Veteranclaims’s Blog

September 14, 2016

FedCir, Aldrideg v. McDonald, No. 2015-7115 (Decided: September 9, 2016); Untimely BVA appeal; 38 U.S.C. § 7266(a); equitable tolling; Holland v. Florida, 560 U.S. 631, 649 (2010) ; Some Extraordinary Circumstance;

Excerpt from decision below:

38 U.S.C. § 7266(a) (providing that a person adversely affected by a final decision of the Board “shall file a notice of appeal with the Court within 120 days after the date on which notice of the decision is mailed”). ”

========================

“The Veterans Court began its consideration of Mr. Aldridge’s request by noting that the Supreme Court has 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’ and prevented timely filing.” Aldridge, 27 Vet. App. at 393 (quoting Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005))).”

========================

“The requirement of prong two of Holland—that
an appellant demonstrate that “‘some extraordinary
circumstance stood in his way’ and prevented timely
ALDRIDGE 8 v. MCDONALD
filing,” 560 U.S. at 649 (quoting Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005))—necessarily carries with it an
element of causation. That is because when something
“stands in the way” and “prevents” another thing from
happening, it is “causing” that other thing not to happen.
In fact, this is precisely what the Supreme Court made
clear this year in Menominee Indian Tribe of Wisconsin v.
United States, 136 S. Ct. 750 (2016). The Court stated:
“We . . . reaffirm 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.” Id. at 756 (first emphasis added).
Moreover, decisions of this court are consistent with what
the Supreme Court said in Menominee. See, e.g., Toomer
v. McDonald, 783 F.3d 1229, 1238 (Fed. Cir. 2015) (“[T]his
court has made clear that ‘to benefit from equitable
tolling, . . . a claimant [must] demonstrate three elements:
(1) extraordinary circumstance; (2) due diligence; and
(3) causation.’” (second alteration in original) (quoting
Checo v. Shinseki, 743 F.3d 1373, 1378 (Fed. Cir. 2014))).
In sum, the Veterans Court 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.””

