United States Court of Appeals for the Federal Circuit
2008-7124
DONALD PHILLIPS,
Claimant,
and
DEJUANNA HARRIS,
Movant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
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2008-7142
NATHAN J. DAVIS,
Claimant-Appellant,
and
VALERIE STANBACK,
Movant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Eric Alan Shumsky, Sidley Austin LLP, of Washington, DC, argued for all
appellants. With him on the briefs were Pankaj Venugopal and Naomi Schoenbaum.
Of counsel on the briefs was Barton F. Stichman, National Veterans Legal Services
Program, of Washington, DC. Of counsel on the brief in 2008-7124 was Richard V.
Spataro. Of counsel on the brief in 2008-7142 were Christine M. Cote and Louis J.
George.
Meredyth Cohen Havasy, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, argued for
respondent-appellee in appeals 2008-7124 and 2008-7142. With her on the briefs were
Jeanne E. Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel
on the briefs was Michael J. Timinski, Deputy Assistant General Counsel, United States
Department of Veterans Affairs, Office of the General Counsel, of Washington, DC. Of
counsel on the brief in 2008-7124 was Martin J. Sendek, Attorney. Of counsel on the
brief in 2008-7142 and of counsel in 2008-7124 was Michael G. Daugherty, Attorney.
Appealed from: United States Court of Appeals for Veterans Claims
Chief Judge William P. Greene, Jr. (2008-7124)
Judge Mary J. Schoelen (2008-7142)
United States Court of Appeals for the Federal Circuit
2008-7124
DONALD PHILLIPS,
Claimant,
and
DEJUANNA HARRIS,
Movant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims
in 05-2404, Chief Judge William P. Greene, Jr.
-------------------------------------------------------------------------------------------
2008-7142
NATHAN J. DAVIS,
Claimant-Appellant,
and
VALERIE STANBACK,
Movant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims
in 05-1392, Judge Mary J. Schoelen.
___________________________
DECIDED: September 25, 2009
___________________________
Before MICHEL, Chief Judge, BRYSON, Circuit Judge, and SPENCER, Chief District
Judge. *
BRYSON, Circuit Judge.
These two appeals raise questions about the procedures that apply when a
veteran who is pursuing a claim for disability benefits dies while his claim is pending. In
both cases, the veteran-claimant died while his claim was on appeal before the Court of
Appeals for Veterans Claims (“the Veterans Court”). In both cases, the question before
us is whether the daughters of the deceased veteran-claimants may be substituted for
their fathers so that they can pursue either an “accrued-benefits claim” under 38 U.S.C.
§ 5121 or a claim for attorney fees under the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412. In both cases, the Veterans Court refused to permit substitution,
dismissed the veterans’ appeals, and denied the EAJA claims.
Appeal No. 2008-7142
Nathan Davis, a United States Army veteran, filed a claim in 1997 seeking
service connection for post-traumatic stress disorder. After multiple proceedings before
a regional office of the Department of Veterans Affairs (“DVA”) and the Board of
Veterans’ Appeals, the Board ultimately denied his claim in 2005. When Mr. Davis
appealed to the Veterans Court, the Secretary of Veterans Affairs conceded that the
∗ The Honorable James R. Spencer, Chief Judge, United States District Court for the
Eastern District of Virginia, sitting by designation.
2008-7124,-7142 2
Board’s decision was erroneous in two respects. First, the Secretary conceded that the
Board had failed to ensure that the regional office complied with an earlier remand order
from the Board. In that order, the Board had directed the regional office to attempt to
verify information provided by Mr. Davis as to an in-service stressor. Second, the
Secretary conceded that the Board had mistakenly relied on a June 2004 medical
examination that was inadequate for rating purposes.
On December 7, 2006, the Veterans Court issued an opinion vacating the
Board’s decision and remanding the case to the Board for further adjudication. The
court agreed with the two points on which the Secretary confessed error. With respect
to the first point, the court agreed that the regional office had not sought to verify Mr.
