**United States Court of Appeals for the Federal Circuit**

03-7149

LARRY D. BARRETT,

> Claimant-Appellant,

v\.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,

> Respondent-Appellee.

[Michael A. Leonard]{.underline}, The Veterans Law Consortium, of
Washington, DC, argued for claimant-appellant. On the brief was [Mark R.
Lippman]{.underline}, The Veterans Law Consortium, of LaJolla,
California.

[David B. Stinson]{.underline}, 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]{.underline}, Assistant Attorney General; [David
M. Cohen]{.underline}, Director; and [James M. Kinsella]{.underline},
Deputy Director. Of counsel on the brief were [Michael J.
Timinski]{.underline}, Deputy Assistant General Counsel; and [David R.
McLenachen]{.underline}, Attorney, United States Department of Veterans
Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Jonathan R. Steinberg

**United States Court of Appeals for the Federal Circuit**

03-7149

LARRY D. BARRETT,

> Claimant-Appellant,

v\.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,

Respondent-Appellee.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

DECIDED: April 5, 2004

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Before MAYER, [Chief Judge]{.underline}, GAJARSA and DYK, [Circuit
Judges]{.underline}.

MAYER, [Chief Judge]{.underline}.

Larry D. Barrett ("Barrett") appeals the judgment of the Court of
Appeals for Veterans Claims ("Veterans Court"), which held that it
lacked jurisdiction because Barrett failed to file a notice of appeal
within the 120-day period required by 38 U.S.C. § 7266(a).[^1] [Barrett
v. Principi]{.underline}, No. 02-2382 (Vet. App. June 5, 2003). Because
mental illness can justify equitable tolling of section 7266(a) under
some circumstances, we reverse and remand.

# [Background]{.underline}

Barrett served on active duty in the Army from July 1970 to January 1972
and in the Navy from February 1975 to July 1976. He alleges that soon
after returning from a tour in Vietnam he began to experience emotional
problems, but that the symptoms did not become severe until 1982. In
1997, Barrett was diagnosed with post-traumatic stress disorder ("PTSD")
and panic disorder. He claims that by 2002 he suffered from flashbacks
and hallucinations.

Barrett sought service connection for his PTSD and a hand injury; both
claims were denied by the Regional Office and Board of Veterans' Appeals
("board"). On August 15, 2002, the board mailed its decision affirming
the denial of benefits to Barrett. Barrett appealed the board's decision
to the Veterans Court on December 21, 2003, three hundred and
seventy-three days after the 120-day period for appeal had expired. The
government moved to dismiss the appeal for lack of jurisdiction. In
response, Barrett claimed that he was prevented from filing the notice
of appeal because he had been incapacitated by his mental illness, and
that the Veterans Court should therefore equitably toll the 120-day
period for appeal. The Veterans Court dismissed the appeal for lack of
jurisdiction, holding that "ill health has not been adopted as a basis
for such tolling." [Barrett]{.underline}, No. 02-2382 (Vet. App. June 5,
2003). On appeal, Barrett argues that the Veterans Court erred when it
held that mental illness cannot justify the tolling of 38 U.S.C. §
7266(a).

# [Discussion]{.underline}

First, we address the government's contention that we lack jurisdiction
because the Veterans Court made a factual finding that Barrett was not
sufficiently incapacitated to warrant tolling. While we are prohibited
by 38 U.S.C. § 7292(a) from reviewing fact questions, the Veterans Court
decided that the 120-day period for appeal prescribed by section 7266(a)
could never be tolled based on mental incapacity. It did not make a
factual determination as to whether Barrett's alleged incapacity merited
tolling. Therefore, we review the Veterans Court's judgment [de
novo]{.underline}. [See]{.underline} [Collaro v. West]{.underline}, 136
F.3d 1304, 1307 (Fed. Cir. 1998) (reviewing [de novo]{.underline} the
Veterans Court's determination that it lacked jurisdiction).

On the merits, we are presented with only one issue: can mental illness
ever excuse the failure to timely file a notice of appeal? We join the
majority of our sister circuits in concluding that mental illness can
justify equitable tolling.

