Brophy v. Peake ( 2008 )


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  •                         NOTE: This disposition is nonprecedential.
    United States Court of Appeals for the Federal Circuit
    2007-7260
    ANGELINA F. BROPHY,
    Claimant-Appellant,
    v.
    JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
    Respondent-Appellee.
    Angelina F. Brophy, of San Fernando City, La Union, Philipines, pro se.
    Phyllis Jo Baunach, Trial Attorney, Commercial Litigation Branch, Civil Division,
    United States Department of Justice, of Washington, DC, for respondent-appellee. With
    her on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E.
    Davidson, Director, and Martin F. Hockey, Jr., Assistant Director. Of counsel on the brief
    were Michael J. Timinski, Deputy Assistant General Counsel, and Martin J. Sendek,
    Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of
    Washington, DC.
    Appealed from: United States Court of Appeals for Veterans Claims
    Judge Donald L. Ivers
    NOTE: This disposition is nonprecedential.
    United States Court of Appeals for the Federal Circuit
    2007-7260
    ANGELINA F. BROPHY,
    Claimant-Appellant,
    v.
    JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
    Respondent-Appellee.
    Appeal from the United States Court of Appeals for Veterans Claims
    in 05-2811, Judge Donald L. Ivers.
    ___________________________
    DECIDED: June 5, 2008
    ___________________________
    Before MAYER, RADER, and BRYSON, Circuit Judges.
    PER CURIAM.
    DECISION
    Angelina F. Brophy sought accrued benefits as a surviving spouse after the
    death of veteran John R. Brophy, who she asserted was her husband. Ms. Brophy died
    while her appeal from the denial of her claim was pending in the Court of Appeals for
    Veterans Claims (“the Veterans Court”), and the court dismissed the claim as moot.
    Ms. Brophy’s daughter, Hilaria Brophy, moved to be substituted as a party, but the court
    denied that motion. We affirm.
    BACKGROUND
    Mr. Brophy served on active duty during World War II from January 1943 until
    December 1945. Angelina Brophy asserted that she met and lived with Mr. Brophy for
    approximately six months in 1945 while he was stationed in the Philippines. When Mr.
    Brophy returned to the United States in September of that year, Ms. Brophy was
    pregnant. Hilaria Brophy was subsequently born in December of 1945.
    John Brophy did not return to the Philippines. Military records show that Mr.
    Brophy was already married before he left the United States for active duty. Starting in
    1951, Angelina Brophy was in contact with the Philippine Regional Office of the
    Veterans Administration, when she was seeking monetary assistance for raising Hilaria
    Brophy. Following Mr. Brophy’s death in 1985, Hilaria Brophy sought compensation on
    behalf of her mother in the current case.
    In light of conflicting statements in the record, the Board of Veterans’ Appeals
    concluded that there was “no credible evidence” that John Brophy and Angelina Brophy
    had been legally married. That decision issued in August 2005, and Angelina Brophy
    filed an appeal to the Veterans Court. Angelina Brophy died while that appeal was
    pending, and the Veterans Court ordered the case to be dismissed as moot. Soon
    thereafter, Hilaria Brophy submitted a motion to be substituted as a party in the case.
    The Veterans Court denied that motion, and Hilaria Brophy moved for reconsideration.
    In its order responding to the motion for reconsideration, the Veterans Court stated that
    it was “uncertain as to whether Hilaria F. Brophy qualifies as a potential claimant,” and it
    2007-7260                                    2
    ordered the Secretary of the Department of Veterans Affairs to advise the court on that
    matter. The Secretary submitted a response explaining that Hilaria Brophy could not be
    substituted as a party because she did not qualify as a potential accrued-benefits
    claimant.   In particular, the Secretary contended that Hilaria Brophy could receive
    benefits only if she met the statutory requirements of being a “child,” 
    38 U.S.C. § 101
    (4)(A), but that she could not qualify under that definition because she was over
    18 years old and was married. The Veterans Court subsequently denied the motion for
    reconsideration.
    DISCUSSION
    On appeal, Hilaria Brophy argues that the Veterans Court erred in its
    interpretation of Veterans Appeals Court Rule 43, which specifies the procedure for
    substituting parties, and 
    38 U.S.C. § 5121
    , which governs the payment of accrued
    benefits upon the death of a beneficiary. Although the Veterans Court’s order of May 1,
    2007, did not explicitly refer to either of those provisions, it cited the controlling case on
    the issue of substituting parties after the death of a beneficiary, Padgett v. Nicholson,
    
