Every once in a while, we get another piece of justice that preserves our sanity and rebuts the idea that we’re pissing into the wind. Veterans law, while touted to be the most lenient, and notably tilted in favor of the Veteran, always seems to have one of those “except when the Vet forgets (fails, neglects etc.) to file a motion in a timely fashion.” clauses. Perhaps we should call it “the Veteran’s clause” as in “Wow. You almost won. You see it? You didn’t manifest the disease to a compensable degree within one year of returning from Vietnam, dude. So that means AO didn’t cause it. Sorry. Thank you for your service, hear?”
Try as we might, we always seem to get fenced out. By all appearances, the rules and regulations are to be construed as to be lenient until a sudden new epiphany arises from the fertile brains of the OGC. Try as the CAVC and the Fed. Circus might, the VA tortures the wrong meaning of “is” out of it and then pretends to simply be following what it perceived as right and proper. We all know people like this. They take a perverted interpretation and try to make it look mainstream and perfectly plausible to interpretation. They continue the charade until it refuses to fly. This time, the CAVC joined them against us.
In the instant case here, Mr. Donald. A. Dixon has run afoul of time constraints while being under the influence of pro se. Ordinarily, the kid gloves come out and the Donster gets every consideration accorded those who foolishly represent themselves. Don has bent brain issues. He served in the First Gulf War-the one where we politely escorted Saddam’s lost troops back to the border of Iraq from Kuwait. We were polite enough to go along with President Hussein’s excuse about how GPS devices make lots of errors in that neck of the woods. Don had breathed and eaten a lot of weird chemicals. In addition, they’d hosed the guys with medications to protect against VX nerve gas and a host of others. We’re coming to find out that wasn’t any smarter than spraying AO everywhere in Vietnam. The long and the short of it was Don got horribly sick ten years after he got out with things that you just don’t get until you’re 70. Sarcoidosis of the lungs and transverse myelitis? Not good.
Don filed and lost. No story there. That’s the scenario 85% of the time and especially the first time out. He did appeal it, but with no nexus letter or IMO to link it to service, he went down in flames again at the BVA. Being new at this and suffering the effects of disease and mental defect, he filed his NOA with the Court a few days late. Well, okay. Two months late. I, too, have been so sick I missed filing my Form 9 on time. It rarely happens but it has been known to happen . VA shows no mercy. Unfortunately, our protectors at the Court take a pretty dim view of this, too. Mr. Henderson went all the way to the Supreme Court for us and came away with a big win on this. Then the arguments began all over again about what sin was permitted to pass muster when you screwed up reading the calendar. That’s when the big takeaway began-or should we call it the “takeback”? Being’s how Indian Giver has become politically incorrect, do we now call it VA’s Native American bargaining technique?
As an aside, let me explain simple justice at the Court level. Court- meaning CAVC. After you lose at both the RO level and the Board of Veteran Appeals, no more evidence can be introduced technically. The VA Secretary loves to think this doesn’t apply to him and gets called on it fairly regularly. If both the Veteran and the Secretary agree to allow a new piece of evidence in mutually, the Court still has the last say but as often as not puts the Kibosh on it. In some instances it is allowed so that a definition or baseline assumption can be established. You can just about count on one hand how many times this has happened. It’s rarer than Extraschedular ratings.
However, when arguing for equitable tolling of your screwup, it follows that you’re going to need a note from Mommy explaining your tardiness or the whole thing falls apart and nobody gets their claim equitably tolled. Mr. Dixon, following suit, explained why he was late and even submitted a cogent note from his treating VA psychiatrist explaining what happened. The Court, in what could only be interpreted as “weird behavior”, denied his tolling motion based on the fact that the shrink had not made the sale that his (Donbo’s) bent brain etc. was “specifically” the reason for the tardy filing. This was a finding of fact that was not called for with a pro se claimant. The Donmeister was no Perry Mason but he was on the right track. In the spirit of equity, they granted the Donster more time to scare up some good reasons why he should be given a bye.
A few days later, some of the big law dogs jumped in and waved the Pro Bono wand over Mr. Dixon and everyone thought that justice would right itself and prevail. They got an extension on August 28th, 2012. These new attorneys were the high-price spread and set to work obtaining clarification of the psychiatrist’s nexus letter about what condition Don’s condition was in. They notified RO Denver on September 5th they’d be needing the C-file and all of a sudden VA sloooowwwweed down to 16 RPM. Sorry, no c-file would be forthcoming. VA flat out refused to do so. Rather than fight tooth and nail and knowing time was of the essence, the rainmakers quickly deployed a paralegal to RO Denver to do a detailed review in-house. VA’s earliest appointment? Why October 1st, senor. The VA minder stood over the poor gal and distracted her as much as possible for the whole viewing. When finished (and frustrated), she selected 30 or 40 documents and asked to have them copied before her departure. No dice. The hearing was four days hence and VA was in full heel-drag mode. The non had now become disconnected from adversarial and the gloves came off. The RO chowderheads refused to copy anything. When asked if they could just make sure to get the copies over to 625 Indiana Ave. NW for the impending extension adjudication four days hence, the RO folks busted out in gales of laughter with “You want it when?” No promises were made nor were any copies copied that day. Or the next. Or the next.
