Sneed v. Shinseki

United States Court of Appeals

for the Federal Circuit

______________________

MARVA J. SNEED,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,

Respondent-Appellee.

______________________

2013-7029

______________________

Appeal from the United States Court of Appeals for

Veterans Claims in No. 11-2715, Judge William A. Moor-

man.

______________________

Decided: December 9, 2013

______________________

WILLIAM H. BURGESS, Kirkland & Ellis LLP, of Wash-

ington, DC, argued for claimant-appellant. With him on

the brief was BENJAMIN A. HERBERT, of Los Angeles,

California.

JEFFREY D. KLINGMAN, Trial Attorney, Commercial

Litigation Branch, Civil Division, United States Depart-

ment of Justice, of Washington, DC, argued for respond-

ent-appellee. With him on the brief were STUART F.

DELERY, Acting Assistant Attorney General, JEANNE E.

DAVIDSON, Director, and SCOTT D. AUSTIN, Assistant

Director. Of counsel on the brief were DAVID J. BARRANS,

Deputy Assistant General Counsel and MEGHAN D.

ALPHONSO, Attorney, United States Department of Veter-

ans Affairs, of Washington, DC.

______________________

2 SNEED v. SHINSEKI

Before NEWMAN, PROST, and WALLACH, Circuit Judges.

Opinion for the court filed by Circuit Judge WALLACH.

Dissenting opinion filed by Circuit Judge PROST.

WALLACH, Circuit Judge.

Marva Sneed pursued her claim for survivor benefits

in the Department of Veterans Affairs (“VA”) for eight

years. After receiving an adverse decision from the Board

of Veterans’ Appeals (“Board”), Ms. Sneed promptly

contacted an attorney to represent her in an appeal to the

United States Court of Appeals for Veterans Claims

(“Veterans Court”). Only one day before the deadline to

file a notice of appeal, however, Ms. Sneed received a

letter saying the attorney would not represent her in the

appeal. After unsuccessfully searching for another attor-

ney, Ms. Sneed filed a notice of appeal pro se, twenty-nine

days after the filing deadline.

The Veterans Court dismissed Ms. Sneed’s appeal for

failure to timely file her notice of appeal. Ms. Sneed

appeals the dismissal, arguing the Veterans Court legally

erred in holding that equitable tolling does not apply in

cases of attorney abandonment. Because attorney aban-

donment can justify equitably tolling the deadline for

filing an appeal to the Veterans Court, this court vacates

and remands for the Veterans Court to reconsider Ms.

Sneed’s argument under the correct standard.

BACKGROUND

I.

Ms. Sneed is the surviving spouse of veteran Reginald

A. Sneed, who served on active duty from June 1964 to

June 1968. Mr. Sneed suffered from numerous service-

connected disabilities, including post-traumatic stress

syndrome, post-concussion syndrome, cervical spondylosis

(degeneration of the vertebrae), spinal stenosis (narrow-

ing of the spinal column), tinnitus (ringing in the ears), a

perforated tympanic membrane, and scarring of the upper

extremities. In January 2001, Mr. Sneed fell and suffered

a spinal cord contusion, rendering him a quadriplegic and

SNEED v. SHINSEKI 3

resulting in confinement to a chin-operated wheelchair. 1

In October 2003, Mr. Sneed was living in a nursing home

for paralyzed veterans. There was a fire in the home, and

all of the residents, including Mr. Sneed, died as a result

of smoke inhalation.

Following Mr. Sneed’s death, Ms. Sneed filed a claim

with the VA for dependency and indemnity compensation.

See 38 U.S.C. § 1310 (2000) (“Deaths entitling survivors to

dependency and indemnity compensation”). She alleged

her husband’s death was service connected, because his

service-connected disabilities were a principal or contribu-

tory cause of his death. See 38 C.F.R. § 3.312 (2000). In

particular, she argued his service-connected spinal disa-

bilities substantially contributed to his paralysis, which

made him unable to escape from the burning building.

Ms. Sneed also contended that her husband’s other disa-

bilities, including post-traumatic stress syndrome and

tinnitus, contributed to his death by preventing him from

hearing and properly responding to indications of fire.

The VA denied Ms. Sneed’s claim, and the Board ulti-

mately affirmed the denial on April 5, 2011.

Ms. Sneed’s notice of appeal to the Veterans Court

was due by August 3, 2011. See 38 U.S.C. § 7266(a) (“[A]

person adversely affected by [a Board] decision shall file a

notice of appeal with the [Veterans Court] within 120

days after the date on which notice of the decision is

mailed . . . .”). Ms. Sneed promptly sought an attorney to

represent her in the appeal. She contacted Katrina J.

Eagle, Esq., and transmitted her case materials to Ms.

Eagle’s office. Ms. Sneed communicated with Ms. Eagle’s

office “for a year or longer” and stated that “Ms. Eagle

knew that there was a deadline” to file the notice of

appeal. 2 J.A. 41. However, on August 2, 2011—the day

1 Effective September 27, 2001, Mr. Sneed was rat-

ed totally and permanently disabled as a result of a non-

service-connected disability, for purposes of a VA-

administered pension. See 38 U.S.C. § 1521 (2000).

