Douglas A. Constantine v. Denis McDonough

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 18-7044

DOUGLAS A. CONSTANTINE, APPELLANT,

V.

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued November 4, 2020 Decided January 14, 2022)

Christopher F. Attig, of Little Rock, Arkansas, for the appellant.

Alexander M. Panio, with whom Dustin P. Elias; William A. Hudson, Jr., Acting General

Counsel; Mary Ann Flynn, Chief Counsel; and Richard A. Daley, Deputy Chief Counsel, were on

the brief, all of Washington, D.C., for the appellee.

Before BARTLEY, Chief Judge, and GREENBERG and MEREDITH, Judges.

BARTLEY, Chief Judge, filed the opinion of the Court. GREENBERG, Judge, filed an

opinion dissenting in part.

BARTLEY, Chief Judge: In 1987, Vietnam veterans and their survivors brought a class

action suit challenging certain VA regulations regarding Agent Orange exposure. Nehmer v. U.S.

Veterans' Admin., 712 F. Supp. 1404, 1407-09 (N.D. Cal. 1989) (Nehmer I). From that litigation,

the parties agreed to a Final Stipulation and Order ("consent decree" or "Nehmer stipulation")

regarding VA's obligations to class members. See Final Stipulation & Order, Nehmer v. U.S.

Veterans' Admin., No. CV-86-6160, 1991 U.S. Dist. LEXIS 22110 (N.D. Cal. May 17, 1991)

(Nehmer Consent Decree). The U.S. District Court for the Northern District of California (District

Court) approved the consent decree in 1991 and, over the intervening 30 years, has overseen

enforcement of its terms.

Currently before this Court is veteran Douglas A. Constantine's appeal, through counsel,

of an October 31, 2018, decision of the Board of Veterans' Appeals (Board) that denied entitlement

to an effective date earlier than August 31, 2010, for the award of service connection for coronary

artery disease (CAD). Record (R.) at 4-14. 1 In reaching that decision, the Board, relying on

38 C.F.R. § 3.816, determined that the veteran was not a member of the Nehmer class and,

therefore, was not entitled to a retroactive effective date under Nehmer. Properly characterized,

Mr. Constantine's arguments are a request that this Court review the scope of the Nehmer litigation

and determine whether the Board erred when it found that he was not entitled to the benefit of the

earlier effective date rules provided to Nehmer class members. Although we have jurisdiction over

Mr. Constantine's appeal of the October 2018 Board decision, see 38 U.S.C. § 7252(a), and we

have the authority to "decide all relevant questions of law" implicated by that decision, 38 U.S.C.

§ 7261(a)(1), including the proper effective date as to his service-connected CAD benefits, we

decline to exercise jurisdiction here for prudential reasons. Were we to address the fundamental

question presented here, particularly where the District Court has not squarely addressed that

question, we risk two federal courts arriving at conflicting outcomes, unnecessarily complicating

the litigation. Accordingly, in this rare circumstance, we decline to exercise jurisdiction and will

dismiss the appeal.

I. NEHMER LITIGATION

Before delving into the specifics of Mr. Constantine's appeal, it is important to understand

the Nehmer class action suit and subsequent enforcement actions, as they serve as the basis for

Mr. Constantine's arguments and his prayer for relief.

In February 1987, Beverly Nehmer, along with other Vietnam veterans and their survivors

("plaintiffs"), brought a class action suit challenging VA's promulgation of 38 C.F.R. § 3.311a

(1986), which implemented part of the Veterans' Dioxin and Radiation Exposure Compensation

Standards Act of 1984, Pub. L. No. 98-542 (Oct. 24, 1984), then-codified at 38 U.S.C. § 354.

Nehmer v. U.S. Veterans' Admin., 118 F.R.D. 113, 115-16 (N.D. Cal. 1987) ("Nehmer Class Cert.

Order"); see Nehmer I, 712 F. Supp. at 1407-09. As certified by the District Court, the class of

plaintiffs consisted of

all current and former service members, or their next of kin (a) who are eligible to

apply to, who will become eligible to apply to, or who have an existing claim

1

In the same decision, the Board assigned the effective date of August 31, 2010, which was earlier than the

previously assigned effective date of December 15, 2011. R. at 4. Because this determination is favorable to

Mr. Constantine, the Court will not disturb it. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007) ("The Court is

not permitted to reverse findings of fact favorable to a claimant made by the Board pursuant to its statutory authority."),

aff'd in part, dismissed in part sub nom. Medrano v. Shinseki, 332 F. App'x 625 (Fed. Cir. 2009).

2

pending before the [VA] for service-connected disabilities or deaths arising from

exposure during active-duty service to herbicides containing dioxin or (b) who have

had a claim denied by the VA for service-connected disabilities or death arising

from exposure during active-duty service to herbicides containing dioxin.

Nehmer Class Cert. Order, 118 F.R.D. at 116; see Nehmer I, 712 F. Supp. at 1409. In May 1989,

the District Court invalidated § 3.311a(d) and voided VA claim denials between September 25,

1985, and May 3, 1989, that were based on the invalidated regulation. Nehmer I, 712 F. Supp. at

1423.

