John Wells' Status Update

Military-Veterans Advocacy Report from Capitol Hill, July 2016.

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We started the 114th Congress in an optimistic mood and firm confidence that the Blue Water Navy Vietnam Veterans Act would pass the Congress. That bill would restore the presumption of exposure to those veterans who served in the bays, harbors and territorial seas of the Republic of Vietnam. The VA stripped those benefits in 2002 because they did not understand that Agent Orange, mixed with petroleum floated out to sea where it was taken into the ship's distillation system which converted sea water to drinking water. Today that optimism has virtually evaporated. Congressman Gibson's bill, HR 969 has 332 sponsors and Senator Gillibrand's bill 44 sponsors. The support reaches across geographic reasons and is bi-partisan in nature. Yet we cannot move the bills out of Committee. There are differing reasons for both the House and the Senate and I will address them and lay out our plan for the future. We are not giving up and going home. We will continue to fight this battle and others until we gain benefits for these veterans.

In the House, Chairman Miller has refused to move the bill forward due to concerns about the evidence. We are now being told that there is not enough evidence to support the bill. That is preposterous. The Chairman sent a letter to the Navy asking for information on water barges and whether it is feasible to test a retired ship for the dioxin. Military-Veterans Advocacy obtained a copy of the letter and responded to it in April and May of this year. We confirmed for the Chairman that water barges were used and that the source of the water was the heavily sprayed area of Monkey Mountain. We also provided him with an engineering analysis as to why testing a ship at this late date would be fruitless. Unlike the C-123s, the water systems of the ships would have been constantly flushed, due to normal operations conducted once the ship left Vietnamese waters. The Navy finally responded and agreed with us. The Committee staff is still demanding more evidence. I have told them that there is sufficient evidence to support the bill. The Committee has been provided with a wide array of scientific studies and affidavits. We have even documented the presence of Agent Orange in Nha Trang Harbor 20 years after the end of the war.

Chairman Miller will retire from Congress at the end of this year, The current Vice-Chair, Congressman Billarakis (R-Florida) is a big supporter of this bill and we hope he is named as Chair for the next Congress. Congresswoman Corrine Brown (D-Florida) has stepped down as Ranking Member due to her indictment. We are hopeful that Congressman Tim Walz (D-Minnesota), a huge supporter of this bill, will be named Ranking Member.

We currently have over 75% of the House on HR 969. Remember, as a matter of policy, the leadership usually does not sign on as co-sponsors, so that make the number of our co-sponsors more dramatic. Additionally, please remember that a decision to not co-sponsor does not mean that the Member opposes the bill. Congressman Zinke (R-Montana), for example, has not co-sponsored but has personally assured me that he does not oppose the bill. There are other folks out there who do not co-sponsor as a matter of practice but will support the bill. Our support runs the entire political spectrum from Debbie Wasserman-Schultz (D-Florida), the DNC Chairperson, to Jim Jordan (R-OH) the Chair of the conservative Freedom Coalition.

All that being said, unless Chairman Miller changes his mind, HR 969 will not move forward. That means failure in the House, UNLESS it passes the Senate. We can then bring it up under a rules suspension.

The Senate bill, S 681, which is the companion bill to HR 969, is presently scored at $1.104 billion over 10 years. That is down significantly from their original score of $2.74 billion. I met with CBO last year and they agreed some of their assumptions were incorrect. I am still not satisfied with the score because I think it is about $200 million too high but I will fight that battle with CBO. So for our purposes today, $1.1 billion is the score. This score is required to be computed by the Pay as You Go Act of 2010 (PAYGO). Additionally, PAYGO requires an offset from other mandatory spending. I argued that the VA was exempt from PAYGO. That argument did not fly. The problem is that we must find an offset for the $1.1 billion cost of the bill. Or the alternative is to reduce the score further by covering more people under existing law or through judicial action. John Rossie and Ray Melninkaitis have helped us cover 84,000 out of 174,000 Navy veterans that operated in the bays, harbors and territorial seas.

Our sponsors, Senators Gillibrand (D-NY) and Daines (R-Montana) met with SVAC Chairman Senator Isakson (R-Georgia) a few weeks ago. As you know we held a legislative hearing last year. Sen Isakson said he would push the bill forward if an appropriate offset was found. We have nominated round downs which would generate $1.8 billion over ten years and easily pay for the bill. That would require monthly disability checks to be rounded down to the nearest whole dollar. Maximum cost to any veteran would be $11.88 per year. Average cost to the individual veteran would be about $5.50 per year.

Senator Sanders, (I-Vermont), however, stopped the use of round downs last Congress when he was SVAC Chair. He continues to oppose them and the rest of the Senate Minority has decided to support him. I met with his staff Thursday and told them that S. 681 will die if Senator Sanders and the Minority do not support round downs as an offset for the bill. She will talk with Sanders and let us know. To make matters worse, House Minority Leader Nancy Pelosi (D-California) has also decided to support Senator Sanders and decreed that the House minority will oppose round downs as an offset for HR 969. This represents a change in policy in the House. Previously, the House Minority Committee staff had no problems with round downs.

