Lead Opinion
On Remand from the U.S. Court of Appeals for the Federal Circuit
ORDER
Currently pending before the Court are two motions related to this World War II veteran’s appeal. The first is the Secretary’s May 19, 2005, motion to, inter aha, dismiss this appeal as moot, and the second is the movant’s July 21, 2005, motion for substitution. The facts relevant to the disposition of these motions are as follows.
In March 1993, the appellant, Barney O. Padgett, filed a disability compensation claim with his VA regional office (RO) for a right-hip disorder. Nearly a decade later, in August 2002, the Board of Veterans’ Appeals (Board) denied that claim, finding that his disability was not service connected. Mr. Padgett appealed, and a panel of judges initially vacated that Board decision. Padgett v. Principi, 18 Vet.App. 188 (2004) (withdrawn). However, the full Court later agreed to rehear the case. Padgett v. Principi, 18 Vet.App. 404 (2004) (per curiam order).
In April 2005, the full Court reversed the Board’s denial of secondary service connection for Mr. Padgett’s disability, vacated the Board’s denial of direct and presumptive service connection, and remanded his claim to VA for further adjudication. See Padgett v. Nicholson (Full Court Opinion), 19 Vet.App. 133 (2005) (en banc). In so doing, the full Court also unanimously held that under the “clearly erroneous” standard of review, a Board finding can be reversed on appeal without uncontroverted evidence in the appellant’s favor and overruled any suggestion to the contrary in our prior decisions, including Hicks v. Brown, 8 Vet.App. 417, 422 (1995) (quoting Hersey v. Derwinski, 2 Vet.App. 91, 95 (1992)). A few days after the Full Court Opinion issued, the Court learned that, on November 3, 2004, Mr. Padgett had died.
In May 2005, the Secretary filed his pending motion, under Landicho v. Brown, 7 Vet.App. 42 (1994), to withdraw the Full Court Opinion, vacate the underlying Board decision, and dismiss Mr. Padgett’s appeal as moot. Mr. Padgett’s widow, Sue Padgett, responded by filing her pending motion for substitution as a party to his appeal. In September 2005, the full Court granted the Secretary’s motion and denied Ms. Padgett’s request for substitution as moot. Padgett v. Nicholson (Withdrawal Order), 19 Vet.App. 334 (2005) (en banc per curiam order) (Steinberg & Kasold, JJ., dissenting). Ms. Padgett appealed that order to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit).
In the meantime and while that appeal was pending, the RO began adjudicating two original claims filed by Ms. Padgett. The first sought accrued benefits, i.e., the payment to a surviving spouse (or other eligible beneficiary) of any VA benefits owed to the veteran at the time of his or her death. The second sought dependency and indemnity compensation, i.e., an award of monthly compensation to a surviving spouse (or other eligible beneficiary) in the event that a veteran dies from a service-connected disability. In November 2006, the RO denied both of those claims.
In January 2007, the Federal Circuit decided Ms. Padgett’s appeal. It held that this Article I Court had the discretionary
Before addressing that question on remand, this Court ordered the parties to submit an update on the status of Ms. Padgett’s claims. The Secretary responded by revealing that shortly after the issuance of the Federal Circuit Opinion, he instructed the RO to conduct a “special review” of Ms. Padgett’s accrued benefits and DIC claims. He further revealed that at the conclusion of that special review, in late January 2007, the RO issued a new decision on her accrued benefits claim, and that, in that decision, the RO reversed the November 2006 denial of that claim and awarded Ms. Padgett those benefits on the theory that her husband’s right-hip disorder was directly service connected. Ms. Padgett did not appeal, and that decision became final.
These are all of the facts relevant to the disposition of the pending motions. With them in mind and for the reasons that follow, the Court will dismiss Ms. Pad-gett’s July 21, 2005, motion for substitution as moot, and deny the Secretary’s May 19, 2005, motion to, inter aha, withdraw the Full Court Opinion. The Court will also order the Clerk to issue the Full Court Opinion nunc pro tunc as of November 2, 2004, the day prior to Mr. Padgett’s death.
