Barney O. Padgett v. James B. Peake

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 02-2259

BARNEY O. PADGETT , APPELLANT ,

V.

JAMES B. PEAKE , M.D.,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

SUE PADGETT , MOVANT .

On Remand from the U.S. Court of Appeals for the Federal Circuit

Before GREENE, Chief Judge, and KASOLD, HAGEL, MOORMAN, LANCE, DAVIS, and

SCHOELEN, Judges.

ORDER

Currently pending before the Court are two motions related to this World War II veteran's

appeal. The first is the Secretary's May 19, 2005, motion to, inter alia, dismiss this appeal as moot,

and the second is the movant's July 21, 2005, motion for substitution. The facts relevant to the

disposition of these motions are as follows.

In March 1993, the appellant, Barney O. Padgett, filed a disability compensation claim with

his VA regional office (RO) for a right-hip disorder. Nearly a decade later, in August 2002, the

Board of Veterans' Appeals (Board) denied that claim, finding that his disability was not service

connected. Mr. Padgett appealed, and a panel of judges initially vacated that Board decision.

Padgett v. Principi, 18 Vet.App. 188 (2004) (withdrawn). However, the full Court later agreed to

rehear the case. Padgett v. Principi, 18 Vet.App. 404 (2004) (per curiam order).

In April 2005, the full Court reversed the Board's denial of secondary service connection for

Mr. Padgett's disability, vacated the Board's denial of direct and presumptive service connection, and

remanded his claim to VA for further adjudication. See Padgett v. Nicholson (Full Court Opinion),

19 Vet.App. 133 (2005) (en banc). In so doing, the full Court also unanimously held that under the

"clearly erroneous" standard of review, a Board finding can be reversed on appeal without

uncontroverted evidence in the appellant's favor and overruled any suggestion to the contrary in our

prior decisions, including Hicks v. Brown, 8 Vet.App. 417, 422 (1995) (quoting Hersey v. Derwinski,

2 Vet.App. 91, 95 (1992)). A few days after the Full Court Opinion issued, the Court learned that,

on November 3, 2004, Mr. Padgett had died.

In May 2005, the Secretary filed his pending motion, under Landicho v. Brown, 7 Vet.App.

42 (1994), to withdraw the Full Court Opinion, vacate the underlying Board decision, and dismiss

Mr. Padgett's appeal as moot. Mr. Padgett's widow, Sue Padgett, responded by filing her pending

motion for substitution as a party to his appeal. In September 2005, the full Court granted the

Secretary's motion and denied Ms. Padgett's request for substitution as moot. Padgett v. Nicholson

(Withdrawal Order), 19 Vet.App. 334 (2005) (en banc per curiam order) (Steinberg & Kasold, JJ.,

dissenting). Ms. Padgett appealed that order to the U.S. Court of Appeals for the Federal Circuit

(Federal Circuit).

In the meantime and while that appeal was pending, the RO began adjudicating two original

claims filed by Ms. Padgett. The first sought accrued benefits, i.e., the payment to a surviving

spouse (or other eligible beneficiary) of any VA benefits owed to the veteran at the time of his or her

death. The second sought dependency and indemnity compensation, i.e., an award of monthly

compensation to a surviving spouse (or other eligible beneficiary) in the event that a veteran dies

from a service-connected disability. In November 2006, the RO denied both of those claims.

In January 2007, the Federal Circuit decided Ms. Padgett's appeal. It held that this Article

I Court had the discretionary authority to enter a judgment nunc pro tunc as of the date of Mr.

Padgett's death and to substitute Ms. Padgett as a party to his appeal. Padgett v. Nicholson (Federal

Circuit Opinion), 473 F.3d 1364, 1367-70 (Fed. Cir. 2007) (Linn, J., dissenting). Accordingly, that

court reversed the Withdrawal Order and remanded the matter for a determination as to whether

nunc pro tunc relief and substitution were warranted.

Before addressing that question on remand, this Court ordered the parties to submit an update

on the status of Ms. Padgett's claims. The Secretary responded by revealing that shortly after the

issuance of the Federal Circuit Opinion, he instructed the RO to conduct a "special review" of Ms.

Padgett's accrued benefits and DIC claims. He further revealed that at the conclusion of that special

review, in late January 2007, the RO issued a new decision on her accrued benefits claim, and that,

in that decision, the RO reversed the November 2006 denial of that claim and awarded Ms. Padgett

those benefits on the theory that her husband's right-hip disorder was directly service connected. Ms.

Padgett did not appeal, and that decision became final.

These are all of the facts relevant to the disposition of the pending motions. With them in

mind and for the reasons that follow, the Court will dismiss Ms. Padgett's July 21, 2005, motion for

substitution as moot, and deny the Secretary's May 19, 2005, motion to, inter alia, withdraw the Full

Court Opinion. The Court will also order the Clerk to issue the Full Court Opinion nunc pro tunc

as of November 2, 2004, the day prior to Mr. Padgett's death.

I. MS. PADGETT'S MOTION TO SUBSTITUTE

This Article I Court adheres to the case-or-controversy requirement of Article III, § 2, of the

United States Constitution. Mokal v. Derwinski, 1 Vet.App. 12, 15 (1990) ("[W]e are granted power

judicial in nature and being statutorily characterized as a 'Court' we are free, in the absence of a

2

congressional directive to the contrary, to adopt as a matter of policy the jurisdictional restrictions

of the Article III case or controversy rubric."). That constitutional "limitation on federal judicial

authority . . . underpins both our standing and our mootness jurisprudence, but the two inquiries

differ in respects critical to the proper resolution of this case." Friends of the Earth v. Laidlaw, 528

U.S. 167, 180 (2000).

In terms of the former, "the party invoking federal jurisdiction bears the burden of

establishing [standing]," Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 104 (1998) (citing

FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990)), i.e., an "injury in fact" caused by the challenged

conduct of the defendant and likely to be redressed by a favorable decision. See e.g., Friends of the

Earth, 528 U.S. at 180-81; Steel Co., 523 U.S. at 102-04; Lujan v. Defenders of Wildlife, 504 U.S.

555, 560-61 (1992). Standing is typically characterized as "[t]he requisite personal interest that must

exist at the commencement of the litigation." Arizonans for Official English v. Arizona, 520 U.S.

