It’s the Law, January 2010
by Richard Cohen, Esq.
©2010 Richard Cohen
Attorney at Law
235 High Street, Room 513
P.O. Box 771
Morgantown, WV 26507-0771
(304)-413-0838
vetlaw @wvajustice.com
http://www.wvajustice.com
JANUARY 2010
EQUITABLE TOLLING IS DEAD
In one of the more important cases of the year, the Federal Circuit, ruled in a split decision, that equitable tolling is now unavailable to save a veteran’s appeal to the Veterans Court which is filed after 120 days from the date of the BVA decision.
In Henderson v. Shinseki __F. 3d __ (2009-7009, decided December 17, 2009) 6 members of the Court decided, relying on a 2007 decision of the Supreme Court of the United States of America, that because Mr. Henderson’s appeal to the Court was 15 days late his appeal may not be heard.
It is said that “bad facts make bad law”, but that was not the situation here. You could not imagine better facts in favor of a veteran than what Mr. Henderson presented. He had served in the military for two years and was discharged because of a diagnosis of service connected paranoid schizophrenia which was later found to be 100% disabling by the VA. After his request for special monthly compensation was denied by the VA, acting alone, without a representative, he appealed to the Board. Then following the Board’s approval of the denial, he appealed to the Veterans Court, but his appeal was received 15 days late. Responding to a request by the Veterans Court to prove that there was justification for the late filing he submitted a report from his treating psychiatrist stating, among other things, that he is incapable of understanding and meeting deadlines.
The majority ruled that equitable tolling is not available to a claimant who files a late court appeal, regardless of the reasons for the late filing. Disagreeing, three judges including the Chief Judge said that equitable tolling should be available.
Unless the Henderson case gets reversed by the Supreme Court of the United States or is replaced by legislation, equitable tolling is dead.
What this means to veterans and their families is you had better file your appeal to the Veterans Court within 120 days after a decision by the BVA or you will be, in the words of the dissenting judges in Henderson, “out of luck and out of Court”.