Joe Whitcomb
James M. Kernz initiated an appeal against the decision made by Denis McDonough, the Secretary of Veterans Affairs.
In response, the Secretary moved to dismiss the appeal, asserting that the Board had not issued a decision that could be appealed.
Ultimately, the Court of Appeals for Veterans Claims dismissed the appeal as moot. This was because the error regarding the timeliness of Kernz's Notice of Disagreement had been rectified.
Additionally, the Court denied Kernz's request for class certification.
Originally, Kernz's appeal started under the legacy system, but he chose to switch to review under the Veterans Appeals Improvement and Modernization Act of 2017 (AMA).
The Board sent Kernz a letter notifying him that his claims were no longer eligible for appeal since he had not filed a Notice of Disagreement within 60 days of receiving the Statement of the Case.
Subsequently, Kernz submitted a Notice of Appeal, designating the Board's letter as the decision he wished to appeal.
Ultimately, the Court dismissed the appeal as moot since the Board had rectified the error and accepted Kernz's appeal under the AMA.
Furthermore, the Court denied Kernz's request for class certification.
Kernz asserts that the Board lacked jurisdiction to take any action in May 2020 because the March 2020 Board letter constituted a decision that could be appealed.
However, the Secretary argues that the Court does not have the authority to review the March 2020 Board letter because it is not considered a final decision by the Board. In response, Kernz opposes this motion and requests a panel decision to determine whether the March 2020 letter can be appealed. The Court then decides to refer the matter to a panel, which holds oral arguments in March 2022. Additionally, the Secretary files a Solze notice, informing the Court that the Board has remanded the appellant's claims for compensation. Kernz is seeking a remand for the Board to comply with the necessary requirements. Meanwhile, the Court is evaluating whether it has subject matter jurisdiction over the case and whether the case is moot. The Secretary argues that the appeal is moot because the VA has corrected its error and provided Kernz with an additional 90 days to submit evidence. However, Kernz disagrees and claims that he is still being harmed by the Board's corrective actions. Ultimately, the Court concludes that it can dismiss the case on jurisdictional grounds other than lack of subject matter jurisdiction. Kernz also requests class certification, which the Secretary opposes, citing administrative feasibility and failure to meet certification requirements. Considering the importance of subject matter jurisdiction and the avoidance of rendering advisory opinions, the Court references Supreme Court rulings in Ruhrgas and Sinochem, which allow for dismissal on non-merits grounds before establishing subject matter jurisdiction. Finally, the Court dismisses the appeal as moot and denies the request for class certification.
Kernz raises concerns about the "confusion" surrounding the consideration of the evidence he submitted for his administrative appeal.
However, the Court dismisses any potential harm resulting from this confusion as speculative and ultimately deems the appeal moot.
While Kernz acknowledges the mootness of the case, he argues for the Court to issue a precedential opinion.
The Court, however, rejects this argument, emphasizing that the substantive issue at hand has already been fully resolved.
Furthermore, Kernz's claim that the Board's post-NOA actions are void is also dismissed by the Court, citing the precedent set in Cerullo v. Derwinski.
In distinguishing the present case from Cerullo v. Derwinski, the Court highlights that the Board's actions in this instance aimed to rectify a clear error rather than reconsider a previous decision.
Ultimately, the Court finds that the Board's actions have effectively resolved the dispute between the parties, leaving no further matter for the Court to review.
The Court underscores the vital importance of a live controversy for it to exercise its judicial power.
In light of this, the Court dismisses the appeal as moot and denies the request for class certification.
To provide further clarity on the matter, the Court delves into the cases of Gao v. Gonzales and Doctors Nursing. These cases help elucidate the distinction between the principle of appellate procedure, which suggests that filing an appeal prevents an agency from taking action, and the separate requirement that a live case or controversy must still exist between the parties.
Reiterating the validity of Cerullo as binding law, the Court acknowledges that the Board did not adhere to the procedure outlined in Cerullo, but deems this noncompliance non-prejudicial in the present case.
Ultimately, the Court determines that the essence of the matter is best understood as a mootness case, as the actions taken by the Board have effectively granted the appellant the relief he sought.
Thus, the Court dismisses the appeal as moot.