Davis’s allegations as the Board had directed it to do. With respect to the second point,
the court agreed that the medical examiner had erred in concluding that Mr. Davis had
never been formally diagnosed with post-traumatic stress disorder and that the
examiner had failed to address several of Mr. Davis’s alleged stressors. The court
issued its judgment on January 3, 2007, and the court’s mandate issued on March 9,
2007. Three months later, on April 3, 2007, counsel for Mr. Davis filed an EAJA
application for attorney fees and expenses.
Before the court acted on the EAJA application, Mr. Davis’s counsel learned that
Mr. Davis had died on January 10, 2007, a week after the court entered its judgment in
the case. Counsel informed the court of Mr. Davis’s death on April 20, 2007, and
moved to substitute Mr. Davis’s daughter, Valerie Stanback, as the claimant for
purposes of pursuing the EAJA claim. At that time, Ms. Stanback stated that there was
no person eligible to make a claim for accrued benefits under 38 U.S.C. § 5121. She
2008-7124,-7142 3
argued, however, that the EAJA claim could proceed in her name because the Veterans
Court’s remand order was a final judgment for purposes of EAJA.
The Secretary opposed both the motion to substitute and the EAJA application.
The Secretary asked the Veterans Court to withdraw its judgment and mandate, to
vacate the Board’s decision, and to dismiss the appeal. In her reply to the Secretary’s
motion, Ms. Stanback asserted that, in addition to being a proper person to pursue the
EAJA claim, she was eligible for accrued benefits under 38 U.S.C. § 5121(a)(6) as the
person who bore Mr. Davis’s funeral expenses. For that reason, she asserted that she
was entitled to substitution as an accrued-benefits claimant under this court’s decision
in Padgett v. Nicholson, 473 F.3d 1364 (Fed. Cir. 2007).
The Veterans Court granted the Secretary’s motion and entered an order
withdrawing its judgment and mandate, vacating the Board’s decision, and dismissing
the appeal. The court stated that because it had vacated the Board’s decision, the
Board’s decision and the underlying regional office decision would have no preclusive
effect on the adjudication of any future accrued-benefits claim based on Mr. Davis’s
entitlements. With respect to the EAJA claim, the court held that in order to be eligible
for EAJA fees, an appellant must be a “prevailing party,” and that upon the recall of the
court’s judgment, there was no longer any decision as to which the appellant could be
said to be a prevailing party. The court therefore dismissed the EAJA claim.
Appeal No. 2008-7124
In 1992, Army veteran Donald Phillips filed an application for disability
compensation based on a psychiatric disorder. Over an extended period of time, he
unsuccessfully attempted to obtain service connection for his disability. The Board of
2008-7124,-7142 4
Veterans’ Appeals ultimately denied his claim in May 2005. After Mr. Phillips appealed
to the Veterans Court, the Secretary agreed to a joint motion for remand. Accordingly,
on November 28, 2006, the parties filed a “Joint Motion for an Order Vacating and
Remanding the Board Decision and Incorporating the Terms of this Remand.” In the
joint motion, the Secretary conceded that the Board had failed to address the
significance of evidence potentially favorable to Mr. Phillips’s claim. The Veterans Court
granted the joint motion to remand on December 7, 2006, in an order that also served
as the court’s mandate.
Unbeknownst to counsel, Mr. Phillips had died on November 30, 2006, two days
after the joint remand motion was filed. After learning of Mr. Phillips’s death, his
attorney notified the court on January 4, 2007, that Mr. Phillips had died. Counsel then
filed an application for attorney fees under EAJA, and Dejuanna Harris, Mr. Phillips’s
daughter and the representative of his estate, filed a motion seeking to be substituted
as the claimant for purposes of pursuing the attorney fee award.
The Veterans Court denied the motion for substitution and instead issued a
decision recalling its judgment and mandate. The court also vacated the underlying
Board decision and dismissed the appeal. Because the court’s actions meant that there
was no longer a final judgment upon which to base an EAJA award, the court dismissed
the EAJA application.
