and it knew that non hodgkins lymphoma affected blue water navy veterans more than even other vietnam veterans congress didn't know why but we didn't know why a lot of things were happening with respect to agent indeed congress knew that the c d c had tried and failed to determine which vietnam veterans were and were not exposed to agent orange and fifteen years after the united states military left vietnam congress needed to address the challenges that were facing vietnam veterans who could not wait for scientific certainty that might never come so here's what congress in one thousand nine hundred one did it an act of the agent orange act creating a presumption of exposure and service connection for all veterans who served in the republic of vietnam it codified the presumption because by that presumption for three diseases the first of which was non hodgkins lymphoma which congress recognize both in the in the offshore waters in fact both on the face of the regulations and in practice is in a difference between offshore waters and territorial seas there is the offshore waters is broader than the territorial sea it includes the additional bands of see such the contiguous own and exclusive economic zone and it's an important difference because a nation is sovereign fully in its territorial sea so along those lines i mean we've got to i was interested in the numbers we're talking about here and thousand but is just more pointed out those numbers are tied to service offshore so is that number much broader or broader than what you would suggest would be the outcome here so i am not certain i do believe that it is that number would be tied to the coverage of the bill which goes if it's defined by geographic points but it covers twelve nautical miles of the territorial sea so i do understand that fifty two thousand estimate to be within  territorial sea is that what your definition would be of the republic of vietnam as well so their definition of the republic of vietnam is the land the internal waters the territorial sea and the airspace of currently it is it was three nautical miles the republic of vietnam claimed a territorial sea of three nautical miles in one thousand nine hundred sixty five and the government argues that the fact that that changed over time by of twenty kilometers offshore so that would not be relevant to the definition of the republic of vietnam since that the question is is of of sovereignty and what international law allows is in nation to claim sovereignty in  nautical miles or total sea they brought in that later in the in the one nine hundred seventy s but but the the key factor here is whether that the size of the sea changed over time does not affect whether it is part of the sovereign what we should give for that fact in determining what republic of vietnam we are in this that we should give no no way to that because the question when congress uses a term that has an established meaning in a particular body of law assume that congress minute to have that meaning unless there is a contrary indication in the statute and here the name of a country is a term that has meaning in international law and international law is clear that a nation includes its territorial see the  decisions as well as treaties as well as the restatement of the law all of which are consistent with the fact that the territorial sea is is part of a service when you're looking at definitions of territory you have to look at what the international practices in defining the state and the court has with the international court of justice and specifically defining and in resolving oil drilling conflicts off the coast of norway and  as i think i've heard you indicate the actual number of miles might have varied over time with the application of that principle possibly change between for veterans between sixty two and seventy five according to what the then republic of vietnam claimed different times it might be it's not a question that we have to resolve in this case because it's undisputed as the board found at appendix thirty two that mr park o p o served in the territorial sea and at the time that is within the three nautical miles in another case there may be a question as to how to define it during that time period it's classified as a other question the provision of the statute that position i mean i know it's strengthened by it but is your position that the statute is unambiguous does that depend upon application of the veteran canon of construction it does not our position is that the statute is on  can and we're looking we're making certain presumptions or some sions of what congress intended but that was on the program so how do you know the current the recent activities on capitol hill call out that congress is required at least under current budgetary rules to have so called pay for and find a way to pay for whatever it is it's legislating how do we or should we or shouldn't we include that when we're if we're looking to the pro that truth can and which make certain assumptions about congress should we not consider that congress even if it's pro veteran has to find a way to pay for it and sometimes the way to pay for it might injure or harm come out of the pocket of other veterans this is part of the discussion on capitol hill now that should not be part of the court's inquiry one applying the probe at trans canada so we're supposed to be super legislators sort of making assumptions about congress but what you're saying which the argument is that those aren't realistic assumptions because congress is operating with certain restrictions in terms of what it can and cannot do i don't think it's an unrealistic assumption what the profile trans canada requires is the supreme court's articulation in the fishbowl cases as liberal an interpretation in favor of the veteran as a harmonious interplay of the statutory provisions well supported so we have to act within the text that congress