Congress then passed the Agent Orange Act of 1991, Pub. L. No. 102-4 (Feb. 6, 1991)

("Agent Orange Act"), then-codified at 38 U.S.C. § 316, which established presumptive service

connection for a list of diseases resulting from herbicide exposure. See 38 U.S.C. § 1116 (2021).

Although the statute prospectively required VA to prescribe additional regulations when sound

medical and scientific evidence establishes a positive association between herbicide exposure and

a disease process, it did not provide for readjudication of previously denied claims.

But VA and the Nehmer class entered into a consent decree, which the District Court

approved, that detailed VA's ongoing responsibilities for further rulemaking and retroactive

disability payments to class members. Nehmer Consent Decree, 1991 U.S. Dist. LEXIS 22110;

see Nehmer v. U.S. Veterans' Admin., 32 F. Supp. 2d 1175, 1177 (N.D. Cal. 1999) (Nehmer II)

(describing the consent decree). As relevant, the consent decree provided that, after the Secretary

issues a final rule establishing a presumption of service connection for a disease determined to be

associated with herbicide exposure, VA will readjudicate all claims voided by Nehmer I involving

that disease. Nehmer Consent Decree, 1991 U.S. Dist. LEXIS 22110, ¶ 3; see id. at ¶ 5 (describing

the assignment of an effective date associated with the grant of benefits following readjudication);

see also Nehmer II, 32 F. Supp. 2d at 1177 (reciting paragraphs 3 and 5 of the consent decree).

Since the District Court's approval of the consent decree in 1991, plaintiffs on four

occasions have sought enforcement of the terms of the consent decree in the District Court. In

1999, the District Court agreed with the plaintiffs that VA wrongly interpreted the consent decree

as not requiring readjudication of a previously denied claim unless the claim had specifically

alleged that herbicides were a factor in the veteran's death or injury, or VA's denial of the benefits

expressly cited § 3.311a as grounds for denial. Nehmer II, 32 F. Supp. 2d at 1183-84. In 2002, the

U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) affirmed the District Court's

interpretation of the consent decree as requiring VA to "provide retroactive benefits to any class

3

member who submitted a claim after May 3, 1989, based on a disease that is later service connected

under the Agent Orange Act." Nehmer v. Veterans' Admin. of Government of U.S., 284 F.3d 1158,

1161 (9th Cir. 2002) (Nehmer III).

Following Nehmer III, VA added § 3.816 to implement effective date rules in compliance

with Nehmer. Effective Dates of Benefits for Disability or Death Caused By Herbicide Exposure;

Disposition of Unpaid Benefits After Death of Beneficiary, 68 Fed. Reg. 4132, 4134 (Jan. 28, 2003)

(proposed rule), 68 Fed. Reg. 50,966 (Aug. 25, 2003) (final rule). As relevant, the regulation

defined "[c]overed herbicide disease" as "a disease for which the Secretary of Veterans Affairs has

established a presumption of service connection before October 1, 2002[,] pursuant to the Agent

Orange Act." 38 C.F.R. § 3.816(b)(2) (2004); see 68 Fed. Reg. at 4138 (noting that September 30,

2002, was the sunset date of the Agent Orange Act).2 However, following the second enforcement

action, the Ninth Circuit, in 2007, affirmed the District Court's interpretation that "the plain

language of the [c]onsent [d]ecree . . . applies to diseases determined to be service-connected after,

as well as before, September 30, 2002." Nehmer v. U.S. Dep't of Veterans Affairs, 494 F.3d 846,

855 (9th Cir. 2007) (Nehmer IV).

In 2020, the District Court agreed with plaintiffs that VA was wrongfully interpreting the

phrase "Republic of Vietnam" in section 1116 as only including veterans who had boots on the

ground in Vietnam and brown water Navy veterans, thereby impermissibly not affording blue

water Navy veterans relief under the terms of the consent decree. Nehmer v. U.S. Dep't of Veterans

Affairs, No. CV-86-06160, 2020 WL 6508529, at *5-6 (N.D. Cal. Nov. 5, 2020) (Nehmer V)

(citing Procopio v. Wilkie, 913 F.3d 1371, 1380 (Fed. Cir. 2019)). 3 And most recently, in

November 2021, the District Court concluded that the last sentence of § 3.816(f)(3) conflicted with

the consent decree and ordered it be rescinded because it creates a "serious risk" of misleading a

veteran's late-claiming surviving children regarding their entitlement to retroactive payment where

additional surviving children have already received payment. Nehmer v. U.S. Dep't of Veterans

Affairs, No. C 86-06160, 2021 U.S. Dist. LEXIS 218075, at *11 (N.D. Cal. Nov. 10, 2021)

2

The regulation also defined a Nehmer class member, for purposes of the regulation, as a Vietnam veteran

who has a covered herbicide disease, or a surviving spouse, child, or parent of a deceased Vietnam veteran who died

from a covered herbicide disease. 38 C.F.R. § 3.816(b)(1) (2004). The current version of § 3.816(b)(1) contains the

same definition of a Nehmer class member for purposes of the regulation. 38 C.F.R. § 3.816(b)(1) (2021).