2 It is unclear how Ms. Sneed could have been in

contact with Ms. Eagle for “a year or longer,” J.A. 41,

when the deadline to appeal from the Board decision was

4 SNEED v. SHINSEKI

before Ms. Sneed’s deadline to appeal—Ms. Sneed re-

ceived a letter from Ms. Eagle stating that she would not

represent Ms. Sneed in her appeal. Ms. Eagle explained

that she did “not believe the VA erred in denying [Ms.

Sneed’s] claim,” and instructed Ms. Sneed to seek another

attorney’s opinion or to file the notice of appeal herself.

J.A. 45. Ms. Eagle also incorrectly advised Ms. Sneed

that the deadline to appeal was August 5, 2011, two days

later than the actual August 3 deadline.

Ms. Sneed then “tried to find another attorney” in the

“short time” available. J.A. 41. When that failed, she filed

the notice of appeal on September 1, 2011—twenty-nine

days after the deadline. 3 Six days later, on September 7,

2011, Ms. Sneed filed a letter with the Veterans Court

explaining her late filing:

I thought I had an attorney, this attorney was

sent all of my papers about this appeal in a timely

manner, in fact I contact[ed] the attorney office as

soon as I got my decision letter. I even ke[pt] in

contact with the attorney office.

J.A. 22. She further stated that she “ha[d] worked on this

case for over eight years, and all papers were filed on

time,” and that she did not think the late filing to the

Veterans Court was her fault. J.A. 41.

II.

Not long after her appeal was docketed, Ms. Sneed

was able to retain an attorney, who entered his appear-

ance on September 14, 2011. On October 11, 2011, the

Veterans Court stayed several appeals, including Ms.

Sneed’s, pending the court’s decision in a separate case

only 120 days and Ms. Sneed presumably did not contact

Ms. Eagle until the issuance of the adverse Board deci-

sion. However, this discrepancy is not relevant to the

merits of Ms. Sneed’s appeal.

3 Ms. Sneed’s description of her attempts to find

another attorney contradicts the dissent’s statement that

“Ms. Sneed provided no explanation for the other twenty-

seven days of the delay.” Dissenting Op. at 3.

SNEED v. SHINSEKI 5

regarding whether equitable tolling applied to the 120-

day filing deadline in 38 U.S.C. § 7266(a). The deadline

was found subject to equitable tolling in Bove v. Shinseki,

25 Vet. App. 136 (2011), and on June 14, 2012, the Veter-

ans Court directed Ms. Sneed to file a response discussing

whether her case warranted equitable tolling of the 120-

day filing period.

Ms. Sneed argued, through counsel, that her “reliance

on attorney Katrina J. Eagle to file her appeal with the

Court was perfectly reasonable,” and that Ms. Eagle’s

conduct amounted to “‘extraordinary circumstances

beyond’ [Ms. Sneed’s] control.” Appellant’s Resp. to Ct.

Order, Sneed v. Shinseki, Vet. App. No. 11-2715 (quoting

Bove, 25 Vet. App. at 140). Ms. Sneed asked the court to

allow equitable tolling in her case.

The Veterans Court declined to apply equitable tolling

and dismissed Ms. Sneed’s appeal. The court held that

Ms. Sneed’s circumstances did not fit within the “parame-

ters” of equitable tolling, which

applied only when circumstances precluded a

timely filing despite the exercise of due diligence,

such as (1) a mental illness rendering one incapa-

ble of handling one’s own affairs or other extraor-

dinary circumstances beyond one’s control, (2)

reliance on the incorrect statement of a VA offi-

cial, or (3) a misfiling at the regional office or the

Board.

Sneed v. Shinseki, 2012 U.S. App. Vet. Claims LEXIS

2062, at *3–4 (Vet. App. Sept. 27, 2012) (“Veterans Court

Decision”) (quoting Bove, 25 Vet. App. at 140) (internal

quotation marks omitted). Rather, because Ms. Eagle had

informed Ms. Sneed that she was “not required to have an

attorney” to file her notice of appeal, and because Ms.

Eagle was “not a VA official,” the court held Ms. Sneed’s

twenty-nine-day-late filing “evidence[d] general negli-

6 SNEED v. SHINSEKI

gence or procrastination,” precluding equitable tolling in

her case. 4 Id. at *4 & n.1.

After the dismissal, Ms. Sneed’s counsel withdrew,

and Ms. Sneed filed a pro se motion for reconsideration,

which the Veterans Court denied. Ms. Sneed, with new

counsel, timely appealed to this court.

DISCUSSION

I.

Our jurisdiction to review decisions of the Veterans

Court is limited by statute. Pursuant to 38 U.S.C.

§ 7292(a), this court has jurisdiction to review “the validi-

ty of a decision of the [Veterans] Court on a rule of law or

of any statute or regulation . . . or any interpretation

thereof (other than a determination as to a factual mat-

ter) that was relied on by the [Veterans] Court in making

the decision.” Except to the extent that a constitutional

issue is presented, this court may not review “a challenge

to a factual determination,” or “a challenge to a law or

regulation as applied to the facts of a particular case.” Id.

§ 7292(d)(2)(A)–(B). The Veterans Court’s legal determi-

nations are reviewed de novo. Cushman v. Shinseki, 576

F.3d 1290, 1296 (Fed. Cir. 2009).

