Lariosa v. Principi
16 Vet. App. 323
Vet. App.
2002
Check Treatment
Docket

*1 L.Ed.2d Board decision was that evidence (Fed.Cir. issued, Bailey it in 160 F.3d 1360 date that was mailed on the 1998), Mapu showing a the Court concludes Mr. absence of evidence demonstrating other than the date recorded has not met the burden of mailing date decision, it presumed on the is that an NOA was filed within 120 was, fact, mailed to both mailing Board decision of notice of the after the date representative and his Board decision. Ashley, both July 2001. See Clark and foregoing, it is On consideration in allegation mere is supra. Mapu’s Mr. ORDERED presumption sufficient rebut appeal is DISMISSED is and this copies properly of the Board decision were jurisdiction. for lack of See, e.g., mailed. Mindenhall 13, 2002. Dated: June (1994) (holding that alone, nonreceipt, standing is statement of BY THE COURT: type of “clear evidence GREENE, Judge P. JR. /s/WILLIAM presump contrary” sufficient to rebut regularity). tion of addition, above, the NOA in

In as noted delivered to the Court via

this was Rule 4 of

FedEx on November 2001. Rules of Practice and Proce the Court’s LARIOSA, Appellant, C. Coronacio dure states that an NOA shall be deemed legible post its received on the date of USPS, mark, mailing PRINCIPI, Secretary affixed Anthony J. and is properly is addressed Affairs, Appellee. Veterans mailed; receipt by “on the date of its No. 01-695. Clerk, legible if it does not bear [USPS], by the or it is postmark affixed States Court of United than delivered or sent a means other Claims. Veterans Vet.App. R. States mail.” U.S. United Sept. added). 4(a)(2) (emphasis Because this postmark, Mr. NOA does not bear USPS

Mapu not entitled to the benefit of the Rather, his NOA must be

postmark rule. actual received on the date was

deemed Mapu’s Mr.

ly the Court. is the

argument delivery FedEx purposes mailing

same as contrary to

interpreting the mailbox rule is 7266(a)(3), statute, see 38 U.S.C.

both

and this Court’s Rules. nothing

Because there is otherwise tolling permissible, Ir-

120-day appeal period is Affairs, 498 U.S. Dep’t

win v. Veterans *2 Rosinski,

Douglas Pitt- Esq., J. Shaw man, DC, Washington, Appellant. Senseman, Esq., Appel- Cristine D. lee. KRAMER, Judge,

