James M. Kernz v. Douglas A. Collins, Secretary of Veterans Affairs

The Department of Veterans Affairs is the agency responsible for administering the benefits Congress has allocated to veterans in exchange for their service to this country. If an initial VA adjudicator denies a veteran’s benefits claim, the veteran may appeal to the agency’s appellate tribunal, the Board of Veterans’ Appeals. A veteran may then appeal to the U.S. Court of Appeals for Veterans Claims (also called the Veterans Court). It is beyond dispute that, when a veteran appeals to the Veterans Court, the Board loses jurisdiction over the underlying claim. Petitioner appealed to the Veterans Court from an obviously incorrect Board decision that deemed his intra-agency benefits appeal untimely. But before the Veterans Court acted, the Board purported to reopen Petitioner’s case sua sponte. Solely because of this unauthorized action, a divided en banc Veterans Court dismissed Petitioner’s pending appeal as moot. The Federal Circuit likewise dismissed Petitioner’s further appeal, holding that there was no live case or controversy because the Board had given Petitioner the reopening he sought—even though the Board lacked the power to take this action, and even though the Board’s unilateral actions placed Petitioner in a worse position. The question presented is: May an agency defeat the existence of a case or controversy in a reviewing court by taking unilateral, ultra vires action after the agency has lost jurisdiction following an appeal to the court?