Veteranclaims’s Blog

December 9, 2013

FedCir. Sneed v. Shinseki, No. 2013-7029 (Decided: December 9, 2013); Equitable Tolling; Bove, 25 Vet. App. at 140

Excerpt from decision below:

“The Veterans Court dismissed Ms. Sneed’s appeal for failure to timely file her notice of appeal. Ms. Sneed appeals the dismissal, arguing the Veterans Court legally erred in holding that equitable tolling does not apply in cases of attorney abandonment. <b>Because attorney abandonment can justify equitably tolling the deadline for filing an appeal to the Veterans Court, this court vacates and remands for the Veterans Court to reconsider Ms. Sneed’s argument under the correct standard.</b>”

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“The hardship of default resulting from attorney abandonment is particularly difficult to bear in the context of an appeal to the Veterans Court, which is often the veteran’s first opportunity to be represented by an attorney. See 38 U.S.C. § 5904(c)(1). Accordingly, pursuant to the principles of Maples and Holland,
16 SNEED v. SHINSEKI

attorney abandonment may justify equitably tolling the filing deadline in appeals to the Veterans Court.”

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United States Court of Appeals for the Federal Circuit
______________________
MARVA J. SNEED,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7029
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-2715, Judge William A. Moorman.
______________________
Decided: December 9, 2013
______________________
WILLIAM H. BURGESS, Kirkland & Ellis LLP, of Washington,
DC, argued for claimant-appellant. With him on
the brief was BENJAMIN A. HERBERT, of Los Angeles,
California.
JEFFREY D. KLINGMAN, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondent-
appellee. With him on the brief were STUART F.
DELERY, Acting Assistant Attorney General, JEANNE E.
DAVIDSON, Director, and SCOTT D. AUSTIN, Assistant
Director. Of counsel on the brief were DAVID J. BARRANS,
Deputy Assistant General Counsel and MEGHAN D.
ALPHONSO, Attorney, United States Department of Veterans
Affairs, of Washington, DC.
______________________
2 SNEED v. SHINSEKI

Before NEWMAN, PROST, and WALLACH, Circuit Judges.

Opinion for the court filed by Circuit Judge WALLACH.

Dissenting opinion filed by Circuit Judge PROST.

WALLACH, Circuit Judge.

Marva Sneed pursued her claim for survivor benefits in the Department of Veterans Affairs (“VA”) for eight years. After receiving an adverse decision from the Board of Veterans’ Appeals (“Board”), Ms. Sneed promptly contacted an attorney to represent her in an appeal to the
United States Court of Appeals for Veterans Claims (“Veterans Court”). Only one day before the deadline to file a notice of appeal, however, Ms. Sneed received a letter saying the attorney would not represent her in the appeal. After unsuccessfully searching for another attorney,
Ms. Sneed filed a notice of appeal pro se, twenty-nine days after the filing deadline.
<b>The Veterans Court dismissed Ms. Sneed’s appeal for failure to timely file her notice of appeal. Ms. Sneed appeals the dismissal, arguing the Veterans Court legally erred in holding that equitable tolling does not apply in cases of attorney abandonment. Because attorney abandonment can justify equitably tolling the deadline for filing an appeal to the Veterans Court, this court vacates and remands for the Veterans Court to reconsider Ms. Sneed’s argument under the correct standard.</b>

BACKGROUND
I.
Ms. Sneed is the surviving spouse of veteran Reginald
A. Sneed, who served on active duty from June 1964 to
June 1968. Mr. Sneed suffered from numerous serviceconnected disabilities, including post-traumatic stress syndrome, post-concussion syndrome, cervical spondylosis
(degeneration of the vertebrae), spinal stenosis (narrowing of the spinal column), tinnitus (ringing in the ears), a perforated tympanic membrane, and scarring of the upper
extremities. In January 2001, Mr. Sneed fell and suffered a spinal cord contusion, rendering him a quadriplegic and
SNEED v. SHINSEKI 3

resulting in confinement to a chin-operated wheelchair.1
In October 2003, Mr. Sneed was living in a nursing home for paralyzed veterans. There was a fire in the home, and all of the residents, including Mr. Sneed, died as a result
of smoke inhalation.
Following Mr. Sneed’s death, Ms. Sneed filed a claim with the VA for dependency and indemnity compensation. See 38 U.S.C. § 1310 (2000) (“Deaths entitling survivors to dependency and indemnity compensation”). She alleged her husband’s death was service connected, because his service-connected disabilities were a principal or contributory cause of his death. See 38 C.F.R. § 3.312 (2000). In particular, she argued his service-connected spinal disabilities
substantially contributed to his paralysis, which made him unable to escape from the burning building.
Ms. Sneed also contended that her husband’s other disabilities, including post-traumatic stress syndrome and tinnitus, contributed to his death by preventing him from hearing and properly responding to indications of fire.
The VA denied Ms. Sneed’s claim, and the Board ultimately affirmed the denial on April 5, 2011.
Ms. Sneed’s notice of appeal to the Veterans Court was due by August 3, 2011. See 38 U.S.C. § 7266(a) (“[A] person adversely affected by [a Board] decision shall file a notice of appeal with the [Veterans Court] within 120 days after the date on which notice of the decision is mailed . . . .”). Ms. Sneed promptly sought an attorney to represent her in the appeal. She contacted Katrina J. Eagle, Esq., and transmitted her case materials to Ms. Eagle’s office. Ms. Sneed communicated with Ms. Eagle’s office “for a year or longer” and stated that “Ms. Eagle
knew that there was a deadline” to file the notice of appeal.2 J.A. 41. However, on August 2, 2011—the day
1 Effective September 27, 2001, Mr. Sneed was rated
totally and permanently disabled as a result of a nonservice-
connected disability, for purposes of a VAadministered
pension. See 38 U.S.C. § 1521 (2000).

