Dixon v. Shinseki

United States Court of Appeals

for the Federal Circuit

______________________

DONALD A. DIXON,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,

Respondent-Appellee.

______________________

2013-7032

______________________

Appeal from the United States Court of Appeals for

Veterans Claims in No. 08-1475, Chief Judge Bruce E.

Kasold.

______________________

Decided: February 4, 2014

______________________

STERLING LEBOEUF, Arnold & Porter, LLP, of Denver,

Colorado, argued for claimant-appellant. With him on the

brief was THOMAS W. STOEVER, JR.

ALLISON KIDD-MILLER, Senior Trial Counsel, Civil Di-

vision, United States Department of Justice, of Washing-

ton, DC, argued for respondent-appellee. With her on the

brief were STUART F. DELERY, Acting Assistant Attorney

General, JEANNE E. DAVIDSON, Director, and MARTIN F.

HOCKEY, JR., Assistant Director. Of counsel were DAVID

J. BARRANS, Deputy Assistant General Counsel, and

2 DIXON v. SHINSEKI

MARTIE ADELMAN, Attorney, United States Department of

Veterans Affairs, of Washington, DC.

______________________

Before DYK, MAYER, and CHEN, Circuit Judges.

MAYER, Circuit Judge.

Donald A. Dixon appeals the final judgment of the

United States Court of Appeals for Veterans Claims

(“Veterans Court”) denying his motion to recall the man-

date issued in a decision dismissing his appeal as untime-

ly filed. See Dixon v. Shinseki, No. 08-1475, 2012 WL

3291861 (Vet. App. Aug. 14, 2012) (“Equitable Tolling

Decision”). We reverse and remand.

BACKGROUND

Dixon served in the United States Army from July

1979 until July 1992. He worked as a chemical operations

specialist and served in the Persian Gulf, where he was

exposed to pyridostigmine, a medication administered to

troops to protect them from nerve agents. J.A. 115.

Dixon also “encountered smoke from oil fires, diesel, and

burning trash,” and had “cutaneous exposure [to] diesel

and petrochemical fuel.” J.A. 115.

In April 2003, Dixon was diagnosed with sarcoid

lungs and transverse myelitis, which left him temporarily

paralyzed from the waist down. Four months later, he

filed a claim with the Department of Veterans Affairs

(“VA”) seeking service-connected disability benefits for

sarcoidosis. He alleged that his “exposure to oil fires and

chemicals in Kuwait [was] a major factor” in the develop-

ment of his illness. J.A. 117.

In a September 2004 rating decision, a VA regional of-

fice denied Dixon’s claim. On appeal, the Board of Veter-

ans’ Appeals (“board”) affirmed, concluding that there was

“no medical evidence relating [Dixon’s] postservice diag-

nosis of . . . transverse myelitis and sarcoidosis to ser-

DIXON v. SHINSEKI 3

vice.” J.A. 121. Acting pro se, Dixon filed a notice of

appeal with the Veterans Court on May 9, 2008, sixty

days beyond the 120-day filing deadline specified in 38

U.S.C. § 7266(a). On August 29, 2008, the Veterans Court

dismissed Dixon’s appeal, concluding that it was “without

jurisdiction” to consider the appeal because it had not

been filed within the 120-day filing period. J.A. 132.

In Henderson ex rel. Henderson v. Shinseki, the Su-

preme Court held that the 120-day filing deadline for

appealing to the Veterans Court is not a jurisdictional

requirement. 131 S. Ct. 1197, 1203-06 (2011) (“Henderson

II”). Instead, section 7266(a)’s time limit is a “quintessen-

tial claim-processing rule[],” id. at 1203, which was not

intended by Congress “to carry the harsh consequences

that accompany the jurisdiction tag,” id. at 1206.

In the wake of Henderson II, the Veterans Court is-

sued an order allowing Dixon, and other similarly-

situated veterans, to file motions to recall the mandates

dismissing their appeals based on principles of equitable

tolling. See Bove v. Shinseki, 25 Vet. App. 136, 139-45

(2011). Still acting pro se, Dixon filed a motion seeking

equitable tolling and explaining that he suffered from

physical and psychiatric disabilities which prevented him

from filing his notice of appeal in a timely manner:

During the latter part of the year 2007 I missed

my deadline due to illness and mental stress. I

was having continued respiratory episodes, panic

attacks, and secluding myself as much as possible

due to PTSD. I was so consumed with being ill

and believing I was [dying]. I could not concen-

trate on myself or issues that needed to be re-

solved. My records will show that I was having

many PTSD, gastrointestinal, respiratory, and

gout issues at the time.

