Nelson v. Nicholson

• Decision Date: 18 June 2007
• Docket Number: No. 2006-7314.,2006-7314.
• Parties: Larry J. NELSON, Claimant-Appellant, v. R. James NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

489 F.3d 1380

Larry J. NELSON, Claimant-Appellant, v. R. James NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee.

No. 2006-7314.

United States Court of Appeals, Federal Circuit.

June 18, 2007.

Paul B. Eaglin, Eaglin Law Office, of Fairbanks, AK, argued for claimant-appellant.

Armando Rodriguez-Feo, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General, Steven J. Gillingham, Assistant Director and Sean B. McNamara, Trial Attorney. Of counsel was Thomas D. Dinackus, Trial Attorney. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and Y. Ken Lee, Attorney, United States Department of Veterans Affairs, of Washington, DC.

Before NEWMAN, SCHALL, and DYK, Circuit Judges.

SCHALL, Circuit Judge.

Larry J. Nelson appeals the decision of the United States Court of Appeals for Veterans Claims ("Veterans Court") that dismissed as untimely his appeal from a decision of the Board of Veterans' Appeals ("Board"). Nelson v. Nicholson, 19 Vet. App. 548 (2006). In dismissing the appeal, the Veterans Court refused to equitably toll the filing deadline set forth in 38 U.S.C. § 7266(a) based on Mr. Nelson's claim of excusable neglect. We affirm.

BACKGROUND

I.

Mr. Nelson served in the United States military from August 1967 to April 1976; he suffers from post traumatic stress disorder ("PTSD"). Nelson, 19 Vet.App. at 549. On July 13, 2004, the Board denied Mr. Nelson's claim for an earlier effective date for his PTSD. Id. The attorney who represented Mr. Nelson before the Board, Allen Vacura, did not wish to represent Mr. Nelson before the Veterans Court because of his lack of experience with appellate work. Id. at 549-50. Consequently, Mr. Vacura attempted to engage attorney Mike Zamboni to represent Mr. Nelson on appeal. Id. at 550. Per Mr. Zamboni's request, Mr. Vacura sent Mr. Zamboni a copy of the Board's decision. However, Mr. Vacura never received a reply from Mr. Zamboni. Id.

Pursuant to 38 U.S.C. § 7266(a), the deadline for filing a notice of appeal ("NOA") with the Veterans Court is 120 days from the date of the Board's decision. The deadline in Mr. Nelson's case was thus November 10, 2004, 120 days after July 13, 2004. Mr. Nelson was aware that there was a filing deadline for his NOA and attempted to contact Mr. Vacura several times to express concern that his NOA had not been filed. Id. On at least one occasion, Mr. Nelson was successful in contacting Mr. Vacura, who told him that lawyers could get around deadlines if needed. Id. Mr. Nelson did not believe Mr. Vacura, and Mr. Nelson grew angry and concerned about his claim. However, Mr. Nelson neither hired another lawyer nor filed his own NOA. Id.

With the deadline for filing the NOA imminent, Mr. Vacura repeatedly attempted to contact Mr. Zamboni to confirm that an NOA had been filed. Id. On December 1, 2004, which was twenty-one days after the filing deadline, Mr. Vacura still had not heard from Mr. Zamboni. Id. Mr. Vacura attempted to call the supervising processing clerk of the Veterans Court. He was unable to reach the clerk, however, and his calls were not returned. Id. Finally, Mr. Vacura filed an NOA "out of an abundance of caution in order to assist Mr. Nelson in keeping his case alive until he can either find Mr. Zamboni or retain appellate counsel to assist him in this matter." Id. The Veterans Court received Mr. Nelson's NOA on December 3, 2004, 143 days after the Board issued its decision and twenty-three days after the statutory filing deadline. Id.

II.

The Veterans Court dismissed Mr. Nelson's appeal as untimely filed. The court explained that under 38 U.S.C. § 7266(a) the deadline for filing an NOA is 120 days and that Mr. Nelson's filing was twenty-three days late. Id. at 549-51. The court further explained that if an NOA is not timely filed, it does not have jurisdiction. Id. at 550-51. The Veterans Court acknowledged that equitable tolling is available to toll the 120-day judicial appeal period for filling an NOA under 38 U.S.C. § 7266(a), but stated that equitable tolling is not available in cases involving a "garden variety claim of excusable neglect." Nelson, 19 Vet.App. at 552 (quoting Irwin v. Dep't of Vet. Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990)). The court distinguished Pioneer Investment Services Co. v. Brunswick Associates Ltd., 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), upon which Mr. Nelson relied, on the ground that the applicable rule in that case included "excusable neglect" as a basis for tolling the applicable filing deadline, whereas in this case, the statutory and regulatory scheme did not include "excusable neglect." Nelson, 19 Vet.App. at 549-50. The court continued that, in Gilbert v. Secretary of Health & Human Services, 51 F.3d 254 (Fed.Cir.1995), "the Federal Circuit rejected ordinary attorney negligence as a basis for equitable tolling." Nelson, 19 Vet.App. at 552. Viewing Mr. Nelson's case as involving a claim of excusable neglect, the court refused to apply equitable tolling. Id.

