[00:00:00] Speaker 04:
So let's turn to number 241171, Kearns versus Collins.

[00:00:06] Speaker 04:
Okay, Mr. Luck.

[00:00:08] Speaker 01:
Good morning, Your Honors.

[00:00:09] Speaker 01:
You may please the court.

[00:00:10] Speaker 01:
Adam Luck, appearing on behalf of Appellant James M. Kearns.

[00:00:14] Speaker 04:
OK.

[00:00:14] Speaker 04:
So this case, the underlying controversy isn't moved.

[00:00:18] Speaker 04:
It's still going on, right?

[00:00:20] Speaker 04:
That is correct, Your Honor.

[00:00:21] Speaker 04:
And the kidney disability, or whatever you want to call it, is still being litigated, and relief wasn't granted on that, right?

[00:00:29] Speaker 01:
That is correct, Your Honor.

[00:00:30] Speaker 04:
OK.

[00:00:31] Speaker 04:
There's an argument here, the same as that was made in Percival, that there was no jurisdiction for the board or the RO to grant relief while the case was pending in the Veterans Court, right?

[00:00:50] Speaker 04:
Yes, Your Honor.

[00:00:51] Speaker 04:
And so the government argues that

[00:00:57] Speaker 04:
for a variety of reasons that the action by the board of the RO was proper.

[00:01:06] Speaker 04:
That's correct, Your Honor.

[00:01:09] Speaker 04:
That seems to be a difficult sell in terms of the cases, some of which are not cited in the briefs where courts of appeals have said, even though you got what you wanted,

[00:01:25] Speaker 04:
If the court action is null and void as a result of lack of jurisdiction, there has to be some action.

[00:01:34] Speaker 04:
But it's not action to decide the underlying issue here.

[00:01:39] Speaker 04:
It's an action to remand to the board to allow them to do what they have already done, isn't it?

[00:01:47] Speaker 01:
It's not, Your Honor, and here's why.

[00:01:49] Speaker 02:
So in Mr. Kearns' case, Mr. Kearns' case... So you want all that stuff that the RO has done, including some of the grants of compensation wiped out?

[00:01:59] Speaker 01:
I think so, Your Honor.

[00:02:00] Speaker 02:
I think what needs to happen here is... Let me ask you the same question I asked in the prior case.

[00:02:06] Speaker 02:
What was the decision of the board that you filed an appeal from, and what relief at the time were you seeking?

[00:02:13] Speaker 01:
Mr. Kearns appealed the May 2020 decision of the board that rejected his NOD as untimely, and he sought to have his appeal docketed and the appropriate evidentiary window established.

[00:02:27] Speaker 01:
So under the AMA, the appellant has the right to control the evidentiary window under 38 USC 7113.

[00:02:34] Speaker 01:
He did not get that right.

[00:02:35] Speaker 01:
His statutory right was violated when it rejected his NOD.

[00:02:38] Speaker 04:
But the RRO considered the evidence that you wanted to present, right?

[00:02:42] Speaker 01:
That's a different situation, Your Honor.

[00:02:43] Speaker 01:
And here's where the confusion is lying.

[00:02:45] Speaker 02:
No, no, no.

[00:02:46] Speaker 02:
I want to stop there.

[00:02:47] Speaker 02:
You got at least part of that relief because they did change their mind and conclude that the appeal of that decision was timely.

[00:02:56] Speaker 02:
And they documented it, right?

[00:02:57] Speaker 01:
Partial relief, yes, Your Honor.

[00:02:58] Speaker 04:
And they considered all of the evidence that you wanted them to consider, right?

[00:03:02] Speaker 04:
They did not, Your Honor.

[00:03:03] Speaker 04:
How do we know that?

[00:03:05] Speaker 04:
The government says the opposite.

[00:03:06] Speaker 04:
How do we know who's right about that?

[00:03:08] Speaker 01:
And again, I'm happy to clear up this confusion about the evidentiary record and what was or was not considered.

[00:03:13] Speaker 02:
But even that, who?

[00:03:16] Speaker 02:
I mean, you're saying that you wanted them to reset the evidentiary window.

[00:03:20] Speaker 02:
But the only decision you were challenging was the untimeliness.

[00:03:24] Speaker 02:
The Veterans Court was under no obligation when it ordered the board to accept this as timely, if that's the relief they got, to say an evidentiary window is X.

[00:03:34] Speaker 02:
Well, those two things are married, Your Honor, because that's the lane that he chose.

[00:03:38] Speaker 02:
But they didn't have to do it that way.

[00:03:41] Speaker 02:
The board could have, the Veterans Court could have said, accept this.

[00:03:45] Speaker 02:
This is a decision.

[00:03:47] Speaker 02:
The appeal was timely.