Exploring the concept of the "inherently transitory" exception to mootness, which allows a court to consider the merits of a case despite the mootness of the individual class representative's claim, the Court concludes that this exception does not apply in the appellant's case. The Court reasons that the case was already moot before the appellant filed a request for class certification.
To support its decision, the Court cites Dolbin v. McDonough, a ruling by the Federal Circuit.
Furthermore, the Court denies the appellant's request for class certification.
In its discussion, the Court acknowledges the Board's authority to take remedial action and notes that the Board did not violate any rules in this particular case.
Ultimately, the Court concludes that the appeal is moot because there is no longer a live case or controversy between the parties.
As a result, the Court denies the appellant's request for class certification and dismisses the appeal.
Two judges provide concurring opinions, both emphasizing the mootness of the case.
The Court also explores the legal implications of filing a Notice of Appeal (NOA) and the transfer of jurisdiction from the Board to the Court.
In their argument, the Court states that granting the relief the appellant seeks would only lead to unnecessary delays and procedural chaos.
On the other hand, the dissenting judges argue that the issue at hand is not mootness but rather the Board exceeding its jurisdiction.
According to the dissent, the actions taken by the Board after the NOA was filed are legally void and cannot render the appeal moot.
Contrarily, the majority asserts that the Board's post-NOA actions were not void as they were carried out with legal authority.
The dissenting judges maintain that the Board's actions were void because they were conducted without jurisdiction.
To support their argument, the majority references two cases from the Seventh Circuit, Gao v. Gonzales and Doctors Nursing & Rehabilitation Center v. Sebelius.
The dissenting judges put forth a compelling argument, contending that the cases cited by the majority actually bolster their position. These cases emphasize the crucial role of jurisdiction and highlight that the Board's desire to rectify an error does not grant it the authority to encroach on the Court's jurisdiction. The dissenting judges further argue that the Board's post-NOA actions were more than a minor, inconsequential error. They assert that the Board should have sought the Court's permission to correct the error, as Cerullo v. Derwinski mandates. Judge Jaquith goes a step further, asserting that the majority's decision undermines the Court's authority and credibility, allowing the Board to interfere with the Court's docket. The dissenting judges firmly maintain that the Board's actions were unauthorized, and they emphasize that jurisdiction cannot hinge on events that have not yet transpired. Additionally, the Secretary posits that the Court lacks jurisdiction over the Board's notice letter dated March 24, 2020, as it is not considered a decision of the Board. Furthermore, the Secretary contends that the veteran's appeal is moot since it has already been docketed. The dissenting judges argue that the Board's letter from March 24, 2020, constituted a decision by the Board, and the subsequent action taken by the Board in May 2020 to reverse that decision was ineffective.
The dissenting judges passionately assert that the majority's decision leaves veterans in a state of uncertainty and abandonment.
In response, the Secretary argues that the Court should dismiss the appeal due to a lack of subject matter jurisdiction.
The Board initially erred by deeming the veteran's appeal untimely and informing him that his claim was ineligible for Board review.
To rectify this error, the Board has allowed veterans to request a recalculation of timeliness.
However, the Board has not made a concerted effort to identify all veterans affected by this mistake.
Additionally, the Board has established a deadline for veterans to revive timely Board appeals, for which the Secretary has not provided a sufficient justification.
Although the veteran's appeal has been remanded for further development, the Board has refused to consider the favorable evidence he submitted.
Despite these concerns, the majority of the Court dismisses the appeal as moot and denies the request for class certification.
The majority's decision disregards a recent reaffirmation of Cerullo, which asserts that the Board's independent action on a matter already appealed to the Court violates the established rule.
Furthermore, the majority's ruling nullifies the Court's previous decisions in Smith and Lauigan.
In opposition to the majority, the dissent argues that the Court's jurisdiction has now been placed in the hands of the Board, and that the Board should seek the Court's permission as required by Cerullo.
The dissenting judges also contend that the majority's decision fails to align with the Court's duty to make the right decision in the right manner and for the right reasons.
In invoking the Doctors Nursing & Rehabilitation Center case to justify their stance, the majority overlooks the holding of that particular case.
The dissenting judges argue that the majority's decision empowers the Board to strip the Court of its jurisdiction and control over the docket.
James M. Kernz has filed an appeal against the decision made by Denis McDonough, the Secretary of Veterans Affairs.
The Court, considering the appeal moot, dismisses it and denies the request for class certification.
