Case No.

11-3083

EQCF Dkt #202 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

APPELLEES SUPPLEMENTAL MEMORANDUM OF LAW RESPONDING TO THE COURTS ORDER OF SEPTEMBER 20, 2013 Appellee, Eric K. Shinseki, Secretary of Veterans Affairs (Secretary), hereby respectfully responds to this Courts order of September 20, 2013. The order directed the Secretary to file a supplemental memorandum of law on whether a case or controversy remains in this matter. The order also directed the Secretary to address three specific issues identified in the order, regarding whether the Secretary has taken steps to pay the benefits Appellant seeks; whether the Secretary will seek a VA General Counsel opinion; and whether the Board will reconsider its decision in this case. 1. On September 4, 2013, the Attorney General informed Congress that the President has directed the Executive Branch to cease enforcement of 38 U.S.C. 101(3) and (31) to the extent that these provisions limit veterans benefits to married couples of the opposite sex. As noted in the Secretarys Response to the Courts Order of July 12, 2013, the Secretary has ceased

enforcing these provisions pursuant to the Presidents directive. On October 4, 2013, pursuant to 28 U.S.C. 530D, the Secretary notified Congress that in light of the Presidents directive, VA will no longer enforce sections 101(3) and 101(31) of title 38 to the extent those provisions preclude recognition of legally married same-sex couples. Letter from Secy of VA to Honorable Speaker of the U.S. House of Representatives John Boehner (Oct. 4, 2013). 2. The parties concur that section 101(31) should be applied without any requirement that a spouse be a person of the opposite sex, and the Secretary requests, in the concurrently filed Motion to Vacate the Board of Veterans Appeals Decision and Remand to Apply the Presidents Directive, that this Court remand this case back to the Board so that the VA may act on Appellants claim. In its decision of August 30, 2011, the Board found that Appellant and R. H. were lawfully married under the laws of the State of Connecticut and held that, but for federal statutes and regulations that limit the definition of the term spouse to 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 Presidents directive should result in a grant of additional compensation benefits to Appellant pursuant to her claim filed on May 26, 2010, once the case has been remanded to the Board. 1

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 Presidents 2

3. In Cerullo v. Derwinski, 1 Vet. App. 195, 198 (1991), the Court held that when a timely [notice of appeal] is filed with this Court from a final BVA decision, jurisdiction immediately lies in this Court. It is at this time also that BVA

reconsideration is no longer possible (without the Courts permission) and that the BVA is without jurisdiction to take further action on the case. Therefore, the Court retains jurisdiction in light of Appellants unresolved claim for benefits, and VA lacks the ability to act on the claim due to the pendency of the appeal. The Secretary will be able to apply the Presidents directive to Appellants claim once the claim had been remanded to the Board. 4. The President has directed the Executive Branch to cease enforcing sections 101(3) and 101(31) of title 38 to the extent those provisions preclude recognition of legally valid marriages of same-sex couples. Pursuant to 28

U.S.C. 530D, the Secretary has notified Congress that VA will no longer enforce these provisions to the extent that they preclude recognition of legally valid marriages of same-sex couples. A VA General Counsel opinion formalizing the Presidents directive is not necessary. 2 The VA is, however, working to

implement this decision for all claims that implicate a same-sex married couple and expects to release further guidance in the near future. 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

Although no such guidance is necessary to effectuate the Presidents directive, the VA General Counsel intends to issue opinions to assist the implementation of that directive. 3

WHEREFORE, Appellee, Eric K. Shinseki, Secretary of Veterans Affairs, hereby respectfully responds to this Courts order of September 20, 2013. 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