[00:03:49] Speaker 02:
Go forth and adjudicate it.

[00:03:51] Speaker 02:
And then any dispute about the actual evidence relied on is part of the adjudication of the merits, not the timeliness.

[00:03:59] Speaker 02:
And that is still a live claim.

[00:04:01] Speaker 02:
Right?

[00:04:02] Speaker 02:
Is there anything today that would prevent you from, if you think evidence has not been properly looked at in the context of the adjudication of the merits of your client's claim, from challenging that at the board and the Veterans Court and ultimately us?

[00:04:17] Speaker 01:
Here is why that's an issue, Your Honor.

[00:04:19] Speaker 01:
No.

[00:04:19] Speaker 02:
Answer that question.

[00:04:20] Speaker 02:
Is there anything from that RO decision, which I assume is on appeal to the board now, that would prevent you from challenging what evidence was considered?

[00:04:30] Speaker 01:
You can appeal that decision to the board.

[00:04:32] Speaker 01:
We have tried to appeal that decision to the board.

[00:04:34] Speaker 01:
That appeal has been rejected because the regional office said there hasn't been a final decision yet.

[00:04:39] Speaker 01:
So this is the first case.

[00:04:41] Speaker 02:
Yes, but that also can be adjudicated.

[00:04:43] Speaker 02:
But here is why.

[00:04:45] Speaker 02:
I don't understand why you want us to wipe out all those proceedings and have your client start over and put him four or five or six more years down the road from getting any sort of compensation.

[00:04:55] Speaker 01:
Here is why the evidentiary record is so important and why there was a mistake made in this case is because

[00:05:00] Speaker 01:
When Mr. Kearns appealed and he selected the 90-day evidentiary submission lane, he got to choose the evidence of record at the time of the decision plus evidence submitted within his evidentiary window.

[00:05:12] Speaker 01:
What he did not want is any subsequent evidence, any evidence that came in after, which evidence has came in after this case.

[00:05:19] Speaker 03:
It's been unfavorable evidence.

[00:05:21] Speaker 03:
Did the government always have the right to do that?

[00:05:24] Speaker 01:
To do what, Your Honor?

[00:05:25] Speaker 03:
To add additional evidence to the record.

[00:05:28] Speaker 01:
No, Your Honor.

[00:05:28] Speaker 01:
Under the evidentiary submission lane, they are bound by the evidentiary parameters established by US 38 USC 7113.

[00:05:36] Speaker 03:
So if that was a violation, you still have a right to appeal that violation, don't you?

[00:05:41] Speaker 01:
Well, an appeal to the board based on the evidentiary record now has additional evidence in it.

[00:05:46] Speaker 02:
Yes, but if it's improperly there because they didn't follow the 90-day rule, then you make that argument.

[00:05:50] Speaker 01:
And the veteran support could have corrected that on remand.

[00:05:54] Speaker 02:
Whenever they didn't have to, though, I don't think they would.

[00:05:57] Speaker 02:
Your appeal wasn't about the evidentiary window.

[00:05:59] Speaker 02:
They didn't say anything about the evidentiary window.

[00:06:01] Speaker 02:
They said your appeal was untimely.

[00:06:03] Speaker 02:
The Veterans Court would have said, yeah, we agree.

[00:06:07] Speaker 02:
It's untimely.

[00:06:07] Speaker 02:
It's timely.

[00:06:08] Speaker 02:
Go back and adjudicate it.

[00:06:10] Speaker 01:
That makes sense in a direct review lane where there is no evidentiary parameters established.

[00:06:15] Speaker 01:
But in the 90-day evidentiary lane, those two things are married.

[00:06:18] Speaker 01:
Whenever you select that lane, you select the evidentiary record.

[00:06:21] Speaker 01:
When they placed his appeal back on the docket, there was three evidentiary records that were created.

[00:06:26] Speaker 01:
And the secretary informed him.

[00:06:28] Speaker 02:
Can I ask you a fundamental question?

[00:06:29] Speaker 02:
Do you agree that the Veterans Court can apply a mutinous doctrine?

[00:06:35] Speaker 01:
I agree, as long as it's based on legally valid actions, Your Honor.

[00:06:41] Speaker 02:
I don't know what that means.

[00:06:42] Speaker 01:
Well, that means if the actions were performed without jurisdiction, then they could not be considered.

[00:06:46] Speaker 01:
What about harmless air?

[00:06:47] Speaker 01:
Harmless air, absolutely.

[00:06:48] Speaker 01:
You're on that statutory.

[00:06:49] Speaker 02:
Right.

[00:06:49] Speaker 02:
They have to apply harmless air.

[00:06:50] Speaker 02:
So they said this is moot.

[00:06:52] Speaker 02:
If they had done this as harmless air and said, yeah, there's a violation.