I. MS. PADGETT’S MOTION TO SUBSTITUTE
This Article I Court adheres to the case-or-controversy requirement of Article III, § 2, of the United States Constitution. Mokal v. Derwinski, 1 Vet.App. 12, 15 (1990) (“[W]e are granted power judicial in nature and being statutorily characterized as a ‘Court’ we are free, in the absence of a congressional directive to the contrary, to adopt as a matter of policy the jurisdictional restrictions of the Article III case or controversy rubric.”). That constitutional “limitation on federal judicial authority ... underpins both our standing and our mootness jurisprudence, but the two inquiries differ in respects critical to the proper resolution of this case.” Friends of the Earth v. Laidlaw, 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).
In terms of the former, “the party invoking federal jurisdiction bears the burden of establishing [standing],” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 104, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990)), i.e., an “injury in fact” caused by the challenged conduct of the defendant and likely to be redressed by a favorable decision. See e.g., Friends of the Earth, 528 U.S. at 180-81, 120 S.Ct. 693; Steel Co., 523 U.S. at 102-04, 118 S.Ct. 1003; Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Standing is typically characterized as “[t]he requisite personal interest that must exist at the commencement of the litigation.” Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n. 22, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (citations and quotations omitted). However, Article III standing “must be met by persons seeking appellate review, just as it must be met by persons appearing in courts of first instance.” Id. at 64, 117 S.Ct. 1055 (1997) (citing Diamond v. Charles, 476 U.S. 54, 62, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986)). Accordingly, a party seeking to take the place of another liti
With respect to the latter, a party seeking to deprive a federal court of jurisdiction bears the burden of establishing mootness, Friends of the Earth, 528 U.S. at 189-190, 120 S.Ct. 693, i.e., that “[t]he controversy between the parties has thus clearly ceased to be ‘definite and concrete’ and no longer ‘touch(es) the legal relations of parties having adverse legal interests.’ ” DeFunis v. Odegaard, 416 U.S. 312, 317, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (per curiam) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 81 L.Ed. 617 (1937)); see Church of Scientology of Calif. v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992) (noting that a case is moot if “an event occurs while a case is pending on appeal that makes it impossible for the court to grant ‘any effectual relief whatever’ to a prevailing party”) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895)); see also Friends of the Earth, 528 U.S. at 192, 120 S.Ct. 693 (stating that the Federal courts do not have “license ... to retain jurisdiction over cases in which one or both of the parties plainly lack a continuing interest”). Moreover, that is a “heavy burden” if the party making the allegation of mootness also brought about that result through his or her own voluntary conduct. 528 U.S. at 189-190, 120 S.Ct. 693 (citing United States v. Concentrated Phosphate Export Assn., 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968); City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982)). In that circumstance, the culpable party “bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Id. at 190, 120 S.Ct. 693. Otherwise, “ ‘the courts would be compelled to leave “[t]he defendant ... free to return to his old ways.” ’ ” City of Mesquite, 455 U.S. at 289, n. 10, 102 S.Ct. 1070 (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953)) (internal citations omitted).
The Secretary argues that Ms. Padgett’s motion for substitution is moot. He notes that her standing to seek substitution derived from the continuing relevance and preclusive effect that the issues decided in this appeal would have in the adjudication of her accrued benefits claim. However, he argues that Ms. Padgett’s receipt of those benefits, in late January 2007, eliminated her Article III interest in this appeal. Ms. Padgett disagrees. She notes that, in the Full Court Opinion, we held that her husband’s right-hip disorder was secondarily service-connected, and that the Court’s holding establishes a basis for her award of accrued benefits. She further notes that our decision' — unlike the January 2007 RO decision — cannot be overturned by the Secretary. Therefore, she argues that her Article III interests are served through the preservation of the Full Court Opinion to an extent sufficient to defeat any allegation that her motion to substitute is moot.
