Jones v. Shulkin
680 F. App'x 1013
| Fed. Cir. | 2017Background
- Nancy M. Jones appealed a Board of Veterans’ Appeals denial of service connection for physical and mental conditions.
- Jones filed a Notice of Appeal 158 days after the Board decision — 38 days late under the 120‑day statutory appeal period.
- She sought equitable tolling based on hospitalization for open‑heart surgery and related physical and mental impairments during recovery.
- The Veterans Court applied the Federal Circuit’s equitable‑tolling standard (extraordinary circumstance, due diligence, causation) and precedent requiring mental or physical incapacity to amount to inability to engage in rational thought or handle affairs.
- The Veterans Court concluded Jones did not present sufficient evidence that her impairments rendered her incapable of rational decisionmaking or of handling her affairs for the tolling period, and dismissed the appeal as untimely.
- The Federal Circuit dismissed Jones’s appeal for lack of jurisdiction because she challenged only the application of law to facts (equitable tolling as applied), which 38 U.S.C. § 7292(d)(2) bars the court from reviewing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether equitable tolling applies to Jones’s late NOA | Jones: hospitalization and recovery left her physically/mentally unable to file within 120 days | Veterans Court: evidence insufficient to show incapacity preventing rational thought or handling affairs | Veterans Court declined tolling; appeal untimely |
| Whether Federal Circuit may review Veterans Court’s factual application of equitable tolling | Jones: seeks review of denial of equitable tolling (effectively factual application) | Respondent: appeal raises only application of law to facts, barred from review | Federal Circuit lacks jurisdiction under 38 U.S.C. § 7292(d)(2); dismissal |
Key Cases Cited
- Toomer v. McDonald, 783 F.3d 1229 (Fed. Cir. 2015) (equitable tolling requires extraordinary circumstance, due diligence, causation)
- Checo v. Shinseki, 748 F.3d 1373 (Fed. Cir. 2014) (elements for equitable tolling articulated)
- Barrett v. Principi, 363 F.3d 1316 (Fed. Cir. 2004) (mental illness tolling requires incapacity to engage in rational thought or handle affairs)
- Arbas v. Nicholson, 403 F.3d 1379 (Fed. Cir. 2005) (physical illness tolling requires similar showing of incapacity)
- Leonard v. Gober, 223 F.3d 1374 (Fed. Cir. 2000) (court lacks jurisdiction to review application of law to facts under § 7292(d)(2))