Raybine: Late Notices of Appeal

Raybine v. Wilkie, Case Number 18-6117, decided September 13, 2019 concerned a late notice of appeal to the Court.

The Board decision was mailed October 19, 2017 and on July 11, 2018 filed a motion for reconsideration (longer than 120 days).  The motion was denied on September 12, 2018 and a notice of appeal was filed November 2, 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.  The veteran wrote explaining he had difficulty obtaining additional information relevant to his claim.  Specifically, he had participated in human experimentation at the Aberdeen Proving Ground in Aberdeen, Maryland.  When he contacted the National Personnel Record Center, he was told his records did not contain evidence of medical treatment or participation in experimentation but directed him to the Aberdeen Proving Ground.  When he contacted the Aberdeen Proving Ground he was told the records were sealed and would have to provide additional information before they would be released to him.  Additional records were ultimately released.  He also explained that his wife had to do things because he was not able to handle things.

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 the 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 then noted “the veteran's response suggested that he may be entitled to equitable tolling based on mental illness or the inability to obtain medical files concerning a classified experiment.”

Regarding mental illness, the Court stated a veteran may be entitled to equitable tolling upon a showing that the mental illness renders the veteran incapable of handling his own affairs.  ID. at *2.  However, the Court then noted “the veteran must offer more than a

medical diagnosis or vague assertions of mental problems.”  Id.   The Court said here, the veteran indicated his service connected PTSD rendered him unable to “handle things.”  Id.  The Court then found:  “However, this does not establish that his condition rendered him incapable of ‘rational thought or deliberate decision making . . . or incapable of handling [his] own affairs or unable to function [in] society.’”  Id.  It then determined: “We are not persuaded that Mr. Raybine's service-connected PTSD rendered him incapable of handling his affairs under the standard set out in the case law.”  Id.

As to the inability to obtain additional records, the Court determined the veteran had not indicated how this constituted an extraordinary circumstance or actually prevented him from timely filing a motion with the Board.  Id. at *3. The Court stated:

An extraordinary circumstance is one beyond the veteran's control.  Assuming that the delayed response from Aberdeen Proving Ground satisfies this criterion, there is no argument before the Court how Mr. Raybine's late filing was a direct result of this circumstance. The relevant case law endorses equitable tolling in situations where a veteran sought to file in a timely manner but was prevented from doing so, such as by physical or mental infirmity, misinformation from a VA employee, homelessness, or potential third-party interference with the mail.

Id. at *3.

The Court then expressed his sympathy, but ruled the appeal untimely.

Judge Greenberg dissented.  He would find that the Supreme Court has never ruled extraordinary circumstances must exist to allow a veteran to untimely appeal to the Court.  Id. at *4.  He then stated until a higher court defines the outer limits of what warrants equitable tolling, he would not apply the higher standard the Veterans Court has applied.  Judge Greenberg noted the veteran suffers from PTSD as a result of being a human test subject and expressed that an opinion that that enough might constitute a reason for tolling.

This comes on the heals of an order in McGee v. Wilkie that expressed a pro-veteran slant in an equitable tolling situation.  What I take from this case is that the more information provided by the veteran on how the mental illness impacts his ability to handle things, the better.

This was a per curium decision by Judges Toth and Falvey with Judge Greenberg dissenting.

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