Threatt: Equitable Tolling Continued, Again or Moving Closer to a Bright Line Test

The Court issued an order in Threatt v. McDonald, Case Number 15-0835, on May 17, 2016 involved equitable tolling.

This involved a 2003 decision by the Board that prompted the veteran to write a letter to his U.S. Representative asking the representative to forward the letter to the Board showing dissatisfaction with the result and asking the Board to send him a copy of his service military medical records and duty stations.  A flurry of VA to veteran and veteran to VA letters (again via his representative) resulted. 

Years later the veteran ultimately appointed an attorney who appealed a subsequent decision to the Court.  When the attorney got the c-file she discovered the various letters from the veteran to the Board. She immediately appealed the 2003 decision to the Court.  The attorney argued the 2015 notice of appeal should be considered timely because his May 2003 correspondence to the RO constituted a timely misfiled appeal of the February 2003 decision.

The Court noted the Federal Circuit has found a veteran who misfiles the notice of appeal with the RO within the 120 day appeal period has pursued his judicial remedies and the 120 day period is tolled.  Additionally, a motion to reconsider to the Board tolls the 120 day period and the veteran receives a new 120 day period when the Board issues a denial of the motion or new decision.

The Court noted here the veteran submitted to the Board within 120 days a written statement disagreeing with the decision. The VA acted on the letter determining it was correspondence rather than a motion and reinformed the veteran of his appellate rights.  The Court noted this began a new 120 day period.  The veteran then submitted another letter to his RO stating his intent to appeal the 2003 decision to the CAVC.

The Secretary argued the filings were defective because they came from the veteran’s U.S. Representative.  The Court summarily rejected this argument.  The Secretary also argued the appellant didn’t meet the diligence requirement of equitable tolling.  Importantly, the Court then found prior case law “directly contradict the Secretary’s statements regarding diligence in briefing and set forth a clear rule that the due diligence requirement is satisfied as a matter of law by the timely misfiling of a notice of appeal.  The Court discerns no compelling reason to deviate from this rule.”

There was a conference by Judge Pietsch.  She wrote that she feared the ramifications of the decision and argued the due diligence conclusion should have been case specific rather than a bright line test.  She showed a deep suspicion of allowing late notice of appeals without requiring some action by the veteran, noting that he effectively filed a notice of appeal in 2003 but did nothing until over a decade later.

This order is helpful to veterans as it seems to move the Court toward a bright line test in equitable tolling that reduces the requirement of due diligence. 

Decided by Judges Bartley and Greenberg, and concurred in by Judge Pietsch.