George Roseberry v. Denis McDonough

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 20-0945(E)

GEORGE ROSEBERRY, APPELLANT,

V.

DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before GREENBERG, FALVEY, and JAQUITH, Judges.

ORDER

On July 20, 2021, the Court set aside a Board of Veterans' Appeals (Board) decision in the
case of U.S. Army veteran George Roseberry and remanded the case for further development and
readjudication. Roseberry v. McDonough, No. 20-0945, 2021 WL 3046816, at *4 (Vet. App. July
20, 2021) (mem. dec.). On November 13, 2021, Mr. Roseberry submitted an application for
attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). The issue before
the Court is whether equitable tolling of the period for filing an EAJA application is warranted.
Because Mr. Roseberry has not demonstrated an extraordinary circumstance, the Court finds
equitable tolling not warranted in this matter, and the Court will not accept his EAJA application
as timely filed.

I. BACKGROUND

On July 20, 2021, the Court remanded the appellant's appeal of a January 28, 2020, Board
decision. Roseberry, 2021 WL 3046816, at *4. The Court entered judgment on August 12, 2021.
On October 15, 2021, the Court entered mandate, clarifying that "mandate is effective October 12,
2021." On November 13, 2021, appellant's counsel, Katie K. Molter, submitted the veteran's
application for attorney fees, costs, and other expenses totaling $11,633.55. Appellant's
Application for Attorney Fees and Expenses at 1.

The Secretary submitted a motion to dismiss Mr. Roseberry's application for an award of
attorney fees as untimely because Mr. Roseberry had filed the application 1 day after the November
12, 2021, deadline. Secretary's Motion to Dismiss Appellant's Application for Attorney Fees and
Expenses at 3. Attorney Molter responded and did not dispute that the application was filed more
than 30 days after mandate. Appellant's Response at 1. She explained: "Unfortunately, a
calendaring error occurred and mandate was recorded as October 15, 2021, the date that mandate
was entered by the Court, and not October 12, 2021, when mandate was actually effective." Id.
She stated that "it is devastating to not be compensated" for the "immense amount of work" she
performed on behalf of the veteran "due to a technicality of the filing date of the attorney fee
application," but she acknowledged that "counsel for Appellant cannot dispute the current legal
landscape that affords the Secretary the avenue to move to dismiss on this basis." Id. At oral
argument, new counsel for the appellant contended that the Secretary's motion to dismiss should
be denied because attorney Molter's response had demonstrated good cause and excusable neglect.
Oral Argument (OA) at 25:55, 31:15, 35:40, 49:33, Roseberry, U.S. Vet. App. No. 20-0945(E)
(argued Oct. 4, 2022), https://www.youtube.com/watch?v=i8se9xXNg-0.

II. LEGAL LANDSCAPE

A. Equal Access to Justice Act
To eliminate the financial barrier to challenging unreasonable government action, EAJA
provides that that "a court shall award to a prevailing party . . . fees and other expenses . . . in any
civil action . . . brought . . . against the United States . . . unless the court finds that the position of
the United States was substantially justified." 28 U.S.C. § 2412(d)(1)(A). EAJA specifically
empowers courts to "award reasonable fees and expenses of attorneys" to the prevailing party, 28
U.S.C. § 2412(b), to enable claimants "to obtain competent legal counsel," Prochazka v. United
States, 116 Fed. Cl. 444, 447 (2014); see Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552, 130
S. Ct. 1662, 1672-73, 176 L. Ed. 2d 494, 505 (2010) (declaring that a reasonable fee is one "that
is sufficient to induce a capable attorney" to represent a claimant in a meritorious case). Because
the statute provides for awarding attorney fees to the prevailing party, "EAJA fees are payable to
and the property of the veteran, not a veteran's attorneys." Shealey v. O'Rourke, 30 Vet.App. 108,
110 (2018) (per curiam order), aff'd sub nom. Shealey v. Wilkie, 946 F.3d 1294 (Fed. Cir. 2020);
see Astrue v. Ratliff, 560 U.S. 586, 588–89, 130 S. Ct. 2521, 2524, 177 L. Ed. 2d 91, 97 (2010)
(holding that a section 2412(d) fee award is payable to the litigant, not to his or her attorney).
However, courts "recognize the practical reality that attorneys are the beneficiaries and, almost
always, the ultimate recipients of the fees that the statute awards to 'prevailing part[ies].' Ratliff,
560 U.S. at 598 (quoting Venegas v. Mitchell, 495 U.S. 82, 86, 110 S. Ct. 1679, 1682, 109 L. Ed.
2d 74, 82 (1990)).

