Dixon v. Shinseki
2014 U.S. App. LEXIS 2074
| Fed. Cir. | 2014Background
- Dixon, a Gulf War veteran, filed a VA claim for sarcoidosis; the Board denied service connection and Dixon filed a notice of appeal to the Veterans Court 60 days late.
- After Henderson II, Dixon (pro se) moved to recall the mandate seeking equitable tolling, citing severe physical and psychiatric conditions (PTSD, panic attacks, later-diagnosed lymphoma) and submitted a brief VA psychiatrist letter.
- The Veterans Court denied equitable tolling, concluding Dixon failed to show his illnesses directly caused the late filing. Attorneys from Arnold & Porter then took the case pro bono and sought reconsideration.
- Counsel faced significant VA obstruction in preparing the reconsideration motion: the VA refused to send the claims file, only allowed limited on-site review, delayed copying documents past the deadline, and initially told counsel a VA psychiatrist could not sign a supporting declaration under Touhy rules.
- The Veterans Court denied counsel’s motion for an extension of time and refused to accept a clarifying declaration from Dixon’s treating VA psychiatrist, relying on a strict reading of Vet. App. R. 35(e), and entered judgment against Dixon.
- The Federal Circuit reversed and remanded, holding the Veterans Court abused its discretion by refusing an extension given VA obstruction and erred in treating Rule 35(e) as an absolute bar to submitting clarifying evidence on equitable tolling reconsideration.
Issues
| Issue | Dixon's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Veterans Court abused discretion by denying extension of time after VA obstructed counsel's access to claims file | VA obstructed timely preparation; fairness required an extension to obtain records | Denial was within the Court’s discretion under its rules | Abused discretion; extension should have been granted because VA unjustifiably delayed/obstructed production |
| Whether Vet. App. R. 35(e) absolutely bars submission of clarifying evidence (Kielpikowski declaration) on reconsideration of equitable tolling denial | Rule does not impose an absolute bar; clarifying evidence may be necessary for full and fair consideration, especially for unrepresented veterans with disabilities | Reconsideration must be based on the record at time of decision; no augmentation | Error to treat Rule 35(e) as absolute; clarifying evidence may be allowed in limited circumstances such as equitable tolling reviews |
| Whether the Veterans Court’s refusal to consider the declaration was harmless error | Declaration could be outcome-determinative by showing the untimeliness was the direct result of illness | Any error was harmless because Dixon filed an untimely appeal anyway; original letter was inconsistent | Not harmless; declaration directly addressed the required causal element and could change the outcome |
| Proper handling of equitable tolling inquiries on remand | Equitable tolling requires flexible, claimant-favoring inquiry; court must independently weigh facts and may seek evidence outside Board record | Strict rules prevent reopening or augmenting the record on reconsideration | Veterans Court must allow limited supplementation/clarification where necessary to fairly assess equitable tolling; follow precedent protecting claimants |
Key Cases Cited
- Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197 (2011) (120-day filing period is a claim-processing rule, not jurisdictional; solicitous pro-claimant posture required)
- Barrett v. Nicholson, 466 F.3d 1038 (Fed. Cir. 2006) (VA has obligation to produce records relevant to equitable tolling; fairness may require agency to come forward)
- Barrett v. Principi, 363 F.3d 1316 (Fed. Cir. 2004) (discussing veterans with PTSD and tolling principles)
- Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009) (VA bears burden to obtain and evaluate relevant service medical records)
- McCreary v. Nicholson, 20 Vet. App. 86 (Vet. App. 2006) (clarifying evidence may be necessary for full and fair consideration of equitable tolling)
- Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009) (VA system not to be a trap for the unwary; agency delay should not be rewarded)