[00:06:55] Speaker 02:
The board shouldn't have done it, but it's harmless.

[00:06:56] Speaker 02:
He got all the relief he was asking.

[00:06:58] Speaker 02:
We could give him on his initial appeal.

[00:07:01] Speaker 02:
Are they permitted to do that?

[00:07:02] Speaker 01:
They were permitted to do that based on legally valid actions.

[00:07:06] Speaker 01:
The board's actions in a way are nobody's.

[00:07:08] Speaker 01:
Wait, stop.

[00:07:09] Speaker 02:
How is harmless error based on legally valid actions?

[00:07:13] Speaker 02:
It assumes a legal error that says it's nonetheless harmless.

[00:07:19] Speaker 01:
That legal error still pertains

[00:07:23] Speaker 01:
because Mr. Kearns was not given all of the relief that he sought from the Veterans Court.

[00:07:29] Speaker 03:
So I read the guys were saying, I'm not sure if I'm persuaded or not, but you're saying he didn't get all the relief that he could have gotten on the appeal that we're looking at.

[00:07:38] Speaker 03:
But if he had, let's just for purposes of this question, concede just for sake of argument that he had gotten all the relief that he sought in the notice of appeal that led to the appeal that we're reviewing.

[00:07:51] Speaker 03:
At that point,

[00:07:53] Speaker 03:
Does the case become moot?

[00:07:55] Speaker 03:
And if it doesn't, why not?

[00:07:57] Speaker 03:
If he's given everything that you asked for in your notice of appeal.

[00:08:03] Speaker 01:
And I think you have to consider harmless error.

[00:08:04] Speaker 01:
And yes, Your Honor.

[00:08:07] Speaker 03:
And even if the board erred, it didn't have authority to do it under your reasoning.

[00:08:14] Speaker 03:
And we know that it did because the veterans court held that it did.

[00:08:16] Speaker 03:
But does this case then, the appeal in front of us today, does it turn on whether we accept your contention

[00:08:23] Speaker 03:
that you did not get everything you sought in your notice of appeal, or does it not turn on that?

[00:08:31] Speaker 01:
Well, that's part of the argument is that he was not given everything.

[00:08:34] Speaker 01:
The other portion of the argument is that he was not given everything.

[00:08:39] Speaker 03:
If I think he was given everything that you asked for, what else do I have to think about in this case?

[00:08:45] Speaker 01:
That the board gave him everything based on erroneous jurisdiction that he did not possess.

[00:08:49] Speaker 03:
But you just told me that mootness and harmless error are fair things that I can consider.

[00:08:55] Speaker 03:
So I would think you would lose if these are my conclusions, wouldn't you?

[00:09:00] Speaker 01:
Well, save the fact that he was not given everything that he was.

[00:09:04] Speaker 04:
Well, that concession is not correct.

[00:09:07] Speaker 04:
In fact, there are, and the problem with the briefing here is that there are slow cases that neither party has considered.

[00:09:14] Speaker 04:
And I'll give you an example.

[00:09:16] Speaker 04:
It's a Padilla case from the Ninth Circuit in 2000, which is 222, Fed 3rd, 1184.

[00:09:22] Speaker 04:
And what happened?

[00:09:23] Speaker 04:
That was a bankruptcy case in which the case was on appeal to the Court of Appeals.

[00:09:32] Speaker 04:
bankruptcy court discharged the debts.

[00:09:35] Speaker 04:
And the court said, no, no, you can't do that, even though that's the ultimate, the total amount of relief sought by the appellant, you can't do that because you didn't have jurisdiction.

[00:09:46] Speaker 04:
The action is null and void and it can't be done.

[00:09:50] Speaker 04:
And that principle, assuming that those cases applied here, would apply to this case as well.

[00:09:57] Speaker 04:
The action

[00:09:58] Speaker 04:
of the RO of the board would be null and void.

[00:10:03] Speaker 04:
The way to cure that, though, is not to decide the appeal on the merits, which is what you want, but rather to authorize the RO and the board to take the action that they have already taken.

[00:10:16] Speaker 04:
It's just a mechanical thing of authorizing the action that's been taken.

[00:10:22] Speaker 04:
So why isn't that what we should do is to say remand

[00:10:27] Speaker 04:
to the board to allow them to take the action that they've already taken.

[00:10:33] Speaker 01:
That is precisely what should happen here and that way Mr. Kearns will get

[00:10:37] Speaker 01:
the decision that he was entitled to based on the evidentiary record he has requested, the underlying decisions that have been made.

[00:10:47] Speaker 02:
Let me ask you this.

[00:10:48] Speaker 02:
If the secretary had come in and said, we've looked at this, the board was wrong, this appeal was a decision, and the appeal was timely, remand to the board to adjudicate.

