Excerpt from decision below:
“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.”
=========================
“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”
PROCOPIO v. WILKIE 5
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).”
=========================
United States Court of Appeals for the Federal Circuit
ALFRED PROCOPIO, JR.,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
2017-1821
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-4082, Judge Coral Wong
Pietsch.
Decided: January 29, 2019
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
2 PROCOPIO v. WILKIE
A. JONAS, Office of General Counsel, United States Department
of Veterans Affairs, Washington, DC.
CATHERINE EMILY STETSON, Hogan Lovells US 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.
PROCOPIO v. WILKIE 3
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 for the court filed by Circuit Judge MOORE, in
which Chief Judge PROST and Circuit Judges NEWMAN,
O’MALLEY, REYNA, WALLACH, TARANTO, and STOLL join.
Concurring opinion filed by Circuit Judge LOURIE.
Concurring opinion filed by Circuit Judge O’MALLEY.
Dissenting opinion filed by Circuit Judge CHEN, in which
Circuit Judge DYK joins.
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”:
4 PROCOPIO v. WILKIE
[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”
PROCOPIO v. WILKIE 5
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
- 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 - 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
6 PROCOPIO v. WILKIE
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
1 The Board of Veterans’ Appeals found, and the
parties do not dispute, that Mr. Procopio served in the
Republic of Vietnam’s territorial sea. J.A. 32, 49-52.
PROCOPIO v. WILKIE 7
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
8 PROCOPIO v. WILKIE
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
PROCOPIO v. WILKIE 9
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
2 The dissent criticizes that these sources of international
law merely “define the territorial waters over
which a sovereign nation has dominion and control” but
“do not purport to define territorial waters as part of the
definition of the country itself.” Dissent at 5. But the
area over which a sovereign nation has dominion and
control is a definition of the country itself, and the dissent
points to no sources supporting any other definition of the
“Republic of Vietnam.” The dictionaries and maps the
dissent cites define other terms (“Vietnam,” “United
States,” “Socialist Republic of Vietnam”). Dissent at 6, 8
nn.2-3. When trying to discern what Congress meant by
“in the Republic of Vietnam,” we think the contemporaneous
definition provided by international law is a better
source than the definitions of other countries provided by
these generalist dictionaries and maps.
10 PROCOPIO v. WILKIE
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)
3 There is no dispute that, when the Agent Orange
Act was passed in 1991, a nation’s territorial sea had a
breadth “not exceeding 12 nautical miles.” UNCLOS,
1833 U.N.T.S. at 400.
4 We do not, as the dissent contends, “create[] a new
canon of statutory construction that any use of a formal
country name necessarily includes the nation’s territorial
seas.” Dissent at 6. This case requires us to determine
only what Congress meant when it used the phrase “in
the Republic of Vietnam” in 1991.
PROCOPIO v. WILKIE 11
(“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 footon-
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,
12 PROCOPIO v. WILKIE
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-onland
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 waters offshore or in other locations would be eligible
for the presumption if during such service they visited the
Republic of Vietnam (which is defined as the landmass
and territorial sea by international law).
Given the undisputed distinction between offshore
waters and territorial seas, we see no basis for incorporating
a foot-on-land requirement into Regulation 311. The
PROCOPIO v. WILKIE 13
only discussion of this provision appears in the proposed
rulemaking where the government explains that,
“[b]ecause some military personnel stationed elsewhere
may have been present in the Republic of Vietnam, ‘service
in the Republic of Vietnam’ will encompass services
elsewhere if the person concerned actually was in the
Republic of Vietnam, however briefly.” 50 Fed. Reg. at
15,848, 15,849 (Apr. 22, 1985). We see no evidence that
the government understood Regulation 311 to include the
foot-on-land requirement until after the Agent Orange Act
was passed. The government first articulated this position
in 1997, six years after the Act. Gen. Counsel Prec.
27-97 (July 23, 1997). We cannot read into § 1116 an
ambiguity that relies on a distinction made only after
§ 1116 was adopted.
It is undisputed that Regulation 313 covering Non-
Hodgkin’s lymphoma does not include the foot-on-land
requirement, meaning the presumption of service connection
for Non-Hodgkin’s lymphoma would have applied to
veterans who served on the landmass or in the territorial
sea. The government asserts that Regulation 311 presumed
service connection for diseases—chloracne and
soft-tissue sarcomas—linked to herbicide exposure, while
Regulation 313 presumed service connection for a disease—
Non-Hodgkin’s lymphoma—not linked to herbicide
exposure. But that asserted distinction does not indicate
ambiguity in § 1116. Indeed, when Congress enacted
§ 1116 it expressly extended the presumption to Non-
Hodgkin’s lymphoma, as well as chloracne and soft-tissue
sarcomas. And the government argues that § 1116 intended
to codify Regulation 311 and Regulation 313. No
fair reading of § 1116 can exclude the very veterans
suffering from Non-Hodgkin’s lymphoma that were entitled
to Regulation 313’s presumption, yet the government’s
(and the dissent’s) reading does just that:
According to the government, a veteran with Non-
Hodgkin’s lymphoma who served in the Republic of Vi14
PROCOPIO v. WILKIE
etnam’s territorial sea would have been entitled to service
connection under Regulation 313, but this same veteran
would not be entitled to service connection under § 1116.
This cannot be right. We decline to read § 1116, as the
dissent urges, to both codify Regulation 313 and erode
that regulation’s coverage. We see no basis to conclude
that Congress chose to reduce the scope of service connection
for Non-Hodgkin’s lymphoma without explanation.
In short, we do not understand Regulation 311 or
Regulation 313 to articulate a foot-on-land requirement.
We find no merit to the government’s argument that
§ 1116 is ambiguous because “Congress’s codification of
the existing regulatory presumptions . . . tells, at best, a
conflicting story.” Appellee’s Br. 39–40. In 1991, Congress
legislated against the backdrop of international law
that had defined the “Republic of Vietnam” as including
its territorial sea for decades. The government’s foot-onland
requirement, first articulated in 1997, does not
provide a basis to find ambiguity in the language Congress
chose.
The government also argues the “Republic of Vietnam”
in § 1116 does not include its territorial sea because
when Congress intends to bring a territorial sea
within the ambit of a statute, it says so expressly.5 But
the examples the government points to address not a
nation’s territorial sea, but only “waters adjacent.” 10
U.S.C. §§ 3756, 6258, 8756 (extending the Korea Defense
Service Medal to those who “served in the Republic of
5 The government conceded, though, at oral argument
that if Congress were to pass a statute forbidding
military action within a nation, that statute would be
violated if the President sent forces into the nation’s 12-
mile territorial sea, as that would “impact the sovereign
boundary of [the nation].” See Oral Argument at 27:37-
28:13.
PROCOPIO v. WILKIE 15
Korea or the waters adjacent thereto”); Veterans’ Rehabilitation
and Education Amendments of 1980, Pub. L.
No. 96-466, § 513(b) (providing for the publishing of labor
statistics on “veterans . . . who served . . . in naval missions
in the waters adjacent to Vietnam”); 38 U.S.C.
§ 101(30) (defining the term “Mexican border period” in
the case of “a veteran who . . . served in Mexico, on the
borders thereof, or in the waters adjacent thereto”).
While the dissent calls this distinction “speculative,”
Dissent at 10, both parties conceded at oral argument
that the “waters adjacent” to a nation are distinct from,
and extend beyond, its territorial sea. See Oral Argument
at 26:50-27:18 (Mr. Procopio); id. at 55:00–55:15 (government).
It is precisely because “waters adjacent” go beyond
a nation’s landmass and territorial sea that Congress
needed to specify “waters adjacent” in these statutes. See,
e.g., Keene Corp. v. United States, 508 U.S. 200, 208
(1993) (“[I]t is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion” of “particular language”); W. Va. Univ. Hosps.,
Inc. v. Casey, 499 U.S. 83, 88-92 (1991) (comparing distinct
usage of “attorney’s fees” and “expert fees” among
statutes). These statutes cast no doubt on our conclusion
that, by using the formal term “Republic of Vietnam,”
Congress unambiguously referred, consistent with uniform
international law, to both its landmass and its 12
nautical mile territorial sea.