This court has jurisdiction over the proper interpreta-

tion of 38 U.S.C. § 7266(a), the filing provision at issue in

this case. Santana-Venegas v. Principi, 314 F.3d 1293,

1298 (Fed. Cir. 2002). “[C]onsideration of equitable toll-

4 According to the dissent, the Veterans Court made

a finding “that Ms. Sneed knew” she did not need an

attorney to file her notice of appeal. Dissenting Op. at 2

(emphasis added). However, Ms. Sneed stated that “[she]

did not know that [she] could have filed [herself].” J.A. 41.

The Veterans Court made no finding to the contrary, and

noted only that Ms. Eagle’s letter to Ms. Sneed stated

“you are not required to have an attorney to proceed

before the Court.” Veterans Court Decision at *4 (internal

quotation marks and citation omitted). The Veterans

Court specifically did not find that Ms. Sneed understood

the meaning of Ms. Eagle’s letter.

SNEED v. SHINSEKI 7

ing” presents an issue of statutory interpretation of

§ 7266(a). Nelson v. Nicholson, 489 F.3d 1380, 1382 (Fed.

Cir. 2007). On appeal, Ms. Sneed argues the Veterans

Court incorrectly interpreted § 7266(a) by ruling out

attorney abandonment as a potential basis for equitable

tolling.

The Secretary argues that Ms. Sneed is actually chal-

lenging the Veterans Court’s factual findings, which this

court lacks jurisdiction to review. According to the Secre-

tary, the Veterans Court found that Ms. Sneed did not

exercise due diligence, thus precluding equitable tolling

under any standard. However, the Veterans Court’s

factual findings are unclear. On one hand, the court

stated that Ms. Sneed’s late filing “evidence[d] general

negligence or procrastination,” but later said that “despite

her exercise of due diligence,” Ms. Sneed failed to demon-

strate that “circumstances prevented her from timely

filing.” Veterans Court Decision at *4–5. During oral

argument, the Secretary seemed to concede that the

Veterans Court made no explicit finding with respect to

diligence. Oral Arg. at 23:22–23:28, Sneed v. Shinseki,

available at http://www.cafc.uscourts.gov/oral-argument-

recordings/all/sneed.html (answering that there was no

express finding of diligence based on what Ms. Sneed had

done day by day).

Moreover, Ms. Sneed does not challenge the Veterans

Court’s findings of fact, and does not ask this court to

make any new or contrary findings. Rather, she argues

the Veterans Court erroneously failed to recognize attor-

ney abandonment as a basis for equitable tolling. “Even

where factual disputes may remain, we have authority to

decide whether the Veterans Court applied the correct

legal standard.” Lamour v. Peake, 544 F.3d 1317, 1321

(Fed. Cir. 2008). 5 Certainly, this court has jurisdiction to

5 The dissent states that this court has jurisdiction

“only” when the proposed standard would be outcome

determinative. Dissenting Op. at 2 (citing Mapu v. Ni-

cholson, 397 F.3d 1375, 1379 (Fed. Cir. 2005)). However,

this court has jurisdiction to decide a question of statutory

interpretation “that was relied upon by the [Veterans]

8 SNEED v. SHINSEKI

consider whether the Veterans Court employed an im-

properly narrow standard for equitable tolling under

§ 7266(a). 6 See Nelson, 489 F.3d at 1382–83.

Court in making the decision.” 38 U.S.C. § 7292(a). The

Veterans Court relied on § 7266(a) in dismissing Ms.

Sneed’s appeal, and Ms. Sneed now challenges the Veter-

ans Court’s interpretation of that provision. See Nelson,

489 F.3d at 1382. Whether the issue on appeal is harm-

less error (and thus not outcome determinative) does not

divest this court of jurisdiction. See Menegassi v. Shinseki,

638 F.3d 1379, 1383 (Fed. Cir. 2011) (“[W]e have jurisdic-

tion to determine whether the Veterans Court’s error is

harmless.”); see also Szemraj v. Principi, 357 F.3d 1370,

1375 (Fed. Cir. 2004) (exercising jurisdiction and holding

“the [Veterans Court] misunderstood our decision in

Roberson,” but affirming on the grounds of harmless error

“because Roberson has no application to the circumstanc-

es of this case”).

Nor does Mapu, on which the dissent relies, state oth-

erwise. Mapu holds that this court has jurisdiction when

“‘material facts are not in dispute and the adoption of a

particular legal standard would dictate the outcome of the

equitable tolling claim.’” Mapu, 397 F.3d at 1379 (quoting

Bailey v. Principi, 351 F.3d 1381, 1384 (Fed. Cir. 2003)).

It does not go further and say that this court only has

jurisdiction over outcome dispositive issues. To the con-

trary, the Mapu and Bailey standard has been broadly

interpreted to mean that this court has jurisdiction to

determine “whether there is an error of law” in a Veterans

Court decision, Szemraj, 357 F.3d at 1375, and has been

repeatedly cited to support the exercise of jurisdiction, not

its absence. See, e.g., Brandenburg v. Principi, 371 F.3d

1362, 1363–64 (Fed. Cir. 2004); Nelson, 489 F.3d at 1383.

In stating that “‘harmless error’ plays no part in this

case,” Dissenting Op. at 2 n. 1, the dissent misapprehends

the jurisdictional analysis. The point is not that the error

here is harmless, but that this court’s jurisdiction under

§ 7292(a) does not depend on whether the asserted error

is outcome determinative.