43, 68 n.22 (1997) (citations and quotations omitted). However, Article III standing "must be met

by persons seeking appellate review, just as it must be met by persons appearing in courts of first

instance." Id. at 64 (1997) (citing Diamond v. Charles, 476 U.S. 54, 62 (1986)). Accordingly, a party

seeking to take the place of another litigant on appeal bears the burden of demonstrating that he or

she has "'a direct stake in the outcome'" of that proceeding. Id. (quoting Diamond, 476 U.S. at 62).

With respect to the latter, a party seeking to deprive a federal court of jurisdiction bears the

burden of establishing mootness, Friends of the Earth, 528 U.S. at 189-190, i.e., that "[t]he

controversy between the parties has thus clearly ceased to be 'definite and concrete' and no longer

'touch(es) the legal relations of parties having adverse legal interests.'" DeFunis v. Odegaard, 416

U.S. 312, 317 (1974) (per curiam) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41

(1937)); see Church of Scientology of Calif. v. United States, 506 U.S. 9, 12 (1992) (noting that a

case is moot if "an event occurs while a case is pending on appeal that makes it impossible for the

court to grant 'any effectual relief whatever' to a prevailing party"(quoting Mills v. Green, 159 U.S.

651, 653 (1895))); see also Friends of the Earth, 528 U.S. at 192 (stating that the Federal courts do

not have "license . . . to retain jurisdiction over cases in which one or both of the parties plainly lack

a continuing interest"). Moreover, that is a "heavy burden" if the party making the allegation of

mootness also brought about that result through his or her own voluntary conduct. 528 U.S. at 189-

190 (citing United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203 (1968)); City

of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 (1982)). In that circumstance, the culpable

party "bears the formidable burden of showing that it is absolutely clear the allegedly wrongful

behavior could not reasonably be expected to recur." Id. at 190. Otherwise, "'the courts would be

compelled to leave "[t]he defendant . . . free to return to his old ways."'" City of Mesquite, 455 U.S.

at 289, n. 10 (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953) (internal citations

omitted).

The Secretary argues that Ms. Padgett's motion for substitution is moot. He notes that her

standing to seek substitution derived from the continuing relevance and preclusive effect that the

issues decided in this appeal would have in the adjudication of her accrued benefits claim. However,

he argues that Ms. Padgett's receipt of those benefits, in late January 2007, eliminated her Article III

3

interest in this appeal. Ms. Padgett disagrees. She notes that, in the Full Court Opinion, we held

that her husband's right-hip disorder was secondarily service-connected, and that the Court's holding

establishes a basis for her award of accrued benefits. She further notes that our decision—unlike the

January 2007 RO decision—cannot be overturned by the Secretary. Therefore, she argues that her

Article III interests are served through the preservation of the Full Court Opinion to an extent

sufficient to defeat any allegation that her motion to substitute is moot.

Before addressing the parties' arguments on the question of mootness, we must first consider

whether Ms. Padgett ever had standing to seek substitution. As explained in the Federal Circuit

Opinion, a party seeking substitution before this Court must satisfy a two-part inquiry. 473 F.3d at

1370; see also Pekular v. Mansfield, 21 Vet.App. 495, 500-502 (2007). First, he or she must have

Article III standing, 473 F.3d at 1370 (citing Mokal, 1 Vet.App. at 13); i.e., "'a personal stake in the

outcome''" of the case or controversy on appeal. Socialist Labor Party v. Gilligan, 406 U.S. 583,

586-87 (1972) (quoting Baker v. Carr, 369 U.S. 186, 204 (1968)); see North Carolina v. Rice, 404

U.S. 244, 246 (1971) ("[F]ederal courts are without power to decide questions that cannot affect the

rights of the litigants before them.");U.S. Bancorp v. Bonner Mall Partnership, 513 U.S. 18, 20

(1994) ("[A]n Article III case or controversy . . . must exist at all stages of appellate review.");

Arizonans for Official English, 520 U.S. at 67 (Under Article III "an actual controversy must be

extant at all stages of review, not merely at the time the complaint is filed."). Second, he or she must

have statutory standing, i.e., be "adversely affected" by the Board decision on appeal. Federal

Circuit Opinion, 473 F.3d at 1370 (citing 38 U.S.C. § 7266(a)); see also Pekular, 21 Vet.App. at

500-502. The Federal Circuit already held that Ms. Padgett met both of those requirements when

she filed her motion for substitution in July 2005. 473 F.3d at 1370. As this Court is bound by those

determinations on remand, we conclude that Ms. Padgett had the requisite standing to seek

substitution as a party to this appeal.

Having answered that threshold question, we can properly consider whether her motion to

substitute is now moot. We believe that it is. As noted above, Ms. Padgett's standing to seek

substitution derived solely from her status as a prospective claimant and potential recipient of

accrued benefits. 473 F.3d at 1370 ("The continuing relevance and preclusive effect that the issues

decided in [Mr.] Padgett's appeal have for her section 5121(a) claim [for accrued benefits] are

sufficient to meet the case or controversy requirement."). However, her claim for accrued benefits

has been granted in a final RO decision, and she is now in actual receipt of those benefits. Thus, Ms.

Padgett can no longer invoke her prior status in either respect as the Article III interest that supports

her substitution as a party to this appeal. In addition, the factual discrepancy between the Full Court

Opinion and the January 2007 RO decision, in terms of the basis for granting Mr. Padgett service

connection, does not provide Ms. Padgett with the Article III interest needed to continue litigating

this appeal. Regardless of whether her husband's disability is directly (as the January 2007 RO

decision found) or secondarily (as the Full Court Opinion held) service connected, the amount of

accrued benefits she would receive is exactly the same. See Roper v. Nicholson, 20 Vet.App. 173,

177-81 (2006). Finally, the possibility that the Secretary might try to revoke his decision awarding

Ms. Padgett accrued benefits in the future does not, without more, create an Article III case or

controversy. "[S]uch speculative contingencies afford no basis for our passing on the substantive

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issues [the movant] would have us decide . . . in the absence of evidence that this is a prospect of

immediacy and reality." DeFunis, 416 U.S. at 320, n. 5 (internal citations and quotations omitted);

see Texas v. United States, 523 U.S. 296, 300 (1998) ("A claim is not ripe for adjudication if it rests

upon 'contingent future events that may not occur as anticipated, or indeed may not occur at all.'"

