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

______________________ 

NATALIE A. BENNETT, McDermott, Will & Emery LLP, 

Washington, DC, argued for claimant-appellant. Also 

represented by LEIGH J. MARTINSON, Boston, MA.

IGOR HELMAN, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented 

by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,

MARTIN F. HOCKEY, JR; BRIAN D. GRIFFIN, JONATHAN 

KRISCH, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

______________________ 
2 ALDRIDGE v. MCDONALD

Before NEWMAN, SCHALL, and TARANTO, Circuit Judges. 

Opinion for the court filed by Circuit Judge SCHALL. 

Dissenting opinion filed by Circuit Judge NEWMAN. 

SCHALL, 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. 

BACKGROUND

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 his right-knee 

patellofemoral syndrome and his claim for a disability 

rating 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 notice 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 decision 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 filed 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 

Court’s order, Mr. Aldridge acknowledged that his appeal 

was late under § 7266(a). He stated, however, that deaths 
ALDRIDGE v. MCDONALD 3

in his family and his resulting depressive state had prevented him from timely filing his notice of appeal. Specifically, Mr. Aldridge recounted in an affidavit that his 

mother died on September 27, 2013; that his daughter 

gave birth to a stillborn child on December 16, 2013; and 

that his sister passed away on January 14, 2014. J.A. 34–

35. Mr. Aldridge averred that he was “severely depressed 

for at least nine months” following the death of his mother 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. 

Stating that it was “around 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, 

see J.A. 31.

The Veterans Court began its consideration of Mr. Aldridge’s request by noting that 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 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 timely 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 elderly father’s primary caregiver, 

maintained his job as a desk clerk at a Veterans Affairs

hospital, and attempted to hire a law firm to represent 
4 ALDRIDGE v. MCDONALD

him in his appeal. Id. “Given these facts,” the court 

stated, it was “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.” Id. Having concluded that Mr. Aldridge 

had failed to demonstrate “facts sufficient to justify equitable tolling,” the court 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. Aldridge has timely appealed from the dismissal of his 

appeal.

DISCUSSION

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 interpretation 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 thereof brought under 

[38 U.S.C. § 7292], and to interpret constitutional and 

statutory provisions, to the extent presented and necessary 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 him equitable tolling, 

the Veterans Court applied a legal standard that is inconsistent with the decision of the Supreme Court in Holland. See Appellant Opening Br. 17–18. Second, he 

argues that application of the correct legal standard to 
ALDRIDGE 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 necessarily took an incorrectly narrow view of what constitutes 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 “extraordinary circumstance” did not exist. Id. According to 

Mr. Aldridge, “[n]othing in 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 precedent—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 because, as 

set forth below, we conclude that the Veterans Court did 

not apply an incorrect legal standard when it denied his 

request for equitable tolling. Mr. Aldridge’s third argument is beyond our jurisdiction. Although Mr. Aldridge

couches this argument in legal terms, urging that the 

Veterans Court took an incorrectly narrow view of what 

constitutes an “extraordinary circumstance,” the argument ultimately seeks a fact-based analysis that we may 

not undertake. Cook v. Principi, 353 F.3d 937, 937–38

(Fed. Cir. 2003) (dismissing for lack of jurisdiction because the requested review “ultimately reduce[d] to an 

application of the law to facts,” where the veteran “present[ed] his argument as a legal premise couched in terms 
6 ALDRIDGE v. MCDONALD

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 that decision is not 

within our jurisdiction. See Leonard v. Gober, 223 F.3d 

1374, 1375–76 (Fed. Cir. 2000) (dismissing appeal because 

“we lack[ed] jurisdiction to consider the application of 

equitable tolling” to the facts of the case, which included 

determining whether untimely filing of the veteran’s 

appeal was “not due to neglect but rather to events beyond her control”); Sullivan v. McDonald, 815 F.3d 786, 

789 (Fed. Cir. 2016) (explaining that “[w]e may not review 

factual determinations or application 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 noted, after citing the twopronged test set forth in Holland and examining the facts 

before it, 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 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 “extraordinary circumstance,” as required 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 circumstance stood in [the] way and prevented timely filing,” 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 this 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” 

placed “a heavier burden on the veteran than showing 

some threshold connection between extraordinary circumstances and the untimely filing,” which, he says, is all 

that Holland requires. See Appellant Reply Br. 3–4. Mr. 

