Bly: EAJA & EQUITABLE TOLLING

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

PARALEGAL ACCESS TO VBMS

Chisholm v. McDonald, docket no. 15-1594 (per curiam order) (Sept. 30, 2016)

HELD: The Court ordered the Secretary to issue a decision on an attorney’s request for paralegal access to VA’s electronic claims system (VBMS) on behalf of the law firm’s clients. 

SUMMARY: VA’s regulations allow representatives to access their clients’ VA claims files electronically via its Veterans Benefits Management System (VBMS). 38 C.F.R. § 1.600-.603. Attorney Robert Chisholm petitioned the Court for a writ of mandamus to compel VA to provide electronic access to paralegals under his supervision or, in the alternative, to compel VA to issue a decision on his request for electronic access by his paralegals.

The Court found that it had jurisdiction to order the Secretary to issue a decision, and granted the petition, in part, to do so. Because it had granted that portion of the request, the Court determined that Mr. Chisholm was not entitled to an order granting his paralegal staff access to their clients’ electronic records. 

FULL DECISION

WITHDRAWAL OF NOTICE OF DISAGREEMENT VIA TELEPHONE IS INVALID

Warren v. McDonald, docket no. 15-0641 (Sept. 14, 2016)

HELD: An appellant or his/her representative may withdraw an appeal, but unless the withdrawal is on the record at a hearing, it must be in writing. A withdrawal “is only effective where withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.”

SUMMARY: Mr. Warren was denied service connection for sleep apnea in April 2009, and he appealed. The RO continued its denial in Statement of the Case. The RO then received a statement that it treated as a VA Form 9, in which the veteran stated that he was withdrawing his request for review by a Decision Review Officer and instead requesting a Board hearing. The veteran’s representative also submitted a request for a Board hearing.

In April 2010, a VA employee subsequently called the veteran and noted in a “Report of General Information” that she spoke with him over the phone and that he wanted to withdraw his sleep apnea appeal. A few days later, a Report of General Information, completed by a different VA employee, stated that the veteran called to state that he wanted a Board hearing. A few days later, the RO certified his appeal to the Board.

Later that month, on May 28, 2010, Mr. Warren’s representative submitted additional evidence “in support of the pending claim” for service connection for sleep apnea. The RO treated this as a new claim, requiring “new and material evidence” to reopen. Mr. Warren then underwent a Compensation and Pension examination – and the examiner provided a favorable medical nexus opinion. The RO awarded service connection for sleep apnea – assigning May 28, 2010 as the effective date. This decision was not appealed.

In the June 2013, Mr. Warren was afforded a Board hearing in which the presiding Board member characterized the issues to include service connection for sleep apnea. The veteran’s representative stated that the April 2010 Report of General Information mischaracterized Mr. Warren’s request. He clarified that he did not state that he wanted to withdraw his appeal; rather, he wanted to withdraw it from DRO review and proceed directly to a Board hearing.

In its November 2014 decision, the Board stated that the appeal arose from the April 2009 denial of service connection for sleep apnea – but that the April 2010 Report of General Information was a proper withdrawal of that appeal. The Board thus found that May 28, 2010 was the appropriate effective date for the award of service connection for sleep apnea.

On appeal to the Veterans Court, Mr. Warren argued that the Board failed to apply the correct legal standard in finding that he withdrew his appeal. The Secretary did not address this argument – but instead asserted that the Board improperly adjudicated a “freestanding earlier effective date issue” and that the proper remedy was for the Court to vacate the Board’s decision and dismiss the appeal.

The Court noted that the Board’s rules regarding withdrawal of appeals states that only an appellant or his/her representative may withdraw an appeal and that “[e]xcept for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.” The Court added that a withdrawal “is only effective where withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” The Court noted that in Mr. Warren’s case, the alleged withdrawal was conducted over the phone and that there was “considerable evidence that Mr. Warren did not intend to withdraw his 2008 sleep apnea claim when he called VA in April 2010,” but that he simply meant to withdraw his request for DRO review. The Court thus reversed the Board’s determination that Mr. Warren had withdrawn his appeal.

