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 Herrington & 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.

In ruling for the veterans, the appellate court overturned its contrary 2008 decision in Haas v. Peake. It applied the so-called Chevron framework for interpreting statutes and found that Congress spoke directly to the question of whether Procopio, who served in the territorial sea of the “Republic of Vietnam,” “served in the Republic of Vietnam” as stated in the act.

“He did,” the court concluded. “The intent of Congress is clear from its use of the term 'in the Republic of Vietnam,' which all available international law unambiguously confirms includes its territorial sea.”

The Federal Circuit then rejected the government's request to put its decision on hold while the government decided whether to appeal to the Supreme Court. Since then, the solicitor general has sought repeated extensions from the justices on the filing of a high court petition as he weighed whether to appeal. A decision to appeal the Federal Circuit ruling would have put the Trump administration at odds with Vietnam veterans—and the head of the Veterans Affairs department.

The solicitor general, consulting with federal agencies, generally makes decisions on government appeals to the Supreme Court. Complicating the decision on whether to appeal Procopio was the apparent interest by the U.S. State Department in having the Federal Circuit decision appealed because of its broader implications for international law, according to John Wells of Slidell, Louisiana, who was also the Procopio legal team.

Francisco's decision not to appeal was revealed in a motion to dismiss in a separate case in the U.S. Supreme Court—Gray v. Wilkie—which also involved a blue water Navy veteran who raised a narrower issue than Procopio. The justices had scheduled February arguments in the Gray case but pulled it from the docket at the request of Francisco who had said the Procopio decision, if not appealed, would provide the relief sought by Gray.

Robert Gray is represented pro bono by Roman Martinez, partner in Latham & Watkins. Blue water Navy veterans in both the Federal Circuit and the Supreme Court cases drew broad amicus support from veterans' organizations and veterans' legal services groups, represented by major law firms, including Paul Hastings; Hogan Lovells, Finnegan, Henderson, Farabow, Garrett & Dunner; and DLA Piper.

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