Since 1992, EAJA has specified that it applies to cases before this Court. See Tilton v.
Brown, 5 Vet.App. 23, 24 (1993); 28 U.S.C. § 2412(d)(2)(F) (defining "court" as including "the
United States Court of Appeals for Veterans Claims"). Therefore, in veterans cases,
To establish eligibility for an EAJA award, an appellant's application must
be filed within 30 days after final judgment in the action and contain (1) a showing
that the appellant is a prevailing party, (2) an assertion that the appellant's net worth
does not exceed $2,000,000, (3) an allegation that the Secretary's position was not
substantially justified, and (4) an itemized statement of the fees and expenses
sought.
Shealey, 30 Vet.App. at 110. Only the timeliness of the veteran's application is at issue in this case.

B. The EAJA Deadline
Under EAJA, the statutory deadline requires an applicant for attorney fees and other
expenses to submit an application within 30 days "of final judgment." 28 U.S.C. § 2412(d)(1)(B);
see U.S. VET. APP. R. 39 (requiring an EAJA application "not later than 30 days after the Court's
judgment becomes final"). By "final judgment," the statute "means a judgment that is final and not
appealable." 28 U.S.C. § 2412(d)(2)(G). The judgments of this Court are appealable to the U.S.
Court of Appeals for the Federal Circuit for 60 days. Bly v. Shulkin (Bly II), 883 F.3d 1374, 1376
(Fed. Cir. 2018), vacating Bly v. McDonald (Bly I), 28 Vet.App. 256 (2016); see 38 U.S.C. §
7292(a); FED. R. APP. P. 4(a)(1)(B)(iii); U.S. VET. APP. R. 36(a) ("Judgment begins the 60-day time

2
period for appealing to . . . the Federal Circuit."). If a Notice of Appeal is not filed within 60 days,
this Court's judgment becomes final, and mandate is issued. 38 U.S.C. § 7291(a); U.S. VET. APP.
R. 41(a). "Mandate is when the Court's judgment becomes final and is effective as a matter of law
pursuant to 38 U.S.C. § 7291." U.S. VET. APP. R. 41(a); see Sapp v. Wilkie, 32 Vet.App. 125, 146
(2019) (per curiam order) ("Mandate finalizes and effectuates the Court's judgment on a matter.").
"Final judgment is represented by the issuance of mandate," which starts the 30-day time period
an appellant has to submit an EAJA application. Westfall v. McDonald, 27 Vet.App. 341, 343
(2015) (per curiam order).

C. Equitable Tolling
However, "the 30-day deadline for [EAJA] applications and its application-content
specifications are not properly [termed] 'jurisdictional.'" Scarborough v. Principi, 541 U.S. 401,
414, 124 S. Ct. 1856, 1865, 158 L.Ed.2d 674, 687 (2004). This statutory time limit is subject to
equitable tolling. Bly I, 28 Vet.App. at 261.

In Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95, 111 S. Ct. 453, 457, 112 L.
Ed. 2d 435, 443 (1990), the Supreme Court decided on a "general rule to govern the applicability
of equitable tolling in law suits against the Government." Id. at 95, 111 S. Ct. at 457, 112 L. Ed.
2d at 443. The Supreme Court held that equitable tolling of statutory time limits for bringing suits
against the Federal Government could not be more favorable than such tolling in suits between
private litigants. Id. at 96, 111 S. Ct. at 458, 112 L. Ed. 2d at 444. And the Court described two
situations when it had allowed equitable tolling: "where the claimant has actively pursued his [or
her] judicial remedies by filing a defective pleading during the statutory period, [and] where the
[claimant] has been induced or tricked by his [or her] adversary's misconduct into allowing the
filing deadline to pass." Id. at 96, 111 S. Ct. at 458, 112 L. Ed. 2d at 444. Finally, the Supreme
Court clarified that principles of equitable tolling "do not extend to what is at best a garden variety
claim of excusable neglect." Id.

