"A case that becomes moot at any point during the proceedings is 'no longer a "Case" or "Controversy" for purposes of Article III,' and is outside the jurisdiction of the federal courts." (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013))
How later courts described this case
- "A case that becomes moot at any point during the proceedings is 'no longer a "Case" or "Controversy" for purposes of Article III,' and is outside the jurisdiction of the federal courts." (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013))
- "A claim is not ripe for adjudication if it rests upon 'contingent future events that may not occur as anticipated, or indeed may not occur at all.'" (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985) (internal quotations omitted))
- noting that 38 U.S.C. § 7104(a) defines and "limits" the Board's jurisdiction
- "An appellant cannot be deprived of his or her right to appeal to this Court as a result of the Chairman's action to reconsider a prior decision, or as a result of action by the [Board] to correct an obvious error in the record, under 38 U.S.C. § 7103." (emphasis added)
Written by the judges who cited it.
The opinion
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 20-2365
JAMES M. KERNZ, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge, and PIETSCH, GREENBERG, ALLEN, MEREDITH,
TOTH, FALVEY, LAURER, and JAQUITH, Judges.
ORDER
ALLEN, Judge, filed the opinion of the Court. TOTH, Judge, filed a concurring opinion.
FALVEY, Judge, filed a concurring opinion. BARTLEY, Chief Judge, filed a dissenting opinion
in which GREENBERG and JAQUITH, Judges, joined. JAQUITH, Judge, filed a dissenting
opinion.
Appellant James M. Kernz served the Nation honorably in the U.S. Army from July 1968
to April 1970.1 On April 2, 2020, he filed a Notice of Appeal (NOA) specifying March 24, 2020,
as the date of the Board of Veterans' Appeals (Board) decision he sought to appeal.2 On July 1,
2020, the Secretary filed a motion to dismiss the appeal, arguing that the Board had not issued an
appealable decision on March 24, 2020.3 Rather, the Secretary explained that the Board had issued
a letter to appellant on March 24, 2020. In it, the Board informed appellant that his claims were
"no longer eligible for appeal" in either the modernized review system or the legacy review system
and that he could request an extension of time if he disagreed with the timeliness decision in either
review system.4 The letter did not provide a right to review before a Board member or by the Court.
The Secretary argued that the letter is not a Board "decision" over which we have jurisdiction and,
therefore, urged us to dismiss the appeal for lack of subject matter jurisdiction.5 The Secretary's
motion to dismiss is before the Court today.
In terms of procedural history, it is surprisingly extensive given that we are dealing with a
threshold motion. While we will provide additional detail in the next section, for now we briefly
preview what is pending on the docket and how this matter arrived before the full Court. The
Secretary's July 1, 2020, motion to dismiss was pending in the Court's Public Office until the matter
was referred to a motions Judge on February 8, 2021. Shortly before the matter was assigned to a
1
See Appellant's July 7, 2020, Response (Resp.) at Exhibit (Ex.) A.
2
See Appellant's April 2, 2020, NOA.
3
See Secretary's July 1, 2020, Motion (Mot.) to Dismiss at 2.
4
Id. at Ex. A. We discuss this letter in more detail below.
5
Secretary's July 1, 2020, Mot. to Dismiss at 2-3.
motions Judge, on February 5, 2021, appellant filed a Request for Class Certification and Class
Action (RCA) in which he sought to represent a class of purportedly similarly situated claimants.
Thereafter, the parties filed a series of responses to several Court orders. In December 2021, the
motions Judge referred this matter to a panel of the Court principally to address whether the
Board's March 24, 2020, letter constituted an appealable Board "decision" over which the Court
has subject matter jurisdiction. The appropriate disposition of the RCA was also a matter before
the panel.
On March 29, 2022, the panel assigned to this appeal heard oral argument. 6 On
November 23, 2022, this case was submitted to the full Court for review pursuant to the Court's
Internal Operating Procedures (IOP).7 On June 15, 2023, the full Court held oral argument.8 The
Secretary's motion to dismiss and appellant's RCA are now ripe for decision.
As we will explain, we are unable to reach the merits of the Secretary's argument that the
March 24, 2020, letter is not a "decision" over which the Court has jurisdiction. Nevertheless, we
will still grant the Secretary's motion to dismiss (as well as deny appellant's RCA) because there
is no longer a live case or controversy for the Court to address even if we assume (and that is all
we do) that the March 24, 2020, letter is a Board "decision." We proceed as follows. First, we
provide the necessary context both factually and procedurally. Second, we recount the parties'
positions on the various matters before the Court. Third, we describe why it is appropriate for us
to assume that we have subject matter jurisdiction over appellant's appeal and address a separate
jurisdictional basis for dismissal, namely mootness. Then, we explain why this appeal is moot,
including why the Court's decision in Cerullo v. Derwinski9 does not preclude that result. Finally,
we conclude that the pendency of appellant's RCA does not provide an exception to the mootness
of this action. And because the appeal is moot—and became so before appellant filed the RCA—
we also deny that request.
I. FACTS AND PROCEDURAL HISTORY
In December 2016, a VA regional office (RO) denied appellant's claims for compensation
under 38 U.S.C. § 1151 for an aneurysm, as well as service connection for depression, kidney
failure, and residuals of a stroke.10 Appellant filed a Notice of Disagreement (NOD) with that
decision and the RO maintained its denial in a December 2019 Statement of the Case (SOC).11
Although appellant's appeal began under the legacy system, in the December 2019 SOC, VA
provided him the opportunity to opt into review under the Veterans Appeals Improvement and
6
Kernz v. McDonough, U.S. Vet. App. No. 20-2365 (oral argument held Mar. 29, 2022), Oral Argument [hereinafter
Panel Oral Argument], available at https://www.youtube.com/watch?v=dqBHabRI3Uw.
7
See U.S. VET. APP. IOP VII(b)(2), X.
8
See Kernz v. McDonough, U.S. Vet. App. No. 20-2365, (oral argument held June 15, 2023), Oral Argument
[hereinafter Full Court Oral Argument], available at https://www.youtube.com/watch?v=6Od011aC3I4.
9
1 Vet.App. 195 (1991).
10
See Appellant's July 7, 2020, Resp. at Ex. A (Dec. 2016 RO decision).
11
See id. at Ex. B (Aug. 2017 NOD); Secretary's May 17, 2021, Resp. at Ex. A (Dec. 2019 VA Letter and SOC).
2
Modernization Act of 2017 (AMA).12 On January 17, 2020, appellant filed a VA Form 10182
(Decision Review Request: Board Appeal (Notice of Disagreement)) opting for direct Board
review under the AMA, selecting the evidence submission lane.13
On March 24, 2020, the Board sent appellant a letter informing him that his claims were
"no longer eligible for appeal in the modernized review system created by the AMA" because more
than 60 days had passed since he received the SOC.14 The Board also informed appellant that he
could request from the Board an extension of "time to submit a Board Appeal Request (VA Form
10182)" if he believed "there is good cause to grant a time extension." 15 Finally, the Board
informed appellant that the time to appeal the SOC by submitting a VA Form 9 under the legacy
system had also passed. 16 And, similarly, the Board told appellant that "the timeliness of a
submitted VA Form 9 can be separately appealed in the legacy (non-modernized) review system"
in accordance with the appellate rights that are attached to that timeliness decision or he could "file
a request for an extension of time to file a VA Form 9 based on 'good cause[.]'"17 On April 2, 2020,
appellant filed his NOA in this matter identifying the March 24, 2020, Board letter as the
"decision" he sought to appeal.
This appeal has a long history before the Court, which we recount in some detail. On
June 2, 2020, appellant notified the Court, in accordance with Solze v. Shinseki,18 that the Board
sent him two letters dated May 7, 2020, in connection with the matter on appeal.19 In one letter the
Board informed appellant that the March 2020 Board letter had been wrongfully issued due to
administrative error.20 In the other letter, the Board told appellant that it had received his "Board
Appeal request (VA Form 10182) . . . [and that his] appeal has been placed on the Evidence
Submission docket[,]" and he had "90 days from the date of the Board's receipt of [his] Board
Appeal (VA Form 10182) to submit new evidence."21 In his Solze notice, appellant argued that the
Board did not have jurisdiction to take any action in May 2020 because the March 2020 Board
12
See Appellant's July 7, 2020, Resp. at Ex. C (Dec. 2019 VA Letter); Secretary's May 17, 2021, Resp. at Ex. A (Dec.
2019 VA Letter and SOC); see also P.L. 115-55, 131 Stat. 1105 (Aug. 23, 2017).
13
See Appellant's July 7, 2020, Resp. at Ex. D. The 60-day deadline following the mailing of the SOC for filing a
timely NOD under the AMA or a VA Form 9 under the legacy system was February 18, 2020.
14
Secretary's July 1, 2020, Mot. to Dismiss at Ex. A. As an aside, we note that the Secretary has acknowledged that
the March 2020 letter incorrectly notes the date of the VA Form 10182 and SOC as January 15, 2020, and
December 12, 2019, respectively, and referred to a "dental injury" in error. See Secretary's May 17, 2021, Resp. at 4
n.2.
15
Secretary's Motion to Dismiss at Ex. A.
16
Id.
17
Id.
18
26 Vet.App. 299, 301 (2013) (per curiam order) (holding that all parties to a case are required to "notify the Court
of developments that could deprive the Court of jurisdiction or otherwise affect its decision").
19
See Appellant's June 2, 2020, Solze Notice at Exs. A, B.
20
Id. at Ex. A.
21
Id. at Ex. B.
3
letter constituted an appealable decision over which the Court already had jurisdiction by virtue of
his April 2, 2020, NOA.22
In July 2020, the Secretary filed the motion to dismiss that is currently before us.23 The
Secretary asserted that the Court lacks subject matter jurisdiction to review the March 2020 Board
letter because it is not a final decision of the Board.24 Appellant opposed the motion contesting the
Secretary's arguments (as we will describe in more detail below) and also asserted that the May
2020 Board notices deprived him of a full 90 days in which to submit evidence in support of his
appeal.25
On August 31, 2020, the Secretary informed the Court that in an August 28, 2020, letter,
the Board notified appellant that it had extended his evidence submission window until
November 26, 2020—90 days from the date of the August 28, 2020, Board letter. 26 In the
August 28, 2020, letter the Board also reiterated that (1) the March 2020 letter rejecting appellant's
January 17, 2020, NOD as untimely had been wrongfully issued due to an administrative error and
(2) in a May 2020 letter the Board explained that appellant's appeal "was docketed at that time"
and placed on the evidence submission docket.27 The Secretary confirmed that appellant's appeal
was docketed at the Board as if it had been originally deemed timely when filed on January 17,
2020.28 The following month, appellant requested a panel decision to address whether the March
2020 Board letter is an appealable decision.29
In February 2021, appellant filed his RCA, which remains pending. 30 As amended,
appellant seeks to represent a class of purportedly similarly situated people, specifically: "All VA
benefits claimants who since the enactment of the [AMA] on August 23, 2017, have received or
will receive letters from the Board denying appellate eligibility/jurisdiction and were not provided
notice of appellate rights."31
22
See id. at 1-2 (citing Cerullo, 1 Vet.App. at 200).
