Kernz: The Veteran's Court Eviscerates the Concept of Jurisdiction

Kernz v. McDonough, Case Number 20-2365, decided October 4, 2023 involves whether a Board letter constituted an appealable decision over which the Court had jurisdiction. 

The veteran filed an NOD from a 2016 decision.  A December 2019 SOC continued the denial.  The veteran then opted into the AMA in January 2020 with a VA Form 10182.  The Board informed him in a letter that his 10182 was not timely.  The veteran filed an appeal with the CAVC, which led to the Board to send the veteran a letter saying the prior rejection as untimely was an error and his appeal was being docketed.  However, the veteran argued under Cerullo, the Board could not take away jurisdiction from the Court once the Court had jurisdiction.  The Secretary filed a motion to dismiss and the veteran sought class certification.

The en banc court in a split decision dismissed the appeal as moot and denied the request for class certification. 

The Court found the case was moot because he received the relief he sought (docketing of his appeal).  The Court declined to decide whether the letter was an appealable decision.  The Court declined to apply Cerullo noting the Board erred when it failed to seek permission to take corrective action because the action was prejudicial as it gave the veteran all that he sought. 

Dissents by Chief Judge Bartley and Judge Greenberg and Jaquith focused the case away from mootness but the Board overstepping its jurisdiction and acting in disregard of the veteran’s exercise of his right to judicial review. 

This decision illustrates the depths the VA will go to avoid a class action.  It is clear that the Board for some time was improperly rejecting valid notices of disagreements and the veteran sought to serve as a class action to force the Board to address that practice.  The VA disregarded the Court and simply mooted the case by taking an action that at least three judges agree the Board did not have authority to undertake.  The result is that now the Court has given permission to the VA to solve any hard appeal by simply going back to the Board to “fix” the error.  Whether the Court realizes it or not, it is working to make itself meaningless.  I can only hope this case is appealed to the Federal Circuit and that they understand the VA cannot be trusted to unilaterally decide when the Courts have jurisdiction over a case.

The case was heard by an en banc court and the opinion written by Judge Allen.  Judge Jaquith’s dissent, which would have granted class action is powerful and should serve as a template for appealing to the Federal Circuit.

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