D. Extraordinary Circumstances
An otherwise untimely EAJA application may be subject to equitable tolling if it is
established that some "extraordinary circumstance" prevented a timely filing and that despite the
circumstance, the applicant pursued his or her rights diligently. See Bly I, 28 Vet.App. at 261
(citing Checo v. Shinseki, 748 F.3d 1373, 1378-80 (Fed. Cir. 2014)). To establish equitable tolling,
the appellant must demonstrate (1) an extraordinary circumstance, (2) due diligence in attempting
to file, and (3) a connection between the extraordinary circumstance and the failure to timely file.
See Toomer v. McDonald, 783 F.3d 1229, 1238 (Fed. Cir. 2015); Checo, 748 F.3d at 1378;
McCreary v. Nicholson, 19 Vet.App. 324, 332 (2005), adhered to on reconsideration, 20 Vet.App.
86 (2006). "'Equitable tolling is not limited to a small and closed set of factual patterns,' and the
Court must consider equitable tolling on a 'case-by-case basis,' 'avoiding mechanical rules,' and
observing 'the need for flexibility.'" Benson v. Wilkie, 32 Vet.App. 381, 384 (2020) (per curiam
order) (quoting Sneed v. Shinseki (Sneed I), 737 F.3d 719, 726 (Fed. Cir. 2013), aff'd sub nom.
Sneed v. McDonald (Sneed II), 819 F.3d 1347 (Fed. Cir. 2016)); see James v. Wilkie, 917 F.3d
1368, 1373 (Fed. Cir. 2019) ("[T]he extraordinary circumstance element necessarily requires a
case-by-case analysis and not a categorical determination."). But the circumstances in this case
don't come close to those this Court has considered extraordinary.

3
 "An extraordinary circumstance is one beyond the [appellant's] control." Raybine v. Wilkie,
31 Vet.App. 419, 422 (2019), appeal docketed sub nom. Raybine v. McDonough, No. 20-1218
(Fed. Cir. Dec. 9, 2019). That principle allows equitable tolling to stop the clock when an
appellant's illness caused incapacity that prevented even the exercise of due diligence in trying to
file on time. Craig-Davidson v. McDonough, 35 Vet.App. 281, 293 (2022) (per curiam order).
"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," but not in situations of hardship that do not directly result in untimely filing. Raybine, 31
Vet.App. at 422 (collecting cases). The Court employs a lower standard when considering certain
other late nonjurisdictional filings. Under Rule 4(a)(3)(B)(i) of the Court's Rules of Practice and
Procedure, an untimely Notice of Appeal will be treated as timely if it "is received within 30 days
after the expiration of the filing deadline and the appellant demonstrates good cause or excusable
neglect for failure to file the Notice of Appeal within the 120-day period." U.S. VET. APP. R.
4(a)(3)(B)(i). If the Notice of Appeal is received more than 30 days after the filing deadline, the
extraordinary circumstance standard applies. U.S. VET. APP. R. 4(a)(3)(B)(ii).

III. ANALYSIS

For the first time at oral argument, Mr. Roseberry argued that he is not looking for equitable
tolling under the extraordinary circumstances standard, but rather under a lower standard of good
cause and excusable neglect. OA at 29:23-29:50. He asserted that "the Court has not held that
extraordinary circumstances are the only requirement or must be shown in order to avail oneself
of equitable tolling." OA at 30:02-30:30. He argued that while the extraordinary circumstances
standard provides one exception to the EAJA filing deadline, the existing legal landscape leaves
room open for this Court to establish an additional exception to the deadline. OA at 38:35-39:22.
Lastly, he conceded that garden variety neglect would not meet the extraordinary circumstances
standard, but he argued both that garden variety neglect could meet an applicable lower standard
and that his counsel's mistake was more complicated than garden variety neglect. OA at 40:09-
41:37.

