Case No.

11-3083

EQCF Dkt #204 Filed 10/09/2013

Not published UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 11-3083 CARMEN J. CARDONA,

V.

APPELLANT,

ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS,

APPELLEE.

ORDER Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. On September 20, 2013, the parties were ordered to submit supplemental memoranda of law addressing whether a case or controversy remains in this matter. The order also instructed the Secretary to address, inter alia, whether he has taken steps to pay the appellant those benefits denied by the Board of Veterans' Appeals (Board). On October 4, the Secretary submitted his supplemental memorandum, as well as a motion to vacate the Board decision and remand the case. The Secretary's supplemental memorandum notes that, pursuant to the President's directive, "VA will no longer enforce" 38 U.S.C. 101(3) and (31) to the extent those provisions limit veterans' benefits to married couples of the opposite sex. Memorandum at 2. But the Secretary also indicates that no steps have been taken to pay the appellant those benefits denied by the Board, asserting that "VA lacks the ability to act on the claim due to the pendency of the appeal," and that, once the appellant's claim is remanded to the Board, "application of the President's directive should result in a grant of additional compensation benefits." Id. at 2-3. For clarification purposes, the pendency of this appeal is not a bar to the parties settling this matter, to the Secretary offering to settle this matter, or to the Secretary beginning to issue payments, so clarification is needed as to whether a settlement has been offered and why, given the Secretary's assertion that he will no longer enforce section 101(3) and (31), payments have not been issued. See Dofflemyer v. Brown, 4 Vet.App. 339, 339 (1993) (noting statutory authority of the Secretary to compromise and settle litigation in this Court); U.S. VET. APP. R. 42 (providing Court procedures where parties file motion to terminate a matter based upon a settlement agreement). Accordingly, it is

ORDERED that the Secretary file, within 7 days of the date of this order, a clarification of his supplemental memorandum of law regarding settlement or payment by the Secretary, including an explanation why not, if that is the case. It is further ORDERED that the appellant file her supplemental memorandum of law that originally was due 14 days after the Secretary's memorandum of law within 14 days of the date the Secretary files his clarification. It is further ORDERED that any response by the appellant to the Secretary's motion to vacate the Board decision and remand the case must be filed within 14 days of the date the Secretary files his clarification. It is further ORDERED that the Secretary's motion to vacate the Board decision and remand the case will be held in abeyance until further order of the Court. DATED: October 9, 2013 PER CURIAM.

Copies to: Michael J. Wishnie, Esq. VA General Counsel (027)