J.A. 134.

4 DIXON v. SHINSEKI

On July 30, 2012, Dixon filed a supplemental motion

stating that during the appeal period he believed that he

was “on [his] death bed” and was having many panic

attacks related to his “large lymph nodes” which in the

next year proved to be a symptom of lymphoma, a form of

cancer. J.A. 139. Dixon also submitted a letter from his

VA psychiatrist, Gary L. Kielpikowski, M.D., which stated

that he had been treating Dixon since 2001 and that

Dixon “had severe problems with medical issues and Post

Traumatic Stress Disorder during” the period when he

was appealing the board’s denial of his claim for sarcoido-

sis. J.A. 137. Kielpikowski explained that Dixon was

“unable to attend [to] or focus on the appeal process

during the [period from] November 2007 to August 2008.”

J.A. 137.

On August 14, 2012, the Veterans Court denied Dix-

on’s motion seeking equitable tolling and dismissed his

appeal. Although the court acknowledged that

Kielpikowski had opined that Dixon could not attend to,

or focus on, the appeal process due to his mental and

physical infirmities, it determined that Dixon had failed

to establish that his untimely filing was “the direct result

of his illnesses.” Equitable Tolling Decision, 2012 WL

3291861, at *1 (citations and internal quotation marks

omitted).

On August 28, 2012, Sterling J. LeBoeuf and Thomas

W. Stoever, Jr., attorneys with Arnold & Porter LLP,

agreed to represent Dixon pro bono. They promptly

moved for an extension of time to file a motion for recon-

sideration of the decision denying Dixon’s request for

equitable tolling. The Veterans Court granted this mo-

tion on August 30, 2012, allowing Dixon until October 4,

2012 to file a motion for reconsideration.

On September 5, 2012, LeBoeuf requested a copy of

Dixon’s claims file from the VA. The VA refused, howev-

er, to send him a copy of the file. VA representatives did

DIXON v. SHINSEKI 5

offer to make the file available for review at the VA’s

Denver regional office, but informed LeBoeuf that the

earliest available appointment for reviewing the file was

October 1, 2012, three days before Dixon’s motion for

reconsideration was due. On October 1, 2012, Rebecca

Golz, a legal assistant who worked with LeBoeuf, visited

the VA’s Denver office and reviewed Dixon’s claims file.

Golz alleges, however, that she was monitored by a VA

representative during the review process and that she

was not allowed “enough time to review the documents

thoroughly.” J.A. 171. During her review of Dixon’s file,

Golz selected twenty to thirty documents that she wished

to have copied. Although the VA agreed to make copies of

these documents, it refused to do so contemporaneously.

Golz attempted to give VA officials prepaid Federal Ex-

press and UPS shipping labels in order to expedite ship-

ping of the copies she had requested, but they declined to

accept them. Although Golz stressed to VA officials that

Dixon’s motion for reconsideration was due on October 4,

2012, they declined to provide any assurances that the

documents would be sent before that date. As of October

4, 2012, the VA had not provided Dixon’s attorneys with

any of the documents Golz had marked for copying.

The VA also hindered LeBoeuf’s efforts to obtain a

declaration from Kielpikowski supporting Dixon’s motion

for reconsideration. Throughout September 2012,

LeBoeuf “worked with Mr. Dixon and Dr. Kielpikowski to

understand the medical conditions that prevented Mr.

Dixon from timely filing his [notice of appeal].” On Octo-

ber 2, 2012, LeBoeuf sent a draft declaration describing

these psychiatric and physical conditions to Kielpikowski

for review. This declaration stated that in the period

between November 2007 and March 2008 Dixon suffered

from psychiatric conditions that “rendered him unable to

focus on and complete the process of preparing and filing

a notice of appeal” and that his “psychiatric and physical

conditions directly resulted in his inability to timely file a

6 DIXON v. SHINSEKI

notice of appeal with [the Veterans] Court.” J.A. 178-79.