As an initial matter, this Court discourages and generally will not consider arguments
raised by counsel at oral argument for the first time. Ray v. Wilkie, 31 Vet.App. 58, 69 (2019).
Raising a new argument in the courtroom is unfair to opposing counsel and does a disservice to
the case by limiting the forethought and preparation that makes oral argument helpful to the Court.
See Atencio v. O'Rourke, 30 Vet.App. 74, 85–86 (2018); U.S. VET. APP. R. 34(b)(2) (providing for
oral argument when it will aid the Court). Exercising our discretion to consider the belated
argument by appellant's new counsel, the Court does not agree that it can apply a standard lower
than extraordinary circumstances to equitably toll the EAJA filing deadline. In contrast with the
appellant's contention, caselaw is clear that to benefit from equitable tolling, a party must show an
extraordinary circumstance. See Checo, 748 F.3d at 1378 (explaining that the Veterans Court's
requirement—that a claimant demonstrate an extraordinary circumstance, due diligence, and
causation to benefit from equitable tolling—is consistent with other jurisdictions and Supreme
Court guidance (first citing McCreary, 19 Vet.App. at 332; and then citing Irwin, 498 U.S. at 96)).
The Federal Circuit has specifically rejected the assertion that an appellant does not need to show
extraordinary circumstances as "belied by the Supreme Court's and [the Federal Circuit's] case

4
law, which make clear that both 'due diligence' and 'extraordinary circumstances' are required
elements for equitable tolling." Toomer, 783 F.3d at 1239. Last fall, the Federal Circuit reaffirmed
that an appellant must demonstrate an extraordinary circumstance to benefit from equitable tolling.
Skaar v. McDonough, 48 F.4th 1323, 1334 (Fed. Cir. 2022) (quoting Toomer, 783 F.3d at 1238),
pet. for cert. filed, No. 22-815 (U.S. Feb. 28, 2023). Because a claimant is required to show an
extraordinary circumstance to benefit from equitable tolling, the appellant's suggestion that the
Court apply a new, less strict standard in this case contravenes current caselaw.

In Nelson v. Nicholson, the Federal Circuit expressly rejected the argument that "'excusable
neglect' should be incorporated into the test for equitable tolling in veterans' cases," because the
standard was not mentioned in any applicable statute or rule. Nelson v. Nicholson (Nelson II), 489
F.3d 1380, 1384-85 (Fed. Cir. 2007) ("Absent a reference to 'excusable neglect' in a statute or rule,
Irwin and its progeny control the question of whether equitable tolling applies."), aff’g Nelson I,
19 Vet.App. 548, 553 (2006). Here, Mr. Roseberry points to no governing statute or rule that
suggests the application of such a standard. Instead, he invokes Rule 4 of the Court's Rules of
Practice and Procedure, which governs equitable tolling for Notices of Appeal to the Court. U.S.
VET. APP. R. 4. This rule does not apply in the context of EAJA applications.

In 2019, the Court revised Rule 4. McGee v. Wilkie, 31 Vet.App. 368, 370 (2019) (per
curiam order). New language in Rule 4(a)(3)(B) provided that
an untimely Notice of Appeal will be treated as timely if (i) the Notice of Appeal
is received within 30 days after the expiration of the filing deadline and the
appellant demonstrates good cause or excusable neglect for failure to file the Notice
of Appeal within the 120-day period; or (ii) the Notice of Appeal is received more
than 30 days after the expiration of the filing deadline but equitable tolling is
warranted because the appellant demonstrates an extraordinary circumstance that
prevented timely filing and the exercise of reasonable due diligence in attempting
to file a timely Notice of Appeal.
In re Rules of Practice and Procedure, U.S. VET. APP. MISC. ORDER NO. 04-19, Attachment 1 at
1, Attachment 2 at 1 (Jan. 29, 2019); accord In re Rules of Practice and Procedure, U.S. VET. APP.
MISC. ORDER NO. 09-19, Attachment 1 at 1 (June 21, 2019), www.uscourts.cavc.gov
/miscellaneous_orders.php.1