Before addressing the parties’ arguments on the question of mootness, we must first consider whether Ms. Padgett ever had standing to seek substitution. As explained in the Federal Circuit Opinion, a party seeking substitution before this Court must satisfy a two-part inquiry. 473 F.3d at 1370; see also Pekular v. Mansfield, 21 Vet.App. 495, 500-502 (2007). First, he or she must have Article III standing, 473 F.3d at 1370 (citing Mokal, 1 Vet.App. at 13); i.e., “ ‘a personal stake in
Having answered that threshold question, we can properly consider whether her motion to substitute is now moot. We believe that it is. As noted above, Ms. Padgett’s standing to seek substitution derived solely from her status as a prospective claimant and potential recipient of accrued benefits. 473 F.3d at 1370 (“The continuing relevance and preclusive effect that the issues decided in [Mr.] Padgett’s appeal have for her section 5121(a) claim [for accrued benefits] are sufficient to meet the case or controversy requirement.”). However, her claim for accrued benefits has been granted in a final RO decision, and she is now in actual receipt of those benefits. Thus, Ms. Padgett can no longer invoke her prior status in either respect as the Article III interest that supports her substitution as a party to this appeal. In addition, the factual discrepancy between the Full Court Opinion and the January 2007 RO decision, in terms of the basis for granting Mr. Padgett service connection, does not provide Ms. Padgett with the Article III interest needed to continue litigating this appeal. Regardless of whether her husband’s disability is directly (as the January 2007 RO decision found) or secondarily (as the Full Court Opinion held) service connected, the amount of accrued benefits she would receive is exactly the same. See Roper v. Nicholson, 20 Vet.App. 173, 177-81 (2006). Finally, the possibility that the Secretary might try to revoke his decision awarding Ms. Padgett accrued benefits in the future does not, without more, create an Article III case or controversy. “[S]uch speculative contingencies afford no basis for our passing on the substantive issues [the mov-ant] would have us decide ... in the absence of evidence that this is a prospect of immediacy and reality.” DeFunis, 416 U.S. at 320, n. 5, 94 S.Ct. 1704 (internal citations and quotations omitted); see Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 140 L.Ed.2d 406 (1998) (“A claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’ ”) (quoting Thomas v. Union Carbide Agricultural Prod. Co., 473 U.S. 568, 580-81, 105 S.Ct. 3325, 87 L.Ed.2d 409 (1985) (internal quotations omitted)).
II. THE SECRETARY’S MOTION TO WITHDRAW THE FULL COURT OPINION
The Secretary further argues that Mr. Padgett’s appeal is now moot, and that the Full Court Opinion must be withdrawn. Though we agree with the Secretary in the first respect, we cannot conclude, on the facts of this case, that the use of our discretionary authority to withdraw the Full Court Opinion is warranted.
This appeal no longer satisfies the requirements of Article III. Mr. Padgett’s personal stake and continuing interest in the outcome thereof ceased upon his death, see Federal Circuit Opinion, 473 F.3d at 1370 (noting “the general rule that a veteran’s claim for benefits ends with his death ... ”), and Ms. Padgett’s receipt of accrued benefits, in a final RO decision, ensures that neither she nor any other party will be able to continue this litigation on his behalf. See Pelea v. Nicholson, 497 F.3d 1290, 1292-93 (Fed.Cir.2007). Thus, Mr. Padgett’s appeal is now undeniably moot.
However, that does not mean that we must withdraw the Full Court Opinion. First, Mr. Padgett’s appeal did not become moot until after the issuance of that decision.
We believe that Mr. Padgett’s appeal became moot because of the voluntary conduct of the Secretary. At the time of the Federal Circuit Opinion, this appeal satisfied the requirements of Article III because of Ms. Padgett’s ability to seek substitution. However, the Secretary eliminated that possibility with his award of accrued benefits, thereby depriving Ms. Padgett of the Article III interest needed for substitution. Thus, it was the Secretary’s decision to award Ms. Padgett accrued benefits, not the death of Mr. Pad-gett or other happenstance, that ultimately caused this appeal to become moot. Moreover, the Secretary’s conduct in that regard was entirely voluntary. He was not obliged to order the “special review” that ended with the RO decision awarding-in a reversal of VA’s long-standing position-Mr. Padgett service connection and Ms. Padgett accrued benefits. Accordingly, he pursued that course of action at the risk of impairing, or even sacrificing, his rights in this parallel proceeding. Moreover, even if the Secretary believed he was obliged to order that special review, the prudent course of action&emdash;and the one not taken here&emdash;would have been to request a stay of the RO proceeding pending a resolution of the remand ordered in the Federal Circuit Opinion. See Ribaudo v. Nicholson, 20 Vet.App. 552 (2007). For these reasons, the Court holds that the Secretary’s voluntary conduct in awarding Ms. Padgett accrued benefits caused this appeal to become moot.
