Case No.


EQCF Dkt #211 Filed 11/26/2013

IN THE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS _________________________________ CARMEN CARDONA Appellant, v. ERIC K. SHINSEKI, Appellee. ) ) ) ) ) ) ) ) ) ) ) Vet. App. No. 11-3083

Date: November 26, 2013

APPELLANT’S OPPOSITION TO SECRETARY’S MOTION TO DISMISS On November 22, 2013 Secretary Shinseki filed a motion to dismiss Ms. Cardona’s appeal, claiming that it is moot in light of the Secretary’s completion of payment to Ms. Cardona. This motion comes months after the Court first directed the parties to brief the issue of mootness and several weeks after the parties completed that briefing. See Order (Sept. 20, 2013); Appelle’s Supp. Memo of Law Responding to Court’s Order (Oct. 4, 2013); Order (Oct. 9, 2013), Response to Court Order Oct. 9, 2013 (Oct. 16, 2013); Order (Oct. 22, 2013), Response to Court Order Oct. 22, 2013 (Oct. 30, 2013); Appellant’s Supp. Memo of Law (Oct. 30, 2013). The Secretary also previously moved to vacate and remand the case to the Board of Veterans’ Appeals, but that motion now appears to be moot in light of the Secretary’s sua sponte payment to Ms. Cardona. See Mot. to Vacate the Board of Veterans’ Appeals’ Decision and Remand to Apply the President’s Directive (Oct. 4, 2013).

Ms. Cardona hereby incorporates the arguments in her Supplemental Memorandum of Law in this Opposition to the Secretary’s Motion to Dismiss. Her position has not changed in light of the completion of payment by the Secretary. Voluntary cessation of challenged conduct moots a case “only if it is absolutely clear” that the wrongful behavior could not reasonably be expected to recur in the future. Military Order of Purple Heart of USA v. Sec’y of Veterans Affairs, 580 F.3d 1293, 1295 (Fed. Cir. 2009). For all the reasons explored at length in Ms. Cardona’s Supplemental Memorandum of Law, the Secretary cannot meet his formidable burden because his decision is not binding. The Secretary’s payments, while welcome, are made voluntarily, and may be voluntarily withdrawn at any time by this or a future Secretary. Accordingly, this appeal is not moot. See Appellant’s Supp. Memo of Law (Oct. 30, 2013) at 4-8. Additionally, there is a strong public interest in having the legality of the practice settled. Id. at 9. For the reasons previously stated in Appellant’s Supplemental Memorandum of Law (Oct. 30, 2013), this Court should deny Secretary Shinseki’s motion to dismiss and adjudicate the constitutional challenge before it.

Respectfully submitted, /s/ Michael J. Wishnie Kendall Hoechst, Law Student Intern Jennifer McTiernan, Law Student Intern V. Prentice, Law Student Intern Michael Wishnie, Supervising Attorney Veterans Legal Service Clinic

Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, CT 06520-9090 (203) 432-4800


CERTIFICATE OF SERVICE I hereby certify that, on November 26, 2013, a copy of the foregoing Appellant’s Opposition to Secretary’s Motion to Dismiss was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the court’s electronic filing system or by mail to anyone unable to accept electronic filings as indicated on the Notice of Electronic Filing. Parties may access this filing through the court’s CM/EFC system. The following parties were served by electronic means: Ronen Morris Appellate Attorney Office of the General Counsel (027D) U.S. Department of Veterans Affairs 810 Vermont Avenue, N.W. Washington, D.C. 20420 (202) 443-5059/5000

/s/ Michael J. Wishnie Veterans Legal Service Clinic Jerome N. Frank Legal Services Organization (203) 432-4800


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