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Case No.

11-3083

EQCF Dkt #211 Filed 11/26/2013

IN THE UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS _________________________________ CARMEN CARDONA Appellant, v. ERIC K. SHINSEKI, Appellee. ) ) ) ) ) ) ) ) ) ) ) Vet. App. No. 11-3083

Date: November 26, 2013

APPELLANTS OPPOSITION TO SECRETARYS MOTION TO DISMISS On November 22, 2013 Secretary Shinseki filed a motion to dismiss Ms. Cardonas appeal, claiming that it is moot in light of the Secretarys completion of payment to Ms. Cardona. This motion comes months after the Court first directed the parties to brief the issue of mootness and several weeks after the parties completed that briefing. See Order (Sept. 20, 2013); Appelles Supp. Memo of Law Responding to Courts Order (Oct. 4, 2013); Order (Oct. 9, 2013), Response to Court Order Oct. 9, 2013 (Oct. 16, 2013); Order (Oct. 22, 2013), Response to Court Order Oct. 22, 2013 (Oct. 30, 2013); Appellants Supp. Memo of Law (Oct. 30, 2013). The Secretary also previously moved to vacate and remand the case to the Board of Veterans Appeals, but that motion now appears to be moot in light of the Secretarys sua sponte payment to Ms. Cardona. See Mot. to Vacate the Board of Veterans Appeals Decision and Remand to Apply the Presidents Directive (Oct. 4, 2013).
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Ms. Cardona hereby incorporates the arguments in her Supplemental Memorandum of Law in this Opposition to the Secretarys Motion to Dismiss. Her position has not changed in light of the completion of payment by the Secretary. Voluntary cessation of challenged conduct moots a case only if it is absolutely clear that the wrongful behavior could not reasonably be expected to recur in the future. Military Order of Purple Heart of USA v. Secy of Veterans Affairs, 580 F.3d 1293, 1295 (Fed. Cir. 2009). For all the reasons explored at length in Ms. Cardonas Supplemental Memorandum of Law, the Secretary cannot meet his formidable burden because his decision is not binding. The Secretarys payments, while welcome, are made voluntarily, and may be voluntarily withdrawn at any time by this or a future Secretary. Accordingly, this appeal is not moot. See Appellants Supp. Memo of Law (Oct. 30, 2013) at 4-8. Additionally, there is a strong public interest in having the legality of the practice settled. Id. at 9. For the reasons previously stated in Appellants Supplemental Memorandum of Law (Oct. 30, 2013), this Court should deny Secretary Shinsekis motion to dismiss and adjudicate the constitutional challenge before it.

Respectfully submitted, /s/ Michael J. Wishnie Kendall Hoechst, Law Student Intern Jennifer McTiernan, Law Student Intern V. Prentice, Law Student Intern Michael Wishnie, Supervising Attorney Veterans Legal Service Clinic
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Jerome N. Frank Legal Services Organization P.O. Box 209090 New Haven, CT 06520-9090 (203) 432-4800

CERTIFICATE OF SERVICE I hereby certify that, on November 26, 2013, a copy of the foregoing Appellants Opposition to Secretarys Motion to Dismiss was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the courts electronic filing system or by mail to anyone unable to accept electronic filings as indicated on the Notice of Electronic Filing. Parties may access this filing through the courts CM/EFC system. The following parties were served by electronic means: Ronen Morris Appellate Attorney Office of the General Counsel (027D) U.S. Department of Veterans Affairs 810 Vermont Avenue, N.W. Washington, D.C. 20420 (202) 443-5059/5000 ronen.morris@va.gov

/s/ Michael J. Wishnie Veterans Legal Service Clinic Jerome N. Frank Legal Services Organization (203) 432-4800 michael.wishnie@yale.edu