I
As a general rule, a veteran’s claim for disability benefits terminates with the
death of the veteran. Richard v. West, 161 F.3d 719, 723 (Fed. Cir. 1998).
Consequently, when a veteran-claimant dies during the pendency of proceedings on his
2008-7124,-7142 5
claim, including an appeal to the Veterans Court, no other party is automatically entitled
to be substituted on the veteran’s claim for benefits. By statute, however, certain
successors acquire an interest in the veteran’s benefits. In particular, the benefits that
accrued during the veteran’s last two years and were “due and unpaid” at the time of the
veteran’s death are referred to as “accrued benefits” and can be claimed by a person
who qualifies as a beneficiary under 38 U.S.C. § 5121(a). The statute defines the
qualifying benefits as those “to which [the veteran] was entitled at death under existing
ratings or decisions or those based on evidence in the file at date of death.” Id. Thus,
the statute “provides a mechanism for survivors to recover certain benefits the
entitlement to which has already been established or can be readily established based
on evidence in the file at the date of the veteran’s death.” Haines v. West, 154 F.3d
1298, 1300-01 (Fed. Cir. 1998). An accrued-benefits claimant may pursue the accrued
benefits by filing his or her own claim, which is distinct and separate from the underlying
veteran’s benefit claim. In certain circumstances, however, we have held that an
accrued-benefits claimant may be substituted for the deceased veteran claimant on the
disability benefits claim in order to protect the accrued-benefits claimant’s legal
interests. 1
When a veteran-claimant dies during the pendency of his appeal to the Veterans
Court, the court normally does not allow substitution of an accrued-benefits claimant for
1
Congress has recently enacted provisions to allow substitution of such
claimants as a matter of course, but the effective date of those provisions renders them
inapplicable to this case. See Veterans’ Benefits Improvement Act of 2008, Pub. L. No.
110-389, § 212, 122 Stat. 4145, 4151.
2008-7124,-7142 6
the deceased claimant, but instead vacates the Board decision from which the appeal is
taken and dismisses the appeal. In Landicho v. Brown, 7 Vet. App. 42, 54 (1994), the
court explained that doing so ensures that the Board decision “will have no preclusive
effect in the adjudication of any future accrued-benefits claims derived from the
veteran’s entitlements.” The court stated that when the Board decision is vacated, the
accrued-benefits claimant cannot be said to be “adversely affected” by the Board
decision and thus does not have standing to pursue an appeal under 38 U.S.C.
§ 7266(a). 7 Vet. App. at 54.
In Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996), this court approved the
general procedure employed by the Veterans Court in Landicho. We agreed that when
a veteran dies during the pendency of his appeal to the Veterans Court, substitution of
an accrued-benefits claimant is ordinarily not appropriate, because the accrued-benefits
claim would not be “adversely affected” by the Board’s decision on the underlying
veteran’s disability benefits claim once the Board’s decision was vacated. Id. at 1243.
More recently, we have been called upon to decide whether a different rule
applies when the underlying disability benefits claim was fully submitted to the Veterans
Court at the time of the veteran’s death. In Padgett v. Nicholson, 473 F.3d 1364 (Fed.
Cir. 2007), the Board of Veterans’ Appeals denied Mr. Padgett’s disability benefits
claim, but the Veterans Court reversed the Board’s adverse determination and held that
Mr. Padgett was entitled to at least some benefits. After the court issued its decision, it
learned that Mr. Padgett had died after the case was submitted to the court but prior to
the issuance of the court’s decision. Mrs. Padgett then filed an accrued-benefits claim
and sought substitution on Mr. Padgett’s disability benefits claim in order to protect her
2008-7124,-7142 7
interest in the accrued benefits. The Veterans Court, however, withdrew its opinion,
vacated the underlying Board decision, and dismissed the appeal.
