Equitabe Tolling

Palomar v. McDonald, Opinion Number 14-1017, was decided March 18, 2015 and involves whether equitable tolling should apply to a late notice of appeal sent from the Philippines.

Equitable tolling to justify hearing an appeal where the notice of appeal was beyond the 120 day deadline is a constant source of new published opinions.  Here the veteran sought reconsideration from the Board more than 120 days after the initial Board decision and then the notice of appeal was mailed 133 after the Board decision denying reconsideration. 

The veteran argued equitable tolling should be applied because (1) he lives in the Philippines and the time it takes mail to arrive there is an extraordinary circumstance, (2) his physical condition (deteriorated hearing and eyesight) rendered him incapable of handling his affairs and precluded a timely filing, and (3) the Secretary provided a confusing notice of appellate rights letter.

The Court rejected all reasons for equitable tolling seemingly faulting the veteran for not presenting enough evidence to justify the equitable tolling.  The Court also used against the veteran the fact that he was able to file his notice of appeal within 120 days after the motion to reconsider was denied.

The Court also noted the appellate rights form has been found to be sufficient by the Federal Circuit in Cummins v. West.

The order was by C.J. Kasold and J. Schoelen.  J. Greenberg wrote a dissent pointing to the obvious delay in mail service between the U.S. and the Philippines and stating equity should be allowed due to the veteran’s diligence.