Before Chief AWAY, FARLEY Judges. and HOLD August his motion to dismiss. On ORDER Secretary filed an addendum ar- PER CURIAM: guing Lariosa, ap- appellant, Coronado C. was not a valid NOA under the Court’s 15, 2000, Board of from a December peals rules; caselaw or the Court’s *3 (Board BVA) deci- Appeals Veterans’ 19, April not file her NOA until lant did reopen to her claim for sion that declined 10, 2001, 2001; July the Court’s the cause of the connection for service juris- dismissing this case for lack of order currently death. The issue be- veteran’s correctly diction was issued. appellant’s the fore this Court is whether 30, 2001, August single-judge In or- an (NOA) timely was filed. appeal notice of der, appeal the dismissed the for Court appellant is the widow of deceased jurisdiction. determining After lack of veteran, Raymundo Lariosa. On Janu- C. 19, 2001, NOA had not been April that the 31, 2001, the received a letter ary Court window,” 120-day the filed “within the 15, 2001, appel- from the January dated appellant’s that the Janu- Court also found addresses, bearing from the a lant. Aside 2001, 15, ary letter block, veteran’s signature the deceased ap requisite to show the intent to fails name, number, letter and claims file the a peal required the decision as is BVA consisted of two sentences: Perez v. valid NOA. See Vet. Respectfully request the Honorable (1996) (veteran’s letter to App. 452 for Veter- CVA Court [U.S. valid Court held not to constitute Office, please furnish me ans Claims] intent to because failed to show a.) following Appeal documents: the decision); BVA Calma Vet. b.) Form; non-payment Motion for the (1996) (NOA must contain a App. I Lastly, hope my of cost. herein re- review); see clear intent seek quest granted, am. (specifying also U.S. 3(c) NOA). for To the requirements content requested information The Court sent the contrary, the letter shows an intent 1, February 2001. The Court received future, file an NOA the evidenced 19, April NOA on fur request that she be 2001, 1, Secretary a May On filed the form needed to file nished with dismiss, asserting appel- motion to January Accordingly, the appeal. untimely Acting lant had filed an NOA. does not constitute a valid letter May the Clerk of the Court on jurisdiction-conferring NOA. See 38 8, 2001, appellant ordered the to show 7266(a). why cause should not be dis- (Aug. Principi, No. 01-965 at Lariosa v. jurisdiction. missed for lack of order). 2001) (single-judge July response. lant not file a On did appellant, On November granted the Clerk counsel, filed a motion having Howev- obtained motion and dismissed the or- 27, 2001, dismissal er, July reconsideration Court’s in an order dated 10, 2001, order, response a to the der and for leave to file July revoked the Clerk to his motion to dis- Secretary’s addendum correspon- the file contained noting The Court construed be construed as miss. arguably dence that could for reconsidera- timely motion as a timely copy correspon- A NOA. reconsideration, tion, and revoked Secretary who dence was served on order. The Court August to file an addendum to given was Brown, 6 to file a re- and Losh v. Vet. then ordered the cases, however, App. 87 Those Secretary’s motion and ad- sponse to the weight the dissent seeks cannot bear dendum. upon them and conclude that place we response, In her March not, letter is argue did not that her be, jurisdiction- cannot be construed to requesting forms constitut- conferring NOA. Rather, solely focusing upon ed an NOA. 3(c) Prac- of this Court’s Rules of actual NOA (the Rules) pro- and Procedure tice resident, that, argued foreign she as a she vides as follows: extraordinary diligence had acted with (c) [NOA] Content. The shall: *4 attempting to her NOA within the submit (1) 120-day filing peri- party parties taking limit that the name the time appeal; equitably also the od should be tolled. She argued diligence (2) that her not be should designate ap- the Board decision law, expected, a from; as matter of to include pealed postal control of a national service and that (3) appel- include the addresses of the Secretary’s interpretation the of 38 U.S.C. lants) any representative. and of excluding foreign government Appendix 1 in Form the of Forms is demonstrably postal agency postmarks, is suggested appeal form of An will [NOA]. statutory “inconsistent with mandate” and informality not be dismissed for policy” “frustrates the that [NOA]. implement. appellant urges to sought appel R. While the 3(c). Congressional that the intent in im- clear 15, 2001, letter, January lant’s does contain posing a “mailbox rule” was for all required some of the information Rule lants, location, regardless geographic to 3(c), by simply it its terms is a clerical placed footing regarding on the same necessary request for the forms to file an filing. appellant suggests NOA appeal at some time in the future. The reject Secretary’s statutory the Court the appellant’s expressed “hope” is that her or, alternative, construction the stat- i.e., request granted”, “herein be that the

ute itself because it denies the added.) (Emphasis forms be sent to her. equal protection guaranteed of the law as requisite The letter does contain the by the Fifth Amendment of the United appeal designation of “the Board decision States Constitution. R. ed from.” See U.S. see 3(c); Perez, it

also Nor does I. appeal to show the intent to the BVA subsequent required evidenced decision as is of a valid NOA. See As (veteran’s at 455-56 letter submission the NOA received id. Court 19, 2002, it on did held not to constitute valid NOA because January not consider her letter to failed to show intent to BVA deci NOA; sion); Brown, supra (holding jurisdiction-conferring be a nor Calma v. contain a intent to argument does she advance that now. that NOA must clear review). Nevertheless, contrary, will seek To the one we address issue appellant’s request for expresses because the dissent the view can infer from the only might appeal; that she file an January letter should be forms NOA, purporting nothing “treated” as an to find there is support mainly in Calma v. lant intended that the Vet. which what our will be received on date of

