Cleary v. Brown

IVERS, Judge,

concurring:

Judge Steinberg elevates an obscure footnote (n.37) from his original dissent to a key element in his brief dissent to this Order and makes much of my earlier reference to the consideration of equitable principles in determining an award of fees under the EAJA. Based upon the representations of both counsel in the course of considering the motion now before the Court, it has become apparent that counsel was apprised and aware of the veteran’s claim below. That does not change the fact that the Court was not advised, nor does it, in my opinion, divest counsel of the obligation to advise the Court of such actions where, as in this case, the outcome of that action does or could affect the Court’s actions. See Fusari v. Steinberg, 419 U.S. 379, 391 , 95 S.Ct. 533, 540 , 42 L.Ed.2d 521 (1975) (Burger, C.J., concurring) (“This Court must rely on counsel to present issues fully and fairly, and counsel have a continuing duty to inform the Court of any *203 development which may conceivably effect an outcome.”).

I see no reason to modify my earlier statements, but I will comment that those statements were made in a broad context and were not and are not intended to single out “appellant’s public-interest counsel” any more than any other counsel, counsel for the Secretary included, in discussing the duty of counsel to inform the Court of “the action below ... [that] could have affected the appellant’s ability to recover....” Cleary v. Brown, 8 Vet.App. 305, 311 (1995) (Ivers, J., concurring).

I also continue to adhere to my position that, in this case, appellant’s counsel bore “the lion’s share of the responsibility for keeping the Court and VA advised under the facts in this ease,” as it was counsel’s client who was pressing the action below. Ibid. As it turns out, counsel did inform VA and neither counsel saw fit to advise the Court.