William Rickett v. Eric K. Shinseki, Opinion Number 09-2493,
decided March 12, 2103, is a full panel decision on what happens when a veteran
has sent a notice of appeal to the VA within 120 days.
The veteran sent the NOA to the Office of General Counsel
within 120 days. More than 120 days
after the decision, he contacted the Court when he did not hear anything about
his notice of appeal. He recognized his
error and sent another notice of appeal along with an attached copy of the letter
to the OGC. The secretary filed a motion
to dismiss.
The Court, acting after the Henderson line of cases, found under this set of facts, equitable
tolling of the time to file the notice of appeal was allowed and warranted. The court looked toward the due diligence of the
veteran but said that the location element was relaxed in cases of timely
misfiling. However, they said they would
also look at the totality of circumstances to determine if equitable tolling
was warranted and weighted heavily the veteran’s efforts. The veteran argued the small print, multiple
addresses and lots of information on the notice of rights was confusing and
explained his error.
The Court accepted this explanation under this set of facts,
but seemed to attempt to circumscribe the ability to equitable toll.
Judge’s Lance and Hagel concurred saying that due diligence
was done if the NOA was sent to the RO or Board and also noted the veteran must
act quickly when notified of the misfiling.
Judge Schoelen wrote a concurrence impugning the idea of a
strict time line within which a veteran must recognize and correct the mistake. He noted the long period of time to get a
Board decision and stated the VA has created a system where a veteran is
conditioned to wait.
The case reveals the shift since Henderson but also the apparent desire to limit equitable tolling
to truly exceptional cases.
Per Curiam.
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