district of virginia he normally a sitting in a trial court in richmond has agreed to supplement our judicial force here and join us this panel and other panelist tomorrow so we think him and we welcome second preliminary point of business is to note that two cases on the panels list will be submitted without argument just on the briefs later today those or appeal seventy one forty nine from two thousand and eight voss versus department of veterans affairs and appeal thirty seventy eight from two thousand and nine are much halo versus merit system protection board on the argument list we have four cases the first two will be argued together they are philips versus the department of veterans affairs appeal seventy one twenty four and davis versus department of veterans affairs appeal seventy one to both from two thousand and mr shanks gave good morning to you welcome to the court please proceed fifteen minutes will give you a little additional time if it's needed but plan on eyes or is viable second of all whether miss harris was an appropriate substitute on the ija claim and then once those two predicates are dealt with whether there was any cause for the veterans court to withdraw its mandate here now on the survivability question that ends up being quite a straightforward one it's been clear under supreme court precedent going back well over one hundred years that remedial claim survives and the supreme court this court and the veterans court all have that is remedial statue so that then brings us to the question of substitution and one substitution to we think the answer ends up being reasonably straightforward miss harris moved substitute and in the veterans correct your honor by the better well the claim was filed on the veterans behalf it was filed by his counsel shortly after he died and so miss harris then moved to substitute on that claim and the secretary declined to oppose the motion to substitute it's quite clear in the record we filed a motion and it was on the post and so once you move past the questions of survivability and substitution you're left with what ends up being even an easier case for that reason it should be a straight remained under padgett because the veterans court erred in recognizing that there wasn't fact a valid fifty one twenty one claimant phillips is only in each case and so going back to your question chief judge michele the veterans court here erred in its interpretation of padgett and what it said was in order to substitute in a veteran's case and it sort of spoke generally about that or in this case as you have to be a fifty one twenty one substitute but padgett didn't say any such thing padgett simply said in evaluating whether nunc protonic relief is available whether a judgment should be issued no protonic we look to see whether there's an appropriate survivor and  started appropriate substitute imagine the question why is substitution under fifty one twenty one so bad you wasn't naturally looking at fifty one twenty one but that doesn't answer the separate question of whether someone's an appropriate substitute for egypt purposes when when you're looking at each other you look at federer and score all forty three and the general principles that would govern in any case where you have an issue about substitution it's only the sort of specialized nature of the substitution under fifty one twenty one and survivability as fifty one twenty one claims they creates are special problems where you have a fifty one twenty call fifty one twenty one claim but where is here you don't where you're just talking about a straight egypt case then you have a very different analysis of the problem here i take it is principally about one of timing when the death occurred in the course of the various events that of the curd let's say the day after the notice of appeal was filed but for whatever reason it wasn't known to the to the council on foreign either side that that occurred but then lines that the death didn't happen that mr philips didn't die until after the case was submitted and moreover a final judgment was entered and the mandate issued in this case and so you have both on the front end sort of finality interests that come into play in the equitable interests that the no parties just bring to bear where you're dealing with a submission point and you also have the separate finality interests that attach to the issuance of the man and it's on the second question that i think the veterans support in this case and candidly and in the whole run of cases at least leading up to this court's decision and padgett went and has gone pretty badly astray that the approach of the veterans court doesn't take proper account of the finality interests that attach to the issuance of the mandate and so going back to what the veterans court did here and sort of thinking about the timing issue we have a case in which this case repeatedly has recognized renders a party prevailing for purposes of each of the secretary never has suggested that there's any basis that any job or wouldn't be appropriate here and so you have these finality interests attached to every step along the way but the veterans court sort of as a matter of course says well someone died so we've got to vacate so we've got to recall the mandate and that has things absolutely backwards when you're short without the two moving parts very clearly killings if the death that occurred prior to the second half was satisfied that is to say the death of her prior to submission but nobody knew about it until after the mandate which i think in a case in which the party  had died nobody knew about it and the mandate issue the interest in finality would still be sufficient that the judgment should stand and that in some sense is no different than any other case in which there are changed circumstances if this court issues  decision today and the judges of this court come to find out five years later that there were some problem with that there are procedures for dealing with that perhaps the mandate might be recalled but probably not perhaps there would have been fraud on the court in under those circumstances for instance calderon which is sort of the seminal supreme court case talking about recalling of them and it would say there would be the type of extraordinary circumstances that would justify recalling the mandate but it's certainly not correct to say that merely called is extraordinary circumstances and the veterans court here certainly i dead five no extraordinary circumstances for all of the reasons i've been giving my answer to judge bryson it seems to me that the death of a party just like any other party dies and someone can be substituted in for them in some cases the party dies in their brander's proceedings mood in some cases party guys and on every man and inferior court can sort it out by for instance burden for myself that saying that that it is necessarily always an abuse of discretion to say that that death of a veteran is an extraordinary circumstance i do think that under the circumstances of this case the court did not even attempt speaks to is that the supreme court is set in a case for instance in which that term and that there is fraud on the court that surely constitutes an extraordinary circumstance i want to make sure not to lose sight of one point here is see my time is getting short after the fact that the veteran had died previously there is nothing extraordinary about that there is