6 The Secretary also argues that Ms. Sneed waived

her attorney abandonment argument because “she did not

SNEED v. SHINSEKI 9

II.

“[A] litigant seeking equitable tolling bears the bur-

den of establishing two elements: (1) that he has been

pursuing his rights diligently, and (2) that some extraor-

dinary circumstance stood in his way.” Pace v. DiGugliel-

mo, 544 U.S. 408, 418 (2005) (citing Irwin v. Dep’t of

Veterans Affairs, 498 U.S. 89, 96 (1990)). In Irwin, the

Supreme Court established a rebuttable presumption that

equitable tolling applies “to suits against the Govern-

ment, in the same way that it is applicable to private

suits,” unless Congress has expressed its intent to the

contrary. 498 U.S. at 95–96.

In 1998, this court applied Irwin to hold that the 120-

day limit for filing appeals to the Veterans Court was

subject to equitable tolling. 7 Bailey v. West, 160 F.3d

explicitly raise the issue of attorney abandonment as a

basis for equitable tolling, nor did she cite Holland or

Maples.” Appellee’s Br. 16 (citing Holland v. Florida, 560

U.S. 631 (2010); Maples v. Thomas, 132 S. Ct. 912 (2012)).

However, preserving an argument for appeal “does not

demand the incantation of particular words; rather, it

requires that the lower court be fairly put on notice as to

the substance of the issue.” Nelson v. Adams USA, Inc.,

529 U.S. 460, 469 (2000). Ms. Sneed’s brief to the Veter-

ans Court argued:

Attorney Eagle’s failure to file a Notice of Ap-

peal[,] . . . the erroneous advisement of the due

date[,] . . . as well as the fact that attorney Eagle

did not notify Ms. Sneed that she would not be

representing her until the day before the Notice of

Appeal was due, constitute extraordinary circum-

stances beyond Ms. Sneed’s control.

J.A. 37. The same argument was also made in Ms.

Sneed’s pro se motion for reconsideration, J.A. 53–54, and

in the September 1 and 7, 2001, letters filed pro se with

the Veterans Court, J.A. 40–43. Here, Ms. Sneed’s attor-

ney abandonment arguments were adequately preserved

for appeal.

7 38 U.S.C. § 7266(a) provides:

10 SNEED v. SHINSEKI

1360, 1368 (Fed. Cir. 1998) (en banc) (citing 38 U.S.C.

§ 7266(a)). Over time, equitable tolling was held to be

applicable when: (1) a VA official failed to send the veter-

an’s notice of appeal to the Veterans Court, id.; (2) a

claimant misfiled his request for reconsideration to the

Board, Jaquay v. Principi, 304 F.3d 1276, 1278 (Fed. Cir.

2002); (3) a veteran misfiled his notice of appeal at the VA

regional office, Santana-Venegas, 314 F.3d at 1298, or

filed an incorrect form, Bailey v. Principi, 351 F.3d 1381,

1384–85 (Fed. Cir. 2003); and (4) when a claimant suf-

fered from mental or physical illness that rendered him

incapable of handling his own affairs or functioning in

society, Barrett v. Principi, 363 F.3d 1316, 1317 (Fed. Cir.

2004); Arbas v. Nicholson, 403 F.3d 1379, 1381 (Fed. Cir.

2005).

The en banc decision of Henderson v. Shinseki re-

versed this line of cases, and held that the filing deadline

in § 7266(a) could not be equitably tolled. 589 F.3d 1201,

1220 (Fed. Cir. 2009) (en banc), rev’d, 131 S. Ct. 1197

(2011). It relied on Bowles v. Russell, where the Supreme

Court held that deadlines for filing ordinary civil appeals

were jurisdictional and thus not subject to equitable

tolling. Id. at 1203 (citing Bowles v. Russell, 551 U.S. 205

(2007)). The Supreme Court granted Mr. Henderson’s

petition for a writ of certiorari and reversed. Henderson v.

Shinseki, 131 S. Ct. 1197 (2011). The Court distinguished

Bowles as applying to only Article III courts, whereas the

Veterans Court was an Article I tribunal. Id. at 1204.

The Court further explained: “The contrast between

ordinary civil litigation” and the system for adjudicating

veterans benefits claims “could hardly be more dramatic.”

Id. at 1205–06. “Rigid jurisdictional treatment” of

In order to obtain review by the Court of Appeals

for Veterans Claims of a final decision of the

Board of Veterans’ Appeals, a person adversely af-

fected by such decision shall file a notice of appeal

with the Court within 120 days after the date on

which notice of the decision is mailed pursuant to

section 7104(e) of this title.

SNEED v. SHINSEKI 11

§ 7266(a) “would clash sharply with” the flexible, pro-

claimant veterans benefits scheme. Id. at 1206. Because

the parties had not appealed the question of whether

§ 7266(a) was subject to equitable tolling, the Court left

that issue for the lower courts to decide on remand. Not

long after, the Veterans Court held equitable tolling

applied to § 7266(a). Bove, 25 Vet. App. 136. In so hold-

ing, the Veterans Court reasoned that the Bailey line of

cases was reinstated by the Supreme Court’s decision in

Henderson. Id. at 139.

III.

The issue in this case is whether the Veterans Court

applied an improperly narrow standard in rejecting Ms.