    473 F.3d 1364
     (Fed. Cir. 2007), and it correctly stated the relevant legal principles. The
    Padgett case makes clear that if, after the death of a claimant, no other claimants
    qualify under the relevant statutes to pursue the decedent’s claims, the appellate court
    should dismiss the claim as moot. 
    Id. at 1371
    .
    The reply brief filed by Hilaria Brophy essentially argues that Angelina Brophy
    was a legitimate claimant, and that upon her death, Hilaria Brophy should have been
    substituted as the executor of her mother’s estate and allowed to pursue her mother’s
    claims. However, this court has previously determined that the estate of a spouse
    2007-7260                                     3
    cannot continue to pursue a veteran’s accrued benefits claim. See Pelea v. Nicholson,
    
    497 F.3d 1290
     (Fed. Cir. 2007). That ruling was based on the language of the statutes
    governing veterans benefits.   See 
    id. at 1292
     (discussing the statutory schemes of
    chapters 11 and 13 of title 38, governing veterans’ benefits). The cases Ms. Brophy
    cites do not compel a different conclusion, because they do not address that specific
    statutory scheme. See Shipley v. Ark. Blue Cross & Blue Shield, 
    333 F.3d 898
    , 901
    (8th Cir. 2003) (applying Fed. R. App. P. 43(a)(1) to substitute a widow in place of her
    deceased husband in a suit contesting an insurance company’s denial of benefits under
    ERISA, 
    29 U.S.C. § 1132
    (a)(1)(B)); Mallick v. Int’l Bhd. of Elec. Workers, 
    814 F.2d 674
    ,
    679 (D.C. Cir. 1987) (allowing substitution of union workers for a deceased union
    worker under the Labor-Management Reporting and Disclosure Act of 1959, 
    29 U.S.C. § 431
    (c)). Federal Rule of Civil Procedure 25(a), which Brophy cites, does not support
    her argument as applied to the statutory scheme governing veterans’ benefits,
    particularly because Rule 25(a) applies to district court proceedings and not to
    proceedings in the Veterans Court or the Board of Veterans’ Affairs.
    Consequently, the only way that Hilaria Brophy could pursue the claim for
    accrued benefits was to qualify as a potential claimant in her own right. As the Veterans
    Court properly concluded, the statute governing whether Hilaria Brophy could qualify as
    a claimant is 
    38 U.S.C. § 101
    (4)(A), which defines a “child” for purposes of Title 38.
    That statute defines a “child” as a person who is unmarried and under the age of 18
    (among other limitations). Consequently, the Veterans Court correctly identified the
    relevant legal principles. To the extent Ms. Brophy argues that the Veterans Court did
    2007-7260                                  4
    not apply those principles properly to the facts of this case, this Court does not have
    jurisdiction to review that contention. See 
    38 U.S.C. § 7292
    .
    Ms. Brophy also contends that the Veterans Court violated the continuing claims
    doctrine, citing Nicholas v. United States, 
    42 Fed. Cl. 373
     (1998). The continuing claims
    doctrine, however, concerns the applicability of the statute of limitations in situations in
    which there are recurring payments. The Veterans Court’s decision did not involve the
    statute of limitations, and thus there was no need for that court to consider the
    continuing claims doctrine. Because the doctrine was irrelevant, the Veterans Court’s
    decision did not “violate” it.
    Ms. Brophy also contends that the Veterans Court violated her due process
    rights under the Constitution. She does not explain how the Veterans Court failed to
    follow appropriate procedures, however, and no due process problems are apparent
    from the record.
    In her reply brief, Ms. Brophy essentially asks this court to address factual
    matters. In particular, she argues that the marriage between John Brophy and Angelina
    Brophy should have been ruled valid, and that she should have been found to be John
    Brophy’s daughter. This court cannot review such factual issues, and in any event the
    Veterans Court simply concluded that Ms. Brophy did not satisfy the definition of “child”
    under 
    38 U.S.C. § 101
    (4)(A); it did not make any determination regarding whether she
    was John Brophy’s biological daughter.
    For the foregoing reasons, we affirm the decision of the Veterans Court.
    2007-7260                                    5
    

Document Info

Docket Number: 2007-7260

Judges: Bryson, Mayer, Per Curiam, Rader

Filed Date: 6/5/2008

Precedential Status: Non-Precedential

Modified Date: 10/19/2024