Benson: Late Notice of Appeal and Equitable Tolling

Benson v. Wilkie, Case Number 18-6819, decided June 4, 2020 concerned a late notice of appeal to the Court and equitable tolling.

The Board decision was mailed September 26, 2017.  A motion for reconsideration was filed 128 days later on February 1, 2018.  The Board denied the motion on July 6, 2018 and the NOA was filed with the Court 123 later on July 6, 2018. 

The Secretary filed a motion to dismiss the appeal as untimely and the Court ordered the veteran to show cause why the motion should not be granted. 

On April 24, 2019, the appellant responded, stating that she had experienced "severe circumstances" that prevented her from timely filing her appeal. Appellant's Apr. 24, 2019, Response at 2. The appellant submitted another response on August 12, 2019. She wrote that she had left her job in May 2017 because she had been sexually harassed. Appellant's Aug. 12, 2019, Response at 1. At the same time, she wrote,

her living conditions had compelled her to move in with her sister. Id. And though the appellant found a new job and a new apartment around August 2017, she was fired on the day that she moved into her new domicile. Id. She was evicted on January 21, 2018. Id.

Id. at *1.

As the Court explained, an appellant must file a notice of appeal within 120 days of a Board decision, which the veteran did not do.  However, the Court noted an exception.  If the veteran files the motion to reconsider with the Board within 120 days of the decision, the finality of the Board decision is abated by the motion.  Id. at *2.  The Court then noted the veteran filed his motion outside of the 120 day window, so he is not entitled to fifth exception.

The Court then noted the requirements for equitable tolling, that the appellant must show:

“(1) an extraordinary circumstance; (2) due diligence exercised in attempting to file; and (3) a connection between the extraordinary circumstance and failure to timely file.”  Id. at *2.  The Court also noted under Court Rules an untimely NOA will be treated if timely if received within 30 days after the deadline and the veteran shows good cause or excusable neglect.  Id. at *3.  The Court noted some factors to review for excusable neglect:

(1) the danger of prejudice to the non-moving party;

(2) the length of the delay and its potential impact on judicial proceedings;

(3) the reason for the delay, including whether it was within the reasonable control of the movant; and

(4) whether the movant acted in good faith.

Id. at *3.

With regard to the case at hand,

The Court finds that the appellant experienced extraordinary circumstances beyond her control and that these circumstances caused the late filing of her motion for reconsideration. The appellant was sexually harassed at work in the period ending several months before the Board's September 2017 decision.  This harassment set in motion a chain of events culminating in a court-ordered

eviction in January 2018, 3 days before her appeal was due.

In May 2017, the appellant filed a formal complaint with her employer, but ultimately left her employment as a result of the sexual harassment. During the same period, partly because of the loss of income as well as deteriorating living

conditions the appellant moved in with her sister.  Although the appellant found a new job and residence 1 month before the Board's September 2017 decision, she lost that job through no fault of her own on the same day that she  moved into her new residence, and consequently, she was forced to apply for and rely on unemployment benefits.

She was then evicted on January 21, 2018, 117 days after the Board mailed its September 2017 Board decision and 3 days before her appeal was due.

Id. at *4.

The Court ultimately found the late motion to reconsideration should be tolled and that the late NOA was excusable.

This was a per curium decision by Chief Judge Bartley and Judge Toth.  Judge Greenberg concurred in the outcome but believes a more veteran friendly framework for late filings should be used.

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