Sneed’s equitable tolling argument. The Veterans Court

began its equitable tolling analysis by reciting Bove’s

open-ended equitable tolling standard: whether “‘circum-

stances precluded a timely filing despite the exercise of

due diligence.’” Veterans Court Decision at *3 (quoting

Bove, 25 Vet. App. at 140). It recounted three instances in

which this court has applied equitable tolling: “‘(1) a

mental illness rendering one incapable of handling one’s

own affairs or other extraordinary circumstances beyond

one’s control, (2) reliance on the incorrect statement of a

VA official, or (3) a misfiling at the regional office or the

Board.’” Veterans Court Decision at *3–4 (quoting Bove,

25 Vet. App. at 140). The Veterans Court denied equita-

ble tolling, stating that the circumstances preceding Ms.

Sneed’s late filing “are not extraordinary, but rather

evidence general negligence or procrastination.” Veterans

Court Decision at *4. However, the Veterans Court did

not consider whether Ms. Eagle’s abrupt withdrawal only

one day before the filing deadline constituted extraordi-

nary circumstances. Rather, it summarily concluded that

“Attorney Eagle is not a VA official” Id. at *4 n.1 (citing

Bailey v. West, 160 F.3d 1360 (holding a veteran’s reliance

on the incorrect statement of a VA official could justify

equitable tolling)).

In so reasoning, the Veterans Court improperly treat-

ed the listed examples—including reliance on the incor-

rect statement of a VA official—as the exclusive

“parameters” of equitable tolling. Id. at *3. Equitable

12 SNEED v. SHINSEKI

tolling is not “limited to a small and closed set of factual

patterns.” Mapu v. Nicholson, 397 F.3d 1375, 1380 (Fed.

Cir. 2005). This court has “rejected the approach of

looking to whether a particular case falls within the facts

specifically identified in Irwin or one of our prior cases.”

Id. Rather, courts acting in equity have emphasized “the

need for flexibility” and “for avoiding mechanical rules,”

and have proceeded on a “case-by-case basis.” Holland v.

Florida, 130 S. Ct. 2549, 2563 (2010) (internal quotation

marks and citation omitted). The Veterans Court’s analy-

sis focused too narrowly on whether Ms. Sneed’s case fell

into one of the factual patterns of past cases considering

§ 7266(a), and improperly failed to consider whether

attorney misconduct—as opposed to misconduct by a VA

official—may constitute a basis for equitable tolling. 8

The Supreme Court has held that attorney abandon-

ment may constitute a basis for equitable tolling.

“[U]nprofessional attorney conduct may, in certain cir-

cumstances, prove ‘egregious’ and can be ‘extraordinary,’”

thus forming a basis for equitable tolling. Holland, 130 S.

Ct. at 2564 (citations omitted). In contrast, “a garden

variety claim of excusable neglect, such as a simple mis-

calculation that leads a lawyer to miss a filing deadline

does not warrant equitable tolling.” Id. at 2564 (internal

quotation marks and citations omitted). The Court later

emphasized the difference between mere attorney negli-

gence and attorney abandonment. Maples v. Thomas, 132

S. Ct. 912, 924–27 (2012). In the latter, a “counsel’s near-

total failure to communicate with petitioner or to respond

to [the client’s] many inquiries and requests over a period

8 Although it is improper to apply overly rigid

standards, “courts of equity can and do draw upon deci-

sions made in other similar cases for guidance.” Holland,

130 S. Ct. at 2563. Such guidance may be found in cases

other than veterans cases. See, e.g., Barrett, 363 F.3d at

1319–21 (relying on decisions of the Supreme Court and

regional circuit courts in concluding that mental illness

may justify equitable tolling); Arbas, 403 F.3d at 1381–82

(citing regional circuit court and district court decisions

regarding physical illness).

SNEED v. SHINSEKI 13

of several years” may amount to extraordinary circum-

stances beyond the client’s control. Id. at 923 (internal

quotation marks and citation omitted). This differs from

the rule applicable to mere attorney negligence—which is

attributable to the client pursuant to general agency

principles—because “[c]ommon sense dictates that a

litigant cannot be held constructively responsible for the

conduct of an attorney who is not operating as his agent

in any meaningful sense of that word.” Id. (internal

quotation marks and citation omitted).

According to the Secretary, the Veterans Court Deci-

sion did not foreclose attorney abandonment as a basis for

equitable tolling, but rather applied the broad standard

articulated in Bove that equitable tolling is appropriate

“‘when circumstances precluded a timely filing despite the

exercise of due diligence.’” Veterans Court Decision at *3

(quoting Bove, 25 Vet. App. at 140). The Veterans Court’s

analysis, which dismissed the significance of Ms. Eagle’s

conduct because she was not a VA official, belies this

contention. Additionally, other Veterans Court cases

appear to foreclose attorney abandonment as a basis for

equitable tolling. For instance, the Veterans Court ad-

dressed attorney abandonment in Metras v. Shinseki,

2013 U.S. App. Vet. Claims LEXIS 1012 (Vet. App. June

26, 2013) (unpublished). In Metras, the Veterans Court

held Holland and Maples were distinguishable in part

because, unlike in Maples and Holland (both habeas

corpus cases), “neither Mr. Metras’s liberty nor his person

is at risk.” 9 Metras, 2013 U.S. App. Vet. Claims LEXIS

9 The other reasons for distinguishing Maples and

Holland were: (1) the agent in Metras was a veterans

service organization, not an attorney, and (2) Metras was

notified over a month before the relevant filing deadline.