wrote the productions can and does not allow the court to go beyond the clear language of the statute it would not allow the court for example to interpret this statute to apply to veterans who served in north vietnam that's not the republic of vietnam or in cambodia even though there was yes you're saying that would allow the courts to interpret statutes in ways that congress couldn't have foreseen we could see for example i mean it's not the case here but let's say for example if we adopt your construction costs an extra hundred billion using the reconstruction canon in that way so that more it's such a big ticket item that nobody could really assume that congress could say or be deemed to have intended that outcome from the courts i don't think that's correct your honor the court is not in a position to legislate it is the job of congress to determine what the costs are and how to balance those and then congress decides what words to use based on that decision congress had a lot of choices in the statute it could read i guess getting back to my hypothetical it's just a hypothetical but what if we saw taking your interpretation would be such a big ticket number if we look at what the supreme court has most recently said about how the step one analysis applies under chevron in order to determine whether there's an unresolved ambiguity the question for the court is as the supreme court put it in sas the question for the court is not do unless a court employing traditional tools of statutory construction is left with an unresolved ambiguity if there's an unresolved ambiguity then you proceed to chevron step two and then perhaps cost comes into play in judging whether the example and think of three examples one would be where the different tools of statutory interpretation point in different directions that's for example this court's nova case from two thousand and one where you had one clear statutory text legislative history supporting the government and the prevent trans canada going the other way that's an unresolved ambiguity another example is where the production's canon isn't enough to do the work where so for example the court's decision in burden vs shinseki where the question was  judging whether the common law spouses were entitle to survivor benefits and there the two possibilities are that the benefits go to the veterans surviving spouse or surviving children neither one of those is more or less provocateur in the canon doesn't resolve ambiguity there and the third example would be an expressed delegation so for example in the court's decision in veterans justice group where the statute says you need got to file something in a form prescribed by the secretary that's a clear delegation that's not what we have here and in to the extent there is any ambiguity remaining after the court considers the plain text context legislative history here the provisions can and is certainly strong enough to resolve any such canons of interpretation is as if it confirms are applied at at step one or you think about it as as box one the fact that it's in box one doesn't mean that it has to go at the beginning of the analysis and certainly the first thing in the analysis at step one is the t of the statute and the canon or legislative history or context can override the plain text and the way the courts traditionally apply these canons is after considering the other relevant tools of statutory interpretation before deciding that there is an unresolved ambiguity so that's the work the can and does it resolves it remaining ambiguity that might exist after considering the other  everything else gets considered together and is that right that's absolutely correct and so it may be in a case where a different can and point strongly in another direction in the pro veterans can point in the other that that would create an unresolved if you truly look at just the plain facts republic of vietnam and said it was enough that that term has a meaning in international law that meaning includes the territorial see the court certainly could stop there if the court wanted to proceed a go down the line each additional tool that you add to the box confirms the same meaning you have the statutory context you have the legislative history but also the history of the legislation and i don't don't mean to be clever but sprayed who was exposed to what extent and what the effects were and so they needed to create a presumption at a time when it could still benefit the veterans who were exposed to these are herbicides that would at so they had to draw a line and they drew the line to include the republic of vietnam and those words have the meaning but suppose that we were on the path is that and the thing that troubles me all of the government about this is that we have a very uncertain situation as to whether to water navy veterans have higher levels of these cancers and want to be veterans let's say who served elsewhere or the general population you would agree that write correct and that same study says the same is true as to ground troops and brown water navy as well it's not a basis to distinguish the blue water navy from other veterans it is simply a fact applicable to all vietnam veterans not really suggesting that the absence of knowledge is a basis for distinguishing what i'm saying what troubles me is that there hasn't been a study in all these years to determine whether the blue water navy is more susceptible or less determination of whether there is a higher risk be sensible not at all because in one nine hundred ninety one and today the latest i o m report on agent orange was released last month of ember twenty eighteen and they still can't figure out who was exposed and what the effects were and in one thousand nine hundred ninety one again what congress knew from the c d c selected cancer study it knew in one thousand ninety one that blue water veterans were facing well as the list in the v a is