During the proceedings, the Court makes references to various documents and exhibits, including the appellant's response, the notice of appeal, and a motion to dismiss filed by the Secretary.
Furthermore, the Court mentions two oral arguments, one conducted by a panel and another by the full court.
In citing a number of cases and statutes, including Solze, the Court emphasizes the requirement for all parties to inform the Court of any developments that could impact its decision.
The Court also makes mention of several documents, such as the Secretary's motion to dismiss, the appellant's response, and a request for class action certification.
In response to the Secretary's motion, the Court grants a stay of proceedings until January 2021, but unfortunately, the parties are unable to reach a resolution.
Additionally, the Court relies on a number of cases and statutes, including Maggitt v. West, 38 U.S.C. § 7104(d), and 38 C.F.R. § 20.801(b).
Ultimately, the Court dismisses the appeal as moot and denies the request for class certification.
The Court engages in a detailed discussion regarding the Secretary's motion to dismiss, making note of the dissenting judge's disagreement with the Court's interpretation of the Secretary's argument.
Furthermore, the Court emphasizes its duty to thoroughly examine whether there is a live case or controversy, even if the parties themselves do not raise the issue.
To bolster its decision, the Court refers to a number of relevant cases, including Freund v. McDonough and Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp.
Ultimately, the Court arrives at the conclusion that the appeal is indeed moot and consequently denies the request for class certification.
In support of its decision, the Court cites additional cases such as Princeton Univ. v. Schmid, Mokal v. Derwinski, and Philbrook v. Wilkie.
The Court delves into a discussion of the Board's actions in May 2020, emphasizing their relevance to the current case.
Furthermore, the Court focuses on the arguments put forth by the appellant regarding the mootness of his individual claim and delves into the potential implications of the pending RCA (Request for Consideration on Appeal) on the issue of mootness.
In order to explain why the claim is not ripe for adjudication, the Court cites Texas v. United States and Polovick v. Nicholson.
Additionally, the Court references the Secretary's Solze Notice, which remanded all of the appellant's claims due to a pre-decisional duty-to-assist error.
This particular document centers around an appeal filed by James M. Kernz against a decision made by Denis McDonough, the Secretary of Veterans Affairs.
Lastly, the Court makes reference to several cases that establish the important principle that a case should not simultaneously exist in multiple forums with regard to the same issue.
Ultimately, the court dismisses the appeal as moot, citing the Board's letters in May 2020 as providing the desired relief for Kernz. Additionally, the court denies the request for class certification. In support of its decision, the court refers to several cases that establish the principle that an agency must obtain permission from the reviewing court before taking corrective actions. The court distinguishes the current case from previous ones, as the agency's corrective action fully satisfied the appellant's needs, leaving the court with no further action to take. The court also cites cases that emphasize that a case remains active as long as the parties involved have a tangible interest in the outcome. Furthermore, the court overturns any conflicting aspect of the Encarnacion decision in light of the present ruling. In opposition to the majority, dissenting judges argue that the court should have explored alternative avenues, such as pursuing a class action, to prevent the case from becoming moot.
The court dismisses the appeal as moot since the appellant's case became moot prior to the likelihood of a class action. The Secretary of Veterans Affairs confirmed that the Board had docketed the appellant's appeal as if it had been filed in a timely manner.
In contrast, the dissenting judge argues that the court should address the Board's mess and rule on the merits question and subsequent request for class certification. However, the court argues that doing so would require them to issue an impermissible advisory opinion.
To support its stance, the court refers to cases that establish the principle that the court's jurisdiction is limited to issues decided by the Board. Furthermore, the court acknowledges the appellant's confusion regarding whether the Board would consider the evidence and argument he submitted, but notes that the Board has resolved this confusion.
The court emphasizes that the Board's finding is not within their purview, as they do not review remands. Additionally, the court discusses the potential applicability of 38 U.S.C. § 7103(c) to the case but ultimately concludes that it does not apply based on precedent.
The court argues that a letter from the Vice-Chairman of the Board to the veteran, stating that his appeal was untimely, constitutes a final decision. Moreover, the court mentions the appellant's argument that the Board's unilateral action caused confusion but highlights that the veteran submitted evidence within the appropriate window.
Lastly, the court delves into a discussion of the requirements for the Secretary to file a motion for remand, as outlined in Cerullo.