=========================

United States Court of Appeals for the Federal Circuit
______________________
MARION ALDRIDGE,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7115
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-3656, Judge Alan G. Lance,
Sr., Judge Robert N. Davis, Judge William Greenberg.
______________________
Decided: September 9, 2016
______________________
NATALIE A. BENNETT, McDermott, Will & Emery LLP,
Washington, DC, argued for claimant-appellant. Also
represented by LEIGH J. MARTINSON, Boston, MA.
IGOR HELMAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented
by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
MARTIN F. HOCKEY, JR; BRIAN D. GRIFFIN, JONATHAN
KRISCH, Office of General Counsel, United States Department
of Veterans Affairs, Washington, DC.
______________________
ALDRIDGE 2 v. MCDONALD
Before NEWMAN, SCHALL, and TARANTO, Circuit Judges.
Opinion for the court filed by Circuit Judge SCHALL.
Dissenting opinion filed by Circuit Judge NEWMAN.
SCHALL, Circuit Judge.
Marion Aldridge appeals the final decision of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) that dismissed as untimely his appeal
from a final decision of the Board of Veterans Appeals
(“Board”). Aldridge v. McDonald, 27 Vet. App. 392, 394
(Vet. App. 2015). We affirm.
BACKGROUND
Mr. Aldridge served on active duty in the United
States Marine Corps from January of 1984 to May of
1992. On December 24, 2013, the Board denied his claim
for a disability rating higher than 10% for his right-knee
patellofemoral syndrome and his claim for a disability
rating higher than 10% for his left-knee patellofemoral
syndrome. J.A. 59–60. The Board informed Mr. Aldridge
that, if he wished to challenge its decision, he had 120
days to file a notice of appeal with the Veterans Court.
J.A. 69; see also 38 U.S.C. § 7266(a) (providing that a
person adversely affected by a final decision of the Board
“shall file a notice of appeal with the Court within 120
days after the date on which notice of the decision is
mailed”). Any appeal by Mr. Aldridge thus was required
to be filed by April 23, 2014.
The Veterans Court received a notice of appeal from
Mr. Aldridge on October 27, 2014, more than six months
after it was due. J.A. 75. After the Secretary filed a
motion to dismiss the appeal, the Veterans Court ordered
Mr. Aldridge to explain why his appeal should not be
dismissed as untimely. Responding to the Veterans
Court’s order, Mr. Aldridge acknowledged that his appeal
was late under § 7266(a). He stated, however, that deaths
ALDRIDGE v. MCDONALD 3
in his family and his resulting depressive state had prevented
him from timely filing his notice of appeal. Specifically,
Mr. Aldridge recounted in an affidavit that his
mother died on September 27, 2013; that his daughter
gave birth to a stillborn child on December 16, 2013; and
that his sister passed away on January 14, 2014. J.A. 34–
35. Mr. Aldridge averred that he was “severely depressed
for at least nine months” following the death of his mother
and that, because of his depressive state and his focus
on his family, he did not appreciate that he was required
to file a notice of appeal by April 23, 2014. J.A. 37.
Stating that it was “around the summer of 2014” that he
recovered from his depressive state and was able to
consider the need to file his appeal, J.A. 37, he asked the
Veterans Court to apply the doctrine of equitable tolling
and thereby deem his October 27 notice of appeal timely,
see J.A. 31.
The Veterans Court began its consideration of Mr. Aldridge’s
request by noting that the Supreme Court has
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’ and prevented timely
filing.” Aldridge, 27 Vet. App. at 393 (quoting Holland v.
Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005))). Focusing on the second
prong of the Holland test, the Veterans Court determined
that Mr. Aldridge had failed to demonstrate that the
deaths of his mother and sister and the stillborn birth of
his grandchild “themselves directly or indirectly affected
the timely filing of his appeal.” Aldridge, 27 Vet. App. at
393. The court arrived at this determination after noting
that Mr. Aldridge stated that, during the period of his
depression, he closed the estates of his deceased mother
and sister, became his elderly father’s primary caregiver,
maintained his job as a desk clerk at a Veterans Affairs
hospital, and attempted to hire a law firm to represent
ALDRIDGE 4 v. MCDONALD
him in his appeal. Id. “Given these facts,” the court
stated, it was “unconvinced that Mr. Aldridge’s depression
rendered him incapable of handling his affairs or otherwise
directly or indirectly prevented his appeal from being
timely filed.” Id. Having concluded that Mr. Aldridge
had failed to demonstrate “facts sufficient to justify equitable
tolling,” the court dismissed his appeal. Id. at 393,
394. One judge dissented on the ground that, in his view,
the facts presented by Mr. Aldridge justified equitable
tolling. Id. at 396 (Greenberg, J., dissenting). Mr. Aldridge
