Michael Stoffel v. Shinseki ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MICHAEL D. STOFFEL,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee.
______________________
2012-7102
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 10-2962, Judge Donald L. Ivers.
______________________
Decided: July 11, 2013
______________________
DONALD C. HILL, Attorney at Law, of Hot Springs Vil-
lage, Arkansas, for claimant-appellee.
ALLISON KIDD-MILLER, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. On the brief were STUART F. DELERY, Acting
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and MARTIN F. HOCKEY, JR., Assistant Director. Of
counsel on the brief were DAVID J. BARRANS, Deputy
Assistant General Counsel, and MARTIE ADELMAN, Attor-
2 MICHAEL STOFFEL v. SHINSEKI
ney, United States Department of Veterans Affairs, of
Washington, DC.
______________________
Before PROST, O’MALLEY, and REYNA, Circuit Judges.
PER CURIAM.
Michael D. Stoffel appeals the decision of the United
States Court of Appeals for Veterans Claims (the “Veter-
ans Court”) dismissing his appeal to that court as untime-
ly. We affirm.
I. BACKGROUND
Mr. Stoffel served on active duty in the military from
1971 to 1999. From 2001 to 2003, he received educational
assistance benefits from the Veterans Administration
(“VA”) to complete a degree program at Ramon Mag-
saysay Technological University (“RMTU”) in the Philip-
pines. An investigation by the VA later revealed that Mr.
Stoffel fraudulently received those benefits because he
attended courses that “did not have genuine attendance
or assignment requirements and were not educational.”
Appellee’s Supplemental App. 2. Mr. Stoffel was charged
with an overpayment totaling $16, 131.87.
Mr. Stoffel appealed the charged indebtedness to the
Board of Veterans’ Appeals (“Board”). On May 11, 2010,
the Board affirmed imposition of the indebtedness in a
detailed fifteen-page decision. The Board mailed a copy of
its decision to Mr. Stoffel and to his counsel, Donald Hill.
To appeal the Board’s decision, Mr. Stoffel had to file
a notice of appeal (“NOA”) with the Veterans Court by
September 8, 2010—120 days from the mailing date of the
decision. See 38 U.S.C. § 7266(a). Mr. Stoffel’s NOA,
however, was filed on September 10, 2010. The Veterans
Court ordered him to show cause why his untimely appeal
should not be dismissed. Mr. Stoffel did not respond. As
a result, the court dismissed his appeal.
MICHAEL STOFFEL v. SHINSEKI 3
Mr. Stoffel later petitioned the Veterans Court to re-
consider the dismissal of his appeal. In that petition, he
asserted that “[t]he miscalculation of the 120 days appeal
date was the error of [his] counsel’s office which had
papers from [two] appeals filed in the same case file.”
Appellee’s Supplemental App. 22. That error by counsel,
he argued, should have equitably tolled the due date for
his NOA.
The Veterans Court denied reconsideration. It held
that the misfiling of the Board’s NOA by Mr. Hill did not
“constitute a basis for reconsideration.” Id. at 24. The
court also concluded that, even if there was a proper basis
for reconsideration, “an NOA may not be equitably tolled.”
Id. at 25.
Mr. Stoffel then timely appealed the Veterans Court’s
decision to us. We initially stayed our consideration of his
case. At the time of his appeal, the Supreme Court had
granted certiorari to consider our decision in Henderson v.
Shinseki, where we held that the period for filing an NOA
was jurisdictional and not subject to equitable tolling.
589 F.3d 1201 (Fed. Cir. 2009) (en banc). The Court
subsequently reversed and held that the period for filing
an NOA with the Veterans Court was not jurisdictional.
Henderson ex rel. Henderson v. Shinseki, 131 S. Ct. 1197(2011). In light of that holding, we lifted the stay on Mr.
