Rules are rules: Grieving Marine veteran gets no slack on deadlines | McClatchy Washington Bureau

Raleigh, North Carolina, resident Marion Aldridge lost his mother, sister and grandchild, all within a horrific four-month period.

Then, in a legal drama that a federal judge said Friday “puts judicial humanity to the test,” the grief-stricken former Marine missed a benefit appeals deadline. Now he’s lost again, prompting the dissenting judge to declare that two courts “fail the test” of humane generosity toward veterans.

“He explained his grief, his depression and his focus on the needs of his family,” noted Judge Pauline Newman. “He explained that his attention to the needs of others overcame important matters in his own life, including the timely filing of (his) appeal.”

But Newman, appointed by President Ronald Reagan to the U.S. Court of Appeals for the Federal Circuit, could not persuade her colleagues that Aldridge deserved another shot. In a 2-1 decision that abides strictly by the rulebook, the court declared that Aldridge’s time had run out.

Aldridge missed his 120-day legal filing deadline by more than six months, after the Board of Veterans Appeals in December 2013 rejected his request for an increased disability rating due to bad knees.

“Mr. Aldridge had failed to demonstrate that the deaths in his family themselves directly or indirectly affected the timely filing of his appeal,” Judge Alvin A. Schall wrote, in upholding the reasoning of a similarly divided U.S. Court of Appeals for Veterans Claims.

Aldridge’s pro bono appellate attorney, Natalie A. Bennett, from the firm McDermott, Will & Emery, said in an interview Friday that no decision had yet been made whether to seek a so-called en banc hearing by all the federal circuit’s active judges. A long-shot petition to the Supreme Court is a theoretical possibility, though few such petitions succeed.

“We are disappointed that the federal circuit didn’t embrace support for a flexible approach,” Bennett said, stressing that Aldridge “missed his deadline because of what his family went through.”

Aldridge, now in his early 50s, served on active duty in the Marine Corps from January 1984 to May 1992. He currently works as a clerk at a Department of Veterans Affairs facility in Durham.

Citing dual knee injuries that he attributed to his Marine Corps service, Aldridge had asked the Board of Veterans Appeals to increase his disability rating beyond 10 percent for each case of patellofemoral syndrome. The term refers to pain around the front of the knee and the kneecap.

Aldridge started off representing himself, as do many of the more-than 50,000 veterans who pursue claims appeals through the veterans’ board each year. McDermott, Will & Emery later took him on as part of the firm’s pro bono program.

The legal question centered on whether the courts should apply “equitable tolling,” which allows deadlines to be extended sometimes. A 2010 Supreme Court decision in a murder case out of Florida’s Broward County specified that the aggrieved individual must show that an “extraordinary circumstance” stood in his way and prevented on-time filing

Explaining his own delay, Aldridge contended that his family members’ deaths, including a stillborn grandchild, caused a depression so overpowering that he lost sense of time and had difficulty carrying out even routine jobs.

“The extraordinary circumstances Mr. Aldridge experienced . . . impeded him by diverting his everyday focus away from himself,” Bennett said in a legal filing.

Two judges on the U.S. Court of Appeals for Veterans Claims, while declaring themselves sympathetic to Aldridge’s claims, concluded in a 2-1 ruling that they were “unconvinced that Mr. Aldridge’s depression rendered him incapable of handling his affairs.”

The two-judge majority on the federal circuit did not offer similar words of sympathy Friday, sticking instead to their conclusion that the lower court “did not apply an incorrect legal standard.”

“What happened to the recognition that the veterans benefit system is designed to award entitlements to a special class of citizens, those who risked harm to serve and defend their country?” Newman wrote in her dissent.