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

______________________

MARION ALDRIDGE,
Claimant

- Appellant

v.

ROBERT A. MCDONALD, SECRETARY OF VETERANS AFFAIRS, Respondent

- Appellee

______________________

2015

- 7115

______________________
Appeal from the United States Court of Appeals for Veterans Claims in No. 14

- 3656, Judge Alan G. Lance

, Sr., Judge Robert N. Davis, Judge William Greenberg.

______________________

Decided: September 9, 2016

______________________

N ATALIE A. B ENNETT , McDermott, Will & Em ery LLP, Washington, DC, argued for claimant

- appellant. Also represented by L EIGH J. M ARTINSON

, Boston, MA.

I GOR H ELMAN , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washin gton, DC, argued for respondent

- appellee. Also represented by B ENJAMIN C. M IZER
, R OBERT E. K IRSCHMAN

, J R
., M ARTIN F. H OCKEY

, J R ; B RIAN D. G RIFFIN
, J ONATHAN K RISCH , Office of General Counsel, United States D epartment of Veterans Affairs, Washington, DC.

______________________ALDRIDGE v. MCDONALD 2

Before N EWMAN

, S CHALL

, and T ARANTO

, Circuit Judges.

Opinion for the court filed by Circuit Judge S CHALL

. Dissenting o pinion filed by Circuit Judge N EWMAN

. S CHALL

, Circuit Judge

. Marion Aldridge appeals the final decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) that dismissed as untimely his appeal from a final decision of the Board of Veterans Appeals (“Board”). Aldridge v. McDonald , 27 Vet. App . 392, 394 (Vet. App. 2015)

. We affirm

.
B ACKGROUND
Mr. Aldridge served on active duty in the United States Marine Corps from January of 1984 to May of 1992. On December 24, 2013, the Board denied his claim for a disability rating higher than 10% for h is right -knee patellofemoral syndrome and his claim for a disability
rati ng higher than 10% for his left

- knee patellofemoral syndrome. J.A. 59

– 60. The Board informed Mr. Aldridge that, if he wished to challenge its decision, he had 120 days to file a not ice of appeal with the Veterans Court.
J.A. 69; see also 38 U.S.C. § 7266(a) (providing that a person adversely affected by a final decision of the Board “shall file a notice of appeal with the Court within 120 days after the date on which notice of the d ecision is mailed”). Any appeal by Mr. Aldridge thus was required to be filed by April 23, 2014.

The Veterans Court received a notice of appeal from Mr. Aldridge on October 27, 2014, more than six months
after it was due. J.A. 75. After the Secretary fi led a
motion to dismiss the appeal , the Veterans Court ordered Mr. Aldridge to explain why his appeal should not be dismissed as untimely. Responding to the Veterans Cour t’s order, Mr. Aldridge acknowledged that his appeal was late under § 7266(a). He stated, however, that deathsALDRIDGE v. MCDONALD 3

in his family and his resulting depressive state had pr evented him from timely filing his notice of appeal. Speci fically, Mr. Aldridge recounte d in an affidavit that his
mother died on September 27, 2013 ; that his daughter gave birth to a stillborn child on December 1 6 , 2013 ; and that his sister passed away on January 14, 2014. J.A. 34–
35

. Mr. Aldridge averred that he was “severely depressed
fo r at least nine months” following the death of his mot her and that, because of his depressive state and his focus on his family, he did not appreciate that he was required to file a notice of appeal by April 23, 2014. J.A. 37. S tating that it was “aroun d the summer of 2014” that he recovered from his depressive state and was able to consider the need to file his appeal, J.A. 37

, he asked the Veterans Court to apply the doctrine of equitable tolling and thereby deem his October 27 notice of appeal timely

,
s ee J.A. 31.

