Nehmer v. U.S. Dept. of Veterans Affairs
| Decision Date | 19 July 2007 |
| Docket Number | No. 06-15179.,No. 06-16164.,06-15179.,06-16164. |
| Citation | 494 F.3d 846 |
| Parties | Beverly NEHMER; Claude Washington; Linda Wagenmakers; Robert Fazio; George Claxton; Julio Gonzales; Paul R. Jensen; William Madden; David Maier; Bruce Miller; Vietnam Veterans of America, Plaintiffs-Appellees, v. UNITED STATES DEPARTMENT OF VETERANS AFFAIRS, Defendant-Appellant. Beverly Nehmer; Claude Washington; Linda Wagenmakers; Robert Fazio; George Claxton; Julio Gonzales; Paul R. Jensen; William Madden; David Maier; Bruce Miller; Vietnam Veterans of America, Plaintiffs-Appellees, v. United States Department of Veterans Affairs, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Kevin V. Ryan, United States Attorney, San Francisco, CA, for the defendant-appellant.
Barton F. Stichman (argued), National Veterans Legal Services Program, Washington, DC, for the plaintiffs-appellees.
Linda S. Peterson and Laboni A. Hoq, Sidley Austin LLP, Los Angeles, CA, for the plaintiffs-appellees.
Appeal from the United States District Court for the Northern District of California; Thelton E. Henderson, District Judge, Presiding. D.C. No. CV-86-06160-TEH.
Before: STEPHEN REINHARDT, JOHN T. NOONAN, and MILAN D. SMITH, JR., Circuit Judges.
This case involves our government's treatment of its veterans who contracted serious ailments as a result of their exposure to Agent Orange in the course of the military's use of that toxic chemical as a defoliant during the Vietnam war. It is a disturbing story, and the performance of the United States Department of Veterans Affairs (VA) has contributed substantially to our sense of national shame.1
The issue before us on this occasion is a technical one. But it is symbolic of the problems that have plagued a significant group of veterans who deserve to receive our foremost care and attention. The present question is whether the District Court, in a clarification and enforcement order issued in 2005, reasonably interpreted the earlier court-approved Stipulation and Order (sometimes referred to as "Consent Decree") that settled a class action lawsuit brought by veterans of the Vietnam war (sometimes referred to as "plaintiff class" or "class plaintiffs").
In 1989, the veterans successfully challenged a regulation of the VA that imposed an erroneous standard for determining which diseases were associated with dioxin. Congress thereupon enacted new legislation, the Agent Orange Act of 1991, Pub.L. No. 102-4, 105 Stat. 11 (1991), under which veterans who served in Vietnam and later suffer from such diseases receive a presumption that their ailments are connected to their exposure to Agent Orange in Vietnam. The dioxin-related diseases are deemed to be "service-connected," and the veterans qualify for disability benefits. The ensuing 1991 Stipulation and Order provides that as soon as the VA issues new determinations designating particular diseases as "service-connected," it must readjudicate the claims of veterans suffering from them if their previously filed claims were denied or are still pending, and must then pay them retroactive benefits. Nehmer v. Veterans' Admin., 284 F.3d 1158, 1161-62 (9th Cir.2002) (Nehmer III).
In 2003, the VA issued a regulation finding Chronic Lymphocytic Leukemia to be a disease that was associated with dioxin and thus "service-connected," but the VA did not readjudicate the prior claims of Vietnam veterans suffering from that ailment. Nor did it pay them retroactive benefits. The reason it offered for its failure to follow the provisions of the Consent Decree was that in its view the decree does not apply to diseases that it determines to be "service-connected" after September 30, 2002, the original sunset date of the Agent Orange Act of 1991. In 2004, the plaintiff class, disputing this interpretation, filed a motion that the district court construed as a motion for clarification and enforcement of the decree. In 2005, the district court rejected the VA's interpretation and granted the veterans' motion. Because we conclude that the district court's construction of the decree is not only reasonable but correct, and that our long-suffering veterans are presently entitled to the benefits at issue, we affirm.
