Procopio v. Wilkie
913 F.3d 1371
| Fed. Cir. | 2019Background
- Alfred Procopio, Jr., a Navy veteran, served aboard the U.S.S. Intrepid in July 1966 in waters offshore the landmass of the Republic of Vietnam (the territorial sea). He later developed diabetes mellitus and prostate cancer and sought VA benefits under the Agent Orange Act (38 U.S.C. § 1116).
- Section 1116 grants a presumption of service connection for specified diseases for veterans who “served in the Republic of Vietnam” during 1962–1975 and presumes exposure to herbicides unless affirmative evidence shows no exposure.
- VA regulations (pre-1991) used phrases like “service in the Republic of Vietnam includes service in the waters offshore...”; the VA later (1997) took a “foot-on-land” position—requiring presence on the landmass or inland waterways to qualify—interpreting the regulation to limit entitlement for some offshore sailors.
- In Haas v. Peake (2008), a panel found § 1116 ambiguous and deferred to the VA’s interpretation (upholding the foot-on-land requirement) under Chevron and Auer deference principles.
- The en banc Federal Circuit asked whether “served in the Republic of Vietnam” unambiguously includes service in the nation’s territorial sea and whether the pro‑veteran canon affects that analysis.
- The en banc majority reversed the Veterans Court: it held § 1116 unambiguously includes the territorial sea (based on the phrase “Republic of Vietnam” read against international-law definitions of a nation’s territorial sea), overruled Haas, and remanded for application of the statutory presumption to Procopio.
Issues
| Issue | Procopio’s Argument | Wilkie’s Argument | Held |
|---|---|---|---|
| Whether “served in the Republic of Vietnam” unambiguously includes service in the territorial sea | Phrase refers to the formal sovereign; international law treats a nation as including its territorial sea, so offshore territorial‑sea service qualifies | VA argues historical regulations and administrative interpretation (foot‑on‑land) create ambiguity and Congress codified that regulatory scheme | Court: Unambiguous—Congress meant the formal country name (including territorial sea); Chevron step one ends the inquiry; Procopio prevails |
| Whether pre‑existing VA regulations create statutory ambiguity | Procopio: regulations do not impose foot‑on‑land; differences are grammatical and do not defeat the statute’s plain meaning | Wilkie: differing regs (one with conjunctive phrasing) and later VA interpretations create ambiguity requiring deference | Court: VA’s later foot‑on‑land position (first articulated in 1997) cannot manufacture ambiguity in § 1116; no ambiguity found |
| Role of the pro‑veteran canon in the interpretive analysis | Procopio: canon supports a veteran‑favorable reading and may inform Chevron step one | Wilkie: canon should not override statutory text or agency gap‑filling | Court: Did not need to reach the canon because the text was clear; several concurring opinions argue the canon is applicable at Chevron step one |
| Whether Haas v. Peake remains controlling | Procopio: Haas erred in finding ambiguity and deferring to VA | Wilkie: Haas properly applied Chevron/Auer and should bind | Court: Overruled Haas; prior panel decision was wrong to find ambiguity and to defer to the VA in this context |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (framework for judicial review of agency statutory interpretation)
- Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (prior panel holding § 1116 ambiguous and upholding VA’s foot‑on‑land interpretation)
- Auer v. Robbins, 519 U.S. 452 (agency deference to interpretations of its own regulations)
- Henderson v. Shinseki, 562 U.S. 428 (recognition of the pro‑veteran canon of construction)