The decision by U.S. Solicitor General Noel Francisco ends months of uncertainty over whether the Trump administration would appeal the case to the U.S. Supreme Court.
The Trump administration’s Justice Department informed the U.S. Supreme Court on Tuesday that it will not challenge a landmark lower court ruling that “blue water” Navy veterans who served during the Vietnam War are covered by the federal Agent Orange Act.
The decision by U.S. Solicitor General Noel Francisco ended months of uncertainty for tens of thousands of former service members or their survivors who may now be eligible for benefits stemming from exposure to Agent Orange. The benefits have been estimated to cost the Department of Veterans Affairs more than $1 billion over 10 years.
“I am thrilled that the solicitor general has determined not to seek certiorari review,” said Mel Bostwick, a partner at Orrick Henderson & Sutcliffe who represented veteran Alfred Procopio pro bono. “While I have every confidence that the Supreme Court would have upheld the Federal Circuit’s sound decision, the choice by the solicitor and by Secretary [Robert] Wilkie to enforce the court’s ruling now means that deserving Vietnam veterans will not have to endure further delay or uncertainty before obtaining the benefits that they were promised decades ago.”
In January, the so-called “blue water” Navy veterans, who served on ships within the 12-mile territorial sea of the Republic of Vietnam, secured a long-sought victory in the U.S. Court of Appeals for the Federal Circuit. The full court, ruling 9-2, said the Agent Orange Act of 1991 includes those veterans.
Until the ruling by the full Federal Circuit, those veterans had been denied the presumption of Agent Orange exposure during the Vietnam War. The Justice Department, supporting the Department of Veterans Affairs’ interpretation, had argued that the Agent Orange Act covered only those veterans who served on the ground or inland waterways of Vietnam.