Stephen H. Demarest v. United States

Demarest’s challenge to the Veterans’ Administration’s (VA) handling of his disability claims was rejected by the district court. The issues here are whether the handling of his claims is judicially reviewable and whether the statutory limitation on attorneys’ fees payable in VA disability cases is constitutional.

During a four-year tour' with the United States Air Force, Demarest suffered two injuries: one to his left great toe and one to his back. After his honorable discharge, Demarest filed claims for disability compensation for those injuries.

The VA denied the claims. It found that the injuries were service connected, but not disabling to a compensable degree. JURISDICTION

Demarest’s challenge to the VA’s handling of his claims was pleaded as a claim under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671-80 . The district court held that jurisdiction under the FTCA had not been established and granted summary judgment for the VA on that claim.

Demarest challenges the appropriateness of disposition by summary judgment when jurisdiction was lacking. It is true that dismissal is the appropriate disposition if subject matter jurisdiction is absent. Capitol…