confused as to what i'm supposed to be doing here ok let's assume for the moment that this amendment of the manual is reviewable but the problem that i see is there's no official explanation but i don't see how we can really review the reasons why this was done the way it was because we have no official statement of the reasons it would seem to me that that w secretary's definition of inland waters and told them specifically in the holding that they were to go back and rewrite it so in effect that was the world making don't the direction for the rule making and i'd like  way i mean not a formal notice and comment roman here i mean these are difficult good these are difficult issues there's a lot of conflicting views here or material i mean usually those are resolved in  threw out there there were all their definition of then let waters and they can in effect did order them to redo it that that's the holding in that case it's a precedent opinion the secretary didn't appeal instead they chose in they did in this in the documentation of the rule making procedure that they engaged and they've knowledge that this with the what they publish was required by the court's holding in great and it just strikes me that this is the wrong war to go about because we we defend the record of the what the facts are and we need an explanation from the veterans administration as to why this has been craft of the way it is which is exactly the problem your honor that's why we we thought this position to petition t i don't i honestly your honor i don't see the efficacy of that when the court affection's appeals polled them to do this and then they did it they could have chosen to comply with the a p a which we say they should have done they didn't do from the viewpoint of a of a veteran trying to get his claim granted and when you have this court of that sense appeals decision that clearly instructed the v a to to do this in a certain way and then they trans appeals in the board of that trans appeals apply the new world continue the denial and we have appealed that to the court of appeals for veterans claims however it's in the very early stages and we will make this in fact i  just remembered that case has been stayed pending the outcome of this case here because this ruling about the legitimacy of the definition of inland waters would settle this case and in fact the secretary is moving to stay all similar cases and that's another reason that the case is being other individual claims that considered with the same factual pattern that they were on ships that went into bays and harbors in vietnam and the secretary is saying petition because it's not just mr brady there are hundreds thousands perhaps of other similarly situated vietnam veterans that are in the same situation but how can we decide whether different options in terms of what your last thing right corona is to say they should have gone through formal role making and so therefore this rule is invalid the other option is to go all the way down to the the road to say doublecheck and that led to the d c case one of the reasons why we filed the d c case is because you know there was confusion in our mind will perhaps not in the d c courts mind as to whether or not this would even be a five o two  know the v a oregon successfully that we could have pursued it under five o two and when this new regulation came out that's why we decided to take a five or two approach we have a separate request for rule making which is pending and unfortunately not part of the records is not part of this case but a separate request for will making as to two of the harbors down on harbor and not trying her on this rusk and i actually met with the senate with the secretary on that just a couple of weeks ago and that is pending we don't know when they're going to as a retired commander i became kind of technical expert on how what the water does and what it does once it goes into the distilling plant but that's the background of why we did what we did is haas had convinced us that  know that we did not have to ask for notice and comment in fact our separate room making question is just on the two harbors for that sole purpose because we are we have a different set of evidence to concentrate on just those two harbors that we don't have any i'm going to be better off if we had a nose and prominent only game in which you could put in your evidence and we could have that actual official explanation as to why they're doing what they're  finding ways to get this issue down the road even though they are continuing to a lot of you well you're exactly right and the problem we have is we have about ninety thousand blue water navy veterans that we've not been able to get coverage  bright yeah the right place to fall and how we finally as we continue to go with this these folks are dying every day and you know we were trying to push what we can i say mr grossman i've met with a secretary we're pushing in a congress and we're general counsel's opinion came out because notably in those opinions they indicated that you know a veteran had to be covered or should be covered if they were within the boundaries of the nation of vietnam and as you look at these harbors in the harbors of this completely different set of hydrological dynamics than it was in hospice if you look at these harbors and you've got posts over there but even on page fifty one of your appendix you've got an area that's surrounded by three  there's no question that the exercise sovereignty over those harbors up until the time that their public fell they are by definition by treaties which we've signed and ratified natural basan harbors and you know it seems to me to be a different story what it really thing is that the drinking water on the ships was contaminated by dioxin as it is a result of that there ought to recognize that the hostiles the problem that's right and but that's point again if you're looking for something to tire have to on the or timeline to on the long you know if you look just at the interpretation of the general counsel of the s in offshore waters is unreasonable in the harbors which are big mixing bowls with agent orange coming out through the rivers and constantly being churned up from a shallow shallow water harbor by the maritime traffic the boats  please the court i'd like to start with judge dykes questions about what is reviewable here and whether or not this is the proper venue for hearing this and the government agrees that the reason why administrative staff manuals are excluded from five zero two review as a practical matter is that there is no formal explanation set forth in a federal register