Agent Orange, another tactical herbicide[,]
or a commercial herbicide is of no moment.” See J.A. 10.
MVA supplemented its rulemaking petition twice in
December 2019. Those supplements referenced, among
other things, a report concerning testing of soil taken from
Guam in 2018, which found “only trace amounts” of 2,4-D
and 2,4,5-T. J.A. 2134 (citing J.A. 2135–41).
In May 2020, the VA denied MVA’s rulemaking petition.
MVA sent the VA a letter responding to that denial
in June 2020, J.A. 2149–53, and it petitioned this court for
review in July 2020. In November 2020, the VA sought a
remand so that it could consider the aforementioned photographs
and veterans’ affidavits, which it had not considered
before rendering its May 2020 denial. We granted the
VA’s request and remanded so that it could consider these
materials, and we ordered the VA to render a new decision
on MVA’s rulemaking petition no later than February 19,

Order (Dec. 21, 2020), ECF No. 16.
On remand, the VA again denied MVA’s rulemaking
petition. J.A. 1–9. As to Guam, the VA cited the DoD’s
record search and noted that the DoD “found no evidence
of Agent Orange or other tactical herbicides on Guam.”
J.A. 2. It also cited the GAO report, which said that the
GAO “found no evidence indicating that Agent Orange or
any other tactical herbicides were offloaded . . . or used
in . . . Guam.” J.A. 2 (alteration in original) (quoting
J.A. 2197).
The VA further observed that, “[t]o the extent that
trace levels of 2,4-D and 2,4,5-T have been found on Guam,
that would be expected,” as commercial herbicides containing
these compounds were commonly used during the Vietnam
era (in Guam and elsewhere) for standard
vegetation and weed control. See J.A. 2–3 (“Thus, the presence
of trace levels of 2,4-D and 2,4,5-T cannot be construed
Case: 20-2086 Document: 56 Page: 8 Filed: 06/17/2022
MILITARY-VETERANS ADVOCACY v.
SECRETARY OF VETERANS AFFAIRS
9
as evidence of the presence of Agent Orange or tactical
herbicides in such locations.”). Likewise, it explained that
any high concentration of dioxin “would be expected” at, for
example, a firefighting training area in Guam because dioxin
can “be released into the environment through forest
fires, burning of trash or waste, or industrial activities.”
J.A. 6 (concluding that basing presumptions on dioxin levels
in a firefighting training area would implicate issues of
“false positives”).
The VA also addressed MVA’s argument against distinguishing
between tactical and commercial herbicides.
Although MVA had argued that such a distinction was “of
no moment,” the VA disagreed—at least insofar as extending
presumptions was concerned:
It is clear that Congress did not enact the Agent
Orange Act . . . and codify presumptive service connection
for veterans who served in the Republic of
Vietnam because of commercial herbicides commonly
used worldwide for standard vegetation and
weed control. Rather, Congress established presumptive
service connection . . . due to the unique
nature of the application and exposure in that country.
J.A. 3 (emphasis added) (cleaned up); id. (“[T]he primary
purpose of the [Agent Orange Act] was to acknowledge the
uniquely high risk of exposure, and corresponding risk to
[s]ervice members’ health, posed by large-scale application
of herbicides for the deliberate purpose of eliminating plant
cover for the enemy, as was done in the Republic of Vietnam.”
(emphasis added)). The VA summarized its view
of this issue:
Though [MVA] asserted that the spraying method
and the commercial-tactical distinction is of no real
import . . . , Congress, in the Agent Orange Act,
was addressing the question of when to presume
the service connection of certain diseases, and the
Case: 20-2086 Document: 56 Page: 9 Filed: 06/17/2022
MILITARY-VETERANS ADVOCACY v.
SECRETARY OF VETERANS AFFAIRS
10
spraying method and the extensive scale of application
in Vietnam were critical factors in the decision
to authorize a presumption—solely for
veterans who served in Vietnam. The fact that veterans
serving in Guam supported the effort in Vietnam
or may have worked with vehicles that
traveled to or from Vietnam . . . does not place
these veterans in the same position as veterans
who served in Vietnam insofar as a presumption is
concerned.
