Hockley v. Wilkie
| Decision Date | 08 February 2019 |
| Docket Number | Vet. App. 18-6010 |
| Court | United States Court of Appeals For Veterans Claims |
| Parties | ALICE J. HOCKLEY, Appellant, v. ROBERT L. WILKIE, Secretary of Veterans Affairs, Appellee. |
JAMES B. COWDEN Deputy Chief Counsel
JOSHUA L. WOLINSKY Appellate Attorney Office of the General Counsel (027K) U.S. Department of Veterans Affairs
Pursuant to U.S. Vet.App. Rules 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 Secretary of Veterans Affairs enters into such an agreement, the Board decision giving rise to the appeal is overridden, thereby mooting 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. Cl. 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.
WHEREAS Alice J. Hockley (Appellant) filed an appeal to the United States Court of Appeals for Veterans Claims on October 26, 2018, from the July 3, 2018, Board of Veterans' Appeals (Board) decision that dismissed her claim for entitlement to compensation under 38 U.S.C. § 1151 for residuals of an August 2008 right eye cataract surgery; 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 to formally re-issue the September 2012 rating decision which granted entitlement to compensation under 38 U.S.C. § 1151 for residuals of an August 2008 right eye cataract surgery. Appellee also agrees to send notice of appellate rights regarding this rating decision (Your Rights to Appeal Our Decision, VA Form 4107) to Appellant.
2. Appellee agrees to promptly notify the Veterans Benefits Administration (VBA) upon final disposition by the Court with respect to this settlement; and that VBA shall take prompt action to implement this agreement.
3. Appellee does not admit that any error was committed by the Department of...
To continue reading
Request your trial