Davis v. BrownDavis v. Brown
- Reporters:
- , ,
- Before:
- Steinberg
The appellant, veteran Desmond C. Davis, has moved the Court to vacate its November 25, 1992, order dismissing as untimely filed under
I. Procedural History in the Court
This case has a rather complicated procedural history regarding whether the Court has jurisdiction over the appeal.
On September 1, 1992, 125 days after the date of the April 29, 1992, BVA decision, the Court received the veteran’s NOA filed pro se. On November 25, 1992, the Court dismissed his appeal for lack of jurisdiction because of an untimely filed NOA and the unavailability of equitable doctrines under Dudley v. Derwinski, 2 Vet.App. 602, 603 (1992) (en banc). On March 23, 1993, Thomas W. Stoever, Jr., Esquire, filed a motion to *299appear pro bono on behalf of the appellant. On June 18, 1998, following motions for extensions of time granted by the Court, the appellant timely filed a motion for reconsideration of the November 25,1992, order. On November 3, 1993, following motions for extensions of time granted by the Court, the Secretary filed a responsive pleading. On December 7, 1993, the appellant filed a reply brief. The Court denied the motion for reconsideration on January 24, 1994. On February 7, 1994, the appellant moved for en banc review of the denial of reconsideration. A three-judge panel, sua sponte, referred the appellant’s motion to the en banc Court. On March 18, 1994, the en banc Court, in reliance on Dudley, supra, denied the motion for review, and judgment was entered.
On March 25,1994, the appellant moved to vacate the March 18, 1994, judgment based on the Court’s February 4, 1994, decision in Trammell v. Brown, 6 Vet.App. 181 (1994). On April 26,1994, the Court en banc recalled the March 18, 1994, judgment, and referred the case to this panel for disposition of the jurisdictional issue. On June 9, 1994, the Secretary filed a Response (Response) to the Motion to Vacate Judgment, and on July 1, 1994, the appellant filed a reply (Reply) to the Response. Oral argument was held on October 25, 1994. On October 28, 1994, the appellant filed a supplemental submission, including certain case citations requested at oral argument and five documents which the parties agreed should be part of the record before the Court, The Court accepts and will file those five documents as a preliminary record.
The Court notes that the BVA and the national office of the Disabled American Veterans (DAV) are apparently located in the same building in Washington, D.C. (This was asserted in the Response at page 3 and conceded by both parties at oral argument.) According to the Response, the BVA delivered a copy of its April 29, 1992, decision to the national office of the DAV by interoffice mail on “the day of the decision”. Response at 3. According to the Declaration of Robert Ashworth (Ashworth Declaration), the BVA also on some date sent a copy of the decision to the veteran’s local Department of Veterans Affairs (VA) regional office (RO) — at St. Petersburg, Florida — by the “flat mail” process described in Trammell, 6 Vet.App. at 183, and the VARO then delivered the copy of the decision to the local office of the DAV on some date. Ashworth Declaration at 2. The Ashworth Declaration describes the following process as to the local DAV office: BVA personnel placed a copy of the BVA decision in a mailbag in the building in which the BVA is located in Washington, D.C., and that mailbag was picked up daily by a VA contractor which delivered it to the VA Central Office (CO) mail room where VA mail contractors sorted it into a slot for the particular RO; two or three times per week the mail for a particular RO was placed in one envelope, addressed to the RO, weighed and metered, and placed in a VACO pickup area for pickup by the U.S. Postal Service at the VACO building; delivery to a veteran’s representative with an office eo-located with an RO was apparently accomplished internal]y at the RO. Ashworth Declaration at 3. As to delivery to the national BVA-appeals DAV office, the Ashworth Declaration asserts as follows: A BVA legal clerk date-stamped a copy of the decision and deposited it in the BVA administrative control unit, where Board personnel collected the copies daily and forwarded them in standard government internal mail envelopes to veterans service organizations co-located in the BVA headquarters building. Ashworth Declaration at 2.
II. Analysis
This case requires the Court to refine further its opinion in Trammell, supra, regarding the meaning of the term “mail” in
After reaching a decision in a case, the Board shall promptly mail a copy of its written decision to the claimant and the claimant’s authorized representative (if any) at the last known address of the *300claimant and at the last known address of such representative (if any).