The Court also revised Rule 26, Computation and Extension of Time, to state that "the
Court may not extend the time for filing a Notice of Appeal except as provided by Rule 4, or an
application for attorney fees and expenses." U.S. VET. APP. R. 26(b) (emphasis added). The new
language in Rule 26—the underlined portion—plainly applies to Notices of Appeal but not to
applications for attorney fees and expenses, highlighting that the Court did not intend to apply the
new Rule 4 excusable neglect standard to applications for attorney fees and expenses. The different
standards may reflect the different interests involved—one preserving the often-unrepresented
veteran's opportunity to be heard in an appeal, and the other bounding the veteran's opportunity to
have his or her attorney paid by public funds.

1
Miscellaneous Order Number 04-19 published the proposed revisions for public comment, and
Miscellaneous Order Number 09-19 published the revised rules and made them effective.

5
 This is not to say that a showing of good cause or excusable neglect could not also satisfy
the extraordinary circumstance standard. Caselaw is clear that equitable tolling does not extend to
"garden variety neglect" or "ordinary attorney neglect." Irwin, 498 U.S. at 96; Nelson I, 19
Vet.App. at 553 ("[O]rdinary 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."). But there
could exist some level of attorney neglect, other than "garden variety" or "ordinary" neglect, that
could constitute an extraordinary circumstance. See, e.g., Nelson I, 19 Vet.App. at 553 (explaining
that several federal courts of appeal have held that egregious attorney misconduct can constitute
an extraordinary circumstance). The Court's consideration of equitable tolling on a case-by-case
basis, see Sneed I, 737 F.3d at 726, allows it to flexibly apply the extraordinary circumstances
standard, but it provides no basis for claimants to benefit from equitable tolling based on a lower
standard or principles of general equity.

"[E]quitable tolling . . . is largely premised on the notion that the veterans benefits system
is paternalistic and not unduly rigid when it comes to applying rules to the typical claimant." Ravin
v. Wilkie, 30 Vet.App. 310, 317 (2018), aff'd, 956 F.3d 1346 (Fed. Cir. 2020). Attorneys are
expected to know the rules and follow them. Ravin, 30 Vet.App. at 317. As our dissenting
colleague declares, instead of placing needless obstacles on the road to resolving veterans claims,
we should encourage lawyers to represent veterans. See post at 9. But the rule of law relies on,
well, rules, to rumble on—and on lawyers who are attentive to those rules. And capable lawyers
do not expect to miss deadlines when they agree to represent a client—including deadlines that
affect the payment of attorney fees—nor do they forgo representation in fear of missing deadlines.
The lawyer here is a capable one who made a mistake, owned up to it, and expressed her
understanding of the likely consequence, so new appellate counsel argued for relaxing the
established equitable tolling standard.

However, under the applicable standard for equitable tolling, which requires a showing of
an extraordinary circumstance, due diligence in attempting to file, and causation, Mr. Roseberry
has not met his burden to show that equitable tolling of the EAJA filing deadline is warranted. See
Palomer v. McDonald, 27 Vet.App. 245, 251 (2015) (per curiam order) (explaining that it is the
appellant's burden to demonstrate entitlement to equitable tolling), aff’d, 646 F. App'x 936 (Fed.
Cir. 2016). His attorney's miscalculation of the filing deadline based on the mandate's date of entry
does not rise to the level of an extraordinary circumstance. See McCreary, 19 Vet.App. at 330.
Instead, the mistake amounts to ordinary attorney neglect, which does not warrant equitable
tolling. See Nelson I, 19 Vet.App. at 553; see also Benson, 32 Vet.App. at 384 ("[B]oth the
Supreme Court and the Federal Circuit have cited 'a simple "miscalculation" that leads a [party] to
miss a filing deadline' as an example of 'a garden variety claim of excusable neglect.'" (citing
Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 257-58, 136 S. Ct. 750, 757, 193
L. Ed. 2d 652, 659 (2016); Sneed II, 819 F.3d at 1351)).

