Mayfield (Substitution Before the Court)

Mayfield v. McDonough, Case Number 21-8176, decided July 28, 2023 is an order involving substitution after a veteran has died during the appeal.

In Breedlove v. Shinseki, 24 Vet.App. 7, 20–21 (2010) (per curiam order), the court found it had discretion to permit a movant to be substituted for an appellant who dies during the pendency of an appeal in this Court, provided that there is either a determination by VA or a concession by the Secretary that the movant is an eligible accrued-benefits claimant.   The VA typically conditions its position regarding a substitution motion filed on how the regional office rules on a movant's parallel request for substitution filed with the Agency. As a consequence, the RO's ruling is usually dispositive.

This case involves a question arising from Breedlove, what happens when the moving party is dissatisfied with the RO’s denial for a request for substitution.  Can they seek to have the Court directly review the propriety of the RO's ruling.  The Court determined it generally will not grant a motion for substitution unless the VA first determines that the movant is the appropriate party to step into the appellant's shoes.  It then explains, a would-be substitute dissatisfied with the RO's determination must challenge it through the administrative appeals process and cannot short-circuit that process by challenging it directly to the Court first.

Underneath this determination is a long-running and very much disputed battle regarding substitution, the proper forms required for substitution (as opposed to seeking accrued benefits), and the Court’s inherent powers to control a case before it. 

I would expect this order to result in an appeal to the Federal Circuit.

Order by Judge Toth and joined in by Judges Meredith and Laurer. 

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