  United States Court of Appeals
      for the Federal Circuit
                 ______________________

  ALFRED PROCOPIO, JR., JOHNNIE HARPER,
  MICHAEL YATES, MICHAEL KVINTUS, BLUE
      WATER NAVY VIETNAM VETERANS
     ASSOCIATION, MILITARY-VETERANS
               ADVOCACY,
                Petitioners

                            v.

       SECRETARY OF VETERANS AFFAIRS,
                   Respondent
             ______________________

                       2019-2184
                 ______________________

   Petition for review pursuant to 38 U.S.C. Section 502.
                 ______________________

               Decided: December 5, 2019
                ______________________

   JOHN B. WELLS, Law Office of John B. Wells, Slidell,
LA, argued for petitioners.

     ERIC PETER BRUSKIN, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent. Also represented by
JOSEPH H. HUNT, MARTIN F. HOCKEY, JR., ROBERT EDWARD
KIRSCHMAN, JR.; BRIAN D. GRIFFIN, BRANDON A. JONAS, Of-
fice of General Counsel, United States Department of Vet-
erans Affairs, Washington, DC.
2                PROCOPIO v. SECRETARY OF VETERANS AFFAIRS




   STANLEY JOSEPH PANIKOWSKI, III, DLA Piper LLP
(US), San Diego, CA, for amicus curiae Association of the
United States Navy. Also represented by AMY WALTERS,
East Palo Alto, CA.

   BRIAN KEITH LEWIS, Francis White Law, PLLC, Wood-
bury, MN, for amicus curiae Federal Bar Association Vet-
erans & Military Law Section.
                 ______________________

    Before NEWMAN, MOORE, and CHEN, Circuit Judges.
MOORE, Circuit Judge.
    Alfred Procopio, Jr., Johnnie Harper, Michael Yates,
Michael Kvintus, Blue Water Navy Vietnam Veterans As-
sociation, Inc., and Military-Veterans Advocacy, Inc. (col-
lectively, Petitioners) filed a petition for expedited review
pursuant to 38 U.S.C. § 502 challenging the authority of
the Secretary of Veterans Affairs to stay pending disability
compensation claims until January 1, 2020. We have ju-
risdiction to decide the present petition under 5 U.S.C.
§ 552(a)(1)(D) because the Secretary’s memorandum
amounts to an “interpretation[] of general applicability for-
mulated and adopted by the agency.” See 5 U.S.C.
§ 552(a)(1)(D). Because the Secretary had the authority,
pursuant to Section 2(c)(3) of the Blue Water Navy Vi-
etnam Veterans Act of 2019 (Pub. L. No. 116-23, 133 Stat.
966, 968 (2019)) (the Act), to stay pending disability com-
pensation claims from the date of the Act’s enactment,
June 25, 2019, until its effective date, January 1, 2020, we
deny the petition for review.
                       BACKGROUND
   The individual petitioners in this case are Blue Water
Navy Veterans who served on open sea ships off the
PROCOPIO v. SECRETARY OF VETERANS AFFAIRS                  3



Vietnamese shore during the Vietnam War. 1 Following our
decision in Procopio v. Wilkie this year, many Blue Water
Navy Veterans were afforded hope that they may be enti-
tled to a presumption of service connection for diseases cov-
ered by 38 U.S.C. § 1116. 2 913 F.3d 1371 (Fed. Cir. 2019)
(en banc). Their hope was then further bolstered by Con-
gress’ passing of the Act, which provides relief for many of
these veterans who, prior to this court’s Procopio decision,
were without such relief. But the Secretary’s decision to
stay awarding of benefits pursuant to the Act poses new
problems for Blue Water Navy Veterans many of whom,
Petitioners assert, are dying and may not live to see the
benefits provided by the Act. According to Petitioners, the
journey for benefits has been long enough and many Blue
Water Navy Veterans “are running out of time.” Petition-
ers’ Br. 3.
    In 1991, Congress passed the Agent Orange Act, codi-
fied at 38 U.S.C. § 1116, granting a presumption of service
connection for certain diseases to veterans who “served in
the Republic of Vietnam”:



    1    Messrs. Procopio, Harper, Yates, and Kvintus are
Blue Water Navy Veterans. The remaining petitioners are
veterans’ advocacy groups that assist Blue Water Navy
Veterans with their claims. Petitioners’ Br. 12; see, e.g.,
About,      MILITARY      VETERANS       ADVOCACY,      INC.,
https://www.militaryveteransadvocacy.org/about.html
(last visited Nov. 12, 2019) (stating its mission includes to
“[t]hrough legislative advocacy protect and expand the
rights and benefits of current and former members of the
armed forces”); see J.A. 2–3, 20–26, 48–50, 51–52, 53–55.
     2   As to Mr. Procopio, we previously held that “the un-
ambiguous language of 38 U.S.C. § 1116 entitles Mr. Pro-
copio to a presumption of service connection for his prostate
cancer and diabetes mellitus . . . .” Procopio v. Wilkie, 913
F.3d 1371, 1373 (Fed. Cir. 2019) (en banc).
4                PROCOPIO v. SECRETARY OF VETERANS AFFAIRS




    (A) a disease specified in paragraph (2) of this
    subsection becoming manifest as specified in that
    paragraph in a veteran who, during active military,
    naval, or air service, served in the Republic of
    Vietnam during the period beginning on January
    9, 1962, and ending on May 7, 1975; and (B) each
    additional disease (if any) that (i) the Secretary
    determines in regulations prescribed under this
    section warrants a presumption of service-
    connection by reason of having positive association
    with exposure to an herbicide agent, and
    (ii) becomes manifest within the period (if any)
    prescribed in such regulations in a veteran who,
    during active military, naval, or air service, served
    in the Republic of Vietnam during the period
    beginning on January 9, 1962, and ending on
    May 7, 1975, and while so serving was exposed to
    that herbicide agent, shall be considered to have
    been incurred in or aggravated by such service,
    notwithstanding that there is no record of evidence
    of such disease during the period of such service.
38 U.S.C. § 1116(a). Under § 1116(f), such a veteran “shall
be presumed to have been exposed during such service to
[the] herbicide agent . . . unless there is affirmative evi-
dence to establish that the veteran was not exposed to any
such agent during that service.” Id. § 1116(f).
    In 1993, the Department of Veterans Affairs (VA) is-
sued regulations pursuant to § 1116 that stated “‘Service
in the Republic of Vietnam’ includes service in the waters
offshore and service in other locations if the conditions of
service involved duty or visitation in the Republic of Vi-
etnam.”      38 C.F.R. § 3.307(a)(6)(iii) (1993) (Regula-
tion 307). But in 1997, in a General Counsel opinion about
a different regulation, the government interpreted Regula-
tion 307 as limiting service “in the Republic of Vietnam” to
service in waters offshore the landmass of the Republic of
PROCOPIO v. SECRETARY OF VETERANS AFFAIRS                    5



