Toomer v. McDonald
2015 U.S. App. LEXIS 6525
| Fed. Cir. | 2015Background
- Toomer, a veteran, had a Board of Veterans’ Appeals decision dated June 2, 2009, denying service connection for his back condition; VA records show the Board mailed the decision to his last known address on that date.
- Toomer contacted the VA in late July 2009 saying he had not received the decision; the VA sent a courtesy packet dated (stamped) August 4, 2009 containing a cover letter, a hand‑dated copy of the Board decision, and Form 4597 (notice of appellate rights stating the veteran has 120 days from the date shown on the first page of the decision to appeal).
- Toomer filed a notice of appeal to the Veterans Court on October 28, 2009 — beyond 120 days from June 2 but within 120 days from August 4 — and the Veterans Court dismissed as untimely; the Veterans Court initially treated the deadline as jurisdictional but later applied equitable‑tolling analysis after intervening Supreme Court precedent.
- On remand and multiple appeals, Toomer argued he rebutted the presumption that the VA properly mailed the June 2 decision, that VA communications (including Form 4597 and the August packet) were misleading, and that equitable tolling should excuse the late filing.
- The Veterans Court found Toomer failed to produce the “clear evidence” necessary to rebut the presumption of regularity and, separately, that he did not demonstrate the extraordinary circumstances required for equitable tolling; the Federal Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Toomer rebutted the presumption of regularity that the Board mailed the June 2 decision | Toomer: his July call reporting nonreceipt and receipt in August of an unsigned, hand‑dated copy are evidence rebutting the presumption | Secretary: sworn affidavit and system records show the decision was mailed June 2; Toomer’s nonreceipt and later packet do not constitute "clear evidence" | Court: Toomer failed to produce clear evidence to rebut the presumption; Veterans Court’s factual weighing not reviewable here |
| Whether VA complied with Barrett duty to develop record regarding jurisdictional/equitable‑tolling issues | Toomer: VA failed to provide full procedural documents after his FOIA request, violating Barrett and requiring remand | Secretary: FOIA compliance is for district courts; VA produced the Dispatch Manual and no other relevant documents existed for 2009 | Court: Barrett duty concerns record development before Veterans Court; VA provided applicable materials and there is no showing the record was incomplete |
| Whether the 120‑day filing period is subject to equitable tolling | Toomer: period should be tolled where VA communications misled him and he acted diligently | Secretary: Toomer cannot show extraordinary circumstances preventing timely filing; misleading by omission insufficient | Court: 120‑day period is tollable but Toomer did not demonstrate extraordinary circumstances plus diligence and causation; equitable tolling denied |
| Whether VA communications (dates, Form 4597 language, August packet) were sufficiently misleading to warrant equitable tolling | Toomer: conflicting dates and Form 4597 language reasonably misled him about the appeal deadline | Secretary: cover letter and decision show June 2 date; Form 4597 references the date on the decision’s first page, so not misleading | Court: factual finding that communications were not so confusing or misleading as to be extraordinary; such factual determinations are not subject to this court’s review |
Key Cases Cited
- Henderson v. Shinseki, 562 U.S. 428 (Sup. Ct. 2011) (holding the 120‑day filing period is nonjurisdictional and subject to equitable tolling)
- Holland v. Florida, 560 U.S. 631 (Sup. Ct. 2010) (equitable tolling requires diligence and an extraordinary circumstance that prevented timely filing)
- Pace v. DiGuglielmo, 544 U.S. 408 (Sup. Ct. 2005) (same equitable‑tolling framework)
- Lozano v. Montoya Alvarez, 134 S. Ct. 1224 (Sup. Ct. 2014) (equitable tolling pauses limitations when litigant pursued rights diligently but an extraordinary circumstance prevented timely action)
- Barrett v. Nicholson, 466 F.3d 1038 (Fed. Cir. 2006) (government must assist development of the record on equitable‑tolling/jurisdictional matters)
- Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (explaining presumption of regularity for official acts)
- Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009) (articulating presumption of regularity standard)
- Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998) (equitable tolling where veteran was misled by government statements)
- Sneed v. Shinseki, 737 F.3d 719 (Fed. Cir. 2013) (equitable tolling requires extraordinary circumstance plus diligence; not limited to closed categories)
- Checo v. Shinseki, 748 F.3d 1373 (Fed. Cir. 2014) (equitable tolling elements: extraordinary circumstance, due diligence, causation)