Case: 21-2373 Document: 61 Page: 1 Filed: 04/18/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TIMOTHY J. DOLBIN,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF VETER-
ANS AFFAIRS,
Respondent-Appellee
______________________
2021-2373
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-2890, Judge Grant Jaquith,
Judge Joseph L. Falvey, Jr., Judge Joseph L. Toth.
______________________
Decided: April 18, 2023
______________________
ADAM R. LUCK, GloverLuck, LLP, Dallas, TX, for claim-
ant-appellant.
ROBERT R. KIEPURA, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, CLAUDIA BURKE, PATRICIA M. MCCAR-
THY; BRIAN D. GRIFFIN, ANDREW J. STEINBERG, Office of
Case: 21-2373 Document: 61 Page: 2 Filed: 04/18/2023
2 DOLBIN v. MCDONOUGH
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Before MOORE, Chief Judge, LOURIE and STOLL, Circuit
Judges.
PER CURIAM.
Timothy Dolbin appeals from a judgment of the United
States Court of Appeals for Veterans Claims (Veterans
Court) denying his petition for writ of mandamus and dis-
missing his motion for class certification as moot. Dolbin
v. McDonough, 34 Vet. App. 334, 337 (2021) (“Decision”).
Because Mr. Dolbin has received a Board decision, we dis-
miss Mr. Dolbin’s appeal as moot.
BACKGROUND
Mr. Dolbin, an Air Force veteran, filed claims for ser-
vice-connected disability compensation in 2008 and 2011.
Following decisions by the regional office (RO) and re-
mands by the Board of Veterans’ Appeals, Mr. Dolbin’s
claims were again remanded by the Board in 2017. In
April 2018, the Department of Veterans Affairs (VA) of-
fered Mr. Dolbin the opportunity to transfer his claims
from the legacy appeals system to the Rapid Appeals Mod-
ernization Program (RAMP), a pilot program implemented
by the VA pursuant to the Veterans Appeals Improvement
and Modernization Act of 2017, Pub. L. No. 115-55, § 4(a),
131 Stat. 1105 (2017) (VAIMA). Mr. Dolbin opted to par-
ticipate in RAMP and have his claims processed in the
“supplemental claim” lane. J.A. 222.
In February 2019, the RO issued a decision on
Mr. Dolbin’s claims. Mr. Dolbin then appealed the decision
to the Board and the Board docketed his appeal according
to RAMP rather than his original position in the legacy ap-
peals system. Mr. Dolbin requested that the Board ad-
vance his case on its docket under 38 U.S.C. § 5109B,
Case: 21-2373 Document: 61 Page: 3 Filed: 04/18/2023
DOLBIN v. MCDONOUGH 3
which provides that the Veterans Benefit Administration
give previously remanded claims “expeditious treatment,”
and 38 U.S.C. § 7112, which provides that the Secretary
“shall take such actions as necessary to provide for the ex-
peditious treatment” of previously remanded claims. The
Board denied Mr. Dolbin’s motion, concluding that he
failed to show sufficient cause to allow his appeal to be con-
sidered out of docket number order.
Mr. Dolbin filed a petition for a writ of mandamus with
the Veterans Court asking the court to compel the Board to
return his appeal to its original place on the docket and af-
ford it expeditious treatment. In addition, Mr. Dolbin filed
a motion for certification of a class consisting of “claimants
with active appeals that have been adjudicated by the
Board . . . in the Legacy appeals system and returned to the
Board in the VAIMA system but have not been returned to
their original place on the docket or been afforded expedi-
tious treatment.” J.A. 246–77.
On August 26, 2021, the Veterans Court issued an or-
der denying Mr. Dolbin’s mandamus petition and dismiss-
ing his class certification request as moot. Decision,
34 Vet. App. at 337. Mr. Dolbin now appeals. We have ju-
risdiction under 38 U.S.C. § 7292.
DISCUSSION
We have limited jurisdiction to review decisions of the
Veterans Court. We may not review factual findings, nor
the application of law to fact unless presented with a con-
stitutional issue. 38 U.S.C. § 7292(d)(2); see also, e.g., Con-
way v. Principi, 353 F.3d 1369, 1372 (Fed. Cir. 2004). Our
review is limited to legal challenges regarding the “validity
of any statute or regulation or any interpretation thereof[,]
. . . and to interpret constitutional and statutory provi-
sions, to the extent presented and necessary to a decision.”
38 U.S.C. § 7292(c).
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4 DOLBIN v. MCDONOUGH
On appeal, Mr. Dolbin argues that the Veterans Court
erred in denying his petition for writ of mandamus and dis-
missing his motion for class certification. Specifically, Mr.
Dolbin argues that the Veterans Court relied on incorrect
statutory provisions and improperly limited the scope of
38 U.S.C. § 5109B.
We begin with Mr. Dolbin’s argument that the Veter-
ans Court improperly denied his petition for a writ of man-
damus. On July 5, 2022, nearly a year after the Veterans
Court’s August 2021 decision, Mr. Dolbin received a Board
decision on his pending claims. See [Title Redacted by
Agency], No. 191217-54095, 2022 WL 4457787 (Bd. Vet.