J.A. 4 (emphasis in original) (cleaned up); see id. (reasoning
that the Korean-DMZ and C-123-aircraft scenarios covered
by regulation “all directly relate to the deliberate application
of herbicides for a tactical military purpose on a broad
scale” and that the exposure scenario in Guam was “not
comparable”).
The VA then considered the photographs and veterans’
affidavits MVA submitted with its petition, but those materials
did not persuade it to issue a presumption-conferring
rule for Guam. J.A. 4–5. For example, the VA
observed that “[w]hile the degradation of foliage and vegetation—
resulting in the ‘brown-out’ effect shown in the
photographs—would be expected from the use of commercial
herbicides, which were routinely used in Guam for vegetation
management, it would be pure speculation to opine
as to the cause of the ‘brown-out’ effect.” J.A. 5. In the VA’s
view, the photographs did “not provide sufficient evidence
of the testing, use, storage, or transportation of Agent Orange
or other tactical herbicides in Guam so as to warrant
a presumption of exposure for all [v]eterans serving in
Guam” during the relevant period. J.A. 5. And although
the VA considered each of the four veterans’ affidavits, they
did “not alter this conclusion.” J.A. 5.
As to Johnston Island, the VA acknowledged that it
was a storage site for Agent Orange drums between 1972
and 1977 and that some leakage occurred. J.A. 7. But it
Case: 20-2086 Document: 56 Page: 10 Filed: 06/17/2022
MILITARY-VETERANS ADVOCACY v.
SECRETARY OF VETERANS AFFAIRS
11
noted that (1) civilian contractors, not military personnel,
were responsible for storage-related activities; (2) procedures
existed for those contractors to shower separately
and change into clean clothing before entering certain
other areas of the island; (3) those contractors screened the
entire inventory daily for leaks and performed de-drumming
activities as necessary; and (4) the storage area was
fenced and off-limits from a distance. J.A. 7. The VA also
noted that the storage site’s floor consisted of “densely compacted
coral,” which would have bound any leaked herbicide,
thus “providing little opportunity for the herbicide to
become airborne.” J.A. 8. And while the VA recognized
that contemporaneous independent monitors found concentrations
of 2,4-D and 2,4,5-T in ambient air and water
samples, it noted that those monitors concluded that any
exposure was “well below permissible levels.” J.A. 8 (citing
J.A. 3319–20). Accordingly, the VA decided not to issue a
presumption-conferring rule for Johnston Island, either.
MVA petitions this court to review the VA’s denial of
MVA’s rulemaking petition. We have jurisdiction under
38 U.S.C. § 502.
DISCUSSION
We review the VA’s denial of a rulemaking petition to
determine whether the denial was “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A); Serv. Women’s Action Network
v. Sec’y of Veterans Affs., 815 F.3d 1369, 1374 (Fed. Cir.
2016). This “highly deferential” standard is “rendered even
more deferential by the treatment accorded by the courts
to an agency’s rulemaking authority.” Preminger v. Sec’y
of Veterans Affs., 632 F.3d 1345, 1353 (Fed. Cir. 2011); see
also Am. Horse Prot. Ass’n v. Lyng, 812 F.2d 1, 4–5
(D.C. Cir. 1987) (observing that arbitrary-and-capricious
review “encompasses a range of levels of deference to the
agency” and that “an agency’s refusal to institute rulemaking
proceedings is at the high end of the range”).
Case: 20-2086 Document: 56 Page: 11 Filed: 06/17/2022
MILITARY-VETERANS ADVOCACY v.
SECRETARY OF VETERANS AFFAIRS
12
When, as here, a proposed rulemaking “pertains to a
matter of policy within the agency’s expertise and discretion,”
our scope of review is “narrow,” limited to “ensuring
that the agency has adequately explained the facts and policy
concerns it relied on and to satisfy ourselves that those
facts have some basis in the record.” Serv. Women’s Action
Network, 815 F.3d at 1374 (cleaned up). In other words, we
ask “whether the agency employed reasoned decisionmaking
in rejecting the petition.” Id. (cleaned up). Overturning
an agency’s judgment not to institute rulemaking is appropriate
in only the “rarest and most compelling of circumstances.”