We further believe that the Secretary has not met his burden of showing entitlement to the equitable remedy of withdrawal. Bancorp, 513 U.S. at 26, 115
III. NUNC PRO TUNC AUTHORITY AND MR. PADGETT’S APPEAL
Having concluded that a withdrawal is not warranted, the Court will issue the Full Court Opinion nunc pro tunc on the day before Mr. Padgett’s death. We recognize that this might seem contrary to the Federal Circuit’s admonition that “if Mrs. Padgett could not be substituted, nunc pro tunc relief would be inappropriate.” Federal Circuit Opinion, 473 F.3d at 1370. However, the Court concludes that the Federal Circuit did not intend that rule to extend to cases rendered moot on appeal by the Secretary’s voluntary conduct. In that circumstance, an award of nunc pro tunc relief is entirely appropriate. See Blaok’s Law Dictionary 1100 (8th ed.2004) (“ ‘When an order is signed “nunc pro tunc” as of a specified date, it means that a thing is now done which should have been done on the specified date.’ ” (quoting 35A C.J.S. Federal Civil Procedure § 370 (1960))); see also Federal Circuit Opinion, 473 F.3d at 1370-71.
Upon consideration of the foregoing, it is
ORDERED that Ms. Padgett’s July 21, 2005, motion to substitute is DISMISSED for lack of jurisdiction.
ORDERED that the Secretary’s May 19, 2005, motion to withdraw the Full Court Opinion, dismiss the appeal, and vacate the underlying Board decision is DENIED. It is further
ORDERED that the Full Court Opinion is issued nunc pro tunc on November 2, 2004.
. The Court also notes that Ms. Padgett would be afforded a full panoply of substantive and procedural protections in the unlikely event that such an action by the Secretary ever
. We know this because, if the opposite were true, the Federal Circuit would have simply dismissed this case for want of jurisdiction. See Steel Co., 523 U.S. at 94, 118 S.Ct. 1003 (“Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is the power to declare law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the case.”) (internal citations omitted).
. We recognize that most of the Bancorp-type cases cited herein involve a superior tribunal's refusal to vacate em inferior tribunal's decision where the voluntary conduct of a party causes a case to becomes moot on appeal. But see Mfrs. Hanover Trust Co., supra. However, we do not believe that distinction is significant. Id. The underlying principle in all of these cases is that a losing litigant should not be able to erase an unfavorable decision by mooting the case through voluntary, post-decisional conduct.
Concurrence Opinion
concurring in the result:
I write separately to note that I do not believe Mrs. Padgett’s motion for substitution is moot. Succinctly stated, the Secretary has awarded benefits based on direct service connection, whereas the Court found that service connection was warrant
Moreover, the Secretary in this case denied benefits even after the full Court had determined service connection was warranted and withdrew its opinion on other grounds — a situation envisioned by the Federal Circuit. See Padgett, 473 F.3d at 1370 (noting that it was “reasonable to suspect” that the Secretary would deny an accrued benefits award to Mrs. Padgett absent the controlling effect of the Full Court Opinion). The Secretary only granted benefits after the Federal Circuit reinstated the Full Court Opinion, and then did so on a separate theory, leaving open the possibility that it could be changed. Under these circumstances, Mrs. Padgett has a legitimate interest in sustaining the Full Court Opinion and the matter therefore is not moot. Compare City of Erie v. Pap’s A.M., 529 U.S. 277, 287-88, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (finding matter not moot when underlying basis for litigation could be renewed and other party had an interest in preserving judgment), with City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 283, 121 S.Ct. 743, 148 L.Ed.2d 757 (2001) (Speculation alone cannot “shield [a] ease from a mootness determination.”).
