Demery: Notice of Appeal Filed After Veteran's Death

Demery v. Wilkie, docket no. 17-3469 (per curiam order) (Jan. 17, 2019)

HELD: Timely Notice of Appeal filed after the veteran’s death was not valid with respect to the substituted party, but the eligible substitute may amend the NOA to name her as the appellant and ask the Court to relate the amended NOA back to the date the original NOA was filed so as to make it timely.

SUMMARY: On October 3, 2017, the Court received a timely NOA of a June 22, 2017 Board decision. Shortly afterwards, the attorneys who filed the NOA notified the Court that the veteran had passed away and filed a motion to substitute his surviving spouse. The Court then discovered that the veteran had passed away in August 2017 – after the Board’s decision, but before the NOA had been filed. Because “a dead person may not appeal a Board decision,” the Court found that the NOA was “defective,” but still allowed the surviving spouse to file an amended NOA and to relate that NOA back to the date of the original filing.



James v. Shulkin29 Vet.App. 127 (per curiam order) (Oct. 30, 2017)

HELD: Notice of Appeal that is timely placed in a personal mailbox, but not picked up by the mail carrier prior to the expiration of the 120-day deadline, is not an “extraordinary circumstance” beyond one’s control that warrants equitable tolling. 

SUMMARY: Mr. James sought to appeal a January 28, 2016 Board decision. On the last day to file his Notice of Appeal, he placed the NOA in his personal mailbox, raised the flag to alert his mail carrier to pick up the mail, and left town for the weekend. When he returned, the flag had been lowered, but the NOA had not been picked up. He mailed the NOA four days after the 120-day deadline. 

The Court rejected his NOA as untimely and found that the circumstances of his case did not warrant equitable tolling. Mr. James argued that the “errantly lowered flag on his residential mailbox constitutes an extraordinary circumstance beyond his control” and that the diligence required here should be the same type of diligence required in cases where the veteran files his NOA on time, but in the wrong place. 

The Court disagreed that this situation was the same as the “timely misfiled” cases because he did not timely misfile his NOA – he placed the NOA in his personal mailbox on time and then left town. He filed the NOA 4 days late. The Court found that “a fallen mailbox flag is not an extraordinary circumstance beyond the appellant’s control that warrants equitable tolling, but rather an ordinary hazard of last-minute mailing that could have been avoided but for the appellant’s ‘garden-variety neglect.’” 

Judge Greenberg dissented, asserting that by placing his NOA in the mailbox on the 120th day, the appellant “did everything required of him to ensure timely mailing under 38 U.S.C. § 7266.” Judge Greenberg stated that it is “irrelevant that there were other methods of mailing available, as his actions would have likely been sufficient to ensure timely mailing but for circumstances beyond his control” – and noted that the majority was imposing requirements on veterans beyond what is required by statute or at common law. Judge Greenberg stated that the majority was relying on “decades-old caselaw” to find Mr. James’s mailing amounted to “garden variety negligence” – and reminded the majority that Henderson v. Shinseki“and the repeated admonishments from the Federal Circuit for denying equitable tolling have changed the fundamental approach to the timely filing requirements.” (citing 562 U.S. 428, 441-42 (2011)). The Judge urged the Court to “start applying its equitable powers more broadly.” 

[NOTE: This case was appealed to the Federal Circuit on Dec. 6, 2017.]



Aldridge v. McDonald, docket no. 2015-7115 (Fed. Cir. Sept. 9, 2016)

HELD: Equitable tolling is not warranted when veteran failed to demonstrate how the multiple deaths in his family “directly or indirectly affected the timely filing of his appeal.” 

SUMMARY: In December 2013, the Board of Veterans’ Appeals denied Mr. Aldridge’s claims for increased ratings for his service-connected knee conditions. He had until April 23, 2014 to submit a Notice of Appeal to the U.S. Court of Appeals for Veterans Claims. He did not file his appeal until October 27, 2014 – more than six months past the deadline.

He asked the Court to equitably toll the deadline, explaining that there were multiple deaths in his family and that the “resulting depressive state had prevented him from timely filing his notice of appeal.” The CAVC denied his request, finding that he “had failed to demonstrate how the deaths of his mother and sister and stillborn birth of his grandchild ‘themselves directly or indirectly affected the timely filing of his appeal.’” The Court based this determination on the findings that during the relevant period, he had closed the estates of his deceased mother and sister, became his father’s primary caregiver, continued to work as a desk clerk at a VA hospital, and attempted to hire a law firm to represent him. Because of this, the Court was “unconvinced” that his depression “directly or indirectly prevented his appeal from being timely filed.”

The Federal Circuit, sadly, agreed. Mr. Aldridge argued that the CAVC applied a legal standard that was inconsistent with Holland v. Florida, 560 U.S. 631 (2010), a decision in which the Supreme Court determined that equitable tolling is appropriate when an appellant demonstrates “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Mr. Aldridge argued that the CAVC’s “causation analysis” placed a heavier burden on the veteran than what was intended by the Supreme Court in Holland. He asserted that the legal standard in Holland – a showing that “some extraordinary circumstances stood in [the] way and prevented timely filing” – “focuses on whether the extraordinary circumstances created a roadblock to timely filing as opposed to a metaphorical chain of causation that links events through time.”

The Federal Circuit agreed with the CAVC and determined that the requirement “that an appellant demonstrate that ‘some extraordinary circumstance stood in his way’ and prevented timely filing . . . necessarily carries with it an element of causation.” The Court noted that the Supreme Court recently reaffirmed this aspect of Holland, when it stated that “the second prong of the equitable tolling test is met only where the circumstances that caused a litigant’s delay are both extraordinary and beyond its control.” The Federal Circuit held that the CAVC “did not apply an incorrect legal standard when it determined that Mr. Aldridge had failed to demonstrate that the deaths in his family ‘themselves directly or indirectly affected the timely filing of his appeal.’”

In a passionate dissent, Judge Newman stated: “This case puts judicial humanity to the test; the Federal Circuit and the Court of Appeals for Veterans Claims fail the test.” This dissent is powerful – and useful for its language regarding equity and the unfortunately adversarial nature of what is supposed to be a solicitous veterans’ benefits scheme.  

This court has been assigned the responsibility for assuring that the legislative purpose of establishing a veteran-friendly regime is implemented. This case should never have come this far. On the undisputed circumstances that existed in this veteran’s family, the VA could readily have allowed the tardy appeal from the BVA to the Veterans Court. Instead, we see the government in uncompromising litigation to prevent this veteran from appealing the BVA decision on his percentage disability, straining precedent to its equivocal limits. What happened to the recognition that “the veterans benefit system is designed to award ‘entitlements to a special class of citizens, those who risked harm to serve and defend their country. This entire scheme is imbued with special beneficence from a grateful sovereign.’”

Dissent at *5.