Stoffel’s appeal, vacated the Veterans Court’s decision,
and remanded. Stoffel v. Shinseki, 425 F. App’x 883, 884
(Fed. Cir. 2011).
After Mr. Stoffel’s case was remanded, the Veterans
Court issued an en banc order (“Misc. Order 10-11”) on
June 24, 2011, to stay a set of pending cases it determined
might be affected by the Supreme Court’s decision in
Henderson. In re Timeliness of Appeals, 25 Vet. App. 100(2011). The court explained that it had to resolve whether
the time period for filing an NOA was subject to equitable
tolling because the Supreme Court never reached that
issue. Id. (citing Henderson, 131 S.Ct. at 1206 n.4). It
4 MICHAEL STOFFEL v. SHINSEKI
believed it should settle that issue before adjudicating
potentially affected cases.
Mr. Stoffel’s remanded case, however, was not listed
in Misc. Order 10-11 as a matter to be stayed. But the
published order provided that, “[i]f parties in cases not
included in the [list of stayed matters] believe those cases
should be stayed, they may file a proper motion request-
ing a stay.” Id.
Shortly after Misc. Order 10-11 issued, Mr. Stoffel
filed an unopposed “Motion to Supplement the Record and
Reinstate Appeal” in the Veterans Court. Appellee’s
Supplemental App. 29. In that motion, he argued that
the untimely filing of his NOA “qualifie[d] for the doctrine
of equitable tolling.” Id. at 31. He asserted circumstances
“beyond his control” caused the untimely filing of his
NOA. Id. at 30. He explained that his 100% disability
rating rendered him “unable to assist in his appeal,
creating a totally unintended and extraordinary circum-
stance under which the [NOA] could not have been filed
any sooner than it was filed.” Id. at 32. And he stated
that his “former residence in the Philippines while attend-
ing [RMTU] ha[d] significantly hindered [his] counsel’s
ability to communicate with [him] in bringing this ap-
peal.” Id. at 30.
Mr. Stoffel’s motion to supplement the record and re-
instate his appeal was accompanied by an affidavit from
Mr. Hill. In that affidavit, Mr. Hill explained why the
NOA was untimely. According to him, the Board’s deci-
sion was received a “few days” after it was mailed, but
“unbeknownst to [him]” placed in the wrong case file and
“left uncalendared.” Id. at 42. In addition, Mr. Hill
argued that “Mr. Stoffel, being 100% disabled, ha[d] been
unable to assist in any of his appeals and did not request
an office visit or otherwise advise []his office that the 120-
day period for the filing of his Notice of Appeal might be
in jeopardy in late August or early September [2010].” Id.
But, he assured the Veterans Court, “[a]s soon as the
MICHAEL STOFFEL v. SHINSEKI 5
Board’s decision and related documents were found, the
Notice of Appeal was filed.” Id. at 43.
Subsequent to Mr. Stoffel’s motion, the Veterans
Court published a precedential decision in which it held
that the period for filing an NOA was subject to equitable
tolling in light of the Supreme Court’s decision in Hender-
son. Bove v. Shinseki, 25 Vet. App. 136, 140 (2011). 1 In
its opinion, the Veterans Court adopted a pre-Henderson
line of precedent from our court concerning the parame-
ters for applying equitable tolling. It discussed those
parameters in some detail. “[E]quitable tolling was not
applied when failure to file was due to general negligence
or procrastination.” Id. “Rather,” the court explained, “it
was applied only when circumstances precluded a timely
filing despite the exercise of due diligence. Id. Examples
included: “(1) a mental illness rendering one incapable of
handling one’s own affairs or other extraordinary circum-
stances beyond one’s control, (2) reliance on the incorrect
statement of a VA official, or (3) a misfiling at the region-
al office or the Board.” Id.
After Bove issued, the Veterans Court denied Mr.
