Douglas A. Constantine v. Denis McDonough, Secretary of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DOUGLAS A. CONSTANTINE,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1648
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-7044, Chief Judge Margaret C.
Bartley, Judge Amanda L. Meredith, Judge William S.
Greenberg.
______________________
Decided: November 4, 2024
______________________
CHRIS ATTIG, Attig Curran Steel PLLC, Little Rock,
AR, argued for claimant-appellant. Also represented by
HALEY SMITH .
SOSUN B AE , Commercial Litigation Branch, Civil Divi-
sion, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by
BRIAN M. BOYNTON , ERIC P. BRUSKIN, P ATRICIA M.
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CONSTANTINE v. MCDONOUGH 2
MCCARTHY ; CHRISTOPHER O. ADELOYE, BRIAN D. G RIFFIN,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Before REYNA, T ARANTO, and STOLL , Circuit Judges.
P ER CURIAM .
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 (un-
der 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 con-
sent 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 reg-
ulation, 38 C.F.R. § 3.816, and concluding that Mr. Con-
stantine 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 Veter-
ans Court should thus set aside the Board decision and re-
mand 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
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CONSTANTINE v. MCDONOUGH 3
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 exer-
cise jurisdiction over his Nehmer argument.” Constan-
tine v. McDonough, 35 Vet. App. 81, 89, 93 (2022). The
Veterans Court concluded that the question of Mr. Con-
stantine’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 is-
sue 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 Manu-
facturing 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 member-
ship 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 in-
sisting 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 Veter-
ans 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
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CONSTANTINE v. MCDONOUGH 4
to come within the Nehmer decree. We therefore vacate
and remand.
I
A
In 1984, responding to concerns about adverse health
effects of exposure to Agent Orange, a herbicide that con-
tains the chemical dioxin, Congress enacted the Veterans’
Dioxin and Radiation Exposure Compensation Standards
Act (Dioxin Act), Pub. L. No. 98-542, 98 Stat. 2725 (1984),
which sought to ensure that veterans received compensa-
tion for disabilities arising from such exposure to dioxin
during their service in Vietnam. Euzebio v. McDonough,
989 F.3d 1305, 1311 (Fed. Cir. 2021). The Dioxin Act di-
rected VA (at the time, the Veterans’ Administration) to
determine what diseases are caused by exposure to dioxin
and to promulgate regulations governing dioxin-related
disability claims. 38 U.S.C. § 354 (1984). After VA adopted
regulations in 1985, a group of Vietnam veterans and their
survivors filed a class action in the Northern District of
California (the Nehmer litigation) to challenge the regula-
tions as arbitrary and capricious—in particular, as identi-
fying too few dioxin-related conditions. See Nehmer v.
United States Veterans’ Administration, 712 F. Supp. 1404,
1409 (N.D. Cal. 1989) (Nehmer I) (describing challenge);
Constantine, 35 Vet. App. at 82.
In December 1987, the district court in Nehmer, adopt-
ing the plaintiffs’ proposal, certified a class consisting of
all current or former service members, or their next
of kin (a) who are eligible to apply to, who will be-
come eligible to apply to, or who have an existing
claim pending before the Veteran’s Administration
for service-connected disabilities or deaths arising
from exposure during active-duty service to herbi-
cides containing dioxin or (b) who have had a claim
denied by the VA for service-connected disabilities
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CONSTANTINE v. MCDONOUGH 5
or deaths arising from exposure during active-duty
service to herbicides containing dioxin.
Nehmer Certification Order, 118 F.R.D. at 116; see Con-
stantine, 35 Vet. App. at 83. The language of the class cer-
tification does not explicitly limit the Nehmer class
definition to veterans who served in Vietnam (land or wa-
ter). But the Nehmer Certification Order states that the
lawsuit was filed “as a class action on behalf of Vietnam
Veterans,” 118 F.R.D. at 115, and that “plaintiffs seek to
certify a class of all Vietnam veterans who have been ex-
posed to dioxin and either have filed or will file a claim[]
for benefits,” 118 F.R.D. at 116. See also Nehmer Certifica-
tion Order, 118 F.R.D. at 116–17 (“[T]his class is similar, if
not identical, to the class certified in In re Agent Orange
Product Liability Litigation, 506 F. Supp. 762, 787
(E.D.N.Y. 1980) . . . in which Vietnam veterans exposed to
‘Agent Orange’ sued the chemical companies that manufac-
tured the herbicide.”) (emphasis added); id. at 125. In
1989, the district court ruled on the merits of the case, find-
ing errors in VA’s implementation of the Dioxin Act and
voiding certain claim denials by the Secretary. Nehmer I,
712 F. Supp. at 1409, 1423.
In 1991, Congress enacted the Agent Orange Act, Pub.