The other statutes the government cites likewise cast
no doubt on this conclusion. The government has failed to
cite any instance in which the unmodified use of a formal
sovereign name has been construed to not include its
territorial sea. Instead, the government would have us
infer that because several statutes refer to both the
“United States” and its “territorial seas” or “territorial
waters,” the term “United States” cannot be generally
understood to include territorial sea. We see no basis for
drawing that inference. As the Supreme Court has ob16
PROCOPIO v. WILKIE
served, there are “many examples of Congress legislating
in that hyper-vigilant way, to ‘remov[e] any doubt’ as to
things not particularly doubtful in the first instance.”
Cyan, Inc. v. Beaver Cty. Employees Ret. Fund, 138 S. Ct.
1061, 1074 (2018).6
6 In several cases, it is clear Congress’ express reference
to territorial sea was to remove any doubt as to a
provision’s meaning. For instance, in 16 U.S.C.
§ 2402(8)’s definition of “import,” the statement that “any
place subject to the jurisdiction of the United States”
“include[s] the 12-mile territorial sea of the United
States,” clearly reflects Congress’ express concern that
“import” as defined in § 2402(8) could be misread to have
the same meaning as it has under the customs laws of the
United States. For customs purposes a good may not be
imported until it arrives at a port, see, e.g., 19 C.F.R. §
101.1, and the “customs territory of the United States” is
limited to the States, the District of Columbia, and Puerto
Rico, and does not include other sovereign territory of the
United States, see Harmonized Tariff Schedule of the
United States, General Note 2. Similarly, the reference to
“United States waters” in 8 U.S.C. § 1158(a)(1) serves a
clarifying purpose in light of caselaw holding “physical
presence” is a term of art in immigration law requiring an
alien to have landed on shore, see Zhang v. Slattery, 55
F.3d 732, 754 (2d Cir. 1995). Nothing in these provisions,
18 U.S.C. § 2280(b)(1)(A)(ii), or 33 U.S.C. § 1203, suggests
Congress did not understand the term “United States” to
generally include its territorial sea.
It is also unsurprising that Congress has found it expedient
to define phrases including the term “United
States” for use in particular statutes and in some of those
instances it referred to the territorial sea of the United
States. E.g., 16 U.S.C. § 1362(15); 26 U.S.C. § 638(1);
46 U.S.C. §§ 2301, 4301, 4701(3). That provides little
PROCOPIO v. WILKIE 17
Respectfully, the Haas court went astray when it
found ambiguity in § 1116 based on “competing methods
of defining the reaches of a sovereign nation” and the
government’s urged distinction between Regulations 311
and 313. 525 F.3d at 1184–86. As discussed above,
international law uniformly confirms that the “Republic of
Vietnam” included its territorial sea. And we cannot read
into § 1116 an ambiguity that relies on a distinction
between Regulations 311 and 313 made by the government
only after § 1116 was adopted. Haas is overruled.7
insight into Congress’ use of the formal name of a foreign
country absent an express definition. In short, none of
these statutes sheds any light on how Congress understood
the “Republic of Vietnam” when it passed the Agent
Orange Act in 1991, and none create any ambiguity in the
face of long-established, uniform international law recognizing
the “Republic of Vietnam” includes its territorial
sea.
7 “[W]e have never applied stare decisis mechanically
to prohibit overruling our earlier decisions determining
the meaning of statutes.” Monell v. Dep’t of Social Servs.
of City of New York, 436 U.S. 658, 695 (1978). Charging
that “stare decisis in respect to statutory interpretation
has ‘special force,’ for ‘Congress remains free to alter what
we have done,’” the dissent seems to suggest we can never
overrule a precedent interpreting a statute. Dissent at 4
(quoting John R. Sand & Gravel Co. v. United States, 552
U.S. 130, 139 (2008)). But we see no reason here to “place
on the shoulders of Congress the burden of the Court’s
own error.” Monell, 436 U.S. at 695. The parties have
presented arguments and evidence not considered in
Haas. Haas, 525 F.3d at 1183-86. Moreover, the dissent’s
concern for “stability in the law” is misplaced. Dissent at
3 (quoting Robert Bosch, LLC v. Pylon Mfg. Corp., 719
F.3d 1305, 1316 (Fed. Cir. 2013). While there are certain18
PROCOPIO v. WILKIE
The parties and amici have differing views on the role
the pro-veteran canon should play in this analysis. See
generally Henderson v. Shinseki, 562 U.S. 428, 441 (2011);
Brown v. Gardner, 513 U.S. 115, 117-18 (1994); King v.
St. Vincent’s Hosp., 502 U.S. 215, 220 n.9 (1991); Fishgold
v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285
(1946); Boone v. Lightner, 319 U.S. 561, 575 (1943). Given
our conclusion that the intent of Congress is clear from
the text of § 1116—and that clear intent favors veterans—
we have no reason to reach this issue.
No judge on this court has determined that this veteran
should be denied benefits under § 1116. One concurrence
concludes that § 1116 is ambiguous but finds the
agency’s interpretation unreasonable. See Lourie, J.,
concurring. Because we decide that the statute is unambiguous,
we need not decide whether the agency’s interpretation
is reasonable. The dissent concludes that
§ 1116 is ambiguous but claims it is “premature” to decide
whether the agency’s interpretation is unreasonable.
Dissent at 17 (refusing to consider the reasonableness of
the agency’s interpretation). Respectfully, by declining to
reach Chevron step two, the dissent fails to decide this
case.8
ly situations where parties’ reliance on our settled law is
of paramount concern (see, e.g., Dickerson v. United
States, 530 U.S. 428, 443 (2000) (declining to overrule
Miranda v. Arizona, 384 U.S. 436 (1966), because “Miranda
has become embedded in routine police practice to
the point where the warnings have become part of our
national culture”)), no such reliance concern exists here.
8 The dissent criticizes our interpretation of § 1116
as a “policy choice [that] should be left to Congress,”
noting the “cost of expanding the presumption of service
connection.” Dissent at 16. Respectfully, we are interpreting
a statute, not making a policy judgment. MoreoPROCOPIO
v. WILKIE 19
CONCLUSION
Congress has spoken directly to the question of
whether those who served in the 12 nautical mile territorial
sea of the “Republic of Vietnam” are entitled to
§ 1116’s presumption if they meet the section’s other
requirements. They are. Because “the intent of Congress
is clear, that is the end of the matter.” Chevron, 467 U.S.
at 842. Mr. Procopio is entitled to a presumption of
service connection for his prostate cancer and diabetes
mellitus. Accordingly, we reverse.
REVERSED AND REMANDED
ver, the dissent’s criticism seems out of place where it has
not concluded that the agency’s determination is reasonable
or that Mr. Procopio should be denied his benefits.
United States Court of Appeals
for the Federal Circuit
ALFRED PROCOPIO, JR.,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
2017-1821
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-4082, Judge Coral Wong
Pietsch.
LOURIE, Circuit Judge, concurring in the judgment.
I join the majority in reversing the judgment of the
Veterans Court, but, respectfully, I would do so for different
reasons.
I do not agree with the majority that international
law and sovereignty principles, which would include the
territorial waters of the Republic of Vietnam, render the
phrase “served in the Republic of Vietnam” in 38 U.S.C.
§ 1116 unambiguous. See Majority at 8–10. Sovereign
borders are not necessarily what Congress had in mind
when it enacted statutes for veterans’ benefits, and specifically,
when it enacted the Agent Orange Act. See Haas v.
Peake, 525 F.3d 1168, 1175–83 (Fed. Cir. 2008) (discussPROCOPIO
2 v. WILKIE
ing the difficulty in determining the likelihood of exposure
to herbicides rather than any sovereignty concerns). The
majority’s holding thus covers more legal territory than
necessary and decides an issue not before us.
I instead agree with the court in Haas, see id. at
1183–86, and the dissent, see Dissent at 5–15, that
“served in the Republic of Vietnam” is ambiguous under
Chevron step one. The statute entitles a veteran to a
presumption of service connection for certain diseases if
the veteran “served in the Republic of Vietnam.” 38
U.S.C. § 1116(a). That qualification does not tell us
whether offshore waters are or are not included. Thus, as
to that issue, the statute surely is ambiguous.
