           UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


                                             NO . 05-45

                               WILLIAM E. MCCREARY , APPELLANT ,

                                                 V.


                                    R. JAMES NICHOLSON ,
                          SECRETARY OF VETERANS AFFAIRS, APPELLEE.


                            On Appellant's Motion for Reconsideration


                                    (Decided     June 5, 2006 )



        Jeffrey A. Lamken, D. Kirk Morgan II, and Simon E. Stevens, all of Washington, D.C., were
on the pleading for the appellant.

        Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; Richard
Mayerick, Deputy Assistant General Counsel; and Gabrielle L. Clemons (non-attorney practitioner),
all of Washington, D.C., were on the pleading for the appellee.

       Before GREENE, Chief Judge, and LANCE and SCHOELEN, Judges.

       SCHOELEN, Judge: The appellant seeks review of an August 30, 2004, decision of the
Board of Veterans' Appeals (Board). In a September 2, 2005, opinion, the Court dismissed this
appeal, holding that the appellant had not filed his Notice of Appeal (NOA) within 120 days after
the date the Board mailed its decision, nor had he met a three-part test to establish that equitable
tolling of the 120-day judicial-appeal period was appropriate. McCreary v. Nicholson, 19 Vet.App.
324 (2005). Subsequently, the appellant, through counsel, filed a timely motion for reconsideration.
In response to a Court order, the appellant also filed a supplemental memorandum and an affidavit
in support of his motion for reconsideration. The Secretary filed a response to the appellant's motion
for reconsideration and his supplemental memorandum. Because of a change in the factual basis
underlying our prior decision, we grant the appellant's motion for reconsideration. See Ashley
v. Derwinski, 2 Vet.App. 307, 308 (1992). However, after reconsideration, we again conclude that
equitable tolling is not warranted in this case and we will dismiss this appeal.1


                                           I. BACKGROUND
        The original opinion in this case sets forth the factual and procedural background of this case,
which we summarize briefly here. See McCreary, 19 Vet.App. at 326-27. The appellant filed his
NOA with the Court on January 4, 2005, 127 days after the date stamped on the Board decision. He
acknowledged that his appeal was untimely in a signed, sworn statement accompanying his NOA.
In that statement, he attributed his untimely appeal to damage to his house as a result of Hurricane
Ivan, which, on September 16, 2004, struck the Alabama coast near where his house is located. Id.
at 327 (taking judicial notice of information regarding Hurricane Ivan). He stated that his papers
related to his appeal were stored in boxes that were "misplaced" while he attempted to repair his
house and to reach a settlement with his insurance company. Id. at 326-27. In response to an order
from the Court asking the appellant to show cause why his appeal should not be dismissed, the
appellant submitted a nearly identical statement.
        In the September 2, 2005, opinion, the Court dismissed this appeal. Based on a review of
other Federal court decisions, we determined that extraordinary circumstances could be the basis for
equitable tolling of the 120-day judicial-appeal period under 38 U.S.C. § 7266(a). Id. at 328-32. We
adopted a three-part test to determine when equitable tolling based on extraordinary circumstances
is justified:
        First, the extraordinary circumstance must be beyond the appellant's control. Second,
        the appellant must demonstrate that the untimely filing was a direct result of the
        extraordinary circumstances. Third, the appellant must exercise "due diligence" in
        preserving his appellate rights, meaning that a reasonably diligent appellant, under
        the same circumstances, would not have filed his appeal within the 120-day judicial
        appeal period.
Id. at 332 (citations omitted). However, in applying this test to the circumstances and evidence
presented by the appellant at the time, we determined that equitable tolling was not warranted
because his untimely filing of his NOA was not a direct result of Hurricane Ivan and because the