This Court's Rules point applicants for attorney fees and expenses to Rule 36 (Entry of
Judgment) and Rule 41 (Mandate) to determine the time limit for submitting their application. U.S.
VET. APP. R. 39(a). A practitioner's note to both Rule 36 and Rule 41 highlights the circumstance
the appellant identifies as the reason her fee application was untimely. The practitioner's note
provides: "Because entry of mandate on the docket is a ministerial act and may not occur on the
date of mandate, practitioners are cautioned to use diligence when calculating time periods so as

6
to ensure timely filings." U.S. VET. APP. R. 36, Practitioner's Note, R. 41, Practitioner's Note.
Attention to that note would have prevented the problem in this case. Because Mr. Roseberry has
not demonstrated that an extraordinary circumstance prevented him from filing a timely EAJA
application despite his exercise of due diligence, the Court finds that equitable tolling is not
warranted.

IV. CONCLUSION

Upon consideration of the foregoing, it is

ORDERED that the February 9, 2022, stay in this matter is lifted. It is further

ORDERED that the Secretary's January 19, 2022, motion to dismiss the EAJA application
is granted, and the November 13, 2021, EAJA application from appellant's counsel is DISMISSED
as untimely.

DATED: May 17, 2023 PER CURIAM.

GREENBERG, Judge, dissenting: This is an equitable tolling case. Unique to our
jurisdiction, these cases leave the factfinding, interpretation of those facts, and application of those
facts to well-settled concepts of equity, to this Court. The appellant, U.S. Army veteran George
Roseberry, signed a fee agreement with attorney Katie Molter wherein Ms. Molter agreed to
represent the appellant before this Court at no cost to the appellant. Fee Agreement at 1. The
agreement explained that Ms. Molter's only recompense for her effort would be what she could
collect in attorney fees and litigation expenses through the applicable provisions of the Equal
Access to Justice Act (EAJA). 28 U.S.C. § 2412(d). In July 2021, the Court remanded the
appellant's service connection claim for further development and readjudication by the Board of
Veterans' Appeals. Roseberry v. McDonough, No. 20-0945, 2021 WL 3046816, at *4 (Vet. App.
July 20, 2021) (mem. dec.). As the "prevailing party" in this matter, the appellant applied for
attorney fees under 28 U.S.C. § 2412(d), requesting $11,633.55 for Ms. Molter's 62.9 hours of
work. Appellant's Application for Attorney Fees and Expenses at 6. However, because the
application was filed 1 day late due to a calendaring error, the majority will grant the Secretary's
motion to dismiss the EAJA application, and Ms. Molter will receive nothing. I respectfully dissent
from the Court's holding that equitable tolling is not warranted in this case.

I.
Congress created this Court "for the express purpose of ensuring that veterans were treated
fairly by the Government and to see that all veterans entitled to benefits received them." Taylor v.
McDonough, 3 F.4th 1351, 1365 (Fed. Cir.), reh'g en banc granted, opinion vacated, 4 F.4th 1381
(Fed. Cir. 2021) (per curiam order). The Court may exercise equitable powers as required to carry
out this statutory grant of jurisdiction. See Barrett v. Nicholson, 466 F.3d 1038, 1044 (Fed. Cir.
2006); Burris v. Wilkie, 888 F.3d 1352, 1361 (Fed. Cir. 2018). These powers include the doctrine
of equitable tolling, which "is a traditional feature of American jurisprudence and a background
principle against which Congress drafts limitations periods." Boechler, P.C. v. Comm'r, 596 U. S.
___, ___, 142 S. Ct. 1493, 1500, 212 L. Ed. 2d 524, 529 (2022). In Bly v. McDonald, we held that
"the statutory 30-day period in which to file an EAJA application is subject to equitable tolling."
28 Vet.App. 256, 258 (2016), vacated sub nom. Bly v. Shulkin, 883 F.3d 1374 (Fed. Cir. 2018).

