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

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
FELICIANA G. REYES,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2018-2423
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-2471, Chief Judge Robert N. Da-
vis.
______________________
Decided: October 11, 2019
______________________
L OUIS STEFAN MASTRIANI, Adduci, Mastriani &
Schaumberg, LLP, Washington, DC, argued for claimant-
appellant. Also represented by S ETH ALAIN WATKINS , Wat-
kins Law & Advocacy, PLLC, Washington, DC.
J ANA MOSES , Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by
J OSEPH H. HUNT , ROBERT EDWARD K IRSCHMAN, J R., L OREN

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REYES v. WILKIE 2
MISHA P REHEIM ; BRIAN D. G RIFFIN, BRANDON A. J ONAS , Of-
fice of General Counsel, United States Department of Vet-
erans Affairs, Washington, DC.
______________________
Before STOLL , P LAGER , and CLEVENGER , Circuit Judges.
P ER CURIAM .
Feliciana Reyes appeals from the decision of the Court
of Appeals for Veterans Claims affirming the denial of her
claim for a one-time payment from the Filipino Veterans
Equity Compensation Fund established by Section 1002 of
the American Recovery and Reinvestment Act of 2009,
Pub. L. No. 111-5, 123 Stat. 115, 200–02 (2009). The De-
partment of Veterans Affairs denied her claim because the
Department of the Army “could not certify” that Ms. Reyes
had served as a member of the Philippine Commonwealth
Army, including the recognized guerillas, in the service of
the United States Armed Forces. J.A. 4.
Ms. Reyes filed her claim in February 2010, when she
was eighty-two years old. After lengthy proceedings before
the Board of Veterans’ Appeals and the Court of Appeals
for Veterans Claims, her appeal first reached this court in
September 2018. Following expedited briefing, this case
was submitted after oral argument on December 3, 2018.
Ms. Reyes died shortly thereafter on December 22, 2018.
Counsel for Ms. Reyes then moved for entry of judgment
nunc pro tunc.
“A nunc pro tunc order should be granted or refused, as
justice may require in view of the circumstances of the par-
ticular case.” Mitchell v. Overman, 103 U.S. 62, 65 (1880).
The Supreme Court has consistently entered judgment
nunc pro tunc “[w]here a party dies after his case is sub-
mitted, but before the opinion issues, and the case would
otherwise be rendered moot.” Padgett v. Nicholson,
473 F.3d 1364, 1367 (Fed. Cir. 2007) (collecting cases). In-
deed, the death of a party following submission but prior to

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REYES v. WILKIE 3
judgment is the “paradigm case” for retroactively entering
judgment on a nunc pro tunc basis. Id. (quoting Weil v.
Markowitz, 898 F.2d 198, 201 (D.C. Cir. 1990)). In view of
the circumstances of this particular case, we agree that jus-
tice requires nunc pro tunc relief here.
Turning to the merits of Ms. Reyes’s appeal, this court
recently considered an appeal from a similarly situated
claimant in Dela Cruz v. Wilkie, 931 F.3d 1143 (Fed. Cir.
2019). In Dela Cruz, we held that the Department of Vet-
erans Affairs can generally rely on the service depart-
ment’s determination of service in deciding eligibility for
payment from the Filipino Veterans Equity Compensation
Fund. 931 F.3d at 1152. But we further held that in this
particular context, the VA cannot rely on the service de-
partment’s determination without giving the veteran a
meaningful opportunity to challenge his or her service rec-
ord. Id. The Government represented to the Dela Cruz
court that the Army Board for Correction of Military Rec-
ords will consider such an application. Id. at 1151.
The rationale of Dela Cruz applies equally to this ap-
peal. Ms. Reyes’s proper avenue for relief is to seek a cor-
rection of her service record from the Corrections Board, as
the Secretary conceded in his brief to this court. See Re-
spondent-Appellee’s Br. 8; Dela Cruz, 931 F.3d at 1151–52.
There should be no misunderstanding: as Dela Cruz noted,
it is appropriate for the VA to seek verification of service
from the Army, the organization most likely to have infor-
mation about the service of Filipino Veterans. But ulti-
mately, eligibility for the payment is not the Army’s
responsibility to make; under the law, it is the Secretary
who must make the eligibility determination based on the
record evidence. Consistent with the Secretary’s conces-
sion and the disposition of Dela Cruz, we therefore affirm-
in-part and remand to the Veterans Court to hold the case
in abeyance pending consideration by the Corrections
Board. We enter judgment nunc pro tunc as of the date this
case was submitted, December 3, 2018.

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REYES v. WILKIE 4
AFFIRMED-IN-PART AND REMANDED
COSTS
No costs.

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