Mr. Ribaudo and the appellant in Haas have the same attorneys. Motion to Modify at 2. 1

Designated for electronic publication only

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 06-2762

NICHOLAS RIBAUDO, PETITIONER,

V.

JAMES B. PEAKE, M.D.,

SECRETARY OF VETERANS AFFAIRS, RESPONDENT.

Before GREENE, Chief Judge, and KASOLD, HAGEL, MOORMAN,

LANCE, DAVIS, and SCHOELEN, Judges.

O R D E R

On April 13, 2007, a full Court panel issued an order in Ribaudo v. Nicholson staying the

adjudication before the Board of Veterans' Appeals (Board) and VA regional offices of cases that are

potentially affected by this Court's decision in Haas v. Nicholson, 20 Vet.App. 257 (2006), until such time

as the United States Court of Appeals for the Federal Circuit (Federal Circuit) issued mandate in the thenpending appeal of this Court's decision in Haas. 21 Vet.App. 137, 146-47 (2007). On May 8, 2008,

the Federal Circuit issued its decision in Haas, reversing this Court's decision. Haas v. Peake, 525 F.3d

1168 (Fed. Cir. 2008). The Federal Circuit issued its mandate in Haas on October 16, 2008.

On October 16, 2008, Nicholas Ribaudo filed through counsel a motion for leave to file a motion

styled as "Petitioner's Motion to Modify the Court's Order of April 13, 2007[,] to Continue the Stay of the

Adjudication of Cases That Are Potentially Affected by Haas." On that same date, the Court received Mr.

Ribaudo's motion to modify the Court's April 13, 2007, order. In his motion for leave, Mr. Ribaudo notes

that "the current stay of the adjudication of cases at the Board and VA regional offices that are potentially

affected [by] Haas. . . expires today, October 16, 2008." Motion for Leave at 2. He seeksleave to file

a motion that requests that the Court modify its April 13, 2007, order in Ribaudo to state that the stay will

expire either when the United States Supreme Court denies the petition for a writ of certiorari in Haas–filed

on October 17, 2008–or decides Haas on the merits. 

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On October 30, 2008, the Secretary submitted a response in opposition to Mr. Ribaudo's motion

to modify the Court's April 13, 2007, order. The Secretary objects to Mr. Ribaudo's motion "to the extent

that it seeks a furtherstay from this Court in Ribaudo, because Ribaudo is no longer a pending case."
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Secretary's Response at 3. Therefore, the Secretary asserts, Mr. Ribaudo is actually seeking a new stay

of the effect of the Court's decision in Haas, and that, per the Court's direction in Ribaudo, any new stay

would have to be sought in Haas, rather than in Mr. Ribaudo's case. Id.; see Ribaudo, 21 Vet.App. at

139. The Secretary also argues that, because the Federal Circuit has acted in Haas, it is the effect of that

decision that Mr. Ribaudo seeks to stay and, as such, he should file his motion with the Federal Circuit.

Secretary's Response at 3-4. However, the Secretary also states that the reasons underlying the Court's

April 13, 2007, stay order in Ribaudo remain "largely intact" and "suggests" that the Court modify that

order in essentially the same way Mr. Ribaudo requests. Secretary's Response at 4, 6.

The Court notes that the relief sought by Mr. Ribaudo (and suggested by the Secretary) is relief

in a case that has been closed for more than one year. Mandate issued in Ribaudo on May 17, 2007, and

absent the recall of our mandate and judgment in that matter, the Court cannot revisit the ruling of April 13,

2007. Indeed, Mr. Ribaudo has not argued that exceptional circumstances exist to justifyrecall of the

mandate. See McNaron v. Brown, 10 Vet.App. 61, 63 (1997) (noting that discretion to set aside

judgment "may be exercised only for good cause or to prevent injustice, and only when 'unusual

circumstances exist sufficient to justify modification or recall of a prior judgment'" and that the recall of a

mandate should be done "'only upon a showing of exceptional circumstances'").

Moreover, because the relief Mr. Ribaudo seeks is, in essence, a new stay (the styling of his motion

as one to "continue" the existing stay notwithstanding), he must use the appropriate avenue for seeking a

stay. See Ribaudo, 21 Vet.App. at 139 ("[W]e . . . stress that [our resolution of the Secretary's motion

to stay the effect of Haas under the auspices of Ribaudo] is a one-time exception to our newly adopted

procedure requiring that a motion to stay the precedential effect of a particular case be filed in that case.").

As instructed by the Court in Ribaudo, "a party seeking to stay the effect of one of our decisions must file

a motion to stay in the case the effect of which the party wishes to stay." Id. Accordingly, the Court will

deny Mr. Ribaudo's motion for leave to file the motion to modify the Court's April 13, 2007, order. 

The Court notes that the result the parties seek in this matter is essentially identical–a stay of the

effect ofHaas pending the outcome of the petition for a writ of certiorari now pending before the Supreme

Court. The Court also acknowledges that, in an earlier decision granting a petition for a writ of mandamus

in this matter, the Court stated that "'the immediately subordinate tribunal has jurisdiction to act on a motion

for a stay' even in a case where a Notice of Appeal has been filed seeking review in the Federal Circuit."

Ribaudo v. Nicholson, 20 Vet.App. 552, 560 (2007). Here, however, there has been more than simply

a Notice of Appeal filed with the Federal Circuit; that court has issued its decision in Haas, and because

the Federal Circuit is our reviewing tribunal, this Court has no authority to issue a stay of a decision of the

Federal Circuit. More simply put, our order in Ribaudo merely stayed the implementation of our Haas

decision as long as that decision was the controlling statement of the law. Because the Federal Circuit has

reversed our decision in Haas and issued mandate remanding the matter to this Court for implementation

of its decision, we–and the Secretary–have no choice but to follow that order. 
 The Court is aware that this rule appears to contemplate the filing of a motion to stay mandate prior to its

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issuance. As we said in Ribaudo, however, we do not presume to interpret the Federal Circuit's rules of procedure.

Ribaudo, 20 Vet.App. at 560. The issue of the proper timing of the filing of any such motion, should one be filed, will

be determined by the Federal Circuit. 

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Further, the Federal Circuit has procedures in place to address matters such as this one. See FED.

R.APP.P.41; FED.CIR.R.41. Moreover, the Federal Circuit has demonstrated its authority to act to 2

stay proceedings before the Board and VA regional offices despite the language of 38 U.S.C § 7107. See

Nat'l Org. of Veterans' Advocates v. Sec'y of Veterans Affairs, 260 F.3d 1365, 1380 (Fed. Cir.2001)

(directing VA “to stay all proceedings involving claims for [dependency and indemnity compensation]

benefits under [38 U.S.C. §] 1318, whose outcome is dependent on the regulation in question, pending the

conclusion of an expedited rulemaking”). Consequently, the relief that Mr. Ribaudo seeks (and that the

Secretary suggests) may only be granted by the Federal Circuit.

On consideration of the foregoing, it is

ORDERED that Mr. Ribaudo's motion for leave to file the motion to modify the Court's April 13,

2007, order is denied. 

DATED: November 17, 2008 PER CURIAM.

Copies to:

Louis J. George, Esq.

VA General Counsel (027)