UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 14-3656

MARION ALDRIDGE, APPELLANT,

V.

ROBERT A. MCDONALD,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before LANCE, DAVIS, and GREENBERG, Judges.

O R D E R

On October 27, 2014, United States Marine Corps veteran Marion Aldridge submitted to the

Court a Notice of Appeal (NOA) from a December 24, 2013, Board of Veterans' Appeals (Board)

decision. To be timely, the NOA should have been filed by April 23, 2014. See 38 U.S.C. § 7266(a)

(providing that a person adversely affected by a Board decision who wishes to appeal "shall file a

notice of appeal with the Court within 120 days after the date on which notice of the decision is

mailed"). The Secretary moved to dismiss the appeal because it was not timely filed and the Court

ordered Mr. Aldridge to explain why the appeal should not be dismissed. 

In response to the Court's order, Mr. Aldridge states that the time to appeal the Board's

decision should be equitably tolled in light of the deaths of his mother, sister, and unborn

granddaughter, all of which occurred during a nine-month period. Mr. Aldridge contends that the

combined effect of these deaths led to a deep depression that caused him to experience difficulty

processing dates and times and that he did not understand that he had only until April 23, 2014, to

file his NOA. Mr. Aldridge contends that the depression, combined with his singular focus on the

well being of his family, either directly or indirectly caused his appeal to have been filed late. 

The 120-day period to appeal a Board decision to the Court is not jurisdictional and therefore

may be excused under the doctrine of equitable tolling. Henderson v. Shinseki, 562 U.S. 428 (2011).

"As a general matter, equitable tolling pauses the running of, or 'tolls,' a statute of limitations."

Lozano v. Montoya Alvarez, 134 S.Ct. 1224, 1231 (2014). The Supreme Court has determined that

equitable tolling is appropriate when an appellant demonstrates "'(1) that he has been pursuing his

rights diligently, and (2) that some extraordinarycircumstance stood in his way' and prevented timely

filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408,

418 (2005)); Checo v. Shinseki, 748 F.3d 1373, 1378 (Fed. Cir 2014) (proponent of equitable tolling

must show (1) an extraordinarycircumstance, (2) due diligence, and (3) causation) (citing McCreary

v. Nicholson, 19 Vet.App. 324 (2005), adhered to on reconsideration, 20 Vet.App. 86 (2006)),

reversing in part and dismissing in part, 26 Vet.App. 130 (2013); see also Toomer v. McDonald,

783 F.3d 1229 (Fed. Cir. 2015). Whether a situation justifies equitable tolling is a matter assessed
by the Court on a case-by-case basis with an acknowledgment of the "need for flexibility" and "for

avoiding mechanical rules." Toomer, 783 F.3d at 1239 (citing Holland, 560 U.S. at 649); Sneed v.

Shinseki, 737 F.3d 719, 726 (Fed. Cir. 2013) (noting that equitable tolling is not "limited to a small

and closed set of factual patterns"). 

Although sympathetic to Mr. Aldridge's claim, the Court finds that he has not demonstrated

that equitable tolling is warranted. Mr. Aldridge contends that his family members' deaths caused

a depression so great that he lost sense of time and had difficulty carrying out even routine tasks.

However, Mr. Aldridge also states that, during the same period, he closed the estates of his deceased

mother and sister, became his elderly father's primary caregiver, maintained his job as a desk clerk

at a VA hospital, and attempted to hire a law firm to represent him in his appeal before the Court.

Given these facts, the Court is unconvinced that Mr. Aldridge's depression rendered him incapable

of handling his affairs or otherwise directly or indirectly prevented his appeal from being timely

filed. See Holland, 560 U.S. at 649; see also Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir.

2004) (applying equitable tolling when appellant suffered a mental illness that rendered him

incapable of handling his own affairs). Furthermore, although the deaths of his family members

were distressing and their aftermath required a great deal of attention, Mr. Aldridge also has failed

to demonstrate that the deaths themselves directly or indirectly affected the timely filing of his

appeal. See Holland, 560 U.S. at 649. Because Mr. Aldridge has not demonstrated facts sufficient

to justify equitable tolling, the Court will dismiss his appeal. See Checo, 26 Vet.App. at 133 (the

appellant bears "the burden of demonstrating that equitable tolling is warranted"). 

