Lead Opinion
KRAMER, Chief Judge, filed the opinion of the Court. KASOLD, Judge, filed a dissenting opinion.
Before the Court is the issue of whether the appellant filed a timely Notice of Appeal (NOA) from a January 18, 2002, Board of Veterans’ Appeals (Board or BVA) decision. For the reasons that follow, the Court will dismiss for lack of jurisdiction this appeal.
I. Procedural History and the Parties’ Pleadings
On June 5, 2002, the appellant filed pro se an NOA as to the January 18, 2002, BVA decision in which the Board, inter alia, denied entitlement to service connection for residuals of exposure to hallucinogenic substances, including paranoia, depression, back problems, total intolerance to stress with depression and mania, hyper-excitability, catatonia, violent tendencies, brain wave changes, and lack of equilibrium. The Court notes that it received the NOA 138 days after the date that the Board mailed notice of its decision. The Clerk of the Court (Clerk), on June 12, 2002, ordered the appellant to explain why his appeal should not be dismissed for lack of jurisdiction. The appellant filed a response in which he asserts that he believed that Mr. Alfonzo Padilla of the San Diego, California, VA Regional Office (RO) had
“attended to” the appellant’s appeal “shortly after [notice of] the BVA decision” was received and that, at that same time, the appellant had “mailed an appeal letter into [the Court] ... as [he has] a tendency to be redundant.” Appellant’s June 2002 Response (Resp.) at 1. In this response, the appellant further asserts that (1) since January 2002, he had been in contact with Mr. Padilla on numerous occasions regarding this appeal; (2) after he received a copy of the BVA decision, he visited the San Diego RO and showed the decision to Mr. Padilla, who “vowed to work on [the appellant’s] appeal from a different angle”; and (3) Mr. Padilla expressed that he would “get [the appellant’s appeal] to [the Court] in a timely fashion.” Id. at 1-2. Further, the appellant asserts that in April 2002 he telephoned Mr. Padilla in order to check on the status of the appeal; in May 2002, he again telephoned Mr. Padilla in order to check on the status of his appeal; and during the May 2002 telephone conversation, Mr. Padilla informed him that “it would take between [eight] to [nine] months before [the appellant] heard back [from the Court].” Id.
Additionally, the appellant asserts that, on June 5, 2002, he met with Mr. Padilla, who explained to the appellant that he would need to sign some papers with regard to the processing of his appeal, and that Mr. Padilla related that he never had processed an appeal to the Court in the past. Id. at 3. On that same date, the appellant asserts, Mr. Padilla requested that the appellant complete a Declaration of Financial Hardship form and an NOA and Mr. Padilla stated that he would send with the NOA a letter on the appellant’s behalf. Id. Finally, the appellant relates that he received his docket number on June 8, 2002; that Mr. Padilla “had assured [the appellant] that [his] case had been docketed all along[;] and [that Mr.
In July 2002, the appellant filed an addendum to his June 2002 response. In this addendum, the appellant states that “it is [his] position that the deadline for filing [his NOA] was tolled when [he] was repeatedly informed (including in writing ...) by a highly! ]placed VA employee that [VA] was filing a[n NOA] with the [Court] on [his] behalf.” July 8, 2002, Addendum at 1. He argues that he relied on VA to assist him in the filing of his appeal and that the Secretary should not benefit from his unclean hands. Id. Attached to this addendum is a copy of an electronic communication (e-mail) exchange, dated June 5 and 6, 2002, between the appellant and Mr. Padilla. The appellant’s June 5, 2002, email to Mr. Padilla reflects that the appellant was confirming with Mr. Padilla that “[t]hose two letters” were mailed via certified mail, return receipt requested, and the e-mail contains two U.S. Postal Service (USPS) envelope tracking numbers. July 8, 2002, Addendum, Exhibit (Ex.) 1. The Court presumes that in that e-mail the appellant was referring to the above-mentioned June 2002 NOA and Declaration of Financial Hardship form. (The Court notes that one of the USPS tracking numbers reflected in the appellant’s June 2002 e-mail corresponds to a USPS tracking number imprinted on an envelope containing a duplicate copy of the appellant’s June 5, 2002, NOA; that copy was received by the Court after it received the June 5, 2002, NOA that had been transmitted via facsimile.) In his June 6, 2002, e-mail response, Mr. Padilla stated:
The letter just has to be post[ ]marked before the 16th and that has already been done (your receipt is the post[ ]mark). Also, I have a report from the [facsimile] machine that shows that it was received by the [C]lerk at [the Court.] Whenever you’re in town[,] I’ll give you a copy[.]
Id.