The Veterans Court began its consideration of Mr. A ldridge’s request by noting that t he Supreme Court has determined that equitable tolling is appropriate when an appellant demonstrates “‘( 1) that he has been pursuing his rights diligently, a nd (2) that some extraordinary circumstance stood in his way ’ and prevented timely filing. ” Aldridge

, 27 Vet. App. at 393 (quoting Holland v.
Florida , 560 U.S. 631, 649 (2010) (quoting Pace v. DiGuglielmo , 544 U.S. 408, 418 ( 2005 ) ))

. Focusing on the second prong of the Holland test, the Veterans Court determined that Mr. Aldridge had failed to demonstrate that the
deaths of his mother and sister and the stillborn birth of his grandchild “themselves directly or indirectly affected
the t imely filing of his appeal.” Aldridge , 27 Vet. App. at

393. The court arrived at this determination after noting that Mr. Aldridge stated that, during the period of his depression, he closed the estates of his deceased mother and sister, became his elder ly fath er’s primary caregiver, maintained his job as a desk clerk at a Veterans Affairs hospital, and attempted to hire a law firm to representALDRIDGE v. MCDONALD 4

him in his appeal. Id. “Given these facts,” the court stated, it was “unconvinced that Mr. Aldridge’s depressi on rendered him incapable of handling his affairs or othe rwise directly or indirectly prevented his appeal from being timely filed.” Id. Having concluded that Mr. Aldridge had failed to demonstrate “facts sufficient to justify equ itable tolling,” the cou rt dismissed his appeal. Id. at 393,
394. One judge dissented on the ground that, in his view, the facts presented by Mr. Aldridge justified equitable tolling. Id. at 396 (Greenberg, J., dissenting). Mr. A ldridge has timely appealed from the dismis sal of his appeal.

D ISCUSSION
Our ability to review a decision of the Veterans Court is limited. Pursuant to 38 U.S.C. § 7292(a), we may review “the validity of a decision of the Court on a rule of law or of any statute or regulation . . . or any interpret ati on thereof (other than a determination as to a factual matter) that was relied on by the Court in making the decision.” We have exclusive jurisdiction “to review and decide any challenge to the validity of any statute or regulation or any interpretation t hereof brought under [38 U.S.C. § 7292], and to interpret constitutional and statutory provisions, to the extent presented and nece ssary to a decision.” 38 U.S.C. § 7292(c). However, except to the extent that an appeal presents a constitutional issue, we “may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” Id. § 7292(d)(2).

I.

Mr. Aldridge makes three arguments on appeal. First, he contends that, in denying h im equitable tolling, the Veterans Court applied a legal standard that is inco nsistent with the decision of the Supreme Court in Holland

. See Appellant Opening Br . 17–1 8. Second, he argues that application of the correct legal standard toALDRIDGE v. MCDONALD 5

what he characterizes as “the undisputed facts” of the case establishes that he is entitled to equitable tolling. See id . at 18

– 19

. And third, he urges that, even if the Veterans Court did not apply an incorrect legal standard,
it still erred as a matter of law when it determined that no “extraordinary circumstance stood in his way” so as to prevent timely filing of his notice of appeal. Id. at 19

– 20. Specifically, Mr. Aldridge argues that the court necessar ily took an incorrectly narrow view of what constitute s an “extraordinary circumstance” when it determined that,
because he was able to address certain matters in his life when he claimed he was in a depressive state, an “e xtraordinary circumstance” did not exist. Id. According to Mr. Aldridge, “[n]othing i n the case law forecloses the possibility that [his] circumstances qualify as a basis for equitable tolling, even if he was not fully incapacitated by his grief.” Id. at 41.

We have jurisdiction to consider Mr. Aldridge’s first argument

— that the Veterans Court applied a legal standard that is inconsistent with Supreme Court prec edent

— because it represents a challenge to the Veterans Court’s interpretation of a rule of law; namely, the rule as to what must be shown to establish equitable tolling. We
do not reach Mr. Aldridge’s second argument b ecause, as set forth below, we conclude that the Veterans C ourt did not apply an incorrect legal standard when it denied his request for equitable tolling. Mr. Aldridge’s third arg ument is beyond our jurisdiction . A lthough Mr. Aldridge couches this argument in legal terms, urging that the Veterans Court took an incorrectly narrow view of what constitutes an “extraordinary cir cumstance,” the arg ument ultimately seeks a fact

