UNITED STAT ES COURT OF AP P EALS FOR VETERANS CLAIMS

N O

. 12-1512

R O B E R T L

. S O L Z E

A N D L O I S M. D I M I TR

E , P E TI TI O N E R S ,

V

.

E R I C K. S H I

N S E K I , S E C R E TA R Y O F V E TE R

A N S A F F A I R S , R E S P O N D E N T

.

Be fore MOORMAN, L ANCE, and DA VI S, Judges.

O R D E R

On May 8, 2012, the petitioners, throug h counsel, filed a petition for extraordinary relief in the nature of a writ of mandamus, asse rt i n g t h at VA would not "pa y Mr. Solz e' s awa

rded VA benef its to him or his valid attorney -in-fa ct or identify the leg al authorization to not do so." Petition
at 1. I n a J anuar

y 4, 2013, order
, the Court denied the petition. Solze v. Shinseki
, 26 Vet.App. 118 (2013). Although the panel ex presse d "c oncer n over VA' s reluc tance to utiliz e other methods by which it is authorized to distribute benef its," including temporar

y pay ments under 38 C.F.R. § 13.63, the Court held that the petitioners had not demonstrated that they lacke d adequate alterna tive means to obtain their desire d relief

. Id. at 124-25.

On J an u ary 24, 2013, the petitioners filed a "Motion for Reconsider ation, Or, I n T h e Alterna tive, Full Court Re view," arg uing, inter alia, that VA "ha s ref used and continues to re fuse"
to make a decision on the applicability of 38 C.F.R. § 13.63. The Court denied rec onsideration on Marc h 4, 2013, and the motion for full court revie w was ref erred t o t h e full Court. Whil e that motion was pending befor e the en banc C ourt, the Court discover ed, sua sponte, tha t the Boa rd of Veter ans' Appea ls (B oard) had issued a decision in this case , and o n Marc h 18, 2013, the Court withdrew its Marc h 4, 2013, order deny ing rec onsideration, returning this case to the three -judg e panel.

On Marc h 22, 2013, the Court order ed the pa rties to submit a status report on the issues in this case , toge ther with exhibi ts deeme d helpful to the C o u rt , including a copy of the J anuar y 24, 2013, Boa

rd dec ision. Each par

ty filed a r esponse on Ma

rch 29, 2013.

The petitioners' response reve als that the Boa rd did, in fac t, issue a decision on J anuar y 24, 2013. I n that decision, the Boa rd first noted that the parties failed to notify it "of the actions of the Court in a timely manne r, " wh i ch "caus[ ed] delay in the adjudication of this case ." Petitioner' s Mar. 29, 2013, Response (Resp.) ex. A at 3. The B oard, c iting this Court's January 4, 2013, order

on the petition, order ed that Ms. D imitre be appointed Mr. Solz e' s temporar y fiduciar y pursuant to 38 C.F.R. § 13.63. Id. at 6-7.On April 4, 2013, the Court order ed the parties to appea r befor e the Court on April 16, 2013,
to explain why they did not promptly inform the Court of the Boa rd' s J anuar

y 24, 2013, decision, and
to show cause as to why the Court should not impose sanctions or comm en ce d i s ci p linary
proce eding s ag ainst them. Solze v. Shinseki
, No. 12-1512, 2013 WL 1343873, at *2 (Ve t. App. Apr. 4, 2013). On April 8, 2013, the petitioners filed a response to the Court's April 4 order

. On April 9, 2013, the Secre tary filed a motion for leav e t o fi l e a response to the Court's April 4 order

. On April 8, 2013, the par

ties also filed motions for leave to file supplemental informa tion concer ning additional ag ency action reg arding the fiduciar y matter. The Court will g rant these motions for leave to file and will direc t the Clerk to file the supplementa l information.

The Court h ea rd oral arg ument on April 16, 2013. At arg ument, counsel for both parties 1 denied any intentional misrepre sentation to the Court and asser ted that failure to notify the Court of the Boa rd' s decision did not violate any of the Court's Rules of Practice and Procedur e or Admission and Practice or the Model Rules of Professional Conduct. On Apr il 22, 2013, the petitioners filed

a motion fo r l ea v e to file supplemental information conce rning Model Rule of Professional Conduct 3.3, and on April 3 0
, 2013, the petitioners filed a motion for leave to file additional supplemental information conce rning the fiduciar y dispute. The Court will g rant the A p r il 3 0 motion for lea ve and w ill direct the Clerk to file the supple mental information.