Stoffel’s motion and dismissed his appeal “for untimely
filing.” Stoffel v. Shinseki, 10-2962, 2012 WL 223909 at
*2 (Vet. App. Jan. 26, 2012). The court recognized three
reasons presented by Mr. Stoffel to justify the untimeli-
ness of his NOA: (1) “his counsel misfiled the . . . Board
decision and failed to calendar the time to appeal”; (2) “his
100% disability made him unable to assist with the fil-
ing”; and (3) “the fact that his former residence was in the
1 Contemporaneously with Bove, the court issued
an order (“Misc. Order 21-11”) lifting the stays imposed by
Misc. Order 10-11. The Veterans Court found that a copy
of that order was sent to all attorneys registered with the
electronic filing system for the Veterans Court, including
Mr. Hill.
6 MICHAEL STOFFEL v. SHINSEKI
Philippines significantly affected [his] counsel’s ability to
communicate with him.” Id. at *1. It found none persua-
sive though. The court determined that the misfiling of
the Board decision was “at best a garden variety claim of
excusable neglect that is not a basis for equitable tolling.”
Id. (internal quotation marks omitted). And it reasoned
that Mr. Stoffel “fail[ed] to demonstrate how [his disabil-
ity or former residence] impeded his filing of an NOA.” 2
Id. at *2. “The filing of an NOA is a low burden,” the
court explained, that “requir[es] little more than notifying
the Court of the intent to appeal.” Id.
Mr. Stoffel moved for reconsideration of the Veterans
Court decision, which was denied. He filed a timely
appeal with us.
II. DISCUSSION
We possesses limited jurisdiction to review decisions
of the Veterans Court. “Except to the extent that an
appeal . . . presents a constitutional issue,” we have no
jurisdiction to review “a challenge to a factual determina-
tion, or . . . a challenge to a law or regulation as applied to
the facts of a particular case.” 38 U.S.C. § 7292(d)(2). If a
decision of the Veterans Court presents a question of law
within our jurisdiction, our standard of review is de novo.
38 U.S.C. § 7292(a); Willsey v. Peake, 535 F.3d 1368,
1370–73 (Fed. Cir. 2008).
Mr. Stoffel argues that the Veterans Court violated
his constitutional guarantees of due process and equal
protection. In light of the record, we find his arguments
meritless.
Mr. Stoffel was not deprived of adequate due process
by the Veterans Court. The fundamental requirements of
2 The court also noted that Mr. Stoffel’s NOA re-
flected an address in Arkansas. Stoffel, 2012 WL 223909at *1 n.2.
MICHAEL STOFFEL v. SHINSEKI 7
due process are adequate notice and the opportunity to be
heard at a meaningful time and in a meaningful manner.
See Edwards v. Shinseki, 582 F.3d 1351, 1355 (Fed. Cir.
2009); E. Paralyzed Veterans Ass’n, Inc. v. Sec’y of Veter-
ans Affairs, 257 F.3d 1352, 1359 (Fed. Cir. 2001). Mr.
Stoffel does not challenge that he was provided initial
notice of the dismissal of his appeal. His arguments
instead center on his opportunity to challenge that dispo-
sition. He asserts that his right to due process was vio-
lated because he was not given an adequate opportunity
to present his arguments on equitable tolling; he never
received notice of Bove or Misc. Order 21-11; the Veterans
Court dismissed his appeal sua sponte; and he was af-
forded “no direction, guidance or notice . . . of where to
look for the [Veterans Court]’s newly adopted law on
equitable tolling.” Appellant’s Br. 19. We are not con-
vinced.