On September 11, 2002, the Court received from the appellant further correspondence in which he, inter alia, reiterates his previous arguments; he attached to that correspondence (1) a copy of the June 5 and 6, 2002, e-mail exchange with Mr. Padilla, and (2) copies of telephone bills, dated from February to June 2002, reflecting numerous telephone calls to Mr. Padilla’s office telephone. September 11, 2002, Supplemental Correspondence (Corr.) at 1-3, Ex. 2, 4. Included in the correspondence is a statement of Mrs. Brenda Tavares, wife of the appellant, in which statement she essentially attests to the veracity of the appellant’s asserted version of events. Id. The United States Court of Appeals for the Federal Circuit (Federal Circuit), on September 16, 2002, issued its decision in Jaquay v. Principi, 304 F.3d 1276 (Fed.Cir.2002) (en banc).
On September 17, 2002, the Secretary filed his response with the Court. He argues that the appellant’s NOA is untimely; that there is no evidence that the appellant filed an NOA prior to the expiration of the judicial-appeal period; and that equitable tolling is not warranted because Mr. Padilla’s actions and statements did not induce the appellant into allowing the filing deadline to pass. Secretary’s Resp. at 2-4. In support of his arguments, the Secretary attached to his response a Declaration from Mr. Padilla. In his Declaration, Mr. Padilla stated that he is a Management Analyst and Community Affairs Officer at the San Diego RO. Declaration
According to Mr. Padilla’s assertions in his Declaration, the appellant, a few weeks after their January 2002 meeting, inquired about “[the Court’s] time frames” and Mr. Padilla did not provide that information to the appellant and did not “check ... to see if [the appellant’s claims] file had been requested by [the Court].” Id. Mr. Padilla further asserted that, on June 5, 2002, the appellant contacted him and he located the appellant’s claims file, which was still present at the San Diego RO. Declaration at 2. Because he thought the claims file already would have been transferred to Washington, D.C., in connection with the appeal, Mr. Padilla had “expressed [his] concern to [the appellant] and [had] asked [the appellant] if he had kept a copy of his appeal paperwork.” Id. During a later conversation that same day, the appellant had responded that the Court did not have his appeal and that he could not locate his paperwork. Id. With regard to the appellant’s June 2002 visit to the San Diego RO, Mr. Padilla asserted in his Declaration that he had assisted the appellant in completing “another set of forms to send to the [Court]” and that he had faxed to the Court the appellant’s NOA and his Declaration of Financial Hardship form. Id. Last, the Declaration reflects Mr. Padilla’s assertion that “[a]t no time did [he] tell [the appellant] that [he] would handle [the appellant’s] appeal for him” and that he had no reason to believe that the appellant did not submit his NOA to the Court in January 2002. Id. at 2-3.
In August and September 2002, the Court received from the appellant (and subsequently accepted for filing) two additional pieces of correspondence. In his September 17, 2002, correspondence, the appellant argues that he never received from the Court a response regarding a request for information on filing an appeal that he allegedly had sent to the Court in January 2002 and attributes the Court’s non-response to that request to the situations created as a result of September 11, 2001, and the subsequent anthrax-contamination scare involving the USPS. September 17, 2002, Corr. at 3. The appellant’s September 20, 2002, submission appears to be a signed and certified affidavit from Mrs. Tavares in which she essentially reiterates the appellant’s allegations. September 20, 2002, Corr. at 1-5. Subsequently, the Court stayed this matter in order for the appellant to attempt to retain counsel. Also, the Court notes that, on December 17, 2002, the Federal Circuit issued Santana-Venegas v. Principi,
In January 2003, counsel for the appellant entered her appearance and, on April 11, 2003, the appellant moved for permission to submit a supplemental response to the Court’s June 12, 2002, order. On that same date, the Court received (and subsequently accepted for filing) the appellant’s supplemental response (with attachments). In this supplement, the appellant disagrees with the assertions in Mr. Padilla’s Declaration and argues that, because of his conversations with Mr. Padilla from July 2001
In July 2003, the Secretary filed a supplemental reply in which he argued, inter alia, that the holdings in Santanar-Venegas and Jaquay, both supra, which both address the availability of equitable tolling in the veterans benefits context, are inappo-site to the instant matter. Secretary’s July 2003 Reply at 4-6. Specifically, he argues that this matter is unlike Jaquay because it does not involve the filing of a motion for BVA reconsideration and because there is no record of a defective pleading having been filed within the statutory-appeal period. Id. at 4-5. He also argues that this case “is not affected by Santanar-Venegas ” because, again, there is no record of a defective pleading having been filed within the statutory-appeal period and because “it does not appear that [the appellant] was misled or induced into allowing the filing deadline to pass.” Id. at 5. Additionally, the Secretary argues that this case is unlike Bailey (Harold) v. West,
The Federal Circuit, on December 15, 2003, issued its opinion in Bailey (Edward) v. Principi,
II. Analysis
The ultimate burden of establishing jurisdiction rests with the appellant. See McNutt v. G.M.A.C.,
In the instant appeal, the signed and date-stamped copy of the Board decision filed by the Secretary reflects that the appellant was fully advised of his appellate rights in accordance with 38 U.S.C. § 5104. See Cummings v. West,
Under certain circumstances, equitable tolling of the judicial-appeal period may be appropriate. See Irwin v. Dep’t of Veterans Affairs,
Under the first prong in Irwin, equitable tolling may apply where an appellant “has actively pursued his judicial remedies by filing a defective pleading during the statutory period.” Id. The Secretary contends that the appellant has not satisfied this Irwin prong. The Federal Circuit, in three instructive opinions, has applied this Irwin prong.
