Opinion
No. 2007-7036.
February 1, 2007.
Appeal from the Court of Appeals for Veterans Claims, 20 Vet.App. 193, Davis, J.
Before LOURIE, Circuit Judge, CLEVENGER, Senior Circuit Judge, and MOORE, Circuit Judge.
ON MOTION
LOURIE, Circuit Judge.
ORDER
Anthony J. DiOrio moves to dismiss the appeal filed by the Secretary of Veterans Affairs from the Court of Appeals for Veterans Claims' judgment in DiOrio v. Nicholson, 20 Vet.App. 193 (2006). The Secretary responds and moves to vacate the decision and judgment of the Court of Appeals for Veterans Claims. DiOrio's counsel
The Secretary's unopposed motion for an extension of time to file his response to the motion to dismiss is granted.
DiOrio sought an increased rating for a service-connected depressive and dysthymic disorder. The Secretary appeals the judgment of the Court of Appeals for Veterans Claims that remanded the case to the Board of Veterans Appeals for further proceedings. The Secretary informs the court that DiOrio passed away on October 7, 2006.
"[V]acatur must be decreed for those judgments whose review is, in the words of Munsingwear, `prevented through happenstance.'" U.S. Bancorp Mortgage Company v. Bonner Mall Partnership, 513 U.S. 18, 23, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994) (quoting United States v. Munsing-wear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950)). Thus, because the veteran died while the appeal was pending in this court, and because counsel for DiOrio has not responded to the Secretary's motion to vacate.
Accordingly,
IT IS ORDERED THAT:
(1) The motion to vacate is granted. The Court of Appeals for Veterans Claims' decision and judgment are vacated.
(2) The motion to dismiss is moot.
(3) Each side shall bear its own costs.