[00:00:00] Speaker 04:
The court sets to hear one case this morning.

[00:00:03] Speaker 04:
This is docket number 22-1648, Constantine versus McDonough.

[00:00:10] Speaker 04:
Mr. Chris Attig, I don't have a notation for... Oh, you're resuming five minutes of your time for rebuttal.

[00:00:18] Speaker 04:
Is that correct?

[00:00:20] Speaker 03:
Yes, Your Honor.

[00:00:21] Speaker 04:
Then we'll hear from the government.

[00:00:22] Speaker 04:
Okay.

[00:00:23] Speaker 04:
You may proceed.

[00:00:25] Speaker 03:
May I please support?

[00:00:26] Speaker 03:
Before proceeding, I wanted to thank the court for allowing

[00:00:30] Speaker 03:
for rescheduling due to the medical situation last month.

[00:00:34] Speaker 03:
I'm incredibly grateful for the court's grace in that scenario.

[00:00:39] Speaker 03:
In regards to the case, the NEMA consent decree either means what it says in plain English or it means something else.

[00:00:47] Speaker 03:
Those are the only two options.

[00:00:50] Speaker 03:
If it means what it says, as we've argued, that the NEMA consent decree, the class certified underneath that consent decree, covers all veterans exposed to dioxin,

[00:01:00] Speaker 03:
regardless of the site of their exposure, an issue of occlusion prevents the VA from disputing the scope of that Nehmer class.

[00:01:08] Speaker 04:
Are you arguing that there's no question whatsoever that Vietnam veterans fall within the scope of the Nehmer decree?

[00:01:19] Speaker 03:
In terms of Vietnam veterans, Your Honor, I don't think that there is any dispute that Vietnam in the Republic or in the offshores or in the waterways

[00:01:29] Speaker 03:
are covered in terms of Korean War.

[00:01:31] Speaker 03:
At this point, our argument is that there is no dispute that they are covered because the court in California, NEMA 3, 4, and 5, has found that the consent decree applies when the Agent Orange Act applies.

[00:01:47] Speaker 03:
And in 2019, the Agent Orange Act was amended to include Korean DMZ veterans exposed to Agent Orange and on the DMZ.

[00:01:55] Speaker 03:
So it's difficult to imagine.

[00:01:56] Speaker 04:
If that's the case, then the regulation that the Veterans Administration has that addresses this particular issue that defines the class, that's incorrect.

[00:02:11] Speaker 04:
Your argument that regulation is invalid or illegal.

[00:02:17] Speaker 03:
We don't argue that in this appeal, Your Honor, but Mr. Constantine does maintain that it's very limited

[00:02:24] Speaker 03:
regulation.

[00:02:25] Speaker 03:
When it was issued in 2003, it only applied to a limited subset of the Nehmer class.

[00:02:31] Speaker 03:
And I think Mr. Constantine or other appellants might have an avenue to challenge that under the APA, although we have not fled back here.

[00:02:38] Speaker 03:
We have focused specifically on the idea of issue preclusion that precludes the VA because, quite frankly, this issue has been resolved within... But if that's the case, wouldn't it be your argument that the

[00:02:52] Speaker 04:
that the regulation is contrary to your understanding of the scope of the Nehmer decree.

[00:03:03] Speaker 04:
And you do argue that.

[00:03:04] Speaker 04:
You argued that before the administration.

[00:03:08] Speaker 03:
Yes, we did argue that before the administration.

[00:03:10] Speaker 03:
And I believe that we discussed that with the Veterans Court in our briefs and in oral argument before the Veterans Court.

[00:03:18] Speaker 03:
when the court decided that.

[00:03:20] Speaker 04:
But you're not making that argument before this court.

[00:03:23] Speaker 03:
Not in this particular appeal, Your Honor.

[00:03:26] Speaker 04:
So in your view, that question is still correct.

[00:03:31] Speaker 04:
What is our jurisdiction?

[00:03:36] Speaker 04:
If you have not appealed that decision of the Veterans Administration supporting its own regulation, and you have not appealed that, then what's left?

[00:03:46] Speaker 04:
What are you standing on?

[00:03:49] Speaker 03:
Standing on the board's failure to consider the scope of the actual decree itself, regardless of the regulation, the decree is standing law.

[00:03:57] Speaker 03:
And so to the extent that it only applies to a subset of the decree doesn't alleviate the board from following the law, and it failed to do so in this case.

[00:04:07] Speaker 03:
The Veterans Court did not acknowledge that or did not address that, instead deciding to invent a doctrine, a federal abstention doctrine,

[00:04:15] Speaker 03:
that does not seem to have any basis.

[00:04:18] Speaker 03:
It seems like they might have actually called it the Intersecting Jurisdiction Doctrine, which is new.

[00:04:24] Speaker 03:
So we believe that the court's jurisdiction rests on the board's failure to follow the law and the court's, the veteran's court's failure to require the board to follow that law and find... Failure to follow which law?

[00:04:37] Speaker 03:
And the issues mitigated in terms of the scope of class before the district court.

[00:04:45] Speaker 01:
So the way that I've been thinking about this is as follows.

[00:04:50] Speaker 01:
You make two arguments in your brief.

