UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

MISC. NO. 07-13

IN RE: LAPSE IN FUNDING FOR DEPARTMENT OF VETERANS AFFAIRS

Before KASOLD, Chief Judge, and HAGEL, MOORMAN, LANCE, DAVIS, SCHOELEN,

PIETSCH, BARTLEY, and GREENBERG, Judges.

O R D E R

On September 30, 2013, the Secretary of the Department of Veterans Affairs (VA) filed an

ex parte motion to stay "all VA-related filing deadlines in all cases currently pending before the

Court during any lapse in funding for [VA]." Appendix A at 1. On October 3, 2013, the Secretary

filed an amended ex parte motion to stay the same cases during any lapse in funding for VA's "Office

of General Counsel [(OGC)], Staff Group VII." Appendix B at 2. In support of his amended motion,

the Secretary informs the Court that VA's current funding will be exhausted on October 16, 2013,

such that "certain VA attorneys and support staff who are not otherwise funded or determined to be

essential for the protection of life or property" will be unable to work as of October 17, 2013. Id. 

He also indicates that "a majority of OGC operations," including those of Professional Staff Group

VII, which is responsible for litigation before the Court, "are generally not considered to be . . .

essential." Id. at 2. The Secretary seeks an open-ended stay of proceedings in all cases before the

Court in which the Secretary has a filing deadline on or after October 17, 2013, until funding is

appropriated. 

The Secretary avers, however, that "current guidance by [VA] indicates that[,] should the

Court deny this motion, or otherwise require [VA] to satisfy particular filing deadlines in cases

pending before the Court, the Secretary will make every effort to ensure that sufficient OGC staff

are available, notwithstanding anylapse of funding, to satisfyVA pleading requirements." Id. at 2-3. 

The Court remains open for business.

Upon consideration of the foregoing, it is 1

ORDERED that the Secretary's motion is granted in part and denied in part, as noted below. 

It is further

ORDERED that the time to file any pleading by the Secretary on or after October 17, 2013, 

in any matter now before the Court or any matter filed hereafter – except a Notice of Appeal to the

U.S. Court of Appeals for the Federal Circuit (Federal Circuit), or the matters noted below or as 2

 See U.S. VET. APP. R. 27(c) ("[T]he Court may act upon motions for procedural orders 1

at any time without awaiting a response.").

 Any request to stay the time to file an appeal with the Federal Circuit should be filed 2

with that Court.
otherwise ordered by the Court – is stayed for ten (10) days beginning October 17, 2013, and the

time to file any such pleading at the end of the stay is extended by 10 days, beginning when the stay

expires. It is further

ORDERED that the above-noted stays and extensions of time do not apply to the following

matters:

(1) Any case for which the Secretary has already submitted his Rule 28 (b) brief; this

includes the holding of oral arguments already scheduled or to be scheduled;

(2) Any motion for expedited proceedings. It is further 

ORDERED that the Secretary shall promptly notify the Court when funding to support the

operations of VA OGC Professional Staff Group VII is appropriated, in whole or in part. Such

notification shall contain any motion for continued relief based on the lapse of funding to support

the operations of VA OGC Professional Staff Group VII. It is further

ORDERED that the Secretary's request to stay proceedings is deemed a continuing request

until such time as the Secretary informs the Court that funding is appropriated, and therefore the stay

granted herein shall be reviewed by the Court, sua sponte, before its expiration, at which time the

stay may be extended as is, or modified, to permit the Court to continue to perform its constitutional

and statutory duty to decide cases.

DATED: October 4, 2013 BY THE COURT:

BRUCE E. KASOLD

Chief Judge

Appendices

2
Appendix A
IN THE UNITED STATES COURT

OF APPEALS FOR VETERANS CLAIMS

JOHN DOE, et al., )

)

v. ) Vet. App. No. XX-XXXX

)

ERIC K. SHINSEKI, )

Secretary of Veterans Affairs )

SECRETARY’S EX PARTE MOTION FOR AN ORDER STAYING ALL 

VA-RELATED FILING DEADLINES IN ALL CASES CURRENTLY 

PENDING BEFORE THE COURT DURING ANY LAPSE IN FUNDING 

FOR THE DEPARTMENT OF VETERANS AFFAIRS

Pursuant to U.S. Vet. App. R. (Rule) 2 and 27, Appellee respectfully 

moves this Court for a stay of proceedings in all cases before the Court in 

which a Department of Veterans Affairs (Department or VA) filing deadline 

is currently pending, or where VA is permitted to file a pleading, beginning 

on Monday, October 7, 2013, through such time as funding for the

Department is reinstated. The Secretary also respectfully moves this 

Court to suspend Rules 5(d), 25, 27(a)(5), 35(d), 36, and 41(b)(3). 