Mr. Stoffel’s claims that he was deprived of a mean-
ingful opportunity to develop and present his arguments
to the Veterans Court are simply without merit. He twice
briefed the Veterans Court on why equitable tolling
should excuse the delay in filing his NOA, and the court
considered every excuse he presented. There is no indica-
tion that Mr. Stoffel’s briefing was incomplete—indeed, he
does not identify any facts or law the court failed to
consider. There also was significant guidance available to
him regarding the standards for equitable tolling that
could have informed his briefing. The case law predating
our opinion in Henderson explained the contours of the
application of equitable tolling at the Veterans Court and
was adopted in Bove. Like Bove, those cases were publi-
cally available and easily accessible to Mr. Stoffel’s coun-
sel. 3 Moreover, the Veterans Court’s dismissal was not
3 Mr. Stoffel also believes that Misc. Order 21-11
should have been provided to him. Notwithstanding the
fact that the order was publically available, the Veterans
Court found that it was emailed to all attorney’s regis-
8 MICHAEL STOFFEL v. SHINSEKI
“sua sponte.” Mr. Stoffel moved to reinstate his appeal,
and the court declined to do so. There was no violation of
Mr. Stoffel’s right to due process here.
Mr. Stoffel’s argument that the Veterans Court vio-
lated his right to equal protection is also unfounded. To
sustain an equal protection claim, “[a] plaintiff must
allege personal injury fairly traceable to the defendant’s
allegedly unlawful conduct.” Allen v. Wright, 468 U.S.
737, 751 (1984). Mr. Stoffel has not identified a traceable
injury of any action by the Veterans Court. The heart of
his argument is that, unlike some veterans, his case was
not stayed pending the issuance of Bove. But Mr. Stoffel
has not provided any explanation for how and why his
case would have been decided differently as the result of a
stay. 4 There is no indication that the holding in Bove or
Mr. Stoffel’s ability to rebrief the Veterans Court after
Bove issued would have had any material effect on the
adjudication of his case. In fact, the Veterans Court
recognized the holding in Bove when denying Mr. Stoffel’s
motion to reinstate his appeal. Stoffel, 2012 WL 223909at *1. Without identifying the effect of any alleged dis-
parate treatment, Mr. Stoffel’s equal protection claim is
groundless.
tered to practice before the Veterans Court—including
Mr. Hill. There is no merit to Mr. Stoffel’s claim that his
right to due process was violated because he was never
provided access to that order.
4 In addition, Misc. Order 10-11 explained that any
potentially aggrieved veteran may have requested a
stay—including Mr. Stoffel. It issued before Mr. Stoffel
filed his motion to reinstate his appeal. Mr. Stoffel’s
choice to forego a stay request pursuant to that order does
not impute unconstitutional intent to the Veterans
Court’s decision to adjudicate his motion.
MICHAEL STOFFEL v. SHINSEKI 9
The prejudice Mr. Stoffel suffered during the adjudi-
cation of his case simply did not arise from actions taken
by the Veterans Court. Rather, it appears to have been
caused solely by Mr. Hill. 5 That was the conclusion of the
Veterans Court’s analysis of the facts here. We do not
have jurisdiction to review the merits of that decision. To
do so would require “the application of the law of equita-
ble tolling to the facts of the case” and for us to “judge the
accuracy of the facts found by the [Veterans Court]”—
which we cannot do. Leonard v. Gober, 223 F.3d 1374,
1376 (Fed. Cir. 2000).
Therefore, the decision of the Veterans Court is af-
firmed.
AFFIRMED
5 We find Mr. Hill’s conduct in this case to be quite
troubling. In his affidavit filed with the Veterans Court,
Mr. Hill stated that he misfiled the Board’s decision upon
receipt but that “[a]s soon as the Board’s decision and
related documents were found, the Notice of Appeal was
filed.” But Mr. Hill’s notice of appearance before the
Veterans Court was dated September 2, 2010. Knowledge
of the existence of the Board’s decision was a logical
prerequisite for signing that entry of appearance. There-
fore, it appears that Mr. Hill knew of the Board’s decision
eight days prior to filing Mr. Stoffel’s NOA and six days
prior to the end of the filing period. There is no explana-
tion for Mr. Hill’s prejudicial decision to let the filing
period for Mr. Stoffel’s NOA expire.