(quoting Thomas v. Union Carbide Agricultural Prod. Co., 473 U.S. 568, 580-81 (1985) (internal

quotations omitted)).1 We are not suggesting that the Secretary's unilateral award of benefits will

always moot a case on appeal. Indeed, a contrary result might arise outside the specific facts of this

case. For instance, Ms. Padgett's motion for substitution might not be moot if she had appealed the

RO's January 2007 decision or if some other claim relevant to the outcome of these proceedings was

pending. However, in the absence of such circumstances and on the narrow facts presented here, the

Court holds that the Secretary has met his "heavy burden" of establishing that Ms. Padgett's motion

is now moot.

II. THE SECRETARY'S MOTION TO WITHDRAW THE FULL COURT OPINION

The Secretary further argues that Mr. Padgett's appeal is now moot, and that the Full Court

Opinion must be withdrawn. Though we agree with the Secretary in the first respect, we cannot

conclude, on the facts of this case, that the use of our discretionary authority to withdraw the Full

Court Opinion is warranted.

This appeal no longer satisfies the requirements of Article III. Mr. Padgett's personal stake

and continuing interest in the outcome thereof ceased upon his death, see Federal Circuit Opinion,

473 F.3d at 1370 (noting "the general rule that a veteran's claim for benefits ends with his

death . . ."), and Ms. Padgett's receipt of accrued benefits, in a final RO decision, ensures that neither

she nor any other party will be able to continue this litigation on his behalf. See Pelea v. Nicholson,

497 F.3d 1290, 1292-93 (Fed. Cir. 2007). Thus, Mr. Padgett's appeal is now undeniably moot.

However, that does not mean that we must withdraw the Full Court Opinion. First, Mr.

Padgett's appeal did not become moot until after the issuance of that decision.2 Therefore, the proper

disposition of the Full Court Opinion lies within our sound discretion, see Humphreys v. Drug

Enforcement Administration, 105 F.3d 112, 113 (3d Cir. 1996) ("Because we plainly had jurisdiction

over the appeal at the time our opinion was filed, our decision whether to vacate is discretionary."),

and must be made "in the manner '"most consonant to justice" . . . in view of the nature and character

of the conditions which have caused the case to become moot.'" Bancorp, 513 U.S. 18 at 24 (quoting

United States v. Hamburg-Amerikanische Packetfahrt-Actien Gesellschaft, 239 U.S. 466, 477-78

1

The Court also notes that M s. Padgett would be afforded a full panoply of substantive and procedural

protections in the unlikely event that such an action by the Secretary ever occurred. See 38 C.F.R. § 3.500-3.669 (2008)

(discussing reductions, discontinuances, and adjustments of benefits).

2

W e know this because, if the opposite were true, the Federal Circuit would have simply dismissed this case

for want of jurisdiction. See Steel Co., 523 U.S. at 94 ("W ithout jurisdiction the court cannot proceed at all in any cause.

Jurisdiction is the power to declare law, and when it ceases to exist, the only function remaining to the court is that of

announcing the fact and dismissing the case.") (internal citations omitted).

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(1916) (quoting South Spring Hill Gold Mining Co. v. Amador Medean Gold Mining Co., 145 U.S.

300, 302 (1892))). Consistent with those principles, the relevant authorities in this area distinguish

between cases that become moot on appeal "due to circumstances unattributable to any of the

parties," Karcher v. May, 484 U.S. 72, 83 (1987), or other "happenstance," United States v.

Munsingwear, Inc., 340 U.S. 36, 40 (1950), and those that become moot on appeal due to the

voluntary conduct of one or both parties. See Friends of the Earth, 528 U.S. at 194, n. 6 ("We note

that it is far from clear that vacatur of the District Court's judgment would be the appropriate

response to a finding of mootness on appeal brought about by the voluntary conduct of the party that

lost in the District Court."); Bancorp, supra; Staley v. Harris Cty., Texas, 485 F.3d 305, 311, n.2 (5th

Cir. 2007), cert. petition denied, 128 S.Ct. 650, 651 (2007) (memorandum); Mfrs. Hanover Trust

Co. v. Yanakas, 11 F.3d 381, 383 (2d Cir. 1993); see also Valero Terrestrial Corp. v. Paige, 211

F.3d 112, 121 (4th Cir. 2000) (holding that the U.S. Bancorp Mortgage Co. principles are applicable

at both the district court and appellate court level when considering whether to withdraw or vacate

a decision of the court). In the first situation, the parties are (through no fault of their own)

involuntarily deprived of their appellate rights. Thus, justice requires that any prior decisions in that

case be withdrawn or vacated. Bancorp, 513 U.S. at 25 ("A party who seeks review of the merits

of an adverse ruling, but is frustrated by the vagaries of circumstance, ought not in fairness be forced

to acquiesce in the judgment."). Conversely, in the second situation, the culpable party (through his

or her own voluntary conduct) effectively forfeits his or her right to further appellate review.

Accordingly, justice may require a contrary disposition of any prior decisions. See Bancorp, 513

U.S. at 29 ("[H]old[ing] that mootness by reason of settlement does not justify vacatur of a judgment

under review."); Staley, 485 F.3d at 311, n.2 ("[I]n cases mooted by the voluntary action or inaction

of a party, we have decided the vacatur question in favor of the party that did not cause the case to

become moot."); Mfrs. Hanover Trust Co., 11 F.3d at 383 ("If we were to vacate where the party that

lost in the district court has taken action to moot the controversy, the result would be to allow that

party to eliminate its loss without an appeal and to deprive the winning party of the judicial

protection it has fairly won.").