[00:04:52] Speaker 01:
One is issue preclusion, namely that the question of coverage by the consent decree of Korean DMZ veterans has been decided in the other case.

[00:05:09] Speaker 01:
And that's issue preclusive.

[00:05:11] Speaker 01:
And that the Veterans Court, in the course of talking about what maybe is called abstention or not, I don't think the label matters, said, we disagree with that.

[00:05:25] Speaker 01:
And I don't think it's disputed by the government that the Veterans Court did, in fact, disagree with that.

[00:05:33] Speaker 01:
And you want us to say the Veterans Court was wrong.

[00:05:36] Speaker 01:
And then the second argument is that if we disagree with you,

[00:05:41] Speaker 01:
And don't think that issue preclusion applies.

[00:05:46] Speaker 01:
There was one more mistake.

[00:05:48] Speaker 01:
There was still one mistake that the Veterans Court made, which was to dismiss the appeal from the board rather than stay it.

[00:05:57] Speaker 01:
Do I understand the points that you're making correctly, as I just summarized?

[00:06:03] Speaker 03:
That is a correct summary, Your Honor.

[00:06:05] Speaker 03:
We do.

[00:06:05] Speaker 03:
That's the position we maintain.

[00:06:08] Speaker 03:
If this court was to decide,

[00:06:09] Speaker 03:
that issue of preclusion lies, it would not need to reach the question of the scope of the remedy or the veterans court's error in the remedy.

[00:06:17] Speaker 03:
But as you correctly stated our position, Your Honor, is that even if the court disagrees with us, that issue of preclusion does not lie.

[00:06:26] Speaker 03:
If the court were to disagree with us, then that error does exist, the error being the use of this, quote unquote, abstention doctrine

[00:06:35] Speaker 03:
to force an elderly veteran to go into the Northern District of California.

[00:06:42] Speaker 01:
That, I think, is a different point.

[00:06:43] Speaker 01:
You told the Veterans Court in no uncertain terms that if there's no, nobody used the language of issue preclusion below, as far as I can tell.

[00:06:54] Speaker 01:
You made exactly the same point.

[00:06:56] Speaker 01:
Namely, it was decided the coverage beyond Vietnam servers

[00:07:04] Speaker 01:
was decided in NDCAL, and that is binding.

[00:07:08] Speaker 01:
So I'm not sure the label matters.

[00:07:11] Speaker 01:
I think you get to say, yes, make that argument.

[00:07:14] Speaker 01:
But then you specifically told the Veterans Court, if we're wrong about that, it is not the Veterans Court job

[00:07:24] Speaker 01:
Veterans Court's job to go and figure out the proper scope of the consent decree.

[00:07:29] Speaker 01:
You've got to go to NDECAL for that.

[00:07:31] Speaker 01:
I think you said that expressed several times in your reply brief, right?

[00:07:36] Speaker 01:
Right.

[00:07:36] Speaker 01:
So the only question, I think, putting aside what you're now calling issue preclusion, is should the Veterans Court have stayed the appeal or dismissed it as it did?

[00:07:47] Speaker 01:
And one question that I have is I want to understand more than I do right now,

[00:07:54] Speaker 01:
What is the practical difference between those two bottom-line remedies?

[00:08:00] Speaker 01:
The government, I think, said in its red brief here, I'm not 100% sure, that there's no practical difference at all.

[00:08:10] Speaker 01:
Which is to say, if you go to NDCAL and you prevail on your argument in NDCAL that the consent decree really does cover Mr. Constantine, even though he was not in Vietnam,

[00:08:22] Speaker 01:
then you would, coming back to VA, get all of the money you would get if this appeal remained alive sitting in the Veterans Court.

[00:08:36] Speaker 01:
And I want to know if that's right or not.

[00:08:39] Speaker 01:
Can you go?

[00:08:41] Speaker 03:
I think the primary distinction, Your Honor, in terms of stay versus dismissal, if I'm understanding the gesture of the question, is that

[00:08:51] Speaker 03:
If the Veterans Court, by dismissing this appeal of Mr. Constantine's, if Mr. Constantine then goes to the Northern District of California, and let's say that the court out there agrees with his argument, says, yes, in 3, 4, and 5, we did say that if you're covered by the Agent Orange Act, you're covered by the Consent Decree.

[00:09:12] Speaker 03:
Mr. Constantine, the only path that he has back, because of the Northern District of California, cannot grant disability benefits.

[00:09:19] Speaker 03:
The court does not have that jurisdiction to order the VA to pay Mr. Constantine benefits that I'm aware of.

[00:09:26] Speaker 03:
They only have the authority to adjudicate the scope of that decree under a motion to enforce.

[00:09:31] Speaker 03:
And so that would be Mr. Constantine's position of having to take that decree, go back to the VA at the claims level if it's been dismissed, wait

[00:09:40] Speaker 03:
three to five years for the claim to be adjudicated, wait five to eight years for the appeal to be adjudicated, wait another one to two years for the Veterans Court to decide it, and hopefully that would resolve it.

[00:09:52] Speaker 03:
But by that time, Mr. Constantine will either pass away or be probably well into his hundreds.