Nehmer III, 284 F.3d at 1160 (citing In Re Agent Orange Prod. Liab. Litig., 818 F.2d 194 (2d Cir.1987); Nehmer v. U.S. Veterans Admin., 712 F.Supp. 1404 (N.D.Cal. 1989) ("Nehmer I"); Nehmer v. U.S. Veterans Admin., 32 F.Supp.2d 1175 (N.D.Cal.1999) ("Nehmer II")).
The class action of which these proceedings are a part was initially filed against the VA in 1986 by Vietnam veterans who challenged a VA regulation, 38 C.F.R. § 3.311, governing their eligibility for disability benefits based on diseases associated with exposure to Agent Orange. Nehmer III, 284 F.3d at 1160; Nehmer I, 712 F.Supp. at 1408-09. The veterans claimed that the regulation did not comply with the Veterans' Dioxin and Radiation Exposure Compensation Standards Act of 1984, Pub.L. No. 98-542, 98 Stat. 2725 (1984) ("Dioxin Act"). Nehmer I, 712 F.Supp. at 1408-09.
The Dioxin Act "dramatically alter[ed] the process governing [veterans'] Agent Orange disability claims." Id. at 1407. "Rather than have the VA determine in individual adjudicatory proceedings whether a particular veteran's claimed disease was caused by Agent Orange exposure, the Act authorize[d] the Administrator of the VA [ ] to conduct rulemaking to determine which diseases will be deemed service connected for all diseases claimed to be caused by Agent Orange exposure." Id. at 1407-08.
The regulation implementing the Dioxin Act provided that any veteran who served in Vietnam "shall be presumed to have been exposed to a herbicide containing dioxin while in Vietnam." 38 C.F.R. § 3.311a(b) (1988). But it also stated that only a single disease — chloracne — "is sufficient to establish service-connection for resulting disability." Id. § 3.311a(c); see also id. § 3.311a(d) (). The district court invalidated the regulation because, although Congress intended the VA to "predicate service connection upon a finding of a significant statistical association between dioxin exposure and various diseases," the VA had erroneously required proof that a causal relationship existed. Nehmer I, 712 F.Supp. at 1420, 1423. The district court also voided all adverse VA benefit decisions based on the invalid regulation. Id. at 1423.
After the district court invalidated the VA regulation, Congress enacted the Agent Orange Act of 1991, Pub.L. No. 102-4, 105 Stat. 11 (1991), 38 U.S.C. § 1116. The Agent Orange Act was originally codified at 38 U.S.C. § 316, but six months later Congress renumbered § 316 of title 38 as § 1116. See 38 U.S.C.A. § 1116 (2002); Department of Veterans Affairs Codification Act of 1991, Pub.L. No. 102-83, § 5(a), 105 Stat. 378 (1991). Because the relevant portion of the Consent Decree at issue in this action refers to 38 U.S.C. § 316(b), we will refer to § 316 and § 1116 interchangeably.
The Agent Orange Act requires the Secretary of the VA to conduct new rulemaking proceedings to determine which diseases are sufficiently associated with exposure to Agent Orange so that veterans with approved diseases receive a presumption of service-connection. 38 U.S.C. § 1116.2 Section 1116(b) states that
(1) Whenever the Secretary determines, on the basis of sound medical and scientific evidence, that a positive association exists between (A) the exposure of humans to an herbicide agent, and (B) the occurrence of a disease in humans, the Secretary shall prescribe regulations providing that a presumption of service connection is warranted for that disease for the purposes of this section.
(2) In making determinations for the purpose of this subsection, the Secretary shall take into account (A) reports received by the Secretary from the National Academy of Sciences under section 3 of the Agent Orange Act of 1991, and (B) all other sound medical and scientific information and analyses available to the Secretary.
Id. § 1116(b).
To develop the scientific information upon which to base service-connected determinations, § 3 of the Agent Orange Act directed the Secretary "to enter into an agreement with the National Academy of Sciences for the Academy to perform the services covered by this section[,]" and under that agreement the Academy was to "review and summarize the scientific evidence, and assess the strength thereof, concerning the association between exposure to [dioxin] . . . and each disease suspected to be associated with such exposure." Agent Orange Act, § 3(b)-(c). Moreover, the Academy was to submit its first report no later than 18 months after the enactment of the Agent Orange Act, and, thereafter submit "periodic written reports . . . at least once every two years (as measured from the date...
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