3

Brown water refers to the inland waters of the landmass of Vietnam and blue water refers to the offshore

waters. See, e.g., Nehmer V, 2020 WL 6508529, at *3; Gray v. McDonald, 27 Vet.App. 313, 317 n.4 (2015).

4

(Nehmer VI); see Awards Under the Nehmer Court Orders for Disability or Death Caused by a

Condition Presumptively Associated with Herbicide Exposure; Implementing Court Order,

86 Fed. Reg. 68,409, 68,409-10 (Dec. 2, 2021) (removing the last sentence of § 3.816(f)(3)).

II. MR. CONSTANTINE'S CLAIM

Mr. Constantine served honorably in the U.S. Air Force from October 1965 to October

1970. R. at 1908. His service included duty at the demilitarized zone (DMZ) in the Republic of

Korea, see R. at 2009, but not in the Republic of Vietnam.

In January 2008, Mr. Constantine filed, among other things, a claim for service connection

for a heart condition. R. at 3333-45. As relevant here, a VA regional office (RO) awarded service

connection for CAD associated with herbicide exposure in April 2012. R. at 2657-61. The RO

assigned an effective date of December 15, 2011, noting that this date corresponded to the first

date that Mr. Constantine was diagnosed with ischemic heart disease (IHD). Id.; see R. at 2727;

see also 38 C.F.R. § 3.309(e) (2011) (listing IHD, which includes CAD, among those diseases

presumptively associated with herbicide exposure).

In May 2012, Mr. Constantine filed a Notice of Disagreement seeking an earlier effective

date for the award of service connection for CAD. R. at 2595, 2633. Following a December 2012

Statement of the Case, R. at 2514-41, Mr. Constantine timely perfected an appeal to the Board,

R. at 2431-34. Before the Board, in June 2015 and July 2016, Mr. Constantine, through current

counsel, argued, in relevant part, that he is a member of the Nehmer class because the District

Court's class definition was not limited based on the geographic location of herbicide exposure.

R. at 1403-05 (June 2015), 520-22 (July 2016).

In the October 2018 decision on appeal, the Board found the evidence in relative equipoise

as to the date when Mr. Constantine's CAD first manifested and, therefore, concluded, based on

application of the benefit of the doubt doctrine, that symptoms began as early as the 1990s. R. at

14. However, the Board awarded an effective date of August 31, 2010, the date of the liberalizing

law that added IHD to the list of diseases presumptively associated with herbicide exposure. R. at

10 (citing 38 C.F.R. § 3.114(a)(1)). In doing so, the Board rejected Mr. Constantine's argument

that he is a member of the Nehmer class, because he did not serve in the Republic of Vietnam

during the relevant time period. R. at 7-8 (citing 38 C.F.R. § 3.816(b)(1)(i)). This appeal followed.

5

III. ARGUMENTS

Mr. Constantine argues that he is a member of the Nehmer class and, therefore, entitled to

the effective date relief prescribed by the consent decree. He argues that the District Court certified

a class of current and former servicemembers who were exposed to herbicides, irrespective of the

geographic location of their exposure. Appellant's Brief (Br.) at 13-14. He argues that the Secretary

did not challenge the geographic scope of the class before the District Court and, therefore, that

issue was fully litigated and resolved. Constantine v. McDonough, No. 18-7044, Oral Argument

[hereinafter "Oral Argument"] at 5:37-6:58, 16:12-17:56.4 As a result, he argues that the Board

exceeded its jurisdiction when it improperly limited the scope of the Nehmer consent decree to

only Vietnam veterans and their survivors. Appellant's Br. at 11-14, 16-22. He emphasized during

oral argument that he is not asking this Court to interpret the class certification order or consent

decree—a function he asserts is reserved for the District Court—but instead is arguing that this

Court instruct the Board to apply the plain language of the class certification order in the same

manner that the District Court, as the "enforcing court," would. Oral Argument at 13:00-13:36,

18:49-20:28. He urges the Court to set aside the Board decision as ultra vires and remand the

appeal to the Board with "instructions to follow the clear and unambiguous language of the consent

decree." Appellant's Br. at 22; see Reply Br. at 7-8.

The Secretary argues that the Board correctly found that Mr. Constantine is not entitled to

the Nehmer effective date provisions in § 3.816 because he did not serve in Vietnam. Secretary's

Br. at 5-11; Oral Argument at 29:36-31:45. He argues that VA promulgated § 3.816 to implement

the Nehmer order, and that Mr. Constantine's "argument is based on a revisionist interpretation of

the Nehmer class" and ignores important contextual aspects of the Nehmer lawsuit, including that

it was "initiated by Vietnam veterans, on behalf of Vietnam veterans, and involved solely

regulatory presumptions for those who served" in Vietnam. Secretary's Br. at 8; see Oral Argument

at 27:30-27:58 (arguing that VA and the Nehmer plaintiffs understood that the class was based on

Vietnam service only and that understanding was enshrined in § 3.816). He additionally argues

that, because the veteran is asking the Court to interpret the terms of the consent decree, the proper

recourse is for Mr. Constantine to file a motion for enforcement with the District Court as subject-

matter jurisdiction lays with that court. Oral Argument at 27:58-29:36, 31:45-32:50, 34:09-36:03.