[00:09:58] Speaker 03:
And that's the main distinction is that a stay, should Mr. Constantine prevail of the Northern District of California, a stay enables him to come back to the Veterans Court

[00:10:09] Speaker 03:
and have them direct the BVA to re-adjudicate that, thus chaining decades off of the time.

[00:10:15] Speaker 03:
And that's the real concern we have, is that while we do maintain that issue preclusion clearly applies, if I'm wrong and Mr. Constantine is wrong about that, then a stay is the most fair, most reasonable, most equitable remedy to allow him the opportunity.

[00:10:31] Speaker 03:
Quite frankly, we think that the BVA should be the one to have to go in and adjudicate that, since they're the ones that are claiming it does not

[00:10:39] Speaker 03:
say that, but regardless, we didn't plead that, we didn't argue that in the case.

[00:10:43] Speaker 03:
The state allows him to come back and get the relief he needs more expeditiously without having to go through a Byzantine process while he's, quite honestly, in the last days, weeks, years of his life.

[00:10:56] Speaker 02:
Is there any other prejudice?

[00:10:59] Speaker 02:
I understand your answer, but is there anything else?

[00:11:03] Speaker 02:
Is there any impact, for example, on attorney fees or anything else?

[00:11:09] Speaker 03:
I haven't thought about attorney's fees.

[00:11:11] Speaker 03:
That's just generally not something that I worry a lot about in cases like these.

[00:11:17] Speaker 03:
So off the cuff, in terms of prejudice regarding fees, I think that there might be, because I don't know what the

[00:11:26] Speaker 03:
I don't know that my firm would be the one to go into Northern District of California.

[00:11:30] Speaker 03:
I don't know that we'd have a standing to seek fees.

[00:11:32] Speaker 02:
This is the difference between assuming that you're going to have to go to California.

[00:11:38] Speaker 02:
If we were to say, is your preclusion doesn't apply?

[00:11:41] Speaker 02:
Looking at the difference between a stay and a dismissal, I'm just trying to understand all the possible impacts from, you know, an early stay versus dismissal.

[00:11:53] Speaker 02:
What prejudice there would be

[00:11:55] Speaker 03:
I think in that regard, Your Honor, I think there would be a prejudice in terms of recovering fees because there would not be any vehicle since the appeal before the Veterans Court would have been dismissed.

[00:12:05] Speaker 03:
And I'm not aware of any vehicle that we could take a victory from the Northern District of California into the Veterans Court to seek years after the fact each of these for our work underlying.

[00:12:16] Speaker 02:
So in other words, if the case, if you had to go back to the agency from the beginning, there might not be a nod that's filed.

[00:12:25] Speaker 02:
that would then trigger attorney fees?

[00:12:28] Speaker 03:
That is correct, Your Honor.

[00:12:29] Speaker 03:
If in fact he was to go back, I would hope that if we were to prevail at the Northern District of California, that a claim would be expeditiously granted by the VA.

[00:12:39] Speaker 03:
But then again, under the AMA, it would be an initial claim.

[00:12:42] Speaker 03:
At that point, I think is the correct language.

[00:12:44] Speaker 03:
It may be an original claim.

[00:12:45] Speaker 03:
I can't remember what the rights actually say.

[00:12:48] Speaker 03:
off the top of my head, but it would not entitle us to fees in that matter.

[00:12:53] Speaker 03:
And that certainly would be the prejudice that applies.

[00:12:56] Speaker 01:
The other one I would... Do you have a 20% fee agreement with Mr. Constantine, if you can say?

[00:13:10] Speaker 03:
I believe we do, Your Honor, and I can verify that.

[00:13:13] Speaker 03:
share that with the court after argument.

[00:13:16] Speaker 03:
But I believe we have a contingency fee agreement for any claims, for this particular claim granted below from the BVA and below.

[00:13:25] Speaker 03:
And then we also have a right to seek Mr. Constantine's behalf, any fees under the Evil Access to Justice Act for his work on the court appeal.

[00:13:33] Speaker 04:
OK.

[00:13:34] Speaker 04:
Counselor, in your view, did the Veterans Court make a decision, issue a decision with respect to issue preclusion?

[00:13:43] Speaker 03:
I believe they use those exact words, and I should have highlighted that in my notes here, but I believe that they specifically state that it's not, or at least in less than precise words, stated that there is no issue of preclusion because it hasn't been adjudicated.

[00:14:01] Speaker 03:
They did not say that it has been.

[00:14:03] Speaker 04:
They, in fact, mentioned in there without any real...

[00:14:09] Speaker 04:
In the issue, should we send this matter back to the Veterans Court to make a decision on issue preclusion before we can get to it?

[00:14:23] Speaker 03:
I can't speak to what's best for the court, Your Honor.

[00:14:26] Speaker 03:
I would think that that would be an economic way to do that is to ask the Veterans Court to weigh in on issue preclusion.

[00:14:36] Speaker 03:
But I think this court also has the authority to decide that.

[00:14:41] Speaker 04:
I asked that because I'm not sure that the Veterans Court reached a final decision with respect to the issue of preclusion.

