Case No.

11-3083

EQCF Dkt #203 Filed 10/04/2013

IN THE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS CARMEN J. CARDONA, Appellant, v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, Appellee. ) ) ) ) ) ) ) ) ) )

Vet. App. No. 11-3083

MOTION TO VACATE THE BOARD OF VETERANS’ APPEALS’ DECISION AND REMAND TO APPLY THE PRESIDENT’S DIRECTIVE Appellee, Eric K. Shinseki, Secretary of Veterans Affairs (Secretary), hereby respectfully moves this Honorable Court to vacate the August 30, 2011, decision of the Board of Veterans’ Appeals (Board) that denied a claim of entitlement to additional compensation for a dependent spouse and to remand the matter for further consideration and action in light of the President’s direction that the Department of Veterans Affairs (VA) cease to enforce the definitions of “spouse” and “surviving spouse” in sections 101(31) and 101(3) of title 38 of the United States Code to the extent that they limit the provision of veterans’ benefits to married couples of the opposite sex. As grounds for this motion, the Secretary states that, as indicated in his September 9, 2013 Notice to the Court, in accordance with the direction of the President, he has ceased to enforce these provisions to the extent that they limit the provision of veterans’ benefits to married couples of the opposite sex.

The August 30, 2011 Board decision at issue acknowledged that Appellant and R. H. were lawfully married under the laws of the State of Connecticut and found that, but for federal statutes and regulations which restricted the definition of the term “spouse” to include only a person of the opposite sex, Appellant was otherwise eligible to receive additional spousal benefits. Based on the facts the Board previously found, application of the President’s directive should result in a grant of additional compensation benefits to Appellant pursuant to her claim filed on May 26, 2010. 1 Any other outcome would be inconsistent with current law. The Secretary therefore respectfully requests that the Court vacate the Board’s decision and remand the matter for the Board to effectuate the President’s directive that VA cease to enforce the provisions of sections 101(31) and 101(3) of title 38 to the extent that they limit the provision of veterans’ benefits to married couples of the opposite sex. There are no pending issues that require this Court’s resolution and any analysis or consideration of the legal arguments raised by the parties in their briefs is not warranted as a prudential matter. The parties agree that section 101(31) should be applied without the requirement that a “spouse” be a person of the opposite sex and, as indicated by the Secretary in his concurrently filed
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The VA will also cease enforcing provisions of the Code of Federal Regulations, such as 38 C.F.R. § 3.50(a) and (b), that rely on 38 U.S.C. § 101(3) or 101(31) to define the terms “spouse” and “surviving spouse” to include only persons of the opposite sex. To do otherwise would be inconsistent with the President’s Directive. See Manhattan Gen. Equip. Co. v. Comm'r of Internal Revenue, 297 U.S. 129, 134 (1936) (“A regulation which [. . .] operates to create a rule out of harmony with the statute, is a mere nullity.”). 2

Supplemental Memorandum of Law In Response to the Court’s Order of September 20, 2013, the Secretary is able to and will act on Appellant’s claim once this matter is returned to the agency. The Secretary’s inability to act on Appellant’s claim is, at this time, due solely to the pendency of this appeal. See Cerullo v. Derwinski, 1 Vet. App. 195, 198 (1991) (holding that once a timely notice of appeal is filed, “jurisdiction immediately lies in this Court” and “the [Board] is without jurisdiction to take further action on the case”). In her September 9, 2013 Supplemental Memorandum of Law, Appellant contends that action by this Court is appropriate because a future Attorney General could determine that § 101(31) should be enforced. See Appellant's September 9, 2013, Supplemental Memorandum of Law at 12, n.5. This is

purely speculative, and not sufficient to warrant action by the Court at this time, when the parties do not dispute that section 101(31) should not preclude Appellant from receiving the benefits for which she applied. The undersigned spoke with counsel for Appellant who advised that his client was unable to provide a position on this motion at this time. WHEREFORE, for the reasons stated above, Appellee, Eric K. Shinseki, Secretary of Veterans Affairs, respectfully moves this Court to vacate the August 30, 2011 decision of the Board that denied a claim of entitlement to additional compensation for a dependent spouse and to remand the matter consistent with this motion.

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Respectfully submitted, WILL A. GUNN General Counsel DAVID L. QUINN Acting Assistant General Counsel /s/ Carolyn F. Washington CAROLYN F. WASHINGTON Deputy Assistant General Counsel /s/ Ronen Morris RONEN MORRIS Appellate Attorney Office of the General Counsel (027D) U.S. Department of Veterans Affairs 810 Vermont Avenue, N.W. Washington, DC 20420 (202) 632-7113 Attorneys for Appellee Secretary of Veterans Affairs

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