In [Irwin v. Department of Veterans Affairs]{.underline}, 498 U.S. 89
(1990), the Supreme Court held that there is a rebuttable presumption
that all federal statutes of limitations contain an implied equitable
tolling provision. Pursuant to this decision, we held in [Bailey v.
West]{.underline}, 160 F.3d 1360, 1364 (Fed. Cir. 1998) (en banc), that
section 7266(a) was subject to equitable tolling because the type of
claimant involved and the purpose of the veterans benefit system
suggested that the statute should be applied compassionately.
[Id.]{.underline} at 1368 ("to read the legislative history of section
7266 as requiring ruthless application of the time limit is somewhat
arbitrary"). While the government agrees that section 7266(a) is subject
to equitable tolling, it directs us to language indicating that such
tolling is allowed in only two limited situations: (1) where "the
claimant has actively pursued his judicial remedies by filing a
defective pleading during the statutory period"; and (2) "where the
complainant has been induced or tricked by his adversary's misconduct
into allowing the filing deadline to pass." [Irwin]{.underline}, 498
U.S. at 96; [see also]{.underline} [Bailey]{.underline}, 160 F.3d at
1364. A careful study of Supreme Court precedent, as well as that of the
regional circuits, however, reveals that equitable tolling is available
in a variety of circumstances, including when a party has been mentally
incapacitated.

The Supreme Court has yet to address whether mental illness can justify
equitable tolling. In [Irwin]{.underline}, an employment discrimination
case, petitioner claimed that the 30-day period prescribed in 42 U.S.C.
§ 2000e-16(c) should be tolled because his attorney was out of the
country and did not, therefore, personally receive the relevant notice.
498 U.S. at 91. That case recognized that equitable tolling applied in
suits against the government, but it did not discuss the availability of
tolling based on mental illness. [Id.]{.underline} at 95-96.
Subsequently, [United States v. Brockamp]{.underline}, 519 U.S. 347
(1997), a tax refund case, was decided. In [Brockamp]{.underline}, the
Ninth Circuit had determined that petitioners, who suffered from
alcoholism and senility, were entitled to equitable tolling of 36 U.S.C.
§ 6511. 519 U.S. at 349. Although the Supreme Court concluded that
section 6511 should not be subject to equitable tolling because the
[Irwin]{.underline} presumption had been rebutted, it said that
"\[mental disability\], we assume, would permit a court to toll the
statutory limitations period." [Id.]{.underline} at 348. Therefore, the
Court has intimated that tolling based on mental incapacity is allowed.
More recently, it decided [Young v. United States]{.underline}, 535 U.S.
43 (2002), a bankruptcy case that involved whether 11 U.S.C. §
507(a)(8)(A)(i)'s lookback period could be tolled during the pendency of
a prior bankruptcy petition. The Court noted that equitable tolling has
been widely permitted in the two situations acknowledged in
[Irwin]{.underline}, [supra]{.underline}, and its progeny.
[Young]{.underline}, 535 U.S. at 50. Significantly, and of critical
importance to the outcome of [Young]{.underline}, the Supreme Court
said, "We have acknowledged, however, that tolling might be appropriate
in other cases, and this, we believe is one." [Id.]{.underline}
(citations omitted). Equitable tolling of federal statutes of
limitations is therefore available in more than just the two
circumstances described in [Irwin]{.underline} and [Bailey]{.underline}.
[See]{.underline} [Nunnally v. MacCausland]{.underline}, 996 F.2d 1, 5
n.7 (1st Cir. 1993) ("A fair reading of [Irwin]{.underline}, however,
shows that the Court did not undertake an exhaustive list of factors
that may be considered in the equitable weighing process.").

