Veteranclaims’s Blog

August 20, 2015

Panel Application; Toomer , 783 F.3d at 1239; Equitable Tolling

Filed under: Uncategorized — Tags: , — veteranclaims @ 6:03 pm

Excerpt from decision below:

“Whether a situation justifies equitable tolling is a matter assessed by the Court on a case-by-case basis with an acknowledgment of the “need for flexibility” and “for avoiding mechanical rules.”Toomer , 783 F.3d at 1239 (citing Holland, 560 U.S. at 649); Sneed v.Shinseki, 737 F.3d 719, 726 (Fed. Cir. 2013) (noting that equitable tolling is not “limited to a smalland closed set of factual patterns”).


NO. 14-3656
Before LANCE, DAVIS, and GREENBERG, Judges.
On October 27, 2014, United States Marine Corps veteran Marion Aldridge
submitted to the
Court a Notice of Appeal (NOA) from a December 24, 2013, Board of
Veterans’ Appeals (Board)
decision. To be timely, the NOA should have been filed by April 23, 2014.
See 38 U.S.C. § 7266(a)
(providing that a person adversely affected by a Board decision who wishes
to appeal “shall file a
notice of appeal with the Court within 120 days after the date on which
notice of the decision is
mailed”). The Secretary moved to dismiss the appeal because it was not
timely filed and the Court
ordered Mr. Aldridge to explain why the appeal should not be dismissed.
In response to the Court’s order, Mr. Aldridge states that the time to
appeal the Board’s
decision should be equitably tolled in light of the deaths of his mother,
sister, and unborn
granddaughter, all of which occurred during a nine-month period. Mr.
Aldridge contends that the
combined effect of these deaths led to a deep depression that caused him
to experience difficulty
processing dates and times and that he did not understand that he had only
until April 23, 2014, to
file his NOA. Mr. Aldridge contends that the depression, combined with his
singular focus on the
well being of his family, either directly or indirectly caused his appeal
to have been filed late.
The 120-dayperiod to appeal a Board decision to the Court is not
jurisdictional and therefore
maybe excused under the doctrine of equitable tolling. Henderson v.
Shinseki, 562 U.S. 428 (2011).
“As a general matter, equitable tolling pauses the running of, or ‘tolls,’
a statute of limitations.”
Lozano v. Montoya Alvarez, 134 S.Ct. 1224, 1231 (2014). The Supreme Court
has determined that
equitable tolling is appropriate when an appellant demonstrates “‘(1) that
he has been pursuing his
rights diligently,and(2)thatsomeextraordinarycircumstancestoodinhis
filing.” Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v.
DiGuglielmo, 544 U.S. 408,
418 (2005)); Checo v. Shinseki, 748 F.3d 1373, 1378 (Fed. Cir 2014) (
proponent of equitable tolling
must show (1) an extraordinarycircumstance,(2) due diligence,and(3)
causation)(citing McCreary v. Nicholson, 19 Vet.App. 324 (2005), adhered to on reconsideration, 20 Vet.App. 86 (2006)), reversing in part and dismissing in part, 26 Vet.App. 130 (2013); see also Toomer  v. McDonald, 783 F.3d 1229 (Fed. Cir. 2015). Whether a situation justifies equitable tolling is a matter assessed

