Case No.

11-3083

EQCF Dkt #200 Filed 09/20/2013

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 9, 2013, the Secretary notified the Court that, in accordance with the direction of the President, he has ceased enforcement of 38 U.S.C. 101(3) and (31) "to the extent that they limit veterans' benefits to married couples of the opposite sex." Secretary's Response to the Court's Order of July 12, 2013, at 2. The Secretary's notice implies that he will pay benefits to the appellant that would not otherwise be authorized were he to enforce sections 101(3) and (31). Although it appears that this appeal may be moot, actual payment of benefits has not been confirmed by either party. Moreover, the appellant (1) notes in her supplemental memorandum of law that the Board has not withdrawn the decision underlying this appeal and (2) contends that the Secretary's change in policy does not moot this appeal because the decision to stop enforcing subsections 101(3) and (31) to the extent that they limit veterans' benefits to married couples of the opposite sex could be changed by future administrations. See Appellant's September 9, 2013, Supplemental Memorandum of Law at 12, n.5. Accordingly, the Secretary will be directed to submit a supplemental memorandum of law on whether a case or controversy remains in this matter. Compare U.S. v. Windsor, 133 S. Ct. 2675, 2686 (2013) ("Windsor's ongoing claim for funds that the United States refuses to pay thus establishes a controversy sufficient for Article III jurisdiction. It would be a different case if the Executive had taken the further step of paying Windsor the refund to which she was entitled under the District Court's ruling."), and id. at 2702 (Scalia, J., dissenting) (where the executive chooses neither to enforce nor defend a statute he believes to be unconstitutional, the appellant will not be injured and case will not be subject to court review), with Military Order of the Purple Heart of U.S.A. v. Sec'y of Veterans Affairs, 580 F.3d 1293, 1295 (Fed. Cir. 2009) ("[v]oluntary cessation of challenged conduct moots a case . . . only if it is absolutely clear that the allegedly wrongful behavior

could not reasonably be expected to recur" (internal quotation marks omitted; emphasis in original)); see Mokal v. Derwinski, 1 Vet.App. 12, 15 (1990) (adopting "as a matter of policy the jurisdictional restrictions of the Article III case or controversy rubric"). When discussing whether a case or controversy remains in this matter, the Secretary should address in his supplemental memorandum of law: (1) Whether he has paid or taken steps to pay the appellant those benefits denied by the Board; (2) whether he will seek a VA General Counsel opinion formalizing the President's conclusion that these subsections are unconstitutional and unenforceable as applied to same-sex couples who are legally married under state law, Letter from Eric H. Holder, Jr., Attorney General, to John Boehner, Speaker, U.S. House of Representatives 1-2 (Sept. 4, 2013); see 38 U.S.C. 7104(c); 38 C.F.R. 14.502 (2013); and (3) whether the Board will reconsider its decision in this case, either sua sponte, or upon request of the appellant, and grant the appellant the benefits she seeks, see 38 U.S.C. 7103. Furthermore, the Court will order the appellant to file a reply to the Secretary's response to this order. Accordingly, it is ORDERED that the Secretary file, not later than 14 days after the date of this order, a supplemental memorandum of law addressing whether a case or controversy remains in this matter, including the issues identified above. It is further ORDERED that the appellant file, not later than 14 days after the date the Secretary files his supplemental memorandum of law, a reply to the Secretary's memorandum. DATED: September 20, 2013 PER CURIAM.

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