letter initiate an is deemed envelope in jurisprudence requires. postmark on which legi- if NOA was mailed such is Losh, did, supra, In ble). 4(a) of the Court’s Rules reads states, apply a “liberal rule of con dissent that an'NOA shall be deemed received that an struction” hold NOA indicated date of BVA’s denial (1) legible postmark, of its date applicable reconsideration “was to both affixed the United States Postal Ser- motion for denial reconsideration vice ... on cover which the No- Losh, 6 underlying decision.” Vet. mailing posted, properly tice is if the However, at 90. before the Court mailed; addressed to the Court and is construction, apply can the rule of liberal or, receipt by date of its and, something must there construe Clerk, a legible post- does not bear Losh, nothing unlike the instant case offers mark the United States Post- affixed to construe in letter. Service, al or it is delivered or sent January 15, To hold mail. means other than United States require constitutes an us not create can to construe but to and this we VetApp. 4(a)(1), add- (emphasis *5 Accordingly, not do. we hold that ed). letter does not constitute argues The appellant that jurisdiction-conferring a See 38 valid NOA. 120-day filing equitably should deadline be 7266(a). § U.S.C. because acted with extraordi tolled she nary diligence attempting in to submit

II. in timely a manner. The seminal by the Turning to the NOA received West, equitable tolling Bailey case on is v. on (Fed.Cir.1998). 160 F.3d 1360 This Court arguments, lant’s of ultimate burden interpreted Bailey to equitable has allow establishing jurisdiction ap with the rests tolling appellant when the has mis “been G.M.A.C., v. pellant. See McNutt 298 U.S. or induced conduct ‘into allow led VA (1936); 178, 56 S.Ct. 80 L.Ed. 1135 ” ing filing pass.’ deadline Chastain Derwinski, Bethea (2000). West, (1992). “In order to obtain review [this is, effect; “There must cause and that [BVA], of a of a Court] final decision appellant relied detri must have to his person adversely affected such decision (or something ment on VA did should file with the within [an NOA] shall do).” Id. See [done] have but did is after the date which notice Bailey, (noting 160 F.3d at 1365 vet 7266(a). § Leon mailed.” accepted advice eran had and relied VA ard advice allow and was misled “into VetApp. R. 4. has Congress see also U.S. filing pass”). There is no ing deadline to postmark post a rule to a adopted as case that VA misled or assertion mark affixed the United Postal States 7266(c) filing into her NOA (USPS). induced § Service See U.S.C. deadline, 120-day and residence (d), after redesignated by subsections recog (b)(3) foreign country in a has never been (b)(4), section respectively, equitable tolling as a for the nized basis and Bene Veterans Education filing deadline. Congressionally-imposed Expansion fits Act of Pub.L. No. Accordingly, the Court concludes (provid Stat. NOA, no in this for the properly if to the there is basis record ing addressed (A) tolling 120-day appeal period man- receipt by On the date of 7266(a). § dated 38 U.S.C. if the notice is delivered. (B) On the date of the United States urges next postmark Postal Service stamped on the reject interpretation that 38 U.S.C. cover which the posted, notice is postmarks .§ 7266 is limited to by the properly notice is addressed to the USPS, or, alternative, reject Court and is mailed. itself, statute Equal violation of the (4) For a notice of mailed to the Protection Clause of the 14th amendment Court to be deemed to un- be received to the U.S. Constitution. the intent Where (3)(B) paragraph particular der on a particular question on a date, the United States Postal Service clear, give courts “must effect to the un postmark on the cover in which the no- ambiguously expressed intent of Con posted tice is legible. must be gress.” U.S.A., Chevron Inc. v. Natural Court shall legibility determine the Council, 837, 842-43, Res. 467 U.S. Def. such and the Court’s de- 104 S.Ct. To termination legibility as to shall final intent, determine Congress’ the traditional subject by any and not to review other statutory tools of construction are em Court. ployed, beginning with the text of stat 7266(3), added). 