Simmons v. Principi

16 Vet. App. 467, 2002 U.S. Vet. App. LEXIS 882, 2002 WL 31511135

Opinion

ORDER

PER CURIAM.

On June 7, 2002, the Court issued a per curiam order withdrawing the August 30, 2000, panel decision and ordering the parties to file supplemental memoranda regarding the Secretary’s supplemental response and the effect, if any, on the instant appeal of Roberson v. Principi, 251 F.3d 1378 (Fed.Cir.2001), Disabled American Veterans v. Gober, 234 F.3d 682 (Fed.Cir.2000), Hayre v. West, 188 F.3d 1327 (Fed.Cir.1999), and Livesay v. Principi, 15 Vet.App. 165 (2001) (en banc). On September 23, 2002, the Secretary filed his response to the Court’s June 2002 order; he requests that the Court’s decision be stayed pending the outcome in the United States Court of Appeals for the Federal Circuit (Federal Circuit) of Cook v. Principi, No. 00-7171. Response (Resp.) at 1-2. In Cook, on January 4, 2002, the Federal Circuit, sitting en banc, 275 F.3d 1365, 1366 (Fed.Cir.2002), ordered the parties to brief the efficacy of Hayre, supra, and heard oral argument on July 9, 2002. The Secretary argues here that “the outcome of Cook, although perhaps not controlling, will be of great assistance to the Court”. Resp. at 2. In his October 3, 2002, reply, the appellant indicates that he does not object to such a stay. Reply at 1-2.

The issues in the two cases regarding the application of the Secretary’s duty to assist in connection with claims of clear and unmistakable error (CUE) are substantially similar, and the disposition of Cook could materially affect the instant proceedings. Therefore, in the interest of judicial economy, the Court will stay further proceedings in the instant case pending the disposition of Cook.

Upon consideration of the foregoing, it is

ORDERED that the Secretary’s unopposed request to stay proceedings pending the disposition of Cook, supra, is granted pending further order of the Court.