The Veterans Court also addressed Mr. Nelson's claim that equitable tolling should apply because of extraordinary circumstances. Id. The Veterans Court has held that equitable tolling is available in a case involving extraordinary circumstances. See McCreary v. Nicholson, 19 Vet.App. 324, 332 (2005). The court has adopted a three-part test to determine when extraordinary circumstances warrant equitable tolling:

First, the extraordinary circumstance must be beyond the appellant's control. Second, the appellant must demonstrate that the untimely filing was a direct result of the extraordinary circumstances. Third, the appellant must exercise "due diligence" in preserving his appellate rights, meaning that a reasonably diligent appellant, under the same circumstances, would not have filed his appeal within the 120-day judicial-appeal period.

Id. at 332. The Veterans Court first considered whether the requirement of an extraordinary circumstance beyond the appellant's control was met in Mr. Nelson's case. Nelson, 19 Vet.App. at 552. The court determined that it was not, stating, "it is clear that ordinary attorney neglect, such as missing a filing deadline, does not rise to the level of an extraordinary circumstance, and thus does not warrant equitable tolling." Id. (quoting Irwin, 498 U.S. at 96, 111 S.Ct. 453). The court held that Mr. Vacura's actions were nothing more than "garden variety neglect." Id. The court also held that Mr. Nelson could not satisfy the due diligence requirement of the extraordinary circumstances test because he had not pursued his case with due diligence. Id. at 554-55.

Accordingly, the Veterans Court dismissed Mr. Nelson's appeal for lack of jurisdiction. Id. This appeal followed.

DISCUSSION

I.

We have exclusive jurisdiction to "review and decide any challenge to the validity of any statute or regulation or any interpretation thereof" by the Veterans Court "and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision." 38 U.S.C. § 7292(c). However, except to the extent that an appeal from the Veterans Court presents a constitutional issue, we may not review a challenge to a factual determination or a challenge to a law or regulation as applied to the facts of a particular case. Id. § 7292(d). Pertinent to our jurisdiction, we have held that consideration of equitable tolling presents an inquiry into the interpretation of the Veterans Court's jurisdictional statute and thus is within the scope of our jurisdiction:

We have consistently held that "when the material facts are not in dispute and the adoption of a particular legal standard would dictate the outcome of the equitable tolling claim, this court has treated the question of the availability of equitable tolling as a matter of law that we are authorized by statute to address."

Mapu v. Nicholson, 397 F.3d 1375, 1379 (Fed.Cir.2005) (quoting Bailey v. Principi, 351 F.3d 1381, 1384 (Fed.Cir.2003) (citing Jaquay v. Principi, 304 F.3d 1276, 1289 (Fed.Cir.2002) (en banc))). Because the issue before us is whether equitable tolling is available under 38 U.S.C. § 7266(a) in a case of excusable neglect, we have jurisdiction to decide whether equitable tolling is appropriate in this case.

II.

Mr. Nelson argues that the Veterans Court should permit equitable tolling based on the standard of "excusable neglect."¹ Mr. Nelson urges us to interpret Pioneer as inconsistent with Irwin and to permit equitable tolling in cases of attorney negligence. He asserts that we should "reconsider Irwin as it has been applied against veterans in the context of untimeliness and to join with other federal appellate courts that follow Pioneer," such as the Ninth Circuit in Pincay v. Andrews, 389 F.3d 853 (9th Cir.2004) (en banc). Mr. Nelson explains that "it is in Pioneer that the question was squarely presented regarding clear neglectfulness." He claims that we should apply Pioneer and find his neglect excusable.

The Secretary responds that this court applied Irwin in Bailey v. West, 160 F.3d 1360, 1365 (Fed.Cir.1998) (en banc), to find equitable tolling available in the veterans context, but that we have "consistently followed the Supreme Court's rejection of excusable neglect as a basis for equitable tolling." E.g., Mapu, 397 F.3d at 1380 (quoting Irwin, 498 U.S. at 95-96, 111 S.Ct. 453); Andrews v. Principi, 351 F.3d 1134, 1138 (Fed.Cir.2003) (quoting Irwin, 498 U.S. at 96, 111 S.Ct. 453); Bailey, 160 F.3d at 1365 (quoting Irwin, 498 U.S. at 96, 111 S.Ct. 453). Therefore, the Secretary argues, the Veterans Court properly rejected Mr. Nelson's argument that excusable neglect can equitably toll the filing period.

The Secretary distinguishes Pioneer on the ground that, in that case, the...