regulation so it's your position that that to the extent that congress gave the v a rulemaking authority it was to add diseases to that they are covered for visions not or to leave diseases or delete cover veterans certainly not to delete covered veterans just to be precise the v a does not have the authority to don't leave a disease that congress has added to the statute it does decided a while ago that one fourth was sufficient to qualify right it decided that for the general counsel decided that in one thousand nine hundred seven the v a added that to its manual in two thousand and two but at the sense and things like that that's correct with the exception that three eleven a said republic of vietnam and three thirteen says vietnam three thirteen has a more specific language in it that covers the water but that's no the they both cover service in the offshore waters and they both covered service in other locations if the conditions of service included duty or visitation within the republican vietnam vietnam there are questions about thomas but even if that conditional phrase applies both to other locations and to service and offer waters it's still service in the offshore waters if there was due to your visitation in the republic of vietnam which itself includes the territorial sea and blue water navy service is certainly is a term that means adjacent to the coastline it includes the territorial sea but it goes beyond that please the court i like to start where my colleague left off and that's a discussion of three eleven a versus three thirteen supposing congress passes a law which is the expenditure of any funds  that there are statements of law that say that coastal nations enjoy sovereignty over the territory of sea it's the question is does that phrase in the statute context of the statute the inquiry is not simply is the phrase it's used a term of art the next in koreas and does that fit in the statutory context of the specific statute here there's no indication being in in mind history  no indication whatsoever in any of the text of the statute its legislative history its drafting history or the regulations that came before the congress was thinking at all about the scope of the republic of vietnam as the court found in haas the most reasonable readings that they were using the phrase the ology from three eleven a which covered service in the republic of vietnam and although it is true that you don't necessarily need evidence that congress was thinking i guess what i'm wondering i ever said the use of a formal country treated as a term of our there's no case that says the opposite of either well there is a case so i guess what i'm wondering is why do we have to inject this notion of context we have to understand the context of when congress uses a particular formal country name in a particular statute why can't just be a queen will if it's a formal country and that's it and we now kno court held that even though the phrase is a term of art with century of this of established meaning congress didn't intend to use it because it didn't fit the context of the crime this is that's true here because this is an issue sovereignty legislature assumed knowing that that case context includes the fact the government can see that three eleven and three thirteen were both there prior to the agent orange act one of them applies to blue water veterans and the government says the other does not the one that applies to blue water veterans involves a disease that congress expressly codified in the statute why under those circumstances wouldn't we assume that the context that congress was operating under included all of those factors in it that weighs heavily in favor of the idea that they very much were using the international law definition because they were meaning to extend the presumption to everyone who was affected  indication in the text or the legislative history that congress was attempting to incorporate either of the formulations in three thirteen or three eleven when it passed the agent orange act which is why it's ambiguous because you can't simply focus on three thirteen as suggesting that the full context is that it covered blue water navy because three eleven aid is not and that was also codified by congress when it passed the agent orange act and as the haas court noted the fact that both  incorporated is what renders this and they give us we cannot tell because it's not a matter of did congress understand whether you said three eleven is not a what where do you get that from the the vs five one a just delegated authority and it was put into a separate statute to cover service in vietnam which was more broadly understood to cover service at sea the c d c study is quite clear it was not lin cannot ask i mean i read the federal register and why not express that all right but it was it was well i mean it does it does use the language that's in the regulation right to read that language as commentary explaining it conferences it says that there was an argument being made that because of the placement of commas that it was different but it never decided that course but it did understand the three eleven it was focused on exposure and that three thirteen was not focus on diseases where which did depend on vioxx over and i you know this has been going on for years and i must say i find it very unconvincing for the v a to say well we're not going to cover bluewater  veterans because we don't know whether they have higher rates of cancer why are you not studying the question of whether blue water navy veterans do have higher rates or do not have  the v a is currently studying that and there's an epidemiological study that's supposed to come out in twenty nine on the before now right well it has been there have been numerous studies on the legislative history of the agent orange act they discussed all of them in two thousand  doing to make a determination of whether they do have