L. No. 102-4, 105 Stat. 11 (1991), which “established pre-
sumptive service connection for a list of diseases resulting
from herbicide exposure.” Constantine, 35 Vet. App. at 83.
Then-codified 38 U.S.C. § 316 required VA to “prescribe
regulations providing that a presumption of service connec-
tion is warranted” for a disease whenever the VA Secretary
determines that a “positive association exists between”
that disease and herbicide exposure. See Pub. L. 102-4, § 2,
105 Stat. at 12. It also provided that the National Academy
of Sciences would analyze and summarize scientific and
medical evidence and provide reports to the Secretary on
illnesses and health effects caused by exposure to dioxin
and other chemical compounds in herbicides. Id., §§ 2–3,
105 Stat. at 12–15; see Euzebio, 989 F.3d at 1312–14.
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CONSTANTINE v. MCDONOUGH 6
The Nehmer class and VA reached a settlement agree-
ment, and the district court in Nehmer entered a consent
decree in 1991. Nehmer Consent Decree, 1991 U.S. Dist.
LEXIS 22110, at *1; see Constantine, 35 Vet. App. at 83
(describing consent decree). The consent decree details the
VA Secretary’s responsibilities for rulemaking and retroac-
tive disability payments to class members. Nehmer Con-
sent Decree, 1991 U.S. Dist. LEXIS 22110, at *1–7;
Constantine, 35 Vet. App. at 83–84. In particular, the con-
sent decree provides that as diseases come to be recognized
as related to herbicide exposure, VA is to readjudicate
claims based on such diseases that were previously denied
by VA yet come within the denial-voiding ruling in the 1989
Nehmer I decision. See Constantine, 35 Vet. App. at 83–84.
The Veterans Court stated that “on four occasions”
plaintiffs have sought enforcement of the 1991 consent de-
cree. Id. For example, in 1999, the district court held that
VA may not decline to readjudicate a previously denied
claim “unless the claim had specifically alleged that herbi-
cides were a factor in the veteran’s death or injury, or VA’s
denial of the benefits expressly cited [38 C.F.R.] § 3.311a
[later repealed] as grounds for denial.” Id. (discussing
Nehmer v. United States Veterans’ Administration, 32 F.
Supp. 2d 1175, 1177, 1184 (N.D. Cal. 1999) (Nehmer II)
(applying consent decree)). The Ninth Circuit affirmed the
Nehmer II holding, concluding that VA must “provide ret-
roactive benefits to any class 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’ Administration of the Government of the United
States, 284 F.3d 1158, 1161 (9th Cir. 2002) (Nehmer III).
In 2003, the Secretary adopted 38 C.F.R. § 3.816 “to im-
plement effective date rules in compliance with Nehmer.”
Constantine, 35 Vet. App. at 84; see Effective Dates of Ben-
efits for Disability or Death Caused by Herbicide Exposure;
Disposition of Unpaid Benefits After Death of Beneficiary,
68 Fed. Reg. 50966 (Aug. 25, 2003). The rule defines a
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CONSTANTINE v. MCDONOUGH 7
Nehmer class member 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). Those
individuals may receive, for a claim on which benefits are
awarded, an effective date earlier than non-Nehmer claim-
ants receive. In particular, although a claimant awarded
compensation pursuant to a liberalizing law or issue (i.e.,
one that creates a new or different benefit entitlement, see
38 C.F.R. § 3.114) receives an effective date no earlier than
the effective date of the act or issue, a claimant that is a
Nehmer member may receive an effective date as early as
the date VA received the claim (if the disability was present
then), irrespective of the effective date of the liberalizing
law or issue. 38 C.F.R. §§ 3.114(a), 3.816(c)–(d); J.A. 74–
75. We proceed on the assumption (without ourselves de-
ciding) that a similar difference in effective date would ap-
ply to a person determined to be covered by the Nehmer
Consent Decree even if that person is outside the VA regu-
lation. See Nehmer Certification Order, 118 F.R.D. at 119
(explaining the difference in effective date).