As the Court is aware, upon expiration of the current funding 

authority and expenditure of all “carry-over” funding, no public funds will be 

available to pay the expenses and salaries of VA attorneys or support staff 

who are not otherwise funded or determined to be essential for the 

protection of life or property for the performance of their official duties. The 

attorneys and support staff in VA’s Office of the General Counsel,

Veterans Court Litigation Group (i.e. Staff Group VII) are not separately 

funded, and are generally not considered to be personnel essential for the 
2

protection of life or property. Thus, during any lapse of funding to the 

Department, those employees will not be deemed “excepted employees”

and are statutorily prohibited from performing the functions essential to 

litigating cases pending before the Court on a voluntary basis. As such, 

the Secretary requests that the Court stay all proceedings currently 

pending which have a VA pleading or filing due on or after October 7, 

2013, or which by operation of the Court’s rules, would have a VA filing 

deadline created during such time as the Department is without funding 

authority. This would include staying all cases in which the Court has 

issued a decision, and which, pursuant to Rules 36 and 41, are subject to 

the entry of Judgment or Mandate in the absence of a motion by one of the 

parties for reconsideration or a panel or en banc decision, or an appeal to 

the U.S. Court of Appeals for the Federal Circuit. The Secretary requests 

that any such stay remain in effect until such time as the Department’s 

funding is reinstated.

Because this motion impacts a vast majority of the cases currently 

before the Court and not already submitted for a decision, individualized 

consent pursuant to Rule 27(a)(5) is not possible. Moreover, given the 

nature of this motion, the Secretary requests that the Court, pursuant to 

Rule 2, suspend the prohibitions of Rule 5(d) regarding combined motions;

the requirements under Rule 25 regarding service; Rule 27(a)(5)’s 

requirement to state the position of the opposing party relevant to the 
3

motion; and the timelines for entry of Judgment and Mandate pursuant to 

Rules 35(d), 36, and 41(b)(3).

The Secretary notes that while delaying these Veterans’ cases due 

to a lack of resources is undesirable, unfortunately, any lapse in the 

Department’s funding, absent a specific order from the Court, would 

preclude the General Counsel, and specifically Staff Group VII, from 

performing official functions necessary to satisfy the Court’s filing 

deadlines in the cases currently pending before the Court. 

WHEREFORE, Appellee, Secretary of Veterans Affairs, respectfully 

moves the Court to suspend its rules to allow for this motion, and to, for the 

duration of any lapse in funding for the Department, beginning October 7, 

2013, stay all VA-related filing deadlines that are pending, as well as any 

VA filing deadlines that may be created by operation of the Court’s Rules 

during any lapse of funding for the Department. 

Respectfully submitted,

WILL A. GUNN

General Counsel

/s/ David L. Quinn

DAVID L. QUINN

Acting Assistant General Counsel

U.S. Department of Veterans Affairs

Office of the General Counsel (027)

810 Vermont Avenue, N.W.

Washington, D.C. 20420

Telephone: (202) 632-6982
Appendix B
 IN THE UNITED STATES COURT

OF APPEALS FOR VETERANS CLAIMS

JOHN DOE, et al., )

)

v. ) Vet. App. No. XX-XXXX

)

ERIC K. SHINSEKI, )

Secretary of Veterans Affairs )