Nevertheless, assuming arguendo that the case is now moot, it certainly was not moot at the time Mrs. Padgett originally sought substitution. Thus, to do now that ‘“which should have been done on the specified date,’ ” I would grant Mrs. Pad-gett’s motion for substitution nunc pro tunc to July 21, 2005, the date she filed it. See BlaCK’s Law DiotionaRY 1100 (8th ed.2004) (“ ‘When an order is signed “nunc pro tunc” as of a specified date, it means that a thing is now done which should have been done on the specified date.’ ” (quoting 35A C.J.S. Federal Civil Procedure § 370 (1960))). Finally, I emphasize that regardless of whether or not Mrs. Padgett’s interests in the appeal have been mooted by the Secretary’s award of accrued benefits, I fully concur that the Full Court Opinion should not be withdrawn.
Dissenting Opinion
with whom SCHOELEN, Judge, joins, dissenting:
Although I agree with the majority’s determination that Sue Padgett’s motion for substitution is moot, I write separately to express my disagreement with the majority’s application of the Federal Circuit’s recent opinion in this matter and the majority’s denial of the Secretary’s motion to withdraw the Full Court Opinion in the appeal of Barney Padgett.
Although the majority provides the facts it finds relevant to this case, this appeal is more involved than the majority’s decision portrays and it is important that we recall clearly the facts of this case and the established precedent governing such situations to put the majority’s opinion, and this dissent, into their proper context.
I. PROCEDURAL HISTORY
The procedural history of this case is far from tidy. It is important to keep in mind, however, when reviewing this history that it involves two separate but related claims-Barney Padgett’s claim for disability compensation under 38 U.S.C. § 1110 and his widow, Sue Padgett’s, claim to receive any benefits that were due Barney Padgett on that claim, but unpaid at his death, otherwise known as accrued benefits under 38 U.S.C. § 5121.
In December 2002, Barney Padgett appealed the Board’s denial of his claim for disability compensation for a right hip disability. In July 2004, a panel of this Court issued a decision remanding Barney Pad-gett’s appeal to VA for its failure to consider certain evidence. Both parties moved for full court consideration of the appeal. The motions were granted in September 2004 and the Court withdrew its July 2004 panel opinion at that time. In November 2004, Barney Padgett died. In June 2006, Sue Padgett filed her own claim for accrued benefits based on her deceased husband’s claim.
VA denied Sue Padgett’s accrued benefits claim in November of 2006. Despite the fact that the July 2004 opinion had been withdrawn in September 2004, VA erroneously cited that opinion as evidence it considered in the adjudication of Sue Padgett’s claim.
Neither of the parties notified the Court of Barney Padgett’s death and, because
This case presents two [questions of law]. 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?
Id. at 1367 (emphasis added). As discussed more fully below, the Federal Circuit answered both questions in the affirmative. Id.
Twelve days after the Federal Circuit’s opinion was published, VA, apparently acting on its own initiative, conducted a special review of Sue Padgett’s accrued benefits claim.
II. EXISTING PRECEDENT REGARDING VACATUR ON THE DEATH OF AN APPELLANT
Since our 1994 decision in Landicho (approved two years later by the Federal Circuit in Zevalkink) this Court has recognized the statutory reality that a claim by a veteran for disability compensation and a claim by a widow for accrued benefits due a deceased veteran or for dependency and indemnity compensation, while related, are separate claims, each emanating from its own statutory basis and each with a different claimant. Further, the Court has recognized that a veteran’s claims for disability compensation terminate at his death. See Landicho, 7 Vet.App. at 47. Landicho also changed the language of Rule 43 of the Court’s Rules of Practice and Procedure to permit substitution for a deceased claimant only to the extent permitted by law.
