Washington, D.C. – Paul Hastings LLP, a leading global law firm, has secured a major pro bono victory alongside the National Veterans Legal Services Program (NVLSP) for a class of Blue Water Navy veterans and their survivors who will now receive retroactive service connected disability and death benefits due to exposure to Agent Orange, the toxic herbicide used by the United States government during the Vietnam War.
In 1991, in Nehmer v. United States Veterans Administration, the Department of Veterans Affairs (VA) and NVLSP entered into a consent decree requiring the VA to pay retroactive benefits to Vietnam veterans in the class (the Nehmer class) whenever the VA recognized an additional disease as being associated with Agent Orange, under the Agent Orange Act. Yet, since 2002, the VA has refused to pay Nehmer class members or their survivors any benefits if they are “Blue Water” Navy veterans (Vietnam Navy veterans who served on ships in the territorial seas of Vietnam as opposed to the land mass or inland waterways). The VA’s policy was that these “Blue Water” veterans did not put “boots on land,” and thus were not covered by the Agent Orange Act, nor the consent decree, because they did not “serve in the Republic of Vietnam.” Yet, in 2019, the U.S. Court of Appeals for the Federal Circuit rejected the VA’s wrong interpretation of this language of the Agent Orange Act, and ruled that Congress intended that all Vietnam veterans who served on ships in the territorial sea of Vietnam “served in the Republic of Vietnam” under the Agent Orange Act. Paul Hastings and NVLSP filed an amici brief in this case. Despite this ruling from the Federal Circuit, the VA continued to refuse to provide Nehmer class members’ retroactive benefits if they were Blue Water Navy veterans.
Paul Hastings and NVLSP filed a motion to enforce the consent decree on behalf of the class to require the VA to redecide the thousands of prior denials of retroactive benefits under the Nehmer consent decree for Nehmer Blue Water Navy veterans and their survivors. On November 5, 2020, Judge William A. Alsup in the Northern District of California ruled in favor of the class, ordering that Blue Water Navy veterans are members of the Nehmer class and that the VA had been improperly denying them benefits under the consent decree. The VA will now have to automatically readjudicate all class claims that were erroneously denied because the Nehmer class member was a Blue Water Navy veteran. It is estimated that this ruling could affect 2,000 to 15,000 veterans and their survivors, and could result in each receiving an average of $28,000 in benefits. Thus, this victory could result in tens or hundreds of millions of dollars in relief to Blue Water Navy veterans and their survivors. As NVLSP Executive Director Bart Stichman explains, “For many of these veterans and their survivors, the overdue compensation could be life-changing.”
Partner Stephen Kinnaird led the Paul Hastings team, which included partner Sean Unger, senior associate Sarah Besnoff, and associate Alex Schulman.
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