Marva J. SNEED, Claimant-Appellant,
Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.
William H. Burgess, Kirkland & Ellis LLP, of Washington, DC, argued for claimant-appellant. With him on the brief was Benjamin A. Herbert, of Los Angeles, CA.
Jeffrey D. Klingman, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Scott D. Austin, Assistant Director. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel and Meghan D. Alphonso, Attorney,
United States Department of Veterans Affairs, of Washington, DC.
Before NEWMAN, PROST, and WALLACH, Circuit Judges.
WALLACH, Circuit Judge.
Marva Sneed pursued her claim for survivor benefits in the Department of Veterans Affairs (" VA" ) for eight years. After receiving an adverse decision from the Board of Veterans' Appeals (" Board" ), Ms. Sneed promptly contacted an attorney to represent her in an appeal to the United States Court of Appeals for Veterans Claims (" Veterans Court" ). Only one day before the deadline to file a notice of appeal, however, Ms. Sneed received a letter saying the attorney would not represent her in the appeal. After unsuccessfully searching for another attorney, Ms. Sneed filed a notice of appeal pro se, twenty-nine days after the filing deadline.
The Veterans Court dismissed Ms. Sneed's appeal for failure to timely file her notice of appeal. Ms. Sneed appeals the dismissal, arguing the Veterans Court legally erred in holding that equitable tolling does not apply in cases of attorney abandonment. Because attorney abandonment can justify equitably tolling the deadline for filing an appeal to the Veterans Court, this court vacates and remands for the Veterans Court to reconsider Ms. Sneed's argument under the correct standard.
Ms. Sneed is the surviving spouse of veteran Reginald A. Sneed, who served on active duty from June 1964 to June 1968. Mr. Sneed suffered from numerous service-connected disabilities, including post-traumatic stress syndrome, post-concussion syndrome, cervical spondylosis (degeneration of the vertebrae), spinal stenosis (narrowing of the spinal column), tinnitus (ringing in the ears), a perforated tympanic membrane, and scarring of the upper extremities. In January 2001, Mr. Sneed fell and suffered a spinal cord contusion, rendering him a quadriplegic and resulting in confinement to a chin-operated wheelchair. In October 2003, Mr. Sneed was living in a nursing home for paralyzed veterans. There was a fire in the home, and all of the residents, including Mr. Sneed, died as a result of smoke inhalation.
Following Mr. Sneed's death, Ms. Sneed filed a claim with the VA for dependency and indemnity compensation. See 38 U.S.C. § 1310 (2000) (" Deaths entitling survivors to dependency and indemnity compensation" ). She alleged her husband's death was service connected, because his service-connected disabilities were a principal or contributory cause of his death. See 38 C.F.R. § 3.312 (2000). In particular, she argued his service-connected spinal disabilities substantially contributed to his paralysis, which made him unable to escape from the burning building. Ms. Sneed also contended that her husband's other disabilities, including post-traumatic stress syndrome and tinnitus, contributed to his death by preventing him from hearing and properly responding to indications of fire. The VA denied Ms. Sneed's claim, and the Board ultimately affirmed the denial on April 5, 2011.
Ms. Sneed's notice of appeal to the Veterans Court was due by August 3, 2011. See 38 U.S.C. § 7266(a) (" [A] person adversely affected by [a Board] decision shall file a notice of appeal with the [Veterans Court] within 120 days after the date on which notice of the decision is mailed...." ). Ms. Sneed promptly sought an attorney to represent her in the appeal. She contacted Katrina J. Eagle, Esq., and transmitted her case materials to Ms. Eagle's office. Ms. Sneed communicated with Ms. Eagle's office " for a year or longer" and stated that " Ms. Eagle knew that there was a deadline" to file the notice of appeal. J.A. 41. However, on August 2, 2011— the day before Ms. Sneed's deadline to appeal— Ms. Sneed received a letter from Ms. Eagle stating that she would not represent Ms. Sneed in her appeal. Ms. Eagle explained that she did " not believe the VA erred in denying [Ms. Sneed's] claim," and instructed Ms. Sneed to seek another attorney's opinion or to file the notice of appeal herself. J.A. 45. Ms. Eagle also incorrectly advised Ms. Sneed that the deadline to appeal was August 5, 2011, two days later than the actual August 3 deadline.
Ms. Sneed then " tried to find another attorney" in the " short time" available. J.A. 41. When that failed, she filed the notice of appeal on September 1, 2011— twenty-nine days after the deadline. Six days later, on September 7, 2011, Ms. Sneed filed a letter with the Veterans Court explaining her late filing:
I thought I had an attorney, this attorney was sent all of my papers about this appeal in a timely manner, in fact I contact[ed] the attorney office as soon as I got my decision letter. I even ke[pt] in contact with the attorney office.
J.A. 22. She further stated that she " ha[d] worked on this case for over eight years, and all papers were filed on time," and that she did not think the late filing to the Veterans Court was her fault. J.A. 41.
Not long after her appeal was docketed, Ms. Sneed was able to retain an attorney, who entered his appearance on September 14, 2011. On October 11, 2011, the Veterans Court stayed several appeals, including Ms. Sneed's, pending the court's decision in a separate case regarding whether equitable tolling applied to the 120-day filing deadline in 38 U.S.C. § 7266(a). The deadline was found subject to equitable tolling in Bove v. Shinseki, 25 Vet.App. 136 (2011), and on June 14, 2012, the Veterans Court directed Ms. Sneed to file a response discussing whether her case warranted equitable tolling of the 120-day filing period.
Ms. Sneed argued, through counsel, that her " reliance on attorney Katrina J. Eagle to file her appeal with the Court was perfectly reasonable," and that Ms. Eagle's conduct amounted to " ‘ extraordinary circumstances beyond’ [Ms. Sneed's] control." Appellant's Resp. to Ct. ...