I also agree with the Haas court that under Chevron
step two, the regulation promulgated by the agency
reflects a reasonable interpretation of the statute. See
Haas, 525 F.3d at 1186. However, unlike the court in
Haas, I would hold that the agency’s interpretation of its
regulation is not owed any deference as generally required
by Auer v. Robbins, 519 U.S. 452, 461–63 (1997),
because the regulation is not ambiguous, see Christensen
v. Harris Cty., 529 U.S. 576, 588 (2000) (“Auer deference
is warranted only when the language of the regulation is
ambiguous.”). Contra Haas, 525 F.3d at 1186–97.
The agency’s regulation states that “‘[s]ervice 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)(iii) (emphasis added).
In interpreting the regulation, we need not resort to
international definitions of national sovereignty over
waters adjacent to land or to the pro-veteran canon; we
should simply read the plain language of the regulation.
And, the plain reading of this inclusive regulation specifies
that service in the Republic of Vietnam includes
(1) “service in the waters offshore” and (2) “service in
PROCOPIO v. WILKIE 3
other locations if the conditions of service involved duty or
visitation in the Republic of Vietnam.” Id. Thus, a veteran
who served in the “waters offshore” is included within
the meaning of “service in the Republic of Vietnam” and
entitled to presumptive service connection.
The agency in this case appears to have interpreted
the “duty or visitation” clause to modify not only the
service in “other locations,” but also “waters offshore,”
creating a foot-on-land requirement. See Majority at 4–5
(discussing the agency’s interpretation). However, if
“duty or visitation” were required for all Vietnam veterans,
the phrases “waters offshore” and “other locations”
would be superfluous. Cf. Hibbs v. Winn, 542 U.S. 88, 102
(2004) (citation omitted) (“A statute should be construed
so that effect is given to all its provisions, so that no part
will be inoperative or superfluous, void or insignificant
. . . .”). Under the agency’s interpretation, it would matter
not whether the veteran served in the “waters offshore” or
“other locations” as long as the veteran set foot on the
Vietnam landmass, which renders the “duty or visitation”
clause the only operative phrase. That is contrary to the
regulation’s plain language.
While we, at least until higher law says otherwise, are
obligated to give some degree of deference to an agency in
interpreting its own regulation, see Auer, 519 U.S. at 461,
deference has its limits. We are not obligated to give an
agency deference when the regulation is not ambiguous,
see Christensen, 529 U.S. at 588, or when an “alternative
reading is compelled by the regulation’s plain language,”
Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512
(1994) (quoting Gardebring v. Jenkins, 485 U.S. 415, 430
(1988)), as it does here. Thus, I would reverse the judgment
of the Veterans Court because the agency’s regulation
plainly entitled Mr. Procopio to a presumption of
service connection for his prostate cancer and diabetes
mellitus based on his service in the offshore waters of
Vietnam.
United States Court of Appeals
for the Federal Circuit
ALFRED PROCOPIO, JR.,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
2017-1821
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-4082, Judge Coral Wong
Pietsch.
O’MALLEY, Circuit Judge, concurring.
I agree with the majority’s well-reasoned decision.
The term “Republic of Vietnam,” as it appears in
38 U.S.C. § 1116, unambiguously encompasses its territorial
waters.
I write separately because I believe the pro-veteran
canon of construction adds further support to the majority’s
conclusion. Specifically, I write to explain that: (1)
the pro-veteran canon, like every other canon of statutory
construction, can and should apply at step one of Chevron
to help determine whether a statutory ambiguity exists;
and, (2) even when a statute remains irresolvably ambig2
PROCOPIO v. WILKIE
uous, when a choice between deferring to an agency
interpretation of that statute—or particularly where that
interpretation is itself ambiguous—and resolving any
ambiguity by application of the pro-veteran canon come to
a head, traditional notions of agency deference must give
way.1
The Supreme Court has made clear that courts are obligated
to apply all traditional tools of statutory interpretation
at step one of Chevron. 467 U.S. at 843 n.9.
Indeed, “we owe an agency’s interpretation of the law no
deference unless, after ‘employing traditional tools of
statutory construction,’ we find ourselves unable to discern
Congress’s meaning.” SAS Inst., Inc. v. Iancu, 138 S.
Ct. 1348, 1358 (2018) (quoting Chevron, 467 U.S. at 843
n.9.); see also Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612,
1630 (2018) (“[D]eference is not due unless a court, employing
traditional tools of statutory construction, is left
with an unresolved ambiguity. And [here,] that [] is
missing: the canon against reading conflicts into statutes
is a traditional tool of statutory construction and it, along
with the other traditional canons we have discussed, is
more than up to the job of solving today’s interpretive
puzzle. Where, as here, the canons supply an answer,
Chevron leaves the stage.” (internal citations and quotations
omitted)); Food & Drug Admin. v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 132–33 (2000)
(employing at Chevron step one the “fundamental canon
of statutory construction that the words of a statute must
1 I address both Chevron and Auer deference because
we relied on both in Haas v. Peake to uphold the
agency’s regulation. We deferred to the agency’s interpretation
of its own ambiguous regulation under Auer, and
then, in turn, found “that the regulation reflects a reasonable
interpretation of the statute” under Chevron. 525
F.3d 1168, 1186 (Fed. Cir. 2008).
PROCOPIO v. WILKIE 3
be read in their context and with a view to their place in
the overall statutory scheme”); Gazelle v. Shulkin, 868
F.3d 1006, 1011–12 (Fed. Cir. 2017) (employing at Chevron
step one the canon that “Congress ‘legislate[s] against
the backdrop of existing law’” (citation omitted)).
A court similarly may not defer to an agency’s interpretation
of its own regulation or any other interpretive
ruling unless, after applying the same interpretative
principles that apply in the context of statutory interpretation,
the court finds the regulation or interpretation to
be ambiguous. Christensen v. Harris County, 529 U.S.
576, 588 (2000) (“Auer deference is warranted only when
the language of the regulation is ambiguous.”); Aqua
Prods., Inc. v. Matal, 872 F.3d 1290, 1316 (Fed. Cir. 2017)
(en banc) (“We use the same interpretive rules to construe
regulations as we do statutes[.]”); Roberto v. Dep’t of
Navy, 440 F.3d 1341, 1350 (Fed. Cir. 2006) (same). Thus,
there is no doubt that courts must apply all traditional
tools of statutory construction before resort to agency
deference, regardless of at what point the agency seeks
deference.
There is also no doubt that the pro-veteran canon is
one such traditional tool. Henderson v. Shinseki, 562 U.S.
428, 441 (2011) (“We have long applied the canon that
provisions for benefits to members of the Armed Services
are to be construed in the beneficiaries’ favor.” (quotations
omitted)); see Antonin Scalia, Judicial Deference to Administrative
Interpretations of Law, 1989 DUKE L.J. 511,
515 (1989) (“[T]he consideration and evaluation of policy
consequences” is “part of the traditional judicial tool-kit
that is used in applying the first step of Chevron[.]”). The
pro-veteran canon instructs that provisions providing
benefits to veterans should be liberally construed in the
veterans’ favor, with any interpretative doubt resolved to
their benefit. See, e.g., King v. St. Vincent’s Hosp., 502
U.S. 215, 220 n.9 (1991). The Supreme Court first articulated
this canon in Boone v. Lightner to reflect the sound
4 PROCOPIO v. WILKIE
policy that we must “protect those who have been obliged
to drop their own affairs to take up the burdens of the
nation.” 319 U.S. 561, 575 (1943). This same policy
underlies the entire veterans benefit scheme. Barrett v.
Principi, 363 F.3d 1316, 1320 (Fed. Cir. 2004) (“[T]he
veterans benefit system is designed to award entitlements
to a special class of citizens, those who risked harm to
serve and defend their country. This entire scheme is
imbued with special beneficence from a grateful sovereign.”
(quotations omitted)).