We believe that Mr. Padgett's appeal became moot because of the voluntary conduct of the

Secretary. At the time of the Federal Circuit Opinion, this appeal satisfied the requirements of

Article III because of Ms. Padgett's ability to seek substitution. However, the Secretary eliminated

that possibility with his award of accrued benefits, thereby depriving Ms. Padgett of the Article III

interest needed for substitution. Thus, it was the Secretary's decision to award Ms. Padgett accrued

benefits, not the death of Mr. Padgett or other happenstance, that ultimately caused this appeal to

become moot. Moreover, the Secretary's conduct in that regard was entirely voluntary. He was not

obliged to order the "special review" that ended with the RO decision awarding—in a reversal of

VA's long-standing position—Mr. Padgett service connection and Ms. Padgett accrued benefits.

Accordingly, he pursued that course of action at the risk of impairing, or even sacrificing, his rights

in this parallel proceeding. Moreover, even if the Secretary believed he was obliged to order that

special review, the prudent course of action—and the one not taken here—would have been to

request a stay of the RO proceeding pending a resolution of the remand ordered in the Federal

Circuit Opinion. See Ribaudo v. Nicholson, 20 Vet.App. 552 (2007). For these reasons, the Court

6

holds that the Secretary's voluntary conduct in awarding Ms. Padgett accrued benefits caused this

appeal to become moot.

We further believe that the Secretary has not met his burden of showing entitlement to the

equitable remedy of withdrawal. Bancorp, 513 U.S. at 26.3 His primary argument in that respect

is that a failure to grant a withdrawal effectively precludes his ability to seek further appellate review

of the Full Court Opinion. However, the Secretary forfeited that right by his own voluntary conduct,

and in any event he can seek review of the merits of the legal holdings in the Full Court Opinion in

other future cases brought before the Federal Circuit. In contrast, Ms. Padgett's countervailing

interest in preserving the Full Court Opinion is unusually strong, see Winsett v. Principi, 341 F.3d

1329, 1331 (holding that final Board decisions appealed to and decided by the Court are not subject

to revision on the basis of clear and unmistakable error), and it coincides with that of the public.

Judicial decisions "'are not merely the property of private litigants and should stand unless a court

concludes that'" a contrary result would serve "the public interest.'" U.S. Bancorp Mortgage Co., 513

U.S. at 26 (quoting Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp., 510 U.S. 27, 40

(1993) (Stevens, J., dissenting)). As noted above, the Full Court Opinion clarified the proper

application of the "clearly erroneous" standard of review in cases on appeal to this Court and

unanimously overruled any possible contrary interpretation in our prior decisions, including Hicks,

supra. That holding, effective for several months, in 2005, and since the issuance of the Federal

Circuit Opinion, is part of a decision that the law presumes was correct. See Bancorp, 513 U.S. at

26; Federal Circuit Opinion, 473 F.3d at 1369. The Court also notes that granting the Secretary's

motion to withdraw might sanction his use of an equitable remedy "as a refined form of collateral

attack," thereby "disturb[ing] the orderly operation" of the existing statutory system for obtaining

appellate review. Bancorp, 513 U.S. at 27. That suggestion must be scrupulously avoided in light

of the facts of this case. For the foregoing reasons, the Court holds that the Secretary has failed to

demonstrate entitlement to the equitable remedies sought in his motion to withdraw. Accordingly,

that motion will be denied.

III. NUNC PRO TUNC AUTHORITY AND MR. PADGETT'S APPEAL

Having concluded that a withdrawal is not warranted, the Court will issue the Full Court

Opinion nunc pro tunc on the day before Mr. Padgett's death. We recognize that this might seem

contrary to the Federal Circuit's admonition that "if Mrs. Padgett could not be substituted, nunc pro

tunc relief would be inappropriate." Federal Circuit Opinion, 473 F.3d at 1370. However, the Court

concludes that the Federal Circuit did not intend that rule to extend to cases rendered moot on appeal

by the Secretary's voluntary conduct. In that circumstance, an award of nunc pro tunc relief is

entirely appropriate. See BLACK'S LAW DICTIONARY 1100 (8th ed. 2004) ("'When an order is signed

'nunc pro tunc' as of a specified date, it means that a thing is now done which should have been done

3

W e recognize that most of the Bancorp-type cases cited herein involve a superior tribunal's refusal to vacate

an inferior tribunal's decision where the voluntary conduct of a party causes a case to becomes moot on appeal. But see

Mfrs. Hanover Trust Co., supra. However, we do not believe that distinction is significant. Id. The underlying principle

in all of these cases is that a losing litigant should not be able to erase an unfavorable decision by mooting the case

through voluntary, post-decisional conduct.

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on the specified date.'" (quoting 35A C.J.S. Federal Civil Procedure § 370 (1960))); see also

Federal Circuit Opinion, 473 F.3d at 1370-71.

IV. CONCLUSION

Upon consideration of the foregoing, it is

ORDERED that Ms. Padgett's July 21, 2005, motion to substitute is DISMISSED for lack

of jurisdiction.

ORDERED that the Secretary's May 19, 2005, motion to withdraw the Full Court Opinion,

dismiss the appeal, and vacate the underlying Board decision is DENIED. It is further

ORDERED that the Full Court Opinion is issued nunc pro tunc on November 2, 2004.

DATED: July 8, 2008 PER CURIAM.

MOORMAN, Judge, concurring: I concur in the result reached by the Court that vacatur of

the Full Court Opinion is not warranted under the circumstances presented here. I write separately

to emphasize that the Court here adheres to the "case or controversy" requirement of Article III of

the U.S. Constitution. See Mokal v. Derwinski, 1 Vet.App. 12, 13 (1990). The procedural posture

of this case makes it virtually impossible to read our decision as supporting a finding that a "case or

controversy" need not exist in order to establish our jurisdiction. Indeed, at the time that the Court

issued its Full Court Opinion in April 2005, the Court decided issues in Mr. Padgett's appeal that

had relevant and preclusive effect on Mrs. Padgett's accrued benefits claim. See Haines v. West, 154

F.3d 1298 (Fed. Cir. 1998). Accordingly, the appeal and issue of service connection were not moot

at the time the Court issued its Full Court Opinion. The fact that Mrs. Padgett has, subsequent to

the issuance of that opinion, been awarded accrued benefits does not change the fact that at the time

the opinion was filed, we had jurisdiction over the appeal. Despite Mr. Padgett's death, at that time

there was a potential accrued benefits claimant, Mrs. Padgett, and Mrs. Padgett sought substitution

shortly after the filing of the Full Court Opinion. See Pekular v. Mansfield, 21 Vet.App. 495, 501

(2007) (noting that the Court's holding in Landicho v. Brown, 7 Vet.App. 42 (1994)–that when an

appellant died while his case was on appeal to this Court, the appeal must be dismissed for lack of

jurisdiction–was overruled in cases where an eligible accrued benefits recipient seeks substitution,

both by implication in Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996), and by the express

finding in Padgett v. Nicholson, 473 F.3d 1364 (Fed. Cir. 2007)).