[00:14:50] Speaker 03:
It's a confusing decision to me, Your Honor, and that's why I'm being somewhat circumspect about it.

[00:14:55] Speaker 04:
Are we compelled to remand and eliminate this confusion?

[00:15:01] Speaker 04:
And in that process, maybe have the question of a stay or dismissal addressed?

[00:15:09] Speaker 03:
I don't know that the court is compelled to do that, Your Honor, but there's nothing that I'm aware of that prevents the court from sending it back to do that.

[00:15:15] Speaker 04:
And in fact, that would be quite possibly helpful to be able to... But you would agree that if the Veterans Court did not reach the question on issue preclusion, then we can't either.

[00:15:38] Speaker 04:
Our jurisdiction in veterans cases is limited to the decision that's made by the board.

[00:15:46] Speaker 04:
And when we review the judgment of the Veterans Court, if the Veterans Court did not reach a decision on issue preclusion, then I question whether we have jurisdiction to address that issue.

[00:16:00] Speaker 04:
And perhaps it would be better to send it back

[00:16:03] Speaker 04:
have the Veterans Court address it and with instruction at that point to make this decision with respect to a stay or dismissal.

[00:16:15] Speaker 03:
Mr. Constantine certainly would not disagree with that relief.

[00:16:20] Speaker 02:
Can I answer another question, though?

[00:16:22] Speaker 02:
Going back to, I think you were hinting at that maybe you thought that the Veterans Court had, in fact,

[00:16:31] Speaker 02:
address part of the issue.

[00:16:33] Speaker 02:
And I was wondering if the language you were wondering about was at A13, where it says the court rejects Mr. Constantine's argument that the scope of the Nehmer class as it relates to decree in DMZ has already been mitigated and resolved in a manner that weighs in his favor.

[00:16:48] Speaker 02:
Is that what you were thinking of?

[00:16:52] Speaker 02:
So this is what you're relying on to say that you think that it was already decided by the Veterans Court?

[00:17:00] Speaker 02:
OK.

[00:17:00] Speaker 02:
Thank you.

[00:17:02] Speaker 04:
But isn't that dicta when the Voters Court made that statement?

[00:17:07] Speaker 04:
It seems more like an off-the-cuff statement that, well, if we were to decide this particular issue, we would find that there is no, that we would reach a decision that's not in your favor.

[00:17:23] Speaker 04:
But they never did reach a decision.

[00:17:27] Speaker 03:
Mr. Constantine's in a difficult position because I think what my concern is, or his concern would be, is arguing which court should adjudicate the issue.

[00:17:42] Speaker 03:
And from Mr. Constantine's perspective, he just wants it adjudicated because he feels like it is a very clear and undisputed basis for issue preclusion.

[00:17:51] Speaker 03:
But if the court was to remand it, he would not object to that because I think that an argument could be made that it is

[00:17:57] Speaker 03:
In fact, I think an argument could be made that that's also a clear rejection of his attempt to have the scope of the classes applied and the newer consent decree applied to him.

[00:18:09] Speaker 03:
And so it is right for this court to review this.

[00:18:12] Speaker 03:
So I think both ways are valid ways of looking at it.

[00:18:16] Speaker 03:
And Mr. Constantine seeks the way that that's going to give him the clearest result and the quickest result, which might be for this court to decide.

[00:18:23] Speaker 03:
But it could also be with clear instruction from this court

[00:18:27] Speaker 03:
Up to the marriage for the design man.

[00:18:29] Speaker 04:
They could decide it differently with a clear instruction from this port Yeah, you're willing to rebuttal time But I'm going to restore your five minutes at the end of these so we can we can flush this out completely So let's hear from the government now

[00:19:02] Speaker 00:
May it please the court?

[00:19:03] Speaker 00:
This court should affirm the decision of the Veterans Court.

[00:19:06] Speaker 00:
I'd like to start just by addressing some of the issues that this court had asked Mr. Attig about.

[00:19:11] Speaker 04:
We do agree with what Judge Stoll... What decision of the Veterans Court should we affirm?

[00:19:17] Speaker 04:
The abstention?

[00:19:20] Speaker 00:
We do think that this court should affirm the decision of the Veterans Court to decline to exercise jurisdiction.

[00:19:28] Speaker 00:
To the extent the court decides the issue of issue preclusion or collateral estoppel, as we refer to it in our briefs, we do believe that, as Judge Stoll mentioned, at APPX 13, the court did decide that there was no issue of preclusion in this case.

[00:19:43] Speaker 04:
It admittedly did so in the context of deciding to... Do you agree with the statement I made all ago that the statement you were referring to

[00:19:56] Speaker 04:
But it was dipped on me, and it was just off the cuff.

[00:19:59] Speaker 04:
And I don't see, do you have a decision, a final decision with respect to issue preclusion from the Veterans Court?

[00:20:07] Speaker 00:
I wouldn't say it was off the cuff.

[00:20:09] Speaker 00:
The court does say more fundamentally before it makes that statement.

[00:20:12] Speaker 01:
So we do think the court... Well, I thought the point you made in your brief, which I think seemed right to me, was that as part of the rationale for the Veterans Court saying it was not going to go ahead and decide

[00:20:29] Speaker 01:
on the proper scope of the consent decree, it said first, we don't think that that issue has already been decided.

