James: Equitable Tolling; Extraordinary Circumstances

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James v. Wilkie, 917 F.3d 1368 (Fed. Cir. Mar. 7, 2019)

HELD: In determining whether a situation is extraordinary enough to warrant equitable tolling of the 120-day appeal deadline, the Court must analyze the specific facts of the case and cannot make a “categorical determination that a particular set of facts will never warrant equitable tolling of the filing deadline.” 

SUMMARY: Charles James sought service connection for back and neck conditions and an increased rating for pseudofolliculitis barbae. The Board denied his claims on January 28, 2016. On May 27, 2016, Mr. James put his Notice of Appeal to the CAVC in a stamped envelope, put the envelope in his home mailbox, and raised the flag on the box for collection. He then left town for the weekend. He returned the evening of May 30 – and saw that the mail had not been picked up. He mailed it that night and the CAVC received the appeal, postmarked May 31, 2016.

This was more than 120 days after the January 28, 2016 decision – so the CAVC ordered Mr. James to show cause why his appeal should not be dismissed. Through counsel, Mr. James responded, arguing that the 120-day appeal deadline should be equitably tolled because “an errantly lowered flag on his residential mailbox constitutes an extraordinary circumstance beyond his control.” He submitted a sworn declaration that he had spoken with his neighbor who had received mail on May 27 – and had seen some neighborhood kids playing in the street who “might have put the flag down.” The CAVC dismissed the appeal because he had not demonstrated that equitable tolling was warranted because “a fallen mailbox flag” was not “an extraordinary circumstance beyond [his] control … but rather an ordinary hazard of last minute mailing that could have been avoided.” 

On appeal to the Federal Circuit, Mr. James argued that the CAVC erred as a matter of law by “creating a categorical ban against equitable tolling in cases involving a fallen mailbox flag.” The Federal Circuit agreed, finding that the CAVC did not perform the necessary case-specific analysis of Mr. James’s case, but instead “made a categorical determination that a fallen mailbox flag is not entitled to equitable tolling but is ‘rather an ordinary hazard of last-minute mailing that could have been avoided.”

The Federal Circuit held that “because the extraordinary circumstances element requires a case-by-case analysis” the CAVC erred in making what appeared to be a categorical determination that Mr. James’s fallen mailbox flag did not neatly fall into “one of the factual patterns of past cases” that considered equitable tolling. The Court stated that the CAVC “failed to consider whether the fallen mailbox flag due to an alleged third-party interference with the federal collection of mail could justify invoking equitable tolling in Mr. James’s case as a matter of law.” 

The Court further held that “it is irrelevant to the extraordinary circumstances element analysis whether Mr. James could have done more after he put his NOA in his residential mailbox” – when the relevant and undisputed fact was that he put his NOA in a mailbox “in time for it to be postmarked within the 120-day filing deadline.” 

FULL DECISION

James: NO EQUITABLE TOLLING FOR NOTICE OF APPEAL PLACED IN MAILBOX, BUT NOT PICKED UP ON TIME

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James v. Shulkin, 29 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.]

FULL DECISION

Mead: NO EQUITABLE TOLLING FOR LATE EAJA APPLICATION

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Mead v. Shulkin, 29 Vet.App. 159 (per curiam order) (Oct. 27, 2017)

HELD: To warrant equitable tolling of the 30-day deadline to file an EAJA application, a claimant must demonstrate that physical or mental illness, individually or in combination, rendered “one incapable of handling one’s own affairs or rational thought and decisionmaking,” and thus “directly or indirectly” prevented the timely filing of the EAJA application. 

SUMMARY: The attorney in this case filed an application for fees under the Equal Access to Justice Act (EAJA) 52 days late. The Court ordered her to explain why the application should not be dismissed as untimely. She admitted that she mistakenly believed she had 60 days to file her EAJA application. However, she explained to the Court that during the appeal, she had been seen for suspected cancer, underwent testing and outpatient surgery, and was under the care of a psychiatrist. She submitted her opposed EAJA application 52 days late – and the Court ordered her to provide additional information regarding the medical procedures and mental health diagnosis. She declined, stating that it would be a privacy violation and would set “an unfortunate precedent that calls into question the integrity of advocates practicing before this Court.” 

The Court explained that the 30-day deadline to file an EAJA application is subject to equitable tolling “if it is established that some ‘extraordinary circumstance’ prevented a timely filing, and that despite the circumstance the applicant pursued her rights diligently.” The Court found that the attorney had not demonstrated that “her physical or mental health singly or in combination directly or indirectlyprevented her from timely filing her EAJA application within the 30-day period.” (emphasis in original). The Court noted that she had outpatient surgery 2 days into the 30-day filing period and was on anti-depressants during the appeal, but found that she did not “allege that these problems rendered her incapable of rational thought or decisionmaking, and she declined to provide opinions from her medical care providers as to her abilities during the 30-day EAJA filing period.” The Court further noted that she had mistakenly thought she had 60 days to file the application – which it characterized as “the type of garden variety neglect not contemplated by equitable tolling.” 