Id. at 1375 (cleaned up).
MVA advances two main arguments in its petition for
review. First, it argues that the VA’s rulemaking denial
was “contrary to law” for resting on an impermissible interpretation
of the Agent Orange Act. E.g., Pet’r’s Br. 21;
see 5 U.S.C. § 706(2)(A) (requiring a reviewing court to set
aside agency action “otherwise not in accordance with
law”). Second, it argues that the denial “lacked a rational
basis in this record” and was therefore arbitrary and capricious.
Pet’r’s Br. 54. We address each argument in turn.
I
MVA styles its first argument as one of statutory interpretation.
It says that, in denying the petition as to Guam,
the VA misinterpreted the Agent Orange Act as applying
only to tactical herbicides—not commercial ones. Pet’r’s
Br. 30 (“In [the] VA’s view, the Agent Orange Act applies
only to so-called tactical herbicides . . . . [This] interpretation
of the Act fails at every stage of a traditional statutoryinterpretation
analysis.”). According to MVA, the Act’s
scope depends instead on an herbicide’s chemical composition,
aspects of which were common to both tactical and
commercial herbicides. See Pet’r’s Br. 31–32.
MVA’s statutory-interpretation argument is simply beside
the point. The Agent Orange Act does not give presumptions
to anyone other than those who “served in the
Case: 20-2086 Document: 56 Page: 12 Filed: 06/17/2022
MILITARY-VETERANS ADVOCACY v.
SECRETARY OF VETERANS AFFAIRS
13
Republic of Vietnam”—nor does it require the VA to do so.
It does, however, provide a decent example reflecting the
kinds of circumstances that have merited presumptions in
the past. The VA looked to those circumstances, compared
them to Guam’s, found them not comparable, and ultimately
declined to exercise rulemaking authority to extend
a presumption to Guam. That comparison and judgment
did not rest on any misconception about what the Act itself
does.
The tactical-commercial distinction in particular arose
when the VA considered the circumstances that led Congress
to pass the Agent Orange Act in the first place. The
VA reasoned that Congress gave veterans who “served in
the Republic of Vietnam” presumptions because of “the
uniquely high risk of exposure . . . posed by large-scale application
of herbicides for the deliberate purpose of eliminating
plant cover for the enemy,” as occurred in that
country—not “because of commercial herbicides commonly
used worldwide for standard vegetation and weed control.”
J.A. 3. And, when comparing the nature and extent of
herbicide activity in Vietnam (and in the other scenarios
where the VA has extended presumptions) to that in
Guam, the VA determined that the activity in Guam was
not comparable and therefore did not warrant exercising
rulemaking authority to extend a presumption there. See
J.A. 3–7. Thus, even assuming (for argument’s sake) that
the Act itself does not distinguish between tactical and
commercial herbicides when giving its presumptions, the
VA did not rest its denial on any contrary understanding of
the Act. Rather, it rested its denial on the view that Congress
gave those presumptions because it was concerned
about the spraying of millions of gallons of tactical
Case: 20-2086 Document: 56 Page: 13 Filed: 06/17/2022
MILITARY-VETERANS ADVOCACY v.
