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.

O R D E R

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 
2

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 
3

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. 
4

"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 
5

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.
6

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 
7

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).
8

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).
9

"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.).