Mckelvy v. McDonough

• Decision Date: 01 September 2022
• Docket Number: 21-1523
• Parties: DENNIS D. MCKELVY, Appellant, v. DENIS MCDONOUGH, Secretary of Veterans Affairs, Appellee.
• Court: United States Court of Appeals For Veterans Claims

DENNIS D. MCKELVY, Appellant,
v.
DENIS MCDONOUGH, Secretary of Veterans Affairs, Appellee.

No. 21-1523

United States Court of Appeals For Veterans Claims

September 1, 2022

FOR APPELLANT: MICHAEL S. JUST.

FOR APPELLEE:CATHERINE C. MITRANO Acting General Counsel MARY ANN FLYNN Chief Counsel.

MEGAN C. KRAL Deputy Chief Counsel.JENNIFER K. HAMEL Appellate Attorney Office of General Counsel.

JOINT MOTION TO TERMINATE THE APPEAL

Pursuant to U.S. Vet.App. R. 27 and 42, the parties 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

1

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 issue 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.

Pursuant to U.S. Vet.App. R. 41(c)(2), the parties agree to unequivocally waive further Court review of, and any right to appeal, the Court's order on this Joint Motion to Terminate and...