concurring:
Felix failed to return to his halfway house on August 27, 1995. When this case was argued on October 19, 1995, Felix had been at large for seven and a half weeks. Neither his own attorneys nor the Office of Corporation Counsel, which represents Braxton, apprised the court of this development. Apparently, they did not know.
On Monday, October 23, 1995, the second working day after argument, counsel for Braxton filed a motion to dismiss the appeal on the grounds that Felix had “escaped.”1 By that time, the members of the court had studied the voluminous record and briefs, including supplemental memoranda written after the abscondence. We had also heard an hour of oral argument, conferred on the case, and begun work on an opinion. Many hours of judicial time had thus been devoted to the case of a man who had evidently decided, before much of the work was done, that he would not stay around for the outcome.
The attorneys for Felix now ask the court not to dismiss the appeal. They claim that Braxton has waived the right to seek dismissal by not filing the motion earlier. I agree with my colleagues that, in light of the prisoner’s abscondence, we should cut our losses and decline to proceed with the merits of the appeal. I therefore join the opinion of the court.
I write separately, however, because Brax-ton’s tardiness in filing his motion has creat*846ed a troubling scenario. If a litigant can secure dismissal of an appeal after a case has been argued, on grounds which existed long before argument, an incentive is created to base the decision whether or not to file a motion to dismiss, or how speedily to file it,2 on an appraisal of the prospects for victory on the merits. Here, Felix served his punitive “adjustment” segregation in July 1993, more than two years ago. His days in a “control cell” cannot now be undone. The primary potential significance of the case therefore relates to the precedent it might set. The specter of the possible “tactical” use of information about an escape looms large in such a scenario.
I do not suggest that tactical considerations played a role in this case. Counsel for Braxton represented in her motion that she brought the facts about Felix to our attention as soon as she learned of them. I have not the slightest hesitation in relying on counsel’s representation. Nevertheless, to avoid the kind of situation which has arisen here, and to protect judicial and other resources, attorneys for prisoners who are parties to this type of litigation, as well as correctional authorities and their counsel, have an obligation to keep fully abreast of the prisoners’ status, and they must apprise the court immediately of any relevant developments.
. Ironically, the disciplinary action which precipitated this case was also for “escape.” Specifically, Felix was charged with this offense after he allegedly disobeyed instructions not to take the prison bus to work on a furlough day. The "escape" charge was based on his failure to be where he was supposed to be. Felix claims that he stood outside a halfway house, waiting for another bus to take him the rest of the way to his job, and spending his time "holler[ing] at the girls." There is apparently no dispute that Felix returned to Lorton at the end of the furlough day.
The very real (and as yet apparently continuing) 1995 escape which precipitated the motion to dismiss this appeal has now defeated Felix’ right to a decision on the merits of what I view as a very short-lived "escape” in 1993. If words are taken to mean what they say in plain English, I think “escapade” would be a more accurate term than "escape.” I note that in the not so very understated lingo of the law of corrections, a defendant who walks away from a halfway house is charged with, of all things, "prison breach.” See D.C.Code § 22-2601 (1989); United States v. Venable, 316 A.2d 857, 858 (D.C.1974) (per curiam).
. I presume that an attorney who learns of an abscondence would find it appropriate to bring the information to the attention of the court. Candor with the court requires no less. Nevertheless, the incentive to look into the facts and to find out whether there has been a change in the prisoner’s circumstances becomes increasingly acute if a litigant appears to be facing an unfavorable and precedent-setting decision on the merits.