4

Available at https://www.youtube.com/watch?v=fOXYeGqAwA4.

6

Synthesizing the arguments, the operative facts of this appeal are not in dispute. It is

undisputed that Mr. Constantine did not serve in the Republic of Vietnam, including within its

territorial waters, during the relevant time period contemplated by section 1116. He served at the

Korean DMZ at a minimum between April and August 1969, and, thus, VA recognizes his

exposure to herbicides. See R. at 7; see also 38 C.F.R. § 3.307(a)(6)(iv) (2021). 5 It is also

undisputed that Mr. Constantine has a diagnosed heart condition (CAD) that VA considers to be

presumptively associated with herbicide exposure. See R. at 10; see also 38 C.F.R. § 3.309(e)

(2021). And it is undisputed that VA added IHD (including CAD) to the list of diseases

presumptively associated with herbicide exposure effective August 31, 2010. See 38 C.F.R.

§ 3.309(e). On these grounds, the Board granted the current effective date of August 31, 2010.

R. at 14 (citing 38 C.F.R. § 3.114(a)(1)).6

The parties also agree that Mr. Constantine does not meet VA's regulatory definition of a

Nehmer class member found in § 3.816(b)(1). The parties disagree, however, as to whether the

regulatory definition is controlling in this case and take differing views as to whether the regulation

fully or only partially describes the Nehmer class. Reply Br. at 2-7; Secretary's Br. at 11; Oral

Argument at 18:49-20:28, 29:36-31:45. But because Mr. Constantine does not directly challenge

the regulation's validity, the Court need not address the regulatory definition further.

5

The presumption of herbicide exposure for veterans serving at the Korean DMZ between April 1, 1968, and

August 31, 1971, became effective February 24, 2011, see Herbicide Exposure and Veterans With Covered Service in

Korea, 76 Fed. Reg. 4245 (Jan. 25, 2011) (final rule) (adding 38 C.F.R. § 3.307(a)(6)(iv)). Because Mr. Constantine's

service included service at the Korean DMZ as part of a recognized military unit from April to August 1969, VA

found that he was exposed to herbicides. R. at 2011, 2659, 2821; see VA Adjudication Procedures Manual, M21-1,

VIII.i.1.A.3.a-c (revised Nov. 2, 2021); see also McKinney v. McDonald, 796 F.3d 1377, 1379 (Fed. Cir. 2015)

(discussing VA's policy found in the M21-1 prior to promulgation of the final regulation). Effective January 1, 2020,

Congress extended the regulatory presumptive period to begin on September 1, 1967, and end on August 31, 1971.

38 U.S.C. § 1116B; see Blue Water Navy Vietnam Veterans Act of 2019, Pub. L. No. 116-23, § 3(a), 133 Stat. 966,

969 (June 25, 2019) (codified at 38 U.S.C. § 1116B).

6

Although he argued before the Board that an effective date as early as October 2009 was warranted based

on application of effective date rules regarding liberalizing laws, R. at 1405, he raises no argument on appeal to this

Court that the Board erred in applying the liberalizing law provisions to award the current effective date of August 31,

2010. Accordingly, the Court deems those arguments abandoned. See Grivois v. Brown, 6 Vet.App. 136, 138 (1994)

(explaining that the Court has discretion to deem issues not raised on appeal as abandoned).

7

IV. ANALYSIS

The central divergence in this case is in the parties' respective characterizations of

Mr. Constantine's specific prayer for relief and their views of this Court's role in affording that

relief.

A. Court of Appeals for Veterans Claims Jurisdiction

"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of

Am., 511 U.S. 375, 377 (1994). Our jurisdiction stems from the Veterans' Judicial Review Act

(VJRA), Pub. L. No. 100-687, 102 Stat. 4105 (Nov. 18, 1988). As part of the VJRA, Congress

created our Court and gave us "exclusive jurisdiction to review decisions of the Board." 38 U.S.C.

§ 7252(a). Prior to enactment of the VJRA, claimants seeking to enforce veterans benefits statutes

sought aggregate relief in the district courts. See Monk v. Shulkin, 855 F.3d 1312, 1319 (Fed. Cir.

