INGRASSIA v. NICHOLSON, 219 Fed.Appx. 979 (Fed. Cir. 2007)
Lucien J. INGRASSIA, Claimant-Appellee, v. R. James NICHOLSON,Secretary of Veterans Affairs, Respondent-Appellant.
No. 2007-7011.United States Court of Appeals, Federal Circuit.
March 1, 2007.
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
Before NEWMAN, RADER, and LINN, Circuit Judges.
ON MOTION
RADER, Circuit Judge.
ORDER
The Secretary of Veterans Affairs moves to stay proceedings in the above-captioned appeal pending the court's disposition ofMlechick v. Nicholson, 2006-7362. Lucien J. Ingrassia opposes and moves to dismiss the Secretary's appeal. The Secretary opposes the motion to dismiss.[fn*] The court considers sua sponte whether summary affirmance of the Court of Appeals for Veterans Claims' judgment, Ingrassia v.Nicholson, 04-516, 2006 WL 2128621 (Vet. App. 2006), is warranted.
In Mayfield v. Nicholson, 444 F.3d 1328, 1333
(Fed. Cir. 2006), we held that:
[T]he duty of affirmative notification [as to the evidence that is needed and who shall be responsible for providing it] is not satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation. . . . [S]ection 5103 requires the VCAA notification to be issued prior to the initial decision on the claim, not afterwards.
In the decision on appeal, the Court of Appeals for Veterans Claims determined that "the Board relied solely on post-decisional documents in determining that Mr. Ingrassia received adequate notice under section 5103(a)" thus committing remandable error under Mayfield.
Summary affirmance of a case "is appropriate, interalia, when the position of one party is so clearly correct as a matter of law that no substantial question regardingPage 980
the outcome of the appeal exists." Joshua v. UnitedStates, 17 F.3d 378, 380 (Fed. Cir. 1994) (summarily affirming the Court of Federal Claims' dismissal of a complaint). The Court of Appeals for Veterans Claims correctly determined that remand was required pursuant toMayfield. Thus, because no substantial question exists regarding the outcome of the Secretary's appeal, the court summarily affirms the judgment of the Court of Appeals for Veterans Claims.
Accordingly,
IT IS ORDERED THAT:
(1) The motion to stay is denied.
(2) The judgment of the Court of Appeals for Veterans Claims is summarily affirmed.
(3) Each side shall bear its own costs.
[fn*] We grant the Secretary's motion for an extension of time to file his opposition.