Consequently, since 1994, the Court’s standard practice in resolving pending appeals where an appellant dies is to dismiss the appeal as moot and vacate the underlying Board decision. By taking these actions, the Court sought to ensure that an accrued benefits or dependency and indemnity compensation claimant would have his or her independent claims adjudicated without being encumbered by a non-final Board decision on the deceased veteran’s underlying claim upon which those benefits might depend. In short, after Landicho, the general rule upon the death of an appellant has been to dismiss the appeal, vacate the Board decision that was the subject of that appeal, and deny motions for substitution. See Pekular v. Mansfield, 21 Vet.App. 495, 501 (2007). The majority seems to ignore this precedent, instead finding that this Court’s authority to withdraw a prior judgment following the death of an appellant is “discretionary.” Supra at 165.
III. THE PADGETT EXCEPTION TO THE GENERAL RULE ESTABLISHED IN LANDICHO AND ZEV-ALKINK
In its January 2007 decision, the Federal Circuit held that, if certain conditions were met, this Court could depart from the general rule established in Landicho, permit the substitution of a bona fide accrued benefits claimant for a deceased appellant, and issue its decision nunc pro tunc, as if it were decided before the veteran-claimant’s death. In doing so, the Federal Circuit recognized the interrelationship between the veteran’s disability compensation claim and a survivor’s claim for benefits that had accrued to the veteran before his death.
The Federal Circuit began its discussion of this Court’s authority to issue a decision nunc pro tunc by citing Mitchell v. Overman, 103 U.S. 62, 64-66, 26 L.Ed. 369 (1880), for the proposition that when delay in deciding a case is for the convenience of the Court and not the fault of the parties, the Court’s decision may be entered retro
The Federal Circuit next noted a significant factual difference between the underlying claims in Padgett and Landicho. Mr. Landicho died after a Notice of Appeal had been filed with the Court, but before the case had been submitted to the Court for decision. On the contrary, Barney Padgett died after his appeal had been submitted to this Court. Consequently, the Federal Circuit reasoned, it was proper to dismiss Mr. Landicho’s appeal, because dismissal of that appeal accompanied by setting aside the underlying Board decision, which was rendered a nullity by virtue of his death, would permit Mrs. Landicho to pursue an accrued benefits claim from the same point that Mr. Landi-cho was in presenting his claim at the time of his death. Id. at 1369. In contrast, the Federal Circuit found that, because Barney Padgett died after his case had been submitted to the Court, the underlying Board decision was in a different state of finality than in Landicho. Thus, to place Sue Padgett in the same position as her husband in pursuing her claim, the Court could, if circumstances warranted, issue the Full Court Opinion nunc pro tunc to the time prior to Barney Padgett’s death. As explained by the Federal Circuit, under these circumstances, Barney Padgett’s disability claim would be wholly analogous to the accrued benefits claim of Sue Padgett. Id. at 1370.
The Federal Circuit next considered the question of the appropriateness of granting Sue Padgett’s motion to substitute for her deceased husband. In so doing it made another specific and important finding that, “[b]eeause of the general rule that a veteran’s claim for benefits ends with his death, if Sue Padgett could not be substituted, nunc pro tunc relief would be inappropriate.” Id. The Federal Circuit then explained the two-part test that must be satisfied for substitution to be considered. First, a case or controversy must exist, specifically that the underlying appeal is not moot. Id. Second, the party seeking to be substituted must have standing, or be “adversely affected” by the Board decision on appeal, under 38 U.S.C. § 7266(a). Id. Lastly, the Court noted a third consideration, whether such relief is required to provide justice and fairness to the parties. I note that in its analysis regarding the appropriateness of substitution in this case, the majority fails to cite the Federal Circuit’s decision, in particular the test for substitution. Applying its test, the Federal Circuit’s findings and analysis are as follows: the authority to issue a decision nunc pro tunc in the case of a deceased veteran depends first upon satisfying the test to substitute a bona fide accrued benefits claimant, and even if substitution could be made, whether the issuance of a decision nunc pro tunc is necessary to provide justice to the parties.