In 2019, Congress enacted the Blue Water Navy Vi-
etnam Veterans Act (the 2019 Act), which amended the
Agent Orange Act. Pub. L. 116-23, 133 Stat. 966 (2019).
Under the 2019 Act, veterans who served “offshore of the
Republic of Vietnam during the period beginning on Janu-
ary 9, 1962, and ending on May 7, 1975, shall be presumed
to have been exposed during such service to an herbicide
agent.” 38 U.S.C. § 1116A(b) (emphasis added). In addi-
tion, a presumption of service connection for certain dis-
eases (under certain manifestation conditions) is now
available to veterans who served “in or near the Korean
Demilitarized Zone (DMZ), during the period beginning on
September 1, 1967, and ending on August 31, 1971.” 38
U.S.C. § 1116B(a)–(b).
In 2020, the district court in Nehmer considered
whether “blue water navy veterans” of Vietnam—those
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CONSTANTINE v. MCDONOUGH 8
who served off-shore (not on land or on inland waterways)
in Vietnam—were within the Nehmer decree. Nehmer v.
United States Department of Veterans Affairs, No. CV-86-
06160, 2020 WL 6508529, at *2–3 (N.D. Cal. Nov. 5, 2020)
(Nehmer V). The district court answered in the affirma-
tive. Id. at *3–5 (relying on Procopio v. Wilkie, 913 F.3d
1371, 1380 (Fed. Cir. 2019) (en banc)). In its decision, the
district court observed: “[W]hile the consent decree does
not use the words ‘Republic of Vietnam,’ its applicability
turned on veteran eligibility for benefits under the Agent
Orange Act, and so its provisions are limited, like the Act,
to veterans who ‘served in the Republic of Vietnam.’” Id.
at *3.
B
Mr. Constantine served in the U.S. Air Force, in 1968
and 1969, in the Korean DMZ, not in Vietnam. Constan-
tine, 35 Vet. App. at 85; Constantine Opening Br. at 6; J.A.
208. On January 7, 2008, VA received a claim from Mr.
Constantine (which he has said he filed on December 27,
2007) seeking disability benefits for service-connected is-
chemic heart disease, which the Board found in its 2018
decision was manifested as early as the 1990s, though not
diagnosed until December 2011. Constantine, 35 Vet. App.
at 85. After initially assigning a December 15, 2011 effec-
tive date, the Board assigned an effective date of August
31, 2010—“the date of the liberalizing law that added [is-
chemic heart disease] to the list of diseases presumptively
associated with herbicide exposure.” Id. (citing 38 C.F.R.
§ 3.114(a)(1); then citing Diseases Associated With Expo-
sure to Certain Herbicide Agents (Hairy Cell Leukemia and
Other Chronic B-Cell Leukemias, Parkinson’s Disease and
Ischemic Heart Disease, 75 Fed. Reg. 53202 (Aug. 31,
2010))); J.A. 77 (Board). That was when service connection
of the condition was supported—by way of the newly-
adopted presumption. In assigning the 2010 effective date,
the Board rejected Mr. Constantine’s argument that he is
a member of the Nehmer class, and on that ground, it
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CONSTANTINE v. MCDONOUGH 9
rejected his request for an effective date based on his orig-
inal claim (received by VA January 7, 2008). J.A. 74–75
(relying on 38 C.F.R. § 3.816 for identifying the scope of the
Nehmer class as limited to those who served in Vietnam).
Mr. Constantine timely appealed the Board’s decision
to the Veterans Court on December 14, 2018, maintaining
that he was a member of the Nehmer class based on the
“clear and unambiguous” terms of the Nehmer Consent De-
cree. Constantine, 35 Vet. App. at 82–83; Constantine
Opening CAVC Br. at 16–19. The Veterans Court disa-
greed, “reject[ing] 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.” Constantine, 35 Vet. App. at 91. The
Veterans Court continued: The Nehmer court’s “adopt[ion
of] plaintiffs’ proposed class definition without a specific
challenge from VA . . . 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 re-
solved at that time.” Id.; see also id. at 82–83 (stating that
“the District Court has not squarely addressed” the “funda-
mental question presented here”). The Veterans Court
then held, invoking the Kerotest “[w]ise judicial admin-
istration” principle, 342 U.S. at 183, that determining
whether the consent decree covers veterans like Mr. Con-
stantine who served in the Korean DMZ but not Vietnam,
a matter of first impression, is a task for the Nehmer court,
not the Veterans Court. Id. at 89–93. On that basis, with-
out further discussion of what disposition should be made
of the appeal based on that conclusion, the Veterans Court
“decline[d] to exercise jurisdiction” to decide the scope of
the Nehmer decree and dismissed the appeal. Id. at 89, 92–
93.