SECRETARY OF VETERANS AFFAIRS
14
herbicides—and that Guam did not present comparable
circumstances.7
MVA relies on Massachusetts v. EPA, 549 U.S. 497
(2007), to support its argument. But that case only highlights
the difference between legal errors requiring judicial
correction and what the VA did here. In Massachusetts,
several organizations filed a rulemaking petition asking
the EPA to regulate greenhouse-gas emissions under the
Clean Air Act. Id. at 510. The EPA denied the petition,
reasoning that (1) it lacked statutory authority to regulate
greenhouse-gas emissions; and (2) even if it had such authority,
doing so would be unwise because it would conflict
with other administration priorities. Id. at 511, 528. The
Supreme Court held that each justification was contrary to
statute. As to the first, the Court interpreted the Clean Air
Act as “unambiguous[ly]” supplying the EPA with the authority
it professed to lack. Id. at 528–29, 532. As to the
second, the Court held that the statute required certain
things of the EPA before it could decline to regulate and
that the EPA had not done those things. Id. at 533 (observing
that the “EPA has refused to comply with [a] clear statutory
command”). Because the EPA rested its denial on a
statutory misinterpretation and reasons that failed to comply
with what the statute required, the Court remanded to
the EPA for further proceedings. Id. at 535.
7 MVA makes a similar argument with respect to a
VA regulation, 38 C.F.R. § 3.307, saying that it doesn’t distinguish
between tactical and commercial herbicides.
Pet’r’s Br. 42–44. But this argument fails for similar reasons—
namely: (1) the VA did not rest its decision on a contrary
understanding; and (2) § 3.307 presumes herbicideagent
exposure only for veterans who served in specific circumstances
involving herbicide activity that the VA determined
was not comparable to that in Guam.
Case: 20-2086 Document: 56 Page: 14 Filed: 06/17/2022
MILITARY-VETERANS ADVOCACY v.
SECRETARY OF VETERANS AFFAIRS
15
MVA identifies no analogous potential error in this
case. For example, the VA’s denial did not claim that the
VA lacked authority to grant the petition. And although
MVA argues that the VA’s denial was “not in accordance
with law” under 5 U.S.C. § 706(2)(A), it does not demonstrate
how the denial failed to comply with any particular
legal requirement. In sum, MVA has not shown that the
VA’s decision was contrary to law.
II
MVA’s second argument concerns how the VA weighed
the evidence before it. According to MVA, the VA’s denial
“lacked a rational basis in this record” and was therefore
arbitrary and capricious. Pet’r’s Br. 54. We are unpersuaded.
As to Guam, MVA’s primary contention is that the VA
erred by relying on the GAO’s and DoD’s findings of “no
evidence” of tactical herbicides there because those findings
rested on the absence of official records documenting
as much. See Pet’r’s Br. 54–56. MVA argues that the absence
of official records is probative only if there is some
basis for believing that records would have been kept, and
it observes that the military generally kept no records of
“small-scale” spraying around American bases. But the VA
was not merely determining whether “small-scale” spraying
occurred in Guam; it was determining whether the nature
and extent of herbicide activity in Guam “warrant[ed]
a presumption of exposure for all [v]eterans” who served
there during the relevant period. J.A. 5. And MVA has not
convinced us that, in making that determination, it was arbitrary
(or capricious, or irrational) for the VA to rely on
the GAO’s and DoD’s no-evidence findings.
MVA’s other evidence-weighing arguments are also unconvincing.
For example, MVA points to the four veteran
affidavits it submitted and says that the VA “erred in rejecting”
them. Pet’r’s Br. 59. But the VA explicitly considered
them and found that they did “not alter [its]
Case: 20-2086 Document: 56 Page: 15 Filed: 06/17/2022
MILITARY-VETERANS ADVOCACY v.
SECRETARY OF VETERANS AFFAIRS
16
conclusion” that the record lacked sufficient evidence “so as
to warrant a presumption of exposure for all [v]eterans
serving in Guam” during the relevant period. See J.A. 5–6
(emphasis added).8 In denying the petition, the VA emphasized
the “extensive nature” of the DoD’s record search as
well as the GAO’s investigation and report. J.A. 6–7.
Nothing in these affidavits leads us to conclude that the
VA’s giving more weight to the DoD’s and GAO’s findings—
and ultimately deciding not to issue a broadly applicable,
presumption-conferring rule—was arbitrary or capricious.
In a similar vein, MVA says that the VA improperly
“trivialize[d]” soil testing data as showing only trace levels
of 2,4-D and 2,4,5-T because finding even trace levels today
is remarkable (given the passage of time, environmental
degradation, and alleged shortcomings in the testing process).
