712 F. App'x 1001
Fed. Cir.2018Background
- The Board of Veterans’ Appeals (Board) issued a decision denying Mary Sterling’s claim on Sept. 22, 2015, and mailed it to her Dixy Drive address; the mailing was returned as undeliverable.
- In October 2015 Sterling contacted the Board about her case and confirmed the Dixy Drive address; on Nov. 17, 2015 the Board updated her address to 4th Street and remailed the decision.
- Sterling received the remailed decision on Nov. 20, 2015 and filed a Notice of Appeal pro se; the Veterans Court received it Jan. 21, 2016 — 121 days after the Board’s mailing, one day late under 38 U.S.C. § 7266.
- The Veterans Court dismissed the appeal as untimely, applying the presumption of regularity from Davis v. Principi because the Board had no other “possible and plausible” address to send the decision in September 2015.
- Sterling argued the presumption was rebutted because she did not receive the initial mailing; she also asserted she had been homeless for years and had actively contacted the Board and updated her address.
- The Federal Circuit held the presumption-of-regularity analysis was proper but vacated and remanded because the Veterans Court failed to consider whether equitable tolling might excuse the one-day delay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the presumption of regularity is rebutted when a claimant does not receive a Board mailing | Sterling: rebuttal shown by nonreceipt of the mailing | Secretary/Board: presumption stands absent a possible/plausible alternate address | Court: Veterans Court correctly applied Davis; nonreceipt alone is insufficient if Board lacked other addresses |
| Whether the Veterans Court should have considered equitable tolling for a one-day late NOA | Sterling: circumstances (homelessness, contacted Board, updated address) justify tolling | Veterans Court/Secretary: relied on timeliness and presumption analysis; did not address tolling | Court: Vacated and remanded — Veterans Court erred by not considering equitable tolling |
| Standard for equitable tolling of the 120-day deadline | Sterling: equitable tolling applicable under circumstances here | Secretary: timeliness rules are strict absent extraordinary circumstances | Court: equitable tolling is available; claimant must show diligence and extraordinary circumstances; court remanded for such analysis |
| Scope of appellate review over Veterans Court’s legal determinations | Sterling: seeks review of timeliness dismissal | Secretary: supports Veterans Court’s legal application of Davis | Court: exercises de novo review over legal determinations and directs remand for factual application of equitable-tolling standard |
Key Cases Cited
- Davis v. Principi, 17 Vet. App. 29 (2003) (presumption of regularity applies to Board mailings; rebuttable if returned undeliverable and other plausible addresses existed)
- Checo v. Shinseki, 748 F.3d 1373 (Fed. Cir. 2014) (appellate review of Veterans Court legal determinations is de novo)
- Sneed v. Shinseki, 737 F.3d 719 (Fed. Cir. 2013) (120-day deadline subject to equitable tolling; claimant must show diligence and extraordinary circumstances)
- Toomer v. McDonald, 783 F.3d 1229 (Fed. Cir. 2015) (equitable-tolling inquiry is flexible and case-specific)
- Barrett v. Principi, 363 F.3d 1316 (Fed. Cir. 2004) (equitable tolling due to incapacitation)
- Arbas v. Nicholson, 403 F.3d 1379 (Fed. Cir. 2005) (equitable tolling for mental or physical incapacity)
- Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002) (equitable tolling where appellant misfiled notice)
- Bailey v. Principi, 351 F.3d 1382 (Fed. Cir. 2003) (equitable tolling where appellant used incorrect form)