has timely appealed from the dismissal of his
appeal.
DISCUSSION
Our ability to review a decision of the Veterans Court
is limited. Pursuant to 38 U.S.C. § 7292(a), we may
review “the validity of a decision of the 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 Court in making the
decision.” We have exclusive jurisdiction “to review and
decide any challenge to the validity of any statute or
regulation or any interpretation thereof brought under
[38 U.S.C. § 7292], and to interpret constitutional and
statutory provisions, to the extent presented and necessary
to a decision.” 38 U.S.C. § 7292(c). However, except
to the extent that an appeal presents a constitutional
issue, we “may not review (A) a challenge to a factual
determination, or (B) a challenge to a law or regulation as
applied to the facts of a particular case.” Id. § 7292(d)(2).
I.
Mr. Aldridge makes three arguments on appeal.
First, he contends that, in denying him equitable tolling,
the Veterans Court applied a legal standard that is inconsistent
with the decision of the Supreme Court in Holland.
See Appellant Opening Br. 17–18. Second, he
argues that application of the correct legal standard to
ALDRIDGE v. MCDONALD 5
what he characterizes as “the undisputed facts” of the
case establishes that he is entitled to equitable tolling.
See id. at 18–19. And third, he urges that, even if the
Veterans Court did not apply an incorrect legal standard,
it still erred as a matter of law when it determined that
no “extraordinary circumstance stood in his way” so as to
prevent timely filing of his notice of appeal. Id. at 19–20.
Specifically, Mr. Aldridge argues that the court necessarily
took an incorrectly narrow view of what constitutes an
“extraordinary circumstance” when it determined that,
because he was able to address certain matters in his life
when he claimed he was in a depressive state, an “extraordinary
circumstance” did not exist. Id. According to
Mr. Aldridge, “[n]othing in the case law forecloses the
possibility that [his] circumstances qualify as a basis for
equitable tolling, even if he was not fully incapacitated by
his grief.” Id. at 41.
We have jurisdiction to consider Mr. Aldridge’s first
argument—that the Veterans Court applied a legal
standard that is inconsistent with Supreme Court precedent—
because it represents a challenge to the Veterans
Court’s interpretation of a rule of law; namely, the rule as
to what must be shown to establish equitable tolling. We
do not reach Mr. Aldridge’s second argument because, as
set forth below, we conclude that the Veterans Court did
not apply an incorrect legal standard when it denied his
request for equitable tolling. Mr. Aldridge’s third argument
is beyond our jurisdiction. Although Mr. Aldridge
couches this argument in legal terms, urging that the
Veterans Court took an incorrectly narrow view of what
constitutes an “extraordinary circumstance,” the argument
ultimately seeks a fact-based analysis that we may
not undertake. Cook v. Principi, 353 F.3d 937, 937–38
(Fed. Cir. 2003) (dismissing for lack of jurisdiction because
the requested review “ultimately reduce[d] to an
application of the law to facts,” where the veteran “present[
ed] his argument as a legal premise couched in terms
ALDRIDGE 6 v. MCDONALD
of statutory interpretation”). What the Veterans Court
did was simply look at the various tasks that Mr. Aldridge
said he performed during the period he was depressed
and conclude that his ability to perform those tasks
indicated that he was not confronted with a Holland-like
“extraordinary circumstance.” In other words, contrary to
Mr. Aldridge’s assertion, the court did not impose a per se
requirement of full incapacitation. The court merely
applied law to fact, and review of that decision is not
within our jurisdiction. See Leonard v. Gober, 223 F.3d
1374, 1375–76 (Fed. Cir. 2000) (dismissing appeal because
“we lack[ed] jurisdiction to consider the application of
equitable tolling” to the facts of the case, which included
determining whether untimely filing of the veteran’s
appeal was “not due to neglect but rather to events beyond
her control”); Sullivan v. McDonald, 815 F.3d 786,
789 (Fed. Cir. 2016) (explaining that “[w]e may not review
factual determinations or application of law to fact”
(citing 38 U.S.C. § 7292(d)(2))).
II.
We turn now to Mr. Aldridge’s argument that we have
jurisdiction to consider: his contention that, in denying
him equitable tolling, the Veterans Court applied a legal
standard that is inconsistent with the decision of the
Supreme Court in Holland. As noted, after citing the two pronged
test set forth in Holland and examining the facts
before it, the Veterans Court determined that Mr. Aldridge
had failed to demonstrate that the deaths of his
mother and sister and the stillborn birth of his grandchild
“themselves directly or indirectly affected the timely filing
of his appeal.” Aldridge, 27 Vet. App. at 393. On this
basis, the court concluded that Mr. Aldridge had failed to
demonstrate that he was confronted with an “extraordinary