Vietnam only if the service involved duty or visitation on
the landmass, including the inland waterways of the Re-
public of Vietnam, (“foot-on-land” requirement). Vet. Aff.
Op. Gen. Counsel Prec. 27-97 (July 23, 1997); 62 Fed. Reg.
63,603, 63,604 (Dec. 1, 1997). In 2002, VA amended its in-
ternal adjudication manual “to specifically incorporate the
agency’s ‘foot-on-land’ interpretation of the Agent Orange
regulations.” Haas v. Peake, 525 F.3d 1168, 1182 (Fed. Cir.
2008) (citing M21-1, part III, ¶ 4.24(e)(1) (Feb. 27, 2002)
(stating a veteran “must have actually served on land
within the Republic of Vietnam . . . to qualify for the pre-
sumption of exposure to herbicides”)), overruled on other
grounds. In Procopio, we held that “those who served in
the 12 nautical mile territorial sea of the ‘Republic of Vi-
etnam’ are entitled to § 1116’s presumption if they meet
the section’s other requirements.” 913 F.3d at 1380–81.
     On June 25, 2019, the Act was enacted to “clarify pre-
sumptions relating to the exposure of certain veterans who
served in the vicinity of the Republic of Vietnam . . . .” Pub.
L. No. 116-23, 133 Stat. 966. Section 2(a) of the Act amends
Chapter 11 of title 38, “by inserting after section 1116” the
section to be codified as 38 U.S.C. § 1116A. Id. § 2(a). Sec-
tion 1116A clarifies the “[p]resumptions of service connec-
tion for veterans who served offshore of the Republic of
Vietnam.” 38 U.S.C. § 1116A; see id. § 1116A(d) (defining
“offshore of Vietnam” as “not more than 12 nautical miles
seaward of a line commencing on the southwestern demar-
cation line of the waters of Vietnam and Cambodia and in-
tersecting the following points . . . .”). Section 1116A(a)
provides:
    For the purposes of section 1110 of this title, and
    subject to section 1113 of this title, a disease
    covered by section 1116 of this title becoming
    manifest as specified in that section in a veteran
    who, during active military, naval, or air service,
    served offshore of the Republic of Vietnam during
    the period beginning on January 9, 1962, and
6                PROCOPIO v. SECRETARY OF VETERANS AFFAIRS




    ending on May 7, 1975, shall be considered to have
    been incurred in or aggravated by such service,
    notwithstanding that there is no record of evidence
    of such disease during the period of such service.
Id. § 1116A(a). Section 1110 establishes basic entitlement
to compensation by the United States “[f]or disability re-
sulting from . . . disease contracted in line of duty . . . in
the active military, naval, or air service, during a period of
war . . . .” Id. § 1110. And Section 1116A(b) addresses pre-
sumed exposure to an herbicide agent for “[a] veteran
who . . . served offshore of the Republic of Vietnam during
[the relevant time period] . . . unless there is affirmative
evidence to establish that the veteran was not exposed to
any such agent during that service.” Id. § 1116A(b).
     Section 2(c) of the Act addresses its implementation.
Section 2(c)(3), entitled “Pending cases,” provides that
“[t]he Secretary may stay a claim . . . [B] . . . for disability
compensation . . . (i) relating to the service and diseases
covered by such section 1116A; and (ii) that is pending at
the Veterans Benefits Administration or the Board of Vet-
erans’ Appeals on or after the date of the enactment of this
Act and before the date on which the Secretary commences
the implementation of such section 1116A.” Pub. L. No.
116-23, § 2(c)(3), 133 Stat. at 968. Such claims may be
stayed “until the date on which the Secretary commences
the implementation of such section 1116A.” Id. § 2(c)(3)(A).
The effective date of Section 1116A is January 1, 2020. Id.
§ 2(g), 133 Stat. at 969 (“The amendments made by this
section shall take effect on January 1, 2020.”).
    On July 1, 2019, the Secretary issued a memorandum,
purportedly exercising his authority under the Act “to stay
certain pending claims for benefits that may be affected by
that Act until implementation of the statutory amend-
ments Congress directed to go into effect on January 1,
2020.” J.A. 1 ¶ 1. The memorandum ordered “[t]he Veter-
ans Benefits Administration (VBA) and Board of Veterans’
PROCOPIO v. SECRETARY OF VETERANS AFFAIRS                     7