23
See Secretary's July 1, 2020, Mot. to Dismiss at 1-4.
24
Id. at 3 (first citing Maggitt v. West, 202 F.3d 1370, 1376 (Fed. Cir. 2000); and then citing 38 U.S.C. § 7104(d)).
25
See Appellant's July 7, 2020, Resp. at 4-5.
26
See Secretary's August 31, 2020, Resp. at 2, Ex. A.
27
Id. at Ex. A.
28
See Secretary's June 2, 2023, Notice to the Court, Attachment (Att.) at 1.
29
See Appellant's September 16, 2020, Resp. at 4-6. After appellant filed his request for panel consideration, the Court granted
the Secretary's unopposed motion to stay proceedings until January 2021 for a potential joint resolution. See Secretary's
December 20, 2021, Mot. to Stay. The parties were not able to reach a resolution.
30
See Appellant's February 5, 2021, RCA at 1-24.
31
Appellant's April 5, 2022, Notice at 1. In his February 2021 RCA, appellant had defined the class of purported
similarly situated people as "[a]ll claimants who have received or will receive the same or substantially similar letters
from the Board that Mr. Kernz did, i.e. letters denying appellate eligibility/jurisdiction under the [AMA] and Legacy
(non-modernized) review system for issues timely appealed via VA Form 10182." Appellant's February 5, 2021, RCA
at 2.
4
In March and June 2021, the Court ordered the Secretary to respond to appellant's RCA.32
In his May 2021 response, the Secretary explained why he opposed class certification.33 And in
his August 2021 response, the Secretary explained that VA had voluntarily published a corrective
notice on its website and distributed the notice to, among other places, VA facilities.34 The notice
acknowledged that the Board had learned that between February 19, 2019, and March 23, 2021,
"a limited number of Veterans may have had their Board Appeal forms (VA Form 10182 [. . .])
mistakenly rejected for being untimely."35
In December 2021, the motions Judge who had been managing proceedings up to that point
referred the matter to a panel of the Court. The panel held oral argument on March 29, 2022.
Following oral argument, both parties submitted statements to the Court clarifying their respective
positions. On November 23, 2022, this case was submitted to the full Court for review pursuant to
part VII of the Court's IOP. In June 2023, the parties argued before the full Court.
On September 11, 2023, the Secretary filed a Solze notice.36 In it, the Secretary informed
the Court that the Board on September 7, 2023, remanded appellant's claims for compensation
under 38 U.S.C. § 1151 for an aneurysm and kidney failure, as well as service connection for
depression as secondary to an aneurysm and kidney failure. The Court will now decide the matters
before it.
II. PARTIES' ARGUMENTS
The Secretary argues that the Court lacks jurisdiction to review the March 24, 2020, Board
letter because it is not a final "decision" of the Board. 37 The Secretary asserts that the letter
provided appellant notice, as part of the claims processing procedure, about the timeliness of his
NOD and the different options available to him under the legacy and modernized review systems.38
Further, the Secretary asserts that the March 2020 letter is not a "'decision with respect to the
benefit sought'" by the claimant, fails to contain "an order granting appropriate relief or denying
relief," and does not provide a notice of appellate rights.39 Because the Secretary believes that the
32
See March 1, 2021, Court Order at 2; June 11, 2021, Court Order at 2.
33
See Secretary's May 17, 2021, Resp. at 17-25.
34
See Secretary's August 25, 2021, Resp. at 2-3.
35
Id. at 3 (quoting BOARD OF VETERANS' APPEALS, http://www.bva.gov (last visited Aug. 25, 2021)).
36
See Secretary's September 11, 2023, Solze Notice at Ex. A. On September 14, 2023, the Secretary filed an amended
Solze notice that is substantively the same as the one filed on September 11, 2023.
37
See Secretary's August 25, 2021, Resp. at 1 (citing 38 U.S.C. § 7252(a)); see also Secretary's May 17, 2021, Resp.
at 12-13 (first citing 38 U.S.C. § 7104(d); then citing 38 C.F.R. § 20.801(b); then citing Maggitt, 202 F.3d at 1376;
then citing Kirkpatrick v. Nicholson, 417 F.3d 1361, 1364 (Fed. Cir. 2005); and then citing Tyrues v. Shinseki,
23 Vet.App. 166, 178 (2009) (en banc), aff'd, 631 F.3d 1380 (Fed. Cir. 2011), vacated, 565 U.S. 802 (2011), reinstated
as modified en banc, 26 Vet.App. 31 (2012) (per curiam order), aff'd, 732 F.3d 1351 (Fed. Cir. 2013)).
38
Panel Oral Argument at 1:23:14-:23:48.
39
See Secretary's May 17, 2021, Resp. at 12-13 (first quoting Maggitt, 202 F.3d at 1376; then quoting 38 U.S.C.
§ 7104(d); then citing 38 C.F.R. § 20.801(b); and then citing Tyrues, 23 Vet.App. at 178).
5
March 2020 letter is not a final or an appealable Board "decision," he contends that the Board did
not run afoul of Cerullo by acting to correct its error concerning the timeliness of appellant's
NOD.40
In response, appellant argues that the March 24, 2020, letter is a final "decision" of the
Board over which the Court has subject matter jurisdiction. 41 He asserts that the Board letter
"procedurally and substantively extinguished" his appeal because it informed him that his "appeals
were no longer pending on the Board's docket and that no further action would be taken by the
Board or the [RO]."42 Appellant also argues that the March 24, 2020, letter informed him of his
appellate rights when it notified him that he could "appeal the timeliness of a submitted VA Form
9 in the [l]egacy review system or request an extension of time to submit his Board appeal by
showing good cause to the Board or [RO], if he disagreed with the Board's letter."43 He further
contends that the Board's correction of its error was void under Cerullo because he had filed his
NOA with the Court about that issue before the Board acted.44 In terms of relief being sought,
appellant's counsel explained during full Court oral argument that he would like the Court "to
remand for the Board to comply with the requirements of [38 C.F.R.] § 20.104(c), which would
include docketing under the appropriate authority and clarifying the correct 90 days or even
assigning a new 90-day period so that Mr. Kernz can understand the precise start and stop dates"
of the evidence submission window.45
In the alternative, the Secretary argues that the appeal is moot.46 He contends that VA cured
its error concerning the timeliness of appellant's administrative appeal when the Board correctly
docketed his case and the Board afforded appellant an additional 90 days in which to submit
evidence.47 Additionally, the Secretary informed the Court that, as a result of this case, the Board
amended its timeliness notice letter template and VA now uses a revised version of the letter so
other claimants will not face the issues appellant did when the Board issued the version of the
timeliness letter it was using in March 2020 to appellant.48 Appellant counters that the appeal is
40
Secretary's July 1, 2020, Mot. to Dismiss at 3; see Full Court Oral Argument at 18:00-:34.
41
See Appellant's July 7, 2020, Resp. at 3.
42
See Appellant's May 26, 2021, Resp. at 3.
43
See Appellant's September 16, 2020, Resp. at 3.
44
Full Court Oral Argument at 1:12:00-:06, 1:16:04-:16:50.
45
Id. at 1:17:07-:17:25; see id. at 1:07:01-:10:30.
46
See Secretary's July 1, 2020, Mot. to Dismiss at 3-4. Our dissenting colleague, Judge Jaquith, chastises our
characterization of the Secretary's argument. He states that the Secretary argues that "the Board had cured its error(s),
but never mentioned mootness." Post at 24. We stand by our characterization, but it fundamentally doesn't matter how
one characterizes the Secretary's argument. Having adopted the requirements of Article III of the U.S. Constitution,
the Court has an independent duty to ensure that there is a live case or controversy in this appeal, even if the parties
don't raise the matter. See Philbrook v. Wilkie, 32 Vet.App. 342, 345 (2020) (quoting Mission Prod. Holdings v.
Tempnology, LLC, 139 S. Ct. 1652, 1660 (2019)), rev'd on other grounds, 15 F.4th 1117 (Fed. Cir. 2021); Demery v.
Wilkie, 30 Vet.App. 430, 434 (2019) (per curiam order).
47
See Secretary's August 31, 2020, Resp. at 2.
48
See Secretary's April 4, 2022, Resp. at 1-2, Ex. A.
6
not moot because he continues to experience harm resulting from the Board's corrective actions.
During the full Court oral argument, appellant's counsel explained that it is unclear whether the
Board will consider evidence that he submitted before it issued the August 2020 letter that provided
him with a new 90-day evidence submission window.49
Finally, with respect to the RCA, appellant argues that the Board's erroneous notification
letter "reflects a systematic practice by the Board to deny appellate review for properly filed
appeals without providing adequate reasons or bases for doing so" and without adequate notice to
do so.50 He urges the Court to grant the RCA. The Secretary asserts that the Court should deny the
RCA because it would be administratively unfeasible to determine the class members and, in any
event, appellant has not demonstrated that the proposed class satisfies the requirements for
certification under the applicable legal standards.51
III. ANALYSIS
A. Jurisdictional Sequencing
We begin with a question perhaps tailored for a procedural aficionado: Is there a particular
order in which we must proceed in terms of the different jurisdictional questions this case presents?
After all, a centerpiece of the parties' dispute is whether the Board's March 24, 2020, letter is a
"decision" over which we have subject matter jurisdiction. At the same time, developments after
appellant filed his NOA have raised issues about whether there remains a live case or controversy
for the Court to address. In other words, we have serious concerns about whether this case is moot.
Do we need to address these questions—mootness and subject matter jurisdiction—in a
particular order? One might instinctively conclude that we must first assure ourselves that we have
subject matter jurisdiction before we do anything else. After all, in Steel Co. v. Citizens for a Better
Environment, the Supreme Court held that federal courts are required to ensure that they have
jurisdiction over the subject matter before considering the merits of a case.52 And in Hayre v.
Principi, we held that "[j]urisdiction may not be 'assumed,' 'conceded,' or 'implied,' and cannot be
bestowed on a court by the court itself, or any other court."53 In the same vein, the Court has held
repeatedly that "we must always assure ourselves that we have jurisdiction to act."54
So, there is no debate that subject matter jurisdiction is a foundational question in federal
court litigation. However, the Supreme Court has also recognized that "a federal court has leeway
'to choose among threshold grounds for denying audience to a case on the merits.'"55 The key is
49
Full Court Oral Argument at 1:04:00-:06:38, 1:07:01-:10:30.
50
Appellant's February 5, 2021, RCA at 3; see Full Court Oral Argument at 1:32:50-:34:05.
51
Full Court Oral Argument at 52:08-53:07.
