NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ALBERT W. WOHLWEND,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2013-7046
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 08-0356, Chief Judge Bruce E.
Kasold.
______________________
Decided: December 17, 2013
______________________
MARK A. KNUEVE, Vorys, Sater, Seymour and Pease
LLP, of Columbus, Ohio, for claimant-appellant. With
him on the brief was MICAH D. DAWSON.
MICHAEL D. SNYDER, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With him on the brief were STUART F. DELERY, Acting
Assistant Attorney General, and JEANNE E. DAVIDSON,
Director. Of counsel on the brief were DAVID J. BARRANS,
2 WOHLWEND v. SHINSEKI
Deputy Assistant General Counsel, and CHRISTA A.
SHRIBER, Attorney, United States Department of Veterans
Affairs, of Washington, DC. Of counsel was CHRISTINA
LYNN GREGG, United States Department of Veterans
Affairs, Office of the General Counsel, of Washington, DC.
______________________
Before DYK, MOORE, and WALLACH, Circuit Judges.
PER CURIUM.
Albert W. Wohlwend appeals the decision of the Court
of Appeals for Veterans Claims (“Veterans Court”) deny-
ing his motion to recall mandate of an earlier dismissal of
his appeal as untimely. Wohlwend v. Shinseki, No. 08-
0356, 2012 WL 2873604 (Vet. App. July 13, 2012) (“Vet.
Ct. Order”). In denying the appeal, the Veterans Court
refused to equitably toll the filing deadline set forth in 38
U.S.C. § 7266(a) (2012). Because attorney abandonment
can justify equitably tolling the deadline for filing an
appeal to the Veterans Court, this court vacates and
remands for the Veterans Court to reconsider Mr. Wohl-
wend’s arguments under the correct standard.
BACKGROUND
Mr. Wohlwend served in the United States Army from
February 1968 to February 1971. On March 7, 2007, the
Board of Veterans Appeals (“Board”) issued a decision
denying Mr. Wohlwend’s claims for entitlement to an
increased disability rating for service-connected mild
peripheral neuropathy of the right and left hands, and for
service connection for sensorineural bilateral hearing loss.
Mr. Wohlwend was appointed a veterans service officer
from Disabled American Veterans (“DAV”) to represent
him before the Board, and anticipated that DAV would be
responsible for filing a notice of appeal on his behalf. Mr.
Wohlwend was informed that his case had been trans-
ferred to a different veterans service officer, but was
repeatedly assured that everything would be “properly
WOHLWEND v. SHINSEKI 3
handled” with respect to his appeal to the Veterans Court.
J.A. 5. Mr. Wohlwend alleges that he repeatedly at-
tempted to contact his veterans service officer, but his
calls were not returned. It was only after the filing dead-
line had passed that Mr. Wohlwend was informed that his
case had been transferred again, and his previous
veterans service officer had failed to file anything on his
behalf.
On January 4, 2008, over 180 days after the filing
deadline had passed, Mr. Wohlwend filed a pro se notice
of appeal with the Veterans Court. On March 13, 2009,
the Veterans Court dismissed Mr. Wohlwend’s appeal as
untimely because he had not filed his notice within 120
days of the March 7, 2007, Board decision. In doing so,
the Veterans Court relied upon Henderson v. Peake, 22
Vet. App. 217 (2008), aff’d, 589 F.3d 1201 (Fed. Cir. 2009),
which held that the 120-day period within which to file a
notice of appeal under 38 U.S.C. § 7266(a) is jurisdictional
and not subject to equitable tolling.
The Supreme Court subsequently reversed the Hen-
derson decision, holding that the 120-day deadline to file
an appeal, although an important procedural rule, is not
jurisdictional. Henderson v. Shinseki, 131 S. Ct. 1197,
1206 (2011). In response to this decision, the Veterans
Court issued an order notifying appellants whose appeals
had been dismissed for failure to file a timely notice of
appeal that they could now file a motion to recall mandate
premised upon the doctrine of equitable tolling. The order
explained both the Supreme Court’s decision in Hender-
son and the Veterans Court’s determination in Bove v.
Shinseki, 25 Vet. App. 136 (2011), which held that the
120-day filing period for appeals is subject to equitable
tolling.
On February 13, 2012, Mr. Wohlwend filed a pro se
motion to recall mandate. Mr. Wohlwend contended that
he had relied upon DAV’s representations, and that his
4 WOHLWEND v. SHINSEKI
veterans service officer failed to file a timely notice of
appeal. The Secretary of Veterans Affairs (“VA”) opposed
the motion. The Veterans Court stayed the case to allow
Mr. Wohlwend to obtain counsel, through whom he filed a
reply in support of his motion to recall mandate.
On July 13, 2012, the Veterans Court, in a single-
judge order, denied Mr. Wohlwend’s motion to recall
mandate. The Veterans Court explained that “failure of a
representative to timely file an appeal generally is a
‘garden variety claim of excusable neglect’ that is not a
basis for equitable tolling.” Vet. Ct. Order at *1 (quoting
Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)).
The Veterans Court determined that Mr. Wohlwend had
failed to demonstrate that his untimeliness was attribut-
able to anything other than excusable neglect, and con-
cluded that withdrawal of mandate was not warranted.
