Veteranclaims’s Blog

June 5, 2020

Panel; equitable tolling NOA; 38 U.S.C. § 7266; Bove v. Shinseki, 25 Vet.App. 136, 138-43 (2011) (per curiam order); untimely Notice of Appeal will be treated as timely if . . . the Notice of Appeal is received within 30 days after the expiration of the filing deadline and the appellant demonstrates good cause or excusable neglect for failure to file the Notice of Appeal within the 120-day period.” U.S. VET. APP. R. 4(b)(3)(B)(i);

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 18-6819
SHERRY C. BENSON, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Chief Judge, and GREENBERG and TOTH, Judges.
O R D E R
I.
On September 26, 2017, the Board of Veterans’ Appeals mailed a decision denying
appellant Sherry C. Benson’s application for recognition as the surviving spouse of veteran Charles
Ray Benson for the purpose of receiving VA Dependency and Indemnity Compensation (DIC).
The appellant filed a motion for reconsideration with the Board on February 1, 2018, 128 days
after the Board decision was issued. The Board Chairman denied reconsideration on July 6, 2018.
The appellant filed a Notice of Appeal (NOA) with the Court on November 6, 2018, 123 days after
reconsideration was denied. She admits that her late filing to the Court was based on a mistaken
belief that 120-day filing period meant she had a full 4 months—that is, from July 6 to November
6—to appeal. See Appellant’s Mar. 12, 2020, Response.
On January 31, 2019, the Secretary moved to dismiss the instant appeal for lack of
jurisdiction because the appellant failed to file a timely NOA. The Secretary argued that the
appellant’s NOA was untimely, that she had not asserted a compelling reason for her failure to
submit a timely NOA, and that there were no factors here that would permit equitable tolling of
the appeal period. Secretary’s Motion at 2-3 (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89,
96 (1990)). The Secretary also argued that the appellant had not tolled the period for filing an NOA
by means of filing a timely motion for reconsideration of the September 26, 2017, Board decision.
Id. at 2 (citing Rosler v. Derwinski, 1 Vet.App. 241, 245 (1991)).
On March 7, 2019, the Court ordered the appellant to respond to the Secretary’s motion and
explain why her appeal should not be dismissed as untimely. On April 24, 2019, the appellant
responded, stating that she had experienced “severe circumstances” that prevented her from timely
filing her appeal. Appellant’s Apr. 24, 2019, Response at 2. The appellant submitted another
response on August 12, 2019. She wrote that she had left her job in May 2017 because she had
been sexually harassed. Appellant’s Aug. 12, 2019, Response at 1. At the same time, she wrote,
her living conditions had compelled her to move in with her sister. Id. And though the appellant
found a new job and a new apartment around August 2017, she was fired on the day that she moved
into her new domicile. Id. She was evicted on January 21, 2018. Id.
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On October 17, 2019, this matter was sent to a panel to consider whether equitable tolling
was warranted. On December 3, 2019, the Court issued a stay of proceedings for 30 days to allow
the appellant to seek representation. On February 5, 2020, an attorney filed his appearance on the
appellant’s behalf.
On March 12, 2020, Ms. Benson through counsel filed a supplemental response expanding
upon her earlier arguments. See Appellant’s Mar. 12, 2020, Response. The Court is satisfied that
the appellant has provided sufficient information for the Court to deny the Secretary’s motion to
dismiss.
II.
A claimant dissatisfied with the Board’s decision has options for relief. First, the claimant
may seek Board Chairman reconsideration of the Board decision. See 38 U.S.C. § 7203; 38 C.F.R. § 20.1000 (2019). There is no limit to the number of times a claimant may seek Board Chairman reconsideration of the same Board decision, nor is there any deadline within which a motion for reconsideration must be filed. See Perez v. Derwinski, 2 Vet.App. 149, 150 (1992); Rosler v. Derwinski, 1 Vet.App. 241, 244, 249 (1991); 38 C.F.R. § 20.1001 (2019) (“Reconsideration of an appellate decision may be accorded at any time by the Board . . . .”). Second, a claimant may file a timely NOA with this Court. See 38 U.S.C. § 7266; Bove v. Shinseki, 25 Vet.App. 136, 138-43
(2011) (per curiam order)
.
To be timely, an NOA generally must be filed with the Court within 120 days after the
Board mails notice of its decision. 38 U.S.C. § 7266(a). If, however, a “claimant files a motion for
reconsideration with the Board during the 120-day judicial appeal period, the finality of the initial
Board decision is abated by that motion for reconsideration.” Threatt v. McDonald, 28 Vet.App.
56, 60 (2016) (per curiam order) (citing Rosler, 1 Vet.App. at 249). In such a case, a timely NOA
may be filed within 120 days after the Board Chairman’s denial of reconsideration is mailed. Id.
Yet, the 120-day deadline to file this motion for reconsideration is subject to equitable tolling. See
Raybine v. Wilkie, 31 Vet.App. 419, 421 (2019).
To establish equitable tolling, the appellant must demonstrate (1) an extraordinary
circumstance; (2) due diligence in attempting to file; and (3) a connection between the
extraordinary circumstance and failure to timely file. See Toomer v. McDonald, 783 F.3d 1229, 1238 (Fed. Cir. 2015); Checo v. Shinseki, 748 F.3d 1373, 1378 (Fed. Cir. 2014); McCreary v. Nicholson, 19 Vet.App. 324, 332 (2005), adhered to on reconsideration, 20 Vet.App. 86 (2006).
“Equitable tolling is not limited to a small and closed set of factual patterns,” and the Court must consider equitable tolling on a “case-by-case basis,” “avoiding mechanical rules,” and observing
“the need for flexibility.” Sneed v. Shinseki, 737 F.3d 719, 726 (Fed. Cir. 2013) (internal quotation
marks omitted). It is the appellant’s burden to produce any evidence necessary to support his or her
argument for equitable tolling. Palomer v. McDonald, 27 Vet.App. 245, 251 (2015) (per curiam order).
Additionally, under this Court’s Rules of Practice and Procedure, “an untimely Notice of
Appeal will be treated as timely if . . . the Notice of Appeal is received within 30 days after the
3
expiration of the filing deadline and the appellant demonstrates good cause or excusable neglect
for failure to file the Notice of Appeal within the 120-day period.” U.S. VET. APP. R. 4(b)(3)(B)(i).