In addition to the guidance provided by the Supreme Court, several
circuits have allowed equitable tolling based on mental illness. The
First Circuit has established that mental incapacity is a suitable basis
upon which to equitably toll a statute of limitations. [See]{.underline}
[Meléndez-Arroyo v. Cutler-Hammer DE P.R., Co.]{.underline}, 273 F.3d
30, 39 (1st Cir. 2001) (remanding for factual inquiry into whether
plaintiff's mental state warranted equitable tolling);
[Nunnally]{.underline}, 996 F.2d at 5 (holding that 5 U.S.C. §
7703(b)(2) can be tolled due to mental incapacity); [Oropallo v. United
States]{.underline}, 994 F.2d 25, 28 n.2 (1st Cir. 1993) (holding that
26 U.S.C. § 6511 may not be equitably tolled, but that mental incapacity
is a grounds for tolling when available). The Second, Sixth, Seventh,
Ninth and D.C. Circuits have held the same in a variety of
circumstances. [See]{.underline} [Zerilli-Edelglass v. New York City
Transit Auth.]{.underline}, 333 F.3d 74, 80 (2d Cir. 2003) ("Equitable
tolling is generally considered appropriate where . . . a plaintiff's
medical condition or mental impairment prevented her from proceeding in
a timely fashion.") (citations omitted); [Chapman v. Choicecare Long
Island Term Disability Plan]{.underline}, 288 F.3d 506, 514 (2d Cir.
2002) (recognizing mental incapacity as a basis for equitable tolling
under ERISA); [Brown v. Parkchester S. Condos.]{.underline}, 287 F.3d
58, 60 (2d Cir. 2002) (Title VII case finding that plaintiff proffered
sufficient evidence to warrant a hearing on whether her mental
incapacity required tolling); [Boos v. Runyon]{.underline}, 201 F.3d
178, 184 (2d Cir. 2000) (holding that 29 C.F.R. § 1614.105(a)(1) is
subject to equitable tolling based on mental illness); [Canales v.
Sullivan]{.underline}, 936 F.2d 755, 756 (2d Cir. 1991) (holding that 42
U.S.C. § 405(g) may be equitably tolled based on a plaintiff's mental
impairment); [Cantrell v. Knoxville Cmty. Dev. Corp.]{.underline}, 60
F.3d 1177, 1180 (6th Cir. 1995) (holding that attorney's mental illness
may justify equitable tolling); [Miller v. Runyon]{.underline}, 77 F.3d
189, 191 (7th Cir. 1996) (finding that 29 U.S.C. § 791 may be tolled "if
the plaintiff because of disability, irremediable lack of information,
or other circumstances beyond his control just cannot reasonably be
expected to sue in time"); [Stoll v. Runyon]{.underline}, 165 F.3d 1238,
1242 (9th Cir. 1999) (holding that mental incapacity is an extraordinary
circumstance that may warrant equitable tolling); [Smith-Haynie v. Dist.
of Columbia]{.underline}, 155 F.3d 575, 579 (D.C. Cir. 1998) (holding
that the doctrine of equitable tolling "can fairly be read to encompass
cases where a plaintiff has been unable to \[timely file\] because of
disability").

On the other hand, the Third, Fifth and Tenth Circuits have not
unconditionally endorsed tolling a statute of limitations because of
mental illness. The Third Circuit has allowed equitable tolling based on
mental illness, but has limited its application. In [Lake v.
Arnold]{.underline}, 232 F.3d 360, 364 (3d Cir. 2000), a mentally
retarded woman sued her family and physicians for having sterilized her
without her consent. She filed her 42 U.S.C. §§ 1983 and 1985 claims
outside the applicable two-year statute of limitations.
[Id.]{.underline} The court determined that the statute of limitations
could be tolled because the incompetence that caused the delay also
"motivated, to some degree, the injury that \[s\]he sought to remedy."
[Id.]{.underline} at 371. In [Hood v. Sears Roebuck and
Co.]{.underline}, 168 F.3d 231, 233 (5th Cir. 1999), a Title VII case,
the Fifth Circuit held that because the facts did not warrant tolling it
would forego deciding the larger issue of whether such tolling was ever
available. And, in [Ebrahimi v. E.F. Hutton & Co.]{.underline}, 852 F.2d
516, 521 (10th Cir. 1988), the Tenth Circuit stated, "Under the doctrine
of federal equitable tolling, courts generally have not permitted mental
illness, even where rising to the level of insanity, to delay the
statute of limitations from running." The viability of
[Ebrahimi]{.underline} is questionable, however, because it pre-dated
[Irwin]{.underline}, [supra]{.underline}, and because the later opinion
in [Biester v. Midwest Health Services, Inc.]{.underline}, 77 F.3d 1264,
1268 (10th Cir. 1996), takes a less certain stance on the issue.