circumstance,” as required by Holland, and it denied
him equitable tolling. Id. at 394. Mr. Aldridge argues
that the Veterans Court’s use of a causation analysis (i.e.,
ALDRIDGE v. MCDONALD 7
“directly or indirectly affected”) was contrary to Holland.
He states:
Instead of requiring the party petitioning for
equitable relief to show that the missed deadline
was a “but for” consequence of the extraordinary
circumstances, the Supreme Court [in Holland]
imposed a simpler paradigm. The legal standard
that was adopted, “some extraordinary circumstance
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. This distinction is
critical in this case, where Mr. Aldridge faces a
serious roadblock, or impediment, to timely filing.
Appellant Opening Br. 28 (second alteration in original).
Mr. Aldridge elaborates that the Veterans Court’s use of
what he refers to as “a standalone ‘causation’ prong”
placed “a heavier burden on the veteran than showing
some threshold connection between extraordinary circumstances
and the untimely filing,” which, he says, is all
that Holland requires. See Appellant Reply Br. 3–4. Mr.
Aldridge states that he is “entitled to have the undisputed
evidence evaluated under the correct standard.” Appellant
Opening Br. 31. He concludes by asking us to remand
his case to the Veterans Court, adding that, on
remand, the court “should adhere to the language in
Holland and ask, simply, whether the deaths in [his]
family and his ensuing depression stood in his way and
prevented timely filing.” Id.
Having considered Mr. Aldridge’s arguments, we are
unable to agree that, in denying his request for equitable
tolling, the Veterans Court applied an incorrect legal
standard. The requirement of prong two of Holland—that
an appellant demonstrate that “‘some extraordinary
circumstance stood in his way’ and prevented timely
ALDRIDGE 8 v. MCDONALD
filing,” 560 U.S. at 649 (quoting Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005))—necessarily carries with it an
element of causation. That is because when something
“stands in the way” and “prevents” another thing from
happening, it is “causing” that other thing not to happen.
In fact, this is precisely what the Supreme Court made
clear this year in Menominee Indian Tribe of Wisconsin v.
United States, 136 S. Ct. 750 (2016). The Court stated:
“We . . . reaffirm 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.” Id. at 756 (first emphasis added).
Moreover, decisions of this court are consistent with what
the Supreme Court said in Menominee. See, e.g., Toomer
v. McDonald, 783 F.3d 1229, 1238 (Fed. Cir. 2015) (“[T]his
court has made clear that ‘to benefit from equitable
tolling, . . . a claimant [must] demonstrate three elements:
(1) extraordinary circumstance; (2) due diligence; and
(3) causation.’” (second alteration in original) (quoting
Checo v. Shinseki, 743 F.3d 1373, 1378 (Fed. Cir. 2014))).
In sum, the Veterans Court 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.”
CONCLUSION
For the foregoing reasons, the decision of the Veterans
Court dismissing Mr. Aldridge’s appeal as untimely is
affirmed.
AFFIRMED
COSTS
Each party shall bear its own costs.
United States Court of Appeals
for the Federal Circuit
______________________
MARION ALDRIDGE,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7115
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-3656, Judge Alan G. Lance,
Sr., Judge Robert N. Davis, Judge William Greenberg.
______________________
NEWMAN, Circuit Judge, dissenting.
This case puts judicial humanity to the test; the Federal
Circuit and the Court of Appeals for Veterans
Claims1 fail the test.
Mr. Aldridge was six months late in filing a notice of
appeal to the Veterans Court from a decision of the Board
of Veterans Appeals. He explained the deaths of his
mother, sister, and grandchild, all within four months.
He explained his grief, his depression, and his focus on
1 Aldridge v. McDonald, 27 Vet. App. 392 (Vet. App.
2015) (“Vet. Ct. Op.”).
ALDRIDGE 2 v. MCDONALD
the needs of his family as well as the legal obligations he
bore. He explained his role as caretaker for his elderly
father, his emotional support for his daughter after the
stillbirth of his grandchild, and his employment obligations.
He explained that his attention to the needs of
others overcame important matters in his own life, including
the timely filing of this notice of appeal.
The Veterans Court (by split decision) concluded that
the veteran was indeed capable of filing a timely notice of
appeal, stating that there is “no support in the jurisprudence
of either this Court, the U.S. Court of Appeals for
the Federal Circuit, or the Supreme Court that would
counsel the application of equitable tolling to the facts of
this case as they have been presented.” Vet. Ct. Op. at
394. The Veterans Court held that equitable tolling is not
available because Mr. Aldridge was not “rendered incapable
of handling his affairs.” Id. at 393.
My colleagues on this panel agree, explaining that
