Scott-Branch v. O'Rourke

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MOLLIE SCOTT-BRANCH,
Claimant-Appellant
v.
PETER O’ROURKE, ACTING SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2017-2125
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-3366, Judge Margaret C.
Bartley.
______________________
Decided: June 21, 2018
______________________
MOLLIE SCOTT-BRANCH, Madison, TN, pro se.
REBECCA SARAH KRUSER, 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., CLAUDIA BURKE; Y. KEN LEE, AMANDA BLACKMON,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
2 SCOTT-BRANCH v. O’ROURKE
______________________
Before NEWMAN, DYK, and TARANTO, Circuit Judges.
PER CURIAM.
Mollie Scott-Branch appeals the Order of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”), dismissing her appeal as untimely filed. 1 The
court held that the extraordinary circumstances needed
for equitable tolling of the filing deadline had not been
shown, and dismissed the appeal. The dismissal is af-
firmed.
DISCUSSION
Ms. Scott-Branch is the daughter of John R. Scott,
who served on active military duty from March 1941 until
June 1946, and died in February 1973. Ms. Scott-Branch
was born in 1952. In October 2010, Appx41, she filed a
claim for dependency and indemnity compensation under
38 U.S.C. § 1310(a):
When any veteran dies after December 31, 1956,
from a service-connected or compensable disabil-
ity, the Secretary shall pay dependency and in-
demnity compensation to such veteran’s surviving
spouse, children, and parents.
38 C.F.R. § 3.57 defines “child” as a person under the age
of 18 years, or who became permanently incapable of
support before the age of 18 years, or is at an educational
institution and under the age of 23 years. 38 C.F.R. §
3.57(a)(3) states that “the term child also includes a
person who became permanently incapable of self-support
before reaching the age of 18 years.”
1 Scott-Branch v. Shulkin, No. 16-3366, 2017 WL
1001121 (Vet. App. Mar. 15. 2017) (“Vet. Ct. Op.”).
SCOTT-BRANCH v. O’ROURKE 3
The Board of Veterans Appeals (BVA) held that Ms.
Scott-Branch “exceeded the maximum allowable age for
recognition as a child of a Veteran, regardless of her
marital status or if she was pursuing a course of instruc-
tion,” and that she was not entitled to benefits as a “help-
less child” because she had not shown that she was
“permanently incapable of self-support by reason of either
mental or physical defect” prior to age 18. In re Branch,
No. 11-29 388, at 4 (BVA Mar. 15, 2016), Appx43. An
attachment to the BVA decision stated “you have 120
days from the date this decision was mailed to you (as
shown on the first page of this decision) to file a Notice of
Appeal with the Court.” Appx44 (boldface in original).
Ms. Scott-Branch filed the Notice of Appeal on September
28, 2016, 197 days after the mailing date of the BVA’s
decision, which was sent on March 15, 2016.
The Secretary of Veterans Affairs moved to dismiss
the appeal as untimely filed. The Veterans Court issued
an Order to Show Cause on the question of timeliness.
Ms. Scott-Branch responded that her late filing was due
to a “nervous disorder which causes her to not function at
normal or full capacity” as well as being “very ill with
diverticulitis and colitis during the 120-day period.”
Appx12. She stated that “[a] reasonably diligent person
would likewise not have been able to manage the filing of
the appeal under those extraordinary circumstances.”
Appx13. Ms. Scott-Branch provided no medical records or
other supporting evidence.
On February 1, 2017, the Veterans Court issued a
second Order to Show Cause, requesting evidence related
to Ms. Scott-Branch’s statements that she was incapable
of timely filing. Ms. Scott-Branch then submitted letters
from family members, her minister, a doctor, and medical
records. Appx19–39.
The Veterans Court reviewed the submissions, and
found that “the medical records that Ms. Scott-Branch
4 SCOTT-BRANCH v. O’ROURKE
submitted do not reflect treatment for a nervous condi-
tion, diverticulitis, or ulcerative colitis during the judicial
appeal period, and that the only medical records from that
period pertained to a right upper extremity condition that
she has not asserted as preventing her from timely filing
an NOA.” Vet. Ct. Op. at 3. The Veterans Court held
that the basis for equitable tolling had not been estab-
lished. Id.
In order for late filing in the Veterans Court to be eq-
uitably tolled, “a petitioner must show (1) that he has
been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way and
prevented timely filing.” Toomer v. McDonald, 783 F.3d
1229, 1237 (Fed. Cir. 2015) (emphasis in original). The
Veterans Court found that Ms. Scott-Branch had not
established an extraordinary circumstance. We discern
no error in the law applied by the Veterans Court, and no
constitutional violation in the court’s procedures. Absent
error of law or constitutional violation, this court is pre-
cluded from reviewing determinations of equitable tolling.
Dixon v. Shinseki, 741 F.3d 1367, 1377-78 (Fed. Cir.
2014).
The ruling of the Veterans Court is affirmed.
AFFIRMED
COSTS
No costs.