Nehmer v. US Veterans Administ

Background

This settled class action concerns relief for certain Vietnam War veterans seeking compensation for diseases related to their service. A consent decree governs claims meeting specified conditions. Relevant here, a claim had to have been denied between 1985 and 1989, or have been pending or filed after 1989. The claimant also had to have served in Vietnam, its inland waterways, or its territorial waters.

The dispute concerned Servicemember Jefferson Hill. His son alleged that Hill flew to Saigon in 1968, briefly stepped onto the tarmac to receive his final assignment, and then left for Thailand to complete his service. The son also said Hill called the family from Saigon. No flight record was available. The son alleged that many other service members similarly stopped in Vietnam and that their flight records no longer existed.

The Department of Veterans Affairs agreed to provide Hill’s claim file to class counsel, and the parties exchanged briefing. Class counsel then requested a broad subpoena to search other departments for flight records or evidence that such records had been destroyed.

Analysis

Both sides agreed that Hill was not eligible for relief under the consent decree because his claim was filed and decided too early. The record showed that his claim was filed and decided in 1975, while the decree covered only certain claims decided after 1985. The court therefore found it unnecessary to consider the Department of Veterans Affairs’ additional argument that medical reasons also made the claim ineligible.

The court also denied class counsel’s subpoena request. Because Hill had already failed another eligibility requirement, the court found that no claim had been shown to depend only on the requested flight evidence. The court therefore found no basis for the broad inquiry.

Ruling

Judge William Alsup ordered that relief for Servicemember Hill was denied, the subpoena was denied, and the hearing associated with those matters was vacated as moot. The opinion does not decide whether the alleged missing flight records existed or whether other veterans would qualify for relief based on such records.