IV. APPLICATION TO THE ISSUES BEFORE THE COURT
First, it is important to note that Barney Padgett’s claim died with him, hence, his appeal became moot upon his death in November 2004. See Landicho, 7 Vet.App. at 47. The majority seems to ignore this fact in stating “it was the Secretary’s decision to award Ms. Padgett accrued benefits, not the death of Barney Padgett or other happenstance, that ultimately
Although my colleagues writing separately to concur with the majority’s disposition of this case would look back to the time that Sue Padgett originally sought substitution to decide the issue of mootness, such a view is not supported by law. See Arizonans for Official English v. Ariz., 520 U.S. 43, 68, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (citing United States Parole Comm’n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980)) (describing mootness as “the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)”) (quoting Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363, 1384 (1973)). An appellant must have standing throughout the entire appellate process or the case becomes moot. Id. As a result, I disagree with my concurring colleagues’ retroactive focus to the time that Sue Padgett filed her original motion for substitution.
Following the dictate of the Federal Circuit’s January 2007 decision, because Sue Padgett cannot be substituted for her husband in his claim for benefits, the 2005 Full Court Opinion may not be given nunc pro tunc effect under authority of that case. Padgett, 473 F.3d at 1370. As a result, I would grant the Secretary’s motion to dismiss Barney Padgett’s appeal and to withdraw the April 2005 Full Court Opinion. The majority, however, ignores the Federal Circuit’s January 2007 decision in this case and gives the April 2005 Full Court Opinion nunc pro tunc effect. This result is not sanctioned by the Federal Circuit. In so doing, the majority avoids discussing the Federal Circuit’s analysis in its decision in Padgett and relies on a series of cases emanating from U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994).
As explained in Bancorp, the disposition of moot cases rests on concepts of equity and the conditions that rendered the case moot. Bancorp, 513 U.S. at 24, 115 S.Ct. 386. In Bancorp, the Supreme Court de
Indeed, the Bancorp line of cases is distinguishable from Padgett in that those cases do not involve the fact situation that we have here: two separate claims, each asserted by a different individual in his or her own right, and a motion by one individual to substitute for the other at death. The Bancorp line of cases focus on fairness to the parties who have a demonstrated interest in the litigation. In this case, the only parties who had any interest in this litigation at any time are Barney and Sue Padgett. However, Barney Padgett has no further interest in this litigation because any entitlement to benefits was extinguished at his death. Sue Padgett no longer has an interest in this litigation because she has been awarded all of the benefits that she sought.
Furthermore, the cases cited by the majority are not governed by law dictating that a veteran’s claim dies with the veteran. See Landicho, 7 Vet.App. at 47. Barney Padgett’s appeal, not Sue Padgett’s accrued benefits claim, was considered by the Court in April 2005. Indeed, the appeal remains Barney Padgett’s even if Sue Padgett were to be substituted for him following the guidance provided by the Federal Circuit. The only purpose of substitution would be to avoid any unnecessary delay in a decision on Sue Padgett’s claim, which was derivative of her husband’s underlying claim now on appeal. However, when Sue Padgett’s separate claim for accrued benefits was granted, any reason for substitution of Sue Padgett in Barney Padgett’s underlying appeal ceased to exist.
If the- course set by the Federal Circuit were followed, there could be no substitution and consequently no action that would warrant issuing our April 2005 decision nunc pro tunc. Rather, in this situation, the Court’s standard and consistent practice of dismissing the appeal and vacating the offending Board decision is the appropriate course of action. Such actions would eliminate the • 2002 Board decision that, if left in place, would conflict with the 2007 regional office decision granting Sue Padgett’s claim for accrued benefits and there would be no resulting injustice to the parties. Any other course, no matter how well intentioned, amounts to an advisory opinion on issues no longer before this Court.
Assuming that this Court could, through the exercise of some inherent power, permit its decision in a moot appeal to remain as precedential authority based on concepts of equity, the cases cited simply do not support such action. Should the majority wish to establish a new exception to the general rule in Landicho, it should do so clearly, instead of ignoring the well-established precedent of the Court.
The majority states that the Full Court Opinion clarified the application of the “clearly erroneous” standard of review in cases on appeal to this Court.
By this dissent, I do not say that I would never deny a motion to vacate a decision of this Court. However, the facts of this case do not support abandoning our traditional adherence to the concept of mootness in favor of applying equitable principles. For these reasons, I respectfully dissent.