52
523 U.S. 83, 94 (1998).
53
15 Vet.App. 48, 51 (2001), aff'd, 78 F. App'x 120 (Fed. Cir. 2003).
54
Freund v. McDonough, 35 Vet.App. 466, 479 (2022); see Foster v. McDonough, 34 Vet.App. 338, 351 (2021);
Demery, 30 Vet.App. at 434.
55
Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431 (2007) (quoting Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 585 (1999)).
7
that a federal court may not proceed to the merits of a case without assuring itself that it has subject
matter jurisdiction, but it may dismiss a case based on a jurisdictional (or quasi-jurisdictional)
ground other than lack of subject matter jurisdiction. For example, in Ruhrgas, the Supreme Court
held that "[w]hile Steel Co. reasoned that subject-matter jurisdiction necessarily precedes a ruling
on the merits, the same principle does not dictate a sequencing of jurisdictional issues."56 In other
words, a court can dismiss on non-merits grounds, like personal jurisdiction that was at issue in
Ruhrgas, without violating the principles established in Steel Co. dealing with the importance of
subject matter jurisdiction.
Additionally, in Sinochem, the Supreme Court held that a federal court did not need to first
establish subject matter jurisdiction (or even personal jurisdiction) if it found that the matter should
be addressed in another, more appropriate, court or forum under the doctrine of forum non
conveniens.57 The Supreme Court reaffirmed its ruling in Ruhrgas and concluded that, because
dismissal based on forum non conveniens principles is a non-merits ground for resolving the case,
there was no requirement to first establish that there was subject matter jurisdiction in the case at
hand: "[W]here subject-matter or personal jurisdiction is difficult to determine, and forum non
conveniens considerations weigh heavily in favor of dismissal, the Court properly takes the less
burdensome course."58
Applying the Supreme Court's holdings in Ruhrgas and Sinochem, the Federal Circuit has
recognized that standing and mootness are also threshold jurisdictional issues that a court may
properly address before resolving questions about subject matter jurisdiction.59 Particularly, in
Kaw Nation, the Federal Circuit considered an appeal from a decision by the Department of the
Interior Board of Contract Appeals involving an intratribal dispute concerning the allocation of
funds pursuant to a certain tribal contract. The Secretary of the Interior argued that the appeal
should be dismissed as moot because the government agency had "paid the disputed amounts and
will not seek to recover them."60 The Secretary also requested vacatur of the Board of Contract
Appeals' decision. One argument that appellant, Kaw Nation, raised was that the Board of Contract
Appeals lacked jurisdiction to consider the initial dispute, and while there may no longer be a live
case or controversy, the Court must decide the jurisdictional issues before reaching the question
of mootness. 61 The Federal Circuit relied on Ruhrgas and explained that "we may address
jurisdictional issues in any order."62 But the Federal Circuit went even further, holding that "where,
as here, the underlying controversy is clearly moot, the preferred course is to decide mootness,
56
Ruhrgas, 526 U.S. at 584.
57
Sinochem, 549 U.S. at 426.
58
Id. at 436.
59
See Kaw Nation v. Norton, 405 F.3d 1317, 1323 (Fed. Cir. 2005); Myers Investigative & Sec. Servs. Inc. v. United
States, 275 F.3d 1366, 1369 (Fed. Cir. 2002) (noting that standing, like mootness, is a threshold jurisdictional issue,
and deciding the issue of standing without reaching the mootness issue first), abrogation on other grounds recognized
by CACI, Inc.-Fed. v. United States, 67 F.4th 1145, 1151 (Fed. Cir. 2023); see also North Carolina v. Rice, 404 U.S.
244, 246 (1971) ("Mootness is a jurisdictional question because the Court 'is not empowered to decide moot questions
or abstract propositions.'" (quoting United States v. Alaska S.S. Co., 253 U.S. 113, 116 (1920))).
60
Kaw Nation, 405 F.3d at 1318.
61
Id. at 1322.
62
Id. at 1323.
8
before reaching difficult questions more closely tied to the merits of the underlying controversy,
such as subject matter jurisdiction."63 Thus, the Federal Circuit declined to address the subject
matter jurisdiction issue and dismissed the appeal before it because the case had "'lost its character
as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on
abstract questions of law.'"64
Given the facts before us, and as we discuss next, we conclude that it is advisable for us to
consider mootness as a threshold matter. Just as the Federal Circuit recognized in Kaw Nation, if
we do not address whether a live controversy remains, we risk rendering what amounts to an
advisory opinion. 65 So, while we acknowledge that addressing the subject matter jurisdiction
question would be useful as a practical matter, we shouldn't do so if there is no actual controversy
remaining between the parties. As we explain next, there is not.
B. This Appeal is Moot
This Court has adopted the Article III case-or-controversy requirements, which include
mootness. 66 The inquiry about mootness is straightforward. As we've held, "the Court has an
independent duty to ensure that a case or controversy still exists. If an appellant receives the benefit
or relief sought before the Court reaches a decision, the case becomes moot and the appeal must
be dismissed."67
Recall that the Board's March 24, 2020, letter rejected appellant's January 17, 2020, NOD
as untimely.68 Appellant appealed that determination to the Court, meaning that the dispute—the
controversy—between the parties focused on the timeliness of appellant's January 17, 2020, NOD.
That controversy was resolved in May 2020 when the Board sent appellant a letter in which it
acknowledged that appellant's January 17, 2020, NOD was, in fact, timely. 69 The Board also
informed appellant that his appeal had been placed on the AMA evidence submission docket and
he had 90 days from the Board's receipt of his VA Form 10182 to submit new evidence, a period
that was later amended to allow appellant the full 90 days within which to submit evidence.70 The
Board's May 2020 actions afforded appellant all the relief the Court could order in this appeal.
During panel oral argument in this matter, the Secretary stated that appellant "has received a
remedy here that puts him in the place where he would [have been] had we treated his [VA Form]
63
Id.
64
Id. (quoting Princeton Univ. v. Schmid, 455 U.S. 100, 103 (1982) (citations omitted)).
65
See id.
66
Mokal v. Derwinski, 1 Vet.App. 12, 15 (1990).
67
Philbrook, 32 Vet.App. at 345 (citation omitted); see Monk v. Wilkie, 32 Vet.App. 87, 97 (2019) (en banc order),
aff'd in part, dismissed in part sub nom. Monk v. Tran, 843 F. App'x 275 (Fed. Cir. 2021); Godsey v. Wilkie,
31 Vet.App. 207, 218 (2019) (per curiam order); Thomas v. Brown, 9 Vet.App. 269, 270 (1996) (per curiam order);
Mokal, 1 Vet.App. at 15.
68
See Secretary's July 1, 2020, Mot. to Dismiss at Ex. A.
69
See Appellant's June 2, 2020, Solze Notice at Ex. A (May 2020 Board Letter). In the next section of this order, we
explain why it is appropriate for us to consider the Board's actions in May 2020 (and thereafter).
70
See Appellant's June 2, 2020, Solze Notice at Ex. B (May 2020 Board Letter); Secretary's August 31, 2020, Resp.
at Ex. A (Aug. 2020 Board Letter).
9
10182 as timely initially, even the docketing position at the Board."71 And in a June 2, 2023, filing
to the Court, the Secretary submitted a declaration from a Deputy Vice Chairman of the Board,
confirming that appellant's appeal "was received by the Board on January 17, 2020, and was
docketed based on that date."72 Finally, during full Court oral argument, the Secretary reiterated
and confirmed that appellant's appeal was pending before the Board in docket order based on the
January 17, 2020, docketing date.73
To reiterate, appellant sought to have the Court hold that his January 17, 2020, NOD was
timely. The Board's May 2020 actions provided that precise relief. His appeal was assigned the
docket position to which appellant was entitled given the January 17, 2020, filing date and, as
mentioned, the Board on September 7, 2023, acted on his appeal. The only substantive issue on
appeal to the Court—whether appellant's VA Form 10182 was timely—has been fully resolved.
Therefore, we conclude that the appeal should be dismissed as moot. As the Federal Circuit
concluded in Kaw Nation, this appeal has "'lost its character as a present, live controversy of the
kind that must exist if we are to avoid advisory opinions on abstract questions of law.'"74
We are not persuaded by appellant's attempt to avoid the clear mootness of this appeal.75
To begin with, at one point appellant appeared to agree that the case was moot, although
confusingly he also seemed to argue that the Court should issue a precedential opinion nonetheless.
In his September 2020 response to a Court order, appellant stated that "his continued opposition
to the Secretary's motion to dismiss is only limited to the Secretary's position that the Board's
actions do not constitute a decision."76 He further stated that he "is only pursuing this appeal to
that extent and acknowledges that should the Court issue a precedential decision finding the
Board's actions constituted a decision[,] any further proceeding in the case would become moot by
the Court's case or controversy requirement." 77 Appellant did not argue that there was any
controversy remaining about the timeliness of his January 2020 NOD. Instead, appellant argued
that there was a controversy remaining about whether the Board's March 24, 2020, letter was an
appealable decision. But whether the March 2020 letter was a "decision" only matters if there is a
controversy to resolve on the underlying appeal. And there is no longer a controversy because
everyone agrees that appellant's January 17, 2020, NOD was, in fact, timely.
When questioned about the September 2020 response during full Court oral argument,
appellant's counsel seemed to backtrack. For the first time, appellant's counsel suggested that there
is some type of harm to appellant that the Court could redress based on the Board's post-March
2020 actions dealing with appellant's right to submit evidence during the 90-day window the AMA
provides in the evidence submission lane before the Board. Appellant asserted that there is
71
Panel Oral Argument at 30:29-:42.
72
Secretary's June 2, 2023, Resp., Att. at 2.
73
See Full Court Oral Argument at 12:00-13:23; see also id. at 15:54-17:26.
74
Kaw Nation, 405 F.3d at 1323 (quoting Princeton Univ., 455 U.S. at 103 (citations omitted)).
75
We focus here on appellant's arguments about the mootness of his individual claim. We address the potential
implications of the pending RCA on mootness below.
76
Appellant's Sept. 16, 2020, Resp. at 4.
77
Id.
10
"confusion" over whether the evidence he submitted during one of the windows the Board provided
will be considered when his administrative appeal is adjudicated on the merits.78 Although this
supposed "harm" seemed the product of nothing more than speculation, we now know that the
Board in its September 7, 2023, remand did not consider that evidence.79 But there is no confusion.
Regardless whether the Board was correct in how it treated the evidence submitted after the May
2020 letter, appellant still cannot save this appeal, which again pertains solely to the timeliness of
his January 2020 NOD, from being moot. Any harm from appellant's confusion over the correct
90-day window to submit evidence or from the Board's subsequent determination not to consider
the evidence submitted pertains to the merits of his claims, not the timeliness of his appeal, and
remains speculative.