2 It is unclear how Ms. Sneed could have been in
contact with Ms. Eagle for “a year or longer,” J.A. 41,
when the deadline to appeal from the Board decision was
4 SNEED v. SHINSEKI

before Ms. Sneed’s deadline to appeal—Ms. Sneed received a letter from Ms. Eagle stating that she would not represent Ms. Sneed in her appeal. Ms. Eagle explained that she did “not believe the VA erred in denying [Ms. Sneed’s] claim,” and instructed Ms. Sneed to seek another
attorney’s opinion or to file the notice of appeal herself. J.A. 45. Ms. Eagle also incorrectly advised Ms. Sneed that the deadline to appeal was August 5, 2011, two days later than the actual August 3 deadline.
Ms. Sneed then “tried to find another attorney” in the “short time” available. J.A. 41. When that failed, she filed the notice of appeal on September 1, 2011—twenty-nine days after the deadline.3 Six days later, on September 7, 2011, Ms. Sneed filed a letter with the Veterans Court
explaining her late filing:
I thought I had an attorney, this attorney was
sent all of my papers about this appeal in a timely
manner, in fact I contact[ed] the attorney office as
soon as I got my decision letter. I even ke[pt] in
contact with the attorney office.
J.A. 22. She further stated that she “ha[d] worked on this
case for over eight years, and all papers were filed on
time,” and that she did not think the late filing to the
Veterans Court was her fault. J.A. 41.

II.
Not long after her appeal was docketed, Ms. Sneed
was able to retain an attorney, who entered his appearance
on September 14, 2011. On October 11, 2011, the
Veterans Court stayed several appeals, including Ms.
Sneed’s, pending the court’s decision in a separate case
only 120 days and Ms. Sneed presumably did not contact
Ms. Eagle until the issuance of the adverse Board decision.
However, this discrepancy is not relevant to the
merits of Ms. Sneed’s appeal.

3 Ms. Sneed’s description of her attempts to find
another attorney contradicts the dissent’s statement that
“Ms. Sneed provided no explanation for the other twentyseven
days of the delay.” Dissenting Op. at 3.
SNEED v. SHINSEKI 5

regarding whether equitable tolling applied to the 120-
day filing deadline in 38 U.S.C. § 7266(a). The deadline
was found subject to equitable tolling in Bove v. Shinseki,
25 Vet. App. 136 (2011), and on June 14, 2012, the Veterans
Court directed Ms. Sneed to file a response discussing
whether her case warranted equitable tolling of the 120-
day filing period.
Ms. Sneed argued, through counsel, that her “reliance on attorney Katrina J. Eagle to file her appeal with the Court was perfectly reasonable,” and that Ms. Eagle’s conduct amounted to “‘extraordinary circumstances beyond’ [Ms. Sneed’s] control.” Appellant’s Resp. to Ct.
Order, Sneed v. Shinseki, Vet. App. No. 11-2715 (quoting Bove, 25 Vet. App. at 140). Ms. Sneed asked the court to allow equitable tolling in her case.
The Veterans Court declined to apply equitable tolling and dismissed Ms. Sneed’s appeal. The court held that Ms. Sneed’s circumstances did not fit within the “parameters” of equitable tolling, which applied only when circumstances precluded a timely filing despite the exercise of due diligence, such as (1) a mental illness rendering one incapable of handling one’s own affairs or other extraordinary circumstances beyond one’s control, (2) reliance on the incorrect statement of a VA official, or (3) a misfiling at the regional office or the Board. Sneed v. Shinseki, 2012 U.S. App. Vet. Claims LEXIS 2062, at *3–4 (Vet. App. Sept. 27, 2012) (“Veterans Court Decision”) (quoting Bove, 25 Vet. App. at 140) (internal quotation marks omitted). Rather, because Ms. Eagle had informed Ms. Sneed that she was “not required to have an attorney” to file her notice of appeal, and because Ms. Eagle was “not a VA official,” the court held Ms. Sneed’s
twenty-nine-day-late filing “evidence[d] general negli

6 SNEED v. SHINSEKI

gence or procrastination,” precluding equitable tolling in her case.4 Id. at *4 & n.1.
After the dismissal, Ms. Sneed’s counsel withdrew, and Ms. Sneed filed a pro se motion for reconsideration, which the Veterans Court denied. Ms. Sneed, with new counsel, timely appealed to this court.