        1
         This opinion supplements the Court's September 2, 2005, opinion, which remains otherwise undisturbed.

                                                       2
evidence did not demonstrate that he had exercised due diligence in preserving his appellate rights.
Id. at 332-34.
       The Court granted the Veterans Consortium Pro Bono Program a stay of proceedings
pursuant to Rule 5(a)(1)(B) of the Court's Rules of Practice and Procedure (Rules) so that the then-
pro se appellant might obtain counsel. Counsel for the appellant entered an appearance and filed a
motion for reconsideration pursuant to Rule 35. Because counsel for the appellant had limited time
to consult with the appellant, the Court granted the appellant leave to file an amended motion for
reconsideration. He did so on December 5, 2005.
       As grounds for reconsideration, the appellant argues that he did not have the opportunity to
show that he is entitled to equitable tolling under the standard first articulated in McCreary. He
argues that, in prior instances where the U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) has articulated a new basis for equitable tolling, this Court has provided appellants the
opportunity to submit evidence in support of their arguments for equitable tolling. See, e.g.,
Claiborne v. Nicholson, 19 Vet.App. 181, 182 (2005), aff'd per curiam, No. 05-7170, 2006 WL
701948 (Fed. Cir. Mar. 14, 2006). In his motion for reconsideration, the appellant made general
assertions of the type of evidence he would submit to support his argument for equitable tolling, but
he did not submit any evidence.
       In light of the appellant's failure to submit any evidence accompanying his motion for
reconsideration, on December 13, 2005, the Court ordered the appellant to file a supplemental
memorandum, with supporting evidence, in support of his motion for reconsideration. The Court
also ordered the Secretary to respond to the motion for reconsideration, the supplemental
memorandum of law, and any additional evidence submitted by the appellant. See U.S. VET . APP .
R. 35(g) (stating that the Court will not ordinarily grant reconsideration without seeking a response
to the motion).
       In response to the Court's order, on January 11, 2006, the appellant submitted a supplemental
memorandum of law in support of his motion for reconsideration and attached his supporting
affidavit. In his supplemental memorandum, he argues that he met each of the three parts of the
McCreary test. Regarding whether Hurricane Ivan was an extraordinary circumstance beyond his
control, he asserts that, in the September 2, 2005 opinion, the Court already found that to be the case.


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See McCreary, 19 Vet.App. at 332 (stating that "it is obvious that a hurricane is a type of
extraordinary circumstance that is beyond the appellant's control").
       With respect to the second element of the McCreary test, the appellant argues that his
untimely filing of his NOA was a direct result of Hurricane Ivan. He refers to his prior statement,
in which he stated that he had "misplaced" his papers related to the appeal. See id. at 326. He
attempts to clarify his prior statement by asserting that the hurricane damage was particularly
extensive in the room containing his papers. Appellant's Supplemental Memorandum (Suppl. Mem.)
at 4; Affidavit of William E. McCreary (McCreary Aff.) ¶ 4, 7. He asserts that because of the
likelihood of imminent water and mold damage, he and his family hurriedly packed his papers into
boxes, but he does not specifically recall placing his papers into any of the boxes. McCreary Aff.
¶ 4. He states that from the time of the hurricane until he found his papers on December 31, 2004,
while looking for something else, he had not thought about the papers related to his appeal.
McCreary Aff. ¶ 9. The appellant argues that the loss of his papers related to his appeal was a direct,
imminent, and foreseeable response to the hurricane. Suppl. Mem. at 4-5. He specifically states his
belief that "[b]ut for Hurricane Ivan, I have no doubt that I would have filed my appeal papers on
time." McCreary Aff. ¶ 11.
       Concerning the third element of the McCreary test, the appellant argues that he has exercised
the due diligence required by the Court. He maintains that, while trying to support his family, he was
required to live without power for weeks, to undertake expensive repairs to his house on his own,
and to fight procedural hurdles with his insurance company. Suppl. Mem. at 5-6; McCreary Aff.
¶ 3-8. He explains that he had to make repairs to his house while spending 12 hours each day
working and commuting. McCreary Aff. ¶ 6. He also stresses that his boxed papers had to be
moved immediately from a heavily damaged portion of his house while he repaired it, "making their
discovery and retrieval difficult if not impossible." Suppl. Mem. at 6. The appellant also cites
extensions of time granted by other Government agencies as a result of Hurricane Ivan. Id. at 6-7
(citing extensions granted by (1) the Internal Revenue Service for filing quarterly tax returns and
payments from September 15, 2004, until December 30, 2004; (2) the Pension Benefit Guaranty
Corporation for certain deadlines until December 30, 2004; and (3) the Department of Labor for




                                                  4
filing certain forms and reports until December 30, 2004).2 Finally, the appellant also argues that
he demonstrated due diligence by immediately contacting his representative after finding the papers
on December 30, 2004, and, on the first day his representative was available, meeting with him in
order to file his NOA. McCreary Aff. ¶ 10.
             On February 24, 2006, the Secretary filed a response to the appellant's motion for
reconsideration and supplemental memorandum of law. In his response, the Secretary did not
express a position on the adequacy of the appellant's submissions under the McCreary test.
However, the Secretary raised the issue of the adequacy of the appellant's motion for reconsideration
under the Court's Rules. We turn to that threshold issue first.