Regardless of my own view as to whether the Full Court Opinion is a correct statement of

the law or correct application of the law, the issue now before the Court is whether the Secretary has

demonstrated that a balancing of public policies favors the vacatur by this Court of its own

previously issued precedential decision. In the unique posture of this case, neither "mootness by

reason of settlement," U.S. Bancorp Mortgage Co. v. Bonner Mall P'ship, 513 U.S. 18, 29 (1994),

nor mootness due to the voluntary act of a losing party, Karcher v. May, 484 U.S. 72, 82-83 (1987)

8

(holding United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950), procedure inapplicable because

"controversy did not become moot due to circumstances unattributable to any of the parties"),

justifies vacatur of our previously released Full Court Opinion.

KASOLD, Judge, concurring in the result: I write separately to note that I do not believe

Mrs. Padgett's motion for substitution is moot. Succinctly stated, the Secretary has awarded benefits

based on direct service connection, whereas the Court found that service connection was warranted

based on secondary service connection. See Padgett v. Nicholson (Full Court Opinion), 19 Vet.App.

133, 152 (2005) (en banc). Although an award of service connection based on one theory, as

opposed to another, generally results in the same benefit and moots a direct appeal, Roebuck v.

Nicholson, 20 Vet.App. 307, 315 (2006) ("A claimant need only succeed on one theory of the claim

in order to prevail on the underlying claim . . . ."), in this instance the Court has rendered a decision

that will be fully binding on the Secretary once finalized, see Padgett v. Nicholson, 473 F.3d 1364,

1369 (Fed. Cir. 2007) (noting the certainty of a final judgment relating to issues in the veteran's

claim after a decision is rendered by the Court and that "judicial precedents are 'presumptively

correct'"), whereas the Secretary's decision is always subject to revision, see 38 C.F.R. § 3.500-3.669

(2008) (discussing reductions, discontinuances, and adjustments of benefits); cf. Winsett v. Principi,

341 F.3d 1329, 1331 (Fed. Cir. 2003) (holding that final Board decisions appealed to and decided

by the Court are not subject to revision on the basis of clear and unmistakable error).

Moreover, the Secretary in this case denied benefits even after the full Court had determined

service connection was warranted and withdrew its opinion on other grounds–a situation envisioned

by the Federal Circuit. See Padgett, 473 F.3d at 1370 (noting that it was "reasonable to suspect" that

the Secretary would deny an accrued benefits award to Mrs. Padgett absent the controlling effect of

the Full Court Opinion). The Secretary only granted benefits after the Federal Circuit reinstated the

Full Court Opinion, and then did so on a separate theory, leaving open the possibility that it could

be changed. Under these circumstances, Mrs. Padgett has a legitimate interest in sustaining the Full

Court Opinion and the matter therefore is not moot. Compare City of Erie v. Pap's A.M., 529 U.S.

277, 287-88 (2000) (finding matter not moot when underlying basis for litigation could be renewed

and other party had an interest in preserving judgment), with City News & Novelty, Inc. v. City of

Waukesha, 531 U.S. 278, 283 (2001) (Speculation alone cannot "shield [a] case from a mootness

determination.").

Nevertheless, assuming arguendo that the case is now moot, it certainly was not moot at the

time Mrs. Padgett originally sought substitution. Thus, to do now that "'which should have been

done on the specified date,'" I would grant Mrs. Padgett's motion for substitution nunc pro tunc to

July 21, 2005, the date she filed it. See BLACK'S LAW DICTIONARY 1100 (8th ed. 2004) ("'When an

order is signed "nunc pro tunc" as of a specified date, it means that a thing is now done which should

have been done on the specified date.'" (quoting 35A C.J.S. Federal Civil Procedure § 370 (1960))).

Finally, I emphasize that regardless of whether or not Mrs. Padgett's interests in the appeal have been

mooted by the Secretary's award of accrued benefits, I fully concur that the Full Court Opinion

should not be withdrawn.

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HAGEL, Judge, with whom SCHOELEN, Judge, joins, dissenting: Although I agree with

the majority's determination that Sue Padgett's motion for substitution is moot, I write separately to

express my disagreement with the majority's application of the Federal Circuit's recent opinion in

this matter and the majority's denial of the Secretary's motion to withdraw the Full Court Opinion

in the appeal of Barney Padgett.

In this case, Sue Padgett filed a claim for accrued benefits, which a VA regional office

granted in January 2007. As a result of this disposition, the Secretary asserts that Sue Padgett’s

motion to be substituted for her deceased husband, Barney, in his separate appeal before this Court

should be denied. The Secretary further contends that because Barney Padgett is now deceased, his

appeal (in which Sue Padgett had sought substitution) is now moot and should be dismissed,

resulting in the withdrawal of this Court's April 2005 Full Court Opinion in Barney Padgett's appeal.

Sue Padgett opposes the Secretary's motion on the basis that, if the Court's April 2005 opinion is

withdrawn, the Secretary would have the authority to rescind the award of accrued benefits by

vacating the decision that her husband's disability was service connected. See 38 C.F.R. § 3.105

(2008). Despite the majority's conclusion that Barney Padgett's motion before this Court is moot,

it holds that withdrawal of the April 2005 Full Court Opinion is unwarranted in this case. The result

of this action is the reinstatement of the Full Court Opinion that was issued after the death of the

appellant and, hence, after the termination of the claim upon which the appeal was based. In doing

so, the majority departs from well established legal precedent and issues an advisory opinion in its

purest form.

Although the majority provides the facts it finds relevant to this case, this appeal is more

involved than the majority's decision portrays and it is important that we recall clearly the facts of

this case and the established precedent governing such situations to put the majority's opinion, and

this dissent, into their proper context.