On appeal, we held that the Veterans Court should not have vacated its decision
in Mr. Padgett’s favor. Once the case was submitted to the Veterans Court, we
explained, the case was in a posture such that it was appropriate to give the accrued-
benefits claimant the benefit of the court’s decision by issuing the judgment nunc pro
tunc as of the date of Mr. Padgett’s death. In fact, we stated, failure to give effect to the
Veterans Court’s decision in Mr. Padgett’s case would be improper because “it would
disregard the otherwise final determination of issues relating to the accrued-benefits
claim.” Padgett, 473 F.3d at 1369.
We then addressed the related question whether Mrs. Padgett, as the accrued-
benefits claimant, should be substituted for Mr. Padgett on the appeal. In order to
decide that issue, we addressed whether the “continuing relevance and preclusive
effect” of the issues decided in Mr. Padgett’s appeal were sufficient to satisfy the “case
or controversy” requirement applied by the Veteran’s Court; whether Mrs. Padgett had
standing to pursue the appeal under 38 U.S.C. § 7266(a); and whether substitution
would be consistent with justice and fairness to the parties. Padgett, 473 F.3d at 1370.
Based on Mrs. Padgett’s entitlement to the benefits of the final judgment in Mr.
Padgett’s favor in the appeal, we held that all three requirements were satisfied.
Accordingly, we directed the Veterans Court to substitute Mrs. Padgett on the appeal
and to enter its judgment nunc pro tunc as of the time of Mr. Padgett’s death. We
characterized those steps as “further[ing] judicial and administrative economy by not
2008-7124,-7142 8
requiring relitigation and readjudication of issues already decided by the Veterans
Court.” Id.
In a recent decision, Hyatt v. Shinseki, 566 F.3d 1364 (Fed. Cir. 2009), we
reaffirmed the approach employed in Padgett. In Hyatt, as in Padgett, the veteran-
claimant died after a favorable decision from the Veterans Court, but before issuance of
the judgment. Mrs. Hyatt, the widow of the veteran-claimant, sought to protect her
rights to accrued benefits by requesting that she be substituted on her deceased
husband’s benefits claim and having the Veterans Court reissue its judgment nunc pro
tunc as of the date of her husband’s death. She contended that she was entitled to that
relief because it would render additional records part of her husband’s claim file, thereby
making them available to support her accrued-benefits claim.
The Secretary asserted that Mrs. Hyatt’s request was properly denied because
she was “still a long way from establishing entitlement to benefits.” This court
explained, however, that “the inquiry is not whether there will be an imminent grant of
benefits, but whether [a claimant] is able to show a ‘personal stake’” in the outcome.
Hyatt, 566 F.3d at 1369. We held that Padgett stands for the proposition that where an
accrued-benefits claimant is seeking to be substituted for the purpose of requesting that
a decision be reissued nunc pro tunc, Padgett requires only that the decision have
“continuing relevance” such that, but for the nunc pro tunc relief, the accrued-benefits
claim would be adversely affected. Thus, we held that “the accrued benefits claimant
need only show that the failure to reissue the decision nunc pro tunc will adversely
affect her claim in some way.” 566 F.3d at 1369.
2008-7124,-7142 9
Applying that test in the Hyatt case, we concluded that the withdrawal of the
Veterans Court’s decision would not adversely affect the accrued-benefits claimant
because the Veterans Court’s decision could not materially assist Mrs. Hyatt in
prosecuting her claim. We noted that even if the Veterans Court’s judgment had been
issued nunc pro tunc, Mrs. Hyatt would not have been able to rely on any new material
that was not already in the claims file. We therefore concluded that Mrs. Hyatt could not
benefit from being substituted on her husband’s claim, and for that reason she lacked
standing to be substituted on the underlying claim.
