Padgett v. Nicholson

Decision Date05 January 2007
Docket NumberNo. 2006-7037.,2006-7037.
Citation473 F.3d 1364
PartiesBarney O. PADGETT, Claimant, and Sue Padgett, Movant-Appellant, v. R. James NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee.
CourtU.S. Court of Appeals — Federal Circuit

Donald H. Smith, Sidley Austin LLP, of Washington, DC, argued for movant-appellant. With him on the brief was Barton F. Stichman, National Veterans Legal Services Program, of Washington, DC.

Martin F. Hockey, Jr., Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General and David M. Cohen, Director. Of counsel on the brief were Michael J. Timinski, Assistant General Counsel and Martin J. Sendek, Staff Attorney, United States Department of Veterans Affairs, of Washington, DC.

Before NEWMAN, MAYER, and LINN, Circuit Judges.

MAYER, Circuit Judge.

Barney O. Padgett ("Padgett") is a World War II veteran who died after his appeal of the Board of Veterans' Appeals' denial of his claim for service-connected disability benefits was submitted for decision to the United States Court of Appeals for Veterans Claims, but before the opinion issued. Sue Padgett ("Mrs.Padgett"), his widow, appeals the judgment of the Veterans Court, which withdrew its opinion, and denied her motion to be substituted on her husband's appeal. Padgett v. Nicholson, 19 Vet.App. 334 (2005) ("Withdrawal Order"). Because the Veterans Court erred in concluding that it was obligated to withdraw its opinion, and that Mrs. Padgett could not be substituted on Padgett's appeal, we reverse and remand.

Background

Padgett was a World War II veteran who served in Europe, Africa, and the Middle East. In March 1993, he filed a claim for service-connected disability benefits based on a right-hip disorder. The regional office ("RO") denied his claim in 1995, and he appealed to the board. In 1997, it remanded his case for reconsideration of both direct and secondary service connection. After further adjudication before the RO, in August 2002, the board denied the claim. Padgett appealed to the Veterans Court, and in a July 9, 2004, panel decision, it vacated the board's decision and remanded for readjudication of his claim. Both Padgett and the Department of Veterans Affairs ("DVA") petitioned for en banc review, which was granted on September 14, 2004. Padgett v. Principi, 18 Vet.App. 404 (2004) (en banc order).

The Veterans Court issued an en banc opinion on April 19, 2005, and entered judgment on May 12, 2005. Padgett v. Nicholson, 19 Vet.App. 84 (2005) ("En Banc Opinion"). With respect to secondary service connection, the court found that "[t]he only plausible resolution of the key factual issue on the record in this case is that Mr. Padgett's right-hip disability was aggravated by his service-connected left-knee disability, and the Board's decision that the evidence preponderated against this claim must therefore be, and will be, reversed." En Banc Opinion, slip op. at 22. Having resolved this issue in Padgett's favor, it remanded the secondary service connection claim for assignment of a disability rating and an effective date. With respect to direct service connection, the court found that the record was silent as to the medical nexus between Padgett's complained of right-hip disability and the incurrence of his right-hip injury during service. It vacated the decision of the board on that issue, and remanded for readjudication and further development, as necessary.

On April 20, 2005, the day after the Veterans Court's decision issued, Padgett's attorney learned that he had died in November 2004, and immediately notified the court. On May 19, 2005, the Secretary filed a motion to recall the April 19, 2005, en banc opinion, and dismiss Padgett's case as moot. Mrs. Padgett opposed the motion, and requested that she be substituted for Padgett on the appeal. Because she has a claim for her husband's accrued-benefits under 38 U.S.C. § 5121(a), substitution would protect her own interests under section 5121 and would avoid relitigation of the same issues that will be dispositive of her claim. In a September 7, 2005, order, the Veterans Court (1) withdrew its April 19, 2005, opinion; (2) dismissed Padgett's appeal as moot; (3) vacated the underlying board decision; and (4) denied Mrs. Padgett's motion to be substituted. Withdrawal Order, 19 Vet.App. at 336. She appeals, and we have jurisdiction under 38 U.S.C. § 7292(a).

Discussion

Our review is limited to questions of law, 38 U.S.C. § 7292(d), and it is de novo, see 38 U.S.C. § 7292(a); see also Bailey v. West, 160 F.3d 1360, 1362 (Fed. Cir.1998) (en banc). This case presents two such questions. 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? We answer both questions in the affirmative.

