Cerullo v. Derwinski

1 Vet. App. 195, 1991 U.S. Vet. App. LEXIS 26, 1991 WL 146411
CourtUnited States Court of Appeals for Veterans Claims
DecidedApril 4, 1991
DocketNos. 89-2, 90-31, 90-95, 90-153, 90-271 and 90-253
StatusPublished
Cited by64 cases

This text of 1 Vet. App. 195 (Cerullo v. Derwinski) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cerullo v. Derwinski, 1 Vet. App. 195, 1991 U.S. Vet. App. LEXIS 26, 1991 WL 146411 (Cal. 1991).

Opinion

MANKIN, Associate Judge:

These cases were consolidated pursuant to U.S.Vet.App.R. 3(b) (Interim). In each of these cases the Chairman of the Board of Veterans’ Appeals (BVA or Board) attempted to vacate the BVA decision, sua sponte, after a timely Notice of Appeal (NOA) had been filed with this Court. The Court is called upon to decide whether the Chairman of the Board of Veterans’ Appeals may order reconsideration of a BVA decision after an NOA from that decision has been filed with this Court. The Court consolidated these cases in order to address this important jurisdictional question.

In each case the Secretary of Veterans Affairs (Secretary) moved for a dismissal of the appeal pending reconsideration by the BVA of its former decision, arguing that this Court lacked subject matter jurisdiction over the appeals. All of the appellants opposed BVA reconsideration, and all but Robert E. VanDee moved for injunctive relief to prevent BVA reconsideration. The Court issued a per curiam order consolidating the appeals of Henry B. Carter and Ralph Meister. The per curiam order directed the BVA to take no action in the appeals pending further order of the Court, and it rendered the reconsideration orders null and void. The Secretary moved to consolidate all six above-captioned cases on October 15, 1990. The Court issued a per curiam order consolidating the appeals of David A. Cerullo, Edward M. Farmer, Jr., Harold E. St. Cyr, and Robert E. VanDee with the previously consolidated appeals of Henry B. Carter and Ralph Meister. Both the Secretary and appellants filed supplemental memoranda on November 20, 1990. Oral argument was held on December 3, 1990, after which appellants and the Secretary filed additional supplemental memo-randa in response to an order of the Court.

After oral argument and review of the briefs, record, and legal precedent, we hold that any attempt by the BVA or the BVA Chairman to order reconsideration of a BVA 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 the procedure described herein.

DISCUSSION

These cases raise important legal issues ultimately affecting this Court’s power to render efficacious decisions. The Secretary asserts that, because the BVA Chairman has ordered reconsideration of these cases, this Court no longer has jurisdiction over the cases even though a proper NOA was first timely filed. The Secretary has further asserted that the BVA Chairman may order reconsideration of a final BVA decision at any time. The Secretary argues that a reconsideration order by the BVA Chairman acts “to abrogate the binding effect of the previous Board decisions. His orders erased any. final administrative action that may have affected the veterans’ rights. Thus, there is now no justiciable case or controversy before the Court in these six appeals.” Supplemental Memorandum of the Secretary at 3.

Jurisdiction discussed herein relates to the plenary jurisdiction of this Court. In order to justify the Secretary’s position logically, one must necessarily conclude either that the filing of an NOA has no jurisdictional significance or that dual plenary jurisdiction may exist between an administrative tribunal and a federal court. Both of these conclusions are based upon incorrect understandings about the nature of federal jurisdiction.

Legal precedent is clear that the filing of an NOA confers plenary jurisdiction upon an appellate court. “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 appeal.” [197]*197Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 401-02, 74 L.Ed.2d 225 (1982) (per curiam). See also Browder v. Director, Illinois Dep’t of Corrections, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); Matton Steamboat Co. v. Murphy, 319 U.S. 412, 63 S.Ct. 1126, 87 L.Ed. 1483 (1943); Keohane v. Swarco, Inc., 320 F.2d 429 (6th Cir.1963). “As a general rule, of course, once an appeal has been taken—once notice of appeal has been timely filed—the district court is divested of jurisdiction to take any action except in aid of the appeal.” Resnik v. La Paz Guest Ranch, 289 F.2d 814, 818 (9th Cir.1961) (citing Miller v. United States, 114 F.2d 267, 269 (7th Cir.1940), cert. denied, 313 U.S. 591, 61 S.Ct. 1114, 85 L.Ed. 1545 (1941)). See also Cochran v. Birkel, 651 F.2d 1219, 1221-22 (6th Cir.1981), cert. denied, 454 U.S. 1152, 102 S.Ct. 1020, 71 L.Ed.2d 307 (1982). We subscribe to this transfer of jurisdiction doctrine.

Since the timely filing of an NO A generally transfers jurisdiction to the appellate body, any attempts by the BYA Chairman to obtain jurisdiction over a case after the filing of an NO A here must be predicated on the concept that there may be dual plenary jurisdiction. Current jurisprudence in this area has concluded that concurrent or dual plenary jurisdiction is impermissible. Once an appellate body takes jurisdiction over a claim, the lower tribunal may not consider the same issues. In Griggs, the United States Supreme Court stated that “even before 1979, it was generally understood that a federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously.” 459 U.S. at 58, 103 S.Ct. at 401-02. (A 1979 amendment to the Federal Rules of Appellate Procedure had avoided the potential conflict wherein district courts and courts of appeals would both have had the power to modify the same judgment. Fed.R.App.P. 4(a)(4) was amended in 1979 by Pub.L. 100-690, § 7111, 102 Stat. 4419 (Nov. 18, 1988), to provide that an NO A filed before a Rule 59(e) motion is filed has no effect.)

In In re Combined Metals Reduction Co., 557 F.2d 179, 200 (9th Cir.1977), the Ninth Circuit concluded that automatic transference of jurisdiction after the filing of an NOA is “clearly necessary to prevent the procedural chaos that would result if concurrent jurisdiction were permitted.” Since Griggs, courts of appeals have concluded that dual jurisdiction is impermissible. See West Penn Power Co. v. EPA, 860 F.2d 581, 585 (3d Cir.1988) (citing Outland v. C.A.B., 284 F.2d 224, 227 (D.C.Cir.1960)); Jankovich v. Bowen, 868 F.2d 867, 871 (6th Cir.1989). The allowance of dual jurisdiction raises the possibility that a court of appeals will expend extensive judicial time on a case only to have agency reconsideration nullify its efforts.

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Bluebook (online)
1 Vet. App. 195, 1991 U.S. Vet. App. LEXIS 26, 1991 WL 146411, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cerullo-v-derwinski-cavc-1991.