As for the issue on appeal, the Court determined that there were two claim streams in this case – (1) the 2008 claim for service connection for sleep apnea that resulted in the April 2009 denial and (2) the May 2010 “claim” that the RO treated as a request to reopen, based on its belief that Mr. Warren had withdrawn his appeal of the April 2009 denial.

The Board characterized the first claim as one for an earlier effective date – but the Court found that the Board did not have jurisdiction over this “claim” because it had not been adjudicated by the RO. The issue that had been appealed to the Board was service connection for sleep apnea – not the effective date.

The Court determined that “because the veteran timely appealed the April 2009 RO decision denying the December 2008 claim, only a Board decision can resolve the December 2008 claim” – and that the September 2010 RO decision could not resolve this issue because “by virtue of his appeal, the Board, not the RO, had jurisdiction over it.”

In this respect, the Court agreed with the Secretary that the Board did not have jurisdiction over the effective date issue. The Board had jurisdiction over the appeal arising from the 2008 claim for service connection. The Court held that the Board clearly erred when it determined that Mr. Warren withdrew his appeal of the April 2009 decision and reversed that portion of the decision. The Court remanded the issue of service connection for sleep apnea – the merits of the December 2008 claim – to the Board, expressly directing it to consider the supporting evidence Mr. Warren submitted in May 2010. 

FULL DECISION

EQUITABLE TOLLING

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

VETERAN CANNOT APPEAL DENIAL OF SPOUSE’S CLAIM FOR CHAMPVA BENEFITS

Braan v. McDonald, docket no. 14-4085 (Aug. 26, 2016)

HELD: Because the veteran did not have the right to appeal his spouse’s claim for CHAMPVA benefits, the Board did not have jurisdiction over this appeal and the appeal must be dismissed. 

SUMMARY: The veteran in this case was service connected under 38 U.S.C. § 1151, and rated 100% disabled. His wife applied for CHAMPVA benefits in March 2010. The following month, the VA Health Administration Center (HAC) issued a decision, addressed to Mrs. Braan, stating that she was not entitled to CHAMPVA benefits because “VA benefits granted under [section 1151] do not include CHAMPVA.”

In September 2010, Mr. Braan filed a “Privacy Release Form” with his congressional representative on behalf of his wife, requesting an appeal of the denial. The Congressman forwarded a memo and Mr. Braan’s Privacy Release Form to VA. In January 2011, the VA HAC issued a Statement of the Case, denying Mrs. Braan’s appeal, but the cover letter was addressed to Mr. Braan. In January 2012, Mr. Braan filed a VA Form 9, stating that as a 100% disabled veteran, he is entitled to CHAMPVA benefits on for his spouse – and that section 1151 claims are treated as service connected.

In October 2014, the Board identified the appeal as Mr. Braan’s, but concluded that Mrs. Braan was not entitled to CHAMPVA benefits because his disability was not “incurred or aggravated” in the line of duty. The Board supported this determination with a VA General Counsel Advisory Opinion stating that section 1151’s “quasi-service-connection” only provides for benefits under chapters 11 or 13 of title 38 of the U.S. Code – and entitlement to CHAMPVA is provided under chapter 17.

Mr. Braan appealed to the Court. The Court issued an order directing Mrs. Braan to file a motion to intervene as an appellant, if she wanted to do so. She never filed a motion to intervene.

The issue addressed by the Court was whether Mr. Braan had standing to bring this appeal to the Court on behalf of his wife. The Court held that he did not – and that the Board did not have jurisdiction to hear his appeal of her claim. The Court characterized Mr. Braan as an “interloper” in Mrs. Braan’s claim and stated that, as such, he did not have the right to pursue her claim – and the Board did not have jurisdiction to hear his appeal of her claim. The Court reiterated that “because Mr. Braan had not submitted a claim, the Board lacked the authority to decide his claim in the first instance” and “did not have jurisdiction to hear Mr. Braan’s appeal.

The Court never reached the relevant question of whether service connection under section 1151 entitles a recipient’s spouse to CHAMPVA benefits. The Court never even reached the question of “whether a CHAMPVA’s sponsor [i.e., the service-connected veteran] may ever be a proper claimant for CHAMPVA benefits that are otherwise due his or her spouse or other qualifying dependent,” stating that “it is undoubtedly improper for a CHAMPVA sponsor to wade into the appeals stream on behalf of a CHAMPVA beneficiary when that beneficiary has already filed the initial claim.”

