Cardona v. Shinseki, 26 Vet.App. 472 (per curiam order) (Mar. 11, 2014)
CONSTITUTIONAL CHALLENGE TO DOMA; MOOTNESS DOCTRINE
Constitutional challenge to the Defense of Marriage Act is mooted when the Secretary actually pays benefits. The voluntary cessation exception to a finding of mootness is refuted by the Secretary’s showing of a genuine policy change. Mere speculation that the policy may change back in the future will not preclude a finding of mootness.
The Board denied spousal benefits because the appellant’s spouse (same sex, legally married in the state of Connecticut) was not a “spouse” for VA benefits purposes. The appellant challenged both VA’s definition of “spouse” and the definition under the DOMA as unconstitutional. The CAVC stayed the case pending the Supreme Court’s decision on the constitutionality of the DOMA. In U.S. v. Windsor, 133 S. Ct. 2675, 2695 (2013), the Supreme Court held that the definition of spouse in the DOMA was unconstitutional. Shortly thereafter, the Secretary informed the CAVC that it would cease enforcing VA’s definition of spouse. The Secretary paid spousal benefits to the appellant and filed a motion to dismiss the case. The appellant opposed the motion, arguing that the voluntary cessation exception to the mootness doctrine applied to her case.
The CAVC discussed the case law surrounding the voluntary cessation exception to the mootness doctrine, which is “based on the concern that a party voluntarily ceasing its conduct might be attempting to manipulate court proceedings and evade judicial review.” 26 Vet.App. at 476. The Court found that the Secretary’s voluntary cessation of enforcing VA’s definition of “spouse” reflected a genuine policy change brought about by a Presidential directive following a Supreme Court decision. The Court rejected the appellant’s argument that this or some future administration could resume enforcement of the definition of spouse at any time, noting that “the standard for voluntary cessation is whether recurrence ‘could . . . reasonably be expected,’ not whether recurrence is possible under a hypothetical future scenario.” Id. at 482. The Court thus determined that the Secretary met his burden to refute the voluntary cessation exception and dismissed the case as moot.