Sneed v. McDonald, 2015–7069.

• Decision Date: 22 April 2016
• Docket Number: No. 2015–7069.,2015–7069.
• Citation: 819 F.3d 1347
• Parties: Marva J. SNEED, Claimant–Appellant v. Robert A. McDONALD, Secretary of Veterans Affairs, Respondent–Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

819 F.3d 1347

Marva J. SNEED, Claimant–Appellant

v.Robert A. McDONALD, Secretary of Veterans Affairs, Respondent–Appellee.

No. 2015–7069.

United States Court of Appeals, Federal Circuit.

April 22, 2016.

Benjamin A. Herbert, Kirkland & Ellis LLP, Los Angeles, CA, argued for claimant-appellant.

Also represented by William H. Burgess, Washington, DC.

Renee Gerber, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by Scott D. Austin, Robert E. Kirschman, Jr., Benjamin C. Mizer ; Meghan Alphonso, David J. Barrans, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

Before PROST, Chief Judge, DYK, and WALLACH, Circuit Judges.

Opinion for the court filed by Circuit Judge DYK. Concurring opinion filed by Circuit Judge WALLACH.

DYK, Circuit Judge.

The Board of Veterans' Appeals ("Board") denied Marva J. Sneed's claim for dependency and indemnity compensation. The Court of Appeals for Veterans Claims ("Veterans Court") dismissed Ms. Sneed's appeal because it was untimely filed and declined to find equitable tolling based on attorney abandonment. We hold that, even assuming Ms. Sneed showed that there was attorney abandonment, she failed to demonstrate that she diligently pursued her rights. We affirm.

BACKGROUND

Ms. Sneed's husband, Reginald A. Sneed, served on active duty from June 1964 to June 1968. Mr. Sneed suffered from numerous service-connected disabilities. In January 2001, Mr. Sneed suffered a spinal cord contusion from a fall, which left him quadriplegic and confined to a chin-operated wheelchair. In October 2003, Mr. Sneed was living in a nursing home for paralyzed veterans when a fire broke out, and all of the residents, including Mr. Sneed, died of smoke inhalation.

Following the death of her husband, Ms. Sneed filed a claim for dependency and indemnity compensation under 38 U.S.C. § 1310. Mr. Sneed's service-connected disabilities were alleged to have been principal or contributory causes of his death, see 38 C.F.R. § 3.312, based on the theories that Mr. Sneed's service-connected spondylosis and spinal stenosis contributed to his fall and resultant quadriplegia, and that Mr. Sneed's service-connected posttraumatic stress disorder, tinnitus, and hearing loss prevented him from leaving the nursing home during the fire.

The regional office of the Department of Veterans Affairs ("VA") denied Ms. Sneed's claim, and the Board affirmed. The Board's decision was mailed to Ms. Sneed on April 5, 2011. Ms. Sneed's notice of appeal to the Veterans Court was due on August 3, 2011, 120 days after the Board mailed its decision. 38 U.S.C. § 7266(a).

On April 13, 2011, well within the 120–day period, Ms. Sneed contacted a lawyer, Katrina J. Eagle, requesting that Ms. Eagle represent her in an appeal to the Veterans Court. According to Ms. Sneed, at the request of Ms. Eagle's secretary, she transmitted case materials to Ms. Eagle's office by mail and fax, and had several oral communications with Ms. Eagle's office. The record does not describe the exact nature of the material transmitted or the substance of the communications. On August 2, 2011, Ms. Sneed received a letter from Ms. Eagle. In her letter, Ms. Eagle provided an assessment of Ms. Sneed's service connection claim, explaining her view that the claim "does not meet the criteria under 38 C.F.R. § 3.312," and concluded, "I do not believe the VA erred in denying your claim; thus, I will not be able to represent you for any subsequent appeal for entitlement to service connection for the cause of death, and for [dependency and indemnity compensation] benefits."¹ J.A. 53.

Ms. Eagle further stated, "[y]ou are free to seek another opinion from another attorney, of course. Moreover, you are not required to have an attorney to proceed before the Court. However, should you decide to appeal the Board's adverse decision, you must file your Notice of Appeal no later than August 5, 2011. " J.A. 53–54. The August 5 statement was erroneous; the correct deadline was August 3, the next day following Ms. Sneed's receipt of Ms. Eagle's letter. Ms. Sneed stated that, between August 2 and August 31, 2011, she contacted at least fourteen lawyers, who all turned down her case. Having failed to secure a lawyer to take her case, Ms. Sneed filed the notice of appeal herself on September 1, 2011—twenty-nine days after the deadline.

