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Whitt v. Derwinski

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT


Decided: July 31, 1992.

IVY LEE WHITT, CLAIMANT-APPELLEE,
v.
EDWARD J. DERWINSKI, SECRETARY OF VETERANS AFFAIRS, RESPONDENT-APPELLANT.

Clevenger, III

Clevenger

ON MOTION

Order

Edward J. Derwinski, Secretary of Veterans Affairs moves to vacate the Court of Veterans Appeals decision in Whitt v. Derwinski, No. 89-16 and to remand to the Court of Veterans Appeals with instructions to dismiss Whitt's appeal.*fn1 Ivy Lee Whitt has not filed a response.

The Secretary argues that this court's ruling in Strott v. Derwinski, No. 91-7047 (Fed. Cir. May 13, 1992) is dispositive of Whitt's appeal. Strott concerned the issue of whether a letter sent after a regional office conducted a hearing in an appellate capacity constituted a valid Notice of Disagreement. The court stated that "any written disagreement with that decision is not a valid NOD, 38 U.S.C. § 7105 and 38 C.F.R. § 19.118, and therefore cannot function as the statutory basis for Veterans Court Jurisdiction." Strott, slip op. at 8. Significantly, the court stated that "to the extent that Whitt v. Derwinski suggests otherwise, at *20, it is overruled." Id.

Whitt's appeal raises the same issue that this court addressed in Strott. The Secretary points to the court's statement in Strott as support for its motion to vacate. Further, we note that Whitt does not oppose the motion to vacate. On these bases, it is proper to grant the Secretary's motion.

Accordingly,

IT IS ORDERED THAT:

(1) The Secretary's motion to vacate is granted.*fn2

(2) This appeal is remanded to the Court of Veterans Appeals with instructions to dismiss Whitt's appeal.

JUL 31 1992

Date

Raymond C. Clevenger, III, Circuit Judge

Disposition

IT IS ORDERED THAT: (1) The Secretary's motion to vacate is granted. (2) This appeal is remanded to the Court of Veterans Appeals with instructions to dismiss Whitt's appeal.


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