SECRETARY’S AMENDED EX PARTE MOTION FOR AN ORDER 

STAYING ALL VA-RELATED FILING DEADLINES IN ALL CASES 

CURRENTLY PENDING BEFORE THE COURT DURING ANY LAPSE IN 

FUNDING FOR THE DEPARTMENT OF VETERANS AFFAIRS’ OFFICE 

OF GENERAL COUNSEL, STAFF GROUP VII

Pursuant to U.S. Vet. App. R. (Rule) 2 and 27, Appellee respectfully 

moves this Court for a stay of proceedings in all cases before the Court in 

which a Department of Veterans Affairs (Department or VA) filing deadline 

is currently pending, or where VA is permitted to file a pleading, beginning 

on Thursday, October 17, 2013, through such time as the requisite funding 

for the Office of General Counsel (OGC) is appropriated. The Secretary 

also respectfully moves this Court to suspend Rules 5(d), 25, 27(a)(5), 

35(d), 36, and 41(b)(3). 

As the Court is aware, upon expiration of the current funding 

authority and expenditure of all “carry-over” funding, no public funds will be 

available to pay the expenses and salaries of certain VA attorneys or 

support staff who are not otherwise funded or determined to be essential 

for the protection of life or property. It is currently estimated that the carry-
2

over balance in the Department’s General Administration Account, which 

funds the majority of OGC operations (including those of attorneys and 

support staff in OGC’s Veterans Court Litigation Group, Staff Group VII), 

will be exhausted at the close of business on October 16, 2013. 

Personnel of OGC’s Staff Group VII are generally not considered to be 

personnel essential for the protection of life or property. Thus, during any

lapse of funding, those employees would generally not be deemed 

“excepted employees” and would be statutorily prohibited from performing 

the functions essential to litigating cases pending before the Court on a 

voluntary basis. For that reason, the Secretary requests that the Court 

stay all proceedings currently pending which have a VA pleading or filing 

due on or after October 17, 2013, or which by operation of the Court’s 

rules would have a VA filing deadline created during such time as the OGC

is without the requisite funding authority. This would include staying all 

cases in which the Court has issued a decision and which, pursuant to 

Rules 36 and 41, are subject to the entry of Judgment or Mandate in the 

absence of a motion by one of the parties for reconsideration or a panel or 

en banc decision, or an appeal to the U.S. Court of Appeals for the Federal 

Circuit. The Secretary requests that any such stay remain in effect until 

such time as the requisite funding is appropriated. 

In the interest of candor, the undersigned notes that the current 

guidance by the Department indicates that should the Court deny this 
3

motion, or otherwise require the Department to satisfy particular filing 

deadlines in cases pending before the Court, the Secretary will make every 

effort to ensure that sufficient OGC staff are available, notwithstanding any

lapse of funding, to satisfy VA pleading requirements. 

Because this motion impacts a vast majority of the cases currently 

before the Court and not already submitted for a decision, individualized

consent pursuant to Rule 27(a)(5) is not possible. Moreover, given the 

nature of this motion, the Secretary requests that the Court, pursuant to 

Rule 2, suspend the prohibitions of Rule 5(d) regarding combined motions;

the requirements under Rule 25 regarding service; Rule 27(a)(5)’s 

requirement to state the position of the opposing party relevant to the 

motion; and the timelines for entry of Judgment and Mandate pursuant to 

Rules 35(d), 36, and 41(b)(3).

The Secretary notes that while delaying these Veterans’ cases due 

to a lack of resources is undesirable, unfortunately, any lapse in the 

requisite funding, absent a specific order from the Court, would preclude

the General Counsel, and specifically Staff Group VII, from performing 

official functions necessary to satisfy the Court’s filing deadlines in the 

cases currently pending before the Court. 

WHEREFORE, Appellee, Secretary of Veterans Affairs, respectfully 

moves the Court to suspend its rules to allow for this motion, and, for the 

duration of any lapse in funding, to stay all proceedings currently pending 
4

which have a VA pleading or filing due on or after October 17, 2013, or 

which by operation of the Court’s rules would have a VA filing deadline 

created during such time as the OGC is without the requisite funding 

authority.

Respectfully submitted,

WILL A. GUNN

General Counsel

/s/ David L. Quinn 

DAVID L. QUINN

Acting Assistant General Counsel

U.S. Department of Veterans Affairs

Office of the General Counsel (027)

810 Vermont Avenue, N.W.

Washington, D.C. 20420

Telephone: (202) 632-6982