Again, the Court acknowledges the regrettable and sympathetic circumstances that burdened

Mr. Aldridge. However, the Court is required to applythe doctrine of equitable tolling in accordance

with the governing body of law. See Sneed, 737 F.3d at 726 (reversing this Court's determination that

attorney abandonment does not warrant equitable tolling because the Court's overly narrow

determination conflicted with Federal Circuit and Supreme Court precedent). In that regard, the

dissent—good intentions aside—provides no support in the jurisprudence of either this Court, the

U.S. Court of Appeals for the Federal Circuit, or the Supreme Court that would counsel the

application of equitable tolling to the facts of this case as they have been presented. See Bethea v.

Derwinski, 2 Vet.App. 252, 254 (1992) (decisions of the Court are bound by precedent, which

includes an "en banc decision of this Court, a decision of the United States Court of Appeals for the

Federal Circuit . . ., or a decision of the Supreme Court of the United States"). Although the dissent

would have "'justice be done whatever be the consequences,'"Post at 5 (quoting Somerset v. Stewart,

(1772) 98 Eng. Rep. 499 (K.B.) 509 (Lord Mansfield)), the Court may not issue a decision that

conflicts with established precedent, Bethea, 2 Vet.App. at 254, and moreover, is unwilling to accept

the potential for the inequitable administration of justice to the parties who appear before it in

exchange for ad hoc decisionmaking not grounded in the law. 

Mr. Aldridge also asserts that the Court should address whether the three-part test for

extraordinary circumstances set out in McCreary conflicts with the test articulated by the Supreme

Court in Holland. According to Mr. Aldridge, the Holland test is more flexible than the McCreary

test because McCreary holds that an untimely filing must be the direct result of an extraordinary

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circumstance, whereas Holland requires only that the extraordinary circumstance "stood in [the

appellant's] wayand prevented timely filing." 560 U.S. at 649. However, because the Court finds that

Mr. Aldridge's circumstances neither directly nor indirectly prevented the timely filing of his appeal,

the facts of this case do not raise Mr. Aldridge's perceived distinction between McCreary and

Holland. Accordingly, the Court will not address this issue further. See Waterhouse v. Principi, 3

Vet.App. 473, 474 (1992) (holding that the Court does not issue advisory opinions); see also

Nashville, Chattanooga & St. Louis Ry. Co. v. Wallace, 288 U.S. 249, 262 (1933) (an advisory

opinion is "an abstract determination by the Court of the validity of a statute . . . or a decision

advising what the law would be on an uncertain or hypothetical state of facts.").

On consideration of the foregoing, it is

ORDERED that the Secretary's motion to dismiss is granted and this appeal is DISMISSED.

DATED: August 7, 2015 PER CURIAM.

GREENBERG, Judge, dissenting: I dissent and contend that the Court should exercise its

equitable power to toll the appeal period and accept the appellant's appeal in light of his testimony.

The appellant in this case alleges that the deaths of three familymembers in four months, and

his overwhelming grief, prevented him from filing his appeal within the statutory 120-day appeal

period. Specifically, on September 27, 2013, the appellant's mother died. Appellant's Memo,

Appendix (App.) at 13. On December 16, 2013, the appellant's granddaughter was born stillborn. 

Appellant's Memo, App. at 12. On December 24, 2013, the Board issued its decision on the

appellant's claims. On January 14, 2014, the appellant's sister died. Appellant's Memo, App. at 14. 

The appellant states that following his mother's death, he "became severely depressed" and

"had difficulty carrying out tasks that had been routine before her death." Appellant's Memo, App.

at 2-3. After his granddaughter died, "[his] depression deepened and [he] was overwhelmed with

sadness." Appellant's Memo, App. at 3. At the time that he received the Board decision in this case,

he was "in a depressive state" and "was unable to even consider next steps like noticing an appeal"

or even to "think about [him]self or [his] disability benefits." Appellant's Memo, App. at 3. The

death of the appellant's sister "exacerbated all of the grief [he] was already experiencing" and pushed

him into a "dark period of depression" in which he "felt shut in a closet or trapped with [his] grief."

Appellant's Memo, App. at 3-4. 

The appellant alleges that, in his state of grief, he "singularly focused on the well-being of

others in [his] family," "consum[ing himself] with handling the estates of [his] mother and sister,

including paying bills and conferring with creditors"; "becom[ing his] 83[-]year[-]old father's

primary caregiver," and "tried to support [his] daughter . . . as she continues to recover from the loss

of her child." Appellant's Memo, App. at 4-5. He states that he received mailings from law firms

during January and February 2014 concerning potential representation during an appeal, and "[a]t

some point during [his] depression" replied to one of these mailings. Appellant's Memo, App. at 5. 