In conclusion, an argument based on purely speculative future harm is not ripe for review.80
The bottom line is that appellant has received all the relief the Court could have awarded if we had
considered his appeal on the merits. That makes this case moot because there is no live controversy
remaining between the parties. And that conclusion does not change based on the specter of some
future "harm."81 Finally, even if all this were not so—that is, that the appeal was moot when the
Board accepted appellant's NOD as timely—the appeal must be moot given that the Board has
actually acted on the issues underlying the administrative matter appellant wanted the Court to
consider.82
C. The Board's Corrective Actions
We have just explained why appellant's individual appeal is moot. But there is an
antecedent question we must explore: may we consider what the Board did after appellant filed
his NOA commencing this appeal? Appellant argues that we may not consider those actions
because the filing of his NOA deprived the Board of the power to act as it did.83 In appellant's
view, all the Board's post-NOA actions are void and we must proceed as if they did not exist.84
This argument requires us to consider one of the earliest precedents from our Court, Cerullo v.
Derwinski.85
In Cerullo, the Secretary sought to dismiss an appeal after the Board Chairman sua sponte
ordered reconsideration of a Board decision that the appellants had already appealed (by timely
78
See Full Court Oral Argument at 1:04:00-:10:30.
79
See Secretary's September 11, 2023, Solze Notice at Ex. A (remanding all appellant's claims due to a pre-decisional
duty-to-assist error and ordering additional development).
80
See Texas v. United States, 523 U.S. 296, 300 (1998) ("A claim is not ripe for adjudication if it rests upon 'contingent
future events that may not occur as anticipated, or indeed may not occur at all.'" (quoting Thomas v. Union Carbide
Agric. Prods. Co., 473 U.S. 568, 580-81 (1985) (internal quotations omitted))).
81
See Polovick v. Nicholson, 24 Vet.App. 257, 258 (2006) (per curiam order) (holding that the Court will not address
hypothetical situations because they are not ripe).
82
See Secretary's September 11, 2023, Solze Notice at Ex. A.
83
See Full Court Oral Argument at 1:16:04-:17:40.
84
See id.
85
1 Vet.App. at 195.
11
filing an NOA) to this Court.86 In rejecting the Secretary's motion, we held that "any attempt by
the [Board] or the [Board] Chairman to order reconsideration of a [Board] decision after an NOA
has been timely filed with this Court is null and void unless the Court first orders a remand" in
accordance with a certain procedure focused on obtaining the Court's permission.87 The Court was
concerned with VA's "unrestricted ability" to "delay the progression of a particular claimant's case
if it were advantageous to the agency."88 As we commented, "[t]he Secretary's position would give
[VA] the power to defeat meaningful judicial review and thereby subvert the intention of Congress
in enacting the Veterans' Judicial Review Act."89
For at least two reasons, it's not surprising that the Cerullo Court ruled as it did. First, the
decision came in the earliest moments of judicial review of VA actions, a time when the Court was
particularly concerned with the institutional goal of establishing its authority as an independent
judicial body. And second, Cerullo also recognized a general, largely unremarkable, principle in
federal appellate practice, that "[o]nce an appellate body takes jurisdiction over a claim, the lower
tribunal may not consider the same issues."90
But Cerullo is unlike the situation we confront today. We begin with the obvious point that
the context is different in important respects. First, in Cerullo the Board Chairman sua sponte
ordered reconsideration of the Board decisions at issue, whereas here, the Board, through letters
signed by the Deputy Vice Chairman, recognized a distinct clear error. Moreover, in Cerullo the
Court could not know whether the Board Chairman's reconsideration would resolve the
controversy in a way that was favorable to appellants, but here, we know that the Board corrected
its clear error and afforded appellant all the relief that the Court could have provided in a contested
litigation. In addition, in Cerullo, the Court was concerned with finality and, ultimately, VA
frustrating our review by making a case non-final via reconsideration without actually resolving
the issue on appeal. Here, the Board did not attempt to modify, vacate, rescind, or alter the March
2020 letter in any way. Instead, the Board issued additional letters to correct its mistake, leaving
the March 2020 letter intact for whatever that may be worth. In other words, if we assume that the
March 2020 letter is a final Board decision, the Board's subsequent actions did not render that
assumed decision non-final.91
86
In Cerullo, the Court consolidated the appeals of six appellants: Henry B. Carter, David A. Cerullo, Edward M.
Farmer, Jr., Ralph Meister, Harold E. St. Cyr, and Robert E. VanDee. 1 Vet.App. at 196.
87
Id. The Court in Cerullo recognized that administrative action could serve as a way to resolve a case quickly and
adopted a procedure where, after an NOA has been filed, the Secretary can seek leave from the Court to confess errors
or to obtain alternative joint resolution or perhaps even to correct errors. Id. at 200-01.
88
Id. at 199.
89
Id. at 198.
90
Id. at 197. We have consistently recognized this basic point of appellate procedure. See, e.g., Monk, 32 Vet.App. at
94 ("The Supreme Court's [caselaw] reflects the principle that a case should not be in two places at once with respect
to the same issue."); Wachter v. Brown, 7 Vet.App. 396, 397 (1995) (per curiam order) ("A party cannot be in 'two
places at the same time.'" (quoting Bellsouth Corp. v. F.C.C., 17 F.3d 1487, 1489 (D.C. Cir. 1994))).
91
We stress again that we are only assuming that the March 2020 letter constitutes a Board "decision" over which we
would have subject matter jurisdiction. Therefore, it follows that we also only assume that the Board's letters in May
2020 have some sort of legal effect, that is, beyond mooting the controversy before us by providing appellant all the
relief he sought in this appeal.
12
Perhaps if these differences were all there was, Cerullo would stand as the impediment
appellant argues it is. But there is a more fundamental distinction between Cerullo and appellant's
case that ultimately carries the day. As we have explained, what the Board did through its May
2020 letters to appellant is to fully resolve the controversy between the parties. In other words, the
overall controversy in this case centers on the Board's acceptance of appellant's NOD as timely.
Now that the Board has done that very thing—accepted appellant's NOD as timely—there is
simply no controversy left for the Court to review. The Court could do no more than what the
Board has already done. We are not at liberty to ignore the reality that there is no dispute to which
we can legitimately apply judicial power to resolve. Courts are undoubtedly powerful entities in
our constitutional structure. But that power is constrained by the requirement that there be a live
controversy between adversary parties.92 So, the situation we confront today is not so much about
Cerullo's unremarkable proposition that a case can't be in two places at once. Rather, it is about
the fundamental need for there to be an actual controversy for the Court to resolve. Here, because
the Board acted to resolve the controversy, all that is left are abstract questions untethered to a live,
concrete dispute for which the Court could provide relief.
The principle Cerullo stands for, about a case not being in two places at the same time and
the distinct requirement that there remain a live case or controversy for a court to resolve at all
times during a case,93 is one that other courts have recognized.94 An excellent example of this
important distinction comes from the Seventh Circuit's decision in Doctors Nursing &
Rehabilitation Center v. Sebelius.95 In Doctors Nursing, a nursing home sued the Secretary of
Health and Human Services in district court, after exhausting its administrative remedies, alleging
underpayment for certain services. While the agency appeal was before the federal court, the
agency decided to reopen the administrative proceedings because it found that "the nursing home
was entitled to additional process."96 To be clear, the agency took action to reconsider the nursing
home's claims without first seeking permission from the court. Before agency reconsideration was
completed and before the parties knew whether the nursing home would obtain the relief it sought
in the district court, the agency filed a motion to dismiss, alleging that the district court lacked
subject matter jurisdiction because there was no longer a final administrative decision for the court
to review.97 The district court dismissed the matter and the nursing home appealed to the Seventh
Circuit arguing "that the agency may not divest the courts of jurisdiction simply by unilaterally
92
See, e.g., Quirin v. Shinseki, 22 Vet.App. 390, 395 (2009) ("[T]he Court will not ordinarily consider additional
allegations of error that have been rendered moot . . . or that would require the Court to issue an advisory opinion.");
see also Kaw Nation, 405 F.3d at 1323 (declining to address the jurisdictional question raised "in light of the
undisputed fact that the underlying . . . claim [was] moot, and the case ha[d] 'lost its character as a present, live
controversy of the kind that must exist if we are to avoid advisory opinions on abstract questions of law'" (quoting
Princeton Univ., 455 U.S. at 103 (citations omitted))).
93
See United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1537 (2018) ("A case that becomes moot at any point during
the proceedings is 'no longer a "Case" or "Controversy" for purposes of Article III,' and is outside the jurisdiction of
the federal courts." (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013))).
94
See, e.g., Drs. Nursing & Rehab. Ctr. v. Sebelius, 613 F.3d 672 (7th Cir. 2010); Kramer v. Gates, 481 F.3d 788
(D.C. Cir. 2007); Potter v. Hughes, 546 F.3d 1051 (9th Cir. 2008).
95
613 F.3d at 672.
96
Id. at 675.
97
Id.
13
reopening its proceeding after the lawsuit was filed."98 The Seventh Circuit agreed with the nursing
home in that respect, holding that under the relevant statute, "the agency may not divest the federal
courts of jurisdiction by unilaterally reopening its administrative proceedings." 99 The court
contrasted the case from one of its earlier decisions, Gao v. Gonzales,100 in which the petitioner
appealed an agency's refusal to reopen his case but while the appeal was before the court, the
agency sua sponte reopened the petitioner's case. The court in Gao concluded that it lacked
jurisdiction to consider the matter under these factual circumstances because there was no more
relief that it could have awarded the petitioner.101 In other words, the agency in Gao resolved the
only live controversy before the court—the reopening of the petitioner's case.
Writing for the Seventh Circuit in Doctors Nursing, Judge Manion carefully explained the
distinction between the principle of appellate procedure that filing an appeal with a court prevents
an agency from acting (the same principle Cerullo has come to stand for) and the separate
requirement that there remain a live case or controversy between the parties. 102 The Seventh
Circuit stated that the established rule providing that "when one tribunal properly takes a case on
appeal, the inferior tribunal [(like an agency)] transfers authority over the case,"103 does not control
when "there was no more relief that the court could have granted once the agency itself decided to
give petitioner the very thing he was asking of the court."104 And so, the issue in Doctors Nursing
implicated what we think of as the Cerullo rule while the agency action in Gao really was about
mootness. Simply put, mootness matters despite the distinct rule that we associate with Cerullo.
As we alluded to earlier, the Seventh Circuit is not an outlier among federal circuit courts
in recognizing the distinction we highlight today. It simply is not a novel concept.105 And while
we have addressed Cerullo-related issues over the years in precedential decisions,106 as has the
Federal Circuit,107 none of those cases involved situations in which an agency provided complete
98
Id. at 675-76.
99
Id. at 677.
100
464 F.3d 728, 729 (7th Cir. 2006).
101
Id. at 729-30; see Drs. Nursing, 613 F.3d at 678 (distinguishing Gao, 464 F.3d 728).
102
Drs. Nursing, 613 F.3d at 678.
103
Id. at 677 (citing Gao, 464 F.3d at 729).
104
Id. at 678.