In Jaquay, the Federal Circuit concluded that, where an appellant, during the 120-day judicial — appeal period, misfiles his motion for Board reconsideration with the same RO from which his claim originated, he “ ‘exercise[s] due diligence in preserving his legal rights.’ ” Jaquay,
Subsequently, in Santana-Venegas, the Federal Circuit concluded that, where an appellant, during the 120-day judicial-appeal period, misfiles his NOA with the same RO from which his claim originated, he “ ‘satisfies the [due] diligence requirement [so as to preserve his legal rights].’ ” Santana-Venegas,
Further, under the second prong of Irwin, equitable tolling may be available where an appellant “has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.” Irwin,
In addition, the Federal Circuit recently held that, in certain circumstances, “mental illness may justify the tolling of [38 U.S.C. § ]7266(a)’s 120-day period for appeal.” Barrett,
With respect to the Secretary’s argument that Santana-Venegas and Jaguay are inapposite because the instant matter does not involve a misfiled or defective pleading, the Court agrees. Those opinions explicitly apply to instances where a claimant’s misfiled or defective pleading satisfied the first prong under Irwin, supra, of pursuing his judicial remedy. See Santana-Venegas,
With respect to equitable tolling under the second prong of Irwin, although the appellant argues that his past interactions with Mr. Padilla, as well as their communications between January and June 2002, misled the appellant into believ
Moreover, the appellant’s telephone bills dated from January to June 2002 do not reflect the substance of any conversation that he may have had with Mr. Padilla and there are no Report of Contact forms from that same time period; it does not appear that the appellant asserts that Mr. Padilla had any duty to complete Report of Contact forms. In this regard, although the VA Adjudication Procedure Manual, M21-1 (M21-1), Part III, paragraph 11.18(b), provides that “[a]ll information received by telephone from a claimant must be completely documented on ... [a] Report of Contact[ form] or the equivalent,” the Court cannot conclude that Mr. Padilla had any such duty. Even assuming that M21-1, Part III, paragraph 11.18(b), may be considered a substantive rule, see Hayes v. Brown,
Further, Mr. Padilla’s June 6, 2002, email, which may indicate his erroneous belief that June 16, 2002, was the last day of the appellant’s judicial-appeal period, was transmitted more than two weeks after the May 20, 2002, expiration of the judicial-appeal period. Thus, because the e-mail exchange occurred after the expira
The dissenting Judge, in concluding that the appellant’s statements are more credible than Mr. Padilla’s, fails to account for the above-mentioned concerns regarding the appellant’s statements. Instead, he relies on evidence of limited probative value to conclude that “the facts ... weigh significantly more in favor of [the appellant’s] recollection of events[] than they weigh in favor of Mr. Padilla’s.” Post at 142. Specifically, although the appellant may have visited Mr. Padilla and made telephone calls to his office, the Court cannot conclude that the appellant’s version of what occurred during any visit or telephone call to Mr. Padilla is more credible than Mr. Padilla’s version of events. In this regard, the Court notes that, at best, the evidence as to what occurred is in equipoise.
The equipoise standard of 38 U.S.C. § 5107(b), however, applies only to the Secretary’s, not the Court’s, determinations; the applicable standard here is the preponderance of the evidence standard under which it is the appellant’s burden to demonstrate that he was misled or induced into allowing the judicial-appeal period to expire. See 38 U.S.C. § 7266(a); McNutt and Bethea, both supra. Consequently, the Court concludes that the appellant has not met this burden nor the burden of demonstrating by a preponderance of the evidence that his NO A was timely filed. See id. Therefore, the Court lacks jurisdiction to review this appeal.