2017) (compiling cases including Nehmer); Skaar v. Wilkie, 32 Vet.App. 156, 177 (2019) (en banc

order) (compiling cases). However, the VJRA fundamentally changed the availability of judicial

review of VA decisions. And recent cases have announced our authority to aggregate claims for

class action. Monk, 855 F.3d at 1319 (describing authority in the petition context); Skaar,

32 Vet.App. at 177-78 (describing authority in the appeal context).

One hallmark function of the VJRA is that Congress transferred exclusive jurisdiction to

our Court—and thereby divested subject-matter jurisdiction from federal district courts—over

VA-benefits-related claims. Other federal courts, including the Ninth Circuit, have acknowledged

our exclusive jurisdiction over VA-benefits-related claims. See, e.g., Veterans for Common Sense

v. Shinseki, 678 F.3d 1013, 1016, 1021-23, 1031-32 (9th Cir. 2012) (en banc); Vietnam Veterans

of America v. Shinseki, 599 F.3d 654, 656 (D.C. Cir. 2010); Beamon v. Brown, 125 F.3d 965, 971-

73 (6th Cir. 1997); Hall v. U.S. Dep't of Veterans' Affairs, 85 F.3d 532, 534 (11th Cir. 1996);

Zuspann v. Brown, 60 F.3d 1156, 1158-59 (5th Cir. 1995); Hicks v. Veterans Admin., 961 F.2d

1367, 1369-70 (8th Cir. 1992); Addington v. United States, 94 Fed. Cl. 779, 782 (2010).

In addition, Congress provided this Court, within our scope of review, the "exclusive

jurisdiction to consider all questions involving benefits under laws administered by the

VA, . . . includ[ing] factual, legal, and constitutional questions." H.R. Rep. 100-963, at 5 (1988),

reprinted in 1988 U.S.C.C.A.N. 5782, 5786; see Veterans for Common Sense, 678 F.3d at 1021

(quoting H.R. Rep. 100-963 and emphasizing "all"); see also 38 U.S.C. § 7261(a)(1) (providing

the Court the authority to "decide all relevant questions of law"). This Court also has the authority

8

to hold unlawful decisions and conclusions of the Board not in accordance with law and set aside

or reverse adverse findings of fact that are clearly erroneous. 38 U.S.C. § 7261(a)(3), (4).

B. District Court Jurisdiction

Although the District Court approved the consent decree, the authority to enforce contracts

in settlement of federal litigation "requires its own basis for jurisdiction." Kokkonen, 511 U.S. at

378. A federal court has ancillary jurisdiction to enforce a settlement agreement if the settlement

terms were included in the federal court's judgment order. Id. at 380-81. As the Supreme Court

explained:

[I]f the parties' obligation to comply with the terms of the settlement agreement had

been made part of the order of dismissal—either by separate provision (such as a

provision "retaining jurisdiction" over the settlement agreement) or by

incorporating the terms of the settlement agreement in the order[,] . . . a breach of

the agreement would be a violation of the order, and ancillary jurisdiction to enforce

the agreement would therefore exist.

Id. at 381; see Nehmer IV, 494 F.3d at 856 ("Ordinarily, when a district court incorporates the

terms of a settlement agreement or a stipulation into an order, it retains subject matter jurisdiction

to interpret and enforce the contents of that order." (citing Kokkonen, 511 U.S. at 378, 381)).

The District Court incorporated the terms of the consent decree into its May 1991 order

granting the consent decree and October 1991 final judgment order. Nehmer Consent Decree, 1991

U.S. Dist. LEXIS 22110, ¶ 9 (providing that the final judgment order will incorporate the terms of

the consent decree); Order at *2, Nehmer v. U.S. Veterans' Admin., No. CV-86-6160 (N.D. Cal.

Oct. 9, 1991) (final judgment order stating that the order incorporates the terms of the consent

decree and noting that the "case shall be closed with [VA] subject to ongoing, enforceable

obligations in the future").

Therefore, the District Court retains subject-matter jurisdiction to enforce the terms of the

consent decree and that court has the authority to consider a motion for clarification and

enforcement. See Nehmer IV, 494 F.3d at 856 (describing this finding of jurisdiction as

"unexceptionable"); see also Nehmer V, 2020 WL 6508529, at *6; Nehmer II, 32 F. Supp. 2d at

1178 n.4.

C. Intersecting Jurisdiction

Mr. Constantine asserts error in the Board's denial of an earlier effective date for his

service-connected CAD; such an appeal clearly falls within our exclusive jurisdiction. However,

his earlier-effective-date argument is that the Board wrongly excluded him from the Nehmer class,

9

violating the terms of the consent decree. These arguments create an intersection between our

exclusive jurisdiction over his individual appeal of a final Board denial of an earlier effective date

of benefits and the District Court's ongoing jurisdiction over Nehmer litigation and enforcement.

Given these unique circumstances, and for reasons we will explain, we conclude that

Mr. Constantine's case presents such an exceptional case that we decline to exercise jurisdiction

over his Nehmer argument.