Appeals (Board) . . . to stay decisions regarding claims for
disability compensation that are based on service in the off-
shore waters of the Republic of Vietnam during the period
beginning on January 9, 1962, and ending on May 7, 1975,
and which claim disability resulting from at least one of the
diseases listed in 38 C.F.R. § 3.309(e).” 3 Id. ¶ 2 (citing Pub.
L. No. 116-23, § 2(c)(3), 133 Stat. at 968). It further indi-
cated that such “stays shall remain in effect until January
1, 2020.” Id. ¶ 6.
     On July 8, 2019, counsel for Petitioners requested that
the Secretary rescind or clarify the July 1 memorandum
imposing the stay because: (1) the stay is premature as the
Act is not effective until January 1, 2020; and (2) the Act
only authorizes the Secretary to stay claims under
§ 1116A. J.A. 2–3. On July 17, the Secretary responded
that he was authorized to “stay claims pending as of the
date of enactment . . . June 25, 2019,” and that the stay ap-
plies to claims “filed under the provisions of Procopio” as
well. J.A. 56–57. On July 25, Petitioners filed a petition
for expedited review under 38 U.S.C. § 502 challenging the
Secretary’s authority to stay pending disability compensa-
tion claims until January 1, 2020.
                        JURISDICTION
    We have jurisdiction to decide the present petition un-
der 5 U.S.C. § 552(a)(1)(D). 38 U.S.C. § 502 establishes our
jurisdiction to review actions by the Secretary that are cov-
ered by 5 U.S.C. §§ 552(a)(1) or 553. Included within
§ 552(a)(1) are “substantive rules of general applicability
adopted as authorized by law, and statements of general
policy or interpretations of general applicability



    3   38 C.F.R. § 3.309(e) provides the list of diseases “as-
sociated with exposure to certain herbicide agents” that are
subject to presumptive service connection if certain other
requirements are met.
8                PROCOPIO v. SECRETARY OF VETERANS AFFAIRS




formulated and adopted by the agency.”             5 U.S.C.
§ 552(a)(1)(D). The Secretary’s memorandum amounts to
an “interpretation[] of general applicability formulated and
adopted by the agency.” Id.
     The government argues that reading § 552(a)(1)(D) to
cover the Secretary’s memorandum as a statement of gen-
eral policy or interpretation of general applicability would
be unreasonably expansive. It argues that the stay is no
different from any other agency actions, which are all im-
plicitly based on the agency’s view that it has the authority
to take such actions. Contrary to the government’s view,
however, the Secretary’s memorandum explicitly inter-
prets the Act’s stay provision. The memorandum explains
the Secretary’s understanding that the Act gives him the
authority to implement the stays now, prior to the Act’s ef-
fective date, and that the Act-authorized stays terminate
with the Act’s effective date on January 1, 2020. J.A. 1. It
further explains the Secretary’s understanding that the
Act gives him the authority to stay claims based on dis-
eases listed in 38 C.F.R. § 3.309(e), which relate to claims
brought under § 1116, even though the claims were not
brought under § 1116A. Indeed, Petitioners’ challenges are
directed to the Secretary’s interpretations of § 2(c)(3) of the
Act. Specifically, Petitioners challenge (a) whether the
stay provision had become effective such that it provided
authority for implementation of the current stay; (b)
whether the Act provides an end date for the Secretary’s
authority to stay cases; and (c) whether the stay can be ap-
plied to veterans’ benefits claims under § 1116 as opposed
to § 1116A. Because the Secretary’s memorandum con-
tains interpretations of his stay authority under the Act
and Petitioners’ challenges are directed to those interpre-
tations, the interpretations fall under § 552(a)(1)(D) and
we have jurisdiction to review the substance of the petition.
PROCOPIO v. SECRETARY OF VETERANS AFFAIRS                   9



