Harrington v. Shulkin , 706 F. App'x 1002 ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LARRY J. HARRINGTON,
Claimant-Appellant
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2017-2131
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 17-423, Judge Mary J. Schoelen.
______________________
Decided: September 7, 2017
______________________
LARRY J. HARRINGTON, Brownsburg, IN, pro se.
DANIEL KENNETH GREENE, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent-appellee. Also
represented by CHAD A. READLER, ROBERT E. KIRSCHMAN,
JR., TARA K. HOGAN; BRIAN D. GRIFFIN, LARA EILHARDT,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
2 HARRINGTON v. SHULKIN
Before PROST, Chief Judge, REYNA and HUGHES,
Circuit Judges.
PER CURIAM.
Larry J. Harrington appeals the decision of the Unit-
ed States Court of Appeals for Veterans Claims (“Veter-
ans Court”), issued in Harrington v. Shulkin, No. 17-0423,
2017 WL 1534063, at *1 (Vet. App. Apr. 28, 2017), dis-
missing as untimely his appeal of a decision of the Board
of Veterans’ Appeals (“Board”). Because Mr. Harrington
has not raised any issue within our limited jurisdiction,
we must dismiss his appeal.
I
A September 2009 rating decision by a Regional Office
(“RO”) of the United States Department of Veterans
Affairs granted Mr. Harrington’s service connection for
bronchial asthma with obstructive sleep apnea, rated 30%
disabling, and for gastroesophageal reflux disease, rated
10% disabling. He appealed this decision, and the RO
awarded an increased 50% rating for bronchial asthma
with obstructive sleep apnea.
Mr. Harrington continued the appeal and on October
11, 2016, the Board denied his claims for increased disa-
bility benefits. On February 9, 2017, one day after the
120-day statutory appeal period ended, Mr. Harrington
filed a Notice of Appeal at the Veterans Court.
The Veterans Court ordered Mr. Harrington to show
cause why his appeal should not be dismissed as untimely
and advised him that failure to respond may result in the
dismissal of his appeal without further notice. Mr. Har-
rington timely responded to that order asserting that
“[his] appeal should not be dismissed for untimely filing
because of the following: [he] was appealing a decision
from the Social Security Administration from October
2016 to January 2017, and was unable to meet the re-
HARRINGTON v. SHULKIN 3
quired deadline, which resulted in untimely filing.”
App. 5.
The Veterans Court considered whether Mr. Harring-
ton’s statement warranted equitable tolling of the 120-day
appeal period, concluding it did not. App. 1 (citing Checo
v. Shinseki, 748 F.3d 1373 (Fed. Cir. 2014); Sneed v.
Shinseki, 737 F.3d 719 (Fed. Cir. 2013)). In particular,
the court found that:
The appellant has failed to explain why his appeal
with the Social Security Administration prevented
him from timely filing his [Notice of Appeal] with
the Court despite the exercise of due diligence.
Absent such an explanation, the appellant may
not benefit from the doctrine of equitable tolling,
and this appeal must therefore be dismissed.
App. 1–2.
The Veterans Court dismissed Mr. Harrington’s
claim. He timely appealed.
II
A
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. See 38 U.S.C. § 7292. We
may review a Veterans Court decision with respect to the
validity of a decision on a rule of law or the validity or
interpretation of any statute or regulation that was relied
upon by the Veterans Court in making the decision. Id.
§ 7292(a), (d)(1). But we “may not review (A) a challenge
to a factual determination, or (B) a challenge to a law or
regulation as applied to the facts of a particular case,”
except to the extent an appeal presents a constitutional
issue. Id. § 7292(d)(2).
Although we cannot consider pure questions of fact or
applications of law to fact, in the equitable tolling context,
we do have jurisdiction when an appellant urges altera-
4 HARRINGTON v. SHULKIN
tion of the legal standard for equitable tolling. In particu-
lar, this court has treated the question of equitable tolling
as “a matter of law” that we are authorized by statute to
address “[w]hen the material facts are not in dispute and
the adoption of a particular legal standard would dictate
the outcome of the equitable tolling claim.” Sneed v.
McDonald, 819 F.3d 1347, 1351 (quoting Bailey v. Princi-
pi, 351 F.3d 1381, 1384 (Fed. Cir. 2003)). Here, the
adoption of a particular legal standard would not dictate
the outcome of Mr. Harrington’s equitable tolling claim,
nor has he raised this issue. Thus, this jurisdictional
exception does not apply.
B
A Notice of Appeal must be filed within 120 days of
the Board’s decision. 38 U.S.C. § 7266(a). This deadline
is not jurisdictional. Henderson v. Shinseki, 562 U.S. 428,
431, 438–42 (2011). As a consequence, both the Veterans
Court and this court have treated the filing period as
subject to equitable tolling. See, e.g., Sneed v. Shinseki,
737 F.3d at 726; Bove v. Shinseki, 25 Vet. App. 136, 140
(2011), overruled on other grounds by Dixon v. McDonald,
815 F.3d 799 (Fed. Cir. 2016). To obtain the benefit of
equitable tolling, “a claimant must demonstrate three
elements: (1) extraordinary circumstance; (2) due dili-
gence; and (3) causation.” Checo, 748 F.3d at 1378.
Mr. Harrington argues that “[t]his case clearly
demonstrate [sic] the three elements of equitable tolling.
The Appellee cannot reasonably expect the Appellant to
prepare a defense in 2 separate Federal Courts at the
same time.” Appellant’s Informal Br. 1. But Mr. Har-
rington provided nothing to support this conclusory
statement. Because the Veterans Court found that Mr.
Harrington failed to provide any evidence of due diligence
or causation during the period he was working on his
appeal with the Social Security Administration, see Checo,
748 F.3d at 1380–81 (adopting a stop-clock approach and
HARRINGTON v. SHULKIN 5
holding that a claimant must only demonstrate due
diligence and causation during the extraordinary-
circumstance period), it appears that Mr. Harrington is
arguing that the Veterans Court’s decision not to apply
equitable tolling was improper. That challenge, however,
is to the Veterans Court’s application of the governing
legal standard to the facts of his case. We have previously
held that we lack jurisdiction to consider whether the
Veterans Court properly applied the doctrine of equitable
tolling. See, e.g., Leonard v. Gober, 223 F.3d 1374, 1376
(Fed. Cir. 2000).
Mr. Harrington does not argue that the Veterans
Court erroneously interpreted a rule of law, statute, or
regulation. Indeed, the Veterans Court applied the cor-
rect legal standard to determine whether Mr. Harring-
ton’s contemporaneous appeal with the Social Security
Administration requires equitable tolling of the appeals
period. Nor does Mr. Harrington raise a constitutional
issue or make any other legal arguments in his informal
brief. His contention that the Veterans Court “failed to
adjudicate based [on] the whole record concept,” Appel-
lant’s Informal Br. 1, appears to be an explicit challenge
to the Veterans Court’s factual findings and its applica-
tion of law to fact, which we are expressly barred from
reviewing under § 7292(d)(2).
Because Mr. Harrington has not raised any issue
within our limited jurisdiction, we must dismiss his
appeal.
DISMISSED
COSTS
The parties shall bear their own costs.