The Veterans Court entered a judgment dismissing the
appeal from the Board on February 8, 2022. Constantine,
35 Vet. App. at 93; J.A. 1. Mr. Constantine timely appealed
within the 60 days permitted by law. 38 U.S.C. § 7292(a);
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CONSTANTINE v. MCDONOUGH 10
28 U.S.C. § 2107(b). We have jurisdiction under 38 U.S.C.
§ 7292(a), (c), (d) to address allegations of error in legal con-
clusions that are express or implicit in the Veterans Court’s
decision. See, e.g., Taylor v. McDonough, 71 F.4th 909, 924
(Fed. Cir. 2023) (en banc).
II
Mr. Constantine makes two arguments on appeal. The
major argument is that the Nehmer Consent Decree’s cov-
erage of non-Vietnam veterans like him was actually liti-
gated and settled in the affirmative by the Nehmer court
and, therefore, issue preclusion requires the VA Secretary
to give him the benefit of the consent decree (without the
Veterans Court itself construing the decree). Constantine
Opening Br. at 17–43. The second, minor argument is that
if issue preclusion does not apply, then the Veterans Court
erred in dismissing the appeal from the Board, rather than
staying the appeal to avoid any harm to him if he seeks and
obtains a favorable scope determination from the Nehmer
court and returns to VA for an earlier effective date of ben-
efits. Id. at 9–10, 49–53. Both arguments present what we
understand to be legal challenges that are within our juris-
diction to address, which the Secretary does not dispute.
A
Both parties agree that the Veterans Court, in its opin-
ion, held that a necessary requirement for issue preclusion
was not met here—in substance determining that issue
preclusion is unavailable—when it specifically rejected Mr.
Constantine’s argument that the Nehmer court already de-
termined that the consent decree applied to Korean DMZ,
non-Vietnam veterans like him. Whether an issue-preclu-
sion ruling is correct presents a question of law we answer
de novo. SynQor, Inc. v. Vicor Corp., 988 F.3d. 1341, 1347
(Fed. Cir. 2021) (“The application of issue preclusion pre-
sents a question of law that we review de novo.”); Gabrielli
v. McDonough, No. 22-1505, 2024 WL 2968937, at *3 (Fed.
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CONSTANTINE v. MCDONOUGH 11
Cir. June 13, 2024). We agree with the Veterans Court on
this point.
For Mr. Constantine to be entitled to issue preclusion
against the government here, he would have to show that
the issue of coverage of Korean DMZ, non-Vietnam veter-
ans was, among other things, “actually litigated” with the
government, and “determined” against the government, in
the Nehmer litigation. B & B Hardware, Inc. v. Hargis In-
dustries, Inc., 575 U.S. 138, 148 (2015) (citing Restatement
(Second) of Judgments § 27 (Am. L. Inst. 1980)). Mr. Con-
stantine has not shown that to be so. He has not shown
that the issue was ever litigated with the government in
Nehmer or resolved against the government there.
Decisively, he has not identified any place in the record
of the Nehmer litigation where the government and an ad-
verse party in Mr. Constantine’s position joined issue over
coverage of veterans who had never served in Vietnam
(land or territorial waters). That is enough to reject the
assertion of issue preclusion. In addition, we have not been
cited to a decision in Nehmer in which the court identifies
the issue and decides it in favor of coverage of non-Vietnam
veterans. Although the words of the class-certification or-
der do not include a limitation to Vietnam veterans, that
formulation, which might reflect a drafting oversight or
might properly be understood in context as so limited, does
not amount to a judicial decision on a litigated issue. In-
deed, a number of pronouncements in the Nehmer litiga-
tion, including in the Class Certification Order, suggest an
understanding that the case and relief in it may be limited
to Vietnam veterans. See supra pp. 5, 8 (discussing
Nehmer Certification Order and Nehmer V).1
1 See also Nehmer I, 712 F. Supp. at 1407 (“This law-
suit is another round in the conflict between Vietnam
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CONSTANTINE v. MCDONOUGH 12
We do not decide the scope of the consent decree. All
we decide is what the Veterans Court decided—that the
Nehmer court has not, to date, resolved a litigated dispute
over this issue against the government.