7
Yet this was never contemplated by Congress. The EAJA statute is silent on what classes of cases
the Court can adjudicate, and we as Judges are left with the exclusive duty to interpret the law for
ourselves and to consider equitable tolling on a case-by-case basis. See Scarborough v. Principi,
541 U.S. 401, 414, 124 S. Ct. 1856, 1865, 158 L. Ed. 2d 674, 681 (2004) ("[T]he provision's 30-
day deadline for [EAJA] applications and its application-content specifications are not properly
[termed] 'jurisdictional.'"); see also Benson v. Wilkie, 32 Vet.App. 381, 384 (2020) (per curiam
order) ("'Equitable tolling is not limited to a small and closed set of factual patterns,' and the Court
must consider equitable tolling on a 'case-by-case basis,' 'avoiding mechanical rules,' and
observing 'the need for flexibility.'" (quoting Sneed v. Shinseki, 737 F.3d 719, 726 (Fed. Cir. 2013),
aff'd sub nom. Sneed v. McDonald, 819 F.3d 1347 (Fed. Cir. 2016))); James v. Wilkie, 917 F.3d
1368, 1373 (Fed. Cir. 2019) ("[T]he extraordinary circumstance element necessarily requires a
case-by-case analysis and not a categorical determination."). "Courts, he said, must 'stop this
business of making up excuses for judges to abdicate their job of interpreting the law.'" Buffington
v. McDonough, 143 S. Ct. 14, 15, 214 L. Ed. 2d 206, 207 (2022) (Gorsuch, J., dissenting) (quoting
Buffington v. Wilkie, 31 Vet.App. 293, 307 (2019) (Greenberg, J., dissenting), aff'd sub nom.
Buffington v. McDonough, 7 F.4th 1361 (Fed. Cir. 2021)). Here, the majority provides a rigid and
self-limiting view of the Court's authority to grant equitable tolling when it should be treated no
differently than any other interim action of a single Judge.2

II.
My view that equitable tolling is warranted in this case is based on "the singular
characteristics of the review scheme that Congress created for the adjudication of veterans' benefits
claims," which I believe should influence our definition of "extraordinary circumstance" as it
relates to the timeliness of a veteran's application for EAJA fees.3 Henderson, 562 U.S. at 440; see
Bly, 28 Vet.App. at 261 (citing Checo v. Shinseki, 748 F.3d 1373, 1378-80 (Fed. Cir. 2014)). The
majority describes an "extraordinary circumstance" in this context as one that is "beyond the
[appellant's] control." Raybine v. Wilkie, 31 Vet.App. 419, 422 (2019), appeal docketed sub nom.
Raybine v. McDonough, No. 20-1218 (Fed. Cir. Dec. 9, 2019). Yet the majority also finds that

2
The Court's scope of review is "similar to that of an Article III court reviewing agency action under the
Administrative Procedure Act, 5 U.S.C. § 706." Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 440 n.2, 131
S. Ct. 1197, 1205 n.2 (2011); see 38 U.S.C. § 7261. "The Court may hear cases by judges sitting alone or in panels,
as determined pursuant to procedures established by the Court." 38 U.S.C. § 7254. The statutory command that a
single Judge may issue a binding decision is "unambiguous, unequivocal, and unlimited," see Conroy v. Aniskoff,
507 U.S. 511, 514 (1993).
3
As Justice Alito has recognized, "[w]e have long applied 'the canon that provisions for benefits to members
of the Armed Services are to be construed in the beneficiaries' favor.'" Henderson, 562 U.S. at 440 (quoting King v.
St. Vincent's Hosp., 502 U.S. 215, 220-21 n.9, 112 S. Ct. 570, 575 n.9, 116 L. Ed. 2d 578, 582 n. 9 (1991)); see also,
e.g., Hayburn's Case, 2 U.S. 408, 2 Dall. 409, 1 L. Ed. 436 (1792) (describing the attempts of circuit courts to
circumvent the unconstitutionality of the Invalid Pensioners Act of 1792); Boone v. Lightner, 319 U.S. 561, 575, 63
S. Ct. 1223, 1235, 87 L. Ed. 1587, 1600 (1943) (noting that the Soldiers' and Sailors' Civil Relief Act of 1940, 50
U.S.C. § 501, amended by Servicemembers Civil Relief Act, Pub. L. No. 108-189, 117 Stat. 2835 (2003) (current
version at 50 U.S.C. §§ 3901-4043), was "always to be liberally construed to protect those who have been obliged to
drop their own affairs to take up the burdens of the nation"); Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95
L. Ed. 152 (1950) (considering, but ultimately denying, applicability of the Federal Tort Claims Act, 28 U.S.C. §
1346(b), to service-related injuries); Johnson v. Robison, 415 U.S. 361, 94 S. Ct. 1160, 39 L. Ed. 2d 389 (1974)
(holding that judicial review of constitutional challenges to veterans benefits legislation was available even though
Congress had foreclosed judicial review of individual benefits determinations).