I. DUTY TO NOTIFY THE COURT

Wit h respe ct to the conce rns raised in the Court's April 4, 2013, order
, the Court holds that both parties wer e under a duty to timely inform the Court of the Boa rd' s J anuar

y 24, 2013, decision. I nitially
, the Cour t n o t es t h at the parties focuse d at oral arg ument on whether such a duty was imposed by Rule 30 of the Court's Rules of Practice and Procedur e or Rule 3.3 of the Model Rules of Professional Conduct. Although the Court acknow ledg es that its April 4, 2013, order cited those rules, it is troubled t hat t he parties limit ed their arg uments to whether they complied wit h the t ext of those specific rules rathe r than a g ener al discussion of their duty to keep th e C o u rt apprised of signific ant developments. I ndeed, it appea rs that the parties still do not appea r to be fully awa

re of the Court' s conce rns or why they pose a pr oblem in this case.

I n all case s befor e this Court, the parties are under a duty to notify the Court of developments that could deprive the Court of jurisdiction or otherwise aff ect its dec i s i o n

. See
, e.g. , Fusari v. Steinberg
, 419 U.S. 379, 391 (1975) (B urg er, C.J
., concur ring ) (" I t is disconce rting to this Court to lear n of rele vant and important developments in a case afte r the entire Court has come to the Be nch
to hear arg uments.") ; Arizonans for Official English v. Arizona
, 520 U.S. 43, 68 n.23 (1997) (" I t is the duty of counsel to bring to the fede ral tribunal' s attention, ' without delay ,' fac ts that may raise a

Douglas J. Rosins ki, of Colum bia, South Carolina, argued for the petitio ners. With him on the plead ing s and 1
at co un sel' s table w as Katrina J . Ea gle, of San Diego, California.

R. Randall C am

pb ell, VA A ssis tant General Coun sel, of Washin gton, D.C., argued for th e respondent. With him on the plead ing s w ere Will A

. Gun n, VA General Coun sel, Jo an E. Mor iarty
, VA Deputy A ssis tant General Coun sel, and Mar k M. McN abb , all o f Washin gton, D.C.

2question of mootness." (quoting Board of License Comm'rs of Tiverton v. Pastore
, 469 U.S. 238, 240 (1985) ( per curia m))). For example, when an appellant dies afte r filing a Notice of Appea l with the Court, "[a]ny party or repr esenta tive who become s awa re of the appellant' s d eath shall notify the Court of the dea th." U.S. V E T

. A P P

. R. 43(a)( 2).

This duty is vital to ensure that the Court does not issue a decis i o n ab s en t a live case or controve rsy

. Aronson v. Brown
, 7 Vet.App. 153, 155 (1994) (adopting the case -or- controve rsy require ments imposed by Article I I I of the U.S. Constit ution); Bond v. Derwinski
, 2 Vet.App. 376, 377 (1992) (per curia

m) (" When there is no case or contr o v er s y , or when a once live case or controve rsy become s moot, the Court lacks jurisdiction."). "A s the parties might be awa re, deciding live disputes keeps us busy enoug h and we fee l no need to moonlight by re n d er i ng advisory opinions." Publicis Commc'n v. True N. Commc'ns, Inc. , 206 F.3d 725, 727 ( 7th Cir. 2000).

This duty is particula

rly signific ant in case s filed pursuant to Rule 21 of the Court's Rules of Practice and Procedur e. When a petitioner files a petition for extraordinary relief asking the Court
to issue a writ of mandamus, h e o r s h e s eeks to have the Court interjec t its authority into a live
controve rsy , and ong oing developments at the ag ency are highly rele vant to the Court's delibera tions

on petitions. I n essenc e, the petitioners ask the Court to di p its oar i nto the waters of the age ncy ' s ong oing claims proce ss; i t i s i n cu m b en t on the parties to char t for the Court the hazards lurking beneath the water' s surfa ce and chang es i n the current' s flow. See Douglas v. Do n o va n , 7 0 4 F.2d 1276, 1279 (D.C. Cir. 1983) (" As office rs of this court, counsel have an obliga tion to ensure that the tribunal is awar e of sig nificant e vents that may bear direc tly on the outcome of

litigation." ).

