Constantine: Nehmer and Korean Veterans

Constantine v. McDonough, Case Number 18-7044, decided January 14, 2022 discusses the expansion of the Nehmer class to allow for an earlier effective date for the veteran. 

Nehmer is a class action suit related to VA regulations as to Agent Orange exposure that resulted in a class action order in the US District Courts, which has been overseen by the U.S. District Court of Northern California.

In this case, the Board determined the veteran was not a member of the class identified in Nehmer and thus does not receive the earlier effective date allowed by the class settlement.  The Veterans Court noted it had jurisdiction over the appeal and the authority to decide whether the veteran was/should be a class member, but declined to exercise jurisdiction for risk two federal courts could arrive at conflicting outcomes and thus unnecessarily complicate litigation.

The veteran in this case did not serve in Vietnam, but Korea in the DMZ.  The veteran argued he should receive the effective date allowed by Nehmer because the Nehmer class definition was not limited based on geographic location of herbicide exposure. 

The Court declined to exercise jurisdiction and explained:

“Congress transferred exclusive subject-matter jurisdiction over veterans benefits cases to our Court in 1988. Nehmer remains a vestige of the pre-VJRA judicial system—a historical anachronism—and that fact and the factors discussed herein weigh in favor of declining to exercise jurisdiction over the only argument raised by the veteran in this case. But we stress, however, the unique and extraordinarily rare situation that this case presents. Our decision to decline exercising jurisdiction in Mr. Constantine's appeal comports with general principles of comity and judicial economy that counsel against courts exercising jurisdiction in such a way that might interfere with the order of another court. See, e.g., Zambrana v. Califano, 651 F.2d 842, 844 (2d Cir. 1981) (citing Bergh v. State of Washington, 535 F.3d 505, 507 (9th Cir. 1976), Torquay Corp. v. Radio Corp. of America, 2 F. Supp. 841, 844 (S.D. N.Y. 1932) ("[A]s a matter of comity and of the orderly administration of justice, [a] court should refuse to exercise its jurisdiction to interfere with the operation of a decree of another federal court.")). Accordingly, we decline to exercise jurisdiction in this case. To the extent that Mr. Constantine believes that he is wrongfully being excluded from the Nehmer class, he is not without recourse; he can seek enforcement with the District Court.”

This decision is a novel attack on the class member definition found in Nehmer and has already been appealed to the Federal Circuit.  The result will be interesting.

Decision by Chief Judge Bartley and joined by Judge Meredith.  Judge Greenberg dissented saying he would exercise jurisdiction.

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