[00:11:01] Speaker 02:
They could have done that, right?

[00:11:03] Speaker 02:
Yes, sir.

[00:11:04] Speaker 02:
And if the Veterans Court had granted that motion, we wouldn't be here.

[00:11:07] Speaker 01:
That's the procedure.

[00:11:10] Speaker 02:
Right.

[00:11:10] Speaker 02:
Yes, Your Honor.

[00:11:11] Speaker 02:
And the Veterans Court can look at this and say, well, they should have done this, but the board is already doing what we would have been told them to do.

[00:11:19] Speaker 02:
Why isn't that a proper use of the mootness doctrine?

[00:11:24] Speaker 02:
And I understand the argument about the court to court jurisdiction thing, that the underlying court has no jurisdiction.

[00:11:31] Speaker 02:
Does that necessarily apply from an agency to a court?

[00:11:36] Speaker 01:
It does, Your Honor.

[00:11:37] Speaker 01:
The board is just part of the agency.

[00:11:39] Speaker 01:
Let me ask you this.

[00:11:40] Speaker 02:
I'm going to assume you're not familiar with these cases.

[00:11:43] Speaker 02:
But if you are, please feel free.

[00:11:46] Speaker 02:
In the Court of Federal Claims, which we also review, there are bid protests from procurement decisions all the time.

[00:11:52] Speaker 02:
And routinely, when a procurement decision is challenged in, which is an agency-level decision, is challenged in the court of federal claims, the government will unilaterally cancel its award and come into the court and say, this case is moot because that decision no longer exists, dismiss the case.

[00:12:13] Speaker 02:
And they routinely do that.

[00:12:15] Speaker 02:
Why isn't the same principle applicable here that an agency

[00:12:20] Speaker 02:
No doubt, the better course, and I assume the secretary is going to start doing this, is for the secretary to ask permission to do this.

[00:12:27] Speaker 02:
But if they take an action that moots the case, then why isn't the Veterans Court allowed to say, yeah, the case is moot?

[00:12:35] Speaker 01:
Well, A, there's a statute, 38 U.S.C.s, 7252.

[00:12:39] Speaker 01:
A, we've discussed that in briefing.

[00:12:41] Speaker 02:
Harmless error.

[00:12:43] Speaker 02:
Right?

[00:12:43] Speaker 02:
They didn't say it's harmless error, but let's just assume it's harmless error.

[00:12:47] Speaker 01:
Well, it adds the extra step for the court to litigate that.

[00:12:50] Speaker 01:
Whereas the procedure that's in place now.

[00:12:53] Speaker 02:
That's the other side of the coin of mootness.

[00:12:56] Speaker 02:
It's harmless error because you've already gotten the relief you were asking for.

[00:12:59] Speaker 04:
In their view.

[00:13:01] Speaker 04:
In answer to Judge Hughes' question, if you haven't gotten everything you wanted, you're still litigating about the kidney benefit.

[00:13:07] Speaker 04:
Correct, Your Honor.

[00:13:09] Speaker 04:
So I mean, if they granted all the relief that you wanted, it would be like Percival.

[00:13:15] Speaker 04:
There wouldn't be any controversy.

[00:13:16] Speaker 04:
But you still have a controversy.

[00:13:18] Speaker 04:
with the VA because they haven't given you all the relief that you wanted.

[00:13:22] Speaker 01:
Yes, Your Honor.

[00:13:23] Speaker 02:
On the merits, they did give you the relief you're seeking in that initial appeal, which is to have the notice of appeal declared timely and the case adjudicated.

[00:13:33] Speaker 01:
And to be given the proper evidentiary window, we were not given that.

[00:13:36] Speaker 01:
We still have not been given that to this day, Your Honor.

[00:13:38] Speaker 02:
I don't understand how that was part of the first appeal.

[00:13:41] Speaker 02:
Because those two cases are- And also I don't understand how that wouldn't have been resolved

[00:13:45] Speaker 02:
one remand anyway and is still being challenged.

[00:13:49] Speaker 03:
And you still have appellate rights if you're right that the evidentiary window is incorrect.

[00:13:54] Speaker 01:
Because I see, would you like me to answer that question or?

[00:13:58] Speaker 01:
Sure.

[00:14:00] Speaker 01:
I'll save it on rebuttal if that's okay.

[00:14:02] Speaker 04:
Okay.

[00:14:06] Speaker 04:
Mrs. Havessy.

[00:14:10] Speaker 02:
Can you tell me why the secretary didn't do in these cases what it usually does which is to file a

[00:14:16] Speaker 02:
a motion to remand, either a joint motion or a motion just by the secretary.

[00:14:21] Speaker 02:
This seems a little bit unusual.