Where a party dies after his case is submitted, but before the opinion issues, and the case would otherwise be rendered moot, the Supreme Court has consistently entered judgment nunc pro tunc to the date of the party's death. E.g., Harris v. Comm'r., 340 U.S. 106, 113, 71 S.Ct. 181, 95 L.Ed. 111 (1950); McDonald v. Maxwell, 274 U.S. 91, 99, 47 S.Ct. 497, 71 L.Ed. 942 (1927); Quon Quon Poy v. Johnson, 273 U.S. 352, 359, 47 S.Ct. 346, 71 L.Ed. 680 (1927); Bell v. Bell, 181 U.S. 175, 179, 21 S.Ct. 551, 45 L.Ed. 804 (1901); Mitchell v. Overman, 103 U.S. 62, 64-66, 26 L.Ed. 369 (1880). As explained in Mitchell, 103 U.S. at 64-65, "the rule established by the general concurrence of the American and English courts is, that where the delay in rendering a judgment or a decree arises from the act of the court, that is, where the delay has been caused either for its convenience, or by the multiplicity or press of business, either the intricacy of the questions involved, or of any other cause not attributable to the laches of the parties, the judgment or the decree may be entered retrospectively, as of a time when it should or might have been entered up." The Court further explained, "In such cases, . . . it is the duty of the court to see that the parties shall not suffer by the delay. A nunc pro tunc order should be granted or refused, as justice may require in view of the circumstances of the particular case." Id. at 65. This rule of practice applies "both in courts of law and of equity." Id. at 65-66.

At least two circuit courts have stated that all courts have the authority to enter judgments and rulings on a nunc pro tunc basis. See Cairns v. Richardson, 457 F.2d 1145, 1149 (10th Cir.1972) ("All courts have the inherent power to enter orders nunc pro tunc . . . ."); Matthies v. R.R. Ret. Bd., 341 F.2d 243, 248 (8th Cir.1965) (same). Moreover, as the D.C. Circuit has explained: "The paradigm case involves a party who has died after his case has been submitted to the court, but before the court has entered judgment." Weil v. Markowitz, 898 F.2d 198, 201 (D.C.Cir. 1990) (citing Mitchell, 103 U.S. at 65, 103 U.S. 62). This, however, does not end the inquiry into whether the Veterans Court may act nunc pro tunc, because the Supreme Court and the circuit court cases cited above speak only to the powers of Article III courts; the Veterans Court is an Article I court.

It is well recognized, however, that Article I courts may provide nunc pro tunc relief. For example, the Court of Federal Claims has so held. See, e.g., Holloway v. United States, 60 Fed.Cl. 254, 264 (2004) ("It is beyond cavil that a court may enter an order nunc pro tunc `to make the record speak the truth . . . .'") (quoting Matos v. Sec'y of Dep't of Health and Human Servs., 35 F.3d 1549, 1552 (Fed.Cir.1994)). Article I bankruptcy courts may also provide nunc pro tunc relief. See, e.g., Lavender v. Wood Law Firm, 785 F.2d 247, 248 (8th Cir.1986) ("[T]he bankruptcy court as a matter of fundamental fairness may exercise its discretion and enter a nunc pro tunc order . . . ."); In re Triangle Chems., Inc., 697 F.2d 1280, 1289 (5th Cir.1983) (same); see also Cont'l Cas. Co. v. Gen. Dev. Corp. (In re Gen. Dev. Corp.), 165 B.R. 685, 689 (D.Fla.1994) ("It is well settled that courts, including bankruptcy courts, have the discretion to enter orders on a nunc pro tunc basis."). We are not aware of any conclusion to the contrary.

Relatedly, we have recognized the authority of the Patent Office Board of Appeals to provide nunc pro tunc relief. See In re Grier, 52 C.C.P.A. 1081, 342 F.2d 120 (1965). In addition, the D.C. Circuit has ordered various federal agencies to provide nunc pro tunc relief. See, e.g., Ethyl Corp. v. Browner, 67 F.3d 941, 945 (D.C.Cir.1995) (EPA); Off. of Consumers' Couns. v. FERC, 826 F.2d 1136, 1139 (D.C.Cir.1987); Salzer v. FCC, 778 F.2d 869, 875-76 (D.C.Cir.1985); Delta Data Sys. Corp. v. Webster, 744 F.2d 197, 206-07 (D.C.Cir.1984) (Scalia, J.) (FBI).

In enacting the Veterans' Judicial Review Act of 1988 (codified as amended at 38 U.S.C. §§ 7251-7298 (2000)), "Congress legislate[d] against a common law background." Lofton v. West, 198 F.3d 846, 850 (Fed.Cir.1999). It would be incongruous if the authority to provide nunc pro tunc relief were not available to the Veterans Court. This is especially so in view of the purpose of the veterans' benefits scheme and the Veterans Court's role within it, see Bailey, 160 F.3d at 1370 (Michel, J., concurring) ("[T]he Court of Veterans Appeals . . . is an Article I court set in a sui generis adjudicative scheme for awarding benefit entitlements to a special class of citizens, those who risked harm to serve and defend their country. This entire scheme is imbued with special...

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