[00:20:37] Speaker 01:
Obviously, there would be nothing for us to decide about the scope if it's already been decided.

[00:20:42] Speaker 01:
So it had to say, we reject

[00:20:46] Speaker 01:
Mr. Constantine's argument that it's already been decided.

[00:20:50] Speaker 01:
That's what leaves us a big issue that we don't think we're the proper people to decide.

[00:20:55] Speaker 01:
Which, as I mentioned before, Mr. Constantine in his brief to the Veterans Court said, we agree with that.

[00:21:03] Speaker 00:
Yes, I agree with what Your Honor just said.

[00:21:06] Speaker 00:
And I agree, and I think Mr. Attig just acknowledged again, that Mr. Constantine states, as the Veterans Court said at APPX 7,

[00:21:15] Speaker 00:
the function is reserved for the district court to interpret the class certification order or consent decree.

[00:21:21] Speaker 00:
So we do think that this court could affirm the Veterans Court's decision on issue preclusion and also in its declination to exercise jurisdiction.

[00:21:31] Speaker 04:
Show me on the record, show me where the Veterans Court may reach the final decision as to issue preclusion.

[00:21:39] Speaker 00:
Well I think as Judge Toronto just said that

[00:21:42] Speaker 00:
that court had to reach the issue.

[00:21:44] Speaker 00:
As it said, 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.

[00:21:55] Speaker 00:
As Judge Toronto just stated, assuming I'm quoting him correctly, the court had to make that finding in order to find that the issue was still alive and therefore it should not decide to

[00:22:08] Speaker 04:
Interpret the class certification and consent order and rather that that issue was true and the court made a decision on it Decided the the issue of the question of issue preclusion Then why did it abstain?

[00:22:23] Speaker 04:
What is it that it it refused to?

[00:22:27] Speaker 04:
exercise its jurisdiction over

[00:22:30] Speaker 00:
Well, so our understanding is that the court rejected Mr. Constantine's argument regarding issue preclusion, and then it declined to exercise jurisdiction to decide whether the scope of the Nehmer class extends beyond veterans who served in the Republic of Vietnam.

[00:22:47] Speaker 04:
So it did not decide that question.

[00:22:50] Speaker 00:
Well, we think that, as the court stated, it is fundamental to its decision

[00:22:55] Speaker 00:
that it had to find that there was no issue preclusion, because if it didn't make a finding on issue preclusion, or if it found that issue preclusion did exist, then there would be nothing to decline to exercise jurisdiction over.

[00:23:08] Speaker 00:
And so we think that the issue preclusion statement that the Veterans Court made at APPX 13 was, as it says,

[00:23:19] Speaker 00:
fundamental to its overall decision.

[00:23:21] Speaker 00:
So we do think that this court could affirm and would not have to remand to the Veterans Court to make a more definitive statement regarding issue preclusion.

[00:23:29] Speaker 01:
Can I ask you about the small but not unimportant second argument Mr. Constantine makes, which is that if we don't disagree with

[00:23:42] Speaker 01:
what the Veterans Court said about how it had actually not already been decided in NDECAL.

[00:23:47] Speaker 01:
And therefore, that has to be decided in NDECAL.

[00:23:51] Speaker 01:
He says it was improper to dismiss the appeal rather than stay it.

[00:24:00] Speaker 01:
And at least the only thing that I'm

[00:24:03] Speaker 01:
particularly interested on that is, is there a practical difference in his ability to get every penny that he would be entitled to if he wins an NDCAL on the scope of the consent decree, depending on whether this appeal is state, not this appeal, the appeal from the BVA to the Veterans Court is state or dismissed.

[00:24:25] Speaker 00:
I think practically speaking, to the extent that there's an advantage in one versus the other, it would actually be to not see it and go to the Northern District of California.

[00:24:34] Speaker 00:
That's because if the case goes to the Northern District of California and the court

[00:24:40] Speaker 00:
makes a finding that Mr. Constantine is part of the NEMA class, then VA has an obligation to automatically re-adjudicate.

[00:24:48] Speaker 00:
We submit that Mr. Attig is incorrect when he states that he would have to go through the entire claims process.

[00:24:53] Speaker 00:
It's not what would happen.

[00:24:55] Speaker 00:
As we completely acknowledged in our brief, the NEMA consent decree requires VA to promptly re-adjudicate all claims that are found to be covered by the consent decree.

[00:25:06] Speaker 00:
You know, we made that statement in our brief, and the Nehmer court has also made that statement in several of its Nehmer holdings subsequent to the consent decree.

[00:25:16] Speaker 01:
And so there would be... Procedurally, what would happen?

[00:25:19] Speaker 01:
What piece of paper does he file?

[00:25:21] Speaker 01:
He doesn't file a new claim?

[00:25:23] Speaker 00:
My understanding is, yes, he wouldn't have to file a new claim at all.

[00:25:26] Speaker 00:
The Nehmer court would issue that decision and, you know, VA

[00:25:32] Speaker 00:
and I think at least absent any appeals or whatnot, VA would automatically re-adjudicate

[00:25:41] Speaker 00:
you know, in conjunction with that court's decision and the consent decree.