The Supreme Court has set forth principles regarding a federal court's decision to decline

the exercise of jurisdiction where concurrent jurisdiction exists, either in parallel state and federal

proceedings or wholly federal concurrent proceedings. See Colorado River Water Conservation

Dist. v. United States, 424 U.S. 800, 818 (1976) (Colorado River). Here, we are not presented with

parallel state and federal jurisdiction. And, although there is ongoing enforcement litigation in the

District Court, we are not presented with the prototypical model of concurrent federal jurisdiction,

as Mr. Constantine himself is not simultaneously seeking relief with the District Court. However,

the arguments he raises lead to the difficult situation before us—the intersection of jurisdictional

authority. Although the cases referenced herein do not squarely address the scenario present in this

case, they inform our decision to decline the exercise of jurisdiction as a matter of discretion.

When parallel state and federal litigation exists, Colorado River and its progeny set forth

several factors that a federal court should consider in deciding whether to decline the exercise of

jurisdiction. Colorado River, 424 U.S. at 818; see Moses H. Cone Mem'l Hosp. v. Mercury Constr.

Corp., 460 U.S. 1, 16 (1983) (Moses Cone). As relevant to our analysis, those factors include

which court first assumed jurisdiction and the desirability of avoiding piecemeal litigation. Moses

Cone, 460 U.S. at 15-16, 17 n.20; Colorado River, 424 U.S. at 818.

However, when wholly federal concurrent jurisdiction exists "no precise rule has evolved,"

and courts aim to abide by the general principle of avoiding duplicative litigation. Colorado River,

424 U.S. at 817 (citing Kerotest Mfg. Co. v. C-O Two Fire Equipment Co., 342 U.S. 180, 183

(1952) (Kerotest)); see Kerotest, 342 U.S. at 183 ("Wise judicial administration, giving regard to

conservation of judicial resources and comprehensive disposition of litigation, does not counsel

rigid mechanical solution of such problems.")). "That rule reflects an elementary principle of 'wise

judicial administration.'" In re Google Inc., 588 F. App'x 988, 990 (Fed. Cir. 2014) (citing

Colorado River and Kerotest).

10

Using these guiding principles, we decline to exercise jurisdiction in this case. First, the

District Court is the court that first assumed jurisdiction as to the underlying issue here—approving

the class of plaintiffs that will receive relief under the Nehmer stipulation. Although the VJRA

fundamentally changed the availability of judicial review of veterans benefits decisions, the

Nehmer suit began prior to the enactment of the VJRA and the establishment of our Court. The

VJRA did not change the "general principle of law [that] once jurisdiction attaches in a case, a

court continues to have jurisdiction over the matter until a decision has been reached." Veterans'

Judicial Review Act, 134 CONG. REC., S 16632-01 (Oct. 18, 1988) (testimony from Senator

Cranston, who also stated that "no pending case would be adversely affected" by passage of the

VJRA). Because the District Court is the court that first assumed jurisdiction, this factor weighs in

favor of that court resolving Mr. Constantine's arguments that the Nehmer class includes veterans,

like him, who were exposed to Agent Orange outside of the Republic of Vietnam.7

Second, and relatedly, the District Court has actively supervised enforcement of the

Nehmer consent decree over the intervening 30 years since it approved the consent decree in 1991,

including its recent decisions in Nehmer V and Nehmer VI. To that end, the District Court and the

Ninth Circuit have continued to maintain their subject-matter jurisdiction over the Nehmer

litigation despite passage of the VJRA and creation of our Court. See Nehmer I, 712 F. Supp. at

1410-11 (citing Veterans' Judicial Review Act, 134 CONG. REC., S 16632-01 (Senator Cranston's

testimony)); Nehmer IV, 494 F.3d at 856; Nehmer V, 2020 WL 6508529, at *6 (citing Nehmer I,

712 F. Supp. at 1410-11). In contrast, the Ninth Circuit addressed a class action suit filed after the

VJRA in Veterans for Common Sense and held that the VJRA divested the District Court of

jurisdiction to consider that portion of the suit alleging delays in VA's provision of medical care

and adjudicating disability benefits claims, 678 F.3d at 1020-32, stating, in part, that "review of

decisions made in the context of an individual veteran's VA benefits proceedings are beyond the

jurisdiction of federal courts outside the review scheme established by the VJRA," id. at 1023.

Therefore, as the District Court has actively supervised enforcement of the consent decree, this

7

Accord Northwest Airlines, Inc. v. American Airlines, Inc., 989 F.2d 1002, 1005 (8th Cir. 1993) ("The well-

established rule is that in cases of concurrent jurisdiction, the first court in which jurisdiction attaches has priority to

consider the case.") (internal quotation omitted); see also In re Telebrands Corp., 773 F. App'x 600, 602 (Fed. Cir.

2016) (noting that, where the overlap between two cases is "complete or nearly complete, the usual rule is for the court

of first jurisdiction to resolve the issue") (citing West Gulf Mar. Ass'n v. ILA Deep Sea Local 24, 751 F.2d 721, 730

(5th Cir. 1985)).

11

factor weighs in favor of the District Court resolving Mr. Constantine's arguments that under the

Nehmer stipulation he is a class member.

