Case Information
*1 Before NEBEKER, Chief Judge , and FARLEY and STEINBERG, Judges . O R D E R
On Oсtober 27, 1995, attorney Hugh D. Cox (hereinafter "the appellant") filed pro se a
petition for extraordinary relief, seeking a show-cаuse order as to (1) why the Board of Veterans'
Appeals (Board or BVA) should not issue a final decision on the issue of the payment of attorney
fees to the appellant by the Department of Veterans Affairs (VA) pursuant to his fee agreement with
a veteran, Samuel Mоsley, and 38 U.S.C. § 5904(d) and 38 C.F.R. § 20.609(h); (2) why VA should
not pay him the 20% attorney fee withheld from the veteran's award of past-due benefits (less any
amount already paid to the appellant directly by the veteran); and (3) why VA's act of mistakenly
having disbursed that 20% to the veteran should not be adjudged an act of "bad fаith" that would
warrant sanctions and attorney fees pursuant to 28 U.S.C. § 2412(b). In an August 7, 1997, opinion,
this Court concluded that it possessed the authority to issue a writ оf mandamus under the All Writs
Act, 28 U.S.C. § 1651(a), but denied the petition because the appellant had an alternative remedy
that obviated the need for extraordinary relief.
In the Matter of the Fee Agreement of Cox
On July 16, 1998, the Federal Circuit expressly upheld this Court's power to issue a writ of
mandamus and its jurisdiction to review Board decisions as to fee agreements, and concluded that
this Court "had correctly held that a writ of mandamus was not warranted because [the appellant]
had yet to file [a Notice of Disagreement (NOD)]". ,
On July 23, 1999, the appellant appealed through counsel a June 22, 1999, BVA decision that determined that VA wаs not authorized to pay attorney fees where all past-due benefits had already been paid. The veteran had particiрated in the adjudication of that matter before the Board. On July 27, 1999, the Court issued the "Notice of Docketing" in that appeal casе, with copies to the appellant and the Secretary. On August 13, 1999, the RO sent a letter to the veteran, advising him that the appellant had filed an appeal and that the veteran might intervene in the appeal pursuant to Rule 15 of this Court's Rules of Practice and Procеdure (Rules). On September 15, 1999, the veteran filed a notice of intent to intervene in the appeal.
On March 6, 2000, this panel, then unaware of the June 22, 1999, BVA decision that is the
subject of the appeal here, revoked its March 24, 1999, order in the petition case and reinstated the
petition; dismissed as premature the EAJA application; and ordered the Secretary to file a
supplemental memorandum (and supplemental memoranda every 60 days thereafter) advising the
Court of the progress and timetable for completion of the VA аdministrative proceedings in the
ongoing adjudication of the fee-agreement matter that is the subject of the petition.
In view of the June 22, 1999, BVA decision that completes the Board's adjudication of the fee-agreement matter that is the subject of the petition, the Court will grant in рart the Secretary's March 10, 2000, motion but only as to the requirement that the Secretary file status reports every 60 days as to VA's progress and timetable for completion of the administrative proceedings.
On March 20, 2000, the Court, in the appeal case, ordered the appellant to notify the Court as to whether he opposes the veteran's motion to intervene. On March 24, 2000, the appellant rеsponded that he does not oppose the veteran's motion. On April 28, 2000, the Court consolidated the appeal (No. 99-1250) with the petition (No. 95-1068) and submitted the appeal to this panel.
In view of the veteran's notice of intent to intervene, which he is entitled to do under Rule 15
because he participated in this matter before the Board, the Court will recaption the case to include
the veteran as intervenor. In addition, although the outcome of this case has not been decided, the
Court has determined that this case should prоceed before a panel. The Court notes that it has
adopted a policy that where the "appellant" is unrepresеnted in a case referred to a panel for a
possibly precedential disposition the Court will stay proceedings in that cаse for the purpose of
allowing the pro se appellant to obtain representation.
In re Panel Referrals in Pro Se Cases
Upon consideration of the foregoing, it is
ORDERED that the case is recaptioned, as abоve, to include the veteran as intervenor. It is further
ORDERED that the Secretary's March 10, 2000, motion for revocation of the Court's March 6, 2000, order is granted in part and that that order is revoked as to the requirement that the Secretary file status reports every 60 days on the progress аnd timetable for completion of the VA administrative proceedings. It is further
ORDERED that, not later than 30 days after the date of service of thе Secretary's brief on the intervenor, the intervenor may file, and serve on the appellant and the Secretary, a brief on any matter involved in the combined cases. It is further
ORDERED that, not later than 14 days after service of any brief by the intervenor, the appellant and the Secretary may file responses to the intervenor's brief.
DATED: May 5, 2000 PER CURIAM.