[00:25:45] Speaker 00:
And then, I mean, Mr. Adler, sorry, Mr. Constantine simply wouldn't have to do anything in that respect.

[00:25:51] Speaker 00:
So there would be no point to his stay in this case.

[00:25:54] Speaker 00:
And again, as we mentioned in our brief.

[00:25:56] Speaker 01:
And would anything about the effective date of the award change?

[00:26:03] Speaker 01:
Depending on, the alternative, right, is that this appeal sits in the Veterans Court.

[00:26:08] Speaker 01:
And once he

[00:26:11] Speaker 01:
gets his, by assumption, favorable ruling in NDCCAL.

[00:26:17] Speaker 01:
He files it with the Veterans Court.

[00:26:21] Speaker 01:
And I think he suggested, well, the Veterans Court would then have to send it back to the BVA, which would be able to adjudicate it.

[00:26:28] Speaker 01:
And I think what I was hearing was he's going to get to a final result faster that way than if it starts in the regional office.

[00:26:38] Speaker 00:
We don't think that that's true because if hypothetically the Veterans Court had stayed and it went to the Northern District of California and again hypothetically that the Northern District decided in its favor then I think what would happen is then it would have to go back to the Veterans Court since the Veterans Court would have stayed and then the Veterans Court would have had to remand back to the board to make a finding in

[00:27:04] Speaker 00:
in accordance with what the Nehmer Court had found.

[00:27:07] Speaker 00:
But without the stay, as the situation currently is, if Mr. Constantine goes to the District Court and a finding is made in its favor, then VA would just automatically re-judicate that claim in accordance with that consent decree.

[00:27:24] Speaker 00:
There would not have to be any additional steps for

[00:27:26] Speaker 00:
Mr. Constantine to take and there shouldn't be any delay in that.

[00:27:31] Speaker 01:
What would be the enforcement mechanism on your asserted automatic adjudication?

[00:27:38] Speaker 01:
Maybe the VA says we will do it and you know, we'll tell you when we do it and three years later the VA automatically re-adjudicates it.

[00:27:50] Speaker 00:
I'm not sure about a specific enforcement mechanism as opposed to

[00:27:55] Speaker 00:
but again that would apply even if it went back through the route that Mr. Constantine would prefer.

[00:28:01] Speaker 00:
I think in both of those cases the recourse would be the AWA, but my understanding is that when the Nehmer Court has made decisions affecting the Nehmer class, that VA has promptly adjudicated them.

[00:28:12] Speaker 00:
I'm not at least aware of the Nehmer plaintiffs having filed any sort of petition or anything to make that re-adjudication happen.

[00:28:22] Speaker 00:
faster.

[00:28:23] Speaker 00:
I apologize.

[00:28:23] Speaker 00:
That's not correct, but that is my understanding.

[00:28:26] Speaker 01:
But I think, you know, and- Can I just ask, hypothetically, if there was a stay of the current BVA appeal to the Veterans Court, would the existence of that stay interfere with VA's proceeding to an automatic adjudication on the assumption of

[00:28:52] Speaker 01:
that Mr. Constantine prevails before in decal?

[00:28:55] Speaker 00:
I think it could.

[00:28:57] Speaker 00:
We didn't mention this in our brief, but in preparing for argument, we did look into that issue a little bit.

[00:29:01] Speaker 00:
And I don't think this court has made a decision on that point, but there is a Veterans Court decision that I think is presidential in which that court stated that when a case is live with the Veterans Court from a final board decision,

[00:29:17] Speaker 00:
the board is no longer with jurisdiction to take further action on the case.

[00:29:21] Speaker 00:
And I think that would apply to whatever VA entity is making that decision.

[00:29:25] Speaker 00:
So I think while the Veterans Court retains jurisdiction, so that means if the stay happened and the case wasn't dismissed, then Mr. Constantine would have to wait for that Veterans case to close back up again before VA could take any such action.

[00:29:41] Speaker 00:
And I can provide the

[00:29:44] Speaker 00:
the citation for that.

[00:29:45] Speaker 00:
The case is Cerullo and the citation is one vet at 195.

[00:29:51] Speaker 00:
So we do think that there is potentially a procedural issue with a stay as well.

[00:29:56] Speaker 00:
And then finally, we would like to make the point that our understanding is that Mr. Constantine did not even request a stay in front of the Veterans Court.

[00:30:03] Speaker 00:
So it would be hard to say that the Veterans Court erred in not granting a stay that we don't think Mr. Constantine even asked for.

[00:30:10] Speaker 02:
Can I ask you one question?

[00:30:11] Speaker 02:
This is the same attorney fees question.

[00:30:13] Speaker 02:
I take it that because you're saying it would be on the same claim, a new claim wouldn't have to be filed, there would be no difference in how attorney fees were treated with respect to whether the case was remanded, I mean, was stayed or dismissed.

[00:30:30] Speaker 00:
I apologize.

[00:30:31] Speaker 00:
I'm not actually very familiar with attorney fees, so I don't know how that would

[00:30:37] Speaker 00:
proceed as far as that issue.