DISCUSSION
I.
Our jurisdiction to review decisions of the Veterans Court is limited by statute. Pursuant to 38 U.S.C. § 7292(a), this court has jurisdiction to review “the validity
of a decision of the [Veterans] 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)
that was relied on by the [Veterans] Court in making the decision.” Except to the extent that a constitutional issue is presented, this court may not review “a challenge
to a factual determination,” or “a challenge to a law or
regulation as applied to the facts of a particular case.” Id.
§ 7292(d)(2)(A)–(B). The Veterans Court’s legal determinations
are reviewed de novo. Cushman v. Shinseki, 576
F.3d 1290, 1296 (Fed. Cir. 2009).
This court has jurisdiction over the proper interpretation
of 38 U.S.C. § 7266(a), the filing provision at issue in
this case. Santana-Venegas v. Principi, 314 F.3d 1293,
1298 (Fed. Cir. 2002). “[C]onsideration of equitable toll-
4 According to the dissent, the Veterans Court made
a finding “that Ms. Sneed knew” she did not need an
attorney to file her notice of appeal. Dissenting Op. at 2
(emphasis added). However, Ms. Sneed stated that “[she]
did not know that [she] could have filed [herself].” J.A. 41.
The Veterans Court made no finding to the contrary, and
noted only that Ms. Eagle’s letter to Ms. Sneed stated
“you are not required to have an attorney to proceed
before the Court.” Veterans Court Decision at *4 (internal
quotation marks and citation omitted). The Veterans
Court specifically did not find that Ms. Sneed understood
the meaning of Ms. Eagle’s letter.
SNEED v. SHINSEKI 7

ing” presents an issue of statutory interpretation of
§ 7266(a). Nelson v. Nicholson, 489 F.3d 1380, 1382 (Fed.
Cir. 2007). On appeal, Ms. Sneed argues the Veterans
Court incorrectly interpreted § 7266(a) by ruling out
attorney abandonment as a potential basis for equitable
tolling.
The Secretary argues that Ms. Sneed is actually challenging
the Veterans Court’s factual findings, which this
court lacks jurisdiction to review. According to the Secretary,
the Veterans Court found that Ms. Sneed did not
exercise due diligence, thus precluding equitable tolling
under any standard. However, the Veterans Court’s
factual findings are unclear. On one hand, the court
stated that Ms. Sneed’s late filing “evidence[d] general
negligence or procrastination,” but later said that “despite
her exercise of due diligence,” Ms. Sneed failed to demonstrate
that “circumstances prevented her from timely
filing.” Veterans Court Decision at *4–5. During oral
argument, the Secretary seemed to concede that the
Veterans Court made no explicit finding with respect to
diligence. Oral Arg. at 23:22–23:28, Sneed v. Shinseki,
available at http://www.cafc.uscourts.gov/oral-argumentrecordings/
all/sneed.html (answering that there was no
express finding of diligence based on what Ms. Sneed had
done day by day).
Moreover, Ms. Sneed does not challenge the Veterans
Court’s findings of fact, and does not ask this court to
make any new or contrary findings. Rather, she argues
the Veterans Court erroneously failed to recognize attorney
abandonment as a basis for equitable tolling. “Even
where factual disputes may remain, we have authority to
decide whether the Veterans Court applied the correct
legal standard.” Lamour v. Peake, 544 F.3d 1317, 1321
(Fed. Cir. 2008).5 Certainly, this court has jurisdiction to
5 The dissent states that this court has jurisdiction
“only” when the proposed standard would be outcome
determinative. Dissenting Op. at 2 (citing Mapu v. Nicholson,
397 F.3d 1375, 1379 (Fed. Cir. 2005)). However,
this court has jurisdiction to decide a question of statutory
interpretation “that was relied upon by the [Veterans]
8 SNEED v. SHINSEKI

consider whether the Veterans Court employed an improperly
narrow standard for equitable tolling under
§ 7266(a).6 See Nelson, 489 F.3d at 1382–83.
Court in making the decision.” 38 U.S.C. § 7292(a). The
Veterans Court relied on § 7266(a) in dismissing Ms.
Sneed’s appeal, and Ms. Sneed now challenges the Veterans
Court’s interpretation of that provision. See Nelson,
489 F.3d at 1382. Whether the issue on appeal is harmless
error (and thus not outcome determinative) does not
divest this court of jurisdiction. See Menegassi v. Shinseki,
638 F.3d 1379, 1383 (Fed. Cir. 2011) (“[W]e have jurisdiction
to determine whether the Veterans Court’s error is
harmless.”); see also Szemraj v. Principi, 357 F.3d 1370,
1375 (Fed. Cir. 2004) (exercising jurisdiction and holding
“the [Veterans Court] misunderstood our decision in
Roberson,” but affirming on the grounds of harmless error
“because Roberson has no application to the circumstances
of this case”).
Nor does Mapu, on which the dissent relies, state otherwise.
Mapu holds that this court has jurisdiction when
“‘material facts are not in dispute and the adoption of a
particular legal standard would dictate the outcome of the
equitable tolling claim.’” Mapu, 397 F.3d at 1379 (quoting
Bailey v. Principi, 351 F.3d 1381, 1384 (Fed. Cir. 2003)).
It does not go further and say that this court only has
jurisdiction over outcome dispositive issues. To the contrary,
the Mapu and Bailey standard has been broadly
interpreted to mean that this court has jurisdiction to
determine “whether there is an error of law” in a Veterans
Court decision, Szemraj, 357 F.3d at 1375, and has been
repeatedly cited to support the exercise of jurisdiction, not
its absence. See, e.g., Brandenburg v. Principi, 371 F.3d
1362, 1363–64 (Fed. Cir. 2004); Nelson, 489 F.3d at 1383.
In stating that “‘harmless error’ plays no part in this
case,” Dissenting Op. at 2 n. 1, the dissent misapprehends
the jurisdictional analysis. The point is not that the error
here is harmless, but that this court’s jurisdiction under
§ 7292(a) does not depend on whether the asserted error
is outcome determinative.