Third, were we to entertain Mr. Constantine's arguments, we would have to weigh in on a

fundamental question about the Nehmer stipulation and litigation—the scope of the certified class.8

Weighing in as to that issue could subject the parties to duplicative litigation and frustrate the

District Court's role in ongoing enforcement. Mr. Constantine argues that he is a member of the

Nehmer class because the language used to define the class as certified by the District Court does

not contain a reference to where herbicide exposure occurred. And he argues that the Board

impermissibly narrowed the scope of the certified class by excluding him as a member. Although

he frames these arguments as specific to his appeal alone, the arguments raise fundamental

questions that address the scope of the Nehmer stipulation and litigation. To the extent that he

attempts to argue otherwise, the Court disagrees.

Initially, Mr. Constantine mischaracterizes the Board decision when he argues that the

Board narrowed the scope of the consent decree. In rejecting Mr. Constantine's argument that he

is a Nehmer class member, the Board relied on § 3.816, VA rulemaking documents, and VA

training materials as evidence that the Nehmer class is limited to servicemembers who served in

Vietnam during the relevant period. R. at 7-8. The Board did not independently review the class

certification order or the terms of the consent decree or address the scope of those documents. As

discussed above, Mr. Constantine does not argue that § 3.816 applies in his case.

More fundamentally, the Court rejects Mr. Constantine's argument that the scope of the

Nehmer class as it relates to the Korean DMZ has already been litigated and resolved in a manner

that weighs in his favor. See Oral Argument at 5:37-6:58, 16:12-17:56. The District Court adopted

plaintiffs' proposed class definition without a specific challenge from VA, see Nehmer Class Cert.

Order, 118 F.R.D. at 116-25, but that does not mean that the scope of the Nehmer class as to

whether it includes a veteran who served at the Korean DMZ was finally litigated and resolved at

that time. In fact, the District Court decision in Nehmer V—which considered VA's interpretation

of the term "Republic of Vietnam" as it related to applicability of the Nehmer stipulation—

specifically counsels against such a conclusion. See Nehmer V, 2020 WL 6508529, at *5-6.

8

See, e.g., Marcus v. BMW of North America, LLC, 687 F.3d 583, 592-93 (3d Cir. 2012) (describing

ascertainability of the class as "an essential prerequisite of a class action"); DeBremaecker v. Short, 433 F.2d 733, 734

(5th Cir. 1970) ("It is elementary that in order to maintain a class action, the class sought to be represented must be

adequately defined and clearly ascertainable.").

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Moreover, Mr. Constantine's own arguments are inconsistent as he not only argues that the

scope of the Nehmer class as to the Korean DMZ has already been litigated but also asks us to give

the same binding effect that the District Court would if it were presented with this question. See

Oral Argument at 13:00-13:36, 18:49-20:28, 56:45-57:16. He argues that in Nehmer II,

Nehmer III, and Nehmer IV, the District Court or the Ninth Circuit told VA that the terms of the

consent decree are meant to be interpreted broadly to ensure that Nehmer class members receive

their full compensation. Id. at 9:12-9:48. However, as noted, the District Court has not squarely

addressed the question Mr. Constantine is raising—whether, based on a lack of geographic

limitation in the class certification order, servicemembers exposed to herbicides in locations other

than the Republic of Vietnam are members of the Nehmer class. His request that we give the class

certification language the same binding effect that the District Court would is a request that we

interpret the class certification language in a manner that he believes would be consistent with his

interpretation of Nehmer II, Nehmer III, and Nehmer IV. But, because the District Court has not

squarely addressed the issue Mr. Constantine raises, a judicial pronouncement from this Court

about the scope of the Nehmer class could unnecessarily complicate the Nehmer suit, frustrate the

District Court's role in ongoing enforcement, and result in conflicting outcomes. Therefore, this

factor weighs in favor of the District Court resolving the issue Mr. Constantine raises.

D. Our Prior Case Law Related to the Nehmer Litigation

The concept of coexistence of jurisdictional authority is not new in the Nehmer litigation.

In the past, we have addressed questions tangential to the Nehmer litigation, but those cases did

not require us to address the type of fundamental questions Mr. Constantine raises.

Prior to VA's promulgation of § 3.816, this Court and the Federal Circuit applied the

holdings of Nehmer I and Nehmer II to determine if individual claimants were entitled to earlier

effective dates under the Nehmer stipulation. In Mitscher v. West, we concluded that, because

Ms. Mitcher's 1986 application for burial benefits was not a formal claim for dependency and

indemnity compensation (DIC), she was not entitled to an earlier effective date under Nehmer II

as there was no previously denied claim that could be subject to readjudication. 13 Vet.App. 123,

127-28 (1999). In Williams v. Principi, this Court and the Federal Circuit concluded that, because

Ms. Williams's previously denied claims for DIC predated promulgation of § 3.311a(d), those

claims were not voided by Nehmer I and Nehmer II and not subject to the terms of the Nehmer

stipulation. 15 Vet.App. 189, 195-97 (2001) (en banc), aff'd, 310 F.3d 1374, 1379-80 (Fed. Cir.