“Excusable neglect” is not defined in this Court’s Rules, nor in Rule 4 of the Federal Rules
of Appellate Procedure, from which U.S. VET. APP. R. 4(b)(3)(B)(i) is derived. But both the
Supreme Court and the Federal Circuit have cited “a simple ‘miscalculation’ that leads a [party] to
miss a filing deadline” as an example of “a garden variety claim of excusable neglect.” Menominee
Indian Tribe v. United States, 136 S. Ct. 750, 757 (2016); Sneed v. McDonald, 819 F.3d 1347,
1351 (Fed. Cir. 2016). Other courts have likewise concluded that calendaring errors can constitute
excusable neglect, at least depending on the circumstances of the case. See, e.g., Locke v. Suntrust
Bank, 484 F.3d 1343, 1346 (11th Cir. 2007); United States v. Brown, 133 F.3d 993, 997 (7th Cir.
1998); Marx v. Loral Corp., 87 F.3d 1049, 1054 (9th Cir. 1996). In considering whether excusable
neglect has been shown, the Supreme Court has said that “the determination is at bottom an
equitable one, taking account of all relevant circumstances surrounding the party’s omission,”
which include
(1) the danger of prejudice to the non-moving party;
(2) the length of the delay and its potential impact on judicial proceedings;
(3) the reason for the delay, including whether it was within the reasonable control of the
movant; and
(4) whether the movant acted in good faith.
Pioneer Inv. Servs. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395 (1993); see also Two-Way
Media LLC v. AT&T, Inc., 782 F.3d 1311, 1316 (Fed. Cir. 2015) (“The district court not only may,
but should, consider all relevant circumstances in determining whether a party’s failure to file a
timely appeal was excusable. At bottom, [Federal Rule of Appellate Procedure] 4(a)(5) assumes
some neglect on behalf of the non-filer and directs the district court to exercise its equitable
discretion to determine whether that neglect should be excused.” (internal quotation marks and
citations omitted)).
The appellant filed her motion for reconsideration on February 1, 2018, 128 days after the
Board mailed its September 27, 2017, decision. Because this filing was not within the 120-day
appeal period, the finality of the September 2017 Board decision was not abated. See Rosler, 1
Vet.App. at 249. Additionally, even if the finality of the Board decision had been abated, the
appellant’s November 6, 2018, NOA would be untimely because it was filed 123 days after the
Chairman denied reconsideration on July 6, 2018. 38 U.S.C. § 7266(a). Therefore, the merits of the
appellant’s appeal may be heard by the Court only if (1) equitable tolling is applied to at least 8 days
during the 128-day period from the date the Board decision was mailed and the appellant filed her
motion for reconsideration, and (2) the Court accepts the appellant’s contention that her delay in
filing was due to good cause and excusable neglect.
4
III.
The Court finds that the appellant experienced extraordinary circumstances beyond her
control and that these circumstances caused the late filing of her motion for reconsideration. See
Toomer, 783 F.3d at 1238. The appellant was sexually harassed at work in the period ending
several months before the Board’s September 2017 decision. See Appellant’s Aug. 12, 2019,
Response at 1. This harassment set in motion a chain of events culminating in a court-ordered
eviction in January 2018, 3 days before her appeal was due.
In May 2017, the appellant filed a formal complaint with her employer, but ultimately left
her employment as a result of the sexual harassment. Id. During the same period, partly because
of the loss of income, Appellant’s Apr. 27, 2020, Response at 3, as well as deteriorating living
conditions, Appellant’s Aug. 12, 2019, Response at 1, the appellant moved in with her sister.