Advocacy note: This is a very sad decision – and a monumental waste of time – that could have easily been prevented at several steps along the way by the veteran, his spouse, the congressional representative, and the VA officials who were issuing decisions on appeals over which they, allegedly, lacked jurisdiction. It is clear that Mrs. Braan applied for CHAMPVA benefits – and it is clear that she was denied these benefits based solely on the fact that her husband was service connected under section 1151. The standing/jurisdiction issues have nothing to do with the merits of this appeal – and all the Court is doing is guaranteeing that the Braans will wait another six years or more until it can address the relevant issue.

The lesson to take away from this case is that it is important to pay attention to who files the claim, the substance of the claim, and who is then entitled to appeal any adverse decision of that claim. It is a shame that the Court “punted” this one away. 

FULL DECISION

FED CIRCUIT DECLINES TO REVIEW PRESUMPTION OF COMPETENCY OF VA EXAMINERS

Mathis v. McDonald, docket no. 2015-7094 (Fed. Cir. Aug. 19, 2016)

HELD: The Federal Circuit denied the veteran’s petition for en banc rehearing of its prior (non-precedential) decision that declined to disavow the presumption of competence afforded to VA examiners. 

In a single-judge memorandum decision, the CAVC rejected the appellant’s arguments regarding the competency of the VA examiner who had provided a negative medical nexus opinion. See Mathis v. McDonald, docket no. 13-3410 (J. Lance, May 21, 2015) (Mathis I). The CAVC held that while the presumption of competency is rebuttable, the first step in doing so is to challenge the examiner’s competency. Because the veteran did not challenge the competency of the examiner at the Board or RO levels, the Court found that he had not met his burden to rebut the presumption. Id.

The veteran appealed to the Federal Circuit, arguing that the Court should “disavow the presumption of competency as it applies to VA medical examiners,” asserting that “VA’s procedure for selecting qualified examiners is inherently unreliable because the VA broadly recommends assigning generalists except in unusual, ill-defined cases.” See Mathis v. McDonald, docket no. 2015-7094 (Apr. 1, 2016) (Mathis II). The Court, somewhat reluctantly, declined to reassess the presumption of competency, although it did discuss the line of relevant cases (Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009); Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011); and Parks v. Shinseki, 716 F.3d 581 (Fed. Cir. 2013)), and noted that the appellant’s argument “presents some legitimate concerns.” Nevertheless, the Court found that it lacked “jurisdiction to make factual findings on appeal regarding the competency” of the VA examiner and “are bound by clear precedent to presume” the examiner’s competency.

In a separate opinion, one of the Federal Circuit judges concluded that “the entire court should review the case law concerning the presumption of competence with the objective of eliminating it.” The judge based his conclusion on VA’s general practice of not providing evidence of an examiner’s qualifications; the appearance that the presumption renders the competency of a VA examiner “unreviewable”; the due process problem in requiring a veteran to challenge an examiner’s qualifications; VA’s “unknown” process in selecting examiners; and, most troubling, VA’s actions since the presumption has been applied. Specifically, since the presumption has been applied, VA has emphasized the use of non-specialists. VA has eliminated the requirement that reports be signed by a physician – now only requiring the signature of a “health care provider.” This judge also highlighted the recent evidence of the “irregularity” in VA’s process for selecting examiners as shown in the controversy surrounding TBI examinations being conducted by unqualified examiners.

Despite this well-crafted opinion, the Federal Circuit declined to rehear this appeal en banc. However, while the order declining en-banc review was only two pages long, the opinion includes an additional 29 pages of separate concurring and dissenting opinions questioning the ongoing validity of applying the presumption of administrative regularity in this context.

Advocacy note: The burden is still on the veteran to challenge the adequacy of an examination and/or the qualifications of the examiner. If the veteran feels that the examination was not adequate and/or the examiner was not qualified to be conducting the examination, the veteran must notify VA of these concerns in writing. 

FULL DECISION