105
See supra note 94.
106
See, e.g., Encarnacion v. McDonough, 36 Vet.App. 194, 202 (2023); Young v. Shinseki, 25 Vet.App. 201, 204
(2012) (en banc order) (per curiam); Lauigan v. Brown, 5 Vet.App. 358, 359 (1993) (per curiam order).
107
See Zenith Elecs. Corp. v. United States, 884 F.2d 556, 561 (Fed. Cir. 1989). Our dissenting colleagues insist that
our discussion of Seventh Circuit cases is unnecessary as the Federal Circuit in Zenith has said all that we need to
hear—that once a matter is before a court for review, an agency must first seek permission from that reviewing court
before making any corrective actions, even those that are clerical in nature. Id. While we acknowledge that in Lauigan,
we adopted the Federal Circuit's reasoning in Zenith to conclude that the Board cannot "correct a minor, non-
substantive, error in its decision, after appellant has filed an NOA with the Court," Lauigan, 5 Vet.App. at 359, neither
Zenith nor Lauigan addressed the situation we have here today—the effect of agency corrective action that provides
complete relief to an appellant, leaving the reviewing court nothing that it could do. In other words, neither Zenith nor
Lauigan considered a situation in which the agency's actions mooted the case or controversy at issue.
14
relief to an appellant. But the Court did rely on this distinction in a single judge order issued by
Judge Pietsch.108 Specifically, Judge Pietsch dismissed an appeal as moot because there was no
longer a live case or controversy after the Board took corrective action and placed appellant's
appeal on its docket.109 Judge Pietsch explained that the Board's action provided appellant with all
of the relief that he sought and "it is now impossible for the Court to grant 'any effectual relief
what[so]ever' . . . in the event that he prevails in his appeal."110 That is precisely the issue we face
today. While we recognize that this order is nonprecedential and, even if it were not, would not
bind the en banc Court in any event, we find its reasoning highly persuasive and have adopted it
here.
We conclude that the matter before us today is best analyzed as a mootness case at bottom.
Just to briefly reiterate the facts: the Board refused to docket appellant's appeal because it thought
it was untimely; appellant appealed to this Court only seeking to have his appeal properly docketed
at the Board; soon after he filed his NOA the Board took corrective actions and docketed the appeal
to the position appellant was entitled to given the January 17, 2020, filing date; and the Board
acted on the appellant's appeal. So, "there [is] no more relief that the court could . . . [grant because]
the agency itself decided to give [appellant] the very thing he was asking of the court."111 And
while we agree that the Board erred when it failed to seek permission to take corrective action
from the Court as Cerullo contemplates, we will not disturb the Board's actions when the Board's
failure to follow the procedure announced in Cerullo was not prejudicial because it afforded an
appellant with all the relief he could have obtained from the Court.112
We emphasize that Cerullo remains good law and continues to serve a critical role in our
appellate procedure—to prevent the Board from interfering with our jurisdiction. Nothing in this
order should be read as undermining that important, indeed bedrock, institutional principle. And
we also reiterate that, even when the goal is to award an appellant with all the relief he or she could
obtain before the Court, the Board (likely acting though the VA General Counsel) should seek the
Court's permission as Cerullo requires. However, the Court cannot ignore the distinct legal
requirement that there must always be a live controversy between the parties for the Court to
maintain jurisdiction.113 Therefore, we hold that if the Board acts on a matter that has already been
108
See Perciavalle v. McDonough, No. 22-0425, 2022 WL 3753249 (Vet. App. Aug. 30, 2022).
109
Id. For completeness sake, we note that appellant filed a motion for reconsideration in this appeal that is being held
in abeyance for a decision in Kernz.
110
Id. at *5 (quoting Philbrook, 32 Vet.App. at 345).
111
Drs. Nursing, 613 F.3d at 678; see Full Court Oral Argument at 1:08:28-:09:20.
112
See, e.g., Anchor Line Ltd. v. Fed. Maritime Comm'n, 299 F.2d 124, 125 (D.C. Cir. 1962) ("It is true that when an
agency seeks to reconsider its action, it should move the court to remand or to hold the case in abeyance pending
reconsideration by the agency. We do not condone the failure to follow that procedure. But since this failure was not
prejudicial in the circumstances of the present case, we do not disturb the Commission's action in reopening the
proceedings."); Encarnacion, 36 Vet.App. at 216-19 (Falvey, J., dissenting) (maintaining that Cerullo did not apply
because the Court lacked jurisdiction over the Board decision the chairman sought to reconsider and that reading
Cerullo "as prohibiting the agency from acting on any issue that may relate to any issue before the Court is too broad
and legally incorrect"). But see Encarnacion, 36 Vet.App. at 202 (deeming a Board finding that a purported NOD
constituted a motion for reconsideration was "of no legal consequence" given the appeal pending at the Court, but
explaining that the Board was "now permitted" to make the same determination).
113
See Sanchez-Gomez, 138 S. Ct. at 1537; see also Chafin v. Chafin, 568 U.S. 165, 172 (2013) ("'As long as the
15
appealed to this Court such that the claimant obtains all the relief he or she could receive from the
Court, there is no longer a live case or controversy for the Court to resolve. And when that is the
situation, the Court must dismiss the appeal as moot.114
We recognize that our dissenting colleagues have a fundamentally different conception of
this case. We respect their sincerely held views. However, our dissenting colleagues are simply
wrong when they argue that our decision endorses agency interference with judicial review and
infringes upon a veteran's right to "a full and meaningful opportunity to be heard on all issues that
have been properly appealed to us."115 We have repeatedly stated that Cerullo stands, and we mean
it. And we have recognized that the Board here erred when it failed to seek permission from the
Court before taking its corrective action. At the same time, however, we cannot ignore that there
is no longer a live case or controversy between the parties. So, all we have done is recognize what
amounts to a very specific and narrow exception to the Cerullo principle—that is, if an agency
takes corrective action, even without permission from the reviewing court, and that action provides
an appellant complete relief such that it is impossible for the reviewing court to provide appellant
with anything more, 116 the Court no longer has the power to engage in judicial review. The
hyperbolic suggestion that we have somehow abdicated our responsibility to afford veterans the
judicial review Congress put into place just has no basis in the reality of our decision.
D. The RCA and the Inherently Transitory Exception to Mootness
Although mootness generally bars federal courts from reaching the merits of a case, there
are certain narrow exceptions to that principle. As relevant here, the Supreme Court has recognized
an exception to mootness in situations in which a class representative's personal interest may have
become moot but putative class members have live claims. Courts have referred to this doctrine in
class actions as the "inherently transitory" exception to mootness.117 In discussing this limited
exception to mootness, we explained that "a plaintiff in a civil action who brings a purported class
action presents two separate issues for judicial resolution: (1) 'the claim on the merits' and (2) 'the
claim that [the plaintiff] is entitled to represent [as] a class.'" 118 Stated differently, "a class
parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.'" (quoting Knox
v. Serv. Emps. Int'l. Union, 567 U.S. 298, 307-08 (2012))); Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 72
(2013) ("If an intervening circumstance deprives the plaintiff of a 'personal stake in the outcome of the lawsuit,' at any
point during litigation, the action can no longer proceed and must be dismissed as moot." (quoting Lewis v. Cont'l
Bank Corp., 494 U.S. 472, 477-78 (1990))).
114
We don't believe our holding today is in conflict with the Court's recent decision in Encarnacion. See 36 Vet.App.
at 194. However, to the extent that any part of Encarnacion does conflict with our decision today, it is hereby
overruled.
115
Post at 23 (Bartley, C.J., dissenting); see post at 23-28 (Jaquith, J., dissenting).
116
This includes consideration of alternative paths, like a class action, that could prevent a case or controversy from
becoming moot. As we explain in Section D below, appellant's case became moot well before a class action was likely
to happen.
117
Freund, 35 Vet.App. at 484.
118
Id. (quoting Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1089 (9th Cir. 2011) (alterations in original)).
16
representative may have [his or] her claim become moot, but the claim concerning the class may
remain" a live controversy.119
We have considered the inherently transitory exception to mootness in several opinions
under our relatively new class action authority. 120 In Freund, we explained that an inherently
transitory claim is one that is "unavoidably time-sensitive" and "acutely susceptible to mootness"
because a "trial court will not have enough time to rule on a motion for class certification before
the proposed representative's individual interest expires."121 And in Godsey, we explained that the
inherently transitory exception to mootness could possibly allow us to reach the merits of a petition
on a class basis if we could certify a class.122 In other words, if a class is not appropriate, an
exception to mootness based on the existence of a class is irrelevant.
So, we know that the pendency of a class action request can, under certain circumstances,
allow a court to consider the merits of a case despite the mootness of the individual class
representative's claim. Colloquially speaking, the inherently transitory exception can prevent a
case from dying due to mootness. The problem appellant has in terms of invoking the exception
here is that at the time he sought class certification by filing the RCA this appeal was already moot.
So, he essentially asks us to allow the exception to revive a case that is already dead. The exception
can't do that.
In May 2020, the Board informed appellant that his appeal had been placed on the Board's
docket as if his NOD had been deemed timely filed on January 17, 2020. 123 It was not until
February 5, 2021, that appellant requested class certification—nearly 9 months after the Board's
May 2020 letter providing appellant with the relief that we have determined moots the issue on
appeal. The inherently transitory exception is not an option for appellant here because his case
became moot before he filed any request for class certification.124
Our holding that an exception to mootness cannot revive a "dead" case finds support in the
Federal Circuit's recent nonprecedential decision in Dolbin v. McDonough. 125 In Dolbin, the
Federal Circuit addressed our Court's decision denying a petition involving the advancement of
Mr. Dolbin's claims on the Board's docket and dismissal of Mr. Dolbin's class certification motion.
While the matter was pending at the Federal Circuit, the Board issued a decision on Mr. Dolbin's
claims (the same claims he was seeking to advance on the Board's docket before our Court). The
Federal Circuit explained that the appeal was moot because there was no additional relief it could
119
Id.
120
See id.; Godsey, 31 Vet.App. at 219.
121
Freund, 35 Vet.App. at 484 (internal citations omitted).
122
Godsey, 31 Vet.App. at 219.
123
The Secretary confirmed that the Board docketed appellant's appeal as if it had originally been accepted as timely
filed on January 17, 2020. Secretary's June 2, 2023, Notice to the Court, Att. at 1.
124
Our dissenting colleague Judge Jaquith focuses in large part on the interests of veterans other than Mr. Kernz. He
insists in his separate dissent that we address "the mess the Board created" and rule on the merits question and
subsequent request for class certification. Post at 27. However, to do what Judge Jaquith suggests would require us to
issue an impermissible advisory opinion because there is no live case or controversy at issue here. See Quirin,
22 Vet.App. at 395.
125
No. 21-2373, 2023 WL 2981495 (Fed. Cir. 2023) (nonprecedential).