[00:14:24] Speaker 02:
Why is this happening?

[00:14:25] Speaker 00:
It was a bit of an unusual situation, Your Honor.

[00:14:28] Speaker 00:
It's not a situation where we had what would be a typical board decision, where the board has a written decision and the secretary decides that the decision was problematic.

[00:14:39] Speaker 00:
It requests a remand from the Veterans Court and it goes back to the Veterans Court.

[00:14:43] Speaker 00:
Here, it was sort of an error with the systems within VA that send out these letters and determine whether something's timely or not timely.

[00:14:51] Speaker 00:
A bunch of letters went out, not just to Mr. Kearns, but others, that there were untimely filed appeals that weren't actually untimely.

[00:15:02] Speaker 02:
I understand it's not the typical board decision, but it's still in the board action that somebody in OGC should have looked at and said, oh, these are errors.

[00:15:11] Speaker 02:
We should tell the Veterans Court these are errors and have them send it back.

[00:15:14] Speaker 02:
Procedurally, that's a much more proper way of doing it.

[00:15:18] Speaker 00:
I can't answer specifically why they didn't do it that way in this case.

[00:15:22] Speaker 00:
But as I said, I think it was because it was more of this administrative system error than a legal error or a factual error within the case where there would be.

[00:15:32] Speaker 00:
Well, it's both.

[00:15:32] Speaker 02:
I mean, it's not just the, there is a legal error.

[00:15:36] Speaker 02:
It's just that it's resulting from not a actual reasoned decision.

[00:15:41] Speaker 02:
It just sounds like it was some kind of administrative clerical error.

[00:15:45] Speaker 02:
But it's still a legal error, too.

[00:15:48] Speaker 02:
Whatever the basis for it.

[00:15:50] Speaker 00:
Correct.

[00:15:51] Speaker 00:
I suppose what I meant was more of a clerical error than an error in a lengthy written kind of court decision.

[00:15:57] Speaker 00:
And that's why it was just a correction immediately as soon as the board realized that there was this error, they immediately back into it.

[00:16:06] Speaker 04:
Yeah, but the problem is they didn't have jurisdiction to do it.

[00:16:08] Speaker 04:
And the cases say that if you don't have jurisdiction to do it, what you did is null and void.

[00:16:15] Speaker 04:
And that matters if the case is still going on and there's still a controversy between the parties.

[00:16:21] Speaker 00:
The board was acting as part of VA.

[00:16:24] Speaker 00:
It was not taking back a jurisdiction per se from the Veterans Court.

[00:16:29] Speaker 00:
It was acting as a party to the litigation.

[00:16:32] Speaker 04:
We've held Jackson versus Nicholson that once the appeal was taken that the VA loses jurisdiction to do anything.

[00:16:46] Speaker 00:
And that's consistent with Cerullo, but only in the case when the board is not granting all the relief that is available.

[00:16:58] Speaker 04:
Here, the mootness is inherently... It didn't grant all the relief here.

[00:17:03] Speaker 00:
It did, though.

[00:17:03] Speaker 00:
As Judith Hughes said earlier, what was being sought here was a timeliness decision.

[00:17:09] Speaker 00:
The board dismissed the appeal as untimely.

[00:17:11] Speaker 00:
The issue before the Veterans Court was solely timeliness.

[00:17:15] Speaker 00:
The Veterans Court could not have done anything else.

[00:17:17] Speaker 00:
The Veterans Court could not have ruled on the merits.

[00:17:20] Speaker 04:
The law in the Court of Appeals case is to say you can't do it.

[00:17:24] Speaker 04:
Once the jurisdiction's in the appellate court, the lower tribunal loses jurisdiction.

[00:17:28] Speaker 04:
You can't do anything.

[00:17:30] Speaker 04:
And what it does is null and void.

[00:17:32] Speaker 04:
And that matters if the litigation is still ongoing and the controversy hasn't been resolved.

[00:17:39] Speaker 00:
It does not matter if there's mootness at issue, though, as this court held in carnation.

[00:17:44] Speaker 04:
These groups have rejected a mootness argument under exactly those circumstances.

[00:17:48] Speaker 04:
They said, no, the fact that you got the relief that you wanted doesn't moot the case.

[00:17:52] Speaker 04:
You had no jurisdiction to grant the relief, and you have to get a remand from the appellate court and a redo.

[00:17:59] Speaker 04:
They specifically held that.

[00:18:01] Speaker 04:
And is there any authority to the contrary?

[00:18:03] Speaker 04:
I'm not aware of any.

[00:18:04] Speaker 00:
I'm sorry, what case was that again?

[00:18:06] Speaker 04:
Well, I mean, the difficulty here is in rate Padilla.