6 The Secretary also argues that Ms. Sneed waived
her attorney abandonment argument because “she did not
SNEED v. SHINSEKI 9

II.
“[A] litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (citing Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)). In Irwin, the Supreme Court established a rebuttable presumption that
equitable tolling applies “to suits against the Government, in the same way that it is applicable to private suits,” unless Congress has expressed its intent to the contrary. 498 U.S. at 95–96.
In 1998, this court applied Irwin to hold that the 120-day limit for filing appeals to the Veterans Court was subject to equitable tolling.7 Bailey v. West, 160 F.3d

explicitly raise the issue of attorney abandonment as a basis for equitable tolling, nor did she cite Holland or Maples.” Appellee’s Br. 16 (citing Holland v. Florida, 560 U.S. 631 (2010); Maples v. Thomas, 132 S. Ct. 912 (2012)).
However, preserving an argument for appeal “does not demand the incantation of particular words; rather, it requires that the lower court be fairly put on notice as to the substance of the issue.” Nelson v. Adams USA, Inc., 529 U.S. 460, 469 (2000). Ms. Sneed’s brief to the Veterans
Court argued:
Attorney Eagle’s failure to file a Notice of Appeal[,]
. . . the erroneous advisement of the due
date[,] . . . as well as the fact that attorney Eagle
did not notify Ms. Sneed that she would not be
representing her until the day before the Notice of
Appeal was due, constitute extraordinary circumstances
beyond Ms. Sneed’s control.
J.A. 37.

The same argument was also made in Ms. Sneed’s pro se motion for reconsideration, J.A. 53–54, and in the September 1 and 7, 2001, letters filed pro se with the Veterans Court, J.A. 40–43. Here, Ms. Sneed’s attorney abandonment arguments were adequately preserved
for appeal.

7 38 U.S.C. § 7266(a) provides:
10 SNEED v. SHINSEKI

1360, 1368 (Fed. Cir. 1998) (en banc) (citing 38 U.S.C. § 7266(a)). Over time, equitable tolling was held to be applicable when: (1) a VA official failed to send the veteran’s
notice of appeal to the Veterans Court, id.; (2) a claimant misfiled his request for reconsideration to the Board, Jaquay v. Principi, 304 F.3d 1276, 1278 (Fed. Cir. 2002); (3) a veteran misfiled his notice of appeal at the VA regional office, Santana-Venegas, 314 F.3d at 1298, or filed an incorrect form, Bailey v. Principi, 351 F.3d 1381, 1384–85 (Fed. Cir. 2003); and (4) when a claimant suffered from mental or physical illness that rendered him incapable of handling his own affairs or functioning in society, Barrett v. Principi, 363 F.3d 1316, 1317 (Fed. Cir.
2004); Arbas v. Nicholson, 403 F.3d 1379, 1381 (Fed. Cir. 2005).
The en banc decision of Henderson v. Shinseki reversed this line of cases, and held that the filing deadline in § 7266(a) could not be equitably tolled. 589 F.3d 1201, 1220 (Fed. Cir. 2009) (en banc), rev’d, 131 S. Ct. 1197 (2011). It relied on Bowles v. Russell, where the Supreme
Court held that deadlines for filing ordinary civil appeals were jurisdictional and thus not subject to equitable tolling. Id. at 1203 (citing Bowles v. Russell, 551 U.S. 205 (2007)). The Supreme Court granted Mr. Henderson’s petition for a writ of certiorari and reversed. Henderson v.
Shinseki, 131 S. Ct. 1197 (2011). The Court distinguished Bowles as applying to only Article III courts, whereas the Veterans Court was an Article I tribunal. Id. at 1204.
The Court further explained: “The contrast between ordinary civil litigation” and the system for adjudicating veterans benefits claims “could hardly be more dramatic.” Id. at 1205–06. “Rigid jurisdictional treatment” of In order to obtain review by the Court of Appeals for Veterans Claims of a final decision of the Board of Veterans’ Appeals, a person adversely affected by such decision shall file a notice of appeal with the Court within 120 days after the date on
which notice of the decision is mailed pursuant to section 7104(e) of this title.
SNEED v. SHINSEKI 11

§ 7266(a) “would clash sharply with” the flexible, proclaimant veterans benefits scheme. Id. at 1206. Because the parties had not appealed the question of whether § 7266(a) was subject to equitable tolling, the Court left that issue for the lower courts to decide on remand. Not
long after, the Veterans Court held equitable tolling applied to § 7266(a). Bove, 25 Vet. App. 136. In so holding, the Veterans Court reasoned that the Bailey line of cases was reinstated by the Supreme Court’s decision in Henderson. Id. at 139.