- based analysis that we may

not undertake. Cook v. Principi , 353 F.3d 937, 9 37

– 38 (Fed. Cir. 2003) (dismissing for lack of jurisdiction because th e requested review “ultimately reduce[d] to an application of the law to facts,” where the veteran “ pr esent [ed] his argument as a legal premise couched i n termsALDRIDGE v. MCDONALD 6

of statutory interpretation ” ). What the Veterans Court did was simply look at the various tasks that Mr. Aldridge said he performed during the period he was depressed and conclude that his ability to perform those tasks
indicated that he was not confronted with a Holland

- like “extraordinary circumstance.” In other words, contrary to Mr. Aldridge’s assertion, the court did not impose a per se requirement of full incapacitation . The court merely applied law to fact , and review of t hat decision is n ot within our jurisdiction

. See Leonard v. Gober , 223 F.3d 1374, 137 5–7 6 (Fed. Cir. 2000) ( dismissing appeal because “we lack[ed] jurisdiction to consider the application of equitable tolling” to the facts of the case , which include d determining whether untimely filing of the veteran’s appeal was “not due to neglect but rather to events b eyond her control” ) ; Sullivan v. McDonald , 815 F.3d 786, 789 (Fed. Cir. 2016) (explaining that “[w]e may not review factual determinations or applica tion of law to fact” (citing 38 U.S.C. § 7292(d)(2)) ).

II.

We turn now to Mr. Aldridge’s argument that we have jurisdiction to consider: his contention that, in denying him equitable tolling, the Veterans Court applied a legal
standard that is inconsistent with the decision of the Supreme Court in Holland . As not ed, after citing the two

pronged test set forth in Holland and examining the facts before it, the Veterans Court determined that Mr. A ldridge had failed to demonstrate that the deaths of his mother and sister and the stillborn birth of his grandchild
“them selves directly or indirectly affected the timely filing of his appeal.” Aldridge , 27 Vet. App. at 393. On this basis, the court concluded that Mr. Aldridge had failed to
demonstrate that he was confronted with an “extraord inary circumstance,” as require d by Holland , and it denied him equitable tolling. Id. at 394. Mr. Aldridge argues that the Veterans Court’s use of a causation analysis ( i.e.,ALDRIDGE v. MCDONALD 7

“directly or indirectly affected”) was contrary to Holland

. He states:

Instead of requiring the party petitioning for equitable relief to show that the missed deadline was a “but for” consequence of the extraordinary circumstances, the Supreme Court [in Holland ] imposed a simpler paradigm. The legal standard that was adopted, “some extraordinary circu msta nce stood in [the] way and prevented timely fi ling,” focuses on whether the extraordinary circumstances created a roadblock to timely filing as opposed to a metaphorical chain of causation that links events through time. This distinction is
critical in th is case, where Mr. Aldridge faces a serious roadblock, or impediment, to timely filing.

Appellant Opening Br

. 28 ( second alteration in original). Mr. Aldridge elaborates that the Veterans Court’s use of what he refers to as “a standalone ‘causation’ prong ” place d “a heavier burden on the veteran than showing some threshold connection between extraordinary circu mstances and the untimely filing,” which, he says, is all
that Holland requires. See Appellant Reply Br . 3– 4. Mr. Aldridge states that he is “enti tled to have the undisputed
evidence evaluated under the correct standard.” Appe llant Opening Br

. 31. He concludes by asking us to r emand his case to the Veterans Court, adding that, on remand, the court “should adhere to the language in
Holland and ask, simply, whether the deaths in [his] family and his ensuing depression stood in his way and prevented timely filing.” Id.

Having considered Mr. Aldridge’s arguments, we are unable to agree that, in denying his request for equitable tolling, the Veterans Court applied an incorrect legal standard. The requirement of prong two of Holland

— that an appellant demonstrate that “ ‘ som e extraordinary circumstance stood in his way ’ and prevented timelyALDRIDGE v. MCDONALD 8

filing ,” 560 U.S. at 649 ( quoting Pace v. DiGuglielmo , 544 U.S. 408, 41 8 ( 2005) )— necessarily carries with it an element of causation. That is because when something “stands in the way” an d “prevents” another thing from happening, it is “causing” that other thing not to happen. In fact, this is precisely what the Supreme Court made
clear this year in Menominee Indian Tribe of Wis consin v. United States , 136 S. Ct. 750 ( 2016)