On the same day that he received the draft declaration,

Kielpikowski called LeBoeuf and informed him that he

was willing to sign it as soon as counsel for the VA au-

thorized him to do so. Soon thereafter, however, a VA

attorney called LeBoeuf and informed him that

Kielpikowski would not be permitted to sign the declara-

tion because the VA’s Touhy regulations precluded him

from doing so. 1

On October 3, 2012, LeBoeuf filed a second motion for

an extension of time with the Veterans Court. He ex-

plained that “extraordinary circumstances” justified the

granting of additional time given that the VA had refused

to timely provide him with relevant documents from

Dixon’s claims file and had unjustifiably prohibited Dix-

on’s “doctor from providing truthful testimony in support

of his motion” for reconsideration.

On October 10, 2012, the Veterans Court denied

LeBoeuf’s motion for an extension of time 2 and entered

judgment against Dixon. Citing to Rule 35(e)(1) of its

Rules of Practice and Procedure, the court stated that “a

motion for reconsideration or panel review must show

that the Court has overlooked or misunderstood a point of

law or fact.” Dixon v. Shinseki, No. 08-1475, slip op. at 1

(Vet. App. Oct. 10, 2012) (“Order Denying an Extension of

Time”). In the court’s view, Dixon had no right to “aug-

ment[] the record” on motion for reconsideration because

such a motion “must be based on the record at the time of

1 As will be discussed more fully in section III, the

VA’s Touhy regulations are inapplicable where, as here,

the VA “is a party” to the proceedings. 38 C.F.R.

§ 14.801(b)(2)(i).

2 The Veterans Court also denied Dixon’s motion to

file a motion for reconsideration out of time. See Order

Denying an Extension of Time, slip op. at 2.

DIXON v. SHINSEKI 7

the decision upon which reconsideration or panel review

is sought.” Id. Because the court concluded that Dixon

had no right to submit medical records from his claims file

or a declaration from his VA physician in support of his

motion for reconsideration, it determined that he had

failed to establish “good cause” for granting an extension

of time. Id.

Dixon then filed a timely appeal with this court. We

have jurisdiction under 38 U.S.C. § 7292.

DISCUSSION

I. Standard of Review

This court’s authority to review decisions of the Vet-

erans Court is circumscribed by statute. Reeves v.

Shinseki, 682 F.3d 988, 992 (Fed. Cir. 2012). While we

have jurisdiction to review the Veterans Court’s interpre-

tation of statutory and regulatory provisions, we are

prohibited, absent a constitutional issue, from reviewing

challenges to factual determinations or the application of

a statute or regulation to the facts of a particular case. 38

U.S.C. § 7292. “We have recognized, however, that where

adoption of a particular legal standard dictates the out-

come of a case based on undisputed facts, we may address

that issue as a question of law.” Halpern v. Principi, 384

F.3d 1297, 1306 (Fed. Cir. 2004); see also Conley v. Peake,

543 F.3d 1301, 1304 (Fed. Cir. 2008). We review de novo

the legal determinations made by the Veterans Court.

Cushman v. Shinseki, 576 F.3d 1290, 1296 (Fed. Cir.

2009).

II. Motions for an Extension of Time

Dixon argues that the Veterans Court abused its dis-

cretion in denying his motion for an extension of time

given that the VA actively obstructed his attorney’s

efforts to obtain and review his claims file. In support, he

contends that the court’s refusal to grant LeBoeuf ade-

quate time to secure copies of relevant medical records is

8 DIXON v. SHINSEKI

contrary to this court’s decision in Barrett v. Nichol-

son, 466 F.3d 1038 (Fed. Cir. 2006) (“Barrett II”), and

serves to “reward delay and obstruction by the [VA].”

We agree under the circumstances of this case.

“Because many veterans lack the knowledge and re-

sources necessary to locate relevant records, Congress has

appropriately placed the burden on the VA to ensure that

all relevant service medical records are obtained and fully

evaluated.” Moore v. Shinseki, 555 F.3d 1369, 1374-75

(Fed. Cir. 2009). In Barrett II, we explicitly rejected the

government’s argument that while the VA had a duty to

produce records related to the merits of a veteran’s disa-

bility claim, it was subject to no such obligation with

respect to a veteran’s motion seeking equitable tolling of

the 120-day deadline for appealing to the Veterans Court.

466 F.3d at 1042-44. We explained that “where evidence

required to prove a fact is peculiarly within the knowledge

and competence of one of the parties, fairness requires

that party to bear the burden of coming forward.” Id. at

1042 (citations and internal quotation marks omitted).

Because the VA typically has “superior access to a veter-

an’s [claims] file and the facts bearing on jurisdiction,” it

has an affirmative obligation “to come forward with”

evidence relevant to a veteran’s entitlement to equitable

tolling “and to develop additional facts uniquely within its

competence” on that issue. 3 Id. at 1042-43.