III.
The issue in this case is whether the Veterans Court
applied an improperly narrow standard in rejecting Ms.
Sneed’s equitable tolling argument. The Veterans Court
began its equitable tolling analysis by reciting Bove’s
open-ended equitable tolling standard: whether “‘circumstances
precluded a timely filing despite the exercise of
due diligence.’” Veterans Court Decision at *3 (quoting
Bove, 25 Vet. App. at 140). It recounted three instances in
which this court has applied equitable tolling: “‘(1) a
mental illness rendering one incapable of handling one’s
own affairs or other extraordinary circumstances beyond
one’s control, (2) reliance on the incorrect statement of a
VA official, or (3) a misfiling at the regional office or the
Board.’” Veterans Court Decision at *3–4 (quoting Bove,
25 Vet. App. at 140). The Veterans Court denied equitable
tolling, stating that the circumstances preceding Ms.
Sneed’s late filing “are not extraordinary, but rather
evidence general negligence or procrastination.” Veterans
Court Decision at *4. However, the Veterans Court did
not consider whether Ms. Eagle’s abrupt withdrawal only
one day before the filing deadline constituted extraordinary
circumstances. Rather, it summarily concluded that
“Attorney Eagle is not a VA official” Id. at *4 n.1 (citing
Bailey v. West, 160 F.3d 1360 (holding a veteran’s reliance
on the incorrect statement of a VA official could justify
equitable tolling)).
In so reasoning, the Veterans Court improperly treated
the listed examples—including reliance on the incorrect
statement of a VA official—as the exclusive
“parameters” of equitable tolling. Id. at *3. Equitable
12 SNEED v. SHINSEKI

tolling is not “limited to a small and closed set of factual
patterns.” Mapu v. Nicholson, 397 F.3d 1375, 1380 (Fed.
Cir. 2005). This court has “rejected the approach of
looking to whether a particular case falls within the facts
specifically identified in Irwin or one of our prior cases.”
Id. Rather, courts acting in equity have emphasized “the
need for flexibility” and “for avoiding mechanical rules,”
and have proceeded on a “case-by-case basis.” Holland v.
Florida, 130 S. Ct. 2549, 2563 (2010) (internal quotation
marks and citation omitted). The Veterans Court’s analysis
focused too narrowly on whether Ms. Sneed’s case fell
into one of the factual patterns of past cases considering
§ 7266(a), and improperly failed to consider whether
attorney misconduct—as opposed to misconduct by a VA
official—may constitute a basis for equitable tolling.8
The Supreme Court has held that attorney abandonment
may constitute a basis for equitable tolling.
“[U]nprofessional attorney conduct may, in certain circumstances,
prove ‘egregious’ and can be ‘extraordinary,’”
thus forming a basis for equitable tolling. Holland, 130 S.
Ct. at 2564 (citations omitted). In contrast, “a garden
variety claim of excusable neglect, such as a simple miscalculation
that leads a lawyer to miss a filing deadline
does not warrant equitable tolling.” Id. at 2564 (internal
quotation marks and citations omitted). The Court later
emphasized the difference between mere attorney negligence
and attorney abandonment. Maples v. Thomas, 132
S. Ct. 912, 924–27 (2012). In the latter, a “counsel’s neartotal
failure to communicate with petitioner or to respond
to [the client’s] many inquiries and requests over a period
8 Although it is improper to apply overly rigid
standards, “courts of equity can and do draw upon decisions
made in other similar cases for guidance.” Holland,
130 S. Ct. at 2563. Such guidance may be found in cases
other than veterans cases. See, e.g., Barrett, 363 F.3d at
1319–21 (relying on decisions of the Supreme Court and
regional circuit courts in concluding that mental illness
may justify equitable tolling); Arbas, 403 F.3d at 1381–82
(citing regional circuit court and district court decisions
regarding physical illness).
SNEED v. SHINSEKI 13

of several years” may amount to extraordinary circumstances
beyond the client’s control. Id. at 923 (internal
quotation marks and citation omitted). This differs from
the rule applicable to mere attorney negligence—which is
attributable to the client pursuant to general agency
principles—because “[c]ommon sense dictates that a
litigant cannot be held constructively responsible for the
conduct of an attorney who is not operating as his agent
in any meaningful sense of that word.” Id. (internal
quotation marks and citation omitted).
According to the Secretary, the Veterans Court Decision
did not foreclose attorney abandonment as a basis for
equitable tolling, but rather applied the broad standard
articulated in Bove that equitable tolling is appropriate
“‘when circumstances precluded a timely filing despite the
exercise of due diligence.’” Veterans Court Decision at *3
(quoting Bove, 25 Vet. App. at 140). The Veterans Court’s
analysis, which dismissed the significance of Ms. Eagle’s
conduct because she was not a VA official, belies this
contention. Additionally, other Veterans Court cases
appear to foreclose attorney abandonment as a basis for
equitable tolling. For instance, the Veterans Court addressed
attorney abandonment in Metras v. Shinseki,
2013 U.S. App. Vet. Claims LEXIS 1012 (Vet. App. June
26, 2013) (unpublished). In Metras, the Veterans Court
held Holland and Maples were distinguishable in part
because, unlike in Maples and Holland (both habeas
corpus cases), “neither Mr. Metras’s liberty nor his person
is at risk.”9 Metras, 2013 U.S. App. Vet. Claims LEXIS