I. PROCEDURAL HISTORY

The procedural history of this case is far from tidy. It is important to keep in mind, however,

when reviewing this history that it involves two separate but related claims–Barney Padgett's claim

for disability compensation under 38 U.S.C. § 1110 and his widow, Sue Padgett's, claim to receive

any benefits that were due Barney Padgett on that claim, but unpaid at his death, otherwise known

as accrued benefits under 38 U.S.C. § 5121.

In December 2002, Barney Padgett appealed the Board's denial of his claim for disability

compensation for a right hip disability. In July 2004, a panel of this Court issued a decision

remanding Barney Padgett's appeal to VA for its failure to consider certain evidence. Both parties

moved for full court consideration of the appeal. The motions were granted in September 2004 and

the Court withdrew its July 2004 panel opinion at that time. In November 2004, Barney Padgett

died. In June 2006, Sue Padgett filed her own claim for accrued benefits based on her deceased

husband's claim.

10

VA denied Sue Padgett's accrued benefits claim in November of 2006. Despite the fact that

the July 2004 opinion had been withdrawn in September 2004, VA erroneously cited that opinion

as evidence it considered in the adjudication of Sue Padgett's claim.4

Neither of the parties notified the Court of Barney Padgett's death and, because the Court was

not aware of that fact, the full Court proceeded to consider Barney Padgett's appeal of the Board's

decision denying entitlement to disability compensation, issuing its decision in April 2005. The

April 2005 Full Court Opinion reversed the Board's decision, finding that Barney Padgett was

entitled to secondary service connection for his right hip disability, and remanded the claim for VA

to consider the issues of entitlement to benefits on direct and presumptive theories. Following

notification to the Court of Barney Padgett's death, in September 2005, the Court withdrew the April

2005 Full Court Opinion, citing Landicho v. Brown, 7 Vet.App. 42 (1994) and Zevalkink v. Brown,

102 F.3d 1236 (Fed. Cir. 1996). Unlike the July 2004 withdrawn Panel Opinion and despite its

withdrawal, for unknown reasons the Full Court Opinion was erroneously published in the bound

volume of the Veterans Appeals Reporter at 19 Vet. App. 133. Compare 18 Vet. App. 188-204. The

order withdrawing the April 2005 Full Court Opinion also denied a motion by Sue Padgett to

substitute for her deceased husband in his appeal or to intervene therein. It was the Court's

September 2005 order, withdrawing its earlier opinion and denying Sue Padgett's motions, that was

appealed to the Federal Circuit. On January 5, 2007, the Federal Circuit issued its opinion, reversing

this Court's September 2005 order withdrawing the April 2005 Full Court Opinion, and remanding

the case to this Court for action consistent with that opinion. 473 F.3d 1364 (Fed. Cir. 2007). In its

decision, the Federal Circuit specifically identified two issues which it had to decide:

This case presents two [questions of law]. First, where a veteran dies after his case

is submitted for decision, but before the opinion issues, does the Veterans Court have

authority to issue the judgment nunc pro tunc as of the time of his death? Second,

and intertwined with the first, is whether, under these circumstances, the surviving

spouse, as accrued-benefits claimant, may be substituted on her husband's appeal?

Id. at 1367 (emphasis added). As discussed more fully below, the Federal Circuit answered both

questions in the affirmative. Id.

Twelve days after the Federal Circuit's opinion was published, VA, apparently acting on its

own initiative, conducted a special review of Sue Padgett's accrued benefits claim.5 As a result of

4

The regional office noted Barney Padgett's death and indicated that the matter was being decided to determine

Sue Padgett's entitlement to compensation that may have accrued from the alleged service-connected disability. The

regional office decision, however, did not mention either the April or September 2005 actions of the full Court, described

below. Sue Padgett's representative, who actively communicated with the regional office regarding her claim for accrued

benefits, also failed to call the regional office's attention to them.

5

Although the rating decision necessarily speaks in terms of Barney Padgett's injury, because Barney Padgett

was deceased at that time the only viable claim upon which the regional office could act was Sue Padgett's 2006 accrued

benefits claim. In its letter notifying Sue Padgett of her award of benefits, the regional office clearly indicated that it was

adjudicating only Sue Padgett's accrued benefits claim.

11

that review, the regional office found that its prior decision denying VA benefits to Barney Padgett

for his right hip disability was clearly and unmistakably erroneous. The regional office found that

Barney Padgett's right hip disability was service connected on a direct basis and awarded Barney

Padgett a disability rating of 30%, effective March 5, 1993, the date he filed his claim. Significantly,

however, the decision noted that its findings were made for the purposes of calculating accrued

benefits for a claim filed by Sue Padgett. On January 18, 2007, Sue Padgett was notified that, based

on her claim for accrued benefits, she would receive a sum of $58,225.00 in accrued benefits. The

regional office cited both the Full Court Opinion and the Federal Circuit’s January 2007 decision,

permitting substitution of an accrued benefits claimant in a claim submitted to the Court for decision,

as evidence that it considered in reaching its decision.

II. EXISTING PRECEDENT REGARDING VACATUR ON THE DEATH OF AN

APPELLANT

Since our 1994 decision in Landicho (approved two years later by the Federal Circuit in

Zevalkink) this Court has recognized the statutory reality that a claim by a veteran for disability

compensation and a claim by a widow for accrued benefits due a deceased veteran or for dependency

and indemnity compensation, while related, are separate claims, each emanating from its own

statutory basis and each with a different claimant. Further, the Court has recognized that a veteran's

claims for disability compensation terminate at his death. See Landicho, 7 Vet.App. at 47. Landicho

also changed the language of Rule 43 of the Court's Rules of Practice and Procedure to permit

substitution for a deceased claimant only to the extent permitted by law.

Consequently, since 1994, the Court's standard practice in resolving pending appeals where

an appellant dies is to dismiss the appeal as moot and vacate the underlying Board decision. By

taking these actions, the Court sought to ensure that an accrued benefits or dependency and

indemnity compensation claimant would have his or her independent claims adjudicated without

being encumbered by a non-final Board decision on the deceased veteran's underlying claim upon

which those benefits might depend. In short, after Landicho, the general rule upon the death of an

appellant has been to dismiss the appeal, vacate the Board decision that was the subject of that

appeal, and deny motions for substitution. See Pekular v. Mansfield, 21 Vet.App. 495, 501 (2007).