Metras, 2013 U.S. App. Vet. Claims LEXIS 1012, at *23.

The dissent cites Metras to show that “the Veterans Court

has long recognized” that attorney abandonment can

justify equitably tolling the filing deadline in § 7266.

Dissenting Op. at 5–6. Metras, however, strongly sug-

gests that attorney abandonment principles do not apply

in veterans benefits cases.

14 SNEED v. SHINSEKI

1012, at *23. This reasoning suggests that attorney

abandonment could never justify equitable tolling in

veterans benefits cases, where the litigant’s liberty and

person are not at risk. 10

Contrary to this reasoning, the equitable principles

invoked in Holland and Maples apply just as strongly in

veterans cases as they do in the habeas corpus context.

Although benefits cases may not threaten veterans’

liberty or persons, veterans risked both life and liberty in

their military service to this country. The veterans bene-

fits scheme is thus “imbued with special beneficence from

a grateful sovereign.” Bailey, 160 F.3d at 1370 (Michel, J.,

concurring). In holding equitable tolling applied to

§ 7266(a), the Bailey court reasoned that the Supreme

Court had extended a form of equitable tolling to prison-

ers filing for habeas corpus relief, and this court was

“loath to treat less worthily those who have served the

country.” Id. at 1368 (citing Houston v. Lack, 487 U.S. 266

(1988)). The special treatment Congress reserved for

veterans requires that courts lend veterans at least the

same degree of solicitude as that bestowed on habeas

petitioners. See Henderson, 131 S. Ct. at 1205 (quoting

United States v. Oregon, 366 U.S. 643, 647 (1961)) (noting

10 Other cases also suggest that the Veterans Court

does not consider attorney abandonment to be a basis for

equitable tolling in veterans cases. See, e.g., Jackson v.

Shinseki, No. 11-1236, 2012 WL 2874393, at *2 (Vet. App.

July 16, 2012) (unpublished) (“To the extent that an

attorney may be incompetent, the appellant’s remedy may

be against the attorney in State court in a claim for legal

malpractice.”). Although an attorney’s garden variety

neglect is not a basis for equitable tolling, the Veterans

Court has gone further and said that “[f]iling delays due

to inattentive representation are not one of the circum-

stances under which the Court will consider equitable

tolling.” Rose v. Shinseki, No. 11-1153, 2012 WL 2856470,

at *1 (Vet. App. July 12, 2012) (unpublished) (emphasis

added). Contrary to the dissent’s conclusion, it is far from

“apparent . . . that the Veterans Court already recognizes

attorney abandonment as a ground for equitable tolling.”

Dissenting Op. at 6.

SNEED v. SHINSEKI 15

Congress’ “‘long standing’” solicitude for veterans). The

Supreme Court held in Maples and Holland that habeas

petitioners may benefit from equitable tolling in cases of

attorney abandonment, and this court concludes that the

same protection extends to veterans.

The Secretary nevertheless argues that attorney

abandonment cannot justify equitable tolling “in the civil

context” because litigants in such cases do not enjoy the

constitutional right to the effective assistance of counsel.

Appellee’s Br. 17 n.6 (citing Pitts v. Shinseki, 700 F.3d

1279, 1286 (Fed. Cir. 2012) (holding “the right to the

effective assistance of counsel does not apply to proceed-

ings before the [Veterans Court]”)). However, a petition

for a writ of habeas corpus is itself a civil action, Wood-

ford v. Ngo, 548 U.S. 81, 90–91 & n.2 (2006), to which the

Sixth Amendment right to counsel does not apply, U.S.

Const. amend. 6 (ensuring “the Assistance of Counsel” in

“all criminal prosecutions”); see also Coleman v. Thomp-

son, 501 U.S. 722, 752 (1991) (“There is no constitutional

right to an attorney in state post-conviction proceed-

ings.”). Furthermore, the Supreme Court did not base its

decisions in Maples and Holland on the right to effective

assistance of counsel, but rather on “equitable principles”

in general. See Holland, 130 S. Ct. at 2563 (“[W]e have

followed a tradition in which courts of equity have sought

to relieve hardships which, from time to time, arise from a

hard and fast adherence to more absolute legal rules.”)

(internal quotation marks and citation omitted); Maples,

132 S. Ct. at 915.

Holland and Maples averted hardships caused by “a

hard and fast adherence” to general agency principles by

holding that “a client cannot be charged with the acts or

omissions of an attorney who has abandoned him.” Ma-

ples, 132 S. Ct. at 924; see also Holland, 130 S. Ct. at 2568

(Alito, J., concurring). The hardship of default resulting

from attorney abandonment is particularly difficult to

bear in the context of an appeal to the Veterans Court,

which is often the veteran’s first opportunity to be repre-

sented by an attorney. See 38 U.S.C. § 5904(c)(1). Accord-

ingly, pursuant to the principles of Maples and Holland,

16 SNEED v. SHINSEKI

attorney abandonment may justify equitably tolling the

filing deadline in appeals to the Veterans Court.

