Kince v. Nicholson , 208 F. App'x 908 ( 2006 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-7204
HENRY L. KINCE,
Claimant-Appellant,
v.
R. JAMES NICHOLSON,
Secretary of Veterans Affairs,
Respondent-Appellee.
__________________________
DECIDED: December 7, 2006
__________________________
Before SCHALL, LINN, and DYK, Circuit Judges.
PER CURIAM.
DECISION
Henry L. Kince appeals from the April 12, 2006 decision of the United States
Court of Appeals for Veterans Claims (“Veterans Court”) that dismissed for lack of
jurisdiction his appeal of the decision of the Board of Veterans’ Appeals (“Board”)
denying his motion for reconsideration of two Board decisions, each dated March 8,
2001. Kince v. Nicholson, No. 05-3391 (Vet. App. Apr. 12, 2006). We affirm.
DISCUSSION
I.
On March 8, 2001, the Board issued two decisions relating to various claims
asserted by Mr. Kince. In re Kince, No. 9515732 (Board of Veterans’ Appeals March 8,
2001) (“Board Decision”) (embodying both decisions). The Board ruled against Mr.
Kince on several claims, but remanded with respect to two claims to the Veterans
Administration’s regional office (“RO”). Board Decision, at 28. Mr. Kince timely
appealed to the Veterans Court on April 11, 2001. On October 14, 2004, the Veterans
Court declined to exercise jurisdiction over the appeal from the remanded claims and
rendered a decision on the merits as to Mr. Kince’s other claims. Kince v. Principi, No.
01-653 (Vet. App. Oct. 14, 2004). Mr. Kince’s appeal of that decision to this court was
unsuccessful. See Kince v. Nicholson, 161 Fed. Appx. 938, 2005 WL 1368090 (Fed.
Cir. 2005).
On February 10, 2003, while his appeal still was pending before the Veterans
Court, Mr. Kince file a motion with the Chairman of the Board asking the Board, among
other things, to reconsider its March 8, 2001 decision remanding two claims to the RO.
On October 27, 2005, the Chairman of the Board, acting through his delegate, denied
Mr. Kince’s motion. Letter from Joaquin Aguayo-Pereles, Deputy Vice Chairman, Dept.
of Veterans’ Affairs, to Henry L. Kince (Oct. 27, 2005). Mr. Kince appealed the
Chairman’s decision to the Veterans Court on November 28, 2005.
On March 8, 2006, the Veterans Court dismissed Mr. Kince’s appeal for lack of
jurisdiction. Kince v. Nicholson, No. 05-3391 (Vet. App. Mar. 8, 2006). On March 14,
2006, Mr. Kince requested reconsideration of the March 8, 2006 dismissal, arguing that
2006-7204 2
the Veterans Court did have jurisdiction because of his timely filed appeal from the
March 8, 2001 Board decisions. On April 12, 2006, the Veterans Court withdrew its
March 8, 2006 order and replaced it with a new one, again dismissing Mr. Kince’s
appeal for lack of jurisdiction. Kince v. Nicholson, No. 05-3391 (Vet. App. Apr. 12,
2006). In its new decision, the court stated that it lacked jurisdiction for two separate
reasons. First, the court concluded that, because it had not relinquished jurisdiction to
the Board to entertain Mr. Kince’s motion for reconsideration of its March 8, 2001
decisions, the reconsideration motion having been filed while Mr. Kince’s appeal was
pending before it, the Chairman of the Board lacked authority to rule on the motion.
Consequently, the court reasoned, there was no reconsideration decision which it had
jurisdiction to review. Id. at 1-2. The Veterans Court also held that an alternative basis
for dismissing for lack of jurisdiction was that Mr. Kince’s motion for reconsideration was
untimely. Id. at 2.
Following the decision of the Veterans Court, Mr. Kince timely appealed to this
court. We have jurisdiction over his appeal pursuant to 38 U.S.C. § 7292(a).
II.
We see no error in the Veterans Court’s dismissal of Mr. Kince’s appeal for lack
of jurisdiction. The court correctly held that, upon the filing of Mr. Kince’s notice of
appeal, jurisdiction immediately passed to the court and the Board was without authority
to take further action in the case. See Graves v. Principi, 294 F.3d 1350, 1352 (Fed.
Cir. 2002) (citing Cerullo v. Derwinski, 1 Vet. App. 195, 196-97 (1991)). Thus, during
the period that Mr.Kince’s appeal was pending before the Veterans Court (April 11,
2001–October 14, 2004), the Board could not act on the motion for reconsideration.
2006-7204 3
Contrary to the Veterans Court’s decision, however, after the Veterans Court decided
the appeal, the Chairman of the Board was free to act on Mr. Kince’s motion for
reconsideration. However, the Veterans Court lacked jurisdiction to consider the
Chairman’s October 10, 2005 denial of the motion for reconsideration because the
Veterans Court had decided that it lacked jurisdiction over the remand decision and had
decided the other claims on the merits. In Mayer v. Brown, 37 F.3d 618, 619-20 (Fed.
Cir. 1994), overruled in part by Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998) (en
banc), we pointed out that the Veterans Court’s jurisdiction is limited by statute to review
of decisions of the Board and that an action by the Chairman is not a decision of the
Board. Accordingly, we stated that although 38 U.S.C. § 7261 “may allow the [Veterans
Court] to review actions of the Chairman [of the Board] in cases where it already has
jurisdiction by virtue of a timely appeal from a final [B]oard decision, it does not
independently grant jurisdiction over such actions.” Id. at 620. Here, the Veterans
Court lacked jurisdiction because the Chairman’s denial of Mr. Kince’s motion for
reconsideration on October 27, 2005, did not occur in the setting of a case in which the
Veterans Court had jurisdiction, since the Veterans Court had (1) declined to exercise
jurisdiction over the Board remand decisions on October 14, 2004; (2) had resolved his
other claims on the merits on the same day; and (3) did not yet have before it an appeal
from a Board decision resolving the remanded claims. See Jordan v. Brown, 8 Vet.
App. 428 (1995) (applying Mayer in a case with facts analogous to those in this case.)
2006-7204 4
For the foregoing reasons, the Veterans Court did not err in dismissing Mr.
Kince’s appeal for lack of jurisdiction. The decision of the court is therefore affirmed.*
Each party shall bear its own costs.
*
We do not reach the alternative ground stated by the Veterans Court for
its decision.
2006-7204 5