This morning the Federal Circuit released two nonprecedential opinions and an erratum. The first nonprecedential opinion comes in a case decided by the Court of Federal Claims involving a challenge to a decision of the Board for Correction of Naval Records. The second nonprecedential opinion comes in a veterans case appealed from the Court of Appeals for Veterans Claims. Here are the introductions to the opinions and a link to the erratum.
Carlborg v. United States (Nonprecedential)
Robert S. Carlborg appeals from a decision of the United States Court of Federal Claims (Claims Court),
which granted the government’s motion for judgment on the administrative record (MJAR) and denied Mr. Carlborg’s. Carlborg v. United States, 168 Fed. Cl. 371 (2023) (Decision). For the reasons discussed below, we affirm.
Constantine v. McDonough (Nonprecedential)
Douglas A. Constantine served on active duty in the Korean Demilitarized Zone (DMZ) during 1968–1969. The Department of Veterans Affairs (VA) eventually awarded him disability benefits for ischemic heart disease that (under certain legal presumptions) it deemed connected to his service in the Korean DMZ, where Agent Orange was used. But Mr. Constantine contends that he is entitled an earlier
effective date for such benefits because, he asserts, (a) he is a member of the class certified in 1987 in an action brought by Vietnam veterans in the U.S. District Court for the Northern District of California and (b) the still-live consent decree entered in that case in 1991 entitles him to the earlier effective date he seeks here. See Nehmer v. United States Veterans’ Administration, 118 F.R.D. 113, 116 (N.D.
Cal. 1987) (Nehmer Certification Order); Nehmer v. United States Veterans’ Administration, No. CV-86-6160, 1991 U.S. Dist. LEXIS 22110, at *1–6 (N.D. Cal. May 17, 1991) (Nehmer Consent Decree). VA’s Board of Veterans Appeals denied the requested earlier effective date, citing a VA regulation, 38 C.F.R. § 3.816, and concluding that Mr. Constantine was not within the Nehmer class.
Mr. Constantine appealed to the Court of Appeals for Veterans Claims (Veterans Court), arguing that the
Nehmer court had already decided that the consent decree covers Korean DMZ-only service members, and the Veterans Court should thus set aside the Board decision and remand for application based on that coverage. VA’s Secretary responded that the Nehmer court’s decree did not cover Mr. Constantine and the Board’s decision therefore should be affirmed. The Veterans Court chose neither party’s argued-for disposition and instead dismissed Mr. Constantine’s appeal from the Board, “declin[ing] to exercise jurisdiction over his Nehmer argument.” Constantine v. McDonough, 35 Vet. App. 81, 89, 93 (2022). The
Veterans Court concluded that the question of Mr. Constantine’s class membership had not been answered in his favor by the Nehmer court. Id. at 83, 91. And the Veterans Court concluded that it should not determine the answer to the Nehmer-scope issue itself; rather, it reasoned, the issue could be presented to and should be decided by the Nehmer court. Id. at 88–93; see id. at 89 (relying on “the
general principle of avoiding duplicative litigation,” citing discussion in Colorado River Water Conservation District v. United States, 424 U.S. 800, 817 (1976), of Kerotest Manufacturing Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183 (1952)).
Mr. Constantine appeals the dismissal by the Veterans Court. He argues that (1) issue preclusion requires the Board to give him the benefit of an earlier effective date because the Nehmer court already determined his membership within the Nehmer class and (2) if he is wrong about issue preclusion, the Veterans Court should have stayed rather than dismissed his appeal from the Board. We hold that he is not entitled to issue preclusion here. We do not address the merits of the Veterans Court’s conclusion insisting on resolution of yet-undecided decree scope by the Nehmer court, a conclusion not challenged here. But we vacate the Veterans Court’s judgment because the Veterans Court decided that dismissal was the proper remedy, given its deferral-to-another-tribunal conclusion, without any regard to whether a dismissal could cause a loss to Mr. Constantine that would be avoided by a stay. VA has not established either the legal propriety of such disregard or that the choice between stay and dismissal could make no difference to Mr. Constantine’s ultimate relief if he is found to come within the Nehmer decree. We therefore vacate and remand.