9 The other reasons for distinguishing Maples and
Holland were: (1) the agent in Metras was a veterans
service organization, not an attorney, and (2) Metras was
notified over a month before the relevant filing deadline.
Metras, 2013 U.S. App. Vet. Claims LEXIS 1012, at *23.
The dissent cites Metras to show that “the Veterans Court
has long recognized” that attorney abandonment can
justify equitably tolling the filing deadline in § 7266.
Dissenting Op. at 5–6. Metras, however, strongly suggests
that attorney abandonment principles do not apply
in veterans benefits cases.
14 SNEED v. SHINSEKI

1012, at *23. This reasoning suggests that attorney
abandonment could never justify equitable tolling in
veterans benefits cases, where the litigant’s liberty and
person are not at risk.10
Contrary to this reasoning, the equitable principles
invoked in Holland and Maples apply just as strongly in
veterans cases as they do in the habeas corpus context.
Although benefits cases may not threaten veterans’
liberty or persons, veterans risked both life and liberty in
their military service to this country. The veterans benefits
scheme is thus “imbued with special beneficence from
a grateful sovereign.” Bailey, 160 F.3d at 1370 (Michel, J.,
concurring). In holding equitable tolling applied to
§ 7266(a), the Bailey court reasoned that the Supreme
Court had extended a form of equitable tolling to prisoners
filing for habeas corpus relief, and this court was
“loath to treat less worthily those who have served the
country.” Id. at 1368 (citing Houston v. Lack, 487 U.S. 266
(1988)). The special treatment Congress reserved for
veterans requires that courts lend veterans at least the
same degree of solicitude as that bestowed on habeas
petitioners. See Henderson, 131 S. Ct. at 1205 (quoting
United States v. Oregon, 366 U.S. 643, 647 (1961)) (noting

10 Other cases also suggest that the Veterans Court
does not consider attorney abandonment to be a basis for
equitable tolling in veterans cases. See, e.g., Jackson v.
Shinseki, No. 11-1236, 2012 WL 2874393, at *2 (Vet. App.
July 16, 2012) (unpublished) (“To the extent that an
attorney may be incompetent, the appellant’s remedy may
be against the attorney in State court in a claim for legal
malpractice.”). Although an attorney’s garden variety
neglect is not a basis for equitable tolling, the Veterans
Court has gone further and said that “[f]iling delays due
to inattentive representation are not one of the circumstances
under which the Court will consider equitable
tolling.” Rose v. Shinseki, No. 11-1153, 2012 WL 2856470,
at *1 (Vet. App. July 12, 2012) (unpublished) (emphasis
added). Contrary to the dissent’s conclusion, it is far from
“apparent . . . that the Veterans Court already recognizes
attorney abandonment as a ground for equitable tolling.”
Dissenting Op. at 6.
SNEED v. SHINSEKI 15

Congress’ “‘long standing’” solicitude for veterans). The
Supreme Court held in Maples and Holland that habeas
petitioners may benefit from equitable tolling in cases of
attorney abandonment, and this court concludes that the
same protection extends to veterans.
The Secretary nevertheless argues that attorney
abandonment cannot justify equitable tolling “in the civil
context” because litigants in such cases do not enjoy the
constitutional right to the effective assistance of counsel.
Appellee’s Br. 17 n.6 (citing Pitts v. Shinseki, 700 F.3d
1279, 1286 (Fed. Cir. 2012) (holding “the right to the
effective assistance of counsel does not apply to proceedings
before the [Veterans Court]”)). However, a petition
for a writ of habeas corpus is itself a civil action, Woodford
v. Ngo, 548 U.S. 81, 90–91 & n.2 (2006), to which the
Sixth Amendment right to counsel does not apply, U.S.
Const. amend. 6 (ensuring “the Assistance of Counsel” in
“all criminal prosecutions”); see also Coleman v. Thompson,
501 U.S. 722, 752 (1991) (“There is no constitutional
right to an attorney in state post-conviction proceedings.”).
Furthermore, the Supreme Court did not base its
decisions in Maples and Holland on the right to effective
assistance of counsel, but rather on “equitable principles”
in general. See Holland, 130 S. Ct. at 2563 (“[W]e have
followed a tradition in which courts of equity have sought
to relieve hardships which, from time to time, arise from a
hard and fast adherence to more absolute legal rules.”)
(internal quotation marks and citation omitted); Maples,
132 S. Ct. at 915.
Holland and Maples averted hardships caused by “a
hard and fast adherence” to general agency principles by
holding that “a client cannot be charged with the acts or
omissions of an attorney who has abandoned him.” Maples,
132 S. Ct. at 924; see also Holland, 130 S. Ct. at 2568
(Alito, J., concurring). <b>The hardship of default resulting from attorney abandonment is particularly difficult to bear in the context of an appeal to the Veterans Court,
which is often the veteran’s first opportunity to be represented by an attorney. See 38 U.S.C. § 5904(c)(1). Accordingly, pursuant to the principles of Maples and Holland,
16 SNEED v. SHINSEKI

attorney abandonment may justify equitably tolling the filing deadline in appeals to the Veterans Court.</b>

CONCLUSION
For the foregoing reasons, the Veterans Court’s decision dismissing Ms. Sneed’s appeal is vacated, and the case is remanded for further proceedings consistent with this opinion.
VACATED AND REMANDED

 

United States Court of Appeals for the Federal Circuit
______________________
MARVA J. SNEED,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7029
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 11-2715, Judge William A. Moorman.
______________________
PROST, Circuit Judge, dissenting.
The majority’s pronouncements on attorney abandonment are pure dicta; this appeal is plainly beyond our jurisdiction. I therefore respectfully dissent.

