George Roseberry v. Douglas A. Collins, Secretary of Veterans Affairs

United States Court of Appeals
for the Federal Circuit
______________________
GEORGE ROSEBERRY,
Claimant-Appellant
v.
DOUGLAS A. COLLINS, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-2288
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-945, Judge Grant Jaquith,
Judge Joseph L. Falvey, Jr, Judge William S. Greenberg.
______________________
Decided: March 31, 2025
______________________
HAROLD HAMILTON H OFFMAN, III, Veterans Legal Ad-
vocacy Group, Arlington, VA, argued for claimant-appel-
lant. Also represented by MEGAN E ILEEN H OFFMAN.
RETA EMMA BEZAK, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, WILLIAM J AMES G RIMALDI,
P ATRICIA M. MCCARTHY ; D EREK SCADDEN, ANDREW J.
STEINBERG, Office of General Counsel, United States De-
partment of Veterans Affairs, Washington, DC.
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ROSEBERRY v. COLLINS 2
______________________
Before D YK, CHEN, and STARK, Circuit Judges.
STARK, Circuit Judge.
George Roseberry appeals a decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) dismissing his application for attorney fees under
the Equal Access to Justice Act (“EAJA”) as untimely. Be-
cause the Veterans Court utilized the correct “extraordi-
nary circumstances” standard when determining that
Mr. Roseberry’s deadline for filing his application was not
entitled to equitable tolling, we affirm.
I
Mr. Roseberry served in the United States Army from
1977 until 1989, during which time he sustained a lower
back injury. In March 1994, Mr. Roseberry submitted a
claim for service connection related to degenerative disc
disease. The claim was denied three months later. Be-
tween 1998 and 2005 Mr. Roseberry unsuccessfully sought
several times to reopen his claim. Then, on July 20, 2021,
he obtained limited relief from the Veterans Court in the
form of a remand to the Board of Veterans’ Appeals. The
Veterans Court docketed its mandate concluding Mr. Rose-
berry’s appeal on October 15, 2021, but the mandate had
an effective date of three days earlier, October 12, 2021, as
was clear on its face.
On November 13, 2021, Mr. Roseberry filed, through
counsel, an application for attorney fees under the EAJA,
28 U.S.C. § 2412. EAJA applications relating to successful
Veterans Court appeals must be filed “within thirty days of
final judgment in the action.” 28 U.S.C. § 2412(d)(1)(B).
Consistent with the statute, the Veterans Court’s Rules of
Practice and Procedure (“Rules”) require that “[a]n appli-
cation pursuant to 28 U.S.C. § 2412(d) . . . shall be submit-
ted for filing with the Clerk not later than 30 days after the
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ROSEBERRY v. COLLINS 3
Court’s judgment becomes final.” U.S. Vet. App. R. 39(a).
Veterans Court Rule 41(a) further provides that “[m]an-
date is when the Court’s judgment becomes final.” A Prac-
tioner’s Note to the Rules cautions that, “[b]ecause entry of
the mandate on the docket, including any notation as to the
effective date of mandate, is a ministerial act, practitioners
are cautioned to use diligence when calculating time peri-
ods so as to ensure timely filings.” U.S. Vet. App. R. 41,
Practitioner’s Note.
Here, Mr. Roseberry’s EAJA application was due No-
vember 12, 2021, 30 days after the Veterans Court’s Octo-
ber 12, 2021 issuance of its mandate.1 Mr. Roseberry’s
counsel, however, mistakenly relied on the date the man-
date was entered on the docket, October 15, 2021, and mis-
calculated the deadline. As a result, Mr. Roseberry filed
his application on November 13, 2021, one day late. When
the Secretary of Veterans Affairs moved to dismiss the ap-
plication as untimely, Mr. Roseberry’s counsel stated that
she “does not dispute that the attorney fee application was
filed . . . more than 30 days after mandate” and, accord-
ingly, she could not “dispute the current legal landscape
that affords the Secretary the avenue to move to dismiss on
this basis.” App’x 17.2
The Veterans Court found that the application was un-
timely and that equitable tolling was unwarranted, given
the absence of “extraordinary circumstances.” The court
granted the motion to dismiss. Mr. Roseberry then timely
appealed to us.
1 While November 12, 2021 is actually 31 days after Oc-
tober 12, 2021, the 30th day fell on a federal holiday (Vet-
eran’s Day).
2 “App’x” refers to the Corrected Appendix filed by
Mr. Roseberry. ECF No. 23.
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ROSEBERRY v. COLLINS 4
II
The only issue presented by this appeal is whether the
statutory deadline to file an EAJA application in the Vet-
erans Court, which indisputably can be equitably tolled
upon proof of “extraordinary circumstances,” can be tolled
by proof of something other than “extraordinary circum-
stances.” We agree with the Veterans Court that it cannot.