Contr ar y t o the parties' arg uments, the C ourt' s J anuar y 4, 2013, decision di d not terminate this duty

. By filing a motion for rec onsideration, the petitioners ag ain called on the Court to act,

resur rec ting the parties' obliga tions to fully inform the Court of rele vant developments. By way of example, if, instead of appointing Ms. Dimitre as a temporar y fiduciar y under § 13.63, the Boa

rd had order ed that she be appointed as Mr. Solz e' s perma nent VA fiduciar y , t h e petitioners' case would have been rende red moot. Fa ilure to notify the Court of the Boa rd' s decision could have resulted in

a rec onsidered panel decision or en banc decision in conflict with that deter mination, placing the fiduciar y hub in the impossibl e position of try ing to de cide how to e ffe ctuate both binding order s.

Moreove r, it is irrele vant that neither party believed that the Boa rd' s decision would impact the Court's ruling on the motion for rec onsideration, as that was not a question within t h e parties'
power to decide. See F

usari , 419 U.S. at 391(B urg er, C.J., concur ring ) ("This C ourt must rely on counsel to prese nt issues fully and fairly
, and counsel have a continuing duty to inform the Court of
any development which may conce ivably affect an outcom e. " (emphasis added) ); Mansourian v. R eg ents of Univ. of Cal.
, 602 F.3d 957, 963 n.5 (9th Cir. 2010) ("Where
, as here, the complex i o n of the case has entirely chang ed while the app eal is pending
, counsel for both parties have an obliga tion to so inform the court. That is so eve n if a party believe s it has a basis for arguing that the issue should still

be dec ided. " ( emphasis adde d)).

3The fac t that the Boa rd acte d and g rante d some part of the relief soug ht by the petitioners is something that the Court should have been able to c onsider when acting on the petitioners' motion for panel rec onsideration and full-cour t considera

tion. Whether and how the Boa rd decision would impact these delibera tions was a d et er m ination for the Court alone to make, and the judgme nt of counsel for

both parties lapse d by

failing to bring it to the Court's attention.

To be absolutely

clea r, the pa rties in this case we re unde r a duty to timely notify the C ourt of the B oard' s J anuar

y 24, 2013, decision, and both pa rties bre ache d that duty

. To the extent that 2 this du t y h as n o t previously been made clea r by the Court, neither sanctions nor ref err al for disciplinary action are war rante d in this case

. Howeve r, counsel in this case —and all parties to ever y

case befor e the Court—are now on notice of their continuing responsibility to a pprise the Court of signific ant deve lopments, particular ly for c ases f

iled pursuant to Rule 21.

Given this dispositi on, the petitioners' April 22, 2013, motion for leave to file supplemental information per

taining to Mode l Rule 3.3 will be dismi ssed as moot.

II. MOTION FOR P ANEL RECONSIDERATIO N

After revie wing the parties' pleading s in this case , the Court will ag ain deny the petitioners'
mot i o n fo r p anel rec onsideration. The motion for full-Court consideration is ref err ed to the full Court.

Upon consider ation of the for eg oing, it is

OR DE R E D t h at the parties' April 8, 2013, April 9, 2013, and April 30, 2013 motions for leave to file supplemental information are g rante d, and the Clerk is direc ted to file those pleading s. I t is further

ORDERED that the petitioners' April 2 2
, 2 0 1 3, motion for leave to file supplemental information is dismis sed as moot. I t is further

ORDERED that the petitioner' s J anuar y 24, 2013, motion fo r p an el rec onsideration is DENI ED. The motion for a full-Court decision is ref err ed to the full Court.

DATED: Ma

y 3, 2013 PER C URI AM.

A t or al argum ent, the Secretar y asserted that Ru le 35 of the Court' s Ru les of P ractice and P ro cedure pr ohibited 2 him from inf

or m ing the Court of

th e Boar d's decisio n. The C ourt is m indfu l that " [n]o respo nse to a m otio n un der this Ru le m ay be filed un less it is req uested by the Court." U.S. V ET

. A PP

. R. 35 (g). How ever, j ust as bo th par ties are un der

a co ntin uin g obligation to inf

or m th e C ourt of per tinen t an d sig nif icant auth or ity

that com es to their attention after the
par ties' briefs hav e been filed, U.S. V ET

. A PP . R. 3 0( b) , the parties' overarching duty of can do r to th e tribun al requires this duty to app ly to bo th par ties regard less of w ho f iled the m otio n for reconsidera tion. See M ODEL R UL ES OF P ROF ' L C ONDUCT R. 3. 3.

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