38 U.S.C. (emphasis ute itself. See id. at 843 n. The statutory language is unambiguous: 2778; Gonzales, see also United States v. the words “United States Postal Service 520 U.S. 137 L.Ed.2d postmark” in plain text of the statute (1997) (“Our analysis begins, as al judicial leaves little room for interpreta text.”). ways, statutory with the A statute *6 Indeed, tion. it is difficult to imagine an construed, if possible, give at all effect interpretation of section 7266 that would meaning to all its terms. See Lowe v. otherwise completely without SEC, 181, 53, 472 U.S. n. 207-08 105 S.Ct. reading the words “United States Postal 86 L.Ed.2d 130 Montclair v. postmark” Service out of the statute. The Ramsdell, 2 U.S. S.Ct. Rules, caselaw, Court’s and its dictate that (1883) (“It 27 L.Ed. 431 duty is the postmark date will be deemed the date effect, give possible, court to every receipt only of when “affixed the United statute....”) clause and word of a Only Vet.App. States Postal Service.” See U.S. plain where a statute’s meaning leads to an 4(a); Lanao v. Congress absurd result that clearly never (1995) order) (NOA (per curiam bearing could have intended is “plain meaning Philippine postmark not entitled to statu rule” abandoned for a appli review the rule). tory Although unnecessary, mailbox legislative history statutory cable con in view of the substance of Derwinski, struction. See Gardner v. argument, plain the Court notes that the (1991), 587-88 sub nom. aff'd text of the statute is also consistent with (Fed.Cir.1993), Gardner v. 5 F.3d 1456 legislative history. Contrary to the 'd, 513 U.S. 115 S.Ct. aff appellant’s assertion that is not a “[t]here (1994). word in legislative history to suggest pertinent part of the 38 U.S.C. Congress disregard intended to § 7266 reads: postmarks postal of official service for nations, 10) [An shall eign NOA] be deemed to be ...” (Response at both the Court as follows: the floor debate and the Senate Committee v. R.R. Ret. Bd. pose. United States “only legible state Report expressly Fritz, 101 S.Ct. 449 U.S. would postmarks Postal Service Cong. L.Ed.2d 368 S15,007 Rec. See sufficient.” 1994) (statement of Sen. (daily ed. Oct. post limit the Congress’ decision S.Rep. No. Rockefeller, manager); floor is not mark rule to added). (emphasis 6-7 at is famil arbitrary or irrational. argument would adopt To post its and deemed iar with the USPS meaning- text plain render the statute’s method to determine mark a reliable legislative less, contrary to the would be for Con mailing. It is reasonable date of very “absurd create the history, and would postmarks be foreign to include gress not statutory construction the rules of result” to be famil expected cause could to avoid. designed are over, with, no control and would have iar affix how other countries vagaries ar equal protection their reliability of postmarks or the their stated fails. As gument likewise many just one of systems. This is postal (1998), West, Vet.App. Reeves examples of a rational basis possible protection analyzing equal an “[w]hen chal equal protection survive claim, first determine ‘must “plausible reasons” lenge. there are When justification the classifica what burden limitation, such a Congress to enact meet, looking must thereby tion created actually was or not such basis whether classification to the nature of the by Congress in some articulated expressly ” Reeves, 11 affected.’ interests individual fashion, scrutiny under the this Court’s Giancaterino (quoting at 258 Fritz, “is at an end.” rational basis test , (1995) (quoting Vet.App. 555 Brown 453. Based 449 U.S. County, 415 Hosp. Maricopa Mem’l concludes analysis, the Court the above L.Ed.2d the statute a rational basis for that there is case, (1974))). there is In the instant See the statute constitutional. and finds there is no classi suspect class no because Admin., F.2d Quiban v. Veterans also alienage; race or predicated fication (D.C.Cir.1991) rational ba (applying right alleged there a fundamental nor is protection chal rejecting equal sis test Hahn, 505 Nordlinger v. involved. *7 107(a), provid § which lenge to 38 U.S.C. 2326, 1 120 L.Ed.2d 112 S.Ct. U.S. organized that certain service ed Brown, (1992); 9 398 v. Robinson military forces of the Government Brown, (1996); 4 265 Latham Philippines, while of the Commonwealth (1993). allege or appellant Nor does in the service were such forces was motivated proof submit of the United States Armed Forces purpose creating discriminatory by any military have been active deemed to not be Arlington See Vill. the limitation. any law of the United purposes of for the Corp., Dev. 429 Metro. Hous. Heights v. F.2d 514 States); 999 Talon v. 555, 450 252, 50 L.Ed.2d 1028, denied, U.S. (Fed.Cir.1993), 510 cert. (1977). proper (1993); stan Consequently, 643, L.Ed.2d 601 126 test, “rational basis” Reeves, review is the dard of supra; Florentino (1995). consti the statute withstands under which Vet.App. equal protection scrutiny on