[00:18:10] Speaker 04:
But there are others.

[00:18:11] Speaker 04:
There are many cases like this.

[00:18:15] Speaker 03:
Judge, I just cited a Jackson decision from our court, Padilla from the Ninth Circuit.

[00:18:19] Speaker 03:
Are you familiar with these cases?

[00:18:20] Speaker 03:
Are you able to help us on that?

[00:18:23] Speaker 00:
I am not familiar with the Padilla from the Ninth Circuit.

[00:18:26] Speaker 00:
I've probably read the Jackson, but.

[00:18:30] Speaker 04:
The problem with the argument is that neither party cited this line of cases that says the mootness doctrine doesn't apply under these circumstances, because there's no jurisdiction to do anything, and what they did was ineffective and null and void.

[00:18:46] Speaker 00:
But I would say that this court's decision and coronation, from what I understand you're talking about the Padilla case, it sounds like it conflicts with the Padilla case, because in that case, the court determined

[00:18:58] Speaker 00:
that the issue was moot.

[00:19:01] Speaker 00:
It never reached the issue of whether the agency's action was proper or not proper.

[00:19:06] Speaker 00:
It was essentially as though she was saying a harmless error.

[00:19:10] Speaker 04:
Which case is this?

[00:19:12] Speaker 00:
It's just carnation.

[00:19:14] Speaker 00:
Essentially, the court said we can consider any jurisdictional ground that we would like to consider.

[00:19:21] Speaker 00:
And the preference is to consider mootness over something that sort of wades into the merits of the case.

[00:19:29] Speaker 00:
And the court dismissed on mootness grounds.

[00:19:33] Speaker 03:
To accept that argument, though, do we have to accept that the board here basically is acting as a party to the appeal as opposed to an adjudicative body?

[00:19:45] Speaker 00:
Not for that portion of it, not necessarily.

[00:19:50] Speaker 00:
In the Caw Nation case, it was a board within the Department of the Interior that was acting on behalf of the agency.

[00:20:01] Speaker 00:
So I would say it was sort of a similar posture to this case in terms of what the role within the agency was of the entity that made the decision.

[00:20:13] Speaker 03:
But your argument, as I understand it, is basically we should view this case as the secretary conceding and settling the case by giving Mr. Kearns everything that he could have gotten from the Veterans Court.

[00:20:30] Speaker 00:
Yes.

[00:20:30] Speaker 03:
And the reason for that didn't happen.

[00:20:32] Speaker 04:
He hasn't gotten everything he wanted.

[00:20:34] Speaker 00:
He got everything that he wanted from the Veterans Court, which was a timely acceptance of his appeal to the board.

[00:20:42] Speaker 04:
That didn't render the underlying controversy.

[00:20:45] Speaker 04:
Was the underlying controversy before the Veterans Court?

[00:20:48] Speaker 00:
No.

[00:20:49] Speaker 00:
The underlying controversy never reached the Veterans Court.

[00:20:52] Speaker 00:
The only thing before the Veterans Court was the issue of time limits.

[00:20:57] Speaker 03:
What about this evidentiary window argument?

[00:20:59] Speaker 03:
Mr. Kearns really emphasizes that he didn't get the evidentiary window he wanted.

[00:21:05] Speaker 03:
Why is that not a problem for the government?

[00:21:08] Speaker 00:
Again, that issue was not before the Veterans Court.

[00:21:11] Speaker 00:
The only issue that was before the Veterans Court was timeliness.

[00:21:15] Speaker 00:
The Veterans Court decided the timeliness issue when the remand then went back to the board and the board considered his claims on the merits and the board explicitly said, we're not considering the evidence you submitted because it was outside the window.

[00:21:30] Speaker 00:
At that point, he could have appealed the evidentiary issue.

[00:21:34] Speaker 00:
Potentially, there could be a Williams issue there.

[00:21:37] Speaker 00:
But even had there been a Williams issue and it went back to the RO, he could have appealed the RO decision saying you didn't consider the proper evidence under 7113, the argument that he's making now, that only the evidence submitted

[00:21:55] Speaker 00:
at the board level should have been considered and that the RO shouldn't have gone and done additional evidentiary development.

[00:22:01] Speaker 00:
That is an argument that still remained open to him under the procedure as it played out in this case.

[00:22:07] Speaker 04:
Where is this, what is it, Carnation case?

[00:22:10] Speaker 04:
What is the name of the case?

[00:22:12] Speaker 04:
Did you refer to it?

[00:22:13] Speaker 04:
Carnation, K-A-W.

[00:22:14] Speaker 00:
Carnation, K-A-W.

[00:22:16] Speaker 04:
Where is it cited?

[00:22:35] Speaker 00:
I believe it's cited multiple places.