3 Although the government acknowledges that the

VA is required to produce relevant records from a veter-

an’s claims file during the initial adjudication of a request

for equitable tolling, it argues that Barrett II imposes no

such obligation when a veteran subsequently seeks recon-

sideration of a decision denying equitable tolling. We find

the government’s reading of Barrett II to be unduly

cramped. Nothing in that decision suggests that the

government’s obligation to produce records relevant to a

DIXON v. SHINSEKI 9

Here, however, the VA did not come forward with the

evidence in its possession related to Dixon’s claim for

equitable tolling, but instead obstructed the diligent

efforts by LeBoeuf to gain access to Dixon’s claims file

prior to the October 4, 2012 motion for reconsideration

filing deadline set by the Veterans Court. The VA refused

to send LeBoeuf a copy of the file, and while it allowed a

legal assistant from LeBoeuf’s firm to review the file for a

limited period of time at its Denver regional office, she

was not allowed “enough time to review the documents

thoroughly.” J.A. 171. Nor was she permitted to make

copies of any documents. Furthermore, although VA

representatives agreed to copy twenty to thirty documents

from the claims file and send them to LeBoeuf, he had not

received them by the October 4, 2012 filing deadline.

Given that the VA, despite diligent efforts by LeBoeuf,

failed to timely produce relevant documents from Dixon’s

claims file, and, as discussed below, the Veterans Court

was, under the circumstances here, obligated to consider

the record, the Veterans Court erred in refusing to grant

an extension of time. Although “[t]he Veterans Court has

broad discretion to interpret and apply its Rules of Prac-

tice and Procedure,” Bastien v. Shinseki, 599 F.3d 1301,

1307 (Fed. Cir. 2010), we see no reasonable justification

for the court’s refusal to grant an extension of time here.

Where a litigant is unjustifiably denied timely access to

pertinent evidence in the possession of the opposing party,

fairness dictates that he be granted an extension of time

sufficient to allow him to obtain and review such evi-

dence. See Baron Servs., Inc. v. Media Weather Innova-

tions LLC, 717 F.3d 907, 912-13 (Fed. Cir. 2013)

(concluding that a district court abused its discretion

when it refused to delay proceedings in order to allow a

claim for equitable tolling does not apply in the context of

a motion for reconsideration.

10 DIXON v. SHINSEKI

litigant sufficient time to obtain relevant evidence);

Metro. Life Ins. Co. v. Bancorp Servs., L.L.C., 527 F.3d

1330, 1337 (Fed. Cir. 2008) (concluding that a district

court abused its discretion in refusing to provide a litigant

with adequate time to conduct discovery before ruling on

the merits of a claim).

Veterans not infrequently encounter significant diffi-

culties when attempting to obtain pertinent medical

records from the VA. See, e.g., Moore, 555 F.3d at 1374

(veteran’s medical records were “‘lost in the bowels’ of the

National Personnel Records Center” for several years and

were located only after the veteran obtained counsel and

appealed to this court); Washington v. Nicholson, 19 Vet.

App. 362, 369 (2005) (veteran’s medical records were lost

and never located); Marciniak v. Brown, 10 Vet. App. 198,

200 (1997), aff’d sub nom. Marciniak v. West, 168 F.3d

1322 (Fed. Cir. 1998) (the VA “twice lost” the veteran’s

claims file). Denying a motion for an extension of time in

situations in which the VA runs out the clock, refusing to

produce relevant medical evidence until after the deadline

for filing a motion for reconsideration has passed, serves

only to reward delay and obstruction on the agency’s part.

See Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009)

(emphasizing that “[t]he VA disability compensation

system is not meant to be a trap for the unwary, or a

stratagem to deny compensation to a veteran who has a

valid claim”).

III. The Kielpikowski Declaration

Under Veterans Court Rule 35(e), a motion for recon-

sideration is required to “state the points of law or fact

that the party believes the Court has overlooked or mis-

understood.” Vet. App. R. 35(e)(1). Dixon argues that the

Veterans Court misinterpreted this rule when it conclud-

ed that it barred him from introducing a declaration from

his VA psychiatrist, Kielpikowski, supporting reconsider-

ation of the decision denying his equitable tolling claim.

