Moberly v. Peake

310 F. App'x 364

• Court: Court of Appeals for the Federal Circuit
• Decided: May 1, 2008
• Docket: No. 2007-7272
• Status: Published

Opinion

ORDER

PER CURIAM.

The Secretary of Veterans Affairs responds to the court’s order and requests that the court stay proceedings pending a decision by the United States Supreme Court on his petition for a writ of certiora-ri in Peake v. Sanders, No. 07-1209. Richard D. Moberiy has not responded. The court considers whether the judgment of the United States Court of Appeals for Veterans Claims in Moberly v. Nicholson, No. 05-1170, 2007 WL 1322148 (Apr. 25, 2007) should be summarily affirmed.

The Secretary appealed the judgment of the Court of Appeals for Veterans Claims, challenging that court’s ruling that the Secretary had the burden of establishing that a 38 U.S.C. § 5103(a) notification error was not prejudicial. In Sanders v. Nicholson, 487 F.3d 881 (Fed.Cir.2007), this court held that any section 5103(a) error should be presumed prejudicial and the Secretary has the burden of rebutting this presumption. Id. at 891. Under these circumstances, summary affirmance is appropriate.

Accordingly,

IT IS ORDERED THAT:

(1) The Secretary’s request to stay proceedings is denied.

(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.