Few provisions embody this veteran-friendly purpose
more than § 1116’s presumption of service connection for
those who served in the Republic of Vietnam. Congress
enacted this presumption in response to concerns that the
agency was “utilizing too high a standard for determining
if there is a linkage between exposure to Agent Orange
and a subsequent manifestation of a disease” and was
thereby “failing to give the benefit of the doubt to veterans
in prescribing the standards in the regulations for VA
to use in deciding whether to provide service connection
for any specific disease.” Sidath Viranga Panangala et
al., Cong. Research Serv., R41405, Veterans Affairs:
Presumptive Service Connection and Disability Compensation
14 (2014) (quoting Nehmer v. United States Veterans’
Admin.¸712 F. Supp. 1420, 1423 (N.D. Cal. 1989)); see
also Agent Orange Legislation and Oversight: Hearing on
S. 1692 & S. 1787 Before the S. Comm. on Veterans’
Affairs, 1988 Leg., 2nd Sess. 5 (statement of Sen. Thomas
A. Daschle, Member, S. Comm. on Veterans’ Affairs)
(“[T]here is a time for study and more study, and there is
a time for leadership. In the case of veterans exposed to
Agent Orange . . . science will never be able to dictate
policy. That is our role.”). Section 1116 was designed to
afford veterans the benefit of the doubt in the face of
scientific uncertainty.
Courts have “long applied” the pro-veteran canon of
construction to such provisions. Henderson, 562 U.S. at
PROCOPIO v. WILKIE 5
- And, because we presume Congress legislates with
the knowledge of judicial canons of statutory construction,
we should apply this canon to resolve doubt in a claimant’s
favor because that is precisely what Congress intended
when it enacted the Agent Orange Act in 1991
against the backdrop of Boone. King, 502 U.S. at 220 n.9.
Thus, when interpreting such statutes, or regulations
promulgated thereunder, we may not resort to agency
deference unless, after applying the pro-veteran canon
along with other tools of statutory interpretation, we are
left with an unresolved ambiguity.2
The government contends that applying the proveteran
canon before resorting to agency deference would
usurp the agency’s role of gap-filling. But the government
forgets that an agency has no responsibility to fill gaps if
we find that Congress did not leave such a gap. SAS, 138
S. Ct. at 1358; City of Arlington v. F.C.C., 569 U.S. 290,
327 (2013) (Roberts, C.J., dissenting) (“We do not leave it
to the agency to decide when it is in charge.”). And,
2 Of course, application of the pro-veteran canon
will not always resolve ambiguities in a statute or regulation
in the veterans’ favor. For example, in Nat’l Org. of
Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs, we
resorted to agency deference despite applying the proveteran
canon because other canons of statutory construction
and the pro-veteran canon pulled in opposite directions.
260 F.3d 1365, 1378 (Fed. Cir. 2001). And, in
Burden v. Shinseki, we found that the pro-veteran canon
was not enough to resolve a statutory ambiguity when
deciding whether to award benefits to a veteran’s surviving
common law spouse over the veteran’s children because
neither interpretation had a particularly proveteran
reading. 727 F.3d 1161, 1169–70 (Fed. Cir. 2013).
Thus, while application of the pro-veteran canon may
resolve any apparent ambiguity, it will not always do so.
6 PROCOPIO v. WILKIE
importantly, it ignores that “the duty to interpret statutes
as set forth by Congress is a duty that rests with the
judiciary.” Bankers Tr. N.Y. Corp. v. United States, 225
F.3d 1368, 1376 (Fed. Cir. 2000). Deference cannot displace
either this duty or the duty to consider appropriate
legal doctrines when exercising it.
When the pro-veteran canon and agency deference
come to a head, it is agency deference—the weaker of two
doctrines at any level—that must give way. Several
justices of the Supreme Court have urged their colleagues
“to reconsider, in an appropriate case, the premises that
underlie Chevron and how courts have implemented that
decision.” Pereira v. Sessions, 138 S. Ct. 2105, 2121
(2018) (Kennedy, J., concurring); see also Michigan v.
E.P.A., 135 S. Ct. 2699, 2712 (2015) (Thomas, J., concurring)
(“I write separately to note that [the agency’s] request
for deference raises serious questions about the
constitutionality of our broader practice of deferring to
agency interpretations of federal statutes.”). By requiring
courts to defer to an agency’s interpretation of a statute—
not because it is the correct interpretation but because it
is merely reasonable—Chevron deference “wrests from
Courts the ultimate interpretative authority to say what
the law is,” and thereby “raises serious separation-ofpowers
questions.” Michigan, 135 S. Ct. at 2712.
The case for Auer deference is even weaker. Not only
have several justices expressed concerns with Auer deference,
the Supreme Court recently granted certiorari on
the question of whether the Court should overrule Auer
entirely. Kisor v. Shulkin, 880 F.3d 1378 (Fed. Cir. 2018),
cert. granted, Kisor v. Wilkie, 2018 WL 6439837 (2018)
(granting certiorari on question of “[w]hether the Court
should overrule Auer and Seminole Rock” and declining to
consider “[a]lternatively”-presented question of “whether
Auer deference should yield to a substantive canon of
construction”). As I have previously opined, Auer deference
“encourages agencies to write ambiguous regulations
PROCOPIO v. WILKIE 7
and interpret them later, which defeats the purpose of
delegation, undermines the rule of law, and ultimately
allows agencies to circumvent the notice-and-comment
rulemaking process.” Kisor v. Shulkin, 880 F.3d 1378,
1379–80 (Fed. Cir. 2018) (O’Malley, J., dissenting from
denial of en banc) (internal quotations and alterations
omitted) (citing Hudgens v. McDonald, 823 F.3d 630, 639
n.5 (Fed. Cir. 2016) (O’Malley, J.); Johnson v. McDonald,
762 F.3d 1362, 1366–68 (Fed. Cir. 2014) (O’Malley, J.,
concurring)). In this way, Auer deference leaves agencies’
rulemaking authority unchecked and, as with Chevron,
raises serious questions regarding separation of powers.
Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 621 (2013)
(Scalia, J., dissenting) (explaining that Auer “contravenes
one of the great rules of separation of powers” that “[h]e
who writes the law must not adjudge its violation”)
Of course, we have no authority to overturn either
Chevron or Auer. But we can and should consider these
well-documented weaknesses when agency deference
conflicts with the pro-veteran canon of construction.
Questionable principles of deference should not displace
long-standing canons of construction. Here, there is no
justification for deferring to the agency’s interpretation of
“Republic of Vietnam” when that interpretation fails to
account for the purpose underlying the entire statutory
scheme providing benefits to veterans. See Util. Air
Regulatory Grp. v. E.P.A., 573 U.S. 302, 321 (2014) (“Even
under Chevron’s deferential framework, agencies must
operate within the bounds of reasonable interpretation.
. . . A statutory provision that may seem ambiguous
in isolation is often clarified by the remainder of the
statutory scheme because only one of the permissible
meanings produces a substantive effect that is compatible
with the rest of the law.” (internal quotations and alterations
omitted)). Rather, deference should yield to the
canon that embodies this very purpose. To hold otherwise
would not only wrest from us our interpretative authority
8 PROCOPIO v. WILKIE
to say what the law is, it would displace congressional
intent.
Similarly, there is no justification for deferring to the
agency’s interpretation of its own ambiguous regulation
when it twice attempted and failed to codify the foot-onland
requirement through the notice-and-comment rulemaking
process. Presumptions of Service Connection for
Certain Disabilities, and Related Matters, 69 Fed. Reg.
44,614, 44,620 (July 27, 2004); Definition of Service in the
Republic of Vietnam, 73 Fed. Reg. 20,566, 20,567 (Apr. 16,
2008). We should not reward the agency with Auer deference
when it circumvents the rules mandated by Congress
in the Administrative Procedure Act in its effort to reach
a result contrary to the pro-veteran canon. And, when the
agency does not deny that its interpretation of the regulations
to which it now points to support the foot-on-land
requirement has been inconsistent over the years, the
case for deference is weaker still. Haas, 525 F.3d at 1190
(“[T]he agency’s current interpretation of its regulations
differs from the position it took in some previous adjudications
and seemed to take in its Adjudication Manual[.]”).