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Some time thereafter he was instructed to pay the Court's filing fee by an attorney at the firm, and

on October 27, 2014, he did so, only to then learn that the appeal period had passed and that the firm

was unable to represent him. Appellant's Memo, App. at 6.

Historically, "[u]nder peculiar circumstances . . . excusing or justifying [] delay, Courts of

Equity [would] not refuse their aid in furtherance of the rights of the party." JOSEPH STORY,

COMMENTARIES ON EQUITY JURISPRUDENCE AS ADMINISTERED IN ENGLAND AND AMERICA § 529

(6th ed. 1853); see 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *91

("[W]here some collateral matter arises out of the general words, and happens to be unreasonable;

there the judges are in decencyto conclude that this consequence was not foreseen by the parliament,

and therefore they are at liberty to expound the statute by equity."). This Court should apply

equitable tolling when it aids a diligent appellant who was unable to file timely. See JOHN NORTON

POMEROY, POMEROY'S EQUITY JURISPRUDENCE AND EQUITABLE REMEDIES, § 419 (3d ed. 1905)

("'Nothing can call forth this court into activity but conscience, good faith, and reasonable

diligence.'" (quoting Lord Camden, Smith v. Clay, (1767) 27 Eng. Rep. 418 (Ch.) 420; Amb. 645,

647) (emphasis omitted)). Diligence should be measured in light of the Supreme Court's holding that

"[t]he diligence required for equitable tolling purposes is 'reasonable diligence,' not 'maximum

feasible diligence.'" Holland v. Florida, 560 U.S. 631, 653 (2010) (citations and internal quotation

marks omitted). 

The appellant testifies in a written affidavit that in the aftermath of the deaths of his three

family members, he had to manage the estates of his deceased mother and sister, become his elderly

father's primary caregiver, and otherwise address the well-being of his remaining family members

over his own needs, despite dealing with extreme depression and grief. Appellant's Memo, App. at

3-5. He testifies that these circumstances prevented him from filing his appeal until his depression

and grief had subsided, which was after the 120-day appeal period had ended. Addressing the

inquiry as the sole factfinder, we should grant equitable tolling in light of the facts presented by the

appellant. See Bove v. Shinseki, 25 Vet.App. 136, 143 (2011) (per curiam order) (the Court may

"independently weigh the facts to determine if equitable tolling is appropriate" for the 120-day time

limit for appeals); see also 38 U.S.C. § 7292(a) (the Federal Circuit's scope of review includes "a

decision of the 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") (emphasis added). The majorityemphasizes that

the appellant was capable of handling complicated affairs during the period in question, but these

responsibilities support his contention that he was prevented from filing because, in his grief, he

focused solely on the needs of others to the exclusion of important matters in his own life. 

Appellant's Memo, App. at 3-5. His unsuccessful attempt to retain counsel for representation to this

Court in the midst of his depression establishes his diligence during this period of depression and

his inability to file timely despite that diligence. Appellant's Memo, App. at 5-6.

In Hayburn's Case, Chief Justice Jay wrote that the purposes of pension legislation were

"exceedingly benevolent, and do real honor to the humanity and justice of Congress." 2 U.S.

(2 Dall.) 409, 410, n., 1 L.Ed. 436 (1792). Writing for the Supreme Court in Henderson v. Shinseki,

Justice Alito noted the "solicitude [for veterans] plainly reflected in the [Veterans Judicial Review

Act]" and that the 120-dayperiod was part of "legislation [that] was decidedlyfavorable to veterans."

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562 U.S. 428, 440-41 (2011). Harsh application of a non-jurisdictional, though "important[,]

procedural rule," id. at 441-42, is inconsistent with the intent of Congress and ignores long-settled

principles of courts' application of rules: "[P]rocedure may be made subsidiary, as it should be, to

the substantial rights of the litigants," and "courts may avoid the snarls of procedural red tape and

concentrate on the substantive questions at issue." Winberry v. Salisbury, 5 N.J. 240, 254, 74 A.2d

406, 413 (N.J. 1950) (Vanderbilt, C.J.). "[F]iat justicia, ruat caelum, let justice be done whatever

be the consequence." Somerset v. Stewart, (1772) 98 Eng. Rep. 499 (K.B.) 509 (Lord Mansfield). 

The appellant is before us testifying that the three deaths of family members, and his extreme

ensuing grief and depression, prevented him from filing his appeal within the 120-day appeal period. 

I would grant equitable tolling on these undisputed facts.

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