[00:30:39] Speaker 00:
If the case were stayed versus dismissed, then the automatic re-judication happened.

[00:30:44] Speaker 00:
I can certainly look into it further if Your Honor wants further answer on us from that.

[00:30:49] Speaker 04:
Are you aware that there's a related action that's been filed in the Northern District of California?

[00:30:54] Speaker 00:
I don't believe that there has been a related action yet.

[00:30:57] Speaker 04:
What would the Veterans Court stay to?

[00:31:03] Speaker 04:
Stay in what?

[00:31:04] Speaker 04:
I mean, you normally have a stay when there's a proceeding elsewhere, and you allow that proceeding to go forward.

[00:31:11] Speaker 04:
But here there's no other proceeding, correct?

[00:31:15] Speaker 00:
That is correct, and that would be another reason why there would be no reason to stay.

[00:31:20] Speaker 00:
But I think what Mr. Constantine thinks should happen is that there should be a stay while he, or I think he maybe thinks that VA should.

[00:31:28] Speaker 00:
while a petition for enforcement is sought at the Northern District, but so far there has been no such petition or motion to enforce filed at the District Court, which I think Mr. Constantine could have at any point during this filed such a motion for enforcement, but we don't think he has yet.

[00:31:45] Speaker 04:
And just to be clear, there's no argument that Mr. Constantine is requesting

[00:32:00] Speaker 04:
That's okay.

[00:32:02] Speaker 04:
I'll go somewhere else.

[00:32:03] Speaker 00:
Okay.

[00:32:03] Speaker 00:
Thank you.

[00:32:04] Speaker 00:
I'm happy to answer any other questions that this court might have.

[00:32:08] Speaker 00:
To the extent it does not, we respectfully request that this court affirm the Veterans Court.

[00:32:12] Speaker 04:
Let me ask this final question.

[00:32:15] Speaker 04:
Is it the case that Mr. Constantine is not seeking a ruling from us as to the scope of the consent decree?

[00:32:25] Speaker 00:
That is my impression.

[00:32:27] Speaker 00:
I believe Mr. Attig agreed with Judge Toronto that the two things he is seeking is a finding that the Veterans Court erred in not finding issue preclusion and that it erred in not staying the case.

[00:32:39] Speaker 00:
So we don't think that Mr. Constantine is asking.

[00:32:41] Speaker 04:
But Mr. Constantine is telling us, we don't want you to make a ruling.

[00:32:48] Speaker 00:
We agree that Mr. Constantine is not asking this court to make a decision on the actual scope of the Nehmer class.

[00:32:54] Speaker 02:
What's your view on whether this court should address the issue of preclusion question?

[00:33:00] Speaker 00:
I think that this court could affirm simply on the grounds that the Veterans Court did not abuse its discretion in declining to exercise jurisdiction.

[00:33:09] Speaker 00:
But I think to the extent that this court addresses the merits of issue preclusion, we clearly think that there is no issue preclusion because there was never any

[00:33:20] Speaker 00:
cause for the court, the Northern District, or the parties to consider whether veterans serving outside the Republic of Vietnam were part of the Nehmer class.

[00:33:29] Speaker 00:
And to the extent that it was decided at all, we strongly believe it was decided the other way, that the class should be limited to only Vietnam veterans.

[00:33:38] Speaker 04:
Would you agree that the jurisprudence surrounding the doctrine of abstention

[00:33:45] Speaker 04:
applies when there's two court proceedings addressing the same issue or having the same parties?

[00:33:54] Speaker 00:
I think that that is certainly the traditional situation in which it applies.

[00:33:58] Speaker 00:
I mean, it usually applies.

[00:33:59] Speaker 04:
And that's what the court said here when it came up with this intersecting jurisdiction, right?

[00:34:05] Speaker 00:
Yes, and we don't dispute that.

[00:34:07] Speaker 04:
But would you say that there is no other?

[00:34:09] Speaker 04:
I mean, you're just telling us there is no other court that or we

[00:34:15] Speaker 04:
or agency or any other procedure that's addressing this issue here?

[00:34:21] Speaker 00:
We are not aware of any other situation that is similar to this one.

[00:34:26] Speaker 04:
So when the Veterans Court abstains to exercise its jurisdiction, it left the matter just hanging in the air.

[00:34:32] Speaker 00:
We don't agree with that.

[00:34:34] Speaker 00:
The matter wasn't just hanging in the air because, well, number one, the Veterans Court still followed the guiding principles that the Supreme Court articulated in Colorado River, and number two, Mr. Constantine still has that ability if he wants a decision on the scope of the class and the scope of the consent decree to go to the Northern District and file a motion for enforcement there, and then he can get

[00:34:56] Speaker 04:
that answer from the Northern District as to the scope of that class certification order and consent decree, which is, of course, something that the Northern District... But the fact that there's no concurrence of jurisdiction, or you don't have two courts, whether it be a state or federal, that are hearing the same issue,

[00:35:18] Speaker 00:
Well, we agree that there is no live case in the Northern District right now, as far as intersection.

[00:35:26] Speaker 01:
I'm sorry.

[00:35:27] Speaker 01:
There is a live case.