17
provide to Mr. Dolbin.126 And with regard to the motion for class certification, the Federal Circuit
determined that, because the appeal was moot, the pending motion for class certification is also
moot and no exceptions to mootness applied.127 The Federal Circuit relied on Supreme Court
precedent to support its decision, primarily Genesis Healthcare Corp. v. Symczyk,128 which held
that typically a class action is moot if the named plaintiff's claim becomes moot before class
certification. 129 So it is possible to read Dolbin as indicating that, even if a request for class
certification is pending when the individual claim becomes moot, there is no exception to mootness
so long as the class request has not yet been acted on. We need not go so far here because, as we
explained, appellant filed his RCA long after his individual claim was moot. We leave for another
day any further exploration of what the rule the Federal Circuit discussed in Dolbin might mean.
IV. CONCLUSION
For the reasons we have explained, we conclude that this appeal is moot because there is
no longer a live case or controversy between the parties and that there are no exceptions to
mootness based on appellant's pending RCA that would support the Court proceeding to address
the merits. Therefore, we must dismiss this appeal and deny the RCA. To be clear, because this
appeal is moot, we do not reach the question whether the Board's March 24, 2020, letter is a
"decision" in terms of our subject matter jurisdiction. We express no view on that jurisdictional
question.
Upon consideration of the foregoing, it is
ORDERED that appellant's February 5, 2021, Request for Class Certification is denied. It
is further
ORDERED that the Secretary's July 1, 2020, Opposed Motion to Dismiss is granted. And
it is further
ORDERED that this appeal is DISMISSED as moot.
DATED: October 4, 2023
TOTH, Judge, concurring: I join the majority opinion because it correctly explains why the
Board's action—correcting a clear procedural error in a manner wholly favorable to the appellant—
moots this appeal and why Cerullo doesn't render this action ineffectual. Ante at 11–12. I write
separately to emphasize that, to moot a case, the Board must first have authority to take remedial
action, which it did in these novel circumstances.
126
Id. at *2.
127
Id. at *2-3.
128
569 U.S. at 73-74.
129
Dolbin, 2023 WL 2981495, at *3.
18
Coupled with mootness, the decisive factor in the cases discussed by the majority is
whether Congress authorized agencies to take the remedial action they did. Doctors Nursing
declined to dismiss for mootness because the relevant statute limited HHS's ability to reopen and
revise prior determinations after a petition for judicial review had been filed. 613 F.3d at 677. Gao,
by contrast, dismissed a petition as moot because the relevant statute allowed the Board of
Immigration Appeals to reopen proceedings even after judicial review of the underlying removal
order had been sought. 464 F.3d 729–30.
Congress has specified the remedial actions the Board may and may not take, and those
rules weren't transgressed here. The Board didn't readjudicate a previously disallowed "claim"
based on the same factual record, 38 U.S.C. § 7104(b), or reconsider a "decision" without
following prescribed procedures, 38 U.S.C. § 7103(a). Rather, it "recognized" and corrected the
"distinct clear error" it made calculating the timeliness of the appellant's NOD. Ante at 11. There
is at least arguable authority for this type of action under section 7103(c), which permits the Board
to "correct an obvious error in the record, without regard to whether there has been a motion or
order for reconsideration." And, indeed, if an appeal to the Court hadn't been filed so quickly, this
sort of calculation correction would simply be seen as the sort of unremarkable exercise of agency
authority it really is. (The Board's subsection (c) authority clearly doesn't permit actions that
amount to claim readjudications or decision reconsiderations.)
Thus, the Board can take remedial action on a matter when its jurisdiction to do so is
underwritten by statute. And because it had the authority to take remedial action here to correct
obvious error, I agree fully with the majority that the case is moot.
FALVEY, Judge, concurring: I fully agree with the majority—this case is moot. I write
separately to emphasize just how moot it is. Within a month of filing his NOA with this Court, Mr.
Kernz had all the relief he wanted—VA had reactivated his improperly closed appeal. More to the
point, he had all the relief that we could give him. Since then, his VA claim has progressed even
further.
The Board recently remanded Mr. Kernz's claims to obtain missing records and a VA
medical opinion.130 That is relief we could not provide. Even accepting that the March 2020 VA
letter is a decision, our jurisdiction would be limited to reviewing and providing relief based on
that letter.131 In short, the best we could do was order the Board to docket Mr. Kernz's appeal.
Because the Board already did that, we would have had to order the Board to undo it only to then
re-docket the appeal. In any case, Mr. Kernz would have waited for the Board to review the merits
of his appeal with the only benefit of Court intervention being delay stemming from our order and
perhaps a thoroughly chastised Board.
If that looks like a silly flex of judicial power, what would happen now could be
characterized only as absurd. Mr. Kernz is now back before the agency of original jurisdiction
130
See Secretary's September 11, 2023, Solze Notice at Ex. A.
131
See Furtick v. McDonough, 34 Vet.App. 293, 299 (2021) (explaining that this Court's jurisdiction is limited to
issues decided by the Board).
19
(AOJ) where VA is working to develop his claim. But the relief we could give him remains the
same—we could only order VA to docket his appeal.132 But to get there, we would have to order
VA to drag his claim back to the Board; shred the remand and associated development; dismiss
his appeal and re-docket it; and have Mr. Kernz patiently wait (again) until the Board reviewed his
case (again).133 Whatever Congress expected when it created this Court, it can't have wanted that.
And whatever reasonable disagreement we may have about the limits of our jurisdiction or the
propriety of the Board's actions, "holding [Mr. Kernz] up to flex our jurisdictional muscles and
prove an unnecessary point to the Board is not doing the right thing in the right way for the right
reason."134
BARTLEY, Chief Judge, with whom GREENBERG and JAQUITH, Judges, join,
dissenting: This case is not about mootness—it is about the Board overstepping its jurisdiction and
acting in utter disregard of a veteran's exercise of his right to judicial review. By focusing on events
that occurred after Mr. Kernz filed his Notice of Appeal (NOA) with this Court, the majority
overlooks that the Board was divested of jurisdiction at that point and had no authority to continue
processing the appealed issue. Absent permission from the Court, which the Secretary admits was
not sought, the Board was simply unable to provide Mr. Kernz with any relief after he filed his
NOA. Contrary to the majority's conclusion, no amount of hindsight or good intentions can cure
that lack of jurisdiction. To hold otherwise would be to allow the Board to unilaterally deprive
veterans of their duly exercised right to judicial review and interfere with the Court's independent
consideration of those appeals. We dissent from today's decision because the Board's unauthorized
post-NOA actions in this case are a legal nullity, incapable of mooting Mr. Kernz's appeal.
Thirty-two years ago in one of our earliest precedential decisions, Cerullo v. Derwinski,
1 Vet.App. 195 (1991), we addressed the legal effect of filing an NOA to the Court. We
emphatically rejected the concept of concurrent or dual plenary jurisdiction between the Board and
the Court. Id. at 197. Relying on Supreme Court precedent, we held that when an NOA is filed,
plenary jurisdiction over the appealed issue transfers from the Board to the Court, and the Board
is thereafter prohibited from acting on that issue without the Court's permission. Id. at 196-97
(quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (per curiam) ("The filing
of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court
of appeals and divests the district court of its control over those aspects of the case involved in the
132
I recognize that Mr. Kernz told us he was confused about whether the Board would consider evidence and argument
he submitted. For better or for worse, that confusion has now been resolved—the Board found that, because Mr. Kernz
did not resubmit any evidence or argument he wanted considered after the August 2020 corrective action, it would not
consider his earlier submissions. See Secretary's September 11, 2023, Solze Notice at Ex. A. The wisdom or the legality
of the Board's finding is not before us. We don't review remands. Gardner-Dickson v. Wilkie, 33 Vet.App. 50, 56
(2020), aff'd without opinion sub nom. Gardner-Dickson v. McDonough, 2021 WL 5144367 (Fed. Cir. Nov. 5, 2011).
Nor has Mr. Kernz tried to appeal the Board's remand to our Court. Even if this were something for us to consider in
this case, it is hard to ignore that, despite refusing to include the evidence in the record before it, the Board remanded
Mr. Kernz’s claim back to the AOJ—where the duty to assist exists and the record is wide open. See 38 U.S.C. §
5103A(e)(1); see also 38 C.F.R. § 3.2502 (2023). Thus, I don’t think VA can duck giving that evidence due
consideration even if Mr. Kernz did not submit it when asked by the Board.
133
The only way this could get worse is if this appeal were further delayed before our Court or the Federal Circuit
and, at some point, VA was ordered to undo medical exams or perhaps a grant of benefits.
134
Encarnacion v. McDonough, 36 Vet.App. 194, 219 (2023) (Falvey, J., dissenting).
20
appeal.")), 201. The filing of an appeal to this Court marks the end of the agency's ability to
consider the appealed issue, regardless of the Board's intentions. Cerullo, 1 Vet.App. at 197 ("Once
an appellate body takes jurisdiction over a claim, the lower tribunal may not consider the same
issues.").
This unqualified transfer-of-jurisdiction rule is not a mere technicality. It is necessary to
prevent agency interference with a veteran's statutory right to judicial review—it is necessary to
ensure the Court's independent exercise of review authority—and, it is necessary to "prevent the
procedural chaos that would result if concurrent jurisdiction were permitted." In re Combined
Metals Reduction Co., 557 F.2d 179, 200 (9th Cir. 1977). We need look no further than Mr. Kernz's
case for proof of procedural chaos.
While the Court expended judicial time and resources on Mr. Kernz's case, the Board took
action after action on the very same issue that was before the Court. And it is unsurprising that Mr.
Kernz was confused about his legal obligations when "the Board did not attempt to modify, vacate,
rescind, or alter the March 2020 [untimeliness] letter in any way," ante at 12, when the Secretary
concedes that the Board is prohibited from acting on an issue after the filing of an NOA as to a
final Board decision, En Banc Oral Argument at 18:34-:54, and when, as the record reflects, while
this appeal was pending the Board took two additional actions that provided Mr. Kernz with
different and conflicting evidence submission guidelines, see Appellant's June 2, 2020, Solze
Notice at Ex. B; Secretary's August 31, 2020, Resp. at 2, Ex. A. See Encarnacion, 36 Vet.App. at
202 ("Action taken by the Secretary on an issue that is pending before this Court risks confusion
as to governing procedures and deadlines.").
The majority calls Cerullo's transfer-of-jurisdiction rule a "general, largely unremarkable,
principle in federal appellate practice," ante at 12, and insists that their decision should not be read
as overruling Cerullo in any way, ante at 15-16. But by ignoring Cerullo's core holding that the
filing of an NOA divests the Board of jurisdiction over the appealed issue, the majority undermines
the very "bedrock, institutional principle" that Cerullo stands for, ante at 15. In fact, the majority
goes one step further, holding that the Board can strip the Court of "the power to engage in judicial
review" by continuing to process an issue that has been appealed to the Court. Ante 16. At no point,
however, does the majority provide support for this usurpation of the Court's power or even
identify a legal authority that would give the Board jurisdiction to continue action on Mr. Kernz's
appeal after he filed his NOA.135 Their failure to do so nullifies the "fundamental distinction" that
they draw between this case and Cerullo—that the Board in this case, unlike the Board Chairman
in Cerullo, "fully resolve[d] the controversy between the parties." Ante at 13. If the Board did not
have jurisdiction over the appealed issue, it did not have legal authority to provide the veteran
relief. And so, a live case or controversy still remains.
