Sumner v. Principi
15 Vet. App. 404
Vet. App.
2002
Check Treatment
Docket

*1 uniformity of the maintain to secure or question to resolve a decisions or

Court’s It is not suffi- importance. exceptional the two allege that one of merely to

cient met; are it must be criteria petitioner has shown

demonstrated.

neither. foregoing, it is

Upon consideration single judge

ORDERED June

motion to amend the Court’s It further

order is denied. full by the

ORDERED September quash

motion to Court’s

2001, order, the motion for reconsidera

tion, stay proceedings motion to and the of the circum

are each denied. June set forth Court’s

stances order, order and this the Clerk petition to return to the

Court is directed in this pleadings all future her

er generally

matter. See In re Matter of Assoc., 747-49

Packer Ave.

(3d Cir.1989); Cook v. Peter Kiewit Sons (9th Cir.1985);

Co., In Re F.2d 1030 (2d Corp., 613 F.2d 388 Textile

Hartford Cir.1979); Corp. v. Humble Kinnear-Weed (5th Co., 441 F.2d 631 Refining &Oil Judge, and Cir.1971). FARLEY, HOLDAWAY, IVERS, SUMNER, Appellant, W.T. opinion, In a November en banc applica the Court denied the fees Access Jus 2412(d) (EAJA), be is not a cause the for Veterans Claims. Princip party under the EAJA. Sumner i, 264-65

banc). On November Binion, filed, counsel, Clayte lant banc reconsid- timely motion for en Esq., *2 405 2412(d) by Prior to action (EAJA), eration. this Court reconsideration, concluded, on his motion for ap- respect with to the mer 27, 2001, filed, pellant, theory for attaining on December EAJA, through a different Kenneth Car- status under the that “those Su (NOA) preme a penter, Esq., awarding Notice of cases prevailing- party require status either United States Court the ultimate (Federal Circuit). receipt of a benefit that sought was in i.e., bringing litigation, the award of a of an appellant’s filing NOA to the benefit, or, minimum, at a a court remand Federal Circuit divests this of all predicated upon administrative error.” Id. jurisdiction over this case. See In re Bai at 264 (citing Buckhannon Bd. and Care (1998) 11 ley, Vet.App. 349 (per cu Home, Virginia Inc. v. West Dep’t of order) riam (holding filing that of NOA to Res., 598, 121 Health and Human 532 U.S. juris Federal Circuit divests this Court of 1835, 1840-42, S.Ct. 149 L.Ed.2d 855 respondent’s diction over stay motion for (2001), and Shalala v. Schaefer, 509 U.S. order); disciplinary this Court’s Villa 292, 302-04, 113 S.Ct. 125 L.Ed.2d West, Vet.App. mor v. 11 193 (1993)). 239 The Court held that the ap (same order) pending banc as to motion pellant had not attained prevailing-party here for full single-judge Court review of status because the remand in the underly decision); Derwinski, v. Cerullo 1 Vet. ing appeal in this case was not a Court (1991) App. 196 (stating legal remand predicated upon administrative er precedent filing is clear that of NOA con ror. at appellant’s Id. 265. plenary jurisdiction fers upon appellate reconsideration, argues, alia, he inter court). jurisdiction The Court thus lacks because, subsequent to this Court’s to review the appellant’s November 2001 claim, Cerullo remand of his regional VA motion for en banc reconsideration. (RO) office him service connec On consideration of the foregoing, it is disability 10% rating, such a appellant’s ORDERED that the motion post-Court remand decision the RO “ for en banc reconsideration is dismissed resulted in the ‘ultimate of a ben jurisdiction. for lack of efit that in sought bringing litiga was ” tion’ and thus afforded him prevailing- Judge, with whom party status. Motion at 3 (quoting Sum HOLDAWAY and Judges, ner, 264). 15 at Vet.App. join, concurring: Nowhere in his motion does the concur in We the dismissal for lack of lant attempt to refute this Court’s holding jurisdiction appellant’s motion for en in regarding Sumner the limitations to bane reconsideration. separate- We write attaining prevailing-party imposed status however, ly, explain why we would have Supreme Court. con voted to if motion the Court had assertions, trary ap jurisdiction not been divested of over it. pellant in may prevailing- this Court attain that, Initially, underlying party upon status based the “ultimate re appeal in this the appellant ceipt sought had re of a benefit that in bring was Sumner, ceived a pursuant remand v. ing litigation,” Vet.App. Cerullo 15 at Derwinski, (1991). 1 195 Vet.App. only Sum if the Court awards the (2001) benefit(s) ner Principi, 15 Vet.App. merits deci (en banc). In denying appellant’s ap sion proceedings termination plication fees and to this Court’s Rules of Practice 42; Access to Jus- and Procedure. See U.S. R.

Buckhannon, (noting S.Ct. “judicial imprimatur on the

necessity for MARSO, Appellant, Doris “judicially change sanctioned change” or parties” relationship before legal attained). can prevailing-party status *3 present Neither of those circumstances is of case, and thus appellant the instant the Veterans Indeed, in party. is the not a the Court appeal, remanded Board permit the the of Veterans’ case Appeals United States BVA) (Board Appeals carry or out the for Claims. that the Board Chairman reconsideration provide; had the BVA indicated that would any the this Court without appellant left and Court a benefit without award of HOLDAWAY, IVERS, and of Board

Court error. determination after the Sum Court, the opinion ner was issued this Appeals of opinion its

Federal Circuit issued Scar

borough Principi, (Fed.Cir.2001), it in which that an held On af- December appellant show sta must firmed an August decision of the 30-day jurisdictional tus EAJA within (Board) Board of Veterans’ which 2412(d)(1)(B). § filing period, 28 U.S.C. determined that the veteran’s heart dis- In the RO award the instant of ser ease was not in service incurred and that vice occurred more than 14 connection disability did service-connected not cause 30-day period had ex months after that or substantially materially contribute to Thus, pired. assuming, contrary to even appellant, veteran’s death. The the “ulti preceding paragraph, widow, benefit,” Sumner, veteran’s abandoned those issues mate of Vet.App. need not appeal, on instead contended but Court, have been impossible it would Board by failing erred to consider whether for instant case to she was entitled dependency indem- receipt prior expi have shown such (DIC) nity compensation benefits 30-day period. ration of that See Scarbor 1318(b)(1). decision, to 38 U.S.C. (EAJA ough, 273 F.3d at 1090 applicant Court determined Board had application “showing [inter “shall” submit it not committed error when did con- not applicant ‘prevailing alia] eligibility sider the appellant’s for DIC ”). party’ 1318(b)(1). benefits on the basis of section reasons, For the we would appellant, have voted to of appeal the decision to the U.S. for en banc reconsideration. (Federal the Federal Circuit). August On case in Circuit remanded the of Nat’l (NOVA) Veterans’ Advocates, Org. Inc.