Robert L. Solze and Lois M. Dimitre v. Eric K. Shinseki
2013 U.S. Vet. App. LEXIS 691
| Vet. App. | 2013Background
- Petitioners sought extraordinary relief (mandamus) to force VA to pay Solze benefits or identify authorization to not pay.
- Court denied initial petition on January 4, 2013; concern noted about VA distribution methods.
- Petitioners moved for reconsideration; en banc review discussed after Board decision surfaced.
- Board issued January 24, 2013 decision appointing Ms. Dimitre as temporary fiduciary under 38 C.F.R. § 13.63.
- Court held parties breached duty to timely notify the Court of the Board’s January 24, 2013 decision; sanctions not warranted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Duty to notify the Court of agency developments | Solze argues parties must inform the Court of significant agency actions. | Shinseki contends no such duty beyond Rule 30/Model Rules were triggered. | Yes; both parties breached the duty to timely notify. |
| Sanctions or disciplinary action for failure to notify | Non-notification warrants sanctions due to jurisdiction concerns. | No sanctions or disciplinary action warranted. | Sanctions/discipline not warranted. |
| Impact of Board's January 24, 2013 decision on petition | Board action could affect panel reconsideration or en banc outcomes. | Board decision relevant to case posture but not conclusively dispositive. | Board’s action should have been considered by the Court; duty to disclose existed. |
Key Cases Cited
- Fusari v. Steinberg, 419 U.S. 379 (1975) (duty to inform court of developments affecting jurisdiction)
- Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) (counsel must inform tribunal of mootness-raising developments)
- Aronson v. Brown, 7 Vet.App. 153 (1994) (case-or-controversy requirements; live disputes maintain jurisdiction)
- Bond v. Derwinski, 2 Vet.App. 376 (1992) (advisory opinions avoided; live controversy required)
- Douglas v. Donovan, 704 F.2d 1276 (D.C. Cir. 1983) (counsel duty to inform tribunal of significant events)
- Mansourian v. Regents of Univ. of Cal., 602 F.3d 957 (9th Cir. 2010) (court notices duty to inform when case posture changes)
- Publicis Commc'n v. True N. Commc'ns, Inc., 206 F.3d 727 (7th Cir. 2000) (courts should avoid advisory opinions; mootness concerns)