Mead: A Late EAJA Fee Application and Equitable Tolling

Mead v. Shulkin, Case Number 15-015(E), decided October 27, 2017 considers a late EAJA application and whether equitable tolling might apply.  The Court seems to admit that equitable tolling could apply, but rejects it in this case.

This is a sad case where an attorney helped a veteran, but then was diagnosed and had surgery at nearly the same time a joint motion for remand was made.  The attorney submitted a late EAJA application and pointed to her cancer diagnosis and surgery as well as related depression.  The Court requested additional information as to the attorney’s condition and specifically asked her to seek an opinion from her medical providers as to her capacity to handle her affairs during the period to be tolled.  The attorney wrote back declining to provide further information in light of a concern for her privacy and pointed to her professional responsibility of candor to the court.

The Court denied her EAJA application noting she could have sought to have any submission sealed. 

Judge Greenberg wrote an impassioned dissent that noted the attorney’s potentially life threatening illness and noted the attorney’s professional license is contingent upon candor with the court and that absent a specific reason to doubt such candor, the Court should presume its truth.  The dissent further and attacked the Internal Operating Procedure of the Court.  Specifically, he notes 28 USC 7254 states a majority of the judges of the Court shall constitute a quorum for the transaction of the business of the Court, but notes that only two of his colleagues expressed disagreement with his single-judge decision and voted the matter to panel.  The Court had six active members.  He argues that sending a matter for precedential panel disposition constituted business of the court and should have required a 4 vote majority and highlights how this internal operating process is different compared to other appellate courts.  

Greenberg ends with as poetic a paragraph as you might find in an appellate decision:

Any disagreement with my exercise of my own equity discretion in February 2017, when I originally granted tolling of the appellant's EAJA application, should have been pursued by one of the parties through an appeal or motion for reconsideration, or at the very least should have been disturbed only by a "majority of the judges of this Court." 38 U.S.C. § 725(c)(1). A process that allows for a single Judge's veteran-friendly decision to be overturned merely because two other Judges disagreed goes against the intent of Congress in creating our Court, which was to "place a thumb on the scale in the veteran's favor in the course of administrative and judicial review of VA decisions." Henderson, 562 U.S. at 440. I do not believe that in establishing our Court, Congress intended such limitless dilution of a single Judge's statutory authority. It is for these reasons that I dissent.

Per Curiam decision by Judges Schoelen and Bartley, J. Greenberg issued a dissent.