The majority seems to ignore this precedent, instead finding that this Court's authority to withdraw

a prior judgment following the death of an appellant is "discretionary." Supra at 5.

III. THE PADGETT EXCEPTION TO THE GENERAL RULE ESTABLISHED IN

LANDICHO AND ZEVALKINK

In its January 2007 decision, the Federal Circuit held that, if certain conditions were met, this

Court could depart from the general rule established in Landicho, permit the substitution of a bona

fide accrued benefits claimant for a deceased appellant, and issue its decision nunc pro tunc, as if

it were decided before the veteran-claimant's death. In doing so, the Federal Circuit recognized the

12

interrelationship between the veteran's disability compensation claim and a survivor's claim for

benefits that had accrued to the veteran before his death.6

The Federal Circuit began its discussion of this Court's authority to issue a decision nunc pro

tunc by citing Mitchell v. Overman, 103 U.S. 62, 64-66 (1880), for the proposition that when delay

in deciding a case is for the convenience of the Court and not the fault of the parties, the Court's

decision may be entered retrospectively. Importantly, the Federal Circuit noted that the purpose for

such an irregular action was that, "[i]n such cases, . . . it is the duty of the court to see that the parties

shall not suffer by delay." Padgett, 473 F.3d at 1367 (quoting Mitchell, 103 U.S. at 65) (emphasis

added). The Court went on to cite a number of cases indicating that the purpose of a nunc pro tunc

order is to ensure fundamental fairness for the parties. Id. at 1368.

The Federal Circuit next noted a significant factual difference between the underlying claims

in Padgett and Landicho. Mr. Landicho died after a Notice of Appeal had been filed with the Court,

but before the case had been submitted to the Court for decision. On the contrary, Barney Padgett

died after his appeal had been submitted to this Court. Consequently, the Federal Circuit reasoned,

it was proper to dismiss Mr. Landicho's appeal, because dismissal of that appeal accompanied by

setting aside the underlying Board decision, which was rendered a nullity by virtue of his death,

would permit Mrs. Landicho to pursue an accrued benefits claim from the same point that Mr.

Landicho was in presenting his claim at the time of his death. Id. at 1369. In contrast, the Federal

Circuit found that, because Barney Padgett died after his case had been submitted to the Court, the

underlying Board decision was in a different state of finality than in Landicho. Thus, to place Sue

Padgett in the same position as her husband in pursuing her claim, the Court could, if circumstances

warranted, issue the Full Court Opinion nunc pro tunc to the time prior to Barney Padgett's death.

As explained by the Federal Circuit, under these circumstances, Barney Padgett's disability claim

would be wholly analogous to the accrued benefits claim of Sue Padgett. Id. at 1370.

The Federal Circuit next considered the question of the appropriateness of granting Sue

Padgett's motion to substitute for her deceased husband. In so doing it made another specific and

important finding that, "[b]ecause of the general rule that a veteran's claim for benefits ends with his

death, if Sue Padgett could not be substituted, nunc pro tunc relief would be inappropriate." Id. The

Federal Circuit then explained the two-part test that must be satisfied for substitution to be

considered. First, a case or controversy must exist, specifically that the underlying appeal is not

moot. Id. Second, the party seeking to be substituted must have standing, or be "adversely affected"

by the Board decision on appeal, under 38 U.S.C. § 7266(a). Id. Lastly, the Court noted a third

consideration, whether such relief is required to provide justice and fairness to the parties. I note

that in its analysis regarding the appropriateness of substitution in this case, the majority fails to cite

6

Although the reasoning is not entirely clear, the Federal Circuit found that to overcome the termination of a

veteran's claim at his death when considering a claim for accrued benefits, a Court decision rendered after the death of

a veteran would have to be issued nunc pro tunc to the date immediately prior to the veteran's death and that the live

person seeking accrued benefits would have to be substituted as the appellant. In my view, the reason for these

requirements would be to prevent the termination, by operation of law, of the appeal of a decedent at his death by means

of substituting a live person with standing as the appellant in that appeal. A panel of this Court has discussed this

apparent incongruity. See Pekular, 21 Vet.App. at 501.

13

the Federal Circuit's decision, in particular the test for substitution. Applying its test, the Federal

Circuit’s findings and analysis are as follows: the authority to issue a decision nunc pro tunc in the

case of a deceased veteran depends first upon satisfying the test to substitute a bona fide accrued

benefits claimant, and even if substitution could be made, whether the issuance of a decision nunc

pro tunc is necessary to provide justice to the parties.

IV. APPLICATION TO THE ISSUES BEFORE THE COURT

First, it is important to note that Barney Padgett's claim died with him, hence, his appeal

became moot upon his death in November 2004. See Landicho, 7 Vet.App. at 47. The majority

seems to ignore this fact in stating "it was the Secretary's decision to award Ms. Padgett accrued

benefits, not the death of Barney Padgett or other happenstance, that ultimately caused this appeal

to become moot." Supra at [xx]. Under the precedent of the Court, Barney Padgett's appeal became

moot upon his death, but, as a potential accrued benefits claimant, Sue Padgett, through her motion

to substitute, had the potential to revive a case or controversy in Barney Padgett's case. However,

because Sue Padgett has now prevailed in her separate claim for accrued benefits, she has already

received all the benefits available to her had she prevailed in her motion to be substituted in her

deceased husband's appeal to this Court. Thus, the underlying purpose for her motion to substitute,

to eliminate unnecessary delay in a decision on her claim for accrued benefits, ceased to exist when

her 2006 claim for accrued benefits was granted in January 2007. In short, there is simply no reason

now to permit substitution in Barney Padgett's appeal. In terms of the Federal Circuit's test, Sue

Padgett fails that test because she is no longer adversely affected by anything that may have occurred

in VA's adjudication of her deceased husband's claim. Consequently, her motion to substitute is now

moot and Barney Padgett's original appeal remains moot because there is no person with standing

to revive it. The majority appears to agree with this analysis and would also deny Sue Padgett's

motion to substitute. However, in doing so, the majority fails to recognize that without substitution,

only Barney Padgett's underlying appeal is still before the Court. Because his claim terminated at

his death, the proper course is to dismiss his appeal and vacate the underlying Board decision. See

Landicho, 7 Vet.App. at 47.

