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. 

---------------------------------------------------------------------------------- 

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 accruedbenefits 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 accruedbenefits 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 veteranclaimant 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 veteranclaimants 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 meritsrelated issues to the Veterans Court to address on remand. 

2008-7124,-7142 16
2008-7124,-7142 17

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.