Marion Aldridge v. McDonald, Opinion Number 14-3656,
decided August 7, 2015 involves a case in the line of Henderson (stating the
120 days to file the NOA is not jurisdictional but procedural).
The veteran filed the notice of appeal six months after the
notice of appeal and explained that just prior to receiving the decision he
suffered the death of his mother and sister.
And just following the receipt of the decision he suffered the death of
his unborn granddaughter. He stated these
deaths (all within approximately 9 months) sent him into a depression and prevented
him from filing.
The Court granted the Secretary’s motion to dismiss the
appeal because the notice of appeal was untimely. The Court, while sympathetic, found equitable
tolling was not warranted. They noted he
was able to take care of his elderly father, close the estate of his mother and
sister, and maintain his job during this time.
Judge Greenberg wrote a dissent noting arguing the result
was too harsh and that equitable tolling should be granted.
This case shows that while equitable tolling is a
possibility, it is a limited one. It is
incumbent on veteran’s to file the notice of appeal within the prescribed
timeline or risk the appeal being dismissed.
Decided by Judge Lance and Davis. Dissent by Judge Grenberg.
No comments:
Post a Comment