An Excellent Article on VA Delay and Dysfunction

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James: Equitable Tolling and Filing the Notice of Appeal

James v. Shulkin, Case Number 16-1948, decided October 30, 2017 is another in the line of cases dealing with the equitable tolling of the time allowed to file the notice of appeals with the Court of Appeals for Veterans Claims. 

In this case, the veteran placed his notice of appeal (NOA) in his personnel mailbox the day the NOA was due to be sent.  He then raised the mailbox flag on his box and went out of town for the weekend.  When he got back, he found the mailbox flag was lowered and the mail had not been taken.  He then mailed it at his local post office, outside of the 120 day filing period.  The Court ordered the veteran to show cause why the NOA should not be dismissed as an untimely filing. 

The Court noted equitable tolling is to be determined on a case by case basis, but must be allowed if  the veteran shows three elements (1) extraordinary circumstance; (2) due diligence; and (3) causation.

The veteran argued “ the 120-day appeal window should be equitably tolled because an errantly lowered flag on his residential mailbox constitutes an extraordinary circumstance beyond his control. He argues that "[t]his extraordinary circumstance is akin to other cases in which veterans have filed their NOA on time, but in the wrong place," citing Santana-Venegas, 314 F.3d at 1293, where the veteran timely filed his NOA, but mailed it to the RO instead of the Court.”  Id. at *2.  The Court rejected this argument, saying

The logic of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Santana-Venegas does not apply in this case. The Federal Circuit explicitly noted that "'[m]isfiling cases within the veterans' system are unlike the typical late-filing cases where the limitations period expires before the would-be claimants perform any action to preserve their legal rights.'" Santana-Venegas, 314 F.3d at 1297 (quoting Jaquay v. Principi, 304 F.3d 1276, 1287-88 (Fed. Cir. 2002) (citations omitted)). In the case at hand, Mr. James did not timely misfile his appeal to this Court; rather, he placed his NOA in his personal mailbox on the last day of the appeal period, left town for the weekend, and ultimately mailed his NOA 4 days late. The Court declines to hold that the

alleged extraordinary circumstances here are like those in Santana-Venegas and other timely misfiling cases.

Id. at *2.

The Court finally concluded that “a fallen mailbox flag is not an extraordinary circumstance beyond the appellant's control that warrants equitable tolling, but rather an ordinary hazard of last-minute mailing that could have been avoided but for the appellant's "garden variety neglect."  Id. at *2-3.

Judge Greenberg wrote a dissent that pointed to a key difference in this case and Santana-Venegas.  He noted the majority found “the facts here are akin to ‘the typical late-filing cases where the limitations period expires before the would-be claimants perform any action to preserve their legal rights.’ See ante at 2 (emphasis added) (quoting Santana-Venegas v. Principi, 314 F.3d 1293, 1297 (Fed. Cir. 2002)) (internal quotation marks omitted). Yet, it is undisputed that the appellant placed his NOA in the mailbox on the 120th day, and thus did everything required of him to ensure timely mailing under 38 U.S.C. § 7266.” Id. at *3.  He then essentially argues the majority relies on old case law that ignores repeated admonishments from the Federal Circuit for denying tolling and arguing “The Court must start applying its equitable powers more broadly.”

The decision is a warning to veterans and practitioners that they need to file their notice of appeal quickly and without delay.

Per Curiam Decision by Judges Schoelen and Pietsch. Dissent by Judge Greenberg.

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.

Susic: Substitution of An Adult Child Upon a Veteran’s Death

Susic v. Shulkin, Case Number 13-0158, decided October 26, 2017 considers the ability to substitute an adult child upon a veteran’s death.  At issue was potentially over a decade of accrued benefits related to an earlier effective date.  The case had resulted in numerous appeals and the veteran died shortly after the Federal Circuit remanded the case.

Three adult children of the veteran sought to be substituted.  They argued that while they were adult children, the potential earlier effective date involved a time when the children were still minors.

Substitution is governed largely by 38 USC 5121 as well as 38 USC 101(4)(A) which defines child as an unmarried person under 18 or who before turning 19 became permanently incapable of self-support or who is over 18 but less than 23 and seeking higher education.

The Court determined

In section 5121 of title 38, U.S. Code, Congress stated that an accrued benefits

determination is to be made "upon the death of a veteran." 38 U.S.C. § 5121(a)(2). It is clear from the plain language of the statute that to qualify as an accrued benefits beneficiary, an individual must satisfy the requirements of the statutory framework for these benefits when the veteran dies as opposed to at some point during the pendency of the veteran's claim.

The Court also addressed appellant’s arguments that the law had been changed by Congress and stated:

The Court also concludes that the appellant's counsel has failed to persuade the Court that

when it enacted section 5121A, Congress intended to fundamentally change the accrued benefits beneficiary framework. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (finding that the appellant bears the burden of persuasion on appeals to this Court), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) (table). Congress enacted 38 U.S.C. § 5121A to "improve and modernize VA claims processing." Breedlove, 24 Vet.App. at 14. The appellant's counsel has not identified any support for the proposition that Congress intended section 5121A to change anything other than how VA processed its claims, particularly as it relates to the dependency requirements for accrued benefits beneficiaries.

  

This case is an example of the fundamental unfairness that can result from the VA’s dilatory measures in making a fair decision.  Delays can result in the death of a veteran and a situation where the VA never has to pay the benefits that were long owed.

Per Curium decision by Judges Schoelen, Pietsch, and Greenberg.