CONCLUSION

For the foregoing reasons, the Veterans Court’s deci-

sion dismissing Ms. Sneed’s appeal is vacated, and the

case is remanded for further proceedings consistent with

this opinion.

VACATED AND REMANDED

United States Court of Appeals

for the Federal Circuit

______________________

MARVA J. SNEED,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,

Respondent-Appellee.

______________________

2013-7029

______________________

Appeal from the United States Court of Appeals for

Veterans Claims in No. 11-2715, Judge William A. Moor-

man.

______________________

PROST, Circuit Judge, dissenting.

The majority’s pronouncements on attorney aban-

donment are pure dicta; this appeal is plainly beyond our

jurisdiction. I therefore respectfully dissent.

I

This case is not factually complex. Ms. Sneed con-

tacted an attorney, Katrina Eagle, with the intent of

retaining her in her appeal to the Veterans Court. After

she contacted Ms. Eagle’s office several times, Ms. Sneed

received a formal letter from Ms. Eagle on August 2, 2011,

informing her that Ms. Eagle could not represent her

because her benefits claim was meritless. In the letter,

Ms. Eagle erroneously informed Ms. Sneed that her

2 SNEED v. SHINSEKI

Notice of Appeal (“NOA”) was due August 5, 2011, instead

of August 3, 2011. After receiving Ms. Eagle’s letter, Ms.

Sneed did not file her NOA by August 3, 2011. Nor did

she file it by the day Ms. Eagle told her it was due, Au-

gust 5, 2011. Instead, Ms. Sneed waited thirty days after

receiving Ms. Eagle’s letter to finally fax her handwritten

one-page NOA to the Veterans Court. Thus, Ms. Sneed’s

NOA was filed twenty-nine days late.

The Veterans Court rejected Ms. Sneed’s request to

excuse her untimely NOA. It found that Ms. Sneed knew

that she did not need “an attorney to proceed before the

Court,” and “regardless of whether Attorney Eagle misin-

formed [Ms. Sneed] of the NOA due date by two days,

[Ms. Sneed] filed her NOA 29 days after it had been due.”

J.A. 49. Those facts, the Veterans Court concluded,

demonstrated that “the circumstances leading up to [Ms.

Sneed’s] late NOA are not extraordinary, but rather

evidence general negligence or procrastination.” Id.

II

The majority insists, however, that the Veterans

Court committed legal error by not recognizing that

attorney abandonment can be a ground for equitable

tolling of an NOA deadline. But we have jurisdiction

when an appellant urges alteration of the standard for

equitable tolling only “when the material facts are not in

dispute and the adoption of a particular legal standard

would dictate the outcome of the equitable tolling claim.”

Mapu v. Nicholson, 397 F.3d 1375, 1379 (Fed. Cir. 2005)

(emphasis added). The attorney abandonment doctrine

does not “dictate the outcome of the equitable tolling

claim” here. It was irrelevant to the Veterans Court’s

disposition of this case and should be to ours. 1

1 The majority claims that we still have jurisdiction

over this appeal because we may determine whether an

SNEED v. SHINSEKI 3

Ms. Sneed argued to the Veterans Court that Ms. Ea-

gle’s actions excused two days of the twenty-nine-day

delay in the filing of her NOA. The Veterans Court rec-

ognized that equitable tolling was improper here because

Ms. Sneed provided no explanation for the other twenty-

seven days of the delay. Indeed, diligence or excuse is

required for the entire period of delay to justify equitable

tolling—explaining just two days of a twenty-nine-day

delay in filing an NOA is insufficient as a matter of law.

See Holland v. Florida, 130 S. Ct. 2549, 2565 (2010); see

also Phillips v. Principi, 18 F. App’x 862, 865 (Fed. Cir.

2001) (collecting cases and explaining why a temporary

external impediment lasting for a time shorter than the

requested tolling period cannot justify equitable tolling).

And diligence required for equitable tolling is reasonable

diligence in the pursuit of an appeal—not diligence in

pursuit of a new lawyer once abandoned by another. See

Holland, 130 S. Ct. at 2565; see also Maples v. Thomas,

132 S. Ct. 912, 927 (2012). The Veterans Court recog-

nized that fact and denied Ms. Sneed’s request for equita-

ble tolling because she had no justification for the entire

period of delay in the filing of her NOA. 2

error by the Veterans Court was “harmless error (and

thus not outcome determinative).” Majority Op. at 8 n.5.

But “harmless error” plays no part in this case. “Harm-

less error” requires error, which the Veterans Court did

not commit. The court did not apply the attorney aban-

donment doctrine because that doctrine was unnecessary

to conclude that Ms. Sneed’s month-long delay in filing

her NOA was not caused by Ms. Eagle but her own gen-

eral negligence and procrastination. There was nothing

incorrect about that factual conclusion.

2 The majority asserts that the Veterans Court may

have believed Ms. Sneed in fact exercised due diligence

because the court made the following statement to con-

4 SNEED v. SHINSEKI

Even if we were to improperly review the factual find-

ings here, it should be quite clear that Ms. Eagle’s actions

could not justify tolling Ms. Sneed’s NOA deadline for

twenty-nine days. There is no reason apparent in the

record or presented by Ms. Sneed to explain why she

could not have faxed her handwritten one-page NOA to

the Veterans Court in any of the thirty days following the

receipt of Ms. Eagle’s letter. Ms. Sneed had access to a

fax machine during that time, see J.A 19-26; she knew the

Veterans Court’s fax number and the NOA deadline from

the Board’s decision, J.A. 14; she was informed by Ms.

