Equitable tolling is another one of those blessings a grateful nation has bestowed on Vets. We get more slack that any other class of American litigant. This does not absolve us of the right to appeal our claims in a timely manner, but it does expand the excuse list a bunch. Stupidity is still not a valid excuse so let’s look at how the Court views this crack in the foundation. Bowles v. Russell (551 U.S. 205- 2007)  was the predicate for where Henderson v. Shinseki led. Henderson had three bites at the apple and finally got his traction at the Supreme Court. We are a unique class of claimants who have given more than any other citizen of America. Since our litigation area is unique, so should the presumption of a non-adversarial, veteran friendly environment where the Vet and the VA play in the same sand box together and no one hogs the bucket and shovel. Throwing sand is, of course, prohibited. Everyone is allowed to disremember some of the details. The VA is not allowed to reconstruct the details to make you look like a sub human seeking a welfare handout. There are rules for you that fill great books. Equitable tolling is one and it is very important.

Congress, when they reined in the BVA in 1988, wrote the new covenant with us.  This was the Veterans Judicial Reform Act. It finally gave us a voice in a higher court which had been denied for centuries. Once the BVA spoke, it was law. With no neutral power to intervene, many Vets over the past century were denied unjustifiably. Many never returned when they saw the judicial lay of the land. Some tried with attorneys, but VA ingeniously held them to almost a pro bono basis with a $200.00 limit.

With the VJRA, we were given our path to the Supreme Court and funds from the 1948 Equal Access to Justice Act. Veteran attorney practice immediately picked up which was great for us. The New Deal was 20% of the win or the billable hours expended which currently is $125.00/hour. Unfortunately, VA was a little angry so they’d write the whole check out to the Vet. If he got cold feet and didn’t pay the attorney, tough luck. The poor attorney was out the bucks unless he could find a way to sue Bozo and attach some property or assets. That always looks good on the 6 o’clock news, huh? Vet attorney sues destitute Vet for representation.

This threw cold water on the law dogs and they have to be more selective nowadays. This also means they sniff around you and check you out to make sure you’re not some reprobate or have dirty diapers. I know this makes you feel uncomfortable, but look what they are going to do for you. They aren’t part of the 1% club, gentlemen. You have them confused with the ambulance chasers.

With the inception of the VJRA, the CAVC (formerly the COVA) instituted the 120 day rule that Congress prescribed. This was twice as long as most civil trials permit. So far so good. The statute also did not prescribe a specific mode d’emploi for the Court to follow. Therefore they took the sterile approach that 120 sunrises and 120 sunsets was what it meant. Eventually the equitable tolling showed up. Joe Vet was in surgery at the VAMC having his leg amputated and couldn’t type it up in time. Granted. Hurricane Katrina blew shit everywhere and the Vet’s records were soaked when the roof blew off. Denied. One by one the dog ate my homework cases came through and were given an up or down until Bowles.

Boom. Back to 120 days and and nights. This became pretty much a dead effort and the excuses started surfacing due to PTSD. Bowles upheld a century of precedence but did not take into effect the unique nature of our Veterans system. Where other jurisdictional laws in civilian  statutes were very clear, Congress wisely did not include the same language in 38 USC § 7266(a). Mr. Henderson finally attained that right for us that has eluded us for so long. Bove v. Shinseki was the implementation of Henderson 3.

Since this decision is now binding, the equitable tolling precept may now be employed at the BVA and the RO. You may end up having to appeal to get it, but at least the path to it is established once again. Once we have a well-worn path to the CAVC on this, the BVA will eventually acquiesce and grant it more frequently. Don’t assume this hole in the dike will become a gully washer anytime soon. I suggest everyone who is ill gather good documentation as they go. It happened to me in 2010.

I petitioned the Court for a Writ of Mandamus. If I’d researched it a little more, I would have discovered there’s only been about two granted in 20 years. A writ asks the Court to make VASEC either give  you your day in court or let the CAVC take care of it. I asked the Judge (DAVIS) to grant me my 1994 date for my claim due to the VA never finishing it. Then I went into the hospital for operations #3 (failed) and #4 semi-success). I was so ill after I got out I couldn’t even read the reasoning for the denial of the Writ. I had 30 days to respond and rightfully figured that being in the hospital and all was worth some equitable tolling. Wrong. I was 11 days late and it might as well have been 11 years. So I went home and filed the F-9 and waited. And here we are almost in March two years later. Time flies everywhere but the VA. Of course, if you have a suspense date, that evaporates in seconds. With Bove, we simply have more leeway instead of an ironclad rule.

Below is the order issued by the Court in December 2011 that describes four cases awaiting the outcome of Henderson 3 and why each one is going to be give a bye or the thumbs down.

Anthony Bove gets a bye. He mailed his NOA to the RO. Dumb, but the RO should have sent it post haste to the Court. They cheated and chose to hold on to it long enough to exceed the 120 day rule.  That’s a Bozo No-No. From now on, if we screw up and send it to the RO or the BVA, that’s constructive possession in the eyes of the Court.

Aquel Rasheed is a different story. He claimed brain Fukitol for his excuse. He felt the letter describing the 120 sunsets had a “sunrise” clause in it. If VA had simply written the letter in simpler terms, Rasheed would have had an easier time understanding it. Rasheed arrived with no evidence of this mental impairment so he will not be going to the CountyFair this year.

Alfonzo Lopez is one very lucky son of a gun. His claim well ran dry at midnight on Friday, June 25th, 2010. His claim was received and time stamped in the CAVC  mailroom as Monday, June 28th, 2010. Alfie was SOL but for one quirk of fate- some industrious paralegal who never will gain fame had the wherewithal to fax the thing in before midnight Friday.  Alfonzo thus gets the magic paper and another bite at the judicial apple,

Wesley L. King suffered the same fate as Mr. Bove. Those VA grinches at the RO tried to hide the NOA even though he filed it with ample time to spare. The Court was very polite and didn’t comment on why it seems to take forever and a couple of more days (past the suspense  date) to get those NOAs sorted out from the rest in the shredder bins. Shoot, the fact that Bove’s and King’s even arrived at all is a subject worthy of discussion in its own right.

So there you have it. You can be late in certain circumstances and still get a docket, or you can piss it away and then come up with some half-baked excuse as to why you should get equitable tolling. There should be leeway for us as I said earlier. We are a unique breed of human. Our miniscule 8 percent of the population rarely asks for remuneration for our service. Less than 30% of the 8%  apply and win. Millions more don’t or give up prematurely. Cutting us some slack is the Veteran friendly way to accomplish it. At least that what the Supreme Court thinks Congress meant.

http://www.uscourts.cavc.gov/documents/Bove_Rasheed_Lopez_King_published_order_12-20-2011.pdf      Bove et al.

http://www.uscourts.cavc.gov/documents/2012-04_Timeliness_of_Appeals_and_Bove_V_Shinseki.pdf   Order

The sword is for the Johnny-come-latelys.