. The Court stated: “We . . . reaffirm t hat the second prong of the equitable tolling test is me t only where the circumstances that
caused a litigan t’s delay are both extraordinary and beyond its control.” Id. at 756 (first emphasis added). Moreover, decisions of th is court are consistent with what the Supreme Court said in Menominee

. See , e.g. , Toomer
v. McDonald , 783 F.3d 1229, 1238 (Fed. Cir. 2015) (“[T] his
court has made clear that ‘ to benefit from equitable tolling

, . . . a claimant [must] demonstrate three ele ments: (1) extraordinary circumstance; (2) due diligence; and (3) causation .’” (second alteration in original ) (quoting
Checo v. Shinseki , 743 F.3d 1373, 1378 (Fed. Cir. 2014) ))

. In sum, the Veterans Court did not apply an incorrect legal standard when it determined that Mr. Aldridge had failed to demonstrate that the deaths in his family “the mselves directly or indirectly affected the timely filing of his appeal. ”

C ONCLUSION
For the foregoing reasons, the decision of the Veterans Court dismissing Mr. Aldridge’s appeal as untimely is
affirmed

.
AFFIRMED

C OSTS

Each party shall bear its own costs.

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

______________________

MARION ALDRIDGE,
Claimant

- Appellant

v.

ROBERT A. MCDONALD, SECRETARY OF VETERANS AFFAIRS, Respondent

- Appellee

______________________

2015

- 7115

______________________

Appeal from the United States Court of Appeals for
Veterans Claims in No. 14

- 3656, Judge Alan G. Lance

, Sr., Judge Robert N. Davis, Judge William Greenberg.

______________________

N EWMAN

, Circuit Judge , dissenting.

This case puts judicial humanit y to the test; the Fe deral Circuit and the Court of Appeals for Veterans
Claims 1 fail the test.

Mr. Aldridge was six months late in filing a notice of appeal to the Veterans Court from a decision of the Board of Veterans Appeals. He explained the deaths of his mother, sister, and grandchild, all within four months. He explained his grief, his depression, and his focus on

1 Aldridge v. McDonald , 27 Vet. App. 392 (Vet . App. 2015) (“Vet. Ct. Op.”)

.ALDRIDGE v. MCDONALD 2

the needs of his family as well as the legal obligations he
bore . He explained his role as c aretaker for his elderly
father

, his emotional support for his daughter after the stillbirth of his grandchild, and his employment oblig ations

. He explained that his attention to the needs of others overcame important matt ers in his own life, inclu ding the timely fi ling of this notice of appeal.

The Veterans Court (by split decision) concluded that the veteran was indeed capable of filing a timely notice of appeal, stating that there is “ no support in the jurispr udence 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 .” Vet. Ct. Op. at
394. The Veterans Court held that eq uitable tolling is not available because Mr. Aldridge was not “rendered incap able of handling his affairs

. ” Id. at 393

. My colleagues on this panel agree, explain ing that “Mr. Aldridge had failed to demonstrate that the deaths in his family ‘themselves directly or indirectly affected the timely filing of his appeal. ’ ” Maj. Op. at 8. Th at is not the
correct standard. Equity requires not only justice and fairness, bu t a realistic and humane perspective on how
the facts of life and death can affect human behavior

. Equity is “flexible jurisdiction . . . to protect all rights and do justice to all concerned.” Providence Rubber Co. v. Goodyear , 76 U.S. 805, 807 (1869)

. Federal Circuit precedent has recognized that equit able tolling is available in “extraordinary circumstances,” and we have rejected the “suggestion that equitable tolling is limited to a small and closed set of factual patterns and that equitable tolling i s precluded if a vete ran’s case does not fall within those patterns.” Mapu v.
Nicholson , 397 F.3d 1375, 1380 (Fed. Cir. 2005). In Sneed
v. Shinseki , 737 F.3d 719 (Fed. Cir. 2013)

, the court stated
that there are no “exclusive parameters of equitableALDRIDGE v. MCDONALD 3

toll ing”)

, id. at 726, and held that “the Veterans Court’s analysis focused too narrowly on whether [the] case fell into one of the factual patterns of past cases considering § 7266(a)

, ” i d. at 724.