nothing that remotely satisfies the test for recalling the mandate and so it is an abuse of discretion if there is nothing more as there was here and simply the fact that the battery died in a less than a week before it before the judgment was entered it renders this an extraordinary circumstance if i can i just want to briefly make sure that you don't this is the paradigm case and that's the language this court is to the d c circuit is used for not protonic relief in a case in which a party dolphins after the case is submitted prior to judgment the supreme court has mechanically enter judgments proton get ends up being a ministerial act and the only reason for doing it is to solve the problem that might otherwise arise and so even if you get back into the judgment here the only proper result would analysis that the supreme court articulated in mitchell vs overman you look at what justice requires and the supreme court has held that justice requires under circumstances like these that that the judgment be issued no protonic and i think it's useful to think about the context of this case which is of course the case in which everyone agreed that the border erred and everyone agreed is for at least no one has disputed that had mr philip survived this would have formed a valid predicate order for an award of egypt feelings and so when you're thinking about what justice requires under these circumstances the only question is what would be the judgment be reformed to know  protonic there is no adequate a bill interest on the other side here the government hasn't even attempted to articulate one the only interest on the other side appears to be a desire not to pay attorney's fees and understandable though that might be that surely doesn't speak to what justice requires under under these facts so getting to that davis case if i may davis and i think being being relatively straightforward there are two principle differences between davis died not only after the case was submitted but indeed after judgment was entered and so in thinking about the finality interests we were discussing earlier they push even even more strongly and in the veterans favor here quite a bit more it seems to me that the substitution issue is not meaningfully been contested no it also seems to be clear as a matter of law that any job board is appropriate but a minimum of simple vacate is as plain made any substantial progress towards in the word that there was no advantage to a substitute party for being substituted for her i think the easiest way to was a case in which the benefits could not have survived it was not only a fifty one twenty one claims it was the question of survivorship over fifty one twenty one claims so you're even sort of one step  of mortality down the line in these cases and so i says that that's really what plato was about and to the extent that it was pining for there on how far you would have to go to eventually get benefits it wasn't don't know that that would be warranted your honor it seems to me that on bach review would be extraordinary circumstances where where hyatt has explained that a layer had a straightforward holding which that under no circumstances could those benefits be awarded and then went on to say toward the end in any event it's sort of an odd case because no one was anywhere close to getting benefits  think it properly explains co lead in that way and so to the extent that there might have been any slight inconsistency it certainly wasn't on any holdings of poway patchett and certainly  their initial briefing no longer is available after this court's decision and hide it which is to say it is not correct that a veteran has to have ecstatic lish finally and formally and entitle m benefits for some substitute to be able to go forward it would be bizarre indeed if the court had that it would fly in the face of settled standing principles which are that one doesn't have to show that one's going to win in order merely to be able to proceed and so after high the rule is again consistent with these fundamental principles that stand that if one is an appropriate substitute and there is a chance that one could obtain us first of all that this suggestion that the veteran has to have established a formal entitlement to benefits that argument is wrong that's off the table and then it is stablished is a particular test for determining whether one has standing to go the usual standing and our sixty other potential stake in the outcome is your ox for it and for a substitute who has a chance to establish an entire home and benefits going forward that test is satisfied and i think w tight the veteran of the substitute said what i'm going to need to do want to remain and is i'm going to get these particular records that is the arable lol i'm going to have to get these other things that aren't in the file and i'm going to want to  only thing you want is stuff we know you can't get is a matter of law and so that sort of sets again this sort of outer boundary where where you may be able to get it you corrected it it is as a matter of law outside of the exactly but in between there to the extent that you had some chance going forward this is just usual standing analysis and i think in any other context it wouldn't seem quite so complicated it's again do you have a stake in the outcome  and here in davis there isn't any real question about that the secretary sort of suggested that there might be some need to get some additional materials that are currently not in the  benefits claim in either of the cases and therefore there is no opportunity for substitution either in the davis case to pursue an acute benefits claim or in either case to pursue and egypt started with the philips case are not for submissions wants to be substituted and together right those are two separate issues and here the issue is substitution and under and it she can only be substituted if there is a continuing relevance of the wasn't an issue that was decided by the veterans court decided their opinion they were poor but again we have to remain on that decided that this is a valid substitution and it hasn't and the claim hasn't expired not as a matter of law however this court can look at terms of that remain and say they remain and appears to require that a new medical opinion be obtained and it's a matter of blocking new medical opinion would not be something that was in decision though because the board said as a matter of fact it's something that this court is not have to review that the medical opinion relied on was inadequate which means presumably that a new medical opinion needs to be  medical opinion which is required by the board or peers be required by the board is new evidence could be a legal decision but even if this court didn't reach that issue and determined that there was an informal claim for great benefits there's still the issue of timing here which is the real issue in this case the timing of the judgment and the mandate which the judgment was prior to mr davis death and the mandate was issued after mr davis's death so there's still a problem here with having a final judgment in terms of the still a problem here on the egypt claim which she's claiming and davis and philip to both and you just substitution which is that there is no final judgment here and either one of the cases and therefore each a claim cannot that case was pending for the veterans board and that's exactly what the veterans court did in