By Tom Philpott
On Jan. 29, attorney and retired Navy Cmdr. John B. Wells sat in the office of Sen. Mike Lee (R-Utah), ready to meet with staff regarding Lee's opposition to Blue Water Navy legislation, when his cell phone dinged and brought surprising news from the nearby U.S. Court of Appeals for the Federal Circuit.
A lawsuit that Wells and a team of appellant attorneys had argued on Dec. 7 before a full panel of judges on the appeals court had produced a stunning 9-2 victory for roughly 70,000 Blue Water Navy veterans.
For Wells, the court's ruling delightfully deflated the importance of his visit to try to persuade Lee not to block again legislation to extend disability compensation and VA medical care to Navy veterans who deployed decades ago to territorial waters off Vietnam and now are ill, or dead, of ailments associated with Agent Orange and other defoliants used in the war.
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Unless the Department of Veterans Affairs successfully petitions the U.S. Supreme Court to reverse the decision in Procopio v. Wilkie, Blue Water veterans have won a victory denied them for two decades, both in the courts and Congress.
Wells is executive director of Military-Veterans Advocacy of Slidell, La., a nonprofit corporation that litigates and advocates for veterans. He said he looked for years for the right case to challenge an appeals court decision that kept Agent Orange benefits from sailors whose ships steamed off Vietnam during the war.
Alfred Procopio Jr. suffers from prostate cancer and type 2 diabetes, two conditions on the VA list of ailments associated with Agent Orange exposure and triggering benefits if veterans served in Vietnam for a time between Jan. 9, 1962, and May 7, 1975, when U.S. involvement in the war officially ended.
Procopio was aboard the aircraft carrier USS Intrepid (CV-11) when, in July 1966, ship logs confirm it deployed to territorial waters off South Vietnam. The VA declined in April 2009 to find service connection for his ailments diagnosed a few years earlier. The Board of Veterans' Appeals also denied service connection, in March 2011 and in July 2015, because Procopio had not gone ashore.
In denying such appeals, boards and judges routinely cite the 2008 appeals court ruling in Haas v. Peake, which affirmed VA's interpretation of the Agent Orange Act to exclude veterans from benefits if they didn't come ashore, even if their ships steamed through Vietnam's territorial sea, defined as within 12 nautical miles of the coastline.
To prepare for Procopio's appeal, Wells said he interviewed lawyers at three firms offering pro bono expertise on briefs and arguments before appellate courts. He chose Melanie Bostwick of Orrick, Herrington and Sutcliffe, LLP, in Washington D.C., in part because of her plan to refine the challenge to Haas, focusing on what Congress meant in the Agent Orange Act by presuming exposure to defoliants if veterans served “in the Republic of Vietnam.”
Bostwick pushed the significance of the act's reference to the Republic of Vietnam “a step further than we had taken it and she was brilliant,” Wells said. For Procopio, his lawyers didn't argue that given his ship's location he must have been exposed at some point to deadly defoliants just like veterans who served ashore. Instead, they contended that Congress, in writing the law, intentionally used the formal name for the sovereign coastal nation. Under international law and based on the act's legislative history, they argued, “service in the Republic of Vietnam” must be read by the court to include naval service in its territorial waters.
Eight of 11 judges who heard the appeal accepted that argument. Another judge decided in favor of Procopio and Blue Water Navy veterans on other grounds. Two judges dissented.
With Procopio, the appeals court reversed it ruling in Haas. It disagreed that the Agent Orange law is ambiguous as to whether the list of presumptive diseases tied to defoliants should apply to sailors who supported the war from the sea.
Haas had let stand VA regulations that limited access to Agent Orange benefits to veterans who went ashore in Vietnam or patrolled its inland rivers and waterways. In Procopio, the court said what those judges missed a decade ago was the significance of the law granting presumption of service connection for certain diseases to veterans who “served in the Republic of Vietnam.” By using the formal name of that country, explained Judge Kimberly Ann Moore in writing the majority opinion, the act extended benefit coverage to service in Vietnam's territorial sea.
The court in Haas “went astray when it found ambiguity” in the plain language of the act after reviewing “competing methods of defining the reaches of a sovereign nation,” wrote Moore. It should have recognized that Congress unambiguously defined the pool of veterans eligible for benefits as any veteran who had served anywhere in Vietnam including the territorial sea.
“Congress has spoken directly to the question of whether those who served in the 12-nautical-mile territorial sea of the 'Republic of Vietnam' are entitled to [the act's] presumption if they meet [its] other requirements. They are. Because 'the intent of Congress is clear, that is the end of the matter,' ” Moore wrote, citing a 1984 Supreme Court decision that found a government agency must conform to clear legislative statements when interpreting and applying a law.
Judge Raymond T. Chen dissented in Procopio and was joined by Judge Thomas B. Dyk. Chen's arguments are likely to be echoed by government attorneys if the VA decides to seek Supreme Court review the case.
Chen wrote that in his view, the Agent Orange Act is ambiguous as to whether benefits should apply to veterans who served offshore. The court majority, he said, “inappropriately preempts Congress's role in determining whether the statute should apply in these circumstances - an issue which Congress is grappling with at this very time.”
By “repudiating a statutory interpretation from a 10-year old precedential opinion, without any evidence of changed circumstances,” Chen wrote, the majority “undermines the principle of stare decisis,” a doctrine that obligates courts to follow precedents set in previous decisions unless they can show clearly the previous decisions were wrongly decided.
Chen did “not find persuasive the majority's conclusion that international law dictates its interpretation. The Haas court considered similar sources of evidence but still concluded that the statutory phrase was ambiguous,” he wrote.
Chen noted that Congress, in debating whether to extend Agent Orange benefits to Blue Water veterans, found it will require the allocation of $1.8 billion in fiscal 2019 and $5.7 billion over 10 years. With so much at stake and without “more compelling” evidence Haas got it wrong, Chen wrote, the court majority should have left the issue for Congress to settle.
“It is not for the Judiciary to step in and redirect such a significant budget item,” Chen wrote.
Wells said he expects the government to decide within a few weeks whether to petition the Supreme Court to review the case. Meanwhile, he said, “we are very happy with the way the case came out.”
Wells said Haas case was ripe for reconsideration in part because “the court has been taking an increasingly jaundiced look at the VA and some of the stuff they've done” to deny benefits. Also, other cases had “drilled down” on weaknesses in VA's regulatory decisions excluding veterans from Agent Orange benefits.
“Frankly when the VA stripped the benefit [from sailors] back in 2002, we believed that they had nobody in their general counsel's office competent to understand” the act and the legal definition of "Republic of Vietnam," Wells said.
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