tutional III. “patently ar the statute is unless grounds was received NOA reasonably and not bitrary and irrational” Because 2001. pur- the Court congressional any proper related postmark, 2-3; NOA does not bear a Respond see generally Appellant’s postmark rule of section 7266 does not Response March to the Secre- thus, apply; tary’s NOA is deemed to be Motion to Dismiss. actually received on the date it was re- 7266(a), § Pursuant to 38 U.S.C. in or- VetApp. ceived the Court. U.S. R. der for a claimant to obtain review of 4(a)(2). nothing There is otherwise in this (Board Board of Veterans’ appeal tolling of the 120- BVA) decision this that decision day appeal period appropriate. would be must final person adversely Dep’t Affairs, See Irwin v. Veterans affected that decision timely must file a S.Ct. West, NOA Bailey with the Court. See (1990); Bailey, supra. Because the (Fed.Cir.1998) (en 160 F.3d lant’s NOA was received banc). To timely have been filed under 38 days more than 120 after the Board deci- § U.S.C. 7266 and Rule of this Court’s sion being appealed, the untimely NOA is (Rules), Rules of Practice and Procedure jurisdiction and the Court is without generally must have been re-

review this (or, in circumstances, ceived certain Upon foregoing, consideration of the it is received) deemed so by the Court within ORDERED that the after notice of the underlying and this is DISMISSED final BVA decision was mailed. See 38 jurisdiction. for lack of 7266(a); West, § U.S.C. Cintron v. 13 Vet. But see Irwin v. KRAMER, Judge, Chief dissenting: Dep’t Affairs, Veterans 498 U.S. I agree majority’s analysis with the with S.Ct. L.Ed.2d 435 respect statutory interpretation of Evans v. 12 Vet.App. rule under 38 (citing Bailey, 160 F.3d at and other

Notwithstanding, believe that the Court cases regarding equitable tolling of NOA- should not circumstances). reach that issue filing period because the under certain pro 3(c) then se Further, requires that an NOA letter that was received include the name party taking (January letter), (and and his or her address which majority addresses and con- representative, any) address of a cludes is not a valid Notice of Appeal that th» NOA designate the BVA decision (NOA), VetApp. jurisdiction- should be treated as a being appo«^u. U.S. 3(c). conferring NOA. In regard, although Traditionally, in determining whether a it appears that pro NOA, an earlier se has filed valid pleading may before the Court have raised applied Court has a liberal rule of con *8 argument the January the Brown, 2001 letter struction. See Calma v. 9 Vet. is a valid NOA but does not raise it in App. her Losh v. 6 Vet. (1993) (“Court most current pleading, further App. believe traditionally has obligation Court has an to adopted exam- a liberal rule of construction toas jurisdiction ine its inception from the NOA”); of what constitutes a valid U.S. Vet. App. (“Clerk the parties’ and consider all of 45(j) the the shall [of Court] pertinent pleadings before the Court. liberally construe the they apply rules as Appellant’s themselves”). November appellants Motion for representing Moreover, Calma, Reconsideration of the Court’s Order Dis- held that Court missing Appeal and For [Her] Leave to “an NOA not need contain a literal state- 120-day judicial-appeal period. appeal- the being decision is within that a BVA ment Court, explicitly all but one of intent to That letter satisfies long as the ed to the 3(c). requirements docu- content from the NOA seek review clear Court However, although does not whole and the circumstances ment as a Calma, explicitly ap decision designate the BVA supra; its the Court.” filing with from, pealed it does include the 455- Vet.App. Perez cf. Calma, 9 (1996) (Court claims file number. See Vet. hold “that VA prepared not Davis, 371 (citing at 16 Foman v. the addressed to communication to a claim benefits would referring VA (1962), proposition requirements as to a BVA decision within