I
This case is not factually complex. Ms. Sneed contacted
an attorney, Katrina Eagle, with the intent of
retaining her in her appeal to the Veterans Court. After
she contacted Ms. Eagle’s office several times, Ms. Sneed
received a formal letter from Ms. Eagle on August 2, 2011,
informing her that Ms. Eagle could not represent her
because her benefits claim was meritless. In the letter,
Ms. Eagle erroneously informed Ms. Sneed that her
2 SNEED v. SHINSEKI

Notice of Appeal (“NOA”) was due August 5, 2011, instead
of August 3, 2011. After receiving Ms. Eagle’s letter, Ms.
Sneed did not file her NOA by August 3, 2011. Nor did
she file it by the day Ms. Eagle told her it was due, August
5, 2011. Instead, Ms. Sneed waited thirty days after
receiving Ms. Eagle’s letter to finally fax her handwritten
one-page NOA to the Veterans Court. Thus, Ms. Sneed’s
NOA was filed twenty-nine days late.
The Veterans Court rejected Ms. Sneed’s request to
excuse her untimely NOA. It found that Ms. Sneed knew
that she did not need “an attorney to proceed before the
Court,” and “regardless of whether Attorney Eagle misinformed
[Ms. Sneed] of the NOA due date by two days,
[Ms. Sneed] filed her NOA 29 days after it had been due.”
J.A. 49. Those facts, the Veterans Court concluded,
demonstrated that “the circumstances leading up to [Ms.
Sneed’s] late NOA are not extraordinary, but rather
evidence general negligence or procrastination.” Id.

II
The majority insists, however, that the Veterans
Court committed legal error by not recognizing that
attorney abandonment can be a ground for equitable
tolling of an NOA deadline. But we have jurisdiction
when an appellant urges alteration of the standard for
equitable tolling only “when the material facts are not in
dispute and the adoption of a particular legal standard
would dictate the outcome of the equitable tolling claim.”
Mapu v. Nicholson, 397 F.3d 1375, 1379 (Fed. Cir. 2005)
(emphasis added). The attorney abandonment doctrine
does not “dictate the outcome of the equitable tolling
claim” here. It was irrelevant to the Veterans Court’s
disposition of this case and should be to ours.1
1 The majority claims that we still have jurisdiction
over this appeal because we may determine whether an
SNEED v. SHINSEKI 3

Ms. Sneed argued to the Veterans Court that Ms. Eagle’s
actions excused two days of the twenty-nine-day
delay in the filing of her NOA. The Veterans Court recognized
that equitable tolling was improper here because
Ms. Sneed provided no explanation for the other twentyseven
days of the delay. Indeed, diligence or excuse is
required for the entire period of delay to justify equitable
tolling—explaining just two days of a twenty-nine-day
delay in filing an NOA is insufficient as a matter of law.
See Holland v. Florida, 130 S. Ct. 2549, 2565 (2010); see
also Phillips v. Principi, 18 F. App’x 862, 865 (Fed. Cir.
2001) (collecting cases and explaining why a temporary
external impediment lasting for a time shorter than the
requested tolling period cannot justify equitable tolling).
And diligence required for equitable tolling is reasonable
diligence in the pursuit of an appeal—not diligence in
pursuit of a new lawyer once abandoned by another. See
Holland, 130 S. Ct. at 2565; see also Maples v. Thomas,
132 S. Ct. 912, 927 (2012). The Veterans Court recognized
that fact and denied Ms. Sneed’s request for equitable
tolling because she had no justification for the entire
period of delay in the filing of her NOA.2
error by the Veterans Court was “harmless error (and
thus not outcome determinative).” Majority Op. at 8 n.5.
But “harmless error” plays no part in this case. “Harmless
error” requires error, which the Veterans Court did
not commit. The court did not apply the attorney abandonment
doctrine because that doctrine was unnecessary
to conclude that Ms. Sneed’s month-long delay in filing
her NOA was not caused by Ms. Eagle but her own general
negligence and procrastination. There was nothing
incorrect about that factual conclusion.
2 The majority asserts that the Veterans Court may
have believed Ms. Sneed in fact exercised due diligence
because the court made the following statement to con4
SNEED v. SHINSEKI

