Burkett v. Peake

273 F. App'x 914

• Court: Court of Appeals for the Federal Circuit
• Decided: March 7, 2008
• Docket: No. 2006-7033
• Status: Published

Opinion

PER CURIAM.

ORDER

The Secretary of Veterans Affairs responds to the court’s November 20, 2007 order and requests that the court summarily affirm the judgment of the United States Court of Appeals for Veterans Claims in Burkett v. Nicholson, 03-1816 (Sept. 2, 2005).

The Board of Veterans’ Appeals denied John D. Burkett’s increased-rating claim for postoperative residuals of an urachal cyst. The Court of Appeals for Veterans Claims vacated the Board’s decision and remanded the case to the Board, and the Secretary appealed. This court stayed proceedings pending our disposition in Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir.2007).

Summary affirmance of a case is appropriate “when the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists.” Joshua v. United States, 17 F.3d 378, 380 (Fed.Cir. 1994). The Secretary concedes that summary affirmance is appropriate in this case.

Accordingly,

IT IS ORDERED THAT:

(1) The stay of proceedings is lifted.

(2) The judgment of the Court of Appeals for Veterans Claims is summarily affirmed. The case is remanded.

(3) Each side shall bear its own costs.

(4) The official caption is revised to reflect that the current Secretary of Veterans Affairs is the respondent-appellant.