Gene A. Mead v. David J. Shulkin, 15-0153E

The Board denied Gene A. Mead service-connection benefits for back, neck, and right shoulder; Mead appealed and the Court granted a joint motion for partial remand (JMPR) on March 16, 2016, triggering the EAJA 30-day filing clock.
Counsel for Mead filed an EAJA application 52 days late (received June 6, 2016); she says she believed the deadline was 60 days and that she was undergoing medical treatment (pre-op testing, outpatient surgery on March 18, 2016) and psychiatric care for depression during the 30-day period.
Counsel requested equitable tolling of the EAJA deadline, but declined the Court's order to provide additional medical evidence or treating-physician opinions about her capacity during the filing period, citing privacy concerns.
The Secretary opposed tolling; the Court found counsel’s proffered information insufficient to meet the high standard for equitable tolling and treated the late EAJA application as untimely and dismissed it.
The majority denied tolling and dismissed the EAJA filing; Judge Greenberg dissented, arguing the medical circumstances were extraordinary and counsel exercised sufficient diligence, and also raising procedural objections to single-judge review practices.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether equitable tolling excuses a 52-day-late EAJA filing	Counsel argued medical treatment (suspected cancer, surgery, depression) rendered her unable to timely file and warrants tolling	Secretary argued counsel had not shown an extraordinary circumstance or inability to manage affairs and opposed late filing	Denied — counsel failed to show extraordinary circumstance or provide supporting medical opinions; application untimely and dismissed
Whether counsel’s failure to produce medical evidence was excused by privacy	Counsel argued producing records would be embarrassing and violate privacy; relied on her representations instead	Court said privacy concerns could be addressed by sealing/locking the record and requested specific medical opinions to evaluate incapacity	Denied — refusal to provide limited medical support prevented meeting burden for tolling
Whether a single judge’s grant of equitable tolling may be reviewed by panel sua sponte	(Dissent) Single-judge tolling was appropriate and counsel’s submissions sufficed; panel review undermines single-judge authority	(Majority) Panel review followed internal procedures to assess sufficiency of tolling evidence	(Majority) Panel review upheld in result; (Dissent) disagreed and argued statutory and procedural concerns — dissent would have granted tolling

Scarborough v. Principi, 541 U.S. 401 (establishing EAJA filing rules are not jurisdictional and are subject to equitable tolling)
Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998) (equitable tolling does not extend to garden-variety attorney neglect)
Bly v. McDonald, 28 Vet.App. 256 (equitable-tolling standard and diligence requirement under EAJA)
Checo v. Shinseki, 748 F.3d 1373 (Fed. Cir. 2014) (discussing equitable-tolling framework)
Barrett v. Principi, 363 F.3d 1316 (Fed. Cir. 2004) (mental incapacity may justify tolling if it prevents rational thought/handling affairs)
Arbas v. Nicholson, 403 F.3d 1379 (Fed. Cir. 2005) (physical infirmity may justify tolling if it prevents functioning/decisionmaking)
Comm'r, I.N.S. v. Jean, 496 U.S. 154 (EAJA should be applied by viewing a case as an inclusive whole)
Holland v. Florida, 560 U.S. 631 (equitable tolling principles applied case-by-case)