DIXON v. SHINSEKI 11

According to Dixon, introduction of the Kielpikowski

declaration comports with Rule 35(e) because it establish-

es that the Veterans Court “misunderstood” the letter

Kielpikowski submitted when Dixon filed his initial

motion seeking equitable tolling. Specifically, the decla-

ration is intended to clarify that when Kielpikowski

originally stated that Dixon’s “severe” psychiatric and

physical disabilities rendered him “unable to attend [to]

or focus on” the filing of his appeal, J.A. 137, he meant

that those conditions “directly resulted in his inability to

timely file a notice of appeal with [the Veterans] Court,”

J.A. 179.

The Veterans Court determined, however, that Dixon

was precluded from introducing Kielpikowski’s declara-

tion, reasoning that he had no right to “augment[] the

record” when submitting his motion for reconsideration. 4

Order Denying an Extension of Time, slip op. at 1. In the

court’s view, Rule 35(e) requires that a motion for recon-

sideration “be based on the record at the time of the

decision upon which reconsideration or panel review is

sought.” Id.

We conclude that the Veterans Court erred to the ex-

tent that it concluded that Rule 35(e) imposes an absolute

prohibition on the submission of clarifying evidence in

support of reconsideration of an equitable tolling decision.

4 An attorney from the VA originally informed

LeBoeuf that the VA’s Touhy regulations precluded

Kielpikowski from submitting his declaration. Under

certain circumstances, the Touhy regulations prevent VA

employees from providing expert testimony. 38 C.F.R.

§ 14.801; see also Parson v. Chet Morrison Contrs.,

LLC, No. 12-0037, 2013 WL 5961099, at *2 (E.D. La. Nov.

7, 2013). Those regulations, however, are inapplicable

where, as here, the VA “is a party” to the proceedings. 38

C.F.R. § 14.801(b)(2)(i).

12 DIXON v. SHINSEKI

Such an interpretation is contrary to the court’s own

precedent which recognizes that, under certain circum-

stances, introduction of clarifying evidence is necessary

for “a full and fair consideration of [a veteran’s] equitable

tolling request, including assessment of all relevant

facts.” McCreary v. Nicholson, 20 Vet. App. 86, 91 (2006);

see also Leonard v. Shinseki, No. 12-1953, 2013 WL

1200783, at *1 (Vet. App. Mar. 26, 2013) (granting a

veteran’s motion for reconsideration of a decision denying

equitable tolling and allowing him “to submit information

or evidence about the circumstances that prevented his

timely filing” of a notice of appeal); Henderson v. Nichol-

son, No. 05-0090, 2006 WL 4029376, at *1 (Vet. App. Dec.

4, 2006), related proceeding at Henderson v. Peake, 22 Vet.

App. 217 (2008), aff’d sub nom. Henderson v. Shinseki,

589 F.3d 1201 (Fed. Cir. 2009) (en banc), rev’d and re-

manded Henderson II, 131 S. Ct. 1197 (“Henderson I”)

(granting a veteran’s motion for reconsideration and

expressly allowing him “to submit additional evidence”

supporting his equitable tolling claim); Ashley v. Derwin-

ski, 2 Vet. App. 307, 309 (1992) (permitting the govern-

ment to submit additional evidence, in the form of a

“belated” declaration from a VA employee, in support of

its motion for reconsideration). As Dixon correctly notes,

an interpretation of Rule 35(e) which imposes a blanket

prohibition on the introduction of clarifying evidence

serves to “punish some of the most vulnerable litigants in

the Veterans Court—unrepresented veterans whose

illnesses, often related to their military service,” prevent

them from fully apprehending the prerequisites for estab-

lishing entitlement to equitable tolling of section 7266(a)’s

filing deadline.

In Henderson II, a unanimous Supreme Court rejected

the view that the 120-day time limit for appealing to the

Veterans Court posed an inflexible jurisdictional barrier.

131 S. Ct. at 1205-06. Although the Court noted that “the

time for taking an appeal from a district court to a court

DIXON v. SHINSEKI 13

of appeals in a civil case has long been understood to be

jurisdictional,” id. at 1205, it explained that “[t]he con-

trast between ordinary civil litigation . . . and the system

that Congress created for the adjudication of veterans’

benefits claims could hardly be more dramatic,” id. at

1205-06. The Court stated that “[t]he solicitude of Con-

gress for veterans is of long standing. And that solicitude

is plainly reflected in the [Veterans’ Judicial Review Act],

as well as in subsequent laws that place a thumb on the

scale in the veteran’s favor in the course of administrative

and judicial review of VA decisions.” Id. at 1205 (citations

and internal quotation marks omitted). In the Court’s

view, “[r]igid jurisdictional treatment of the 120-day

period for filing a notice of appeal in the Veterans Court

would clash sharply with” the unequivocally pro-claimant

scheme created by Congress for reviewing veterans’

disability claims. Id. at 1206.

