Cardona: Same Sex Spouses and Voluntary Cessation Exception to the Mootness Doctrine

Carmen J. Cardona v. Shinseki, Opinion Number 11-3083, was decided Marcy 11, 2014 and concerns additional compensation for a dependent same sex spouse and the voluntary cessation exception to the doctrine of mootness.

The veteran sought additional compensation for a dependent spouse under 38 USC 1115.  However, the dependent spouse was a same sex spouse  under Connecticut law and not a spouse pursuant to 38 USC 101(31).

The case was stayed until the decision in US v. Windsor, and then the Secretary filed a motion to vacate the Board decision and remand the matter for award of additional spouse compensation.  The VA then filed a motion to dismiss based on mootness and informed the Court all past due benefits had been paid.  The veteran opposed the motion based on the voluntary cessation exception to the mootness doctrine, essentially arguing because the law remains, this or a future administration could simply resume enforcement of section 101(31) in the future.

The Court found this was not a circumstance where the Secretary’s cessation appears to be a transitory litigation posture.  Id. at *9.  “Further…, this is not a case where the circumstances surrounding the voluntary cessation reflect an attempt to evade judicial review or manipulate this Court’s proceedings.  Rather the circumstances reflect a genuine, good faith change in policy based on the discernable developments noted above—issuance of Windsor, a district court’s decision that the title 38 provision is unconstitutional, and the President’s directive that executive agencies not enforce the provision—which weigh heavily in favor of finding that a reversion to the enforcement of section 101(31) is not reasonably likely.”

So, it is not clear a veteran can receive additional compensation for a same-sex spouse and that same-sex spouse should receive other benefits.

Decision Chief Judge Kasold, Judges Davis and Bartley.