In the Davis/Stanback case, Ms. Stanback seeks to take advantage of the rule
articulated in Padgett and Hyatt and to be substituted for Mr. Davis in order to facilitate
the prosecution of her accrued-benefits claim. 2 The benefit to Ms. Stanback from
having the Veterans Court’s decision remain in effect is that the decision establishes
that the medical examiner erred in concluding that Mr. Davis had never had a formal
diagnosis of post-traumatic stress disorder and that the examiner failed to address
several of the appellant’s alleged stressors. The Veterans Court’s decision thus
removes a significant roadblock from Ms. Stanback’s path to obtaining benefits based
on the evidence in the file at the time of her father’s death. For that reason, vacating
the court’s opinion would have an adverse effect on Ms. Stanback, and under the test
2
The government argues that Ms. Stanback failed to file a timely claim to her
father’s accrued benefits and that for that reason this court should reject her claim. In
response, she contends that her filings with the Veterans Court during 2007 were
sufficient to constitute an informal claim for accrued benefits. The Veterans Court did
not address that issue; accordingly, we will assume for present purposes that Ms.
Stanback has preserved her rights as an accrued-benefits claimant and leave it to the
Veterans Court on remand to determine whether her filings before that court were
sufficient to preserve her rights in that regard.
2008-7124,-7142 10
applied in Padgett and Hyatt she therefore has standing to be substituted in place of the
veteran-claimant. Because we have held that substitution of an accrued-benefits
claimant is appropriate when the veteran-claimant dies after a case has been submitted
and the denial of substitution would adversely affect the accrued-benefits claim, we hold
that, assuming Ms Stanback has preserved her rights as an accrued-benefits claimant,
she is entitled to substitution on her father’s claim and to the benefits of the Veterans
Court’s decision in his favor.
II
Ms. Stanback seeks substitution on Mr. Davis’s claim not only to pursue an
accrued-benefits claim under 38 U.S.C. § 5121(a), but also to prosecute an EAJA claim
for attorney fees. In the companion case, Ms. Harris likewise requests that she be
substituted for her deceased father, Donald Phillips, in order to pursue an EAJA claim
stemming from his disability benefits claim.
EAJA provides that a “prevailing party” shall be awarded attorney fees unless the
government’s position was “substantially justified.” 28 U.S.C. § 2412(d)(1)(A). Ms.
Stanback asserts that the Veterans Court’s December 7, 2006, remand order made Mr.
Davis a prevailing party and that because the Secretary confessed error in that
proceeding, the government’s position was not substantially justified. See Former
Employees of Motorola Ceramic Prods. v. United States, 336 F.3d 1360, 1366 (Fed. Cir.
2003) (“where the plaintiff secures a remand requiring further agency proceedings
because of alleged error by the agency, the plaintiff qualifies as a prevailing party . . .
without regard to the outcome of the agency proceedings where there has been no
retention of jurisdiction by the court”). Similarly, Ms. Harris argues that the Veterans
2008-7124,-7142 11
Court’s December 7, 2006, order granting the joint motion to remand rendered Mr.
Phillips a prevailing party for EAJA purposes.
The Veterans Court ruled that because the veteran-claimants died before the
mandate issued in their cases, the proper course was for the court to recall the issued
judgments and mandates. Because the court’s actions resulted in vacating the
decisions in the veterans’ favor, the court held that the veterans no longer qualified as
prevailing parties, and it therefore dismissed the EAJA applications. According to the
Secretary, the Veterans Court properly recalled its mandates in both cases because the
court’s decisions in the veterans’ favor were “rendered a nullity” when the veterans died.
But that argument reflects an overly formalistic view of the decisional process that is
contrary to the policies underlying the EAJA statute.