notice for this courtroom view which results in an appendix that cobbles together the decisional documents what you said here and i meant that it didn't come up on the firings but i mean those arguments were on point and said they think this should be a fiber i respectfully disagree with that sort of definitive point the argument made in the district court in the d c circuit was that under five and eleven the district court did not have jurisdiction and what the government said was to the extent that this policy is reviewable and the court recognized it was a bridge that staff manual in this case and so in the district court case they were not arguing about whether or not in a ministry of staff manual the m twenty one was reviewable by the district court so the government didn't go in and say well you're challenging the same thing as you challenging in the federal circuit that should be in the federal circuit also was to the extent and the district court said it's unclear what they're challenging here they seem to just be challenging the policy that was at issue in ha's and  documents that set forth a policy and said it's not clear what exactly is being challenged they said to the extent that there is any jurisdiction five eleven divest the district court and so if there is jurisdiction to review this policy it's in the federal circuit and we did nor do we know what the real record is on which we should be reaching a judgment the petitioners appear to agree that the best way to do this is wide notice and comment rule making is the  providing instructions going asian that was originally a novel years ago doesn't help us very much and doesn't really address the issues that we're concerned with now particularly the drinking water thing that was considered that you know there's a significant issue that's been raised here why do you want what's going to happen what's going to happen with the the current rule making petition is that you know when we're going to get a decision about that i'm not aware of exactly when that petition is going to come out but that petition will have with it a full reviewable decision by the agency which is what we suggested would have been appropriate in this case because of the effect that the agencies decision to publish this in the manual that the manual the water i mean that is a change in policy why would suggest it's not and i would suggest that the house court found the policy is the foot on land policy and the problem that resulted after hons was that it was not in the instructions t was not clear enough so that it did include two bays and harbors but there was no explanation for why those were included or how we're constantly because the foot online policy is tied to that's the the spraying of the agent orange or the dioxin was that was the appropriate proxy for the presumption and the spraying took place over in the waters as well as over land and there's there's no doubt in the island of man you're only on the  them but the analysis that they were conducting was of the foot on land policy and there's references in the hospice as into waters adjoining the coastline and the discussion of the over and under inclusiveness of the presumption discus specifically someone who station directly off shore directly off the land who they recognized and they how do you think that haas resolved the question of inland waterways and whether or not these harbors yes your hon issues raised in the current petition for rule may be the current position of rulemaking does raises issues i believe with respect to bays and harbors but i think it's tied to the use of a reservoir near those  bitches and so it's not a one for one but certainly as the court noted in two thousand and thirteen the military veterans advocates did file a petition for lawmaking and could have sought review of this policy with respect to days harbor so if there's nothing  about the manual not that it ends at the one with the that was the case and why we don't mean that based on our viewers after all that's why the that's why the m twenty one structures were tossed because there was not a good reason for including a formal way the v a has reviewed all of the military history and the scientific history and the medical history with respect to consider that that strikes me as ridiculous you have no formal decision for us to review and you know you say oh well he reviewed this that sounds like a description of the internal processes of the we can't review that right your honor that's why actions under five fifty two eight two c and in the ministry of staff manuals are not within this co supreme court in paris the court said even if an agency completely changes its interpretation of a regulation if it was an interpretive rule to begin with it is an interpretive rule unless the agency decides to publish it under notice and comment and so here where there is not a complete reversal of the position perez counsels of this is an interpretive rule not a substantive rule and the fact that it was published in the administrative staff manual is a choice the agency is entitled to make it has certain affects the effect on this court's jurisdiction is a divest its from direct review on five or two that's not to say that it cannot this court can't review it if a petition for woman aching is filed and denied or that it can't review it in the context of the benefits of  like haas and i would assume like gray's case if he were to lose at the veterans court and that is another problem that it's possible there are two cases pending right now that their appeals from decisions from the veteran's corps individual individuals benefit to the peals and so just like in ha's where the m twenty one provisions were reviewed by this court they can be reviewed when they're applied to veterans claims and those claims to this court and the benefit of doing it that way either petition for rule making where you will have a reason formal decision by the agency or in a benefits stream appeal is that there will be lower court decisions and positions from the would require citation to the specific evidence and to be fair to the v a in this instance they did go back and review the evidence from the i o m that is directly related to the issues here so it's not like they simply decided something that was just a practice that they're being used as a short term right but the characteristic of the provision that rendered it interpretive was not what it said specifically was what it was doing it was providing the question is where did they publish it if they choose to publish it in the federal register than it is reviewable because it would be under five