Although my colleagues writing separately to concur with the majority's disposition of this

case would look back to the time that Sue Padgett originally sought substitution to decide the issue

of mootness, such a view is not supported by law. See Arizonans for Official English v. Ariz., 520

U.S. 43, 68 (1997) (citing United States Parole Comm'n v. Gerghty, 445 U.S. 388, 397 (1980)

(describing mootness as "the doctrine of standing set in a time frame: The requisite personal interest

that must exist at the commencement of the litigation (standing) must continue throughout its

existence (mootness)" (quoting Monaghan, Constitutional Adjudication: The Who and When, 82

Yale L. J. 1363, 1384 (1973)). An appellant must have standing throughout the entire appellate

process or the case becomes moot. Id. As a result, I disagree with my concurring colleagues'

retroactive focus to the time that Sue Padgett filed her original motion for substitution.

Following the dictate of the Federal Circuit's January 2007 decision, because Sue Padgett

cannot be substituted for her husband in his claim for benefits, the 2005 Full Court Opinion may not

14

be given nunc pro tunc effect under authority of that case. Padgett, 473 F.3d at 1370. As a result,

I would grant the Secretary's motion to dismiss Barney Padgett's appeal and to withdraw the April

2005 Full Court Opinion. The majority, however, ignores the Federal Circuit's January 2007

decision in this case and gives the April 2005 Full Court Opinion nunc pro tunc effect. This result

is not sanctioned by the Federal Circuit. In so doing, the majority avoids discussing the Federal

Circuit's analysis in its decision in Padgett and relies on a series of cases emanating from U.S.

Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18 (1994).

As explained in Bancorp, the disposition of moot cases rests on concepts of equity and the

conditions that rendered the case moot. Bancorp, 513 U.S. at 24. In Bancorp, the Supreme Court

decided the narrow issue of whether it was appropriate to order vacatur of a lower appellate court

decision when the appeal became moot by reason of settlement. Although the language in Bancorp,

if taken out of context, could be used to support the majority's position, Bancorp cannot be separated

from its facts. Furthermore, Bancorp and the cases relying on it do not alter this Court's well-

established practice of ordering vacatur in moot cases. See Landicho, 7 Vet.App. at 47; see also

Bancorp, 513 U.S. at 23; United States v. Munsingwear, Inc., 340 U.S. 36, 95 (1950).

Indeed, the Bancorp line of cases is distinguishable from Padgett in that those cases do not

involve the fact situation that we have here: two separate claims, each asserted by a different

individual in his or her own right, and a motion by one individual to substitute for the other at death.

The Bancorp line of cases focus on fairness to the parties who have a demonstrated interest in the

litigation. In this case, the only parties who had any interest in this litigation at any time are Barney

and Sue Padgett. However, Barney Padgett has no further interest in this litigation because any

entitlement to benefits was extinguished at his death. Sue Padgett no longer has an interest in this

litigation because she has been awarded all of the benefits that she sought.

Furthermore, the cases cited by the majority are not governed by law dictating that a veteran's

claim dies with the veteran. See Landicho, 7 Vet.App. at 47. Barney Padgett's appeal, not Sue

Padgett's accrued benefits claim, was considered by the Court in April 2005. Indeed, the appeal

remains Barney Padgett's even if Sue Padgett were to be substituted for him following the guidance

provided by the Federal Circuit. The only purpose of substitution would be to avoid any unnecessary

delay in a decision on Sue Padgett's claim, which was derivative of her husband's underlying claim

now on appeal. However, when Sue Padgett's separate claim for accrued benefits was granted, any

reason for substitution of Sue Padgett in Barney Padgett's underlying appeal ceased to exist.

If the course set by the Federal Circuit were followed, there could be no substitution and

consequently no action that would warrant issuing our April 2005 decision nunc pro tunc. Rather,

in this situation, the Court's standard and consistent practice of dismissing the appeal and vacating

the offending Board decision is the appropriate course of action. Such actions would eliminate the

2002 Board decision that, if left in place, would conflict with the 2007 regional office decision

granting Sue Padgett's claim for accrued benefits and there would be no resulting injustice to the

parties. Any other course, no matter how well intentioned, amounts to an advisory opinion on issues

no longer before this Court.

15

Assuming that this Court could, through the exercise of some inherent power, permit its

decision in a moot appeal to remain as precedential authority based on concepts of equity, the cases

cited simply do not support such action. Should the majority wish to establish a new exception to

the general rule in Landicho, it should do so clearly, instead of ignoring the well-established

precedent of the Court.

The majority states that the Full Court Opinion clarified the application of the "clearly

erroneous" standard of review in cases on appeal to this Court.7 However, although I agree with the

articulation of the "clearly erroneous" standard of review expressed therein, a review of the cases

cited in the Full Court Opinion does not compel the conclusion that a clarification of the appropriate

application of the "clearly erroneous" standard of review was necessary. See Hicks v. Brown, 8

Vet.App. 417, 422 (1995); see also Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990). Further,

assuming that clarification is needed, the issue of the application of the "clearly erroneous" standard

of review arises with great frequency in appeals before this Court and could be clarified in other

cases that present the Court with a true conflict involving parties with standing and in which the

Court's pronouncement will have an actual effect on the necessary parties, as opposed to this case,

in which the Court is reinstating a free-standing, advisory opinion unattached to any existing case

or controversy. Certainly, the majority does not explain why the facts of this case demand such a

drastic departure from our precedent, which in turn would only set a bad, or at least inexact,

precedent that may itself one day require further clarification.

By this dissent, I do not say that I would never deny a motion to vacate a decision of this

Court. However, the facts of this case do not support abandoning our traditional adherence to the

concept of mootness in favor of applying equitable principles. For these reasons, I respectfully

dissent.

7

The majority states that the Full Court Opinion was "effective for several months, in 2005, and since the

Federal Circuit Decision." Supra at 7. To be more specific, the Full Court Opinion was issued April 19, 2005, and

withdrawn on September 7, 2005, slightly more than 5 months.

16