Cioffi v. McDonald , 652 F. App'x 936 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LAWRENCE S. CIOFFI,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2016-1612
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-1885, Judge Margaret C.
Bartley.
______________________
Decided: June 13, 2016
______________________
LAWRENCE S. CIOFFI, Danbury, CT, pro se.
MOLLIE LENORE FINNAN, Commercial Litigation
Branch, United States Department of Justice, Washing-
ton, DC, for respondent-appellee. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., SCOTT D.
AUSTIN; BRIAN D. GRIFFIN, DEREK SCADDEN, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
2 CIOFFI v. MCDONALD
______________________
Before PROST, Chief Judge, BRYSON and STOLL, Circuit
Judges.
PER CURIAM.
Lawrence S. Cioffi appeals the decision of the Court of
Appeals for Veterans Claims (“the Veterans Court”)
dismissing as untimely his appeal of a decision of the
Board of Veterans’ Appeals (“Board”). For the following
reasons, we dismiss for lack of jurisdiction.
BACKGROUND
On May 11, 2015, Mr. Cioffi filed a notice of appeal
with the Veterans Court, challenging a May 29, 2014
decision by the Board denying his claim for increased
disability benefits. The Secretary of Veterans Affairs filed
a motion to dismiss, arguing that the notice of appeal was
filed more than 120 days after the Board’s decision and
thus was untimely. The Veterans Court then ordered Mr.
Cioffi to show cause why the appeal should not be dis-
missed as untimely.
On August 17, 2015, Mr. Cioffi responded to the show
cause order with a letter from his primary care physician
at the Department of Veterans Affairs and sworn affida-
vits from himself and his wife. Mr. Cioffi explained that,
at the time that he received the Board’s decision, he was
having recurring seizures due to service-connected
Meniere’s disease. He stated that because of his seizures,
he misinterpreted the time to appeal the Board decision—
he erroneously relied on the one-year deadline to chal-
lenge an agency decision to the Board instead of the 120-
day deadline to appeal from the Board to the Veterans
Court.
His physician confirmed that Mr. Cioffi suffered “at-
tacks of Meniere’s disease including imbalance, stagger-
CIOFFI v. MCDONALD 3
ing, and vertigo,” and further stated that “his seizures
were increasingly interrupting his daily routine and living
activities affecting his normal functions.” J.A. 9. Mrs.
Cioffi, who was Mr. Cioffi’s caregiver, also stated in her
affidavit that she “assisted processing [Mr. Cioffi’s] paper
work during his recurring periods of incapacity,” although
she stressed that she is “neither [a] veteran[’s] repre-
sentative nor veteran[’s] advocate.” J.A. 11. Mrs. Cioffi
reiterated that she and her husband incorrectly interpret-
ed the appeal deadline to be one year.
On December 18, 2015, the Veterans Court dismissed
Mr. Cioffi’s appeal as untimely. The Veterans Court
concluded that Mr. Cioffi was not entitled to equitable
tolling of the 120-day appeal period because he had not
established that his physical impairments constituted
extraordinary circumstances, as required for equitable
tolling to apply. Mr. Cioffi now timely appeals to us.
DISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. Pursuant to 38 U.S.C.
§ 7292(a), we have jurisdiction to review “the validity of a
decision of the [Veterans] Court on a rule of law or of any
statute or regulation . . . or any interpretation thereof
(other than a determination as to a factual matter) that
was relied on by the [Veterans] Court in making the
decision.” Except to the extent that a constitutional issue
is raised, this court may not review “a challenge to a
factual determination,” or “a challenge to a law or regula-
tion as applied to the facts of a particular case.” Id.
§ 7292(d)(2)(A)-(B).
Pursuant to 38 U.S.C. § 7266(a), a notice of appeal
must be filed within 120 days of the date of the Board
decision. This deadline is not jurisdictional, however, and
thus the Veterans Court may excuse a late filing under
the doctrine of equitable tolling. Henderson v. Shinseki,
562 U.S. 428, 431, 438–42 (2011).
4 CIOFFI v. MCDONALD
We have explained that to benefit from equitable toll-
ing, “a claimant must demonstrate three elements: (1)
extraordinary circumstance; (2) due diligence; and (3)
causation.” Toomer v. McDonald, 783 F.3d 1229, 1238
(Fed. Cir. 2015) (internal quotation marks and alteration
omitted). Where a claimant relies on physical disability
to show an “extraordinary circumstance,” we have di-
rected the Veterans Court to “focus on whether the par-
ticular infirmity of the veteran prevented him from
engaging in ‘rational thought or deliberate decision mak-
ing’ or rendered him ‘incapable of handling [his] own
affairs or unable to function [in] society.’” Arbas v. Ni-
cholson, 403 F.3d 1379, 1381 (Fed. Cir. 2005) (quoting
Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004)).
On appeal, Mr. Cioffi argues that the Veterans Court
acted in a manner that was “arbitrary, capricious, [and/or
an] abuse of discretion in failing to apply equitable tolling
for extraordinary circumstances.” Pet’r’s Br. 1. In partic-
ular, Mr. Cioffi contends that equitable tolling is warrant-
ed because his physical disability prevented him from
completing the required paperwork and thus, his wife,
who is neither an attorney nor a Veterans Service Repre-
sentative, was required to assume that responsibility. He
also argues that instead of taking into account all of his
symptoms—including deafness, head noise/tinnitus,
nystagmus, migraines, tremors, imbalance and others—
the Veterans Court focused exclusively on his seizures in
determining that Mr. Cioffi had not shown that his physi-
cal disability “rendered him incapable of handling his own
affairs for the entire appeal period.” J.A. 2.
Mr. Cioffi’s challenge is thus to the Veterans Court’s
application of the equitable tolling standard to the facts of
his case. However, we have consistently held that we
have no jurisdiction over such cases. See Leonard v.
Gober, 223 F.3d 1374, 1376 (Fed. Cir. 2000) (finding lack
of jurisdiction “to consider [Petitioner’s] arguments re-
garding application of equitable tolling to the facts of her
CIOFFI v. MCDONALD 5
case”); Dixon v. Shinseki, 741 F.3d 1367, 1377 (Fed. Cir.
2014) (“This court is precluded from reviewing factual
determinations bearing on a veteran’s equitable tolling
claim.” (internal citation omitted)).
Mr. Cioffi also contends that the Veterans Court im-
properly relied on the standard espoused in Barrett,
which involved a claimant with a mental illness, to de-
termine whether a physical illness constitutes an extraor-
dinary circumstance. However, we have previously stated
that the Barrett standard applies to both mental and
physical disability. Arbas, 403 F.3d at 1381. Thus, Mr.
Cioffi’s argument appears to be that the Veterans Court
erred in analogizing the facts of his case with those in
Barrett to find that equitable tolling did not apply. This
again is a challenge to the Veterans Court’s application of
the equitable tolling standard to facts and thus does not
provide a basis for our jurisdiction.
Because Mr. Cioffi does not argue that the decision of
the Veterans Court involved the validity or interpretation
of the equitable tolling standard and instead only pro-
vides factual evidence for why he missed the 120-day
deadline, we lack jurisdiction to hear his appeal.
For the foregoing reasons, we dismiss the appeal for
lack of jurisdiction.
DISMISSED
COSTS
Each party shall bear their own costs.