Lerman v. Nicholson

125 F. App'x 997

• Court: Court of Appeals for the Federal Circuit
• Decided: March 15, 2005
• Docket: No. 04-7054
• Status: Published

Opinion

ORDER

MAYER, Circuit Judge.

Matthew A. Lerman responds to the court’s order to show cause why this appeal should not be dismissed pursuant to Richard v. West, 161 F.3d 719 (Fed.Cir.1998) (holding veteran’s claims for service-connected benefits do not survive veteran’s death). The Secretary of Veterans Affairs has not responded.

Lerman asks the court to direct the Court of Appeals for Veterans Claims to vacate its decision and recall the judgment in Lerman v. Principi, 00-145, and also direct the Court of Appeals for Veterans Claims “to instruct the Board to vacate its decision.” “[Vjacateur must be decreed for those judgments whose review is, in the words of Munsingwear, ‘prevented through happenstance.’” U.S. Bancorp Mortgage Company v. Bonner Mall Partnership, 513 U.S. 18, 23, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994) (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950)). Thus, here, where the veteran has died during the pendency of his appeal, the judgment on appeal must be vacated. The case is remanded to the Court of Appeals for Veterans Claims where any additional requests for relief should be pursued.

Accordingly,

IT IS ORDERED THAT:

(1) The case is vacated and remanded.

(2) Each side shall bear its own costs.