Parish v. Wilkie, 18-4706(E)

Anthony T. Parish, Appellant, v. Robert L. Wilkie, Secretary of Veterans Affairs, Appellee.

No. 18-4706(E)

United States Court of Appeals For Veterans Claims

February 12, 2020

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

Before TOTH, Judge.

ORDER

JOSEPH L. TOTH Judge

After veteran Anthony T. Parish appealed a Board decision, he and the Secretary jointly moved for a partial remand. The Court issued an order granting the motion on December 6, 2018, and an application for attorney fees and expenses under the Equal Access to Justice Act (EAJA) was filed the same day in the amount of $2, 662.14. The Secretary advised on December 20 that he was unopposed to the requested EAJA award. The Court granted the application and issued its mandate on January 7 2019.

Less than one month later, the veteran's counsel notified the Court that he had reason to believe Mr. Parish had passed away on December 19, 2018. The Court stayed proceedings while counsel attempted to obtain proof of the veteran's death. Despite diligent efforts, it took counsel until December 2019 to obtain a copy of Mr. Parish's death certificate from Texas authorities. This document indicated that Mr. Parish was divorced but not remarried at the time of his passing and listed his mother as the person who reported his death. The Court stayed proceedings for an additional 60 days while counsel tried to find a representative of the veteran's estate to substitute in these proceedings for purposes of obtaining EAJA fees. Finally, on February 1, 2020, counsel filed notice with the Court that multiple attempts to contact Mr. Parish's mother-who presumptively would be the legal representative of his estate-were unsuccessful.

EAJA permits an appellant, in certain circumstances, to be compensated by the Government for reasonable attorney fees and expenses. 28 U.S.C. § 2412(d)(1)(A), (1)(B), (2)(B); Scarborough v. Principi, 541 U.S. 401, 407-09 (2004). There is no dispute that those circumstances were met in Mr. Parish's case and that the EAJA award sought was reasonable. But an EAJA award belongs to a client, not an attorney. Shealey v. O'Rourke, 30 Vet.App. 108 110 (2018), aff'd sub nom. Shealey v. Wilkie 946 F.3d 1294 (Fed. Cir. 2020). When, as is the case here, an appellant dies after mandate issues and judgment is final, a personal representative of the appellant's estate may be substituted for the purpose of obtaining attorney fees and expenses under EAJA. Phillips v. Shinseki, 581 F.3d 1358, 1367-68 (Fed. Cir. 2009) (citing Cohen v Brown, 8 Vet.App. 5, 7 (1995)). If, however, "a suitable substitute is not available," the Court must revoke its award of EAJA fees and dismiss the application. Cornell v. Wilkie, 32 Vet.App. 69, 71 (2019).

Here counsel has been unable to find an eligible substitute for Mr. Parish. That is, no one has agreed to step into the veteran's shoes and seek EAJA fees. Although counsel has asked the Court to "proceed with execution of EAJA Mandate first issued on January 7, 2019," ...