B
Having correctly determined that issue preclusion does
not apply, the Veterans Court then concluded that it must
not determine the scope of the consent decree and must in-
stead leave that matter to the Nehmer court. On appeal,
Mr. Constantine does not challenge that conclusion, and
the Secretary does not do so either. The dispute on appeal,
once the argument for issue preclusion is rejected, is lim-
ited to the Veterans Court’s bottom-line disposition of the
case, i.e., dismissal.
Veterans and the United States Government over Agent
Orange . . . .”); Nehmer II, 32 F. Supp. 2d at 1183 (holding
that the VA’s policy violated the Nehmer Consent Decree
because “[t]he VA’s narrow view of this Court’s order only
serves to undermine, rather than protect, the ability of Vi-
etnam veterans to obtain compensation for the devastating
effects of diseases that are linked to Agent Orange, and
hence their service in Vietnam”); Nehmer III, 284 F.3d at
1159–60 (“In this case we must interpret the requirements
of a court-approved Stipulation and Order setting forth
some of the United States Government’s ongoing responsi-
bilities to Vietnam veterans exposed to Agent Orange.”);
Nehmer v. United States Department of Veterans Affairs,
494 F.3d 846, 849 (9th Cir. 2007) (“The present question is
whether the District Court, in a clarification and enforce-
ment order issued in 2005, reasonably interpreted the ear-
lier court-approved Stipulation and Order . . . that settled
a class action lawsuit brought by veterans of the Vietnam
war . . . .”).
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CONSTANTINE v. MCDONOUGH 13
The Veterans Court, after concluding that the Nehmer
court is the right tribunal to construe its decree, dismissed
Mr. Constantine’s appeal from the Board. It did so without
discussing whether a stay of the appeal would protect
against possible loss to Mr. Constantine that dismissal
could cause. We read Mr. Constantine’s brief on appeal to
argue that dismissal without addressing that possible loss
was a legal error.
As an initial matter, we reject the government’s sug-
gestion that we should deem Mr. Constantine to have
“waived” the argument by not asking the Veterans Court
for a stay in the event it declined to find the decree-scope
issue already settled in his favor by the Nehmer court. Gov-
ernment Response Br. at 29–30. “An appellate court re-
tains case-by-case discretion over whether to apply
waiver.” Harris Corp. v. Ericsson Inc., 417 F.3d 1241, 1251
(Fed. Cir. 2005). Here, we think it appropriate not to find
waiver.
The issue of what the Veterans Court should do if it
rejected both issue preclusion and the possibility of itself
determining the decree’s scope was not framed for decision
by either party in the Veterans Court. Mr. Constantine ar-
gued that the Nehmer decree’s scope was settled by Nehmer
in his favor and that the Veterans Court should remand for
the Board to apply that determination to his case. Con-
stantine CAVC Br. at 11–22. The Secretary did not argue
for dismissal of the appeal; he urged the Veterans Court to
conclude on its own that the Nehmer decree was inapplica-
ble to Mr. Constantine and on that basis affirm the Board’s
decision. Secretary CAVC Br. at 5–11. Neither party’s
briefs proposed the middle position ultimately taken by the
Veterans Court on its own—that the issue had not been re-
solved favorably to Mr. Constantine in the Nehmer litiga-
tion and the Veterans Court should not go further—and
neither party’s briefs discussed Kerotest, Colorado River, or
other cases on abstention or related doctrines. In this sit-
uation, we conclude that it is not appropriate to find that
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CONSTANTINE v. MCDONOUGH 14
Mr. Constantine forfeited the argument about what dispo-
sition was proper if the Veterans Court were to sua sponte
articulate and adopt the middle position it did.
We also conclude that the Veterans Court’s choice of
dismissal without any regard for whether dismissal might
cause harm to Mr. Constantine that could be avoided by a
stay was a legal error. As we have noted, neither party
challenges and thus we do not decide the propriety of the
Veterans Court’s reliance on Colorado River to abstain
from exercising jurisdiction in this appeal.2 Instead, we
address Mr. Constantine’s challenge to the Veterans
Court’s dismissal of the case under its application of the
Kerotest principle. The application of this “[w]ise judicial
administration” principle, which is “equitable in nature,”
requires a consider-the-circumstances, case-specific in-
quiry. Kerotest, 342 U.S. at 183–84; see, e.g., Landis v.