Senator Gillibrand's Legislative Director claims she has a handle on the offsets but so far nothing has materialized. She attempted to use increased visa fees and met with Senator Grassley's (R-Iowa) Judiciary staff. Unfortunately, those funds have already been allocated to support 9-11 victims. She tells us she is going to convince them to provide visa fees as an offset but Sen Grassley's folks say it is double dipping. They also said that they would work with her on other offsets but they indicated she seems to be hung up on the visa fees. I have generally corroborated Grassley's version from an independent source. Senator Gillibrand, as the bill's sponsor, has the responsibility for finding an offset. They keep trying things that we know will not work. Frankly, in my opinion, they have let us down. At this point I have little confidence that an appropriate $1.1 billion offset can be found.

Our priority now is to reduce the cost of S 681. We currently have a suit in the Federal Circuit challenging the VA's 5 Feb 2016 regulation which excludes bay and harbors from the presumption of exposure. If we win this suit we believe as many as 90% of the ships in the territorial seas will be covered. This will drastically reduce the score and I have identified an offset to address the reduced score. I am not publicizing it because I do not want anyone to steal it. That seems to happen a lot.

Things that may help us win that case would include a sense of the Congress resolution that the personnel in the territorial seas, bays and harbors were intended to be within the scope of the Agent Orange Act and asking the Secretary to reconsider his position. I believe this resolution would have a very persuasive effect on the court in their review of the regulation. I would be able to use that resolution to show the Court that the VA stands alone in their arbitrary, capricious and irrational interpretation. Congressman Gibson's folks are working on the language.

Another option is the Gibson Amendment to the VA Milcon Bill that defunded the VA's ability to enforce the 5 February regulation. The Amendment did pass the House. We crafted that Amendment on the fly and unfortunately, we did not have time to get it into the Senate bill. We expected that it would be resolved in our favor in the Conference Committee. The sponsors wrote a persuasive letter to the Conference Chairs. While this was going on in May, I was nearing the end of my time in DC and I did not go to see the Appropriations staff on that trip. I should have made time and cancelled other appointments if necessary. That was my error and I own that mistake. It might have changed the final outcome.

Unfortunately, the VA raised a stink before the Senate Appropriations Committee and said they would ignore the provision. It was stripped out by staff in Conference. I met with the Senate Appropriations staff this week and unfortunately, the Senate side did not understand the implications of the Amendment. The VA Milcon bill has been rejected twice by the Senate on procedural votes because the Minority felt that $1.1 billion in emergency spending would not be enough to fund Zika research. (Yes, I know that would pay for the bill. Made that argument too). IF and that is a big IF it goes back to Conference there is a SLIM chance we can reconsider the Gibson Amendment. Unfortunately it is more likely that the mandatory funding issues will now be presented as a continuing resolution and the VA Milcon bill will just die. Zika Virus funding will be done or not done separately. You cannot make this stuff up!

We have one more thing that could help us. S. 2724, the Separation of Powers Restoration Act would also help us because it would get rid of Chevron deference and require court's to review agency decisions de novo, which means a fresh look. Chevron deference was crafted by the Supreme Court decades ago and requires courts to give significant deference to agency decisions. If we eliminate Chevron deference, this would also help the court case. Chevron deference is what beat us on Haas although I believe we have a stronger case now. The House companion bill will come up for a vote next week. It was scheduled to come up a few weeks ago but the 'sit in' prevented the vote. It will pass the House. The problem is that the Senate Minority, including Senator Gillibrand, are against it because they claim it will undermine Obamacare and EPA regs. It won't. It just levels the playing field and makes the court take a fresh look with no deference. But the Minority's minds are made up and they do not want to be confused with the facts. I frankly don't know how we will get 60 votes to allow S. 2724 to come to a vote. I made a big pitch to staffs for Senator King (I-Maine) and Senator Donnely (D-Indiana) this week. Other potential Minority members who may listen are Senators Manchin (D-West Virginia), Senator Kaine (D-Virginia) and Senator Warner (D-Virginia). Possibly Senator Heitkamp (D-North Dakota). The Capitol switchboard is (202) 224-3121. Ask to speak to the office of these Senators and then ask to speak to their Legislative Directors. Even if you do not get the Legislative Director leave a polite message in support of S. 2724.

My interpretation of the state of the playing field is that we need to win that law suit to reduce the score to the point that a viable offset becomes a realistic proposition. Of course Gillibrand might pull a rabbit out of the hat but frankly I am not counting on that. We are still waiting on our appeal to determine whether a federal district court can hear our suit against the VA. They usually respond in three months after oral argument but we have not heard from them yet and it has been four months. Obviously they are taking their time to consider the issue.

I will be going back up in September. We need your hope and prayers and a little contribution at is always welcome.

The fight continues.

John B Wells
Commander (USN) Retired