Pet’r’s Br. 63. But the VA found that such trace levels
would be expected because commercial herbicides
containing the same chemical compounds were used in
Guam. J.A. 2–3. The VA likewise explained that any high
concentration of dioxin in, for example, a firefighting training
area in Guam would be expected since dioxin can “be
released into the environment through forest fires, burning
of trash or waste, or industrial activities.” J.A. 6; see also
J.A. 2215 (GAO report observing that “there are multiple
sources of dioxin[], . . . and the specific source of dioxin contamination
is difficult to identify”).
Again, our scope of review is “narrow”; we ask only
whether the VA “employed reasoned decisionmaking in rejecting
the petition.” Serv. Women’s Action Network,
815 F.3d at 1374 (cleaned up). The VA did so here. It had
evidence bearing on the nature and extent of herbicide
8 The VA stressed that its decision not to issue a presumption-
conferring rule does not foreclose individual veterans
from proving herbicide-agent exposure in the normal
course of filing a benefits claim. J.A. 6.
Case: 20-2086 Document: 56 Page: 16 Filed: 06/17/2022
MILITARY-VETERANS ADVOCACY v.
SECRETARY OF VETERANS AFFAIRS
17
activity in Guam, and it determined that the evidence did
not warrant presuming exposure for every single veteran
who served in Guam during the relevant period. This determination—
and the VA’s explanation for it—was more
than adequate to survive our narrow, highly deferential review.
As to Johnston Island, MVA’s critiques of the VA’s reasoning
likewise do not persuade us that its denial was arbitrary
or capricious. For example, MVA challenges the
VA’s rationale that civilian contractors, not military personnel,
were responsible for activities concerning the storage
of Agent Orange drums. According to MVA, crosscontamination
occurred because those civilians showered
and ate in the same facilities as military personnel. See
Pet’r’s Br. 64; J.A. 2152. But the VA considered this argument
and found that MVA’s support for it was “not persuasive.”
J.A. 8 (referencing J.A. 2159–60). Nothing in MVA’s
petition for review convinces us that this assessment was
arbitrary or capricious. MVA also challenges the VA’s rationale
concerning the separate-showering and clean-clothing
procedures that existed; it says that the evidence the
VA relied on for that rationale “suggests” that those procedures
existed for only a limited period. Pet’r’s Br. 65 (citing
J.A. 3407–10, 3447). MVA’s argument on this score, however,
amounts to little more than speculation. And, particularly
in view of MVA’s own lack of support for its crosscontamination
theory, this argument hardly demonstrates
that the VA’s reliance on this evidence was irrational—
much less that its overall decision on Johnston Island was
arbitrary or capricious.
Finally, MVA argues that test samples from Johnston
Island undermine the VA’s finding that the isolation of the
Agent Orange drums protected veterans. Pet’r’s Br. 64.
But, as the VA observed in its denial, the contemporaneous
testing that MVA alludes to showed exposure to 2,4-D and
2,4,5-T that was “well below permissible levels.” J.A. 8 (citing
J.A. 3320 (“Concentrations of 2,4-D and 2,4,5-T found
Case: 20-2086 Document: 56 Page: 17 Filed: 06/17/2022
MILITARY-VETERANS ADVOCACY v.
SECRETARY OF VETERANS AFFAIRS
18
in the ambient air and water samples were minimal. . . .
[E]xposure of workers to airborne 2,4-D and 2,4,5-T w[as]
well below permiss[i]ble levels.”)); see also J.A. 3468 (“No
samples were in violation of currently accepted drinking
water standards . . . .”).
Like its arguments concerning Guam, MVA’s arguments
concerning Johnston Island simply do not overcome
our narrow, highly deferential standard of review.
CONCLUSION
We have considered MVA’s remaining arguments but
find them unpersuasive. For the foregoing reasons, we
deny MVA’s petition for review.
DENIED
COSTS
No costs.
Case: 20-2086 Document: 56 Page: 18 Filed: 06/17/2022

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.