by the Court on a case-by-case basis with an acknowledgment of the “need
for flexibility” and “for avoiding mechanical rules.”Toomer , 783 F.3d at 1239 (citing Holland, 560 U.S. at 649); Sneed v.Shinseki, 737 F.3d 719, 726 (Fed. Cir. 2013) (noting that equitable tolling is not “limited to a smalland closed set of factual patterns”).
Although sympathetic to Mr. Aldridge’s claim, the Court finds that he has
not demonstrated
that equitable tolling is warranted. Mr. Aldridge contends that his family
members’ deaths caused
a depression so great that he lost sense of time and had difficulty
carrying out even routine tasks.
However, Mr. Aldridge also states that, during the same period, he closed
the estates of his deceased
mother and sister, became his elderly father’s primary caregiver,
maintained his job as a desk clerk
at a VA hospital, and attempted to hire a law firm to represent him in his
appeal before the Court.
Given these facts, the Court is unconvinced that Mr. Aldridge’s depression
rendered him incapable
of handling his affairs or otherwise directly or indirectly prevented his
appeal from being timely
filed. See Holland, 560 U.S. at 649; see also Barrett v. Principi, 363 F.
3d 1316, 1321 (Fed. Cir.
2004) (applying equitable tolling when appellant suffered a mental illness
that rendered him
incapable of handling his own affairs). Furthermore, although the deaths
of his family members
were distressing and their aftermath required a great deal of attention,
Mr. Aldridge also has failed
to demonstrate that the deaths themselves directly or indirectly affected
the timely filing of his
appeal. See Holland, 560 U.S. at 649. Because Mr. Aldridge has not
demonstrated facts sufficient
to justify equitable tolling, the Court will dismiss his appeal. See Checo,
26 Vet.App. at 133 (the
appellant bears “the burden of demonstrating that equitable tolling is
Again, the Court acknowledges the regrettable and sympathetic
circumstancesthat burdened
Mr. Aldridge. However,the Court is requiredtoapplythe doctrine of
equitable tolling in accordance
with the governingbodyof law. See Sneed, 737 F.3d at 726 (reversingthis
Court’s determination that
attorney abandonment does not warrant equitable tolling because the
Court’s overly narrow
determination conflicted with Federal Circuit and Supreme Court precedent).
In that regard, the
dissent—good intentions aside—provides no support in the jurisprudence
of either this Court, the
U.S. Court of Appeals for the Federal Circuit, or the Supreme Court that
would counsel the
application of equitable tolling to the facts of this case as they have
been presented. See Bethea v.
Derwinski, 2 Vet.App. 252, 254 (1992) (decisions of the Court are bound by
precedent, which
includes an “en banc decision of this Court, a decision of the United
States Court of Appeals for the
Federal Circuit . . ., or a decision of the Supreme Court of the United
States”). Although the dissent
would have “‘justice be done whateverbe the consequences,'” Post at 5 (
quoting Somerset v. Stewart,
(1772) 98 Eng. Rep. 499 (K.B.) 509 (Lord Mansfield)), the Court may not
issue a decision that
conflicts with established precedent,Bethea, 2 Vet.App. at 254, and
moreover,is unwilling to accept
the potential for the inequitable administration of justice to the parties
who appear before it in
exchange for ad hoc decisionmaking not grounded in the law.
Mr. Aldridge also asserts that the Court should address whether the three-
part test for
extraordinary circumstances set out in McCreary conflicts with the test
articulated by the Supreme
Court in Holland. According to Mr. Aldridge, the Holland test is more
flexible than the McCreary
test because McCreary holds that an untimely filing must be the direct
result of an extraordinary

circumstance, whereas Holland requires only that the extraordinary
circumstance “stood in [the
appellant’s] wayandpreventedtimelyfiling.” 560 U.S. at 649.However,
Mr. Aldridge’s circumstances neither directlynor indirectlyprevented the
timelyfilingof his appeal,
the facts of this case do not raise Mr. Aldridge’s perceived distinction
between McCreary and
Holland. Accordingly, the Court will not address this issue further. See
Waterhouse v. Principi, 3
Vet.App. 473, 474 (1992) (holding that the Court does not issue advisory
opinions); see also
Nashville, Chattanooga & St. Louis Ry. Co. v. Wallace, 288 U.S. 249, 262 (
1933) (an advisory
opinion is “an abstract determination by the Court of the validity of a
statute . . . or a decision
advising what the law would be on an uncertain or hypothetical state of
On consideration of the foregoing, it is
ORDERED that the Secretary’s motion to dismiss is granted and this appeal
DATED: August 7, 2015
GREENBERG, Judge, dissenting: I dissent and contend that the Court should
exercise its
equitable power to toll the appeal period and accept the appellant’s
appeal in light of his testimony.
The appellant in this case alleges that the deaths of three familymembers
in four months, and
his overwhelming grief, prevented him from filing his appeal within the
statutory 120-day appeal
period. Specifically, on September 27, 2013, the appellant’s mother died.
Appellant’s Memo,
Appendix (App.) at 13. On December 16, 2013, the appellant’s granddaughter
was born stillborn.
Appellant’s Memo, App. at 12. On December 24, 2013, the Board issued its
decision on the
appellant’s claims. On January 14, 2014, the appellant’s sister died.
Appellant’s Memo, App. at 14.
The appellant states that following his mother’s death, he “became
severely depressed” and
“had difficulty carrying out tasks that had been routine before her death.”
Appellant’s Memo, App.
at 2-3. After his granddaughter died, “[his] depression deepened and [he]
was overwhelmed with
sadness.” Appellant’s Memo, App. at 3. At the time that he received the
Board decision in this case,
he was “in a depressive state” and “was unable to even consider next steps
like noticing an appeal”
or even to “think about [him]self or [his] disability benefits.”
Appellant’s Memo, App. at 3. The
death of the appellant’s sister “exacerbatedall of the grief [he] was
alreadyexperiencing” and pushed
him into a “dark period of depression” in which he “felt shut in a closet
or trapped with [his] grief.”
Appellant’s Memo, App. at 3-4.
The appellant alleges that, in his state of grief, he “singularly focused
on the well-being of
others in [his] family,” “consum[ing himself] with handling the estates of [
his] mother and sister,
including paying bills and conferring with creditors”; “becom[ing his] 83[-]
year[-]old father’s
primary caregiver,” and “tried to support [his] daughter . . . as she
continues to recover from the loss
of her child.” Appellant’s Memo, App. at 4-5. He states that he received
mailings from law firms
during January and February 2014 concerning potential representation
during an appeal, and “[a]t
some point during [his] depression” replied to one of these mailings.
Appellant’s Memo, App. at 5.

