DiOrio v. Nicholson

216 F. App'x 974

• Court: Court of Appeals for the Federal Circuit
• Decided: February 1, 2007
• Docket: No. 2007-7036
• Status: Published

Opinion

LOURIE, Circuit Judge.

ORDER

Anthony J. DiOrio moves to dismiss the appeal filed by the Secretary of Veterans Affairs from the Court of Appeals for Veterans Claims’ judgment in DiOrio v. Nicholson, 20 Vet.App. 193 (2006). The Secretary responds

* and moves to vacate the decision and judgment of the Court of Appeals for Veterans Claims. DiOrio’s counsel has not responded to the Secretary’s motion to vacate.

DiOrio sought an increased rating for a service-connected depressive and dysthymic disorder. The Secretary appeals the judgment of the Court of Appeals for Veterans Claims that remanded the case to the Board of Veterans Appeals for further proceedings. The Secretary informs the court that DiOrio passed away on October 7, 2006.

“[Vlacatur must be decreed for those judgments whose review is, in the words of Munsingwear, ‘prevented through happenstance.’ ” U.S. Bancorp Mortgage Company v. Bonner Mall Partnership, 513 U.S. 18, 23, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994) (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950)). Thus, because the veteran died while the appeal was pending in this court, and because counsel for DiOrio has not responded to the motion to vacate, we grant the motion to vacate.

Accordingly,

IT IS ORDERED THAT:

(1) The motion to vacate is granted. The Court of Appeals for Veterans Claims’ decision and judgment are vacated.

(2) The motion to dismiss is moot.

(3) Each side shall bear its own costs.

The Secretary’s unopposed motion for an extension of time to file his response to the motion to dismiss is granted.