[00:22:42] Speaker 00:
It has a PASME site in the table of contents, so we talk about it throughout our brief.

[00:22:54] Speaker 03:
I think you agree with this, but the majority at the Veterans Court said that the board here erred when it failed to seek permission from the Veterans Court before taking its corrective action.

[00:23:10] Speaker 03:
You agree that was error, correct?

[00:23:14] Speaker 00:
No, we don't agree that it was necessarily error.

[00:23:17] Speaker 00:
We don't think the court means to reach that question, because if it was error, it was harm was error.

[00:23:22] Speaker 00:
But we don't necessarily agree that it was error, because the board acting as part of VA could have taken action without raising these sort of dual jurisdiction issues.

[00:23:35] Speaker 03:
Could it only take action that gave Mr. Curran 100% of what he was seeking in this appeal?

[00:23:44] Speaker 00:
Well, if this court chooses to follow the Veterans Court Cerullo decision, essentially yes, because that ties the mootness into the board's ability to take action.

[00:23:58] Speaker 00:
The Veterans Court in Cerullo, of course, said that when the board tried to reconsider its decision without any... Is Cerullo the case you were talking about with me?

[00:24:09] Speaker 00:
Uh, no.

[00:24:10] Speaker 00:
That's, um, Caw Nation is the case from this one.

[00:24:13] Speaker 04:
Where's that case?

[00:24:15] Speaker 04:
I don't see it at the table of contents.

[00:24:17] Speaker 04:
It's K.A.W.

[00:24:19] Speaker 04:
K.A.W.

[00:24:21] Speaker 00:
K.A.W.

[00:24:21] Speaker 00:
Space Nation.

[00:24:23] Speaker 00:
The bottom of page five.

[00:24:26] Speaker 04:
Caw Nation.

[00:24:27] Speaker 04:
Caw Nation, yeah.

[00:24:29] Speaker 04:
That doesn't help you.

[00:24:30] Speaker 00:
It's on page two of the table of authority.

[00:24:35] Speaker 03:
I have another question about Cerullo, then.

[00:24:37] Speaker 03:
Yes.

[00:24:38] Speaker 03:
Because the dissenters say, we can think of no principal reason to require the secretary to seek the court's permission to correct a clerical board error, which I think is the holding in Cerullo, but not a substantive board error, which is at least how the dissenters viewed what happened here.

[00:24:59] Speaker 03:
Can you help me come up with a principled reason for why

[00:25:03] Speaker 03:
We could affirm here, but yet Cerullo is also correct.

[00:25:08] Speaker 00:
The distinction in Cerullo wasn't substantive versus non-substantive.

[00:25:15] Speaker 00:
It was full relief versus not full relief.

[00:25:19] Speaker 00:
And that's clear from the Veterans Court decision in Laugen, which then took Cerullo and applied it in the context of a clerical error.

[00:25:28] Speaker 00:
So we're not trying to make a clerical non-clerical error distinction here for this purpose.

[00:25:35] Speaker 00:
It's really about full relief versus not full relief.

[00:25:39] Speaker 00:
In Cerullo, there was no full relief.

[00:25:42] Speaker 00:
In Lough again, there was no full relief because it was simply an addition of a missing page concerning the board's ultimate decision.

[00:26:00] Speaker 00:
I just wanted to make one point that Mr. Kearns has raised about the exclusive jurisdiction in 7252.

[00:26:07] Speaker 00:
He appears to rely on that to say that the Veterans Court has exclusive jurisdiction as opposed to

[00:26:16] Speaker 00:
The board, our reading of 7252 is that the Veterans Court has exclusive jurisdiction as opposed to other courts.

[00:26:25] Speaker 00:
You cannot rank an appeal from the board to a district court or to another court of appeals.

[00:26:30] Speaker 00:
It's only the Veterans Court that can hear that exclusive jurisdiction.

[00:26:35] Speaker 00:
nothing from 70 to 52.

[00:26:37] Speaker 00:
That supports this argument about dual jurisdiction.

[00:26:40] Speaker 03:
Let me ask you one more question.

[00:26:42] Speaker 03:
Let's accept that the cases Judge Dyke has mentioned say, of course, what he says.

[00:26:48] Speaker 03:
Would you have any concern with that principle being applied to the Veterans Court system, where it seems like the veteran

[00:26:58] Speaker 03:
because the system, understandably, is meant to aid the veteran, it seems like the veteran's claim is not necessarily ever done on the merits.

[00:27:09] Speaker 03:
If we were to say that the underlying, that this appeal doesn't become moot until the veteran gets everything he wants or his case is 100% over, could that actually be cognizably imposed on the veteran's system?

[00:27:26] Speaker 00:
I don't think it could because of the way that these claims are often processed.

