The Trump administration’s Justice Department is urging the U.S. Supreme Court to reject a Vietnam veteran’s attempt to collect $35,000 in legal fees for his landmark court victory opening potentially billions of dollars in Agent Orange benefits to thousands of so-called “blue water” Navy service members.
Alfred Procopio, represented by retired Navy Cmdr. John Wells of Slidell, Louisiana, is asking the justices to review a decision by the U.S. Court of Appeals for the Federal Circuit that said he is not entitled to fees and costs under the federal Equal Access to Justice Act. The en banc court in September sided with the Justice Department in a one-line summary decision rejecting Procopio’s fee request.
Procopio’s fee request involves provisions of the Equal Access to Justice Act, a law that allows “prevailing party” plaintiffs in certain instances to recoup litigation fees in cases involving federal agencies.
Procopio sought legal fees after his victory in January 2019 in the case Procopio v. Wilkie. The Federal Circuit, ruling 9-2, said for the first time that the Agent Orange Act of 1991 and its presumption of exposure to the chemical herbicide applies to Navy veterans who served on ships within the 12-mile territorial sea of the Republic of Vietnam. The Justice Department had argued those benefits applied only to soldiers on land or inland waterways.
The benefits potentially owed to roughly 90,000 vets have been estimated to cost the government more than $1 billion over 10 years.
The Equal Access to Justice Act permits an award of fees when the government’s litigation position was not “substantially justified.” In his Supreme Court petition, Wells heavily relied on a concurring opinion written by Judge Kathleen O’Malley of the U.S. Court of Appeals for the Federal Circuit. The judge said that although she was bound by Supreme Court and circuit precedents to rule against Procopio, the disabled Vietnam vet was “the very type of prevailing party, moreover, for whom Congress enacted the EAJA.”