Bates v. McDonough, 21-0642

• Decision Date: 23 August 2021
• Docket Number: 21-0642
• Parties: WILLIAM E. BATES, Appellant, v. DENIS MCDONOUGH, Secretary of Veterans Affairs, Appellee.
• Court: United States Court of Appeals For Veterans Claims

WILLIAM E. BATES, Appellant, v. DENIS MCDONOUGH, Secretary of Veterans Affairs, Appellee.

No. 21-0642

United States Court of Appeals For Veterans Claims

August 23, 2021

FOR THE APPELLANT: KENNETH H. DOJAQUEZ Carpenter Chartered

FOR THE APPELLEE: RICHARD A. SAUBER General Counsel MARY ANN FLYNN Chief Counsel DREW A. SILOW Deputy Chief Counsel

AMANDA M. RADKE Senior Appellate Attorney Office of General Counsel (O27M) U.S. Department of Veterans Affairs

JOINT MOTION TO TERMINATE THE APPEAL

William Greenberg Judge

Pursuant to U.S. Vet.App. Rules (R.) 27 and 42, Appellant and Appellee hereby agree to and move for termination of the captioned appeal. The terms upon which the parties agree this appeal is to be terminated are contained in the attached Stipulated Agreement.

The Court has held that when the parties enter into such an agreement, it moots the case or controversy. Bond v Derwinski, 2 Vet.App. 376 (1992). See also Kimberly-Clark v. Proctor & Gamble, 973 F.2d 911, 914 (Fed. Cir. 1992) ("Generally, settlement of a dispute does render a case moot."); cf. 38 C.F.R. § 14.500(a), (c), (d). The General Counsel represents the Secretary of Veterans Affairs before the Court. 38 U.S.C. § 7263(a). In entering into this settlement agreement, the General Counsel is following well-established principles regarding the Government attorney's authority to terminate lawsuits by settlement or compromise, which principles date back well over a century. Compare Freeport-McMoRan Oil & Gas Co. v. FERC, 962 F.2d 45, 47 (D.C. Cir. 1992) ("[G]overnment attorneys [should] settle cases whenever possible.") (citing Executive Order on Civil Justice Reform, [Exec. Order No. 12,778, 3 C.F.R. § 359 (1991), reprinted in 28 U.S.C.S. § 519 (1992)]) with 2 Op. A.G. 482, 486 (1831).^[1] See also Executive Order on Civil Justice Reform, Exec. Order 12,988, 61 Fed. Reg. 4729 (Feb. 7, 1996); Stone v. Bank of Commerce, 174 U.S. 412 (1899); Campbell v. United States, 19 Ct. CI. 426, 429 (1884). The parties have resolved, to their mutual satisfaction, the issues presented by this appeal and aver that (1) their agreement does not conflict with prior precedent decisions of the Court; (2) this is not a confession of error by the Secretary; and (3) this agreement disposes of the case on appeal.

WHEREFORE, the parties jointly move the Court for an order terminating the captioned appeal pursuant to Rule 42 of the Court's Rules of Practice and Procedure.

STIPULATED AGREEMENT

WHEREAS, William E. Bates (Appellant) filed an appeal to the Court of Appeals for Veterans Claims on February 1, 2021, from an October 6, 2020, letter by the Board of Veterans' Appeals (Board or BVA), declining to docket his appeal under the Appeals Modernization Act (AMA) system and instructing Appellant to file a notice of disagreement under the legacy appeal system; and

WHEREAS, the Secretary of Veterans Affairs (Appellee) and Appellant have reached a mutually satisfactory resolution of this litigation;

NOW THEREFORE, in consideration of the mutual promises contained herein, the parties hereby agree as follows:

1. Appellee agrees that Appellant submitted to the Department of Veterans Affairs (VA) a properly and timely executed VA Form 10182 relating to his appeal under the Appeals Modernization Act system of his claim for entitlement to a total disability rating based on individual unemployability (TDIU);

2. Appellee agrees that Appellant's appeal will be docketed in the position it would have been had the Board found the VA Form 10182 received on July 10, 2020, to be timely;

3. Appellee agrees to promptly notify the Board upon final disposition by the Court with respect to this settlement; and that the Board shall take prompt action to implement this agreement.

5. Appellee does not admit that any error was committed by the Department of Veterans Affairs or any of its employees in

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