                        DISCUSSION
     We review an agency’s interpretation of a statute it is
charged with implementing, like § 1116A, under the two-
part framework of Chevron, U.S.A., Inc. v. Natural Re-
sources Defense Council, Inc., 467 U.S. 837 (1984). Under
Chevron, we first determine “whether Congress has di-
rectly spoken to the precise question at issue.” Id. at 842.
If it has, we “must give effect to the unambiguously ex-
pressed intent of Congress.” Id. at 842–43. If, however,
“the statute is silent or ambiguous with respect to the spe-
cific issue, the question for the court is whether the
agency’s answer is based on a permissible construction of
the statute.” Id. at 843.
    Here, Congress’ intent is clear. The Act unambigu-
ously authorizes the Secretary to stay disability compensa-
tion claims described in § 2(c)(3)(B) of the Act “until the
date on which the Secretary commences the implementa-
tion of [] section 1116A.” Pub. L. No. 116-23, § 2(c)(3)(A),
133 Stat. at 968. We agree with the parties that the date
of implementation of § 1116A is January 1, 2020, the effec-
tive date of the Act. Oral Arg. at 13:44–14:12 (“Judge: Is it
the government’s position that § 1116A stay authority,
which allows the Secretary to issue stays up until imple-
mentation of § 1116A, only allows the Secretary to issue
stays up until January 1, 2020, and after that, this statu-
tory section at least, gives the Secretary no further stay
power? Government: Yes.”); id. at 12:57–13:03 (“Judge:
Does the Secretary’s authority to do any further stays ex-
pire on January 1? Government: That is what we stated in
our brief.”). Therefore, in order for the Secretary’s stay au-
thority to have any meaning at all, it must have com-
menced on June 25, 2019, when the Act was enacted.
    Congress’ intent to this effect is further evidenced by
§ 2(c)(3)(B) of the Act, which identifies the claims subject
to the Secretary’s stay authority as those relating to the
service and diseases covered by § 1116A that are
10               PROCOPIO v. SECRETARY OF VETERANS AFFAIRS




“pending . . . on or after the date of the enactment of this
Act and before the date on which the Secretary commences
the implementation of [] section 1116A.” Pub. L. No. 116-
23, § 2(c)(3)(B), 133 Stat. at 968. Like the Secretary’s other
implementation authorities and obligations described in
§ 2(c) of the Act, the plain language of this provision re-
flects Congress’ intent for the Secretary’s stay authority to
become effective as of the Act’s enactment to serve as a
temporary tool to help him effectively implement § 1116A.
See id. § 2(c)(3)(A). Accordingly, we agree with the Secre-
tary that the Act unambiguously authorizes him to stay the
disability compensation claims described in § 2(c)(3)(B) of
the Act, beginning on the date of the Act’s enactment and
ceasing on the Act’s effective date.
    Petitioners have expressed concern that the Secretary
will continue issuing stays beyond the effective date of the
Act, thereby further delaying veterans’ access to benefits.
Oral Arg. at 9:58–10:01 (“I’m not sure that I trust the Sec-
retary to maintain six months.”); id. at 12:20–30 (“Even if
[a] decision comes out in December or January that is fa-
vorable to us, it will prevent any further extensions or the
addition of any additional stays.”). The government, how-
ever, may not issue or extend stays beyond January 1,
2020. Id. at 12:57–13:03, 13:44–14:12. The statute is clear
and the government has agreed that the Secretary is per-
mitted to issue stays only until January 1, 2020 after which
no stays are permitted. Moreover, the government has rep-
resented that “VBA has continued processing and develop-
ing claims” and that “VA intends to grant such claims
starting on January 1, 2020, when the stay expires.” Gov-
ernment’s Br. 11. In fact, the government represented that
Mr. Procopio’s claim is not affected by the stay and will be
decided in due course. 4 Oral Arg. at 14:58–15:58. The



     4   On November 8, 2019, the government submitted a
letter to the court pursuant to Fed. R. App. P. 28(j) to clarify
PROCOPIO v. SECRETARY OF VETERANS AFFAIRS                 11