fifty two a one so would be within this court's fiber to jurisdiction but where they choose to put it in administrative staff may know it is not and there are practical right but just because it has a substantial impact does not render it substance the court in paris the agency decision there completely reversed a prior interpretation and the court said even though there is a significant change if it was done through an interpreter of rule it does not render it substantive simply because it has a significant impact moreover the language of five fifty to eighty two c is administrate of staff males and instructions of staff that affect a member of the public so if the a of the agent orange act is that where there has been demonstrated evidence of spraying as a proxy for exposure the agency as directed by congress will make it easier will provide a name a way to prove so they're not talking about this much difference between where the water is will get i would disagree that the court house was thinking the line was miles offshore but again the description of the potential over and under inclusiveness and ha's was referring to someone in a right so it's only used where there are trees and so i guess i would disagree that ha's did not recognize the fact that this line was being drawn along the geographic land border of the coastline in the reference the hospital lead to boots on the ground but on the ground is stepping foot in vietnam and so we would argue that what the v a did following gray was recognize ok and ha's this is the line that was affirmed and is reflected in the policy at issue hogs and the question then is is there a basis for drawing this line somewhere else to include some other area because there is a comparable likelihood of exposure and on review of the medical and scientific evidence of the concluded that it is not and and i would just remind the court that the standard of review is quite narrow just whether or not there is a rational connection between the facts found and the choice made and so even if this court would look at some of the evidence and find that it doesn't meet the preponderance of the evidence test or they believe that the policy should have different has no record w the eleven money ok now i gree are that's why we argue first and foremost of this case should be dismissed so that this issue can reach the port in the proper manner with a more fulsome record to demonstrate exactly the v a s reason that  do this in the federal register it it could have chosen to do so but in the interest of getting this done quickly and making sure the future decatur's have the updated policy they chose to do it this way and it has practical effects on the agency as i noted but that does not the vast this court from jurisdiction to review a properly raised petition for review of these provisions thank honor it was and it was our subsection our sections are second section to the to the brief we did say that they violated the administrative procedures act by failing to publish notice and comment  and i was also would like to point out that it isn't just boots on the ground that's not the rule that the pm has adopted when it interpreted the regulation inland waters  are included they interpreted the regulation to include inland waters inland waters doesn't require anybody on those waters to step foot on the ground what ha said about the regulation was that presence equals exposure not sprain equals exposure sprain hit the ground hit trees it was washed into rivers from the rain and floods and that's how it contaminated the rivers and that's why the v a a long time ago said that that true serving on the inland waters was included in the definition of somebody that was in  and the government just referenced the institute of medicine studies in the record to two thirty the institute of medicine said that extreme water word can pam unaided because of what the navy's river forces did to spray the banks of the rivers wasn't just doesn't mean that they stepped foot on the riverbank it just means that the contamination is in the water well by fresh water meet and mix it up those are parts of the extreme waters and institute of medicine has said at two thirty two that that those types of areas  you see my time is about up if there's anything else thank you designates this is mandatory spending otherwise it has to go through the cabo if it's a congressional act and it's subject to an offset of other veterans benefits under the page go active twenty ten yes ma'am ok judge o'malley you know your question i think was well stated on where we draw the line because effectively the same molecule of water that is considered contaminated inside the mouth of the river once it goes outside is not if you look at the done on harbor on leave it's appendix fifty one you'll see the river the sick the valve the ship in the river you get a resumption of your anchored right off the mouth of the river you don't that was one of the issues that gray and with this whole thing why they found the secretary's position irrational what the government refuses to acknowledge but is before you and offend starting at appendix fifty seven there's the fact that the agent orange was in not trying harbor twenty years after the war that on some was found they found it in the cave river they found it in transects coming out on the charge plu k river and they found it still in toxic levels twenty years after the war the v a will sit will tell you gee we can't do we don't know whether or not it was toxic enough but in that report it shows the toxicity levels option which is usually about anywhere from eight to ten feet below the below the waterline on the ship that's how it got in there and if you look at the numbers and figures and not truong harbor and remember that one that's twenty years after the war and there's been some half  factor was a factor of ten now i understand you have some limited powers here but you know as we've said the sage advice of marbury vs madison is if you have a right and i think that these folks have a right to the benefits there has to be a remedy we went to the district court first because we weren't sure and frankly part of the reason we went to the district court was to find out and you know it was a fifty fifty proposition which when we tried we tried first went t court they said go to federal circuit so we're coming to you and we're asking that you grant remedy i am overtime i apologize for that one of the things on expertise civs i probably have some naval expertise  being around for twenty two years and hydrological expertise of have any questions i'll be happy to answer thank you thank you