these two cases followed its practice that's been approved at this court dismissing a case if there is no final judgment  of appeal but before anything has happened in the case that you could fairly consider either to be a decision or submission the case now here's where i can it is that in this case given the unusual nature of the disposition or the proposed disposition where the parties agreed on a joint remember order that that constituted be effective equivalent at least of submission right isn't that right well under the  you would normally think renders the motion something other then what is reasonably can reasonably be expected to be the last thing the parties are doing in that case the only thing remaining really is for the court to act right there were rather than continuing to litigate here the veterans group we a year we ask you to send us all back to the board to fix but here you have a proper proceeding of the board so we're the secretary has conceded that the not impossible but the other issue is assuming that the merits case had been considered submitted application portion of the case had not been submitted no need to application was even filed or there was ejaculation filed which happened after the death but there was no briefing ever on the issues of the substantive ija application whether the veteran was a prevailing party and the substantial justification issue  looking as mr phillips suggests that we should look at the ija statute specifically to determine the issues in this case we're looking at and then the ija claims certainly was not  one is the veterans court standing while there the person requesting substitution would be adversely affected by the board decision the third requirement and it is that the issue has to have been submitted to substitute into the merits case to pursue in egypt claiming egypt plane is collateral to the merits case it's not an entirely separate issue so there has to be substitution be substituted into the merits case then the merits case is not reached a final judgment and therefore there can't be any end to application there's no dispute that there can be an ija application if there is a final judgment prior to the veteran's death then there can be a later age apple cation but if there is no final judgment which there isn't in either one of these cases and that there can't be that that's the controlling issue here in the  there so i wanted to address briefly that issue of the substitution motion which was on the coals and philips it's true that that issue was not raised below but the standing issue is a jurisdictional issue which unless the limit is can be substituted on the underlying plane then they can be substituted on the egypt plane because the ija claim is inter that comes specifically from the facts of this case because under the aegis statute you need a final judgment to proceed on each and there are sunni which is our position that the veterans court properly recall the mandate and judgment  and there's no final judgment upon which anyone can file an application at this point so the reason that substitution on the merits would be required here is that that's the only way that these veterans cases could somehow proceed to a final judgment because then if there was a substitution the individual substituted would be able to pursue the underlying merits case through to a final judgment and then at that that our case and reliance upon the issue of there not being a final judgment we don't dispute that if there was a final judgment then these cases could be pursued on the issue i mean if there was a final judgment before death the veterans early recalled the mandate and recalled the judgment in these cases as you mentioned earlier this hour as opposing counsel mentioned earlier this is an abuse of discretion standard in terms of recalling the mandate veterans court will simply following its established policy and the policy that had at least been approved by this court not at this stage of proceedings but the practice generally of dismissing and vacating an underlying board decision where the veteran died prior to the case of mission so in terms of use of discretion the veterans court was fully within this question to do what it did to recall the mandate to avoid having minute decision here because of the veterans deaths and on the issue of the proton judgment was the same type of discretionary decision by the veterans court which was proper therefore the veterans or properly within its discretion declined to issue an on proton judgment this case therefore without the mandate without the johnson and there is no final judgment no basis for an cation that's not an issue that is properly before this or whether the veteran was a prevailing party and though we did not argue in our brief because that's not the issue in this case would but turning to the other issue that would be something that the board of veterans court would have to consider because that would be an application of this court's law on family and party to the fair to the better that's not something i can grasp but certainly the law sets up the system this way but there is certainly a clear mind that if the veteran dies it prior to a final decision being reach is such a claim available and philips and there is and in davis there doesn't appear to be the possibility of an accrued benefits claim under fifty one twenty one so there is certainly a way for the widow or daughter to then that survivor can be substituted so not every survivor would have to go back to the very beginning it's just if the case has not been submitted or at and fully it's clear that there would be no the merits claim sort of behind all of this and there are a couple of key points on that first of all as to the prevailing party cory that's a question of law and it seems abundantly clear here that the remainder orders that were entered are of the type that render a party prevailing in this court's decision and kelly makes that clear it davis decision talks about cases in which there wasn't actually  something like that and we are worlds removed from anything like that here we have two cases in which the secretary admitted that the board did something wrong in phillips there was a joint motion for remained in davis that secretary could there is absolutely no impediment to this court reaching that issue on the question of whether the secretary's conduct or whether the government's conduct was substantially justified that can in some cases become a fact incorporate the critical fact here is that the government never made any argument about anything it that was was justified each applications were filed below and in philips they didn't oppose in davis the government opposed they filed in opposition to the ija application but decided for whatever reason to make no argument about the substance of the ija claims but just to focus on on these issues about padgett and substitution and whatever else and that's their choice but they should be held to it and so it seems to us there's no impediment to the court reaching the merits of each application that being said and i want to be absolutely clear on this point we don't have to win this a shoo in order to win and get  something that this court can reach and it's something that we think this court should reach but but fate or a reversal and remain for the veterans court to address in the first instance whether each of fees should be awarded would be a perfectly