App. July 5, 2022) (“Board Decision”). The Government ar-
gues that Mr. Dolbin’s petition for a writ of mandamus is
now moot because the Board decision provided Mr. Dolbin
with the relief he sought in his petition. Appellee’s Br. 14–
15. We agree.
Mr. Dolbin acknowledges that “there is no further re-
lief that could be provided by the Court through a grant of
his mandamus petition,” but asserts that the case is not
moot because it falls within the exception to mootness for
cases that are capable of repetition yet evading review. Re-
ply Br. 8–9. This exception “applies ‘only in exceptional sit-
uations,’ where (1) ‘the challenged action [is] in its duration
too short to be fully litigated prior to cessation or expira-
tion,’ and (2) ‘there [is] a reasonable expectation that the
same complaining party [will] be subject to the same action
again.’” Kingdomware Techs., Inc. v. United States,
579 U.S. 162, 170 (2016) (quoting Spencer v. Kemna,
523 U.S. 1, 17 (1998)). Mr. Dolbin has failed to demon-
strate both prongs.
In particular, Mr. Dolbin has not shown that the chal-
lenged action is too short in duration to be litigated and the
lengthy procedural history of his case indicates the con-
trary. After opting into the RAMP program and filing his
appeal to the Board, he waited almost eight months to file
Case: 21-2373 Document: 61 Page: 5 Filed: 04/18/2023
DOLBIN v. MCDONOUGH 5
his motion requesting the Board to advance his case.
J.A. 243–44. After the Board denied his motion, he filed his
petition at the Veterans Court five months later. J.A. 10–
30, 246–77. Finally, the Board issued a decision on Mr.
Dolbin’s case nearly a year after the Veterans Court deci-
sion, further demonstrating that the duration was not so
short as to evade review. See generally Board Decision.
Even if the challenged action were deemed too short in
duration to be litigated, Mr. Dolbin has not demonstrated
a reasonable expectation that he will again be subject to
the same situation. Indeed, Mr. Dolbin agrees that his sub-
sequent appeal of the Board’s July 2022 decision is “in a
different procedural posture than his previous appeal,” and
thus, he is unlikely to be in a situation where his appeal is
transferred from the legacy appeals system to RAMP fol-
lowing a remand. Reply Br. 9–10. Thus, Mr. Dolbin’s pe-
tition for writ of mandamus is moot and the capable of
repetition but evading review exception does not apply. We
dismiss this portion of Mr. Dolbin’s appeal as moot.
Next, we address Mr. Dolbin’s argument that the Vet-
erans Court erred in denying his motion for class certifica-
tion. The Government argues that Mr. Dolbin’s motion for
class certification is similarly moot because Mr. Dolbin’s
individual claim is moot, and the Veterans Court did not
consider the merits of the class certification motion. Ap-
pellee’s Br. 15, 21–22.
A class action is usually moot if the named plaintiff’s
claim becomes moot before the class certification. See Gen-
esis Healthcare Corp. v. Symczyk, 569 U.S. 66, 73 (2013)
(“In the absence of any claimant’s opting in, respondent’s
[collective action] became moot when her individual claim
became moot, because she lacked any personal interest in
representing others in this action.”). Here, the Veterans
Court dismissed Mr. Dolbin’s class certification motion as
moot because “Mr. Dolbin’s petition [for a writ of manda-
mus] is . . . denied on grounds that would apply to any
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6 DOLBIN v. MCDONOUGH
member of the putative class.” Decision, 34 Vet. App.
at 337. In other words, the class was uncertified at the
time that Mr. Dolbin’s claim became moot. Accordingly,
the July 2022 Board decision mooted both Mr. Dolbin’s in-
dividual action for mandamus and the uncertified class ac-
tion because Mr. Dolbin no longer had a personal interest
to represent others. Mr. Dolbin nonetheless argues that an
exception that allows a class action to proceed despite the
named plaintiff’s claim being moot applies here. Reply
Br. 3–4. We disagree.
One exception is the “relation back” doctrine, which ap-
plies where other similarly situated plaintiffs will continue
to be subject to challenged conduct and the claims “are so
inherently transitory that the trial court will not have even
enough time to rule on a motion for class certification be-
fore the proposed representative’s individual interest ex-
pires.” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 399
(1980). While others may be subject to the same docketing
procedures as Mr. Dolbin, the claims here are not inher-
ently transitory for the same reasons that Mr. Dolbin’s pe-
tition for a writ of mandamus is not too short in duration
to be litigated. Accordingly, the relation back doctrine is
not applicable here.
Another exception applies where a named plaintiff’s in-
dividual claim becomes moot after the denial of a class cer-
tification motion. See id. at 404. The Supreme Court has
stressed that this is a narrow exception only applying to
denials on the merits. See Genesis, 569 U.S. at 66, 75–76
(describing mootness exception for lack of class certifica-
tion to “narrowly extend[] . . . to denials of class certifica-
tion motion”). Because the Veterans Court dismissed
Mr. Dolbin’s motion for class certification as moot based on
Mr. Dolbin’s individual claim, it did not reach the merits of
the class certification motion and thus, this exception is not
applicable here.
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DOLBIN v. MCDONOUGH 7
Because Mr. Dolbin’s individual claim is moot and the
above exceptions do not apply to this case, the class certifi-
cation claim is also moot. Accordingly, we dismiss this por-
tion of Mr. Dolbin’s appeal.
CONCLUSION
For the above reasons, we dismiss Mr. Dolbin’s appeal
as moot.
DISMISSED
COSTS
No costs.