Reyes v. Wilkie

• Decision Date: 27 February 2020
• Docket Number: 16-2471
• Parties: Feliciana G. Reyes, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.
• Court: United States Court of Appeals For Veterans Claims

Feliciana G. Reyes, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.

No. 16-2471

United States Court of Appeals For Veterans Claims

February 27, 2020

Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

Louis S. Mastriani, Esq. VA General Counsel (027)

Before DAVIS, Senior Judge. ^[1]

ORDER

ROBERT N. DAVIS SENIOR JUDGE

On September 18, 2018, the Court affirmed a May 31, 2016, Board of Veterans' Appeals decision that denied Feliciana G Reyes a one-time payment from the Filipino Veterans Equity Compensation Fund (FVECF). On September 25, 2018, Ms. Reyes filed a Notice of Appeal to the Federal Circuit. Following expedited briefing and oral argument before the Federal Circuit on December 3, 2018, Ms. Reyes died on December 22 2018. The Federal Circuit affirmed in part and remanded in part the Court's September 18, 2018, decision and entered judgment nunc pro tunc as of the case's submission date December 3, 2018. In its remand order, the Federal Circuit directed the Court to hold the matter in abeyance pending consideration by the Army Board for Correction of Military Records (Corrections Board), citing Dela Cruz v. Wilkie.^[2]

Before the Court could act in accordance with the Federal Circuit's decision, the Court issued an order on December 20, 2019, requesting that counsel identify an eligible substitute for Ms. Reyes.^[3] On February 3, 2020, counsel filed his response, ^[4] stating that he is unable to identify an eligible substitute because Ms. Reyes died without a surviving spouse.^[5] Counsel also stated that he could not show cause as to why this appeal should not be dismissed.^[6]

This Court concludes that holding the matter in abeyance would be inappropriate.^[7] Caselaw from the Federal Circuit and this Court makes clear that recovery of these one-time FVECF payments is limited.^[8] Federal Circuit jurisdiction is limited to review of this Court's interpretations of law and regulation, and so the Court concludes that further holding this case in abeyance would not be beneficial given there is no eligible substitute party who could obtain relief on Ms. Reyes's behalf.^[9]

On consideration of the forgoing, it is

ORDERED that this appeal is DISMISSED.

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Notes:

^[1] Judge Davis is a Senior Judge acting in recall status. In re: Recall of Retired Judge U.S. Vet. App. Misc. Order 03-20 (Jan. 2, 2020).

^[2] 931 F.3d 1143 (Fed. Cir. 2019).

^[3] U.S. VET. APP. NO. 16-2471 (Dec. 20, 2019) (order), at 2; see also Suguitan v. McDonald, 27 Vet.App. 114, 121-22 (2014).

^[4] Feb. 3, 2020, Response to Dec. 20, 2019, Order, at 1-2.

^[5] One-time FVECF payments do not qualify as accrued benefits and therefore in such matters only a surviving spouse is eligible to be substituted as the eligible claimant. Suguitan, 27 Vet.App. at 121-22.

^[6] Feb. 3, 2020, Response to Dec. 20, 2019, Order, at 2.

^[7] See Robertson v. Shinseki, 26 Vet.App. 169, 181 (2013) (concluding that further adjudication was not warranted to remedy an error where such adjudication "would not tangibly benefit" the appellant), aff'd sub nom. Robertson v. Gibson, 759 F.3d 1351 (Fed. Cir. 2014).

^[8] See Dela Cruz, 931 F.3d at1152-53 (Fed. Cir. 2019) (the Federal Circuit remanded this case for the Court to hold it in abeyance so that Mr. Dela Cruz, the veteran seeking his one-time FVECF payment, could challenge the Army's determination before the Corrections Board); Suguitan, 27 Vet.App. at 121 ("[T]here is no indication that payments may be made to any party who is not the eligible claimant or his surviving spouse. Congress specifically made no provision for payments to the heirs of an...