Some time thereafter he was instructed to pay the Court’s filing fee by
an attorney at the firm, and
on October 27, 2014, he did so, only to then learn that the appeal period
had passed and that the firm
was unable to represent him. Appellant’s Memo, App. at 6.
Historically, “[u]nder peculiar circumstances . . . excusing or justifying
[] delay, Courts of
Equity [would] not refuse their aid in furtherance of the rights of the
(“[W]here some collateral matter arises out of the general words, and
happens to be unreasonable;
there the judges arein decencyto conclude that this consequence was not
foreseen bythe parliament,
and therefore they are at liberty to expound the statute by equity.”).
This Court should apply
equitable tolling when it aids a diligent appellant who was unable to file
timely. See JOHNNORTON
ed. 1905)
(“‘Nothing can call forth this court into activity but conscience, good
faith, and reasonable
diligence.'” (quoting Lord Camden, Smith v. Clay, (1767) 27 Eng. Rep. 418 (
Ch.) 420; Amb. 645,
647)(emphasisomitted)). Diligenceshould bemeasuredin light
oftheSupremeCourt’s holdingthat
“[t]he diligence required for equitable tolling purposes is ‘reasonable
diligence,’ not ‘maximum
feasible diligence.'” Holland v. Florida, 560 U.S. 631, 653 (2010) (
citations and internal quotation
marks omitted).
The appellant testifies in a written affidavit that in the aftermath of
the deaths of his three
family members, he had to manage the estates of his deceased mother and
sister, become his elderly
father’s primary caregiver, and otherwise address the well-being of his
remaining family members
over his own needs, despite dealing with extreme depression and grief.
Appellant’s Memo, App. at
3-5. He testifies that these circumstances prevented him from filing his
appeal until his depression
and grief had subsided, which was after the 120-day appeal period had
ended. Addressing the
inquiry as the sole factfinder, we should grant equitable tolling in light
of the facts presented by the
appellant. See Bove v. Shinseki, 25 Vet.App. 136, 143 (2011) (per curiam
order) (the Court may
“independently weigh the facts to determine if equitable tolling is
appropriate” for the 120-day time
limit for appeals); see also 38 U.S.C. § 7292(a) (the Federal Circuit’s
scope of review includes “a
decision of the Court on a rule of law or of any statute or regulation
. . . or any interpretation thereof
(other than a determination as to a factual matter”) (emphasisadded).
Themajorityemphasizes that
the appellant was capable of handling complicated affairs during the
period in question, but these
responsibilities support his contention that he was prevented from filing
because, in his grief, he
focused solely on the needs of others to the exclusion of important
matters in his own life.
Appellant’s Memo, App. at 3-5. His unsuccessful attempt to retain counsel
for representation to this
Court in the midst of his depression establishes his diligence during this
period of depression and
his inability to file timely despite that diligence. Appellant’s Memo, App.
at 5-6.
In Hayburn’s Case, Chief Justice Jay wrote that the purposes of pension
legislation were
“exceedingly benevolent, and do real honor to the humanity and justice of
Congress.” 2 U.S.
(2 Dall.) 409, 410, n., 1 L.Ed. 436 (1792). Writing for the Supreme Court
in Henderson v. Shinseki,
Justice Alito noted the “solicitude [for veterans] plainly reflected in
the [Veterans Judicial Review
Act]”andthatthe120-dayperiodwaspartof”legislation [that] was
decidedlyfavorableto veterans.”

562 U.S. 428, 440-41 (2011). Harsh application of a non-jurisdictional,
though “important[,]
procedural rule,” id. at 441-42, is inconsistent with the intent of
Congress and ignores long-settled
principles of courts’ application of rules: “[P]rocedure may be made
subsidiary, as it should be, to
the substantial rights of the litigants,” and “courts may avoid the snarls
of procedural red tape and
concentrate on the substantive questions at issue.” Winberry v. Salisbury,
5 N.J. 240, 254, 74 A.2d
406, 413 (N.J. 1950) (Vanderbilt, C.J.). “[F]iat justicia, ruat caelum,
let justice be done whatever
be the consequence.” Somerset v. Stewart, (1772) 98 Eng. Rep. 499 (K.B.)
509 (Lord Mansfield).
The appellant is before us testifying that the three deaths of family
members, and his extreme
ensuing grief and depression, preventedhim from filing his appealwithin
the 120-dayappeal period.
I would grant equitable tolling on these undisputed facts.

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