On August 2, 2012, Mr. Wohlwend filed a timely mo-
tion for panel review. On September 28, 2012, the motion
was granted and a panel ordered that the Veterans
Court’s previous single-judge order would remain the
decision of the court. This appeal followed.
DISCUSSION
I.
This court’s jurisdiction to review a decision of the
Veterans Court is limited. We review “the validity of a
decision of the [Veterans] Court on a rule of law or of any
statute or regulation . . . or any interpretation thereof
(other than a determination as to a factual matter) that
was relied on by the [Veterans] Court in making the
decision.” 38 U.S.C. § 7292(a). This court may not, unless
a constitutional challenge is presented, “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)(2).
WOHLWEND v. SHINSEKI 5
The VA asserts that this court should dismiss Mr.
Wohlwend’s appeal for lack of jurisdiction because the
“Veterans Court’s determination that this is a case of
excusable neglect is a determination of fact, or at most the
application of law to fact, over which this [c]ourt does not
possess jurisdiction.” Appellee’s Br. 7. Mr. Wohlwend
asserts, however, that the Veterans Court erred by apply-
ing the “excusable neglect” standard of Irwin, which he
believes does not apply to his claim, rather than the
“extraordinary circumstances” standard articulated in
Holland v. Florida, 130 S. Ct. 2549 (2010). 1
In Holland, the Court reiterated the requirements for
equitable tolling it had previously set forth in Pace: a
petitioner must show ‘“(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circum-
stance stood in his way’ and prevented timely filing.”
Holland, 130 S. Ct. at 2562 (quoting Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005)). Mr. Wohlwend believes that
this standard represents a different analysis than Irwin,
and that the court committed legal error by relying solely
on Irwin. Appellant’s Br. 7; Appellant’s Reply 3 (“[T]he
[Veterans Court] failed to apply the Holland standard to
this case. Indeed, the [Veterans Court] failed to discuss
or even cite Holland. Instead, the [Veterans Court]
incorrectly analyzed Wohlwend’s claim solely under the
legal standard set forth in Irwin.”) (citations omitted). We
have jurisdiction to review this legal issue under 38
U.S.C. § 7292.
1 Notably, Appellee acknowledges this aspect of Ap-
pellant’s challenge, stating that Mr. Wohlwend “argues
that instead of relying upon Irwin, the Veterans Court
should have evaluated his motion in accordance with the
Supreme Court’s decision in Holland.” Appellee’s Br. 9
(citations omitted).
6 WOHLWEND v. SHINSEKI
II.
While equitable tolling is available to toll the judicial
appeal period of 38 U.S.C. § 7266, “the principles of equi-
table tolling . . . do not extend to what is at best a garden
variety claim of excusable neglect.” Irwin, 498 U.S. at 96.
In Holland, however, the Court stated “at least some-
times, professional misconduct . . . could . . . amount to
egregious behavior and create an extraordinary circum-
stance that warrants equitable tolling.” Holland, 130 S.
Ct. at 2563.
Mr. Wohlwend contends the Veterans Court erred by
relying on the “excusable neglect” standard of Irwin
instead of evaluating his motion based upon the “extraor-
dinary circumstances” standard articulated in Holland.
Read together, Irwin and Holland show that the “extraor-
dinary circumstances” standard requires more than
garden-variety “excusable neglect.”
Here, the Veterans Court, relying only on Irwin, ob-
served that “the failure of a representative to timely file
an appeal generally is a ‘garden variety claim of excusable
neglect’ that is not a basis for equitable tolling . . . and
Mr. Wohlwend fails to demonstrate otherwise.” Vet. Ct.
Order at *1 (emphasis added). In doing so, the Veterans
Court did not discuss “extraordinary circumstances” that
may have justified equitable tolling, such as attorney
abandonment or misrepresentations, or cite to Holland.
Recently, this court held that “attorney abandonment
can justify equitably tolling the deadline for filing an
appeal to the Veterans Court.” Sneed v. Shinseki, No.
2013-7029, 2013 WL 6403080, at *1 (Fed. Cir. Dec. 9,
2013). In Sneed, a claimant argued that “the Veterans
Court erroneously failed to recognize attorney abandon-
ment as a basis for equitable tolling.” Id. at 3. This court
agreed, stating “[e]quitable tolling is not ‘limited to a
small and closed set of factual patterns.’” Id. at 5 (quoting
Mapu v. Nicholson, 397 F.3d 1375, 1380 (Fed. Cir. 2005)).
WOHLWEND v. SHINSEKI 7
The court also observed that “[t]he hardship of default
resulting from attorney abandonment is particularly
difficult to bear in the context of an appeal to the Veter-
ans Court, which is often the veteran’s first opportunity to
be represented by an attorney.” Id. at 7 (citing 38 U.S.C.
§ 5904(c)(1)).
This case is remanded, in light of this intervening
precedent, for the Veterans Court to reconsider whether
the veterans service officer’s failure to act on Mr. Wohl-
wend’s behalf, and the affirmative misrepresentations
made by DAV, entitle Mr. Wohlwend to equitable tolling
of the filing deadline.
CONCLUSION
For the foregoing reasons, the Veterans Court’s deci-
sion denying Mr. Wohlwend’s motion to recall mandate is
vacated, and the case is remanded for further proceedings
consistent with this opinion.
VACATED AND REMANDED