The Board's desire to correct an error cannot expand its jurisdiction beyond that set by
Congress, nor can it empower the Board to intrude on the Court's jurisdiction in the name of
135
In his separate statement, Judge Toth suggests that 38 U.S.C. § 7103(c) might fill this gap, ante at 19, but the Court
has previously concluded otherwise and the majority does not appear to overrule that precedent. See Smith v. Brown,
8 Vet.App. 546, 551-52 (1996) ("An appellant cannot be deprived of his or her right to appeal to this Court as a result
of the Chairman's action to reconsider a prior decision, or as a result of action by the [Board] to correct an obvious
error in the record, under 38 U.S.C. § 7103." (emphasis added)).
21
providing quicker administrative relief. See Bates v. Nicholson, 398 F.3d 1355, 1359 (Fed. Cir.
2005) (noting that 38 U.S.C. § 7104(a) defines and "limits" the Board's jurisdiction). Fortunately
for veterans and the Board, Cerullo allows the Secretary to file a joint motion for remand or request
the Court's permission to resolve an appeal if the Board or Board Chairman wishes to correct an
error after an NOA has been filed. 1 Vet.App. at 200-01. This process respects the congressionally
defined jurisdictional boundaries between the Board and the Court, is consistent with federal
appellate practice in general, and maintains an avenue for the Secretary to administratively resolve
cases with the Court's permission when it would be more efficient to do so. See id. at 196-201.
Yet the Secretary did not ask permission in this case. If he had, the majority would not need
to contort the law or overrule three decades of precedent. But in the absence of such a request, we
must conclude that the Board's post-NOA actions were a nullity, as they were taken without
jurisdiction or any legal authority. See id. at 196, 201. The majority's post-hoc rationalization
cannot bestow jurisdiction on the Board where Congress has not done so. See Bates, 398 F.3d at
1359.
The Seventh Circuit cases cited by the majority support us. In Gao v. Gonzales, the Seventh
Circuit concluded that an agency's post-appeal actions mooted an appeal only because the statute
authorizing judicial review expressly provided that "a single [] matter may be before the court and
the agency for decision simultaneously." 464 F.3d 728, 730 (7th Cir. 2006) (citing Stone v. INS,
514 U.S. 386 (1995)). Contrast that with Doctors Nursing & Rehabilitation Center v. Sebelius,
where the Seventh Circuit held that a different agency's post-appeal actions did not moot the appeal
because there was no concurrent jurisdiction statute that authorized the agency's actions—in fact,
there was a statute that specifically forbade such actions. 613 F.3d 672, 681 (7th Cir. 2010). In
explaining these different outcomes, the Seventh Circuit stated that "Gao did not establish a
general rule that agencies may divest courts of jurisdiction by reopening final decisions," as "Gao
was careful to justify its holding based on the particulars of the [] context"—i.e., the statutory
scheme that "empowered [the agency] to consider, and decide, the very same question that was
pending before the court." Id. at 678. So, contrary to the majority's assertion, Doctors Nursing does
not direct that the ordinary transfer-of-jurisdiction rule "does not control when 'there was no more
relief that the court could have granted once the agency itself decided to give petitioner the very
thing he was asking of the court.'" Ante at 14 (quoting Drs. Nursing, 613 F.3d at 678). Instead,
Doctors Nursing and Gao reinforce the principles underlying Cerullo, that the filing of an NOA
divests an agency of jurisdiction over the appealed issue and that post-appeal agency action taken
without jurisdiction will not moot that appeal.
Regardless, we needn't rely on Seventh Circuit cases to justify our disagreement with the
majority. The U.S. Court of Appeals for the Federal Circuit has held that agencies are required to
seek permission from a reviewing court to correct even minor, clerical errors once a court's
"exclusive jurisdiction has been invoked." Zenith Elecs. Corp. v. United States, 884 F.2d 556, 561
(Fed. Cir. 1989). This is so, the Federal Circuit reasoned, because "the effect of any correction of
clerical error is to change either the decision under review or the factual basis upon which that
decision was based." Id. This Court in Lauigan v. Brown relied on Zenith Electronics to extend
Cerullo beyond Board Chairman reconsideration, holding that, after an NOA has been filed, the
Secretary must seek the Court's permission to correct even a "minor, non-substantive" Board error.
5 Vet.App. 358, 359 (1993). Obviously, improper dismissal of an appeal on jurisdictional grounds,
22
such as that involved in Mr. Kernz's case, is more than a minor, non-substantive error. We can
think of no principled reason to require the Secretary to seek the Court's permission to correct a
clerical Board error but not a substantive Board error. That result would be particularly hard to
justify in Mr. Kernz's case, as the Board's post-NOA actions included an outright reversal of its
untimeliness determination and a reinstatement of a previously terminated appeal.
In the end, this case turns on the effect of filing an NOA. For the past 32 years, that filing
has been an event of jurisdictional significance that terminated the Board's ability to act on an
appealed issue. But, apparently, not anymore. In fact, the majority extends an open invitation to
the Board, without so much as a by-your-leave from the Court, to meddle in the Court's docket.
The majority's decision ties the Board's and the Court's jurisdiction to the eventual outcome of the
Board's concurrent, and completely unauthorized, consideration of an issue pending before the
Court. If the Board purports to give a claimant the relief sought on appeal, the majority will
overlook the Board's lack of jurisdiction and authority to provide that relief in the first place. But
jurisdiction cannot depend on events that have not occurred—indeed, may never occur—at the
time that an NOA is filed. Jurisdiction is simply not that fickle. See Cerullo, 1 Vet.App. at 197
("Jurisdiction is not something that 'can float in the air' to be seized by any tribunal at any time."
(quoting Cochran v. Birkel, 651 F.2d 1219, 1222 (6th Cir. 1981))); see also Buffington v.
McDonough, 143 S. Ct. 14, 15 (2022) (Gorsuch, J., dissenting from denial of cert. pet.) (agreeing
with Judge Greenberg's criticism of the majority's "'rubber stamping of the Government's attempt
to misuse its authority'").
Cerullo's unqualified transfer-of-jurisdiction rule is clear, predictable, and fair. It
safeguards a claimant's statutory right to judicial review free of agency interference, gives full
meaning and respect to a claimant's decision to have the Court—not VA—decide an appealed
issue, avoids the unnecessary confusion of concurrent adjudication, and allows the agency to
request the Court's permission to administratively resolve an appeal. Veterans and their families
deserve to have their day in court, and we owe them no less than a full and meaningful opportunity
to be heard on all issues that have been properly appealed to us. Because we are unwilling to
sacrifice these ideals for administrative efficiency, we must respectfully dissent from today's
decision.
JAQUITH, Judge, dissenting: I wholeheartedly join in Chief Judge Bartley's dissent. I
write separately to emphasize my disagreement with the majority's unsolicited retrocession of
independent judicial review and address the effect of the Court's inaction in this case. The
significance of the majority's disregard of the clear mandate of Cerullo is best illustrated by the
warning at the center of that foundational decision: allowing the Board to strip the Court of
jurisdiction by taking unilateral action on a case already on appeal to the Court gives the Board
"the power to defeat meaningful judicial review and thereby subvert the intention of Congress in
enacting the Veterans' Judicial Review Act." Cerullo v. Derwinski, 1 Vet.App. 195, 198 (1991).
The Court's charge is to provide veterans with the independent judicial review "'necessary in order
to provide such claimants with fundamental justice.'" Id. (quoting S. REP. 100-418, at 49 (1988)).
When the Court allows systemic ease and expedience to trump the veteran's right to independent
judicial review, the Court's authority, utility, and credibility are imperiled.
23
The majority does not decide the parties' actual dispute. On March 24, 2020, the Board
notified the veteran that his appeal of a regional office's decision was untimely and the Board
would not process it. The Board advised the veteran that if he disagreed with the Board's
determination he could request an extension of time and try to demonstrate good cause for his
untimeliness. The problem was that the veteran's Board appeal was not untimely, it was timely. So
he promptly appealed the Board's erroneous contrary decision to the Court.
The Secretary reacted to the veteran's appeal to the Court by contacting the Board, which
then figured out that its March 2020 letter was wrong. On May 4, 2020, the day the Board decision
was due to be filed with the Court, the Secretary asked the Court for more time to find the decision,
saying that he "had located a Board notification letter with [that] date . . . [but had] not located a
Board decision with that date." On May 7, 2020, the Board notified the veteran that its March 2020
letter telling him that his appeal was ineligible for review was erroneous and it was docketing his
Board appeal. At no time before May 7, 2020, or even after that date, did the Secretary advise the
Court that the Board would acknowledge and correct its error and file a motion for remand for the
Board to do so, as Cerullo requires.
Instead of seeking permission, or even after-the-fact forgiveness, the Secretary has
steadfastly pressed the misguided argument, beginning with his July 1, 2020, motion to dismiss,
that "[t]he Court cannot exercise jurisdiction over the Board’s March 24, 2020, notice letter
because it is not a decision of the Board." Secretary's July 1, 2020, Mot. to Dismiss at 2. Contrary
to the majority's assertion, ante at 6, the Secretary did not alternatively argue that the veteran's
appeal was moot because his appeal had been docketed. Full Court Oral Argument (FCOA) at
15:04-:54. The Secretary's August 31, 2020, submission (upon which the majority relies), asserts
that the Board had cured its error(s), but never mentions mootness. When the Secretary does first
mention mootness, in his May 17, 2021, response to the veteran's request for class action, it was
only to state that the request for class action was moot because the March 24 letter was not a
decision of the Board:
The Court should dismiss Appellant’s attempted appeal for lack of subject matter
jurisdiction because the Board’s May 24, 2020, notice letter is not a "decision" of
the Board. And because the Court lacks subject matter jurisdiction over the notice
letter, Appellant’s dependent RCA is moot as every putative class member would
suffer from the same jurisdictional flaw.
Secretary's May 17, 2021, Resp. to the RCA at 11. The Secretary did argue that the Board's
publication of notice and an opportunity for recalculation of timeliness—more on that below—
and the docketing of the veteran's appeal rendered the class action "essentially moot." Appellee's
Resp. to the Court's June 11, 2021, Order at 9. But the Secretary returned to his original position
at the outset of oral argument in June 2023, explaining that
[t]he Secretary maintains his position that the notice letter at issue in this case is not
a final decision of the Board. Because it is not a final decision of the Board, this
Court does not have jurisdiction over this appeal. Because there's no jurisdiction,
the request for class action is moot and we respectfully request that this Court
dismiss the appeal and find the dependent request for class action moot.