. The regional office noted Barney Padgett's death and indicated that the matter was being decided to determine Sue Padgett's entitlement to compensation that may have accrued from the alleged service-connected disability. The regional office decision, however, did not mention either the April or September 2005 actions of the full Court, described below. Sue Padgett's representative, who actively communicated with the regional office regarding her claim for accrued benefits, also failed to call the regional office’s attention to them.
. Although the rating decision necessarily speaks in terms of Barney Padgett’s injury, because Barney Padgett was deceased at that time the only viable claim upon which the regional office could act was Sue Padgett's 2006 accrued benefits claim. In its letter notifying Sue Padgett of her award of benefits, the regional office clearly indicated that it was adjudicating only Sue Padgett’s accrued benefits claim.
. Although the reasoning is not entirely clear, the Federal Circuit found that to overcome the termination of a veteran’s claim at his death when considering a claim for accrued benefits, a Court decision rendered after the death of a veteran would have to be issued nunc pro tunc to the date immediately prior to the veteran's death and that the live person seeking accrued benefits would have to be substiluted as the appellant. In my view, the reason for these requirements would be to prevent the termination, by operation of law, of the appeal of a decedent at his death by means of substituting a live person with standing as the appellant in that appeal. A panel of this Court has discussed this apparent incongruity. See Pekular, 21 Vet.App. at 501.
. The majority states that the Full Court Opinion was "effective for several months, in 2005, and since the Federal Circuit Decision.” Supra at 167. To be more specific, the Full
Concurrence Opinion
concurring:
I concur in the result reached by the Court that vacatur of the Full Court Opinion is not warranted under the circumstances presented here. I write separately to emphasize that the Court here adheres to the “case or controversy” requirement of Article III of the U.S. Constitution. See Mokal v. Derwinski, 1 Vet.App. 12, 13 (1990). The procedural posture of this case makes it virtually impossible to read our decision as supporting a finding that a “case or controversy” need not exist in order to establish our jurisdiction. Indeed, at the time that the Court issued its Full Court Opinion in April 2005, the Court decided issues in Mr. Pad-gett’s appeal that had relevant and preclu-sive effect on Mrs. Padgett’s accrued benefits claim. See Haines v. West, 154 F.3d 1298 (Fed.Cir.1998). Accordingly, the appeal and issue of service connection were not moot at the time the Court issued its Full Court Opinion. The fact that Mrs. Padgett has, subsequent to the issuance of that opinion, been awarded accrued benefits does not change the fact that at the time the opinion was filed, we had jurisdiction over the appeal. Despite Mr. Padgett’s death, at that time there was a potential accrued benefits claimant, Mrs. Padgett, and Mrs. Padgett sought substitution shortly after the filing of the Full Court Opinion. See Pekular v. Mansfield, 21 Vet.App. 495, 501 (2007) (noting that the Court’s holding in Landicho v. Brown, 7 Vet.App. 42 (1994) — that when an appellant died while his case was on appeal to this Court, the appeal must be dismissed for lack of jurisdiction — was overruled in cases where an eligible accrued benefits recipient seeks substitution, both by implication in Zevalkink v. Brown, 102 F.3d 1236 (Fed.Cir.1996), and by the express finding in Padgett v. Nicholson, 473 F.3d 1364 (Fed.Cir.2007)).
Regardless of my own view as to whether the Full Court Opinion is a correct statement of the law or correct application of the law, the issue now before the Court is whether the Secretary has demonstrated that a balancing of public policies favors the vacatur by this Court of its own previously issued precedential decision. In the unique posture of this case, neither “mootness by reason of settlement,” U.S. Bancorp Mortgage Co. v. Bonner Mall P’ship, 513 U.S. 18, 29, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994), nor mootness due to the voluntary act of a losing party, Karcher v. May, 484 U.S. 72, 82-83, 108 S.Ct. 388, 98 L.Ed.2d 327 (1987) (holding United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 95 L.Ed. 36 (1950), procedure inapplicable because “controversy did not become moot due to circumstances unattributable to any of the parties”), justifies vacatur of our previously released Full Court Opinion.