Decades old Agent Orange case dismissed

This photograph is of a chemical warfare mask.
Chemical Warfare Mask

The U.S. Court of Appeals for the Federal Circuit has dismissed a lawsuit originally filed by five Vietnam War veterans in 1979.

In 1978, the U.S. Department of Veteran’s Affairs dismissed the veterans’ disability claims relating to the adverse effects of Agent Orange, a herbicide sprayed extensively by the U.S. government in the Vietnam War.

The veterans proceeded to challenge the decision because their disability claims were dismissed under the guidelines of the Agent Orange Program Guide. This guide, the veterans alleged, was invalid because its guidelines were not published in the Federal Registrar, in violation of the Administrative Procedure Act.

The guide, which was used to deny disability claims to thousands of veterans, linked Agent Orange just to chloracne. Since the guide’s publication, Agent Orange has also been linked to cancer, liver dysfunction, neurological dysfunction, psychiatric problems, joint pain, muscle spasms, chronic fatigue and genetic damage. It was replaced in 1984.

On April 14, the Federal Circuit ruled it did not have jurisdiction over the case because prior to the 1988 Veteran’s Judicial Review Act, there was no system for procedural challenges to the Department of Veterans Affairs.

“When Congress gave this court exclusive jurisdiction to review (Department of Veterans Affairs) regulations, it provided no indication that the statute granting this court that reviewing authority should be extended retroactively,” the court stated in its opinion.

In 2007, the U.S. District Court for the District of Columbia declined to grant the veterans disability claims because it deemed the guide as a general statement of policy, not a substantive rule, according to the National Law Journal. (subscription required.)

The U.S. Court of Appeals for the D.C. Circuit then ruled that only the Federal Circuit had jurisdiction over the case. The government then argued the Federal Circuit didn’t have jurisdiction either, so the D.C. Circuit reheard, and dismissed, the case.

After the Supreme Court decided not to hear the case, the veterans filed the most recent lawsuit in the Federal Circuit in January 2010.

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