Rodriguez v. McDonough, Vet. App. 20-6311
| Decision Date | 18 August 2021 |
| Docket Number | Vet. App. 20-6311 |
| Court | United States Court of Appeals For Veterans Claims |
| Parties | ZENAIDO R. RODRIGUEZ, Appellant, v. DENIS MCDONOUGH, Secretary of Veterans Affairs, Appellee. |
FOR APPELLANT: CHRISTOPHER GLENN MURRAY BARTON F. STICHMAN
FOR APPELLEE: RICHARD A. SAUBER General Counsel, MARY ANN FLYNN Chief Counsel
JOAN E. MORIARTY Deputy Chief Counsel
ANITA U. KOEPCKE, Appellate Attorney Office of the General Counsel (027C)
Pursuant to U.S. Vet. App. Rules 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 of Veterans' Appeals decision giving rise to the appeal is overridden thereby mooting the case or controversy. Bond v. Derwinski, 2 Vet.App. 376 (1992); Kimberly-Clark v. Procter & Gamble, 973 F.2d 911, 914 (Fed. Cir. 1992) ("Generally, settlement of a dispute does render a case moot.").
The General Counsel represents the Secretary of Veterans Affairs before the Court. 38 U.S.C. § 7263(a); 38 C.F.R. § 14.500. 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) () (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 raised 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.
The parties further note that their settlement concerns the Board's finding that the reduction of Appellant's evaluation for service-connected supination and pronation, impairment of the left arm, from 20 percent to 10 percent, effective April 1, 2016, was proper. The parties note that the Court does not have jurisdiction over that part of the Board's decision that remanded the issue of entitlement to a total disability rating based on individual unemployability. Breeden v. Principi, 17 Vet.App. 475, 478 (2004) (per curiam order).
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, Zenaido R. Rodriguez (Appellant) filed an appeal to the U.S. Court of Appeals for Veterans Claims on September 9, 2020, from a May 15, 2020, Board of Veterans' Appeals (BVA) decision that found that the rating reduction from 20 percent to 10 percent for Appellant's service-connected supination and pronation, impairment of the left arm, effective April 1, 2016, was proper; 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 restore Appellant's 20-percent rating, from 10 percent, for supination and pronation, impairment of the left arm, effective April 1, 2016, to October 2, 2017.
2. Appellee agrees to promptly notify the Veterans Benefits Administration (VBA) upon final disposition by the Court with...
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