Even if we were to improperly review the factual findings
here, it should be quite clear that Ms. Eagle’s actions
could not justify tolling Ms. Sneed’s NOA deadline for
twenty-nine days. There is no reason apparent in the
record or presented by Ms. Sneed to explain why she
could not have faxed her handwritten one-page NOA to
the Veterans Court in any of the thirty days following the
receipt of Ms. Eagle’s letter. Ms. Sneed had access to a
fax machine during that time, see J.A 19-26; she knew the
Veterans Court’s fax number and the NOA deadline from
the Board’s decision, J.A. 14; she was informed by Ms.
Eagle that the NOA deadline was no later than August 5,
2011, J.A. 26; she was told in writing by Ms. Eagle that
she could file her appeal herself, id.; and the Board’s
decision informed her of additional resources she could
consult to help in prosecuting her appeal on her own, J.A.
14—resources that she apparently waited thirty days to
use and eventually lead her to file her NOA pro se.
Thus, it is quite apparent that, as the Veterans Court
found, the untimeliness of Ms. Sneed’s NOA was due to
her “general negligence or procrastination”—nothing
clude its opinion: “Thus the appellant fails to demonstrate
that, despite her exercise of due diligence, circumstances
prevented her from timely filing her NOA. See Bove and
Bailey, both supra.” The majority’s interpretation of this
statement is remarkable. The Veterans Court’s statement
was simply a recitation of the legal standard from
Bove v. Shinseki, 25 Vet. App. 136 (2011), that Ms. Sneed
did not satisfy. Recounting the standard does not mean
that the Veterans Court believed an element to be satisfied.
There is no confusion about the Veterans Court’s
findings here: equitable tolling was inappropriate because
Ms. Sneed knew she could file her appeal herself and
failed to adequately show that circumstances beyond her
control prevented her doing so in a timely manner.
SNEED v. SHINSEKI 5

more. Ms. Sneed had argued to the Veterans Court that,
under the standard enunciated in Bove, the “circumstances
[of this case] do not indicate ‘general negligence or
procrastination.’” J.A. 37 (quoting Bove). The Veterans
Court simply disagreed with Ms. Sneed on how to apply
the facts to the law she advanced in her briefing—a
decision over which we have no jurisdiction. 38 U.S.C.
§ 7292(d)(2).3

III
Nevertheless, the majority insists on interpreting the
Veterans Court’s opinion in a way that allows it to correct
what they see as a persistent—yet unspoken—policy of
the Veterans Court to not recognize attorney misconduct
as a basis for equitable tolling. Again, the majority overlooks
the facts.
Ms. Sneed has conceded that the Veterans Court has
“at least acknowledge[d] the possibility that attorney
abandonment may be a ground for tolling the deadline to
appeal to the Veterans Court.” Appellant’s Rule 28(j)
Letter, Aug. 21, 2013, ECF No. 44. And the Veterans
Court has long recognized that egregious attorney mis-
3 The majority nevertheless declares that we have
jurisdiction over her appeal because the “Veterans Court
relied on [38 U.S.C.] § 7266(a) in dismissing Ms. Sneed’s
[request for equitable tolling]” and Ms. Sneed challenges
the application of that “provision” by the Veterans Court,
Majority Op. at 8 n.5. That statement reflects a fundamental
misconception of the scope of our jurisdiction. If it
were true, then we would have jurisdiction over any
equitable tolling decision by the Veterans Court. But we
do not have such limitless jurisdiction. Section 7292(d)(2)
expressly precludes us from reviewing any “challenge to a
factual determination” or “to a law or regulation as applied
to the facts of a particular case.” 38 U.S.C. § 7292.
6 SNEED v. SHINSEKI

conduct—including abandonment—can justify equitable
tolling of the NOA deadline and has applied that principle
to equitably toll an NOA deadline for a veteran who was
effectively abandoned by his counsel. See Nelson v. Nicholson, 19 Vet. App. 548, 553-54 (2006) aff’d, 489 F.3d 1380 (Fed. Cir. 2007); Metras v. Shinseki, No. 12-2488, 2013 WL 3225068 (Vet. App. June 26, 2013) (denying equitable tolling after holding that the attorney abandonment standard from Maples and Holland did not apply to the facts of the case); Johnson v. Shinseki, No. 09-2407, (Vet. App. Mar. 20, 2012) (unpublished) (Appellee’s Rule 28(j) Letter attachment, Sept. 11, 2013, ECF No. 47)
(finding attorney abandonment to be egregious misconduct justifying equitable tolling). Remarkably, that “egregious misconduct” standard is the same one recognized by the Supreme Court in Holland and adopted by the majority here. See Majority Op. at 12; Holland, 130 S. Ct. at 2564 (explaining that equitable tolling may be justified by “unprofessional attorney conduct” that proves “egregious”). It ought to be apparent, therefore, that the Veterans Court already recognizes attorney abandonment as a ground for equitable tolling. The majority’s concerns and holding are unwarranted.

IV
Like the majority, I recognize the sacrifices that veterans
have made for our country. And I agree that they
are “imbued with special beneficence” for their service to a
grateful nation. Majority Op. at 14 (quoting Bailey v.
West, 160 F.3d 1360, 1370 (Fed. Cir. 1998) (en banc)).
However, the provision of those benefits is a matter
reserved to Congress. Likewise, the scope of our review of
decisions relating to those benefits is determined exclusively
by Congress. We should not evade the restrictions
imposed on our jurisdiction by § 7292(d)(2) in a way that
unnecessarily diverts the limited resources of the Veterans
Court. I therefore cannot join the majority’s opinion.

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