1

Though not dispositive of the issue presently before us, the Court notes that, due to an administrative error, the Court

failed to act promptly after the issuance of the Federal Circuit's mandate.

1

This version includes the errata dated June 30, 2009-e

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 01-0945(E)(08-11370)

ANDREW J. NEWMAN,APPELLANT,

V.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS,APPELLEE.

Before HAGEL, LANCE, and DAVIS, Judges.

O R D E R

On May 31, 2001, Andrew J. Newman filed a Notice of Appeal from a February 28, 2001,

Board of Veterans'Appeals (Board) decision. On June 16, 2004, the Court issued a decision vacating

and remanding the Board's February2001 decision because VA failed to adequately notify Mr.

Newman of who was responsible for obtaining evidence necessary to substantiate his claim pursuant

to section 5103(a) of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.

2096. The Court entered its judgment on July 8, 2004. The Secretary appealed that decision to the

United States Court of Appeals for the Federal Circuit (Federal Circuit), which stayed its

adjudication of the matter pending its disposition of Roan v. Peake, 269 Fed.Appx. 954 (Fed. Cir.

2008), which was in turn stayed pending the Federal Circuit's disposition of Sanders v. Nicholson,

487 F.3d 881 (Fed. Cir. 2007). OnMarch 4, 2007, Mr. Newman died. Neither Mr. Newman's estate

nor his lawyer notified the Federal Circuit. On March 11, 2008, the Federal Circuit lifted its stay of

the proceedings and summarily affirmed the June 2004 Court decision. Newman v. Peake, 272

Fed.App. 899 (Fed. Cir. 2008) (per curium order). The Federal Circuit issued its mandate on May

2, 2008, ordering this court to remand Mr. Newman's appeal to the Board for further proceedings.1

On May 5, 2008, this Court received an order from the Federal Circuit stating that this

Court's July 2004 judgment was summarilyaffirmed and, accordingly, this Court issued mandate on

June 10, 2008. An application for attorney's fees pursuant to the Equal Access to Justice Act (EAJA)

was timely filed on July 7, 2008. On the same day, Mr. Newman's attorneyalso filed with this Court

a notice of Mr. Newman's death along with a motion to substitute Mr. Newman's widow for her

husband for the underlying claim for VA compensation and the EAJA application. 
2

Rule 43(a) of the Federal Rules of Appellate Procedure provides that "[i]f a party dies after a notice of appeal has been filed

or while a proceeding is pending in the court of appeals, the decedent’s personal representative may be substituted as a party on

motion filed with the circuit clerk by the representative or by any party."

3

Federal Rule of Civil Procedure 25(a) provides that "[i]f a party dies and the claim is not extinguished, the court may order

substitution of the proper party. A motion for substitution may be made by any party or by the decedent's successor or representative.

If the motion is not made within 90 days after service of a statement noting the death, the

action by or against the decedent must be dismissed."

2

When an appellant dies with an appeal pending before this Court and there are no qualified

substitutes to continue the action, the Court typically vacates the underlying Board decision and

dismisses the appeal. See Landicho v. Brown, 7 Vet.App. 42, 54 (1994); see also Zevalkink v.

Brown, 102 F.3d 1236, 1243-44 (Fed. Cir. 1996); Morton v. Gober, 14 Vet.App. 174 (2000) (per

curiam order). Here, however, Mr. Newman died while his appeal was pending before the Federal

Circuit, which issued its decision affirming this Court's decision apparently unaware of his death.

As noted above, the Federal Circuit affirmed this Court's June 16, 2004, decision remanding

the February28, 2001, Board decision. Newman, 272 Fed.App.899. However, Mr. Newman's death

before the Federal Circuit had rendered its decision, coupled with the failure of Mr. Newman's

counsel to inform that tribunal of the death, frustrates this Court's ability to implement the Federal

Circuit's order. Claims for entitlement to VA benefits based on service-connected conditions do not

survive a veteran's death. Richard v. West, 161 F.3d 719, 721 (Fed. Cir. 1998). The Federal Rules

of Appellate Procedure allow a decedent's representative to file a motion to be substituted on an

appeal that is pending before a court of appeals. FED.R.APP.P. 43(a). However, at some point a 2

failure to substitute a properparty moots a pending case. Ortiz v. Dodge, 126 F.3d 545, 550 (3rd Cir.