Although the appellant found a new job and residence 1 month before the Board’s September 2017
decision, she lost that job through no fault of her own on the same day that she moved into her
new residence, and consequently, she was forced to apply for and rely on unemployment benefits.
Id. She was then evicted on January 21, 2018, 117 days after the Board mailed its September 2017
Board decision and 3 days before her appeal was due. Id.; Appellant’s Apr. 27, 2020, Response at
4.
Keeping in mind that “[e]quitable tolling is not limited to a small and closed set of factual
patterns,” and that that the Court must not apply a “mechanical rule,” Sneed, 737 F.3d at 726, the
Court finds that the appellant certainly experienced extraordinary circumstances during the 128
days between the mailing of the Board decision and the filing of her motion for reconsideration.
The sexual harassment the appellant experienced at work in May 2017 was beyond her control;
moreover, as a direct result of that event, the appellant became unemployed, found and lost a new
job, had to move 3 times over a 10-month period (which included a court-ordered eviction), and
was forced to navigate the State unemployment system. The Court finds that the appellant’s
untimely filed motion for reconsideration is subject to tolling because the totality of these problems
constituted extraordinary circumstances. Further, the Court agrees with the appellant that these
circumstances prevented her from timely filing a motion for reconsideration. See Appellant’s Aug.
12, 2019, Response at 1. The appellant was also diligent in attempting to timely file her motion
for reconsideration, despite these unfortunate employment- and housing-related disruptions.
Although the appellant was evicted from her home on January 21, 2018, she still managed to file
her initial motion for reconsideration by February 1, 2018, missing the deadline to file by only 8
days. See Appellant’s Aug. 12, 2019, Response at 1. The Court will therefore toll the 120-day
deadline to file a motion for reconsideration.
IV.
The Court also finds that as to the untimely filed NOA, the appellant’s miscalculation of
the 120-day deadline amounts to excusable neglect based on the four factors outlined in Pioneer
Investment Services, see 507 U.S. at 395, and the specific circumstances of this case, see Two-Way
Media, 782 F.3d at 1316. First, VA is not prejudiced by the Court’s accepting the appellant’s appeal
as timely. Second, the delay was short and insignificant to judicial proceedings because the
appellant was only 3 days late in filing her appeal to the Court. Third, though the delay was based
5
on a miscalculation of the 120-day deadline and thus was not out of her control, the Court is
mindful that Ms. Benson was acting without the assistance of an attorney and was not familiar
with the appeals procedure. Fourth, the Court finds that the appellant acted in good faith in filing
her appeal by what she believed was the deadline.
The Court will therefore deny the Secretary’s motion to dismiss and accept the appellant’s
November 6, 2018, NOA as timely filed.
Upon consideration of the foregoing, it is
ORDERED that the Secretary’s January 31, 2019, motion to dismiss the appeal is denied.
It is further
ORDERED that the appellant’s November 6, 2018, NOA is accepted as timely filed. And
it is further
ORDERED that within 60 days from the date of this order, the Secretary shall serve a copy
of the record before the agency on the appellant and shall file notice of such with the Court.
DATED: June 4, 2020 PER CURIAM.
GREENBERG, Judge, concurring: I join this unanimous opinion because it is beneficial to the
claimant. I maintain that I disagree with the Court’s current framework for an equitable tolling
analysis.
.

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