A rigid prohibition precluding a veteran from present-

ing clarifying evidence on his entitlement to equitable

tolling would likewise “clash sharply” with the pro-

claimant veterans’ adjudicatory system. A mechanistic

bar on the introduction of clarifying evidence on motion

for reconsideration of an equitable tolling decision impos-

es an exacting and unreasonable standard, one that has

no place in an adjudicatory system intended to be “unu-

sually protective of claimants,” id. at 1204 (citations and

internal quotation marks omitted). See Sneed v.

Shinseki, 737 F.3d 719, 726-28 (Fed. Cir. 2013) (empha-

sizing that the equitable tolling doctrine should not be

applied in a narrow and inflexible manner); see also

Holmberg v. Armbrecht, 327 U.S. 392, 396 (1946) (“Equity

eschews mechanical rules; it depends on flexibility.”).

Many veterans seeking equitable tolling suffer from

very significant psychiatric and physical disabilities. See,

e.g., Henderson II, 131 S. Ct. at 1201 (veteran suffered

from paranoid schizophrenia); Barrett v. Principi, 363

F.3d 1316, 1317 (Fed. Cir. 2004) (“Barrett I”) (veteran

14 DIXON v. SHINSEKI

suffered from post-traumatic stress disorder and experi-

enced flashbacks and hallucinations). These veterans,

moreover, are often unrepresented when they file motions

seeking equitable tolling and therefore may have difficul-

ty fully apprehending the prerequisites required to satisfy

the Veterans Court’s three-part equitable tolling stand-

ard. 5 See Forshey v. Principi, 284 F.3d 1335, 1357 (Fed.

Cir. 2002) (en banc) (emphasizing that an unrepresented

veteran “should not be punished for his failure to recog-

nize subtle factual or legal deficiencies in his claims”

(citations and internal quotation marks omitted)). To

impose a harsh and inflexible prohibition against the

introduction of clarifying evidence on motion for reconsid-

eration would “be both ironic and inhumane,” Barrett I,

363 F.3d at 1320, because the very conditions for which a

veteran seeks equitable tolling will not infrequently be

the same conditions which prevent him from adequately

articulating the factual and legal bases of his equitable

tolling claim. See Canales v. Sullivan, 936 F.2d 755, 758

(2d Cir. 1991) (considering a supplemental affidavit in

support of a claimant’s motion for relief from judgment on

a decision denying equitable tolling of the deadline for

appealing the denial of a Social Security disability claim

and explaining that “the very disability that forms all or

part of the basis for which the claimant seeks benefits

may deprive her of the ability to understand or act upon

5 The Veterans Court has adopted a three-part test

to determine whether equitable tolling based on extraor-

dinary circumstances is warranted: “First, the extraordi-

nary circumstance must be beyond the [veteran’s] control.

Second, the [veteran] must demonstrate that the untimely

filing was a direct result of the extraordinary circum-

stances. Third, the [veteran] must exercise ‘due diligence’

in preserving his . . . appellate rights.” Checo v.

Shinseki, 26 Vet. App. 130, 133 (2013) (citations and

internal quotation marks omitted).

DIXON v. SHINSEKI 15

notice of available administrative procedures” (citations

and internal quotation marks omitted)); Nunnally v.

MacCausland, 996 F.2d 1, 5 (D.C. Cir. 1993) (emphasizing

that equitable tolling provisions should not be applied in a

manner that is contrary to the “substantive purposes” of a

remedial statutory scheme).

Significantly, the Veterans Court’s resolution of equi-

table tolling claims differs markedly—in form and sub-

stance—from its resolution of other disability claim

issues. As an appellate tribunal, the court generally does

not engage in fact-finding, but instead reviews the board’s

factual determinations for clear error. See 38 U.S.C.

