Simmons v. Principi

This version includes the errata dated 18Nov02 -e
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 98-354
RICHARD D. SIMMONS, APPELLANT ,
V.
ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HOLDAWAY, STEINBERG, and GREENE, Judges.
ORDER
On June 7, 2002, the Court issued a per curiam order withdrawing the August 30, 2002, 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 1378 (Fed. Cir. 2001), 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.
DATED: November 13, 2002 PER CURIAM.