Thomas K. Dailey, Jr. v. Eric K. Shinseki , 2012 U.S. Vet. App. LEXIS 1989 ( 2012 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-0979
THOMAS K. DAILEY, JR., PETITIONER,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, RESPONDENT.
Before HAGEL, MOORMAN, and LANCE, Judges.
ORDER
On March 22, 2012, Thomas K. Dailey, Jr., filed through counsel a petition for extraordinary
relief in the nature of a writ of mandamus, requesting, in pertinent part, that this Court order the
Secretary to issue a final decision in response to the Substantive Appeal he purportedly filed on
September 25, 2007. On June 20, 2012, a panel was formed to consider Mr. Dailey's petition.
On August 31, 2012, the Secretary filed an amended response and informed the Court that
the Montgomery, Alabama, regional office issued an August 28, 2012, Statement of the Case in
response to Mr. Dailey's June 2011 letter requesting that VA issue a final decision in response to his
September 2007 Substantive Appeal. The regional office determined that Mr. Dailey's June 2011
letter was a Substantive Appeal but it was not timely; however, the regional office accepted Mr.
Dailey's June 2011 letter as a Notice of Disagreement with its decision that he had not filed a
Substantive Appeal in September 2007.
On September 4, 2012, the Court ordered Mr. Dailey to file a response, not later than 11:59
p.m. on Thursday, September 6, 2012, explaining why the Court should not dismiss his petition as
moot. On September 6, 2012, Mr. Dailey filed his response indicating that he "does not object to the
Secretary's [a]mended [r]esponse and motion to dismiss." Appellant's September 6, 2012, Response
at 1(emphasis in original).
This Court adheres to the case-or-controversy jurisdictional restraints provided for in Article
III of the U.S. Constitution. See Mokal v. Derwinski, 1 Vet.App. 12, 13-15 (1990). When the relief
requested in a petition has been obtained, the appropriate course of action is for the Court to dismiss
the petition as moot. See Thomas v. Brown, 9 Vet.App. 269, 270-71 (1996) (per curiam order).
Because the response filed by the Secretary demonstrates that Mr. Dailey has obtained the requested
relief and because Mr. Dailey does not oppose the Secretary's amended response seeking dismissal,
the Court will dismiss Mr. Dailey's petition as moot. Accordingly, oral argument scheduled for
September 13, 2012, at 1:30 p.m. will be canceled.
Upon consideration of the foregoing, it is
ORDERED that Mr. Dailey's March 22, 2012, petition regarding his September 25, 2007,
Substantive Appeal, is DISMISSED. It is further
ORDERED that the September 13, 2012, oral argument scheduled in this case is canceled.
DATED: September 12, 2012 PER CURIAM.
Copies to:
John F. Cameron, Esq.
VA General Counsel (027)
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