§ 7261; Washington v. Nicholson, 19 Vet. App. 362, 366

(2005) (“The Board’s determination of service connection

is a question of fact that the Court reviews under the

‘clearly erroneous’ standard of review.”). In the equitable

tolling context, however, the Veterans Court must “inde-

pendently weigh the facts” and determine, on a case-by-

case basis, whether a veteran has established that a

mental or physical disability, or other circumstance

beyond his control, prevented him from filing a timely

notice of appeal. Bove, 25 Vet. App. at 143. Because the

period relevant to the equitable tolling inquiry occurs

after the board has rendered a final decision denying a

veteran’s disability claim, the Veterans Court must fre-

quently “seek facts outside the record before the Board” in

evaluating whether equitable tolling is warranted. Id.

Given that the Veterans Court must make equitable

tolling determinations without the benefit of a fully

developed record from the board—and must frequently

make such determinations based on the submissions from

unrepresented veterans who suffer from significant

psychiatric and physical disabilities—an initial decision

denying equitable tolling may be grounded on an incom-

plete or inaccurate understanding of the extent to which a

veteran’s disability precluded him from filing a timely

notice of appeal. As McCreary recognizes, the language

16 DIXON v. SHINSEKI

used in the submissions of unrepresented veterans can

sometimes be “inartful” and fail to adequately describe

the circumstances which prevented the timely filing of a

notice of appeal. 20 Vet. App. at 91. Accordingly, in

certain circumstances, the introduction of clarifying

evidence on motion for reconsideration may be necessary

to permit the court to fully evaluate the factual predicate

of a veteran’s equitable tolling claim. See Barrett II, 466

F.3d at 1046 (emphasizing that a veteran is due a “full

and fair hearing” on his entitlement to equitable tolling).

This court is precluded from reviewing factual deter-

minations bearing on a veteran’s equitable tolling claim.

Leonard v. Gober, 223 F.3d 1374, 1376 (Fed. Cir. 2000).

Accordingly, a motion for reconsideration filed with the

Veterans Court generally provides a veteran with his “one

shot” to challenge the factual determinations underlying

an equitable tolling decision and to identify the “points of

. . . fact that [he] believes the Court has overlooked or

misunderstood.” Vet. App. R. 35(e)(1). Imposing an

absolute prohibition on the introduction of clarifying

evidence in situations in which such evidence is necessary

to establish that the Veterans Court “misunderstood” the

facts surrounding the untimely filing of an appeal could

therefore deprive a veteran of any meaningful opportunity

to correct any factual errors in an equitable tolling deci-

sion.

IV. Motions for Reconsideration

“[W]here litigants have once battled for the court’s de-

cision, they should neither be required, nor without good

reason permitted, to battle for it again.” Official Comm.

of the Unsecured Creditors of Color Tile, Inc. v. Coopers &

Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003) (citations

and internal quotation marks omitted). Motions for

reconsideration do not afford litigants the opportunity to

take a “second bite at the apple” or to advance arguments

that properly should have been presented in an earlier

DIXON v. SHINSEKI 17

proceeding. See Bluebonnet Sav. Bank, F.S.B. v. United

States, 466 F.3d 1349, 1361 (Fed. Cir. 2006); Lamle v.

Mattel, Inc., 394 F.3d 1355, 1359 n.1 (Fed. Cir. 2005).

Likewise, as a general rule, such motions do not provide a

vehicle for the introduction of new evidence or affidavits.

See Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d

792, 797 (Fed. Cir. 1990) (concluding that “an additional

[expert] affidavit” filed in support of a motion for recon-

sideration was “untimely”); see also Navarro v. Fuji Heavy

Indus., Ltd., 117 F.3d 1027, 1032 (7th Cir. 1997) (rejecting

a litigant’s attempt to introduce a supplemental expert

report and explaining that if “judges were required to

consider evidence newly presented but not newly discov-

ered after judgment, there would be two rounds of evi-

dence in a great many cases”). Nothing in this opinion

should be interpreted as departing—in cases outside of

the equitable tolling context—from these long-established

and salutary precepts.

