Orrick Pro Bono Team Secures Major Appellate Win for Blue Water Navy Veterans

January.29.2019

Opening the door for at least 50,000 veterans of the Vietnam War to receive benefits for health troubles linked to Agent Orange, the Federal Circuit today overwhelmingly backed the arguments of an Orrick pro bono team and sided with “Blue Water Navy” veterans who have been fighting for decades to be compensated for their often life-threatening disabilities.

In a 9-2 decision, the Federal Circuit, which took the unusual step of hearing the case en banc, concluded that Navy veteran Alfred Procopio Jr. and thousands of others in his position are entitled to benefits under the Agent Orange Act. The majority specifically found that the phrase in the statute “served in the Republic of Vietnam” unambiguously covers veterans such as Procopio who served on U.S. ships within the 12 nautical mile territorial sea of South Vietnam.

The Veterans Administration has refused to provide disability and health care benefits, arguing that the statute did not extend to the Blue Water Navy veterans because it only covered Vietnam’s land and inland waterways. This excluded the Navy veterans who served offshore, despite the fact many have encountered serious medical conditions traced to their exposure to Agent Orange.

The Federal Circuit upheld the VA in a 2008 decision, but an Orrick team led by partner Mel Bostwick persuaded the full court to reconsider the issue in the case of Mr. Procopio, who served on an aircraft carrier between 1964 and 1967 and is seeking disability benefits and health care related to prostate cancer and diabetes.

The Federal Circuit agreed with Mel’s argument that Procopio is entitled to a presumption of service connection – meaning he qualifies for disability and health care benefits.

Today’s decision was the latest win for veterans secured by Orrick’s pro bono work. In a separate case last year led by Mel, the Federal Circuit for the first time ensured that thousands of veterans with pain-related disabilities from military service are entitled to VA benefits.

“The Federal Circuit’s decision today is a crucial and long overdue win for Blue Water Navy veterans in Mr. Procopio’s position,” Mel said. “These Vietnam veterans sacrificed their own health and well-being for the good of the country, and the benefits that Congress provided—and which the Court’s decision now secures—are part of the debt of gratitude we owe them for their service. The court today took the unusual step of overruling a decade-old decision, and it did so by a significant 9-2 majority. That should send a clear message to the VA, and we’re hopeful the government will now abandon its flawed legal position and ensure Mr. Procopio and others similarly situated are fairly and swiftly provided the benefits they deserve.”

The Washington Post, Law360 and other media outlets covered the decision.

In addition to Mel, the Orrick team included Tom Bondy, Robert Manhas and Matthew Shahabian, and worked closely with co-counsel John Wells with Military Veterans Advocacy, Inc.