Ausmer v. Shinseki

Ausmer v. Shinseki, 26 Vet.App. 392 (Dec. 19, 2013) (order)

SERVICEMEMBERS CIVIL RELIEF ACT, TIME TO FILE NOTICE OF APPEAL

The Servicemembers Civil Relief Act (SCRA) applies to proceedings at the CAVC, and automatically tolls the 120-day deadline to appeal an adverse Board decision to the Court. Under the specific circumstances of this case – which involved physical disabilities as well as PTSD and difficulty readjusting to civilian life – the Court determined that the appellant was entitled to an additional 90-day stay after his active service ended before the appeal period commenced.

Sneed v. Shinseki

Sneed v. Shinseki, 737 F.3d 719 (Dec. 9, 2013)

EQUITABLE TOLLING

The 120–day period to appeal an adverse Board decision to the CAVC is subject to equitable tolling that “is not ‘limited to a small and closed set of factual patterns,’” but rather is decided on a “case-by-case basis.” 737 F.3d at 726. In this case, the claimant contacted an attorney to represent her in her appeal. She received the attorney’s letter declining to represent her one day before the Notice of Appeal (NOA) was due, and missed the deadline to file the NOA herself. Six days later, she filed the NOA, explaining the circumstances. The CAVC held that these circumstances did not “fit within the ‘parameters’ of equitable tolling” and dismissed the appeal. Ms. Sneed appealed to the Federal Circuit, which held that the CAVC “focused too narrowly” on a limited set of factual circumstances to determine that equitable tolling did not apply – and “failed to consider whether attorney misconduct … may constitute a basis for equitable tolling.” Id.