North American Co., 299 U.S. 248, 254–55 (1936); Merial
Ltd. v. Cipla Ltd., 681 F.3d 1283, 1298–99 (Fed. Cir. 2012);
Kahn v. General Motors Corp., 889 F.2d 1078, 1082 (Fed.
Cir. 1989). Once the principle is being applied, we con-
clude, the inquiry must extend to the proper disposition,
and one relevant circumstance is whether a party seeking
relief will suffer loss from dismissing the case rather than
staying it while the deferred-to tribunal proceeds, such as
when the deferred-to tribunal cannot grant complete relief,
as has been recognized in related abstention contexts. See,
e.g., Ritchie Capital Management, L.L.C. v. BMO Harris
Bank, N.A., 868 F.3d 661, 665–66 (8th Cir. 2017); Monta-
nore Minerals Corp. v. Bakie, 867 F.3d 1160, 1166 (9th Cir.
2017); Attwood v. Mendocino Coast District Hospital, 886
2 The Veterans Court devoted significant attention
to its decision to abstain from exercising jurisdiction over
the merits of Mr. Constantine’s appeal. We need not and
do not reach the Veterans Court’s decision regarding ab-
stention.
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CONSTANTINE v. MCDONOUGH 15
F.2d 241, 244 (9th Cir. 1989) (citing cases) (explaining that
the choice of a stay rather than a dismissal sometimes has
practical consequences, as where all issues are not resolved
by the deferred-to proceeding); cf. Quackenbush v. Allstate
Insurance Co., 517 U.S. 706, 719–20 (1996) (discussing the
difference between dismissal and stay in certain abstention
settings involving monetary actions at law). Notably, the
Secretary has not argued to us that the Kerotest principle
can properly be applied wholly without regard to the poten-
tial practical difference between dismissal and stay as a
disposition.
The Veterans Court in this case did not consider the
consequences of staying versus dismissing, and this case
involves a type of circumstance in which the difference
might matter and so requires consideration. In particular,
as the parties agree, the Nehmer court cannot award Mr.
Constantine benefits even if it decides that Mr. Constan-
tine is within the scope of the consent decree; only VA can
award those benefits. E.g., Constantine Opening Br. at 45;
Government Response Br. at 27–29; Oral Argument at
9:20–9:36, https://oralarguments.cafc.uscourts.gov/default.
aspx?fl=22-1648_10032024.mp3. The situation before us is
therefore one in which the party requesting relief from the
deferring tribunal cannot get complete relief from the de-
ferred-to tribunal, a circumstance in which the former’s re-
linquishment of jurisdiction by dismissal might result in a
loss to the party seeking relief.
The Secretary has not shown the Veterans Court’s dis-
regard of the disposition question in the present case to be
harmless. Even as to delay alone, Mr. Constantine has
suggested that the difference between a stay and a dismis-
sal might be the difference, once he obtains a favorable rul-
ing from the Nehmer court, between obtaining quick
consideration by the Board (on prompt remand from the
Veterans Court) and starting over with a new claim within
VA at levels below the Board, with appeals to the Board
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CONSTANTINE v. MCDONOUGH 16
and the Veterans Court—a difference, Mr. Constantine
says, that might be a matter of years. Oral Argument at
7:50–10:55. The Secretary, for his part, suggests that Mr.
Constantine might obtain payment from VA even more
quickly with a dismissal, through a route separate from the
normal claims process, but he has not elaborated to estab-
lish more than that this might be so, and he has not made
clear how a stay would interfere with VA’s ability to make
such payment. Id. at 24:08–28:26; Government Response
Br. at 27–29. We are left, on this record, with considerable
uncertainty about whether dismissal would cause Mr. Con-
stantine to lose something in the way of completeness or
expeditiousness of relief following a favorable ruling in the
Nehmer case.
Whatever VA or the Veterans Court might make clear
in the future about processes ensuring no loss of benefits
from dismissal in a situation like this one, on the present
record we cannot find harmless error from the Veterans
Court’s failure to consider the disposition issue. On this
record, we must vacate the Veterans Court’s dismissal of
Mr. Constantine’s appeal and remand for the Veterans
Court to provide Mr. Constantine a reasonable period for
him to seek relief from the Nehmer court and to hold his
appeal in abeyance during that period and, if he seeks re-
lief, until final disposition of his request for that relief.
III
The decision of the Veterans Court is vacated, and the
case remanded for proceedings consistent with this opin-
ion.
The parties shall bear their own costs.
VACATED AND REMANDED
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