“Mr. Aldridge had failed to demonstrate that the deaths
in his family ‘themselves directly or indirectly affected the
timely filing of his appeal.’” Maj. Op. at 8. That is not the
correct standard. Equity requires not only justice and
fairness, but a realistic and humane perspective on how
the facts of life and death can affect human behavior.
Equity is “flexible jurisdiction . . . to protect all rights and
do justice to all concerned.” Providence Rubber Co. v.
Goodyear, 76 U.S. 805, 807 (1869).
Federal Circuit precedent has recognized that equitable
tolling is available in “extraordinary circumstances,”
and we have rejected the “suggestion that equitable
tolling is limited to a small and closed set of factual
patterns and that equitable tolling is precluded if a veteran’s
case does not fall within those patterns.” Mapu v.
Nicholson, 397 F.3d 1375, 1380 (Fed. Cir. 2005). In Sneed
v. Shinseki, 737 F.3d 719 (Fed. Cir. 2013), the court stated
that there are no “exclusive parameters of equitable
ALDRIDGE v. MCDONALD 3
tolling”), id. at 726, and held that “the Veterans Court’s
analysis focused too narrowly on whether [the] case fell
into one of the factual patterns of past cases considering
§ 7266(a),” id. at 724.
The pattern-seeking analysis that is here imposed
against Mr. Aldridge is exactly the kind of “improperly
narrow standard for equitable tolling” that was disclaimed
in Sneed. Id. at 724. Yet the court now rejects
this flexibility, instead stating that the “rule of law”
controls whether to “establish equitable tolling.” Maj. Op.
at 5. Equity is not controlled by the rules of law. Equity
includes not only what the law tells judges we may do, but
is the “power to moderate and temper the written law,
[subject] only to the law of nature and reason.” Samuel
Johnson, Dictionary of the English Language (1756).
Although the time limit for appeal from the BVA to
the Veterans Court is not “jurisdictional,” the VA argues
that only incapacity of the veteran is an acceptable
ground of equitable tolling. Precedent recognizes, but
does not require, incapacity. The Court instructs that
equity is adaptable to the circumstances:
[C]ourts of equity can and do draw upon decisions
made in other similar cases for guidance. Such
courts exercise judgment in light of prior precedent,
but with awareness of the fact that specific
circumstances, often hard to predict in advance,
could warrant special treatment in an appropriate
case.
Holland v. Florida, 560 U.S. 631, 650 (2010). Such “special
treatment” must take account of all of the circumstances
confronting the veteran, particularly in light of
the statutory (as well as equitable) requirements of special
consideration to veterans. It cannot be that because
Mr. Aldridge was not hospitalized for his depression, or
other manifestation of incapacity, equitable tolling is not
available.
ALDRIDGE 4 v. MCDONALD
Consideration of the circumstances includes considering
what is sought to be tolled, and the consequences of
tolling in the particular case:
“[Equitable relief] is not a matter of right in either
party; but is a matter of discretion in the Court;
not of arbitrary or capricious discretion, dependent
upon the mere pleasure of the Judge, but of
that sound, and reasonable discretion, which governs
itself, as far as it may, by general rules and
principles; but at the same time, which withholds
or grants relief, according to the circumstances of
each particular case, when these rules and principles
will not furnish any exact measure of justice
between the parties.”
Joseph Story, Equity Jurisprudence § 742 (1st ed. 1836).
The circumstances affecting Mr. Aldridge must be considered,
along with the consequences to the government. It
is relevant that no government or other entity was prejudiced
by this delay in appeal from the BVA; no records
were lost or destroyed; no witness departed; no military or
civilian action prejudiced. There is no monetary consequence,
no extra draw on governmental resources.
The government argues, and the panel majority
agrees, that since equitable tolling depends on the particular
facts, this court has no jurisdiction to review the
denial, no matter how strong the draw on equity. However,
“this court has jurisdiction to consider whether the
Veterans Court employed an improperly narrow standard
for equitable tolling under § 7266(a).” Sneed, 737 F.3d at
724. The court has also recognized that veterans are
“vulnerable litigants” who are typically unrepresented by
counsel. Dixon v. Shinseki, 741 F.3d 1367, 1376 (Fed. Cir.
2014). Mr. Aldridge was not represented by counsel at
the BVA, for counsel would routinely have filed a timely
notice of appeal.
ALDRIDGE v. MCDONALD 5
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.’” Bailey v. West, 160 F.3d
1360, 1370 (Fed. Cir. 1998).
The question before the court is whether the circumstances
excuse the untimely filing. Equity is no more
confined to a few narrow categories than are humanity,
reason, and justice. I respectfully dissent.

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