Even in cases involving reconsideration of a decision

denying a veteran’s request for equitable tolling, moreo-

ver, the introduction of supplementary evidence should be

the exception rather than the rule. A claimant should

normally be expected to obtain and submit all pertinent

evidence at the time he files his equitable tolling request,

and only in limited circumstances will the introduction of

clarifying evidence be necessary for “a full and fair con-

sideration of [an] equitable tolling request, including

assessment of all relevant facts.” McCreary, 20 Vet. App.

at 91. But these are unusual circumstances. When Dixon

filed his original request for equitable tolling, he submit-

ted a very brief letter from Kielpikowski which stated

that Dixon suffered from “severe” psychiatric problems

that rendered him “unable” to file his notice of appeal in a

timely manner. J.A. 137. This letter, however, apparent-

ly did not contain sufficient detail to enable the Veterans

Court to conclude that Dixon’s untimely filing was “the

direct result of his illnesses.” Equitable Tolling Decision,

18 DIXON v. SHINSEKI

2012 WL 3291861, at *1 (citations and internal quotation

marks omitted). Kielpikowski’s declaration (which we

have held, in section III, should have been considered by

the Veterans Court as a clarification of the earlier opin-

ion) provides a more comprehensive picture of Dixon’s

psychiatric problems, explaining that his mental illnesses,

which included post-traumatic stress disorder, severe

anxiety, and chronic depression, “rendered him incapable

of rational thought or deliberate decision-making.” J.A.

178. The declaration specifically concludes, moreover,

that these disabilities “directly resulted in [Dixon’s]

inability to timely file a notice of appeal with [the Veter-

ans] Court.” J.A. 179. There is no contrary evidence.

Under these circumstances, Dixon should have been

permitted to secure and submit his claims file that was

not submitted at the time he submitted his motion to

recall the mandate.

V. The Government’s Contentions

On appeal, the government contends that “[e]ven if

the Veterans Court erred in interpreting Rule 35 as

limiting motions for reconsideration . . . to the record at

the time of the challenged decision . . . that error was not

harmful.” We find this argument wholly unpersuasive.

As noted previously, a veteran can establish entitlement

to equitable tolling by showing that his untimely filing

was the “direct result” of physical or psychiatric illness.

Barrett I, 363 F.3d at 1321. Because Kielpikowski’s

declaration clarifies that Dixon’s psychiatric disabilities

“directly resulted in his inability to timely file a notice of

appeal with [the Veterans] Court,” J.A. 179, it is not only

highly relevant, but indeed could prove outcome determi-

native, on the issue of whether equitable tolling is war-

ranted. 6 See Wagner v. United States, 365 F.3d 1358,

6 As we have previously recognized, a VA psychia-

trist who has treated a veteran over an extended period of

DIXON v. SHINSEKI 19

1365 (Fed. Cir. 2004) (“Where the effect of an error on the

outcome of a proceeding is unquantifiable . . . we will not

speculate as to what the outcome might have been had

the error not occurred.”).

The government further contends that the Veterans

Court properly rejected Dixon’s equitable tolling claim

because there was an “inherent inconsistency” in

Kielpikowski’s original letter which stated that Dixon’s

severe physical and psychiatric disabilities rendered him

“unable to attend [to] or focus on” the filing of his appeal,

J.A. 137. In the government’s view, the fact that Dixon

was ultimately able to file a notice of appeal with the

Veterans Court, albeit an untimely one, demonstrates

that he was capable of filing a timely notice of appeal

during the “period of [his] alleged incapacity.” We find

this reasoning unconvincing. The fact that a veteran,

despite severe physical or psychiatric disabilities, manag-

es to file an untimely notice of appeal does not mean that

those disabilities did not impede his ability to submit his

appeal at an earlier date. The equitable tolling doctrine

would be rendered a virtual nullity if the submission of an

time is often “supremely qualified to make determinations

of mental incapacity.” Barrett II, 466 F.3d at 1044; see

also Barrett I, 363 F.3d at 1320 (emphasizing that the VA

“employs a host of medical professionals” and is “uniquely

qualified to facilitate the diagnosis of troubled claim-

ants”). Here, because Kielpikowski had treated Dixon

since 2001, he was presumably highly qualified to provide

an informed opinion on the extent to which Dixon’s psy-

chiatric and physical disabilities impeded his ability to

file a notice of appeal within the 120-day filing period.

See Golden v. Shinseki, No. 04-1385, 2012 WL 1765439, at

*2 (Vet. App. May 18, 2012) (granting a veteran’s equita-

ble tolling request and noting that “a VA regional office

found her depressive condition to be 100% disabling”).

20 DIXON v. SHINSEKI

untimely notice of appeal were deemed sufficient to

establish that a veteran had the capacity to file within the

120-day statutory period.

CONCLUSION

Accordingly, the judgment of the United States Court

of Appeals for Veterans Claims is reversed and the case is

remanded for further proceedings consistent with this

opinion.

COSTS

Dixon shall have his costs.

REVERSED AND REMANDED