Dixon v. Shinseki, 741 F.3d 1367 (Feb. 4, 2014)
NEW EVIDENCE ON MOTION FOR RECONSIDERATION, EQUITABLE TOLLING
Under certain circumstances, the introduction of new, clarifying evidence on motion for reconsideration may be necessary to allow the Court to fully evaluate the facts of a veteran’s equitable tolling claim.
Pro se veteran filed his Notice of Appeal to the CAVC 60 days beyond the 120-day filing deadline, and the Court thus dismissed the appeal. Following the Supreme Court’s decision in Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1203-06 (2011), which held that the 120-day filing deadline is not a jurisdictional requirement, the CAVC issued orders to veterans whose appeals had been dismissed to file motions to recall mandate. Still acting pro se, Mr. Dixon filed a motion seeking equitable tolling, explaining the disabilities that prevented him from timely filing his notice of appeal. He subsequently submitted a supplemental motion along with a letter from his doctor to support his claim. The CAVC denied the motion and dismissed the appeal because it determined that Mr. Dixon failed to establish that the untimely filing was “the direct result of his illnesses.” 741 F.3d at 1371. Mr. Dixon secured pro bono representation, and his attorneys moved for an extension of time to file a motion for reconsideration, which the CAVC granted.
VA officials obstructed every attempt made by the attorneys to obtain a copy of the claims file, review the file, have copies of pages from the file sent before their deadline, and have Mr. Dixon’s doctor sign a statement regarding his condition. Because of this, the attorneys subsequently filed a second motion for an extension of time, which the CAVC denied. The Court then entered judgment against Mr. Dixon, stating that he had “no right to ‘augment the record’ on motion for reconsideration because such a motion ‘must be based on the record at the time of the decision upon which reconsideration or panel review is sought.’” Id. at 1373.
The Federal Circuit reversed, stating that “[w]here 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 evidence.” Id. at 1374. The Court held that the CAVC “erred to the extent that it concluded that Rule 35(e) imposes an absolute prohibition on the submission of clarifying evidence in support of an equitable tolling decision,” and that “under certain circumstances, 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.’” Id. at 1375.