high rates of people well they are going to make a determination based on what the results of that study are they know what the study is how do we know it so you have a core and what's not it's not that is the critical inquiry the agent orange act predicated on the likelihood of exposure make a determination of likely exposure the national academy of sciences is that you can't make such a determination you can make a qualitative determination you can make a quantitative determination of pathways of possible exposure and they found that the ground troops and brown water navy veterans had more likelihood of exposure than the blue water navy troops and of course the predicate for presumption is there is no necessary certainty but that's not exactly what they found they found that they can't say that the the water didn't and they can't even say that they had anything less they did not say that the ground that those with put on the ground under the v a s regulations actually happened grader and since it said the correct couldn't say that is that they couldn't determine actual exposure but that the ground troops and the ground water troops had more plausible house ways of having been exposed because of spray and usage than the you have to show up causal pathway the statute said you're presumed because but the statute is unclear as to which veterans it covers and so when it comes to the v a s construction of that as they're authorized to do they obviously have to  court said we said that the statutes ambiguous the regulation is also ambiguous and that we look to see whether or not our deference is appropriate and we go through and in each instance we said it's a really close call that that they want consistent in their application of this principle that the general counsel opinion doesn't directly address the provenge and can the instruction at least come into play than them it certainly could there's no decision i mean terry suggests it does not play a role in the stuff to analysis the problem with the court in making using its review powers under the a p a and using a chevron analysis to ensure that the v a has taken a pro veteran construction is one it's not supported by chevron which says that the construction simply needs to be reasonable or permissible but two it introduces the same problem that we have with it being applied at step one which is the court's conception of what is pro veteran could override the v a s determination based on its knowledge and its expertise of what is just look away from and it doesn't exist anymore once to be clear it's going to do rulemaking one and it was true but like other rules and other doctrines there are rules and doctrines that come after chevron deference principles have been used to determine what an ambiguous phrase means so it's not being cast out and never use it just has its proper place in the analytical inquiry this court needs to to conduct and at step two the question is simply whether the agency's construction is reasonable why it's addictive about a hypothetical argument of the v a it was not making in that case but i was just that footnote nine of chevron is what makes the distinction between certain canons because it says there that the the analysis is whether or not congress is inten unambiguous and they can use canons that aid in that determination not all can and aid in a determination of what congress intended we cite the rule of leniency as an example of a default rule that exists when all other interpretive canons or tools have failed the veteran canon is like that it does not tell us about trends going and more like the native american because of the history of those canons could not be more different your honor the the indian canon as expressed in montana the blackfly tribe is tied to congrats to the constitution vesting of the jurisdiction of the federal government to have sovereign relations with the tribes and it the indian  of that is often expressed as a clear statement will we're not going to help congress's recognition that these were men and women who put their lives at risk so that our country could be free that that's not meaningful it's not a matter of being meaningful your honor it's just a matter of if we're trying to draw a comparison between the two the historical underpinnings of the pro in the canon suggest it should be treated differently now aside from not only two circuits have held that it comes before chevron the ninth circuit has held  doesn't and the supreme court has not held otherwise with respect to the wolverine a day which we analogize it to the d c circuit and the tenth circuit has said that chevron trumps the rule of liberty so there is no consistent consideration a motor cars case from last term of the supreme court suggests that remedial legislation canons are somewhat suspect if not invalid certainly not helping to determine legitimately congress's intent in that case it said that the f l s a exemption the agency and so it depends on that kind of leniency to the agency wouldn't in those circumstances the two canons come into direct conflict the dictates that the agency gets deference for its interpretation of its regulations as this court held and sears chevron and its progeny have never endorsed have never have never been held to prevent deference to the agency has not the term whether there's a higher risk or nah i would respectfully dispute the willful ignorance of the v a the v a has conducted studies the c d c has conducted studies the v a specifically task institutes of medicine as it's required to do that they don't know but it is the study that's going on now going to be more dispositive that certainly is a public description of what that study is i'm not sure court international justice on the side of the north sea oil case which dealt directly with the meaning of territorial waters you'd agree that congress was aware that case i've no reason to believe there were then then in