Harrington v. Shulkin
706 F. App'x 1002
| Fed. Cir. | 2017Background
- In Sept. 2009 an RO granted service connection for bronchial asthma with obstructive sleep apnea (30%), and GERD (10%); RO later increased asthma rating to 50% after appeal.
- The Board denied increased disability claims on Oct. 11, 2016.
- A Notice of Appeal to the Veterans Court was filed on Feb. 9, 2017—one day after the 120‑day statutory appeal period under 38 U.S.C. § 7266(a) expired.
- Veterans Court dismissed the appeal as untimely after finding appellant failed to show equitable tolling, noting he offered only that he was litigating a contemporaneous Social Security appeal.
- Appellant timely appealed to this court, arguing the three elements for equitable tolling were present; he did not challenge the legal standard used by the Veterans Court or raise a constitutional issue.
- This court concluded it lacked jurisdiction to review the Veterans Court’s application of equitable tolling to the facts and dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the late Notice of Appeal is subject to equitable tolling | Harrington: concurrent Social Security appeal prevented timely filing; three elements of equitable tolling satisfied | VA (via Veterans Court): Harrington offered no evidence of due diligence or causation during the extraordinary‑circumstance period | Court: Dismissal affirmed; appellant failed to present a reviewable legal issue — factual application of equitable tolling not reviewable here |
| Whether this court may review the Veterans Court's factual application of equitable tolling | Harrington: implied challenge to outcome based on facts | Government: § 7292(d)(2) bars review of law applied to facts | Court: Lacks jurisdiction to review application of law to facts absent a pure legal question or constitutional issue |
| Whether the legal standard for equitable tolling applied was incorrect | Harrington: did not argue an error in the legal standard | Veterans Court: applied settled three‑element standard (extraordinary circumstance, due diligence, causation) | Court: No contention the legal standard was wrong; thus no jurisdiction to alter outcome |
| Whether a differing legal standard would control outcome and permit review | Harrington: did not assert a change to the legal standard | Veterans Court/Government: material facts disputed; adopting a particular standard would not dictate outcome | Court: Exception for review of legal standard does not apply because appellant did not raise it |
Key Cases Cited
- Checo v. Shinseki, 748 F.3d 1373 (Fed. Cir. 2014) (establishing three‑element equitable tolling test and stop‑clock approach)
- Sneed v. Shinseki, 737 F.3d 719 (Fed. Cir. 2013) (discussing equitable tolling and this court’s review scope)
- Henderson v. Shinseki, 562 U.S. 428 (U.S. 2011) (timeliness rule is nonjurisdictional and subject to equitable tolling)
- Leonard v. Gober, 223 F.3d 1374 (Fed. Cir. 2000) (holding this court lacks jurisdiction to review factual applications of equitable tolling)