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2002). Similarly, in Bonner v. Nicholson, we concluded that, because Ms. Bonner's previously

denied claim for DIC predated promulgation of § 3.311a(d), an earlier effective date under the

Nehmer stipulation was not warranted. 19 Vet.App. 188, 194 (2005) (citing Williams, 15 Vet.App.

at 195-97), aff'd, 497 F.3d 1323 (Fed. Cir. 2007). Because these cases applied the clear holdings

of Nehmer I and Nehmer II, they are distinctly different from the case at bar, where

Mr. Constantine is asking us to address a fundamental question that has not been squarely

answered by the District Court or Ninth Circuit.

Following promulgation of § 3.816, this Court and the Federal Circuit addressed the

applicability of that regulation. In Robinson v. Wilkie, the Federal Circuit rejected an argument

that § 3.816(c) did not govern the assignment of the effective date for an increased disability

evaluation for the veteran's heart condition because that evaluation was assigned as part of the

initial grant of benefits awarded under the consent decree: "The effective date for a Nehmer class

member is determined by 38 C.F.R. § 3.816(c)." 905 F.3d 1353, 1357 (Fed. Cir. 2018). And in

DeLisio v. Shinseki, we discussed the potential availability of an earlier effective date for

Mr. DeLisio based on application of § 3.816. 25 Vet.App. 45, 48-49, 52 (2011).

In contrast, cases involving fundamental questions and VA's compliance with the consent

decree have proceeded before the District Court and Ninth Circuit. In Nehmer IV, the Ninth Circuit

addressed § 3.816's compliance with the consent decree vis-à-vis the sunset provision of the Agent

Orange Act. 494 F.3d at 856-58. In Nehmer V, the District Court addressed VA's compliance with

the consent decree as it related to VA's interpretation of the phrase "Republic of Vietnam" in

section 1116 as excluding blue water Navy veterans. 2020 WL 6508529, at *5-6. 9 And in

Nehmer VI, the District Court was again asked to address § 3.816's compliance with the consent

decree, this time as it relates to payments to later-discovered dependents. 2021 U.S. Dist. LEXIS

218075, at *3. Thus, because Mr. Constantine raises fundamental arguments regarding the scope

of the Nehmer litigation, we conclude that wise judicial administration dictates that we decline to

exercise jurisdiction over his Nehmer argument and, because that is the only contention he raises,

we will not otherwise address the adverse October 2018 Board decision.

9

Our Court and the Federal Circuit also addressed the definition of "Republic of Vietnam" as found in section

1116 and § 3.307(a)(6)(iii). See Haas v. Nicholson, 20 Vet.App. 257, 263-75 (2006), rev'd sub nom. Haas v. Peake,

525 F.3d 1168, 1175-97 (Fed. Cir. 2008), overruled by Procopio, 913 F.3d at 1375-81. However, those cases

addressed the validity of the regulation as an interpretation of the statute.

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E. Summary

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.

V. CONCLUSION

After consideration of the parties' briefs, oral arguments, the record on appeal, and the

governing law, the appeal of the October 31, 2018, Board decision that denied entitlement to an

effective date earlier than August 31, 2010, for the award of service connection for CAD is

DISMISSED.

GREENBERG, Judge, dissenting in part: The majority opinion is thoughtful and logical

and exemplifies the concept of judicial restraint. See Hayburn's Case, 2 U.S. (2 Dall.) 409, 410

n., 1 L. Ed. 436 (1792); see also Maeva Marcus & Robert Teir, Hayburn's Case: A

Misinterpretation of Precedent, 1988 WIS. L. REV. 527. I concur with the opinion to the extent

that the Court recognizes that we could exercise jurisdiction over this case. I dissent from the

decision to decline to exercise jurisdiction here. The appellant timely appealed a Board decision

that found that he was not a Nehmer claimant. The concern about duplicative litigation unfairly

penalizes a veteran who has properly brought a question of law before the Court. The Court states:

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"The concept of coexistence of jurisdictional authority is not new in the Nehmer litigation. In the

past, we have addressed questions tangential to the Nehmer litigation, but those cases did not

require us to address the type of fundamental questions Mr. Constantine raises." Ante at 13. Even

if it is true that the Court has yet to address a fundamental question pertaining to the Nehmer cases,

we should not be distracted from the command we have received from Congress. That is, we have

exclusive jurisdiction to review Board decisions, see 38 U.S.C. § 7252, and to the extent necessary

for our review, we "shall decide all relevant questions of law," 38 U.S.C. § 7261 (emphasis

added).

A veteran is being penalized because of the mere possibility that future litigation may be

brought in a different court that may result in a different outcome than the Court could have held

today. To the extent that the Court suggests that the appellant is not without recourse and can seek

enforcement with the District Court, there is no explanation as to how, even if he succeeded there,

he would not end up back in the VA benefits system to receive payment. Ultimately, the majority

opinion is well written and consistent with precedent, yet judicial economy concerns ring hollow

as a worthy veteran has been turned away from the Court. For this reason, although I agree with

the majority that we could exercise jurisdiction here, I dissent from the unnecessary refusal to do

so.

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