III. Conclusion
Upon consideration of the foregoing and the parties’ pleadings, this appeal is DISMISSED for lack of jurisdiction.
Dissenting Opinion
dissenting:
This case falls squarely within the equitable tolling parameters established in Bailey v. West,
According to Mr. Tavares, Mr. Padilla had been helping him with his claim since July 2001. Mr. Tavares submitted telephone records reflecting numerous calls from July 2001 through July 2002 to Mr. Padilla’s telephone number at the San Diego Regional Office. He also submitted a
Mr. Tavares states that in March 2002 he was advised by Mr. Padilla that his appeal had been filed and assigned a docket number, and that Mr. Padilla agreed to “go digging” in the file for the docket number and provide it to Mr. Tavares. Mr. Tavares further states that he continued to maintain telephone contact with Mr. Padilla over the next several months trying to get his docket number and information about his appeal; this included numerous voice messages. In a May conversation with Mr. Padilla, Mr. Tavares states that he was told that it would take 8 to 9 months before his case would be heard.
On June 5, 2002, when he was advised by Mr.. Padilla that some documents needed to be signed, Mr. Tavares and his wife undertook the 60-mile trip that same day to meet with Mr. Padilla and complete another Notice of Appeal and Declaration of Financial Hardship, which were then faxed to the Court by Mr. Padilla. Mrs. Tavares submitted an affidavit dated September 17, 2002, supporting the statements of her husband.
In contrast to Mr. Tavares’ statements, Mr. Padilla does not mention assisting Mr. Tavares as early as July 2001, implying that he first met Mr. Tavares in January 2002. While Mr. Padilla states that he told Mr. Tavares at the January meeting that he was not able to help him file his appeal, he admits to helping him do exactly that in June, although no explanation is provided as to why such assistance was permitted in June but not in January. Mr. Padilla also acknowledges talking to Mr. Tavares a few weeks after the January meeting, although he states that he told Mr. Tavares that he could neither provide nor obtain information about Court time frames; strangely, Mr. Padilla makes no mention of the numerous calls made to him by Mr. Tavares.
Without ascribing bad faith to either party, the facts, in my opinion, weigh significantly more in favor of Mr. Tavares’ recollection of events, than they weigh in favor of Mr. Padilla’s. See Stokes v. Derwinski,
Mr. Tavares’ behavior in relying on Mr. Padilla’s assistance to file his claim also is consistent with the documentation he produced and the statements he and his wife submitted to this Court, whereas Mr. Padilla’s behavior in actively filing the appeal in June 2001 is in direct contradiction to the statements that he claims to have made to Mr. Tavares and the statement that he made to this Court regarding his ability to provide assistance to Mr. Ta-vares. Mr. Padilla’s failure to address the extended contact and working relationship he had with Mr. Tavares from June 2001 through June 2002 and beyond, and his failure to address the many phone calls made to him between January and June 2002, also weigh against the accuracy of his recollection of events. In short, Mr. Padilla’s statement to this Court is inherently inconsistent with his behavior, his previous assertions, his own statement, and the documented facts.
Overall, the evidence supports a conclusion that Mr. Tavares has demonstrated by a preponderance of evidence that he was “lulled ... into accepting and relying upon the advice and aid of the government” and thereby “misled ... into allowing the filing deadline to pass.” See Bat-
For the reasons stated above, I respectfully dissent.
Notes
. The majority notes that Mr. Tavares asserted that he sent a copy of his appeal to the Court in January 2001, and further notes that the letter was never received by this Court. This seems inapposite to the issue under consideration, as lack of proof of mailing an appeal does not translate into lack of credibility of the veteran who says he mailed it. Documents get lost in the mail and even lost at this Court. See e.g., Evans v. Principi, 17 Vet.App.41, 42 (2003) (lost or misfiled document). At best, Mr. Tavares’ statement that he mailed a copy of an appeal to the Court is simply a neutral fact given the nature of the issue before the Court; i.e., whether equitable tolling is applicable in this case because Mr. Tavares was lulled by the government into letting the filing deadline pass. See Bailey,
. Although not dispositive in my opinion, Mr. Padilla did not document any of his conversations with Mr. Tavares even though apparently required to do so by the Veterans Benefits Administration's M21-1 Manual. Cf. Fugere v. Derwinski, 1 Vet.App 103, 107 (1990) (provisions in the M21-1 Manual that do not merely clarify or explain an existing rule or statute have the force of law); McCormick v. Gober, 14 Vet.App 39, 46-47 (2000) (substantive provisions in the M21-1 Manual are enforceable against the Secretary in this Court).
. Phone records submitted by Mr. Tavares show that he also called Mr. Padilla numer-ons times before and after these dates.