In addition to the widespread support for equitable tolling based on
mental illness that has developed over the last fifteen years, the
context of section 7266(a) convinces us that such tolling should be
allowed. As noted in [Bailey]{.underline}, the veterans benefit system
is designed to award "entitlements to a special class of citizens, those
who risked harm to serve and defend their country. This entire scheme is
imbued with special beneficence from a grateful sovereign." 160 F.3d at
1370 (Michel, J., concurring); [see also]{.underline} [Jaquay v.
Principi]{.underline}, 304 F.3d 1276, 1286 (Fed. Cir. 2002); [Hensley v.
West]{.underline}, 212 F.3d 1255, 1262 (Fed. Cir. 2000). It would be
both ironic and inhumane to rigidly implement section 7266(a) because
the condition preventing a veteran from timely filing is often the same
illness for which compensation is sought. [See]{.underline}
[Nunnally]{.underline}, 996 F.2d at 5 (noting that "an absolute rule
barring equitable tolling for a plaintiff's insanity might conflict with
the substantive purposes of the Act"). We also observe that: (1) the
120-day period for appeal is relatively short, especially considering
that most claimants are not represented by counsel; (2) the government
is unlikely to experience prejudice as a result of the delay; and (3)
the record has been fully developed. [Bailey]{.underline}, 160 F.3d at
1366. Furthermore, the Department of Veterans Affairs, which employs a
host of medical professionals, is uniquely qualified to facilitate the
diagnosis of troubled claimants should such allegations arise.
Therefore, we conclude that even if it is not related to the veteran's
underlying claim for benefits, mental illness may justify the tolling of
section 7266(a)'s 120-day period for appeal if certain conditions are
satisfied.

The First, Seventh and D.C. Circuits, relying on "state standards for
determining incompetence," have developed generalized criteria for the
circumstances under which mental illness may justify equitable tolling.
[Nunnally]{.underline}, 996 F.2d at 5; [see]{.underline}
[Miller]{.underline}, 77 F.3d at 191; [Smith-Haynie]{.underline}, 155
F.3d at 579. [But cf.]{.underline} [Boos]{.underline}, 201 F.3d at 184
(noting that the Second Circuit evaluates the availability of equitable
tolling based on mental illness on a case-by-case basis). In the First
Circuit, the mental illness must have been "so severe that the plaintiff
was '\[un\]able to engage in rational thought and deliberate decision
making sufficient to pursue \[her\] claim alone or through counsel.'"
[Meléndez-Arroyo]{.underline}, 273 F.3d at 37. The burden is increased
if the plaintiff was represented by counsel. In that case, the First
Circuit will "assume that the mental illness was not of a sort that
makes it equitable to toll the statute---at least absent a strong reason
for believing the contrary." [Lopez v. Citibank, N.A.]{.underline}, 808
F.2d 905, 907 (1st Cir. 1987). The Seventh Circuit has a similar rule
that mental illness tolls a statute of limitations "only if the illness
[in fact]{.underline} prevents the sufferer from managing his affairs
and thus from understanding his legal rights and acting upon them."
[Miller]{.underline}, 77 F.3d at 191. Likewise, the D.C. Circuit
determined that equitable tolling for mental illness is appropriate only
if the plaintiff is "incapable of handling her own affairs or unable to
function \[in\] society." [Smith-Haynie]{.underline}, 155 F.3d at 580
(internal quotes omitted). These courts have emphasized that even a
severe diagnosis standing alone will not warrant tolling.
[See]{.underline} [Meléndez-Arroyo]{.underline}, 273 F.3d at 38 ("It is
clear that merely to establish a diagnosis such as severe depression is
not enough.").

We believe these generalized standards should govern claims of mental
incompetence. Therefore, to obtain the benefit of equitable tolling, a
veteran must show that the failure to file was the direct result of a
mental illness that rendered him incapable of "rational thought or
deliberate decision making," [Meléndez-Arroyo]{.underline}, 273 F.3d at
37, or "incapable of handling \[his\] own affairs or unable to function
\[in\] society," [Smith-Haynie]{.underline}, 155 F.3d at 580 (internal
quotes omitted). A medical diagnosis alone or vague assertions of mental
problems will not suffice. And, if he is represented by counsel during
the relevant period, the veteran must make an additional showing that
the mental illness impaired the attorney-client relationship.
[See]{.underline} [Lopez]{.underline}, 808 F.2d at 907; [see
also]{.underline} [Stoll]{.underline}, 165 F.3d at 1242 (equitable
tolling may be appropriate even if a plaintiff is represented by
counsel).

# [Conclusion]{.underline}

Accordingly, the judgment of the Veterans Court is reversed and the case
is remanded for further proceedings in accordance with this opinion.

[Costs]{.underline}

Costs to appellant.

## REVERSED AND REMANDED

[^1]: ^\*^ 38 U.S.C. § 7266(a) states that, "In order to obtain review
    by the Court of Appeals for Veterans Claims of a final decision of
    the Board of Veterans' Appeals, a person adversely affected by such
    decision shall file a notice of appeal with the Court within 120
    days after the date on which notice of the decision is mailed
    pursuant to section 7104(e) of this title."