defining  the statutes all the time where it takes pains to ensure that territorial seas are covered because the context is what ultimately determines the meaning of the phrases where they're not necessarily defined even bargain in defining other state well there's no i mean there's been no case says judge chen pointed out what about statutes were when the united states refers to other states what statute say  because the context of that statue without knowing exactly what its phrase phraseology was would impact foreign relations law the context would fit in that circumstance and the submerged lands act cases that mr culpeper relies on again a situation where the context fits because the statute was giving the supreme court the power to determine what maritime terms mean in the context of claims to seabed but the statute here simply does not fit the context of questions of sovereign boundaries because the focus was on who was likely exposed to herbicides drawing twelve mile line is on that score simply as arbitrary as strong a three mile line or twenty four mile line or a two hundred mile life because there's no indication aside from customary international law that congress was possibly intending one specific  is again not a can textual with what we're doing here the the agent orange act could not possibly have it printed on the sovereign or international rights of the republic of vietnam at the time the agent orange act passed and so it also does not provide the missing intent for congress to uninvite us lee have necessarily included service at sea what's the status of the blue water navy veteran bill that's in congress and if that ever committee and has not been passed out of that it certainly would provide benefits to the same that are and who would have received benefits under the agent orange act if it extended to service at sea but it would not i don't know the precise question i i believe so but i but i don't know for certain death regulators who misuse the term water offshore conference you're from territorial seas or jason waters and offshore so as mr pope you know contends the foreign other restatement of foreign relations defines waters adjacent to include both the twelve mile twenty four mile and two hundred mile but then they turn around on regulations chose to go a whole different way and use offshore waters what does that mean right that can also include beyond the territorial seas now misappropriate is reply that that actually  territorial sea is but it's unclear why water is adjacent and offshore waters would have different treatment now again the offshore waters are only included under three thirteen as providing service connection for non hodgkins  a and so your view is the regulation at least three thirteen actually provides greater coverage recently the presumption for about friends because it covers offshore waters where as definition would be limited to just the territorial sea correct although my understanding is as most if not all of the fifty two thousand served within the territorial sea is so i'm not sure that as a practical matter there's a big distinction between who would the herbicides were sprayed on them tell me how that makes sense if he's been and seems very curious since you just said it wouldn't affect the result how does it make sufficient to support the presumption that the herbicides were sprayed on land and over the land where the ground troops were there are insufficient records to determine where the ground troops were and so that is the basis for three eleven and the presumption was that when congress refers to a country they need to include the territorial sea as it would be unnecessary for them to ever specify what a statute covers a territorial she is and yet they do so i see a mother time ye men you know mostly in the house there are multiple holds on it in the senate it is not expected to pass during this congress to turn back to exposure the v a did not suggest before hundred ninety seven that regulation three eleven did not cover the territorial sea on the contrary the base of the regulation cover service in the offshore waters and the v a s the juda cation manual passed in one thousand nine hundred one to implement the agent orange act which required service in the republic of vietnam when even broader they presumed service in the republic of vietnam if you received the vietnam service medal which was awarded to veterans on land it was her tory waters and actually in the contiguous waters and beyond as well and they even went out of their way in the education manual if you had not received the vietnam service medal that contended that you served in the territorial see that it was the it was obligated to go out and find records and see if the veteran ship had been in the waters off for vietnam for a significant time even if there were a difference to your question judge more even if their eleven didn't cover the territorial sea in three thirteen did that's not true but if it were true that doesn't get you ambiguity that gets you congress codifying both and it didn't set in the statute but a different scope a different classification for it for that and confusing because for more than fifty years after my client was in the territorial sea of the republic of vietnam this problem was supposed to be solved and congress thought it had solved it in one thousand nine hundred ninety one we knew that we weren't going to be able to figure out who was exposed who wasn't and we and the i want to report from from two thousand and eleven this is a page forty three to forty four of our brief is quoted that even at that point it was impossible to quantify agent orange exposure is for blue water and brown water navy sailors and so the supreme court's statement in henderson that congress is solicitude for veterans is a long standing there is no basis to exclude the pro veterans canon from the role that every other canon of interpretation enjoys