[00:27:30] Speaker 00:
There's often multiple claims for service connection, for different disabilities, for different reasons.

[00:27:37] Speaker 00:
A lot of these claims proceed kind of staggered through the system.

[00:27:42] Speaker 00:
So it would be very difficult as a practical matter to just keep all these cases open and all the various claims open and not ever consider any issue moot

[00:27:54] Speaker 00:
until, quote, everything was done.

[00:27:57] Speaker 00:
And then there's also, you know, cue and new and material evidence.

[00:28:01] Speaker 00:
I mean, these things could just never, ever, ever become moot because there is always the potential to challenge a VA decision.

[00:28:15] Speaker 00:
There are no further questions.

[00:28:16] Speaker 04:
We request that this... Just to be clear, coordination is like Percival, right?

[00:28:21] Speaker 04:
That's a situation where the money had been paid.

[00:28:24] Speaker 00:
It is a situation where the parties had agreed that there was no... The money was actually paid.

[00:28:28] Speaker 04:
Yes.

[00:28:28] Speaker 04:
There wasn't a continuing controversy, right?

[00:28:32] Speaker 00:
Right.

[00:28:32] Speaker 00:
Our position is that this is not, but yes, that one was not.

[00:28:36] Speaker 04:
Okay.

[00:28:37] Speaker 04:
Thank you.

[00:28:37] Speaker 00:
Thank you.

[00:28:48] Speaker 01:
I wanted to make one very quick point about Cerullo.

[00:28:51] Speaker 01:
In Cerullo, the veteran only sought reconsideration of the board's decision.

[00:28:56] Speaker 01:
And the board said, we're going to reconsider your decision.

[00:28:58] Speaker 01:
That was the only relief that he sought.

[00:29:00] Speaker 01:
And the Veterans Court said, that is not applicable because you don't have jurisdiction while the case is on appeal.

[00:29:07] Speaker 01:
So the Veterans Court in Cerullo did not raise any mootness issue.

[00:29:12] Speaker 01:
They didn't have any mootness concerns.

[00:29:13] Speaker 01:
They said it was a jurisdictional issue, and the Veterans Court

[00:29:16] Speaker 01:
said it possessed jurisdiction on appeal, the board did not, even to just offer reconsideration.

[00:29:22] Speaker 01:
And to answer Judge Stark's question about the appeal of the regional office decision, the evidentiary parameters that control that appeal to the board are under 38 U.S.C.

[00:29:32] Speaker 01:
7113.

[00:29:34] Speaker 01:
That statute states that an appeal of that decision must include consideration of evidence up to, evidence of record up to the time of that decision.

[00:29:43] Speaker 01:
The board doesn't have any authority to exclude evidence that is required to be considered by statute.

[00:29:49] Speaker 01:
So we would wind up at the Veterans Court anyways.

[00:29:51] Speaker 01:
And the Veterans Court could have, on appeal in this case, remanded for the proper establishment of the proper evidentiary record, which would allow Mr. Kearns to have a decision based on the evidentiary record that he selected.

[00:30:05] Speaker 02:
Is this because the board did it, not the secretary?

[00:30:09] Speaker 01:
It's because the board did it without jurisdiction, Your Honor.

[00:30:11] Speaker ?:
No.

[00:30:12] Speaker 02:
If the secretary, because the secretary has vast authority in these cases, if the secretary had ordered the board to accept this as a timely appeal and to adjudicate it, could the secretary do that?

[00:30:26] Speaker 01:
That would have been through the proper procedures as established by Cerullo.

[00:30:29] Speaker 01:
Yes, your honor.

[00:30:30] Speaker 01:
And we would have entered into a joint motion for remand.

[00:30:32] Speaker 01:
What if it wasn't a joint motion to remand?

[00:30:33] Speaker 01:
It would have been simple.

[00:30:34] Speaker 02:
What if it wasn't a joint motion to remand?

[00:30:36] Speaker 02:
The secretary just said, we looked at this, the board's wronged, take it back, re-adjudicate it.

[00:30:41] Speaker 02:
And we went to the court and said dismiss it.

[00:30:45] Speaker 01:
Even the secretary conceded at oral argument and in briefing at the Veterans Court.

[00:30:50] Speaker 01:
that it would be required to enter into a joint motion for remand.

[00:30:52] Speaker 01:
It would not take any action but for its view that the decision being appealed was not a final decision, which as we know by the Veterans Court's precedent, now it was a decision subject to the Veterans Court's jurisdiction.

[00:31:09] Speaker 04:
OK.

[00:31:09] Speaker 04:
Thank you.

[00:31:10] Speaker 04:
Thank both counsels.

[00:31:12] Speaker 04:
Please submit.

[00:31:12] Speaker 04:
Thank you very much.