Case No.

11-3083

EQCF Dkt #168 Filed 10/15/2012

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS CARMEN CARDONA, ) ) Appellant, ) ) v. ) ) ERIC K. SHINSEKI, ) Secretary of Veteran Affairs, ) ) Appellee, ) ) and ) ) BIPARTISAN LEGAL ADVISORY ) GROUP OF THE U.S. HOUSE ) OF REPRESENTATIVES, ) ) Intervenor. )

Vet. App. No. 11-3083

APPELLANTS PARTIAL OPPOSITION TO SECRETARYS MOTION TO RESCHEDULE ORAL ARGUMENT SET FOR NOVEMBER 15, 2012 Pursuant to U.S. Vet. App. R. 27, 34(a), and 47(a) Appellant Carmen Cardona respectfully submits this statement in partial opposition to the Secretarys motion to reschedule oral argument, which has been ordered by the Court to be held on November 15, 2012. Appellant does not object to the motion provided the Court reschedules argument on a date earlier than November 15, 2012. Appellant respectfully objects to the Secretarys motion, however, to the extent it would result in the Court rescheduling argument for a date later than November 15, 2012.

While Appellant is sympathetic to the personal travel plans of Mr. Ronen Morris, counsel for the Secretary, and throughout this case has routinely consented to scheduling and other motions of the Secretary and the Intervenor, Ms. Cardona must object to postponement of oral argument beyond November 15, 2012 for several reasons. First, this Court has previously, and properly, ordered expedited treatment of this case. Courts Order dated August 13, 2012, at 1 n. 1 (This case was expedited before the Board of Veterans' Appeals (Board) as a case involv[ing] interpretation of law of general application affecting other claims, 38 U.S.C. 7107(a)(2), and has been expedited before the Court[]); Courts Order dated May 2, 2012 (ordering that briefing be expedited due to the exceptional circumstances of this situation and the undue delay caused by briefing under the normal briefing schedule ). In its motion, the Secretary acknowledges as much. Secretarys Motion to Reschedule, 1-2 (recognizing the interest of all parties involved in moving this case toward expeditious judicial resolution). Second, even with expedited treatment at both the BVA and this Court, it has been nearly two-and-a-half years since Ms. Cardona was married under the laws of Connecticut and applied for additional dependency benefits for her spouse. Deprivation of these benefits works an economic hardship on Ms. Cardona and her family. Third, the Secretary is well represented before this Court by an experienced corps of appellate attorneys from the VA Office of General Counsel. With a month to prepare, there can be little doubt that another experienced appellate attorney is capable of preparing to defend the Secretarys position. Moreover, while Mr. Morris may be the only attorney to have filed a formal notice of appearance on behalf of the Secretary, the
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names of other attorneys have appeared on the Secretarys briefs and motions. For instance, Carolyn Washington, Deputy Assistant General Counsel, who is Mr. Morriss direct supervisor, appears on all or nearly all filings. Ms. Washington also participated in the briefing conference in this case held March 15, 2012; the staff conference held August 6, 2012; and sat with the undersigned supervising attorney behind counsel table during oral argument on the RBA motions held August 9, 2012. For the foregoing reasons, Ms. Cardona respectfully opposes the Secretarys motion insofar as it would result in postponing argument after November 15, 2012. If the Court were able to hold argument on a date prior to November 15, 2012, Ms. Cardona would consent to the motion to reschedule. In this regard, Ms. Cardona notes that the Courts public calendar indicates oral arguments may be held on October 23-25, 2012, in the morning and afternoon of each date, but appears to have scheduled arguments only for the morning of October 25. Ms. Cardona would have no objection to holding argument on an available date and time in October 23-25, or another date prior to November 15. See also Rule 34(a) (Court will schedule argument when it determines). WHEREFORE, Appellant respectfully requests that this Court deny the Secretarys motion or, in the alternative, schedule argument for a date and time convenient to the Court prior to November 15, 2012. Respectfully submitted, FOR APPELLANT /s/ Michael J. Wishnie Michael J. Wishnie, Counsel for Appellant
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Edwina Clarke, Law Student Intern Laura Keay, Law Student Intern Sofia Nelson, Law Student Intern Eric Parrie, Law Student Intern The Jerome N. Frank Legal Services Organization Yale Law School P.O. Box 208215 (203) 436-4780

CERTIFICATE OF SERVICE

I hereby certify that, on October 15, 2012, a copy of foregoing Appellants Motion to Amend Notice of Appeal was filed electronically and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent by e-mail to all parties by operation of the courts electronic filing system or by mail to anyone unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may access this filing through the courts CM/ECF system. The following parties or counsel were served by electronic means: Ronen Morris Appellate Attorney Office of the General Counsel (027D) U.S. Department of Veterans Affairs 810 Vermont Avenue, N.W. Washington, D.C. 20420 (202) 443-5059/5000 Mary Beth Walker Assistant Counsel Office of General Counsel U.S. House of Representatives 219 Cannon House Office Building, Washington, DC 20515 (202) 408-4128 marybeth.walker@mail.house.gov /s/ Michael J. Wishnie Michael J. Wishnie Supervising Attorney Jerome N. Frank Legal Services Organization Veterans Legal Services Clinic P.O. Box 209090 New Haven, CT 06520-9090 (203) 432-4800 michael.wishnie@yale.edu