In Ashley v. Derwinski, 2 Vet.App. 307 (1992), the Court held that there is a “presumption of regularity” that “the Secretary and the BVA properly discharged their official duties by mailing a copy of a BVA decision to the claimant and the claimant’s representative, if any, on the date the decision is issued”, and that that presumption can be overcome only by “clear evidence to the contrary”. Id. at 308-09. The Court held:
[WJhere an appellant submits clear evidence to the effect that the BVA’s ‘.‘regular” mailing practices are not regular or that they were not followed, the Secretary is no longer entitled to the benefit of the presumption and the burden shifts to the Secretary to establish that the BVA decision was mailed to the veteran and the veteran’s representative, if any, as required by38 U.S.C. § 7104(e) .
Id. at 309; cf. Chute v. Derwinski, 1 Vet.App. 352 (1991) (per curiam order) (presumption of regularity was rebutted where veteran claimed not to have received BVA decision and had made inquiries to VA after decision was mailed and VA did not show evidence of mailing of decision).
In Trammell, 6 Vet.App. at 183, the Court held that the presumption of regularity in mailing was rebutted where the Board had used an internal/private contractor/U.S. Postal Service distribution procedure (“flat mail”) to send the veteran’s representative’s copy of the BVA decision to the RO for delivery to the representative. Trammell held that BVA decisions delivered by flat mail to an RO rather than “sent directly” to the appellant’s authorized representative were not properly mailed to the representative within the meaning of
A. Parties’ Contentions
1. Delivery to St. Petersburg DAV: In his March 25, 1994, motion to vacate judgment (Motion), the appellant asserts that the April 29, 1992, BVA decision was sent to the St. Petersburg RO by flat mail and then “put ... in the mail” by the RO to his representative, the St. Petersburg office of the DAV. Motion at 4. (The appellant also seemed to suggest at oral argument that the St. Peters-burg DAV office was co-located with the St. Petersburg RO.) The appellant does not deny that the St. Petersburg DAV received a copy of the decision from the RO, but asserts that “we have no way of determining the date of receipt” because the copy of the decision had “several dates on it”, including a date of May 11, 1992. Id. at 4, n. 2. The appellant argues that, pursuant to Trammell, supra, his NOA should be deemed timely filed because the BVA sent the representative’s copy of the decision to the local DAV by the “flat mail” procedure invalidated in Trammell, and that, therefore, the NOA filing period did not begin to run. The Ash-worth Declaration stated that a copy of the April 29,1992, BVA decision was sent by flat mail to the St. Petersburg RO for delivery to the St. Petersburg DAV office. See Ashworth Declaration at 2.
2. Delivery to DAV at BVA national headquarters: The Secretary, in his Response and at oral argument, urges that even if the delivery of the BVA decision to the St. Petersburg RO was not a proper delivery under Trammell the Secretary nevertheless had complied with
The appellant, on the other hand, urges that the term “authorized representative” in
The appellant supports these assertions by submitting a declaration from DAV service officer David E. McCord, stating that he began to represent the veteran in 1991; that his office is located in St. Petersburg, Florida; that he prepared a written presentation to the Board for the veteran; that the national office maintains no files on BVA decisions and initiates no contact with a veteran; and that the St. Petersburg DAV office was responsible for “communicating with the veteran regarding the significance of the BVA’s decision and advising the veteran on his/her options for further appeal”. Reply at Attachment B. Because of our holding as to the meaning of the term “mail” in
B. Meaning of “mail” in
The Secretary asserts that the term “mail” in
The term “mail” in
1. Ordinary meaning: As the U.S. Court of Appeals for the Federal Circuit most recently stated: “In determining the plain meaning of statutory language, ‘legislative purpose is expressed by the ordinary meaning of the words used’ ”. Jones (McArthur) and Karnas v. Brown, 41 F.3d 634, 638 (Fed.Cir.1994) (quoting Ardestani, supra). “Congress need not enact a dictionary each time it passes a law. That the language at issue here is not expressly defined in the [statute] does not render ambiguous the plain words used.” Jones and Karnas, 41 F.3d at 639.
Black’s Law Dictionary defines “mailed” as follows: “A letter, package, or other mailable matter is ‘mailed’ when it is properly ad*302dressed, stamped with the proper postage, and deposited in a proper place for receipt of mail”. Black’s Law Dictionary 952 (6th ed. 1990) (citing Texas Casualty Ins. Co. v. McDonald, 269 S.W.2d 456 (Tex.Civ.App.1954)); see Jones and Karnas, 41 F.3d at 638 (quoting Black’s Law Dictionary’s definitions of “case” and “appeal”). Webster’s Dictionary defines the verb “mail” as “to send by mail, as by putting into a mailbox; post”, and defines the noun “mail” as “letters, papers, packages, etc. handled, transported, and delivered by the post office”. Webster’s New World Dictionary 814 (3rd ed. 1988).