On September 7, 2011, Ms. Sneed sent a letter to the Veterans Court explaining her late filing. On June 14, 2012, the Veterans Court ordered Ms. Sneed to file a response discussing whether the circumstances in her case warranted equitable tolling of the 120–day deadline. In September 2012, the Veterans Court dismissed Ms. Sneed's appeal as untimely filed, finding that equitable tolling did not apply because "the circumstances leading up to her late NOA are not extraordinary, but rather evidence general negligence or procrastination." Sneed v. Shinseki ("Sneed I"), No. 11–2715, 2012 WL 4464874, at *2 (Vet.App. Sept. 27, 2012). The Veterans Court distinguished Ms. Sneed's argument for tolling from "circumstances [that] precluded a timely filing [justifying equitable tolling,] ... such as (1) mental illness [,] ... (2) reliance on the incorrect statement of a VA official, or (3) a misfiling at the regional office or the Board." Id. at *2 (internal quotation marks and citations omitted).

On appeal we vacated and remanded. Sneed v. Shinseki ("Sneed II "), 737 F.3d 719, 728–29 (Fed.Cir.2013). We held that "attorney abandonment may justify equitably tolling the filing deadline in appeals to the Veterans Court." Id. We also found, as the government conceded during oral argument in the first appeal, that the Veterans Court had not made any explicit findings with respect to diligence. Id. at 724.

On remand, Ms. Sneed argued that the Veterans Court should find attorney abandonment by Ms. Eagle, warranting equitable tolling of Ms. Sneed's deadline to file her notice of appeal. In October 2014, the Veterans Court again held that equitable tolling of the statutory deadline was not warranted. Sneed v. McDonald ("Sneed III "), No. 11–2715, 2014 WL 5365571, at *1 (Vet.App. Oct. 22, 2014), available at J.A. 1–10. The Veterans Court concluded that there was no attorney abandonment "absent an agreement [between Ms. Eagle and Ms. Sneed] to represent [Ms. Sneed] or file the NOA." J.A. 8. The Veterans Court also held that Ms. Sneed did not act diligently in pursuing her appeal rights. Ms. Sneed appealed. We have jurisdiction under 38 U.S.C. § 7292.

DISCUSSION

I

Section 7292 of title 38 provides that we "shall decide all relevant questions of law" arising from appeals from decisions of the Veterans Court, but, "[e]xcept to the extent that an appeal ... presents a constitutional issue, [we] may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case." 38 U.S.C. § 7292(d)(1), (d)(2). Though the "question whether equitable tolling applies in a particular case often involves, in part, the application of law to fact, ... 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." Bailey v. Principi, 351 F.3d 1381, 1384 (Fed.Cir.2003) ; see also Santana–Venegas v. Principi, 314 F.3d 1293, 1298 (Fed.Cir.2002). There is no dispute here as to the relevant facts, so the issue presented is one of law, a matter within our jurisdiction.

II

In Henderson v. Shinseki, the Supreme Court held that "the deadline for filing a notice of appeal with the Veterans Court [under 38 U.S.C. § 7266(a) ] does not have jurisdictional attributes, [though] [t]he 120–day limit is nevertheless an important procedural rule." 562 U.S. 428, 441–42, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011). Although the Supreme Court did not decide whether equitable tolling of the statutory deadline was available, see id. at 442 n. 4, 131 S.Ct. 1197, after Henderson, we have held that the 120–day deadline in § 7266(a) is subject to equitable tolling. See, e.g., Sneed II, 737 F.3d at 728 ; see also Checo v. Shinseki, 748 F.3d 1373, 1378 (Fed.Cir.2014).

"A litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way" and prevented timely filing. Sneed II, 737 F.3d at 725 (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 161 L.Ed.2d 669 (2005) ); see also Menominee Indian Tribe of Wis. v. United States, ––– U.S. ––––, 136 S.Ct. 750, 755, 193 L.Ed.2d 652 (2016) (explaining that the "diligence prong ... covers those affairs within the litigant's control; the extraordinary-circumstances prong, by contrast, is meant to cover matters outside its control"). "Equitable tolling's two components [are] ‘elements,’ not merely factors of indeterminate or commensurable weight." Menominee Indian Tribe, 136 S.Ct. at 756 (citation omitted).

Although attorney abandonment may support equitable tolling,² attorney negligence is not sufficient to justify equitable tolling. To the contrary, the client is normally responsible for the malfeasance of the attorney, and in such cases has a malpractice remedy, not a tolling remedy. See Maples v. Thomas, ––– U.S. ––––, 132 S.Ct. 912, 922, 181 L.Ed.2d 807 (2012) ("[U]nder well-settled principles of agency law, the principal bears the risk of negligent conduct on the part of his agent.") (internal quotation marks and citation omitted). Equitable tolling does not extend to "a garden variety claim of excusable neglect, such as a simple miscalculation that leads a lawyer to miss a filing deadline." Sneed II, 737 F.3d at 727 (quoting Holland v. Florida...