At the same time, Mr. Dixon’s law dogs were busy drawing up a draft with Don’s VA shrink who was simpatico. He polished off a lovely letter and told Don’s attorneys he had to pop out and get VA’s legal beagles to approve his efforts before submittal. Bingo. VA immediately put an end to that and forbid the shrink to do any such thing. Out the window went the IMO. You can hear Tim Allen saying “Arruuu?”
On October 4th, when Mr. Dixon and his shield bearers arrived back to plead at the Court, he got the bitchslap. RO Denver had stiffed him. The OGC had cut him off from his shrink and he was holding an empty bag. The Court did everything but throw a banana peel out in front of him. Using all the wrong legal standards they could erect, they denied his motion for tolling and sent him packing. I’ve been there and it’s an ugly sensation. Your urge is to raise your voice and say “Hey. You can’t do that! I was ill.” But what do you do when the judge and the jury have been bought off? Why, go to the Federal Circus and begin anew.
This is not a nice place. Federal Circuit judges don’t smile a lot. They’re a sour bunch and try to pick apart silly stories-especially ones about the fabled Duty to Assist. This occurred before Judges Dyk, Meyer and Chen. They probably drink unsweetened lemonade. The CAVC judge who authored this abortion was none other than the head honcho- Brucey Kasold. He, of all people, should have his little people who read law do this correctly. I could see a novitiate like Coral Wong Pietsch screw it up with less than a year under her robes-but Bruce? No way. There was something else afoot. This reeked of rotten jurisprudence. Kasold had merely done the bobble-head doll imitation and agreed with virtually everything the VA Secretary said and asked for. Somewhere, thirty pieces of silver had traded hands.
As with most cases, the Federal Circuit likes to cut down several fine old growth trees, discuss their authority, confirm they have the right to hear this and pass judgement. They then moved on to the legality of Kasold’s brand of justice. According to them, Bruce needs to go back to law school. When you start throwing roadblocks between Johnny Veteran and access to his records and his doctors, you are waaaay off the reservation. When it is as well documented as it was here, you just know the good judges were going to be more lenient on Dixon. And boy howdy were they ever. This is a reversal. It is not a polite discussion about how Brucey might have come to the wrong conclusion because he got the vapors. It was a DUI/resisting arrest ticket compared to a parking ticket.
Citing to Henderson and Barrett so many times it became supra twenty pages earlier, they demolished both Kasold and the Secretary at every turn. The Secretary went so far as to claim that just because Barrett II held that VA was required to help a Vet on a request for equitable tolling, it said nothing about helping on a Motion for Reconsideration of a request for equitable tolling. Imagine this. It’s a pretty big stretch to squeeze that meaning out of Barrett II. It’s akin to Les Schwab selling and mounting your four tires and then later on saying the warranty doesn’t extend to the front tires because they aren’t mounted on the rear.
As for refusing to let Don bring the shrink back in to clear the air, that was so egregious it set the Judges’ hair on fire.
We conclude that the Veterans Court erred to the extent 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. 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).
As I mentioned earlier, it is a given that in order to argue for an equitable tolling issue, it will require the introduction of something (like clear and convincing evidence) to warrant doing so. They don’t just flip a coin like Super Bowl and say “Heads. The VA Secretary has chosen heads so he will make his choice. Mr. Shinseki? What’s your poison? Outright Denial or a Joint Motion for Remand?”
We conclude that the Veterans Court erred to the extent 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.
As a final slap in the face, the Fed. Circuit judges gave Mr. Dixon his costs for his attorneys. That’s no small potatoes and expertly conveys the ire of the Court in a not so subtle manner. Kasold should be disbarred or made to wear sackcloth and ashes for a year. I vote for a Scarlet A for Asinine, Abysmal or Anti-Veteran. There’s simply no legal excuse for the CAVC to come down on the wrong side of this. Granted, they’ve been frosted since Henderson took away their right to arbitrarily deny equitable tolling under any circumstances but to cling to each and every subsequent ruling (Barrett I and Barrett II) as being porous as a sieve and open to conjecture is piss poor law. Barrett sealed the portal against this tomfoolery but Kasold still tried to pound in pitons to get a purchase. Thank God someone caught him. This would have disastrous consequences if left as is.
February 4th, 2014 was merely one more case of Vet –1, VA–0. It should never have happened but is indicative of the travails we all endure in this process. So much for nonadversarial conduct and a Veteran friendly environment in which to present our claims. No one can say that Denver (or Kasold) is alone in this kind of behavior. It’s systemic and they got caught doing it.