Substitution of Parties

(a) Death. (1) Substitution if the Claim is Not Extinguished. If a party dies and the claim is not extinguished, the court may order substitution of the proper party. A motion for substitution may be made by any party or by the decedent’s successor or representative. If the motion is not 37 RCFC 23.2, 24 and 25 made within 90 days after service of a statement noting the death, the action by the decedent must be dismissed. successor in an action naming a public officer who dies or is separated from service while the action is pending. 2008 Amendment in text The language of RCFC 25 has been amended to conform to the general restyling of the FRCP. In addition, subdivision (d) (“Public Officers; Death or Separation from Office”), which is identical to FRCP 25(d) but was previously “not used,” was added in recognition of the provision’s potential applicability to claims for compensation filed in this court under the National Childhood Vaccine Injury Act. In such suits, a public officer (the Secretary of Health and Human Services) the named respondent. is always 2020 Amendment RCFC 25(a)(3) has been amended to eliminate the inadvertent implication that a statement noting death need not be served on nonparties such as successors or representatives of the deceased party. (2) Continuation Among the Remaining Parties. After a party’s death, if the right sought to be enforced survives only to or against the remaining parties, the action does not abate, but proceeds in favor of or against the remaining parties. The death should be noted on the record. (3) Service. A motion to substitute, together with a notice of hearing, must be served on the parties as provided in RCFC 5. A statement noting death must be served on the parties successor or representative of the deceased party in the same manner. If becomes incompetent, the court may, on motion, permit the action to be continued by or representative. The against motion must be served as provided in RCFC 25(a)(3). the party’s party and a a (b) Incompetency. (c) Transfer of Interest. If an interest is transferred, the action may be continued by or against the original party unless the court, on motion, orders the transferee to be substituted in the action or joined with the original party. The motion must be served as provided in RCFC 25(a)(3). successor (d) Public Officers; Death or Separation from Office. An action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer’s automatically substituted as a party. Later proceedings should be in the substituted party’s name, but any misnomer not affecting the parties’ substantial rights must be disregarded. The court may order substitution at any time, but the absence of such an order does not affect the substitution. is (As revised and reissued May 1, 2002; as amended Nov. 3, 2008, Aug. 3, 2020.) Rules Committee Notes 2002 Revision RCFC 25 omits the text of subdivision (d) of FRCP 25 which addresses the substitution of a RCFC 25 38 TITLE V. D I S C L O S U R E S A N D DISCOVERY