Neves v. Brown

STEINBERG, Judge,

concurring in part and dissenting in part:

I concur with the Court’s rejection of the Secretary’s first and second bases for proposing dismissal of the appeal. However, I believe that appellant’s September 10, 1993, motion for a 60-day stay of proceedings in order to seek counsel to represent her before the Court should be granted. Although perhaps such a request could properly be denied under extraordinary circumstances, this case certainly presents no such circumstances. The pro se appellant has had no opportunity even to file a brief in support of her appeal.

Moreover, although I tend to agree with the Court that dismissal under Patterson v. Brown, 5 Vet.App. 362 (1993), is indicated, I do not believe the Court should order dismissal without first issuing a show-cause order to an appellant, especially where she is seeking to retain counsel to represent her. Although, in its dismissal of her appeal, the Court has allowed appellant a period of 90 days, rather than the usual 44 (see U.S. Vet.App.R. 35(b) (motion for reconsideration and/or review may be filed within 14 days after Court’s decision), 26(c) (additional 30 days added to filing period for appellants located in Philippines)) before judgment is to be entered — presumably to allow her more readily to move for reconsideration or en banc review, with or without counsel, of the Court’s dismissal order — either such alterna *181 tive unfairly places procedural barriers in the path of the exercise of her right to be heard on whether her appeal should be dismissed. An appellant moving for panel reconsideration of its decision has the unenviable burden of convincing three (or here two) judges that they were mistaken. An appellant requesting en banc review faces the extremely difficult task of demonstrating that such review is “necessary to secure or maintain uniformity of decision among panels”, that “the case involves a question of exceptional importance”, or that “other unusual circumstances” warrant review by the full Court. See Mata v. Brown, 4 Vet.App. 276 (1993) (per curiam order); Internal Operating Procedures V.(b). Even if successful in gaining en banc review, an appellant would still have to convince a majority of the seven-judge Court that the panel decision was wrong. No appellant in the history of the Court has prevailed on such a motion, let alone been successful in overturning an adverse panel decision.

I find unseemly the majority’s haste to slam shut the door to judicial review, while throwing to the appellant widow an unpalatable panel-reconsideration or en-banc-review “bone”. She should have her day in Court about whether she can have her day in court on her appeal, and she should not have to overcome any artificial barriers along the way.