                                                                         II. ANALYSIS
                                                           A. Motion for Reconsideration
             Rule 35(e)(1) of the Court's Rules requires that motions for reconsideration "state the points
of law or fact that the party believes the Court has overlooked or misunderstood." The Secretary
asserts that, rather than articulating a point of law or fact that the Court has misunderstood, the
appellant is merely attempting to present additional facts for the Court's initial consideration.
However, we are satisfied that the appellant has sufficiently articulated a point of fact that the Court
has misunderstood. Specifically, the appellant's supplemental memorandum identifies his admittedly
inartful use of the term "misplaced" in his prior statement and the Court's interpretation of that word.
Suppl. Mem. at 3 n.1, 3-4; see McCreary, 19 Vet.App. at 333. Thus, we are satisfied that the
appellant's motion for reconsideration meets the criteria set forth in Rule 35.
             In light of the appellant's additional submissions and in the interest of a full and fair
consideration of the appellant's equitable tolling request, including assessment of all relevant facts,
the Court will grant the appellant's motion for reconsideration. See Ashley, 2 Vet.App. at 308


             2
               See Internal Revenue Service, IRS Grants Tax Relief for Hurricane Ivan Victims (Sept. 22, 2004), available
at http://www.irs.gov/pub/irs-news/ir-04-118.pdf; Pension Benefit Guaranty Corporation, Disaster Relief Relating to
PBGC Deadlines in Response to Hurricane Ivan in Alabama, Florida, Louisiana, and Mississippi (Oct. 13, 2004),
a v a il a b l e a t h t t p ://w w w .p b g c .g o v /p r a c titio n e r s /la w - r e g u l a t i o n s - i n f o r m a l - g u i d a n c e / d i s a s t e r - r e l i e f -
announcements/dr1189.html; U.S. Department of Labor, Employee Benefits Security Administration, U.S. Labor
Department Extends Annual Report Deadlines After Hurricane Ivan Hits Gulf Coast (Sept. 30, 2004), available at
http://www.dol.gov/ebsa/newsroom/pr0930a04.html.

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(granting reconsideration based on a "marked change in the factual predicate"). We now proceed
to reevaluate whether equitable tolling is appropriate and to consider the additional evidence the
appellant has submitted.
                                         B. Applicable Law
       Neither party challenged the articulation of the applicable law regarding equitable tolling or
the three-part test to determine whether equitable tolling based on extraordinary circumstances is
appropriate. See McCreary, supra. Thus, the Court will not repeat the underlying analysis and will
apply the three-part test articulated in McCreary to determine whether equitable tolling is warranted
in this case. See id., 19 Vet.App. at 332. We repeat several principles from our prior opinion that
are relevant in this case. First, the appellant has the obligation "to produce any evidence supporting
his claim for equitable tolling." Id. Second, the burden for filing an NOA in this Court is low. Id.
at 333. Finally, an "appellant would not be ineligible for equitable tolling because he waited until
the end of the judicial-appeal period to file an NOA." Id. at 334. However, in our prior opinion we
favorably cited a case from the U.S. Court of Appeals for the Second Circuit, which required that
"'the party seeking equitable tolling must have acted with reasonable diligence throughout the period
he seeks to toll.'" Id. at 331 (quoting Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000)).
                    C. Application of Equitable Tolling Standard to This Case
       As before, we find that a hurricane is an extraordinary circumstance that is beyond the
appellant's control. Id. at 332. Thus, we need only consider whether his untimely appeal was the
direct result of Hurricane Ivan and whether he exercised due diligence in pursuing his appeal.
Although we remain sympathetic to the hardship endured by the appellant, for the following reasons,
we hold that he does not meet the criteria for equitable tolling of the judicial-appeal period.
       The appellant's additional submissions in support of his motion for reconsideration do not
establish that his untimely appeal was a direct result of Hurricane Ivan. See id. at 332. We first
address his clarification of the circumstances surrounding the loss of his papers. In our prior opinion,
we interpreted his original statement that he had "misplaced" his papers to mean that he had lost his
papers in the attempt to settle with his insurance company and to make repairs to his house. Id. at
332-33. The additional evidence he submitted on reconsideration convinces the Court that he
"misplaced" his papers as a direct result of Hurricane Ivan. However, this conclusion alone is not