Thus, in a case like this one, where questionable
resort to agency deference and the pro-veteran canon
come to a head, agency deference must yield.
The government contends that the pro-veteran canon,
like the rule of lenity—which “requires interpreters to
resolve ambiguity in criminal laws in favor of defendants”—
is a canon of last resort that cannot trump agency
deference. Whitman v. United States, 135 S. Ct. 352, 353
(2014). This comparison misses the mark. While the
Supreme Court cautions against the overuse of the rule of
lenity, it has treated the pro-veteran canon more favorably.
Compare Moskal v. United States, 498 U.S. 103, 108
(1990) (“[W]e have always reserved lenity for those situations
in which a reasonable doubt persists about a statute’s
intended scope even after resort to the language and
structure, legislative history, and motivating policies of
PROCOPIO v. WILKIE 9
the statute.” (internal quotations omitted)), with Henderson,
562 U.S. at 441 (“We have long applied the canon
that provisions for benefits to members of the Armed
Services are to be construed in the beneficiaries’ favor.”
(quotations omitted)). This is not surprising considering
that the principles animating the rule of lenity differ
greatly from those of the pro-veteran canon. The rule of
lenity merely reflects a “presupposition of our law to
resolve doubts in the enforcement of a penal code against
the imposition of a harsher punishment,” but it is “not out
of any sentimental consideration, or for want of sympathy
with the purpose of Congress in proscribing evil or antisocial
conduct.” Bell v. United States, 349 U.S. 81, 83
(1955). In contrast, the pro-veteran canon recognizes this
country’s equitable obligation to “those who have been
obliged to drop their own affairs to take up the burdens of
the nation.” Boone, 319 U.S. at 575.
In this way, the pro-veteran canon is more analogous
to the substantive canon of construction applied in the
context of Indian law, which instructs that “statutes are
to be construed liberally in favor of Indians, with ambiguous
provisions interpreted to their benefit.” Montana v.
Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985). As
the Supreme Court has explained, “standard principles of
statutory construction do not have their usual force” when
weighed against the pro-Indian canon because the canon
is “rooted in the unique trust relationship between the
United States and the Indians.” Id.
Applying this principle, courts have found that the
pro-Indian canon trumps agency deference under Chevron.
Cobell v. Norton, 240 F.3d 1081, 1101 (D.C. Cir.
2001) (“Chevron deference is not applicable” in the context
of Indian law because “the special strength” of this canon
trumps the normally-applicable deference.); see also
Ramah Navajo Chapter v. Lujan, 112 F.3d 1455, 1461–62
(10th Cir. 1997) (“[T]he canon of construction favoring
Native Americans controls over the more general rule of
10 PROCOPIO v. WILKIE
deference to agency interpretations of ambiguous statutes.”).
The same should be true in this context.
As explained above, this country’s relationship with
its veterans is also both unique and important. The policy
that we owe a debt of gratitude to those who served our
country, which is the driving purpose behind the Agent
Orange Act, is derived from the same sources as the proveteran
canon, i.e., that those who served their country
are entitled to special benefits from a grateful nation.
See, e.g., 137 Cong. Rec. E1486-01, 137 Cong. Rec. E1486-
01, E1486, 1991 WL 65877, *1 (“We owe it to our Vietnam
veterans to enact badly needed legislation such as this so
that they are given a full and proper ‘thank you.’”); Barrett,
363 F.3d at 1320. Therefore, when the pro-veteran
canon and reflexive agency deference conflict, the canon
should control.
By codifying in § 1116 a presumption of service connection
for those who served in the Republic of Vietnam,
Congress recognized that veterans should not have to
fight for benefits from the very government they once
risked their lives to defend. We ignore this purpose when
we fail to apply the pro-veteran canon to resolve ambiguities
in statutes and regulations that provide benefits to
veterans; and, by failing to hold that agency deference
must yield to the pro-veteran canon, we permit agencies
to do the same. The practical result is that veterans like
Mr. Procopio, even after returning home, are still fighting.
Therefore, while I agree with the majority’s decision, I
write separately to lament the court’s failure—yet again—
to address and resolve the tension between the proveteran
canon and agency deference.3
3 While the Supreme Court will consider whether
Auer should be overruled and, thus, not available in any
cases, it did not agree to consider a second question
PROCOPIO v. WILKIE 11
raising whether principles of agency deference generally
must yield when at odds with the pro-veteran canon of
construction.
United States Court of Appeals
for the Federal Circuit
ALFRED PROCOPIO, JR.,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
2017-1821
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-4082, Judge Coral Wong
Pietsch.
CHEN, Circuit Judge, dissenting, with whom Circuit
Judge DYK joins.
Mr. Procopio suffers from prostate cancer and type 2
diabetes. He claims that his conditions are service connected,
relying on a statutory provision, 38 U.S.C. § 1116,
that creates a presumption of service connection for
service members who “served in the Republic of Vietnam
during the period beginning on January 9, 1962, and
ending on May 7, 1975.” We granted en banc review to
determine whether this provision unambiguously applies
to Blue Water Navy veterans, like Mr. Procopio, who
served in the territorial waters of Vietnam.
PROCOPIO v. WILKIE
2
The majority concludes that the statute unambiguously
applies to Blue Water Navy veterans who did not set
foot on the Vietnam landmass and overrules our prior
decision to the contrary in Haas v. Peake, 525 F.3d 1168
(Fed. Cir. 2008). In my view, the statute is ambiguous,
and the majority inappropriately preempts Congress’s
role in determining whether the statute should apply in
these circumstances—an issue which Congress is grappling
with at this very time.
Our court has already confronted this precise interpretive
question for veterans who served on ships off the
coast of Vietnam during the Vietnam War. And we concluded,
after considering the statute and its legislative
history, that this statutory phrase is ambiguous. See id.
at 1185–86. By repudiating a statutory interpretation
from a 10-year old precedential opinion without any
evidence of changed circumstances, today’s decision
undermines the principle of stare decisis.
Contrary to the majority’s conclusion, international
law and sovereignty principles do not dictate that Congress
unambiguously intended “Republic of Vietnam” to
include its territorial waters. No prior case has announced
a principle that a statute’s reference to a country
name should be treated as a term of art that encompasses
both the country’s landmass and territorial waters. Such
a rule is particularly anomalous in the context of a statute
governing veterans’ disability benefits, which in no way
implicates a foreign country’s sovereignty over territorial
waters. Further, I see nothing in the legislative history of
§ 1116 suggesting that Blue Water Navy veterans would
be covered by the presumption of service connection.
Because herbicides were sprayed throughout the landmass
of the Republic of Vietnam, it is at least a reasonable
understanding of the statute that Congress at the
time of the Agent Orange Act directed its statutory presumption
of service connection towards those service
members who had actually served within the country’s
PROCOPIO v. WILKIE 3
land borders. I would therefore find, as we did in Haas,
that § 1116 is ambiguous under Chevron step one. Accordingly,
I respectfully dissent.
STARE DECISIS AND HAAS V. PEAKE
This court has already ruled on the statutory interpretation
of service “in the Republic of Vietnam” under 38
U.S.C. § 1116(a)(1). In Haas, we addressed whether a
veteran who served on a ship that traveled in the territorial
waters of Vietnam but who never went ashore “served
in the Republic of Vietnam.” 525 F.3d at 1172. There, we
reviewed the statute and legislative history and concluded
that the phrase was ambiguous. Id. at 1184.
Despite our court’s settled statutory interpretation
from a decade ago, the majority nevertheless elects to reopen
this already-decided interpretive issue. In doing so,
the majority disregards stare decisis, which serves an
important purpose in American law. See Deckers Corp. v.
United States, 752 F.3d 949, 956 (Fed. Cir. 2014) (“[S]tare
decisis exists to ‘enhance [ ] predictability and efficiency
in dispute resolution and legal proceedings’ through
creation of settled expectations in prior decisions of the
court.”) (citation omitted).
