Daily Dicta: Latham Dives In for ‘Blue Water’ Vets in Long-Running Agent Orange Fight

A U.S. Air Force Fairchild UC-123B Provider C-123 Ranch Hand aircraft sprays defoliant over the target area of "Operation Pink Rose" in January 1967. During the Pink Rose test program target areas near Tay Ninh and An Loc, South Vietnam were sprayed with defoliation agents twice and with a drying agent once. Ten flights of three Boeing B-52 Stratofortresses each dropped 42 M-35 incendiary incendiary cluster bombs (per aircraft) into the target area setting fires that should burn the heavy growth as well as enemy fortifications hidden there.

It’s been 45 years since the last U.S. troops came home from Vietnam—but veterans and the federal government are still litigating Agent Orange claims.

Earlier this month, the U.S. Supreme Court granted cert in a pro bono appeal by lawyers from Latham & Watkins on behalf of a man who served on the destroyer escort U.S.S. Roark during the Vietnam War. Robert H. Gray blames his exposure to the herbicide’s dioxin for a host of medical problems, including type 2 diabetes, neuropathy and heart disease.

It’s tempting to reflexively side with the veteran—he’s a veteran, for goodness sake—but the underlying questions are tricky.

Gray—whose ship was docked in the Da Nang Harbor, where the Han River meets the South China Sea—is what’s known as a “blue water Navy” veteran. But when it comes to Agent Orange-related disability benefits, the VA hasn’t quite known what to do with this group.

In 1991, Congress passed the Agent Orange Act. As a result, any service member who stepped foot in Vietnam from January 9, 1962 to May 7, 1975 doesn’t have to prove actual exposure to Agent Orange. The same goes for “brown water” veterans who served in boats on inland waterways like rivers, and those in the Korean DMZ between April 1, 1968 and August 31, 1971.

If any of these people—there about 2.6 million of them, according to VA estimates—later develops a dioxin-related illness, the ailment is presumed to be related to the veteran’s military service. That means he or she is eligible for disability benefits.

But Agent Orange is an herbicide—it was sprayed to de-foliate the jungle, leaving enemy troops exposed. It wasn’t sprayed over harbors, at least not directly.

“The VA determined that, because ‘Agent Orange was not sprayed over Vietnam’s offshore waters,’ there was no ‘medical or scientific evidence to support a presumption of exposure for service on the offshore open waters,’ which the VA further defined as ‘the high seas and any coastal or other water feature, such as a bay, inlet, or harbor, containing salty or brackish water and subject to regular tidal influence,’” wrote Solicitor General Noel Francisco in a brief opposing cert.

VA disability benefits cost taxpayers billions every year, so it’s appropriate that the government isn’t just handing out checks.

But the blue water vets argue they could have been exposed to dioxin via their drinking water, or that the herbicide could have drifted in the air. (Which happens. I’m 150 miles away from the Camp Fire in California, but the air in Marin County is nonetheless thick with its smoke.)

That’s not the actual question before the high court though. It’s a more technical issue, but it could have a major impact.

Gray is represented on appeal by Latham partner Roman Martinez, who rejoined the firm in 2017 after serving as an assistant to the solicitor general, arguing seven cases before the Supreme Court. (Bonus: he clerked for Chief Justice John Roberts, and for Brett Kavanaugh when he was on the D.C. Circuit.)

He’s also already established his bona fides as an advocate for veterans, receiving the Veterans Community Service Award from the National Organization of Veterans Advocates for a prior Administrative Procedure Act challenge to VA regulations regarding due-process protections in the disability claims process.

Martinez is working with lawyers from Hill & Ponton in Orlando, which specializes in veterans’ disability benefits and has been representing Gray from the beginning.

In 2009, the VA issued guidance holding that the Agent Orange Act’s statutory presumption of dioxin exposure applied to some, but not all, bays and harbors. The Da Nang Harbor (which is well-sheltered and surrounded on three sides by land) did not make the list.

Gray successfully challenged that interpretation in the U.S. Court of Appeals for Veterans Claims when his disability benefits were denied.

So far, so good. The Veterans Court agreed the inland water definition was inconsistent and irrational and remanded his case.

But in February of 2016, the VA came out with a retooled interpretation of the Agent Orange Act and its regulations. Key to this case: The agency revised its Adjudication Procedures Manual, known as M21-1, which contains all the policies and procedures for handling claims for VA benefits.

The new manual limits the statutory presumption of dioxin exposure to vets who set foot on Vietnamese soil or served in Vietnam’s “inland waterways.”

Hmm and what exactly is an “inland waterway” now? The new manual says these waterways “end at their mouth or junction to other offshore water features.” That cuts out Gray—and about 90,000 other sailors who served in harbors or ports. The change was made without notice and comment or publication in the Federal Register.

What the manual says matters. It “formally binds all front-line VA benefits adjudicators working in VA’s 56 regional offices throughout the country. Such adjudicators issue the final decisions in 96 percent of all claims for veterans’ benefits, and they ‘are not authorized to independently determine that any particular coastal feature, such as bay, harbor, or inlet, is an inland waterway,’” Martinez wrote.

The new manual came out while Gray’s remanded case was still pending. Rather than waiting to lose—because the new manual seems to guarantee that he will— as his case winds through the notoriously backlogged VA courts, Gray filed a petition with the U.S. Court of Appeals for the Federal Circuit for review.

But in November of 2017, a divided panel held that it lacked jurisdiction to adjudicate Gray’s petition.

The decision is super in-the-weeds administrative law, but boils down to this: because the new interpretation was published in the manual (which is covered by § 552(a)(2) in case you’re wondering) it’s not a normal agency rulemaking. And no, it doesn’t matter if the judgment is totally interpretive and policy-laden and directly affects many people.

Instead, the Federal Circuit ruled that the only way to challenge what’s in the manual is after it gets applied in real life—presumably, when Gray loses his case.

Frankly, I’m not interested in parsing the language of § 552(a)(2). This is a stupid decision.

The blue water vets aren’t getting any younger. If they are indeed entitled to disability benefits (and hey, it could well be that they’re not), it’s imperative to determine that now, not after going through years of litigation just to get back to where they started—challenging the definition in the manual.

“If allowed to stand, the Federal Circuit’s erroneous jurisdictional ruling will impose ‘significant ‘hardship’ on our nation’s veterans,” Martinez wrote. “The Federal Circuit’s holding prevents veterans from obtaining prompt Article III review of such unlawful rules at the outset, when the damage to veterans can be minimized. … In short, our nation’s veterans deserve better.”

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