In both of the cases before us, the Veterans Court ruled in favor of the veteran-
claimants pursuant to a joint motion to remand (in the Phillips/Harris case) or a
confession of error by the Secretary (in the Davis/Stanback case). It is clear the parties
anticipated that the court would rule in accordance with their agreed-upon disposition,
as the court did in both cases. It is likewise clear that no further appellate proceedings
were contemplated. In particular, there was no realistic likelihood that the government
would seek further review of the expected adverse decisions, and indeed the
government did not seek further review in either case. In short, both cases were fully
submitted by the time of the veterans’ deaths, 3 and in Mr. Davis’s case the court had
3
We reject the government’s argument that Mr. Phillips’s appeal was not
“submitted” at the time of his death. An appeal is normally regarded as “submitted” after
oral argument, if there is one, or after the time for filing a reply brief, if there is no oral
argument. In this case, however, the parties submitted the appeal based on a joint
2008-7124,-7142 12
issued its opinion and judgment; all that remained for the court to do in Mr. Davis’s case
at the time of his death was to issue its mandate.
Under those circumstances, the claimant’s death should not deprive his estate or
representative of the right to seek an EAJA award. In each case, the attorney’s work
was completed and the government’s position was set forth prior to the claimant’s
death; the court’s subsequent decision provided the basis for the argument that the
claimant was a prevailing party and should be entitled to attorney fees. The fact that it
was later discovered that certain events in each appeal occurred after the claimant’s
death—the issuance of the court’s mandate in the Davis/Stanback case, and the
issuance of the court’s judgment and mandate in the Phillips/Harris case—should not
deprive the claimant’s estate of the right to recover fees based on the parties’ conduct
that was complete when the case was submitted.
EAJA is a remedial statute. See Scarborough v. Principi, 541 U.S. 401, 406-07
(2004). “The basic federal rule is that an action for a penalty does not survive, though
remedial actions do.” Faircloth v. Finesod, 938 F.2d 513, 518 (4th Cir. 1991). The
Veterans Court, like other courts, has held that an EAJA claim survives the death of the
party to the underlying claim. Cohen v. Brown, 8 Vet. App. 5, 7 (1995); see also Estate
of Woll by Woll v. United States, 44 F.3d 464, 467-68 (7th Cir. 1994); In re Davis, 899
F.2d 1136, 1143 n.15 (11th Cir. 1990); Hoffman v. Heckler, 656 F. Supp. 1136, 1137
(E.D. Pa. 1987). The Veterans Court in Cohen found persuasive the reasoning that
motion for remand, and no oral argument or reply brief was contemplated. The case
was thus “submitted” at the time the joint motion was filed, because all that remained
was for the court to rule on the motion.
2008-7124,-7142 13
“[p]recluding attorneys from receiving attorney’s fees if their clients died before the filing
of attorney’s fees motions would discourage attorneys from representing sick people
entitled to benefits” and rejected the argument that “the right to a legal fee under [EAJA]
dies with the aggrieved party.” 8 Vet. App. at 7. The court concluded that “[i]t is equally
true, in the context of veterans benefits cases, that precluding the award of EAJA fees
where a veteran has died would discourage representation of disabled, ailing, or aging
veterans. Congress did not intend such a result.” Id.
The Secretary argues that Cohen is inapplicable to the Davis/Stanback and
Phillips/Harris cases because Mr. Cohen had filed an EAJA claim prior to his death,
while Mr. Davis and Mr. Phillips had not. We conclude that neither the rationale of
Cohen nor the policies underlying EAJA support adopting that limitation on the general
principle that EAJA claims survive the death of the original claimant. To the contrary,
there are strong policy reasons for allowing the recovery of attorney fees to which a
claimant is entitled even if the EAJA claim is not filed until after the claimant’s death.
If the right to recover fees on an EAJA claim survives the death of the veteran,
there is no reason to hold that the veteran must survive until the EAJA application is
filed in order for the veteran’s estate to have the right to pursue an EAJA award.
Congress enacted EAJA to address the “concern that persons may be deterred from
seeking review of, or defending against, unreasonable governmental action because of
the expense involved in securing the vindication of their rights.” Sullivan v. Hudson, 490
U.S. 877, 883 (1989) (internal quotation marks omitted); see Congressional Findings
and Purposes, Pub. L. No. 96-481, § 202, 94 Stat. 2325 (1980) (codified at 5 U.S.C.