In Robert Bosch, LLC v. Pylon Manufacturing Corp.,
we considered what effect stare decisis has when this
court reviews panel decisions en banc. 719 F.3d 1305,
1316 (Fed. Cir. 2013) (en banc). We pointed out that “the
implications of stare decisis are less weighty than if we
were [reconsidering] a precedent established by the court
en banc.” Id. (internal quotation marks omitted). Nevertheless,
we concluded that “panel opinions, like en banc
opinions, invoke the principle of stare decisis,” reasoning
that, “because [our precedent] represents the established
law of the circuit, a due regard for the value of stability in
the law requires that we have good and sufficient reason
to reject it at this late date.” Id. (internal quotation
marks and citation omitted) (alteration in original).
PROCOPIO v. WILKIE
4
The Supreme Court has warned that “stare decisis in
respect to statutory interpretation has ‘special force,’ for
‘Congress remains free to alter what we have done.’”
John R. Sand & Gravel Co. v. United States, 552 U.S.
130, 139 (2008) (citation omitted). “A difference of opinion
within the Court . . . does not keep the door open for
another try at statutory construction . . . .” Watson v.
United States, 552 U.S. 74, 82 (2007). Indeed, “the very
point of stare decisis is to forbid us from revisiting a
debate every time there are reasonable arguments to be
made on both sides.” Lighting Ballast Control LLC v.
Philips Elecs. N. Am. Corp., 744 F.3d 1272, 1283 (Fed.
Cir. 2014) (en banc), abrogated by Teva Pharm. USA, Inc.
v. Sandoz, Inc., 135 S. Ct. 831 (2015) (quoting Morrow v.
Balaski, 719 F.3d 160, 181 (3d Cir. 2013) (Smith, J.,
concurring)). Congress has the responsibility for revising
its statutes; the Judiciary should be more circumspect
before forsaking prior statutory interpretations. See Neal
v. United States, 516 U.S. 284, 295–96 (1996). Indeed, the
recent debates in Congress, which required consideration
of the significant cost of the proposed addition of Blue
Water Navy veterans underscores why Congress, rather
than the courts, should be the one to revisit our interpretation
in Haas. See Citation of Supplemental Authority 1,
ECF No. 39; Blue Water Navy Vietnam Veterans Act,
H.R. 299, 115th Cong. (2017–18) (“Blue Water Navy
Vietnam Veterans Act of 2018”). The Supreme Court’s
admonishment against overruling prior statutory interpretation
is particularly apt here, where Congress has
been actively considering whether to take any action in
response to this court’s interpretation.
Our statutory interpretation in Haas has been the law
of this court for over ten years. Neither party has identified
any intervening development of the law that has
removed or weakened the conceptual underpinnings from
Haas in this regard. I would therefore follow Haas to
conclude that the statutory phrase at issue is ambiguous.
PROCOPIO v. WILKIE 5
STATUTORY AMBIGUITY
I do not find persuasive the majority’s conclusion that
international law dictates its interpretation. The Haas
court considered similar sources of evidence but still
concluded that the statutory phrase was ambiguous.
Haas, 525 F.3d at 1184. All of the international law
sources relied upon by the majority relate to laws that
statutorily define the territorial waters over which a
sovereign nation has dominion and control. See, e.g.,
Restatement (Third) of Foreign Relations Law § 511(a)
(“The territorial sea: a belt of sea that may not exceed 12
nautical miles, measured from a baseline that is either
the low-water line along the coast or the seaward limit of
the internal waters of the coastal state or, in the case of
an archipelagic state, the seaward limit of the archipelagic
waters”); United States v. California, 332 U.S. 19, 33
(1947) (“That the political agencies of this nation both
claim and exercise broad dominion and control over our
three-mile marginal belt is now a settled fact.”); 1958
Convention on the Territorial Sea and the Contiguous
Zone, art. 1(1), 15 U.S.T. 1606, T.I.A.S. No. 5639 (Apr. 29,
1958) (“The 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.”);
United Nations Convention on the Law of the Sea, art. 2,
1833 U.N.T.S. 397, 400 (Dec. 10, 1982, entered into force
on Nov. 16, 1994) (“The sovereignty of a coastal State
extends, beyond its land territory and internal waters
and, in the case of an archipelagic State, its archipelagic
waters, to an adjacent belt of sea, described as the territorial
sea.”). They do not purport to define territorial waters
as part of the definition of the country itself.
Section 1116, a U.S. veterans’ disability benefits statute,
has nothing to do with the dominion and control of a
foreign sovereign over territorial waters. Nor would an
opinion construing a U.S. veterans’ disability benefits
statute be in any danger of violating the law of the naPROCOPIO
v. WILKIE
6
tions. See Murray v. Schooner Charming Betsy, 6 U.S. 64
(1804).
There is no support for a rule that a statute that refers
to a country includes the country’s territorial waters.1
The majority admonishes the government for “fail[ing] to
cite any instance in which the unmodified use of a formal
sovereign name has been construed to not include its
territorial sea” (Majority Op. at 15) but the same can be
said of the majority. The majority creates a new canon of
statutory construction that any use of a formal country
name necessarily includes the nation’s territorial seas,
without citing a single instance where Congress has
stated this intent or where the Judiciary has construed a
statute’s use of a formal country name to include the
country’s territorial seas.
Dictionaries from 1991, when the Agent Orange Act
was passed, often defined countries in terms of square
miles of the land mass.2 The same is true of maps, which
1 Moreover, there is no clear evidence that the nowdefunct
Republic of Vietnam ever claimed a territorial sea
extending 12 nautical miles from its shore, including
during the Vietnam War. See Majority Op. at 10. Up
until 1988, the United States only claimed a three-mile
nautical belt as its territorial sea. See Territorial Sea of
the United States of America, Presidential Proclamation
5,928, 103 Stat. 2981, 2982 (Dec. 27, 1988); see also United
States v. California, 332 U.S. 19, 33–34 (1947). There
is no reason to believe that the Republic of Vietnam, when
it existed, would have done otherwise.
2 See, e.g., Vietnam, RANDOM HOUSE WEBSTER’S
COLLEGE DICTIONARY (1991) (“a country in SE Asia,
comprising the former states of Annam, Tonkin, and
Cochin-China: formerly part of French Indochina; divided
into North Vietnam and South Vietnam in 1954 and
PROCOPIO v. WILKIE 7
reunified in 1976. [pop] 64,000,000; 126,104 sq. mi.
(326,609 sq. km)”); Vietnam, WEBSTER’S NINTH NEW
COLLEGIATE DICTIONARY (1991) (“country SE Asia in
Indochina; state, including Tonkin & N Annam, set up
1945–46; with S. Annam & Cochin China, an associated
state of French Union 1950–54; after civil war, divided
1954–75 at 17th parallel into republics of North Vietnam
(* Hanoi) & South Vietnam (* Saigon) reunited 1975 (*
Hanoi) area 127,207 sq mi (330,738 sq km), pop
52,741,766” (emphasis omitted)); Vietnam, WEBSTER’S
NEW GEOGRAPHIC DICTIONARY (1988) (“Republic, SE Asia,
divided 1954–75 into North Vietnam and South Vietnam .
. .”); United States of America, RANDOM HOUSE WEBSTER’S
COLLEGE DICTIONARY (1991) (“country made up of the
North American area extending from the Atlantic Ocean
to the Pacific Ocean between Canada and Mexico, together
with Alas. & Hawaii; 3,615,211 sq. mi. (9,376,614 sq.
km); pop. 240,856,000; cap. Washington; also called the
United States”); United States of America, WEBSTER’S
NINTH NEW COLLEGIATE DICTIONARY (2001) (“United
States”); United States, WEBSTER’S NINTH NEW
COLLEGIATE DICTIONARY (2001) (“a republic in the N
Western Hemisphere comprising 48 conterminous states,
the District of Columbia, and Alaska in North America,
and Hawaii in the N Pacific. 249,632,692; conterminous
United States, 3,615,122 sq. mi. (9,363,166 sq. km);
Washington, D.C. . . . Also called United States of America”);
United States of America commonly shortened to
United States, WEBSTER’S NEW GEOGRAPHIC DICTIONARY
(1988) (“Federal republic, North America, bounded on N
by Canada and (in Alaska) by the Arctic Ocean, on E by
the Atlantic Ocean, on S by Mexico and Gulf of Mexico,
and on W by Pacific Ocean; 3,615,123 sq. m. (excluding
Great Lakes); pop. (1980c) 226,545,805; * Washington,
D.C.”).