The pattern

- seeking analysis that is here imposed against Mr. Aldridge is exactly the kind of “ improperly narrow standard for equitable tolling ” that was di sclaimed in Sneed

. Id. at 724

. Yet the court now rejects this flexibility, instead stating that the “rule of law” controls whether to “establish equitable tolling.” Maj. Op.

at 5. Equity is not controlled by the rules of law. Equity includes not only what the law tells judges we may do, but is the “ power to moderate and temper the written law, [subje ct] only to the law of nature and reason.” Samuel Johnson, Dictionary of the English Language (1756).

Although the time limit for appeal from the BVA to the Veterans Court is not “jurisdictional ,” the VA argues that only i ncapacity of the veteran is an ac ceptable ground of equitable tolling. Precedent recognizes, but does not require

, incapacity

. The Court instructs that equity is a daptable to the circumstances:

[C]ourts of equity can and do draw upon decisions made in other similar cases for guidance. Such courts exercise judgment in light of prior prec edent, but with awareness of the fact that specific circumstances, often hard to predict in advance, could warrant speci al treatment in an appropriate

case.

Holland v. Florida , 560 U.S. 631, 650 (2010). Such “sp ecial treatment ” must take account of all of the circu mstances confronting the veteran, particularly in light of the statutory (as well as equitable) requirement s of sp ecial consideration to veterans. It cannot be that because Mr. Aldridge was not hospitalized for his depression, or
other manifestation of i ncapacity

, equitable tolling is not
available.ALDRIDGE v. MCDONALD 4

Consideration of the circumstances includ es conside ring what is sought to be tolled, and the consequences of tolling in the particular case:

“ [Equitable relief] is not a matter of right in either party; but is a matter of discretion in the Court; not of arbitrary or capricious discretion, depen dent upon the mer e pleasure of the Judge, but of that sound, and reasonable discretion, which go verns itself, as far as it may, by general rules and principles; but at the same time, which withholds or grants relief, according to the circumstances of each particular case, when these rules and princ iples will not furnish any exact measure of justice between the parties. ”

Joseph Story, Equity Jurisprudence § 742 (1st ed. 1836). The circumstances affecting Mr. Aldridge must be consi dered, along with the consequences to the go vernment. It
is relevant that n o government or other entity was prej udiced by th is delay in appeal from the BVA; no records were lost or destroyed; no witness departed; no military or civilian action prejudiced. There is no monetary cons equence, no extra d raw on governmental resources.

The government argues, and the panel majority agrees, that since equitable tolling depends on the parti cular facts, this court has no jurisdiction to review the
denial , no matter how strong the draw on equity

. Howe ver, “ th is court has jurisdiction to consider whether the Veterans Court employed an improperly narrow standard for equitable tolling under § 7266 (a) .” Sneed , 737 F.3d at
724. The court has also recognized that veterans are “vulnerable litigants” who are typically unrepresented by
counsel. Dixon v. Shinseki , 741 F.3d 1367, 1376 (Fed. Cir. 2014). Mr. Aldridge was not represented by counsel at the BVA, for counsel would routinely have fi led a tim ely notice of appeal.ALDRIDGE v. MCDONALD 5

This court has been assigned the responsibility for a ssuring that the legislative purpose of establishing a

veteran- friendly regime is implemented. This case should
never have come this far. On the undisputed circu mstances that exis ted in this veteran’s family, the VA could readily have allowed the tardy appeal from the BVA to the Veterans Court. Instead, we see the government in uncompromising litigation to prevent this veteran from appealing the BVA decision on his percentage disa bility, straining precedent to its equivocal limits. What ha ppened to the recognition that “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. ’” Bailey v. West

, 160 F.3d 1360, 1 370 (Fed. Cir. 1998).

The question before the court is whether the circu mstances excuse the untimely filing. Equity is no more
confined to a few narro w categories than are humanity, reason, and justice. I respectfully dissent.