§ 504 note) (“It is the purpose of this title . . . to diminish the deterrent effect of seeking
2008-7124,-7142 14
review of, or defending against, governmental action.”). To bar EAJA awards when the
claimant is entitled to an award but dies before filing an EAJA claim would add to the
risks run by attorneys who represent veterans in disability claims, without any apparent
competing benefit or justification. As the Senate Committee on the Judiciary explained,
“The objective of EAJA is to eliminate financial deterrents to individuals attempting to
defend themselves against unjustified Government action. Veterans are exactly the type
of individuals the statute was intended to help.” S. Rep. No. 102-342, at 39 (1992)
(footnotes omitted); see also Jones v. Brown, 41 F.3d 634, 636 (Fed. Cir. 1994).
Therefore, we hold that an EAJA claim survives the death of the veteran, regardless of
whether the EAJA application was actually filed by the veteran-claimant prior to his
death.
With respect to the issue of substitution, the Veterans Court interpreted this
court’s decision in Padgett as limited to cases involving accrued benefits, and held that
“[o]nly a qualified accrued-benefits claimant may substitute for a veteran in a
compensation claim and receive nunc pro tunc relief.” Accordingly, the court ruled that
Ms. Stanback and Ms. Harris could not serve as representatives for purposes of
prosecuting the EAJA claims because they were not accrued-benefits claimants. Aside
from the point that Ms. Stanback argues that she submitted an informal claim as an
accrued-benefits claimant—an argument the Veterans Court has not addressed—there
is no need for the representative of an estate to have a separate claim in order to
prosecute the deceased claimant’s EAJA claim. Subject to their being determined to be
2008-7124,-7142 15
proper representatives of the claimants’ estates, Ms. Stanback and Ms. Harris are
therefore entitled to substitution for purposes of prosecuting their fathers’ EAJA claims. 4
III
The judgment in Mr. Davis’s case issued before his death. The relief required in
that case is therefore simply to permit the substitution of Ms. Stanback and reinstate the
judgment and mandate. The judgment in Mr. Phillips’s case, however, did not issue
until after his death. According to the Secretary, that is an additional reason Ms. Harris
cannot be substituted for Mr. Phillips. We disagree. Even if the Veterans Court
considers it necessary in such a case to recall the mandate, we held in Padgett, in an
analogous setting, that nunc pro tunc relief is appropriate when it is necessary to
effectuate an otherwise proper substitution. 473 F.3d at 1367. That rule applies equally
here. As the Supreme Court has explained, “where the delay in rendering a judgment
or a decree arises from the act of the court . . . the judgment or the decree may be
entered retrospectively, as of a time when it should have or might have been entered
up.” Mitchell v. Overman, 103 U.S. 62, 64-65 (1880). Although the power to issue a
judgment nunc pro tunc is equitable in nature, the Court held that “it is the duty of the
court to see that the parties shall not suffer by the delay.” Id. at 65. In Padgett, we
concluded that granting nunc pro tunc relief in such a case “is consistent with, if not
compelled by, the statutory scheme for awarding benefits to veterans and their
survivors.” 473 F.3d at 1369. Accordingly, while the Veterans Court may elect to recall
4
The Veterans Court did not address or decide whether Ms. Stanback and
Ms. Davis are proper representatives of the veterans’ estates, and to the extent that
issue is contested, we leave that issue for the court to decide on remand. In addition,
we do not address the merits of the EAJA claims in these two appeals, but leave merits-
related issues to the Veterans Court to address on remand.
2008-7124,-7142 16
its mandate when it discovers that the veteran-claimant died before the issuance of the
court’s judgment, the proper course in a case such as Mr. Phillips’s, in which the case
was fully submitted prior to the veteran-claimant’s death, is for the court to issue its
judgment nunc pro tunc as of the date of death.
REVERSED and REMANDED.
2008-7124,-7142 17