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"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." Nelson v. Nicholson, 19
Vet.App. 548, 553 (2006), aff'd, 489 F.3d 1380 (Fed. Cir. 2007). In the context of a veteran's
application for EAJA fees, however, it is unclear how even the most garden-variety mistake by an
attorney that results in the dismissal of the appellant's application would not be an "extraordinary
circumstance" from the veteran's perspective.

"EAJA fees are payable to and the property of the veteran, not a veteran's attorneys. As
such, attorneys do not have independent standing even to apply for EAJA fees." Shealey v.
O'Rourke, 30 Vet.App. 108, 110 (2018) (per curiam order), aff'd sub nom. Shealey v. Wilkie, 946
F.3d 1294 (Fed. Cir. 2020). This is not merely a legal fiction. EAJA fees represent a way for
veterans to secure quality legal representation without abandoning a portion of the very benefits
they are hiring an attorney to help acquire. I would find in this case that Ms. Molter's miscalculation
of the filing deadline is an extraordinary circumstance that prevented the timely filing of the
appellant's EAJA application. However, we need not go that far. Though the majority frames its
standard of review and conclusions in terms of a case-by-case analysis, it appears to actually apply
a categorical ban, foreclosing the possibility that an attorney's miscalculation of the filing date
based on the mandate's date of entry may ever constitute an extraordinary circumstance. See James,
917 F.3d at 1375 ("We conclude that the Veterans Court erred as a matter of law in making an
impermissible categorical determination that a particular set of facts will never warrant equitable
tolling of the filing deadline.").

Mechanical applications of seemingly immutable rules are inconsistent with the role of a
federal Judge. They give rise to the irrebuttable presumption that our role as Judges is paramount.
Anyone can add a column of numbers. Judges must decide if the outcome is right, just, equitable,
and consistent with the universal intent of Congress. I would have made an independent
determination that equitable tolling is warranted in this case and that it should proceed to payment
on the merits.

"Lawyers should be paid for work done before this Court where the work results in a
palpable benefit to the veteran." Bly, 28 Vet.App. at 266. We should encourage lawyers to
represent veterans; we should not place needless additional obstacles on the long road toward an
adequate award. See Henderson, 562 U.S. at 431 ("The VA's adjudicatory 'process is designed to
function throughout with a high degree of informality and solicitude for the claimant.'" (quoting
Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 311, 105 S. Ct. 3180, 3185, 87 L. Ed.
2d 220, 226 (1985))).

III.
I will not join the majority, as it ignores the practical considerations of being a lawyer,
abstains from exercising its full authority to interpret the law, and disregards the long-standing
congressional solicitude for veterans. In the words of Justice Paterson, "[j]udges may die, and
courts be at an end; but justice still lives, and, though she may sleep for a while, will eventually
awake, and must be satisfied." Penhallow v. Doane's Adm'rs, 3 U.S. (3 Dall.) 54, 79 (1795)
(opinion of Paterson, J.).

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