PROCOPIO v. WILKIE
8
typically show the land area of a country.3 I am unaware
of any dictionary or standard map that defines countries
in terms of land plus the territorial sea, nor does the
majority point to any.
Congress has repeatedly shown that when it wants to
include a country’s territorial waters, it does so expressly.
See, e.g., Veterans’ Rehabilitation and Education
Amendments of 1980, Pub. L. No. 96-466, § 513(b), 94
Stat. 2171 (1980) (defining eligibility for educational
assistance and other service-connected benefits as “veterans
who during the Vietnam era served in Vietnam, in air
missions over Vietnam, or in naval missions in the waters
adjacent to Vietnam shall be considered to be veterans
who served in the Vietnam theatre of operations”); Tax
Reform Act of 1986, H. Rep. No. 99-841, at 599 (1986), as
reprinted in 1986 U.S.C.C.A.N. 4075, 4687 (clarifying that
“income attributable to services performed in the United
States or in the U.S. territorial waters is U.S. source.”); 18
U.S.C. § 2280(b)(1)(A)(ii) (criminalizing certain acts if
committed “in the United States, including the territorial
seas”).4 This is true even when Congress uses a sovereign
3 See, e.g., NATIONAL GEOGRAPHIC, ATLAS OF THE
WORLD 18–19 (6th ed. 1990) [hereinafter, “ATLAS OF THE
WORLD”] (depicting the United States in terms of land
area); CENTRAL INTELLIGENCE AGENCY, THE WORLD
FACTBOOK 1991 324, 332 (1991). National Geographic’s
Atlas of the World also defined countries in terms of the
size of their land mass. See, e.g., ATLAS OF THE WORLD at
127 (“Socialist Republic of Vietnam Area: 329,556 sq km
(127,242 sq mi)”).
4 See also, e.g., 38 U.S.C. § 101(30) (referring to veterans
who “served in Mexico, on the borders thereof, or in
the waters adjacent thereto”); Omnibus Consolidated
Appropriations Act, 1997, Pub. L. No. 104- 208, Division
PROCOPIO v. WILKIE 9
nation’s formal name in the statute. See 10 U.S.C.
§§ 3756, 6258, 8756 (extending the Korea Defense Service
Medal to veterans who “served in the Republic of Korea or
the waters adjacent thereto”). The underlying assumption
in each of these statutes is that the use of the country
name is not sufficient to include territorial or adjacent
waters. The majority’s contrary conclusion renders Congress’s
express inclusion or exclusion of territorial seas in
these statutes superfluous, which is “at odds with one of
the most basic interpretive canons, that ‘“[a] statute
should be construed so that effect is given to all its provisions,
so that no part will be inoperative or superfluous,
void or insignificant.”’” Corley v. United States, 556 U.S.
303, 314 (2009) (quoting Hibbs v. Winn, 542 U.S. 88, 101
(2004) (quoting 2A N. Singer, Statutes and Statutory
Construction § 46.06 pp. 181–186 (rev. 6th ed. 2000))).
And the majority’s attempt to explain a few of these
examples away by creating a distinction between Con-
C, § 604, 110 Stat. 3009 (1996) (codified at 8 U.S.C.
§ 1158(a)(1)) (“[a]ny alien who is physically present in the
United States or who arrives in the United States
(whether or not at a designated port of arrival and including
an alien who is brought to the United States after
having been interdicted in international or United States
waters), irrespective of such alien’s status, may apply for
asylum in accordance with this section . . . .”); 16 U.S.C.
§ 2402(8) (defining “import” to mean “to land on, bring
into, or introduce into, or attempt to land on, bring into or
introduce into, any place subject to the jurisdiction of the
United States, including the 12-mile territorial sea of the
United States”). Compare 26 U.S.C. § 638(1) (“United
States” includes “subsoil of those submarine areas which
are adjacent to the territorial waters of the United
States”), with id. at § 7701(a)(9) (“United States” includes
“only the States and the District of Columbia”).
PROCOPIO v. WILKIE
10
gress’s use of the term “waters adjacent” versus territorial
waters or seas is speculative and entirely unconvincing.
See Majority Op. at 14–15.
By enacting the Agent Orange Act, Congress intended
to help Vietnam veterans who had manifested certain
specified diseases as a result of having been exposed to
Agent Orange. See 38 U.S.C. § 1116. The VA has explained
that “virtually all herbicide spraying in Vietnam,
which was for the purpose of eliminating plant cover for
the enemy, took place over land.” 73 Fed. Reg. 20566–01,
20568 (Apr. 16, 2008) (citing Jeanne Mager Stellman et
al., The extent and patterns of usage of Agent Orange and
other herbicides in Vietnam, 422 NATURE 681, 681–687
(2003)). It therefore stands to reason that Congress
would restrict the service connection presumption to those
veterans who were actually exposed to Agent Orange on
the landmass of Vietnam.5 Accord Haas, 525 F.3d at
1192–93. Congress did not possess any information
suggesting that herbicides had been used up to three or
twelve nautical miles from the shore.
The majority errs in dismissing the relevance of
§§ 3.311a and 3.313, regulations that existed before the
5 Mr. Procopio counters this understanding with
another theory—that “ships in the near-shore marine
waters collected water that was contaminated with the
runoff from areas sprayed with Agent Orange,” and the
“[s]hipboard distillers converted the marine water into
water for the boilers and potable water by vaporizing
them and condensing the liquid” in a way that “enhanced
the effect of Agent Orange.” Appellant En Banc Op. Br. at
- But Mr. Procopio presents no evidence that Congress
at the time of the Agent Orange Act was aware of or had
considered the potential dangers from contaminated
runoff.
PROCOPIO v. WILKIE 11
enactment of § 1116. The majority suggests that Congress
was enacting the statute against a background in
which the existing regulations covered territorial waters,
but it misunderstands the history behind each rule.
Regulation 3.311a was promulgated in 1985 to implement
the Veterans’ Dioxin and Radiation Exposure Compensation
Standards Act, Public Law 98–542, 98 Stat. 2725,
2725–34 (1984) (”1984 Dioxin Act”). Section 5 of the 1984
Dioxin Act directed the VA to establish guidelines
grounded in “sound scientific and medical evidence” that
require the veterans’ death or disability be based on
actual exposure to herbicides containing dioxin. Id. at
2727–28. The 1984 Dioxin Act noted that there was
evidence that specific diseases—chloracne, porphyria
cutanea tarda, and soft tissue sarcoma—were linked to
exposure to dioxin-containing herbicides. Id. at 2725.
Thereafter, the VA promulgated § 3.311a. The § 3.311a
rulemaking notice noted that herbicides “were used
during the Vietnam conflict to defoliate trees, remove
ground cover, and destroy crops,” and that many veterans
“were deployed in or near locations where Agent Orange
was sprayed.” Adjudication of Claims Based on Exposure
to Dioxin or Ionizing Radiation, 50 Fed. Reg. 15848, 15849
(Apr. 22, 1985). Because the regulation required exposure
to dioxin-containing herbicides and herbicides had been
sprayed on Vietnam’s landmass, the VA imposed a footon-
land requirement for veterans that served offshore or
in locations other than Vietnam:
“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. § 3.311a(b) (1986). The natural reading of the
regulation’s use of the conjunctive “and” confirms that the
prepositional phrase applied both to offshore veterans and
those stationed outside of Vietnam.
PROCOPIO v. WILKIE
12
The VA promulgated § 3.313 for an entirely different
purpose. Contrary to § 3.311a, § 3.313 was not linked to
herbicide exposure, but rather was based on a 1990 CDC
study that determined that all Vietnam veterans—
including those that served on the landmass as well as
those who served offshore—had a higher incidence rate of
non-Hodgkin’s lymphoma than non-Vietnam veterans.