1997). Moreover, the official notes to Appellate Procedure Rule 43(a) indicate that the drafters

intended the rule to function similarly to Civil Procedure Rule 25(a). FED.R.APP.P. 43(a), 1963

Advisory Committee Note. That Rule requires a motion for substitution to be made within 90 days

after service of a statement noting a party's death. FED.R.CIV.P. 25(a)(1). Thus, the window for 3

filing a motiontosubstitute a party opens once a suggestion of death or other notice is filed, although

the Court may deny the motion to substitute if the notice of death is made "longafter the death" and

"circumstances have arisen rending it unfair to allow substitution." FED. R. CIV. P. 25(a), 1963

Advisory Committee Note.

This Court is not in a position to determine whether a suggestion of death or some other

notification was submitted to the Federal Circuit. This Court is also not in a position to determine

whether the failure to substitute Mr. Newman's widow in her husband's stead during the year

following his death may have rendered his appeal before the Federal Circuit moot. See Ortiz, 126

F.3d at 550. Finally, this Court is incapable of determiningwhetherthe Federal Circuit would adopt

this Court's rule that the unique nature of veterans law requires that an attorney inform the Court of

legally significant events affecting jurisdiction over a case. See Cleary v. Brown, 9 Vet.App. 201,

202 (1996) (per curium order) (Ivers, J., concurring) ("Counsel [has] the obligation to advise the
4

The Federal Circuit also did not have an opportunity to determine whether Mr. Newman's attorney made any representations

before the Federal Circuit, and, if so, whether the attorney had an obligation to consult with his client before taking those actions.

Cf. Model Rules of Professional Conduct 1.4(2) ("A lawyer shall . . . reasonably consult with the client about the means by which

the client's objectives are to be accomplished); Iovino v. Waterson, 274 F.2d 41, 51 (2nd Cir. 1959) (holding that an attorney "must

assure himself of the continued existence of his client before he takes affirmative steps in the client's behalf.").

3

court of such actions where . . . the outcome of that action does or could affect the Court's actions.").

4

If substitution were to occur anywhere, it should be at the court that had jurisdiction over the

claim at the time of the death, which in this case is the Federal Circuit. The Federal Circuit should

have been informed of Mr. Newman's death prior to its affirmation of the Court's decision one year

after the date that he died. Accordingly, the Court holds that mandate should not have been entered

at this Court, and further holds that Mr. Newman's death while his appeal was pending before the

Federal Circuit constitutes an "exceptional circumstance" sufficient to recall the issuance of mandate.

Serra v. Nicholson, 19 Vet.App. 268, 272 (2005), citing McNaron v. Brown, 10 Vet.App. 61 (1997)

(holding that a petitioner's death prior to the issuance of mandate constitutes an exceptional

circumstance). Therefore, the Court will deny Ms. Newman's motion to be substituted for her

husband on his underlying appeal of the February 2001 Board decision. Additionally, the Court

concludes that, absent substitution or dismissal of the appeal by the Federal Circuit, this Court does

not have jurisdiction over Mr. Newman's application for attorney's fees pursuant to EAJA because

the Court has not issued a final judgment in the matter. See 28 U.S.C. § 2412(d)(1)(B). 

Upon consideration of the foregoing, it is 

ORDERED that Ms. Newman's July 8, 2008, motion for a substitution of party is denied.

It is further,

ORDERED that the Court's June 10, 2008, mandate is RECALLED. It is further

ORDERED that, if Mrs. Newman desires to continue to pursue this action, she file a motion

before the Federal Circuit notifying that court of her husband's death and seek substitution pursuant

to Federal Rule of Appellate Procedure 43(a) not later than 10 days after the date of this order. It is

further
4

ORDERED that if Mrs. Newman files a motion for substitution with the Federal Circuit that

she file a copy with this Court not later than 5 P.M. on the 10th day after the date of this order. If

such a copyis not filed in accordance with this order, the Clerk shall dismiss as matters over which

the Court currently lacks jurisdiction both the appeal of the February 28, 2001, Board decision as

well as the July 7, 2008, petition for attorney's fees and expenses filed pursuant to the Equal Access

to Justice Act. 

DATED: June 11, 2009

Copies to:

Louis J. George, Esq.

VA General Counsel

(027)

PER

CURIAM.