“Cases that require the application of the appropriate
standard [of equitable tolling] to undisputed facts[] are
properly questions of law reviewed de novo by this court.”
Dobyns v. United States, 101 F.4th 839, 842 (Fed. Cir.
2024) (alterations in original; internal quotation marks
and citation omitted). Generally, “[a] litigant seeking eq-
uitable tolling bears the burden of establishing,” among
other requirements, “that some extraordinary circum-
stance stood in his way and prevented timely filing.” Sneed
v. McDonald, 819 F.3d 1347, 1351 (Fed. Cir. 2016). Our
caselaw makes clear that “[a]bsent a reference to ‘excusa-
ble neglect’ in a statute or rule,” the Supreme Court’s deci-
sion in Irwin v. Department of Veterans Affairs, 498 U.S.
89, 96 (1990), and its progeny “control the question of
whether equitable tolling applies.” Nelson v. Nicholson,
489 F.3d 1380, 1385 (Fed. Cir. 2007). Irwin and our cases
construing it confirm that “the principles of equitable toll-
ing . . . do not extend to what is at best a garden variety
claim of excusable neglect.” 498 U.S. at 96.
The relevant EAJA provision, 28 U.S.C.
§ 2412(d)(1)(B), which is applicable to appeals in the Vet-
erans Court, provides in pertinent part:
A party seeking an award of fees and other ex-
penses shall, within thirty days of final judgment
in the action, submit to the court an application for
fees and other expenses which shows that the party
is a prevailing party and is eligible to receive an
award under this subsection, and the amount
sought, including an itemized statement from any
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ROSEBERRY v. COLLINS 5
attorney or expert witness representing or appear-
ing in behalf of the party stating the actual time
expended and the rate at which fees and other ex-
penses were computed.
Plainly, there is no reference to “excusable neglect” in
§ 2412(d).
Nor is there any reference to “excusable neglect” in Vet-
erans Court Rule 39(a), which states in relevant part:
An application pursuant to 28 U.S.C. § 2412(d), the
Equal Access to Justice Act (EAJA), for award of
attorney fees and/or other expenses shall be sub-
mitted for filing with the Clerk not later than
30 days after the Court’s judgment becomes fi-
nal. See Rule 36 (Entry of Judgment) and Rule 41
(Mandate). The time for filing an application under
this subsection is set by statute.
While Veterans Court Rule 4 provides that “excusable ne-
glect” may be a basis for finding an otherwise untimely no-
tice of appeal timely, that provision does not apply to EAJA
applications, as is stated expressly in Rule 26(b). See U.S.
Vet. App. R. 4(a)(3)(B)(i); U.S. Vet. App. R. 26(b) (“[T]he
Court may not extend the time for filing a Notice of Appeal
except as provided by Rule 4, or an application for attorney
fees and expenses.”).
Given the absence of any reference to “excusable ne-
glect” in either § 2412(d) or Rule 39(a), it follows that, con-
sistent with Irwin, equitable tolling of the deadline for
filing an EAJA application in the Veterans Court is avail-
able only upon proof of “extraordinary circumstances.”
Mr. Roseberry concedes that his late filing was due to gar-
den variety or ordinary neglect. Additionally, at oral argu-
ment, Mr. Roseberry effectively withdrew his prior
contention that the Veterans Court erred by “refus[ing] to
consider that garden variety neglect could be an extraordi-
nary circumstance,” which (he had alleged) improperly
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ROSEBERRY v. COLLINS 6
created a “categorical ban.” Op. Br. 31. As counsel agreed
at oral argument, “if extraordinary circumstances is the
correct standard, [it] is logical that, ordinary negligence, by
definition, cannot be an extraordinary circumstance.” Oral
Arg. at 8:03-14.3 We concur with this concession. See Hol-
land v. Florida, 560 U.S. 631, 651-52 (2010) (“[A] garden
variety claim of excusable neglect, such as a simple miscal-
culation that leads a lawyer to miss a filing deadline, does
not warrant equitable tolling.’” (cleaned up)).
Therefore, the Veterans Court applied the proper
standard for equitable tolling in dismissing Mr. Rose-
berry’s EAJA application as untimely.
III
Mr. Roseberry made other arguments in his briefs,
each of which we have considered, and all of which were
forfeited, raise issues outside of our jurisdiction, or lack
merit. Thus, for the reasons stated above, we affirm the
Veterans Court.
AFFIRMED
COSTS
Each side to bear its own costs.
3 Available at https://oralarguments.cafc.uscourts.gov/
default.aspx?fl=23-2288_03062025.mp3.
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