24
FCOA at 11:39-12:01; see also FCOA at 15:29-:54 (affirming that the Secretary had argued
mootness only in connection with the request for class action and even then based on his position
that there was no final decision by the Board). Further, the Secretary persistently argued that he
did not think Cerullo applied because the March 24, 2020, notice letter was not a final Board
decision, but agreed that, if it was a final decision and an NOA was filed, the Board "absolutely"
could not divest the Court of jurisdiction by unilaterally reopening its administrative proceedings.
FCOA at 18:35-18:50. The Secretary reassured the Court that "if this was, in our view, a final
Board decision, the Secretary and the Board would have taken no action." FCOA at 18:50-:58.
In short, the Secretary's opposition to the veteran's appeal and VA's disregard of Cerullo
rested entirely on the Secretary's view that the Board's March 24, 2020, letter was not a Board
decision. The majority declines to decide that issue; instead, it takes over the litigation by making
the mootness argument it finds dispositive. Cf. Frantzis v. McDonough, 35 Vet.App. 354, 366
(2022) (declaring that "[c]ourts generally should not advance arguments for represented parties
when such parties have declined to do so themselves" and "courts should not be advocates," and
applying those precepts to forgo consideration of fair process). Neither the Secretary's argument
nor the majority's argument is persuasive; both arguments leave veterans in the lurch. The Board's
March 24, 2020, letter was a Board decision and the Board's May 2020 action to reverse that
decision was ineffective because jurisdiction had passed to the Court when the veteran filed his
NOA in April 2020.
The Secretary creatively argued that the Board’s March 24, 2020, letter "was a prudent and
informative notice provided to Appellant, and his attorney, to assist in navigating the different
options available to him as it pertained to the timeliness of his appeal." Secretary's Resp. to Court's
July 31, 2020 Order at 1, n. 2. Most of the Secretary's 2022 oral argument contended that the
Board's March 2020 letter was only the first step in a two-step process for addressing veterans
appeals, the first of which constituted a preliminary determination by "an administrative
professional" and the second, if sought by the veteran, involved a final decision by a Board
member. See Panel Oral Argument, available at https://www.youtube.com/watch?v=
dqBHabRI3Uw; Secretary's Resp. to RCA, Ex. J, Declaration of Board Vice-Chairman Arnold, ¶
20. The idea was that this two-step process afforded the veteran the right to an administrative
appeal of an adverse timeliness determination. Accepting the Secretary's argument as an
explanation of what the Board intended, (1) it is not at all clear that such a process had even been
established in March 2020, and, crucially, (2) the Board did not tell Mr. Kernz of any such internal
process on March 24, 2020, only that his appeal was untimely and would not be considered. When
a veteran who has been denied benefits by the RO appeals to the Board and the Board responds
that it isn't going to process the appeal, the veteran reasonably reads that as saying he or she isn't
getting those benefits.136 By erroneously concluding that the veteran's appeal was untimely and
telling him that his claim was therefore ineligible for Board review, the Board communicated
finality—that agency consideration of his claim had ended with the RO's denial of benefits. The
Board left Mr. Kernz in the worst possible situation for a veteran: his case was rejected and not
even docketed, so he had no opportunity to get benefits and no one even knew that he had been
cast into the abyss.
136
A letter advising the veteran that his appeal was untimely and the Board would not consider it, without any mention
of an opportunity to challenge that determination, screams final decision, not "prudent and informative notice"—
especially when the letter comes from the Vice-Chairman of the Board.
25
A full year after learning that it had fumbled Mr. Kernz's Board appeal, the Board began
telling veterans to whom it provided notice of untimeliness that they could challenge that
determination within the Board and obtain a final Board decision. Secretary's Notice of
Clarification at 1. But there were and are untold others who, like Mr. Kernz, had already
erroneously been given an apparently final answer of "no" without notice of any right to appeal.
Untold because the Board says it is too difficult to determine how many veterans were victimized
by the Board's bad calendar counting. In several filings, the Board has explained that it is unable
to determine or estimate the number of notice letters issued that may have mistakenly rejected
timely appeals, blaming limitations in its electronic systems. See, e.g., Secretary's Resp. to Court's
June 11, 2021, Order at 4. With access only to general VA data and the direct experience of his
lawyer's firm, the veteran has estimated the number of claimants whose Board appeals were
erroneously rejected to be from 1,512 to 2,075. See Request for Class Certification and Class
Action at 5-6; Appellant's Reply to the Secretary's Resp. to the RCA at 13. The Board's effort to
ascertain the expanse of its error apparently has been limited to publishing a notice, on August 23,
2021, that "a limited number" of veterans who filed Board appeal forms between February 19,
2019, and March 23, 2021, may have had their forms "mistakenly rejected for being untimely,"
and giving such veterans until March 1, 2022, to send a letter to the Board asking it to "recalculate
timeliness." Secretary's Resp. to Court's June 11, 2021, Order at 3; see Secretary's Resp. to the
RCA, Ex. J, ¶ 3-22. At the March 2022 panel oral argument, the Secretary said the Board had
received 15 responses and "really only 5 of those were actually purely untimely." Panel Oral
Argument at 18:39-18:58. The Board recently highlighted that it had received no additional
responses to the notice since March 2022 and detailed the Board's efforts "to reach as many
[v]eterans as possible." Secretary's Notice in Resp. to the Court's Jan. 20, 2023, Order, Affidavit
of Deputy Vice-Chairman Santoro, ¶ 8-9. But the effort necessary to actually identify the veterans
whose appeals the Board erroneously extinguished is, the Court has repeatedly been told, too hard.
Instead, the Court was informed that "[t]he Board has confirmed that—notwithstanding the
March 1, 2022 deadline in its August 2021 Notice . . . it will continue to honor future recalculation
requests for timeliness notice letters issued between February 19, 2019 and March 23, 2021."
Secretary's Notice of Clarification and Information at 2. It is hardly surprising that the Board has
not received any further responses than the 15 reported in March 2022 since the notice of error
told those disenfranchised that any such responses would be pointless. Moreover, the Secretary
has not offered any basis for the Board setting a deadline for veterans to attempt to revive timely
Board appeals the Board erroneously extinguished.
After oral argument, the Secretary informed the Court that the Board has decided the
veteran's appeal, remanding it for further development.137 And the harm the veteran feared138 has
come to pass: the Board declined to consider favorable evidence he submitted just 20 days after
the Board notified him that it had erred in deeming his appeal untimely and refusing to process it,
137
See Secretary's September 11, 2023, Solze Notice at Ex. A, and Secretary's September 14, 2023, Solze Notice at
Ex. A.
138
See, e.g., FCOA at 1:04:39-:06:39 (arguing that the Board's unilateral action created significant confusion by
creating three separate 90-day evidentiary windows and noting that the veteran submitted his evidence in the window
following the Board's May 2020 notice).
26
but did not tell him that any submission of evidence was already too late because the evidentiary
window had expired on April 16, 2020.139 Following the rules prescribed by Cerullo should have
ensured a clearer, better outcome.140
The majority walks away from the mess the Board created, leaves victimized veterans
adrift, and embraces but eviscerates Cerullo by clearly overruling the specific holding of that
bedrock, foundational case: "[W]hen an appeal is pending before this Court no action may be taken
affecting any case except by order of this Court upon terms specified by it." 1 Vet.App. at 201.
The majority casts aside a recent reaffirmation of Cerullo, too, endorsing (ante at 14, n. 106) the
dissent in Encarnacion v. McDonough, where the Court expressly held that the Board's unilateral
action on an issue that had been appealed to the Court violated Cerullo and "was of no legal
consequence." 36 Vet.App. 194, 202 (2023). And the Court's decisions in Smith and Lauigan are
implicitly nullified by the majority as well. See Smith v. Brown, 8 Vet.App. 546, 551-52 (1996)
(en banc) ("An appellant cannot be deprived of his or her right to appeal to this Court as a result
of the Chairman's action to reconsider a prior decision, or as a result of action by the [Board] to
correct an obvious error in the record, under 38 U.S.C. § 7103."); Lauigan v. Brown, 5 Vet.App.
358, 359 (1993) (per curiam order) ("[A]fter the timely filing of a notice of appeal, agency
corrective action [of even a minor, obvious clerical error or oversight] could be made only with
the prior approval of the [C]ourt."). Now this Court's jurisdiction is in the Board's hands, fettered
only by a suggestion that the Board "should seek the Court's permission as Cerullo requires," ante
at 15—or, more accurately, required until today.
The majority invokes Doctors Nursing & Rehabilitation Center as justification for this new
misadventure but fails to account for that case's holding that "the agency may not, during the
pendency of judicial review, reopen and revise a final decision without permission from the court,"
lest the agency possess "the unreviewable power to manipulate federal jurisdiction." Drs. Nursing
& Rehab. Ctr. v. Sebelius, 613 F.3d 672, 680 (7th Cir. 2010). The majority empowers the Board
to divest the Court of jurisdiction—and thereby control our docket—by manufacturing mootness
through unilateral action whenever they fear an adverse precedential decision and quietly defers
to the Board's assertion that is too hard to determine which veterans were harmed by its error or
even estimate how many. What is unquantifiable but undeniable is the corrosive effect of looking
the other way and shrugging when the Board—the Agency's steward of the rule of law—violates
a settled jurisdictional rule in a case before the Court. The Court was created to fulfill the VJRA’s
promise to provide veterans "'the basic protection of the independent judicial branch.'" Prewitt v.
McDonough, 36 Vet.App. 1, 22-23 (2022) (Jaquith, J., concurring) (quoting 134 CONG. REC.
31,224); see Cerullo, 1 Vet.App. at 198. This is not about flexing our jurisdictional muscles, ante
at 20, it is about preserving a foundational principle so judicial review is provided as promised.
Our responsibility to do the right thing in the right way for the right reason141 cannot be
reconciled with overriding, purportedly for his own good, the veteran's persistent request for a
139
See Secretary's September 11, 2023, and September 14, 2023, Solze Notices at Ex. A at 2.
140
Cerullo requires the Secretary to file with the Court a motion for remand for the Board to correct its error, and
"[t]he motion must clearly articulate the reasons for the request and the nature of the proceedings proposed by the
Secretary," with the veteran afforded an opportunity to respond. 1 Vet.App. at 200.
141
See Encarnacion, 36 Vet.App. at 208 (Jaquith, J., concurring); ante at 20.
27
judicial decision, disregarding the Secretary's understanding of the dictates of Cerullo, and
retroactively ceding our jurisdiction to the Board. The end does not justify the means. Adherence
to Cerullo and the slight inconvenience its jurisdictional bright line requires—seeking permission
and remand to take a Court case back for Board action—doesn't seem too much to ask to maintain
fair and orderly independent judicial review. I respectfully dissent.
28