Cleary v. Brown

IVERS, Judge,

concurring:

I concur in the reasoning and the result of the Court’s opinion, and I certainly agree that there was no jurisdiction here to be retained. I write separately, however, to point out that the appellant’s counsel here has potentially placed in question this Court’s jurisdiction by permitting a parallel action to progress below during the pendency of the appeal without advising the Court of the existence of that action. Not only that, but the appellant and his counsel have potentially placed in jeopardy their ability to recover attorney fees in this Court.

The Court issued a memorandum decision in the appeal on November 24, 1992, Cleary v. Principi, 3 Vet.App. 495 (1992) (mem. dec.), unaware of any VA actions subsequent to the BVA decision then on appeal. In its November 1992 decision, the Court reversed the underlying BVA decision and remanded to the Board for the assignment of a 70% rating for the appellant’s service-connected post-traumatic stress disorder (PTSD) and for the readjudication of entitlement to either a 100% schedular rating for PTSD or a total disability rating based on individual unem-ployability. Id. at 498-99 . However, during the pendency of the appeal before the Court, on September 8, 1992, the regional office (RO) notified the appellant that it had awarded him a 100% schedular rating for his service-connected PTSD, with an effective date of November 21, 1991.

Even though the proceedings at the RO level which awarded a 100% schedular disability rating for PTSD could be viewed as a new, separate claim, see Proscelle v. Derwinski, 2 Vet.App. 629, 631 (1992) (since claim for an increase is predicated on increase in severity subsequent to prior claim, it is original claim and not subject to requirements for reopening claims under 38 U.S.C. § 5108 ); see also Suttmann v. Brown, 5 Vet.App. 127, 136 (1993) (noting that claim for an increase is “based upon facts different from the prior final claim” because claim for increase could be predicated on finding of increase since prior claim), the RO’s determination of an increased disability rating had a direct bearing on whether the appellant should have continued to prosecute his appeal before this Court. Indeed, as noted by the Secretary in his response to the appellant’s application for attorney fees, the RO’s September 1992 award of a total disability rating was predicated on a 1991 VA examination that was not “materially different from a March 1990 psychiatric examination conducted pursuant to the December 1989 claim,” i.e., the claim that *311 initiated the adjudication process leading to the Court’s November 1992 decision. Secretary’s Response at 4. Thus, although the proceedings resulting in the RO’s September 1992 award were a separate claim for purposes of this separate opinion, they arose from a virtually identical fact situation and resulted in an award of a 100% schedular disability rating and, ultimately, an earlier effective date. The quandary this set of parallel proceedings places the Court in could result in a nullification either of the action below or of the Court’s action. See United States v. Munsingwear, Inc., 340 U.S. 36, 39 , 71 S.Ct. 104, 106 , 95 L.Ed. 36 (1950) (noting that Supreme Court’s established practice was to vacate judgment below and remand with direction to dismiss where civil case appealed from federal court below “has become moot while on its way here or pending our decision on the merits”); Kaplan v. Brown, 7 Vet.App. 425, 428-29 (1995) (per curiam) (Court dismissed motion seeking injunctive relief where issue was moot); Landicho v. Brown, 7 Vet.App. 42, 54 (1994); Mokal v. Derwinski, 1 Vet.App. 12, 15 (1990) (Court dismissed portion of petition seeking mandamus relief since controversy surrounding petition was moot); see also Aguirre v. S.S. Sohio Intrepid, 801 F.2d 1185, 1189 (9th Cir.1986) (mootness is element of justiciability and raises question as to court’s jurisdiction); Wahl v. McIver, 773 F.2d 1169, 1173 (11th Cir.1985) (court is obligated to review its jurisdiction over an appeal at any point in appellate process); Aronson v. Brown, 7 Vet.App. 153, 155 (1994) (Court has adopted case or controversy jurisdictional requirements imposed by Article III of the United States Constitution; under Article III, a court has independent duty to examine its jurisdiction).

While I concur in the result reached here, I do so without a great deal of enthusiasm because I feel that the failure of the appellant and his counsel to inform the Court of the action below has caused the Court to unnecessarily expend judicial resources and quite possibly could have affected the appellant’s ability to recover any attorney fees whatsoever. See 28 U.S.C. § 2412 (d)(1)(A) (party is not eligible for award of fees and expenses under Equal Access to Justice Act if court determines that “special circumstances make an award unjust”); H.R.Rep. No. 1418, 96th Cong., 2d Sess. 11 (1980), reprinted in 1980 U.S.C.C.A.N. 4953, 4984, 4990 (“special circumstances” include “equitable considerations [that] dictate an award should not be made”); Doria v. Brown, 8 Vet.App. 157, 161-63 (1995); see also Brinker v. Guiffrida, 798 F.2d 661, 667 (3d Cir.1986) (equitable considerations have been interpreted to include “a prevailing party’s unclean hands”). Although the Secretary bears some responsibility for informing the Court of developments that may affect the jurisdiction of the Court, the appellant and his counsel bear the lion’s share of the responsibility for keeping the Court and VA advised under the facts in this case.