                                                   6
sufficient to justify equitable tolling. Rather, he must demonstrate that the untimely appeal was a
direct result of Hurricane Ivan. See id. at 332. In that regard, we conclude that the link between his
missing papers and his untimely appeal is too attenuated for us to find that his untimely appeal was
a direct result of Hurricane Ivan.
       Specifically, we determined in our prior opinion that "it cannot be said that the appellant
needed his paperwork to file an NOA in this Court and he has not demonstrated how the
misplacement of it prevented him from doing so." Id. at 333. Significantly, the appellant does not
assert that he filed his NOA late simply because he misplaced his papers. Rather, he asserts that he
filed his NOA late because he had misplaced his papers and then he did not think about his appeal
until he came across his papers while looking for something else. See McCreary Aff. ¶ 9 (stating that
when he discovered his papers on December 31, 2004, it "was the very first time the papers had
crossed my mind since the hurricane"). The fact that he forgot about his papers is the reason that he
did not file a timely appeal. Thus, the Court understands that the appellant was preoccupied with
the challenges of repairing his house and returning to his daily routine. However, the fact that he did
not think about his appeal for three months because he was preoccupied makes his untimely appeal
too tenuously linked to the hurricane itself to be the direct result of the hurricane.
       We are not convinced that a reasonable person, in the circumstances of this case, acting with
due diligence would have filed his NOA late. See McCreary, 19 Vet.App. at 332. As noted above,
the burden of filing an NOA in this Court is very low. See id. at 333. A single phone call to his
representative (who we assume would have advised him to file his NOA immediately to preserve
his appellate rights) or a single correspondence expressing an intent to appeal his Board decision sent
to the Court between the time Hurricane Ivan struck in September 2004 and the date his appeal was
due, December 28, 2004, would have preserved his judicial appeal. See id. at 333. The appellant
did neither because, as he admits, he forgot about his appeal in the aftermath of Hurricane Ivan. We
assume that, had the appellant discovered his papers earlier, he would have filed his appeal sooner,
likely within the 120 days after the Board's decision. However, the fact that he forgot about his lost
papers for more than three months does not demonstrate the diligence necessary to establish that
equitable tolling is appropriate. See id. at 331 (requiring party seeking equitable tolling to
demonstrate due diligence "'throughout the period he seeks to toll'" (quoting Smith, 208 F.3d at 17)).


                                                   7
       Moreover, the actions by certain Government agencies extending deadlines as a result of
Hurricane Ivan tends to negate his claim for equitable tolling. Although we find the extensions of
time granted by other Government entities to be relevant, those agencies' deadlines originally were
set to expire between September 13, 2004, and December 30, 2004. See Suppl. Mem. at 6-7. The
appellant's NOA, however, was not due until December 28, 2004. Even if we were to extend the
judicial-appeal period in this case until December 30, 2004, as the Government agencies cited in the
appellant's pleadings did, his appeal would still be untimely because he did not file his NOA until
January 4, 2005. The action of these Government agencies reinforces our prior statement that we
would be more inclined to toll the judicial-appeal period in this case had the hurricane struck later
during the judicial-appeal period, in which case he would have had less time to get his affairs in
order prior to the expiration of the judicial-appeal period. See McCreary, 19 Vet.App. at 334.
However, the deadline for the appellant to file his NOA was more than three months after Hurricane
Ivan struck.
       Although the happenstance that reminded him of his appeal occurred close to the expiration
of the 120-day judicial-appeal period, this proximity cannot distract us from the fact that he forgot
about his appeal for several months. Though the appellant argues that his diligence after he found
his paperwork justifies equitable tolling in this case (see Suppl. Mem. at 8-9), we cannot accept the
appellant's argument that it is enough that he acted with diligence after he was reminded about his
appeal. Our conclusion that the appellant did not exercise due diligence is based primarily on the
belief that a reasonably diligent claimant, under these circumstances, who was dissatisfied with the
Board's adjudication of his claim, would not have forgotten about his appeal for more than three
months. The appellant has not demonstrated that the damage from Hurricane Ivan directly resulted
in barriers beyond his control that continued to exist throughout the judicial-appeal period and
prevented him from filing a timely NOA.


                                        III. CONCLUSION
       After consideration of the appellant's and the Secretary's pleadings and the appellant's
affidavit, the Court grants the appellant's motion for reconsideration. On reconsideration, however,
the appellant has not established that his untimely appeal was the direct result of Hurricane Ivan, nor


                                                  8
demonstrated that he has acted with due diligence in pursuing his judicial appeal. Accordingly, we
reaffirm our September 2, 2005, opinion and DISMISS this appeal as untimely.




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