Eagle that the NOA deadline was no later than August 5,

2011, J.A. 26; she was told in writing by Ms. Eagle that

she could file her appeal herself, id.; and the Board’s

decision informed her of additional resources she could

consult to help in prosecuting her appeal on her own, J.A.

14—resources that she apparently waited thirty days to

use and eventually lead her to file her NOA pro se.

Thus, it is quite apparent that, as the Veterans Court

found, the untimeliness of Ms. Sneed’s NOA was due to

her “general negligence or procrastination”—nothing

clude its opinion: “Thus the appellant fails to demonstrate

that, despite her exercise of due diligence, circumstances

prevented her from timely filing her NOA. See Bove and

Bailey, both supra.” The majority’s interpretation of this

statement is remarkable. The Veterans Court’s state-

ment was simply a recitation of the legal standard from

Bove v. Shinseki, 25 Vet. App. 136 (2011), that Ms. Sneed

did not satisfy. Recounting the standard does not mean

that the Veterans Court believed an element to be satis-

fied. There is no confusion about the Veterans Court’s

findings here: equitable tolling was inappropriate because

Ms. Sneed knew she could file her appeal herself and

failed to adequately show that circumstances beyond her

control prevented her doing so in a timely manner.

SNEED v. SHINSEKI 5

more. Ms. Sneed had argued to the Veterans Court that,

under the standard enunciated in Bove, the “circumstanc-

es [of this case] do not indicate ‘general negligence or

procrastination.’” J.A. 37 (quoting Bove). The Veterans

Court simply disagreed with Ms. Sneed on how to apply

the facts to the law she advanced in her briefing—a

decision over which we have no jurisdiction. 38 U.S.C.

§ 7292(d)(2). 3

III

Nevertheless, the majority insists on interpreting the

Veterans Court’s opinion in a way that allows it to correct

what they see as a persistent—yet unspoken—policy of

the Veterans Court to not recognize attorney misconduct

as a basis for equitable tolling. Again, the majority over-

looks the facts.

Ms. Sneed has conceded that the Veterans Court has

“at least acknowledge[d] the possibility that attorney

abandonment may be a ground for tolling the deadline to

appeal to the Veterans Court.” Appellant’s Rule 28(j)

Letter, Aug. 21, 2013, ECF No. 44. And the Veterans

Court has long recognized that egregious attorney mis-

3 The majority nevertheless declares that we have

jurisdiction over her appeal because the “Veterans Court

relied on [38 U.S.C.] § 7266(a) in dismissing Ms. Sneed’s

[request for equitable tolling]” and Ms. Sneed challenges

the application of that “provision” by the Veterans Court,

Majority Op. at 8 n.5. That statement reflects a funda-

mental misconception of the scope of our jurisdiction. If it

were true, then we would have jurisdiction over any

equitable tolling decision by the Veterans Court. But we

do not have such limitless jurisdiction. Section 7292(d)(2)

expressly precludes us from reviewing any “challenge to a

factual determination” or “to a law or regulation as ap-

plied to the facts of a particular case.” 38 U.S.C. § 7292.

6 SNEED v. SHINSEKI

conduct—including abandonment—can justify equitable

tolling of the NOA deadline and has applied that principle

to equitably toll an NOA deadline for a veteran who was

effectively abandoned by his counsel. See Nelson v. Ni-

cholson, 19 Vet. App. 548, 553-54 (2006) aff’d, 489 F.3d

1380 (Fed. Cir. 2007); Metras v. Shinseki, No. 12-2488,

2013 WL 3225068 (Vet. App. June 26, 2013) (denying

equitable tolling after holding that the attorney aban-

donment standard from Maples and Holland did not apply

to the facts of the case); Johnson v. Shinseki, No. 09-2407,

(Vet. App. Mar. 20, 2012) (unpublished) (Appellee’s Rule

28(j) Letter attachment, Sept. 11, 2013, ECF No. 47)

(finding attorney abandonment to be egregious miscon-

duct justifying equitable tolling). Remarkably, that

“egregious misconduct” standard is the same one recog-

nized by the Supreme Court in Holland and adopted by

the majority here. See Majority Op. at 12; Holland, 130 S.

Ct. at 2564 (explaining that equitable tolling may be

justified by “unprofessional attorney conduct” that proves

“egregious”). It ought to be apparent, therefore, that the

Veterans Court already recognizes attorney abandonment

as a ground for equitable tolling. The majority’s concerns

and holding are unwarranted.

IV

Like the majority, I recognize the sacrifices that vet-

erans have made for our country. And I agree that they

are “imbued with special beneficence” for their service to a

grateful nation. Majority Op. at 14 (quoting Bailey v.

West, 160 F.3d 1360, 1370 (Fed. Cir. 1998) (en banc)).

However, the provision of those benefits is a matter

reserved to Congress. Likewise, the scope of our review of

decisions relating to those benefits is determined exclu-

sively by Congress. We should not evade the restrictions

imposed on our jurisdiction by § 7292(d)(2) in a way that

unnecessarily diverts the limited resources of the Veter-

ans Court. I therefore cannot join the majority’s opinion.