[00:35:28] Speaker 01:
There is no live dispute about this specific matter under that extremely live, long loose case.

[00:35:36] Speaker 00:
Yes, I have misspoken.

[00:35:38] Speaker 00:
I agree with Your Honor.

[00:35:38] Speaker 00:
The case is live in as much as, and that was the point I was going to make, in as much as the district court retains jurisdiction.

[00:35:47] Speaker 00:
without deadline, as far as we're aware, to enforce the terms of that consent decree.

[00:35:52] Speaker 00:
And as the Veterans Court found, when a court enters an ongoing consent decree like that, it should not be for another court to interfere with how the court entering the consent decree interprets the terms of that decree.

[00:36:07] Speaker 04:
Thank you.

[00:36:09] Speaker 04:
Thank you very much.

[00:36:12] Speaker 00:
Oh, sorry.

[00:36:14] Speaker 00:
We just wanted to know if the court wanted a written response on our position on attorneys, please.

[00:36:21] Speaker 00:
That's OK.

[00:36:21] Speaker 03:
Thank you.

[00:36:29] Speaker 03:
The concern that I have is in terms of this process that the secretary has outlined

[00:36:36] Speaker 03:
by which claims are automatically re-adjudicated.

[00:36:39] Speaker 03:
And anecdotally, I mentioned this in my brief.

[00:36:41] Speaker 03:
I've been doing this for 17 years, and I've never seen the VA automatically adjudicate anything.

[00:36:46] Speaker 03:
Their own behavior in the Blue Water Navy case can kind of influence it a little bit here, is that even after the Northern District of California found that the Blue Water Navy vets were part of the class, the NEMA class,

[00:37:00] Speaker 03:
The VA continued to sign effective dates based on the Asian Orange Act modification, I think it was 2020 or 2019, and was not, to my knowledge, applying to the NEMA.

[00:37:11] Speaker 03:
And I think that that has been, if not currently being loaded, I know that we have several cases or where cases where that is going on, where the veterans are continuing to fight for an earlier effective date under the NEMA consent decree despite the fact that it's already been said by that court that they're entitled to those

[00:37:31] Speaker 02:
OK, I want to ask you a question, which is, once you see that you've got the Veterans Court saying that the district court did not resolve the question at issue, I want to know, why didn't you go to California then?

[00:37:46] Speaker 02:
I'm curious about that, because it seems to me that that might have been if the interest is saving time, having concurrent litigation, I don't understand why you wouldn't go then.

[00:37:59] Speaker 03:
The quickest path there is a fair question.

[00:38:02] Speaker 03:
Mr. Constantine, the practical aspects of finding counsel in California that's willing to take on that kind of litigation is a factor.

[00:38:11] Speaker 03:
But then the other factor is that, excuse me, a motorcycle passed by.

[00:38:15] Speaker 03:
I apologize, Your Honor.

[00:38:17] Speaker 03:
In our view, Your Honor, without disclosing our full legal strategy, our view is that issue preclusion is clear.

[00:38:28] Speaker 03:
And Nehmer 3, 4, and 5, the Northern District of California, has made clear that if the Agent Orange Act covers a veteran, so does the Nehmer consent decree.

[00:38:38] Speaker 03:
And Congress amended the Agent Orange Act in 2019 to include Mr. Constantine.

[00:38:43] Speaker 03:
So it's hard to understand how this issue is even open.

[00:38:47] Speaker 03:
And it was our position, Mr. Constantine, in extensive discussions with other counsel outside of this firm, that it simply made sense to come to this court to ask for an adjudication

[00:38:57] Speaker 03:
of this issue of issue procedure, because it is so clearly resolved.

[00:39:02] Speaker 03:
It seemed like that would be the fastest path.

[00:39:03] Speaker 03:
We even waved the oral argument initially to allow the court to make that decision.

[00:39:08] Speaker 03:
And we thought that it would be a much faster path.

[00:39:12] Speaker 03:
And certainly, that's basically our position there.

[00:39:15] Speaker 03:
And quite frankly, the financial costs of finding an attorney to go into Northern California, Northern District of California, are incredibly burdensome for a 78-year-old veteran.

[00:39:25] Speaker 03:
who's struggling to kind of make ends meet as it is.

[00:39:28] Speaker 03:
It simply seemed like this was the faster and more logical approach to ask the court to make this clear finding that issue preclusion does lie or as the court has indicated to it to amend to the Veterans Court to make that determination as to whether or not issue preclusion applies in this particular case based on NIMR 3, 4, and 5 at a minimum and the NIMR consent decree.

[00:39:50] Speaker 03:
We also ask that the court disagrees and finds that the issue of preclusion does not lie, or that the Veterans Court need not consider that for whatever reason, that the court find that it is improper to simply dismiss the case and ask that the court take the court's remedy and order in the state of the matter while Mr. Constantine has an opportunity to find counsel who has the pockets deep enough to take this action on.

[00:40:16] Speaker 03:
Unless there's further questions, we would rest on our briefs and the arguments in those briefs as well as before the court.

[00:40:23] Speaker 04:
Counselor, I think that we've heard the arguments, and you heard the arguments of all the parties this morning, and this court now rises in recess.