On August 16, 2018, the United States Court of Appeals for the Federal Circuit issued an order in the case Procopio v. Wilkie. First, the Court decided by itself to now hear the matter en banc. This means that all of the active judges on the Federal Circuit will first hear oral arguments and then decide the matter. The Court typically hears a case en banc when they are poised to reconsider a previous decision made by a panel of the Court, which usually consists of three judges.
What Was Ordered?
In its order, the Court ordered additional briefing from both sides on the following issue:
Does the phrase “served in the Republic of Vietnam” in 38 U.S.C. § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam?
- What role if any does the pro-claimant canon play in this analysis?
Mr. Procopio’s attorney has 45 days from August 16, 2018 to file his brief in the matter and then the government will have another 30 days to file its brief. Finally, Mr. Procopio will be given 15 days to file the reply brief. The Court has also invited interested amici to file briefs in this matter. Amicus briefs (“friend of the Court” briefs) are meant to provide additional relevant evidence or argument for the Court to consider. Once all the briefing is completed, the Court will schedule another oral argument. As a practical matter, this means that the Court will not hear arguments until 2019.
The Court had previously ordered supplemental briefing in the Procopio case regarding the pro-claimant canon in step one of the Chevron analysis in this case. The supplemental briefing came after a panel on the Court heard oral argument in the case on May 4, 2018.
What About the Blue Water Navy Bill?
This order comes on the heels of the Senate Veterans Affairs Committee hearing on the Blue Water Navy Vietnam Veterans Act which, if passed, would expand VA’s presumption of herbicide exposure to approximately 90,000 Vietnam-era Navy veterans. At the hearing held on August 2, 2018, VA expressed its opposition to the bill, stating that there is still a lack of credible scientific evidence to support that Blue Water Navy veterans were exposed to herbicides during their service at sea.