Armando Diaz v. ERIC K. SHINSEKI, Secretary of Veterans Affairs

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# United States Court of Appeals for the Federal Circuit 2009-7145

ARMANDO DIAZ,

Claimant-Appellant,
V.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.

Appeal from the United States Court of Appeals for Veterans Claims in
01-1426 (08-11201-E), Judge William A. Moorman.

ON MOTION

Before MAYER, LOURIE, and BRYSON, Circuit Judges.
PER CURIAM.

## ORDER

Armando Diaz moves for reconsideration of the court's March 4, 2010 order
dismissing his appeal for failure to file a brief.

Diaz's appeal was first dismissed for failure to file a brief on December 17, 2009.
The appeal was reinstated, a submitted brief was accepted for purposes of reinstating
the appeal, and the brief was rejected for failure to comply with various court rules. The
court ordered that Diaz file a corrected brief no later than January 19, 2010. Diaz did
not file a corrected brief, and the court dismissed the appeal again on March 4, 2010.
Diaz now submits a corrected brief and requests reinstatement.

The belatedly submitted corrected brief also does not comply with the court's
rules. Among other errors, the brief does not contain a jurisdictional statement (see

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Fed. Cir. R. 28(a)(5)) and the text of the brief is not double-spaced (see Fed. R. App. P.
32(a)(4)). Counsel offers no explanation for the untimely submission.

"It is well settled that a person is bound by the consequences of his
representative's conduct, which includes both his acts and omissions." Rowe v. Merit
Sys. Prot. Bd., 802 F.2d 434, 437 (Fed. Cir. 1986). See also Link v. Wabash Railroad
Company, 370 U.S. 626, 633-635 (1962); Huston v. Ladner, 973 F.2d 1564, 1567 (Fed.
Cir. 1992). The court has put counsel on notice that it will dismiss an appeal for failure
to prosecute. Julien v. Zerinque, 864 F.2d 1572 (Fed. Cir. 1989) (failure to file a brief
can be the basis for dismissal of a case). See also Fed. Cir. R. 45 (the court may
dismiss an appeal for failure to follow the rules); Fed. Cir. R. 31(d) (the clerk is
authorized to dismiss a case for failure to file the opening brief). Diaz did not timely
submit the corrected brief, did not offer any explanation for the untimely submission,
and has not shown why the appeal should be reinstated.

Accordingly,
IT IS ORDERED THAT:

The motion is denied.

FOR THE COURT

MAY 0 3 2010

Date

/s/ Jan Horbaly
Jan Horbaly
Clerk

CC:
Lawal Momodu, Esq.
Joshua E. Kurland, Esq.
s20

FILED
U.S. COURT OF APPEALS FOR
THE FEDERAL CIRCUIT
MAY 03 2010

JAN HORBALY
CLERK

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