2. Analogous caselaw: The U.S. Court of Appeals for the Fifth Circuit noted that “Webster’s [New Collegiate Dictionary (1973) ] defines mail as ‘... letters ... conveyed under public authority‘” and held that “[s]ince Federal Express is not a public authority, they are not a form of ‘mail’ ” under
In a case where a city code required that notice of a lease renewal offer be sent by “mail”, the court held: “The term ‘mail’ has been defined as the whole body of matter transported by postal agents, or any letter or package forming a component part of it”. Reliance Properties, Inc. v. Cruz, 143 Misc.2d 556, 544 N.Y.S.2d 901, 901 (N.Y.App.Div.1989) (citing 72 C.J.S. Postal Service § 2). Where an insurance policy provided for cancellation “by mailing”, the court held: “The term [‘mailing’] means that the letter ‘was properly prepared for transmission in the due course of mail, and that it was placed in the custody of the officer charged with the duty of forwarding the mail’ ”. Texas Casualty Ins. Co., 269 S.W.2d at 457 (quoting Southern Engine & Boiler Works v. Vaughan, 98 Ark. 388, 135 S.W. 913, 915 (1911)).
3. Legislative history: The legislative history of
The Senate committee report on S. 11 stated:
[T]he Committee bill contains provisions relating to VA adjudication procedures that fall into three broad categories — provisions codifying certain VA adjudication procedures (some set forth in regulations and some only a matter of practice) so as to ensure claimants certain procedural protections while preserving the informality that characterizes VA procedures at present; provisions intended to promote the development of an administrative record that should enable a reviewing court to understand and evaluate the VA’s proceedings in a given case; and provisions intended to enhance the VA’s ability to carry out its mission [of] service to veterans and their dependents and survivors after judicial review has been authorized.
S.Rep. No. 418, 100th Cong., 2d Sess. 35 (1988). In its discussion of the section later enacted as
Section 105(3) of the Committee bill would require that the BVA promptly mail notice of its decision to a claimant and the claimant’s authorized representative — thus codi*303fying an existing practice of the BVA — in order to serve two purposes: First, such notice of the decision would indicate to a claimant that the BVA has taken final action on the claim and would thus enable the claimant to consider the possibility of seeking court review of an unfavorable decision; and second, the date on which the BVA complies with this statutory obligation by mailing the notice will be the date from which the 180-day period for filing an appeal ... would begin to run.
S.Rep. No. 418 at 35.
Accordingly, the VJRA was intended both to preserve existing VA procedures where possible as well as to “ensure claimants certain procedural protections” and “promote the development of an administrative record that should enable a reviewing court to understand and evaluate the VA’s proceedings in a given case”. To the extent that there is a tension between those purposes insofar as mailing of the BVA decision under
4. Conclusion: In light of the foregoing analysis of ordinary meaning, analogous caselaw, and legislative history, the Court holds that the phrase “the BVA shall promptly mail” in
C. Application of Law to the Facts
The Secretary concedes that the delivery to the local DAV office in St. Peters-burg, Florida, was accomplished through the “flat mail” process followed and invalidated in Trammell. As to that delivery and as to the delivery to the national BVA-appeals DAV office, it is undisputed that in neither instance did BVA personnel deposit a copy of the Board decision directly with the U.S. Postal Service with a cover addressed to the veteran’s representative, as, we have held and today reconfirm, is required by
The Secretary asserts that the presumption of regularity was never rebutted here because the veteran did not submit evidence of nonreceipt by the veteran’s representative. Response at 3. However, the presumption of regularity was rebutted by the clear evidence that the BVA did not itself “mail” the decision within the meaning of
In Ashley this Court also held that such a defect in mailing under
III. Conclusion
On consideration of the preliminary and supplemental records and the pleadings and oral arguments of the parties, the Court vacates its November 25, 1992, order based on the foregoing analysis (and without regard to the basis for the dismissal that was ordered therein) and holds that the appellant’s NOA was timely filed. See Trammell, Fluker, and Ashley, all supra. This case will now proceed in accordance with the Court’s usual processes before a single judge. The Secretary shall file a designation of the record within 60 days after the date of this opinion, and that record shall include the five documents accepted as a preliminary record.
The Court recognizes the invaluable contribution of the veteran’s pro bono counsel. His representation, as well as that of other attorneys representing veterans and other appellants here on a pro bono basis, adds immeasurably to the quality of representation of appellants before this Court and is highly commendable.