Aldridge states that he is “entitled to have the undisputed 

evidence evaluated under the correct standard.” Appellant Opening Br. 31. He concludes by asking us to remand 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 “‘some extraordinary 

circumstance stood in his way’ and prevented timely 
8 ALDRIDGE v. MCDONALD

filing,” 560 U.S. at 649 (quoting Pace v. DiGuglielmo, 544 

U.S. 408, 418 (2005))—necessarily carries with it an

element of causation. That is because when something 

“stands in the way” and “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 Wisconsin v. 

United States, 136 S. Ct. 750 (2016). The Court stated: 

“We . . . reaffirm that the second prong of the equitable 

tolling test is met only where the circumstances that 

caused a litigant’s delay are both extraordinary and 

beyond its control.” Id. at 756 (first emphasis added). 

Moreover, decisions of this 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 elements: 

(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 “themselves directly or indirectly affected the timely filing of his 

appeal.” 

CONCLUSION

For the foregoing reasons, the decision of the Veterans 

Court dismissing Mr. Aldridge’s appeal as untimely is 

affirmed. 

AFFIRMED

COSTS

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.

______________________ 

NEWMAN, Circuit Judge, dissenting.

This case puts judicial humanity to the test; the Federal Circuit and the Court of Appeals for Veterans 

Claims1 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.”). 
2 ALDRIDGE v. MCDONALD

the needs of his family as well as the legal obligations he 

bore. He explained his role as caretaker for his elderly 

father, his emotional support for his daughter after the 

stillbirth of his grandchild, and his employment obligations. He explained that his attention to the needs of 

others overcame important matters in his own life, including the timely filing 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 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.” Vet. Ct. Op. at 

394. The Veterans Court held that equitable tolling is not 

available because Mr. Aldridge was not “rendered incapable of handling his affairs.” Id. at 393. 

My colleagues on this panel agree, explaining 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. That is not the 

correct standard. Equity requires not only justice and 

fairness, but 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 equitable 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 is precluded if a veteran’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 equitable 
ALDRIDGE v. MCDONALD 3

tolling”), 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),” id. 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 disclaimed 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, 

[subject] 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 incapacity of the veteran is an acceptable 

ground of equitable tolling. Precedent recognizes, but

does not require, incapacity. The Court instructs that 

equity is adaptable 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 precedent, but with awareness of the fact that specific 

circumstances, often hard to predict in advance, 

could warrant special treatment in an appropriate 

case.

Holland v. Florida, 560 U.S. 631, 650 (2010). Such “special treatment” must take account of all of the circumstances confronting the veteran, particularly in light of 

the statutory (as well as equitable) requirements of special consideration to veterans. It cannot be that because 

Mr. Aldridge was not hospitalized for his depression, or 

other manifestation of incapacity, equitable tolling is not 

available.
4 ALDRIDGE v. MCDONALD

Consideration of the circumstances includes considering 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, dependent upon the mere pleasure of the Judge, but of 

that sound, and reasonable discretion, which governs 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 principles 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 considered, along with the consequences to the government. It 

is relevant that no government or other entity was prejudiced by this 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 consequence, no extra draw on governmental resources.

The government argues, and the panel majority 

agrees, that since equitable tolling depends on the particular facts, this court has no jurisdiction to review the 

denial, no matter how strong the draw on equity. However, “this 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 filed a timely 

notice of appeal.
ALDRIDGE v. MCDONALD 5

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

veteran-friendly regime is implemented. This case should 

never have come this far. On the undisputed circumstances that existed 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 disability, 

straining precedent to its equivocal limits. What happened 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, 1370 (Fed. Cir. 1998).

The question before the court is whether the circumstances excuse the untimely filing. Equity is no more 

confined to a few narrow categories than are humanity, 

reason, and justice. I respectfully dissent.