Claims Based on Service in Vietnam, 55 Fed. Reg. 43123–
01 (Oct. 26, 1990). The 1990 study further concluded that
no correlation existed between non-Hodgkin’s lymphoma
and exposure to Agent Orange. Id. The VA therefore
worded § 3.313 specifically to apply to all offshore veterans,
without a foot-on-land requirement:
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.
38 C.F.R. § 3.313(a) (1990). The natural reading of the
regulation’s use of the disjunctive “or” and movement of
the comma to offset “offshore” from the rest of the sentence
confirms that the offshore veterans were not subject
to a foot-on-land requirement. While the grammatical
differences between the two regulations may appear to be
small, they set forth critical distinctions driven by the
different purposes between the regulations.
When the VA promulgated these two regulations,
their meanings were not ambiguous. The ambiguity arose
when Congress appeared to codify both VA regulations in
the Agent Orange Act, one regulation with a foot-on-land
requirement and one without. 137 Cong. Rec. H719-01
(1991) (“[T]he bill would . . . codify decisions the Secretary
of Veterans Affairs has announced to grant presumptions
of service connection for non-Hodgkin’s lymphoma and
soft-tissue sarcoma in veterans who served in Vietnam
. . . .”). The Agent Orange Act used the term
PROCOPIO v. WILKIE 13
“served in the Republic of Vietnam” without defining the
term:
[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;
38 U.S.C. § 1116(a)(1)(A).
As we concluded in Haas, § 1116’s use of “Republic of
Vietnam” rather than “Vietnam” counsels against the
majority’s reading of the statute because the language
more closely tracks that used in § 3.311a, which imposed
the foot-on-land requirement on offshore veterans. Haas,
525 F.3d at 1185–86. A congressional choice to codify the
foot-on-land requirement from § 3.311a would have been a
reasonable one, since both § 3.311a and the Agent Orange
Act—unlike § 3.313—required that the service connection
be based on actual exposure to herbicides during the war.
Moreover, “Congress included non-Hodgkin’s lymphoma
[from § 3.313(a)]
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.” Id. at 1179 n.1 (citing 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)).
Against this regulatory backdrop prior to the codification
of service connection presumption for certain diseases
through the Agent Orange Act, it is far from clear that
Congress intended § 1116 to encompass veterans who
served in offshore waters up to 12 nautical miles away
PROCOPIO v. WILKIE
14
from Vietnam. During that lead-up to the Agent Orange
Act, the majority cites no evidence that Blue Water Navy
veterans had been receiving service connection presumptions
for any of these diseases listed in § 3.311a.
The majority’s conclusion that “Republic of Vietnam”
in § 3.311a “covers everyone whose service included duty
or visitation ‘in the Republic of Vietnam,’ which, under
background law, embraces the territorial sea” (Majority
Op. at 12) is incorrect, because it assumes that the VA
also bought into the majority’s newly announced principle
that reciting a sovereign’s formal name in a statute or—
for purposes of § 3.311a—a regulation, necessarily includes
the country’s territorial seas. The majority cites no
case law or other support for this assumption. Nor does
the majority cite support for its subsequent conclusion
that § 3.311a encompasses “only a subset” of offshore
veterans—those that served on land, within the internal
waterways, or within the territorial seas of Vietnam. See
id. There is no evidence in the regulation or its history
that the VA intended this interpretation.
I also disagree with the majority’s conclusion that
§ 1116’s language specifying that the presumption is
applicable to veterans regardless of what military branch
they served in (i.e., “active military, naval, or air service
in the Republic of Vietnam”) has any bearing on whether
offshore veterans are subject to a foot-on-land requirement.
See Majority Op. at 10. A veteran who served in
the Navy but spent time on the landmass of Vietnam is no
less likely to have a service connection due to exposure to
Agent Orange than a veteran who served on the land in
Vietnam in the Army. Moreover, this statutory phrase is
commonly used in other sections of Title 38, suggesting
that Congress did not have something particular in mind
as to how it repeated this phrase in § 1116. See, e.g., 38
U.S.C. § 1110 (entitling certain veterans to compensation
for disability, injury, or disease contracted or aggravated
“in the active military, naval, or air service, during a
PROCOPIO v. WILKIE 15
period of war”); id. § 1112(b) (establishing presumption of
service connection for prisoners of war where condition
became manifest “after active military, naval, or air
service”).
After reviewing the applicable provisions, it is not
clear to me that Congress unambiguously intended
“served in the Republic of Vietnam” to include Blue Water
veterans. Although international law establishes that
sovereign nations have dominion and control over their
territorial seas, a U.S. veterans’ benefits statute has
nothing to do with regulating interactions with a foreign
sovereign. And the Agent Orange Act’s legislative history
provides no support for the majority’s conclusion. I therefore
believe, as this court concluded in Haas, that the
statutory phrase “Republic of Vietnam” is ambiguous
when applied to service in the waters adjoining the landmass
of Vietnam. See Haas, 525 F.3d at 1184.
As for the liberal construction principle known as the
pro-veteran canon, neither the Supreme Court nor this
court has applied it at step one of Chevron as a means for
deeming Congress’s intent clear for an otherwise unclear
statute. But even if it were relevant to the step one
inquiry, I do not view this canon, given its indeterminate
nature, as compelling the conversion of this ambiguous
statute into an unambiguous one.
The significance of the policy choice and budget impact
that the court makes today further underscores why
more compelling indicia are required before concluding
that Congress clearly intended the majority’s statutory
interpretation. Congress recently estimated that it would
need to allocate an additional $1.8 billion during fiscal
year 2019, and $5.7 billion over 10 years, to fund the Blue
Water Navy Vietnam Veterans Act of 2018, a bill that
would have explicitly expanded the presumption of Agent
Orange exposure to Blue Water Navy veterans. See Blue
Water Navy Vietnam Veterans Act of 2018: Hearing on
PROCOPIO v. WILKIE
16
H.R. 299 Before the S. Comm. on Veterans’ Affairs, 115th
Cong. 1, 4 (2018) (statement of Dr. Paul R. Lawrence,
Under Secretary, Benefits Department, Veterans’ Affairs).
The bill passed the House unanimously in 2018 but failed
to pass the Senate before the end of the 2018 session, due,
in part, to concerns over the cost of expanding the presumption
of service connection. It is not for the Judiciary
to step in and redirect such a significant budget item—
rather, that policy choice should be left to Congress.
I do not reach the question of whether Haas should be
reaffirmed insofar as it held that at step two of Chevron,
deference was owed to the interpretation of the statute by
the VA. See id. at 1184, 1192–93. Relying on principles of
Auer deference, the Haas panel held that the VA had
interpreted the statute to preclude coverage of Blue Water
Navy veterans who had not set foot on the Vietnam
landmass. See id. at 1186–90, 1197. The court also held
that the interpretation was reasonable in the light of the
evidence available to the VA at the time it made its
interpretation. Id. at 1195, 1197. The court declined to
consider other evidence not considered by the VA. Id. at
1194.
In ordering rehearing en banc we asked that the parties
address the question of ambiguity.6 In accordance
with our order the parties have not, in fact, fully ad-
6 See Order Granting En Banc Rehearing at 2, Procopio
v. Wilkie, No. 17-1821 (Fed. Cir. Aug. 16, 2018), ECF
No. 63 (ordering the parties to brief the following issue:
“Does the phrase ‘served in the Republic of Vietnam’ in 38
U.S.C. § 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?”).
PROCOPIO v. WILKIE 17
dressed the step two Chevron issues. At the same time
there have been relevant developments that bear on that
question. The Supreme Court has recently granted
certiorari to address the question of whether Auer should
be overruled.7 There have been additional studies of the
issue of Blue Water Navy diseases attributable to dioxin
exposure, and the issue continues to be studied, with a
new report predicted to become available next April.
Under these circumstances, I think it premature to address
Haas’ treatment of step two of Chevron.
7 See Order Granting Certiorari, Kisor v. Wilkie,
No. 18-15, _ S. Ct. _ (Dec. 10, 2018) (“The petition for
writ of certiorari is granted limited to Question 1 presented
by the petition”); Cert. Pet., Kisor v. Wilkie, No. 18-15
(Jun. 29, 2018) (“1. Whether the Court should overrule
Auer and Seminole Rock.”).