Regarding the attorney’s privacy concerns, the Court stated that she could ask the Court to lock the record. The Court added that it “had not required anything more of counsel than it requires of a veteran seeking equitable tolling of a deadline” – and dismissed the application as untimely. 

Judge Greenberg dissented on two grounds. First, he would have found that the attorney’s “potentially life-threatening illness” amounted to an extraordinary circumstance and that she was diligent in her representation during this time. Second, he challenged the Court’s Internal Operating Procedures that allowed for review of a single-judge decision by two judges as a violation of 38 U.S.C. § 7245(c)(1). This statute states: “A majority of the judges of the Court shall constitute a quorum for the transaction of the business of the Court.” 

In this case, Judge Greenberg had granted equitable tolling in a single-judge order – but two other judges disagreed and called the decision to panel. At that time, there were six active judges on the Court. Judge Greenberg argued that “sending a matter for precedential panel disposition constituted ‘business of the Court’ that should have required a 4 vote majority” – and that “[s]ubjecting an individual Judge’s equitable tolling discretion to panel review is inconsistent with the IOP itself” and with the basic tenets of equity jurisprudence. He concluded that “[a] process that allows for a single Judge’s veteran-friendly decision to be overturned merely because two other Judges disagreed goes against the intent of Congress in creating our Court, which was to ‘place a thumb on the scale in the veteran’s favor in the course of administrative and judicial review of VA decisions.’” (quoting Henderson v. Shinseki, 562 U.S. 428, 440 (2011)). 

FULL DECISION

Bly: EAJA & EQUITABLE TOLLING

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Bly v. McDonald, docket no. 15-0502(E) (Oct. 7, 2016), overruled, Bly v. Shulkin, docket no. 17-1287 (Fed. Cir. Mar. 2, 2018)

HELD: The 30-day appeal period to file an EAJA application is subject to equitable tolling, but the person seeking equitable tolling must show (1) that he has pursued his rights diligently and (2) that extraordinary circumstance prevented timely filing.  

SUMMARY: On January 5, 2016, the Court granted the parties’ joint motion for remand. In its order, the Court stated “this order is the mandate of the Court,” meaning that the Court’s judgment became “final.” On February 5, 2016 – 31 days after the Court’s order – Mr. Bly submitted his application for attorney fees under the Equal Access to Justice Act (EAJA). Because an EAJA application must be filed within 30 days of the Court’s final judgment, the Court ordered Mr. Bly to show cause as to why his application should not be dismissed.

Mr. Bly contended that the application was timely, and alternatively argued that the deadline should be equitably tolled. The Court sent this case to panel to determine whether equitable tolling applies to EAJA applications and, if so, what standard should be applied.

The parties agreed that equitable tolling applies to EAJA applications, but disagreed on the appropriate standard to apply to determine whether equitable tolling is warranted in these cases. Mr. Bly argued that the Court should adopt a standard in which it only asks “whether a veteran would be financially harmed without tolling and whether the Government would be prejudiced by tolling.” The Secretary asserted that the Court should apply the same standard as the general test for equitable tolling, which inquires as to “whether an extraordinary circumstance prevented the timely filing despite due diligence.”

The Court first determined that Mr. Bly’s EAJA application was untimely, rejecting his argument that “final judgment had not entered and he still had time to appeal.” The Court found this argument to be “incorrect as a matter of law,” since the EAJA statute defines “final judgment” to include “an order of settlement” and the Court’s rules provide that judgment is effective when the Court “order states that it constitutes the mandate of the Court.” The Court’s order, in Mr. Bly’s case, expressly stated that “this order is the mandate of the court.” U.S. Vet.App. R. 41(b). In addition to the EAJA statute and the Court’s own rules, the Court also pointed to its precedential caselaw stating that “an order granting a joint motion for remand . . . is final and not appealable.”

Next, the Court determined that “the doctrine of equitable tolling may be applied to the 30-day time limit for filing an EAJA application.” The Court rejected Mr. Bly’s arguments regarding the standard to apply, finding that applying his proposed standard “would essentially swallow the statutory rule that an EAJA application is due within 30 days of final judgment.” The Court explained that to base an equitable tolling determination on the question of whether a veteran would be financially harmed if the EAJA petition were dismissed, could apply to “virtually every case where an EAJA application is untimely filed.” The Court found that Mr. Bly had not shown extraordinary circumstance or due diligence to warrant equitable tolling.

Finally, Mr. Bly had also argued that dismissing his EAJA application would result in a potentially smaller retroactive award to the veteran, if the veteran is awarded benefits on remand. This is because any contingent attorney fee would have been offset dollar for dollar by the EAJA amount, resulting in a higher award for the veteran. The Court rejected this argument, noting that the Secretary and the Court both have the authority to review attorney fee agreements for reasonableness. The Court expressly directed the Secretary to consider the holding in this case when assessing the reasonableness of any potential attorney fees that result on remand.