be an NOA liberally 7266(a)]”). procedure of rules of should be meaning the of [§ and mere construed technicalities should Here, sent the the BVA on mer prevent court’s consideration its decision on December notice of its); Montgomery, also Becker v. see notice a attached to that BVA rights that contained appellate notice of in no (“[Ijmperfections L.Ed.2d 983 following the information: fatal an should not be where ticing must be filed with NOA] A[n ap doubt about who is genuine no exists mailing from the date of within ap judgment, from what to which pealing, the of the notice of decision.... BVA’s court.”). pellate the may information about You obtain Moreover, whether arguable even it is [NOA], procedure the form the 2001 letter content' of the your the you may file with [NOA] which the intent reflected alone fee, matters filing the and other Calma, the content of appeal, supra, under directly by the Court’s [R]ules covered and the circumstances surround the letter the Court. from inescapable con filing support the ing its Lariosa, 99-19184, at Coronacio[] C. BVA to seek review of clusion that intent 2000). (Dec. 15, majority points As December BVA decision is letter, out, Calma, 15; Losh, at clear. See aha, “[a]ppeal inter an requested, lant 90; Derwinski, Chadwick Moreover, Ante at 325. the Janu [f]orm.” Although ary included the statement 2001 letter by the appellate rights used BVA notice ...” request “I hope my herein statutory re complies sufficiently with address, name, her her and it included 5104(a), of 38 see quirements (the number, her vet claims file husband’s 1468, 1472-74 Cummings v. 136 F.3d Id.; eran’s) name, see signature. and her form, (Fed.Cir.1998), language 19, 2002, Re generally Appellant’s March above, that a claimant quoted suggests to Dis sponse to the Motion and then an form must first obtain 1, 2001, the miss, February 1. On Exhibit in order to that form with the Court file requested Court sent to Thus, January 2001 perfect and, thereafter, re information filing of its given circumstances letter — ceived receipt appellant following pro se form, signed which was completed NOA *9 in of language used the notice and 2001. dated March intent to a clear rights late —demonstrates confirmed That intent is Initially, appeal. I note that the the Court on receipt letter well January 2001 completed form and the absence ation foregoing parties’ any indication that prior pleadings, ever single judge wavered as to whether Accord- ORDERED that the motion for recon- I ingly, hold the 2001 letter sideration panel is denied. It is valid, jurisdiction-conferring to be a NOA. ORDERED that the motion for a deci- Becker, Calma, Losh, supra. and all sion a panel is denied.

STEINBERG, Judge, dissenting: I grant voted to decision, panel for a and did so for two my reasons. Both reasons relate to the (Shannon) reliance on Smith v. Principi, JOHANNES, Appellant, Karlos R. (2002), in single judge’s June denial of the application for attorney reasonable fees Anthony PRINCIPI, Secretary J. expenses and Equal under the Access to Affairs, Appellee. Act, 2412(d) (EAJA).

Veterans § Justice 28 U.S.C. v. Principi, Johannes 01-634, No. No. 01-634. (June 2002) (unpublished WL 1965252 order). First, clearly this case is distin United States Court of (Shannon) guishable from Smith where for Veterans Claims. Board, fashion, albeit in cursory a most Sept. 2002. 5103(a) § did address the new 38 U.S.C. requirements notice in enacted the Veter Evans, Judsonia, AR, Clark Esq., C. ans Claims Assistance Act of Pub.L. Appellant. (Nov. 106-475, 2000) No. 114 Stat. 2096 (VCAA), which, alia, inter amended 38 IVERS, STEINBERG, Before and (“Notice § U.S.C. to claimants of re GREENE, Judges. evidence”) quired information and and §

added 38 (“Duty U.S.C. 5103A to assist ORDER claimants”), 3(a), § VCAA 114 Stat. at there, by stating “the veteran has PER CURIAM: been requirements informed of the for an (Shannon) On June single-judge date”, or- Smith earlier effective der, the Court denied appellant’s appli- contrast, Vet.App at 76.1 In attorney cation for expenses case, fees and filed instant over two months after the pursuant to the Equal enacted, Access to Justice VCAA was the Board made no 2412(d). Act, July On pertaining notice, statement to VA notifi counsel, the appellant, through cation, filed a mo- informing fashion whatso or, tion for reconsideration Instead, the alterna- ever to the claimant. the Board tive, panel for a Upon decision. specifically consider- duty addressed “to Quartuccio Principi, See also inform claimant of which evidence VA will (2002) (holding 186-87 that section provide and of which evidence claimant is to 5103(a), VCAA, amended provide, remanding where VA failed to 3.159(b), amended, § 45620, recently Fed.Reg. so). do 29, 2001), (Aug. require VA to