Secretary’s interpretation is therefore consistent with Con-
gress’ express intent in limiting the Secretary’s stay au-
thority to the period between the Act’s enactment on June
25, 2019 and its effective date of January 1, 2020. Because
we “must give effect to the unambiguously expressed intent
of Congress,” we do not reach Chevron step two. Chevron,
467 U.S. at 843.
     Having determined that § 2(c)(3) of the Act grants the
Secretary the authority to stay pending disability compen-
sation claims from the date of the Act’s enactment, June
25, 2019, until its effective date, January 1, 2020, we next
consider whether such authority extends to pending claims
pursuant to § 1116. We hold that it does. Petitioners argue
that the Secretary’s memorandum does not differentiate
between § 1116 and § 1116A, but that the Act does not au-
thorize the Secretary to stay claims for benefits filed under
§ 1116 and/or Procopio. Petitioners’ Br. 38–42 (citing J.A.
1). Petitioners argue that “Procopio addresses claims for
benefits filed under 38 U.S.C. § 1116 and covers claims of
veterans who served in the territorial sea,” but the Act,
which states “[c]hapter 11 of title 38, United States Code,
is amended by inserting after section 1116 the following
new section” does not repeal the existing statute. Petition-
ers’ Br. 39. The government argues “petitioners[’] attempt
to differentiate between claims that rely on the section
1116 presumption from those relying on the section 1116A
presumption finds no support in the Act or elsewhere in
title 38.” Government’s Br. 34.




statements made during oral argument. The letter repre-
sents that although “the board erroneously believed until
November 6, 2019 that it was prevented from reaching a
final decision on Mr. Procopio’s remand claim because of
the Secretary’s stay,” the board is “currently working to
reach a final decision.” Government’s 28(j) Letter 1.
12                PROCOPIO v. SECRETARY OF VETERANS AFFAIRS




     We do not decide whether § 1116A replaces § 1116.
Both parties have raised arguments as to why the two sec-
tions may have separate applications. Petitioners’ Br. 38–
42; Government’s Br. 34–41. But it is clear that the
§ 1116A stay authority extends to both § 1116A and § 1116
claims. Sections 1116A and 1116 cover the same list of dis-
eases that are eligible for presumptive service connection.
Section 2(c)(3) of the Act, which addresses “pending cases,”
provides that “[t]he Secretary may stay a claim . . . for dis-
ability compensation . . . relating to the service and diseases
covered by such section 1116A . . . .” Pub. L. No. 116-23,
§ 2(c)(3), 133 Stat. at 968 (emphasis added).                And
§ 1116A(a) conveys Congress’ intent that § 1116A covers
the same diseases as those covered by § 1116. 38 U.S.C.
§ 1116A(a) (“For the purposes of section 1110 of this title .
. . a disease covered by section 1116 of this title becoming
manifest as specified in that section in a veteran who, dur-
ing active military, naval, or air service, served offshore of
the Republic of Vietnam . . . .”) (emphasis added); id. § 1110
(“For disability resulting from . . . disease contracted in line
of duty . . . in the active military, naval, or air service, dur-
ing a period of war, the United States will pay to any vet-
eran thus disabled . . . compensation. . . .”). Therefore,
these claims by Blue Water Navy veterans, whether filed
before enactment of § 1116A or after, are covered by this
stay provision. We conclude that the Secretary properly
interpreted the stay provision to extend to § 1116 claims.
    We have considered Petitioners’ arguments regarding
the impropriety of the stays and conclude that the Secre-
tary did not abuse his discretion in applying the stay pro-
visions of § 1116A to claims submitted under § 1116.
                         CONCLUSION
    We have considered the parties’ remaining arguments
and do not find them persuasive. We hold that the Secre-
tary had the authority, pursuant to Section 2(c)(3) of the
Act, to stay such claims from the date of the Act’s
PROCOPIO v. SECRETARY OF VETERANS AFFAIRS               13



enactment, June 25, 2019, until its effective date, January
1, 2020, and therefore we deny the petition for review.
                        DENIED
                          COSTS
   The parties shall bear their own costs.