Judge Greenberg concurred with the portion of the decision that held that the 30-day EAJA filing period is subject to equitable tolling, but dissented from the holding that equitable tolling was not warranted in this case. He emphasized the importance of encouraging lawyers to represent veterans and noted that the application was only one day late and there was “no evidence of prejudice to the Secretary as a result of that delay.” Judge Greenberg stated that “[p]enalizing an attorney for filing 1 day late where there is no prejudice to the Government, not only unnecessarily penalizes the veteran, but also may have chilling effects on worthy veterans obtaining adequate representation.”

FULL DECISION

EQUITABLE TOLLING

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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. 

FULL DECISION

MISLEADING NOTICE VIOLATES DUE PROCESS

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Noah v. McDonald, docket no. 15-0334 (June 10, 2016)

HELD: When VA sends “affirmatively misleading notice” to a claimant, that notice does not “satisfy the requirements of procedural due process guaranteed by the Fifth Amendment to the U.S. Constitution.”

SUMMARY: In December 1981, Mr. Noah filed a claim for service connection for PTSD. In January 1982, VA sent him a letter regarding additional information that was needed. The letter stated “Please reply within 30 days. If we have no reply within 60 days, we will assume that you have with[]drawn your claim.” Mr. Noah did not respond to this request.  

In December 2007, Mr. Noah filed another claim for service connection for PTSD. The RO granted the claim in 2009, effective the date of the 2007 claim. Mr. Noah appealed the effective date.

In an October 2011 statement, Mr. Noah explained that he had attempted to get medical evidence to support his 1981 claim, but he believed – based on VA’s letter – that if he did not submit the evidence within 60 days, VA would close his file. He was not able to get a medical appointment for approximately 90 days and could not afford to see a private psychiatrist – so he became discouraged and gave up. He stated that had he known that he actually had one year to submit the evidence, he would have waited for the appointment with the psychiatrist and would have been able to submit that evidence.

Mr. Noah later submitted a letter from a private psychiatrist stating that he was suffering from PTSD in 1981 and 1982. VA denied the earlier effective date and Mr. Noah appealed to the Board. At the Board, Mr. Noah’s counsel conceded that he had “abandoned” his 1981 claim, but argued that he “had a constitutional right not to be misled by VA’s letter.”

The Board acknowledged that in 1981, 38 C.F.R. § 3.158 provided that a claim will be considered abandoned if requested evidence is not submitted within one year after the date of the request. The Board acknowledged that VA’s letter was “misleading,” but concluded that “even though Mr. Noah might have believed he had no more than 60 days to submit medical evidence . .  . , he remained subject to the 1-year abandonment provision in effect at the time.”

At the Court, Mr. Noah first argued that he was entitled to equitable tolling of the one-year period to submit evidence, and that equitable tolling might apply in situations such as his where a due process violation is alleged. The Court disagreed and held that “the one-year period in 38 U.S.C. § 3003(a) to submit evidence following VA’s notification of the evidence necessary to complete the application [for benefits] cannot be construed as a statute of limitations and, therefore, is not subject to equitable tolling.”

With respect to Mr. Noah’s due process argument, the Court held that VA’s act of providing the claimant with misleading notice violated his due process right to accurate notice and the “right to be heard,” which the Court described as his “right to have his claim for disability benefits adjudicated.” The Court held that VA’s 1982 notice letter “failed to satisfy the requirements of procedural due process guaranteed by the Fifth Amendment to the U.S. Constitution.”

However, the Court also found that in order to prevail in an argument for an earlier effective date based on the due process violation, the claimant must “demonstrate that he relied to his detriment on the misleading notice.” The Court acknowledged that Mr. Noah did not apply for benefits for PTSD again until 2007, but also noted his explanation for why he stopped pursuing benefits back in 1982. The Court remanded this appeal to the Board to determine whether Mr. Noah relied to his detriment on the misleading notice. If so, then his 1981 claim is “pending and unadjudicated,” and he may be entitled to an earlier effective date for an award of benefits.

FULL DECISION

EQUITABLE TOLLING

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Threatt v. McDonald, docket no. 15-0835 (May 17, 2016) (per curiam order)

HELD: A veteran’s correspondence to his congressional representative expressing disagreement with a 2003 Board decision was a “timely misfiled” Notice of Appeal. Because this correspondence was submitted to the RO within the 120-day appeal period, the Court found that the appellant “has satisfied all the requirements of circumstance and diligence to warrant the application of equitable tolling.”

FULL DECISION

NO ATTORNEY ABANDONMENT ABSENT REPRESENTATION AGREEMENT

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Sneed v. McDonald, 819 F.3d 1347 (Fed. Cir. Apr. 22, 2016)

HELD: Although attorney abandonment may, in certain circumstances, justify equitable tolling of the filing deadline in an appeal to the CAVC, there is no attorney abandonment absent a representation agreement between the parties.

Even if the claimant in this case had been able to show that there was attorney abandonment, she would still not be entitled to equitable tolling because “she failed to demonstrate that she diligently pursued her rights.”

FULL DECISION