Alfred P. SANTORO, Appellant, v. Togo D. WEST, Jr., Secretary of Veterans Affairs, Appellee.
No. 98-2373.
United States Court of Appeals for Veterans Claims.
May 30, 2000.
Moreover, the Court notes that the appellant does not aver that she is a present apportionee. Indeed, the appellant‘s brief appears to acknowledge that she is not now an apportionee in that it suggests that her claim includes a claim for apportionment. That acknowledgment is supported by the record on appeal, which does not show the existence of any present apportionment, only prior apportionments that had been withdrawn by the appellant. R. at 56, 91. Because she is not an apportionee, the appellant has no standing to bring a claim in her own right. Assuming that the appellant can file a claim as “next friend” to the incompetent veteran on the basis that the fiduciary “fail[ed] to take needed action” (see
The Court has considered the additional arguments raised in the appellant‘s brief and finds them to be without merit.
III. CONCLUSION
After consideration of the appellant‘s briefs, the Secretary‘s brief, and a review of the record, the Court holds that the appellant has not demonstrated that the Board committed either legal or factual error which would warrant reversal or remand. The Court is also satisfied that the Board decision fulfills the “reasons or bases” requirements of
Michael P. Horan, Washington, D.C., for the appellant.
Leigh A. Bradley, General Counsel; Ron Garvin, Assistant General Counsel; Thomas A. McLaughlin; and Cristine D. Senseman, all of Washington, D.C., were on the pleadings for the appellee.
Before KRAMER, FARLEY, and STEINBERG, Judges.
STEINBERG, Judge:
Before the Court in this appeal is a jurisdictional issue of the timeliness of the appellant‘s Notice of Appeal (NOA). The Court‘s determination of this issue turns on whether the circumstances of this case support the application of equitable tolling, within the meaning of Bailey v. West, 160 F.3d 1360 (Fed.Cir.1998) (en banc), to the
On December 15, 1998, the appellant filed pro se an NOA from a May 1, 1998, decision of the Acting Chairman of the Board of Veterans’ Appeals (BVA or Board) denying reconsideration of a January 29, 1998, BVA decision. Although the Board received the appellant‘s motion for reconsideration on March 30, 1998, within 120 days after the date stamped on the BVA decision, the Court received the appellant‘s NOA more than 120 days after the date of the BVA‘s denial of his motion for reconsideration.
Accompanying the appellant‘s NOA was (1) a letter indicating that he had previously mailed, with a return receipt requested, his appeal to the “Court of Veterans Appeals, 625 Indiana Ave., NW, Washington, DC 20420“, and (2) a photocopy of a U.S. Postal Service return-receipt-request card sent to that address and signed for as received on July 27, 1998, by a handwritten notation of “Gen Counsel PA“. The appellant contends that his NOA was misdelivered to the Department of Veterans Affairs (VA) “Board of Appeals [sic] at 810 Vermont Ave” because of an incorrect zip code on the letter. He states that the U.S. Postal Service had recently advised him (although he offers no verification of such advice) that such return-receipt-requested mail should have been returned to him for an address correction, rather than delivered to an incorrect address that merely matched the zip code. In addition, the appellant argues, based on the signature on the returned-receipt card, that a person in the VA Office of General Counsel (OGC) had signed that receipt card and accepted the mailing. Based on that information, the appellant contends that that signature misled him into believing that his NOA had been received by the Court within the 120-day statutory judicial-appeal period under
On December 31, 1998, the Secretary transmitted to the Court a copy of the January 1998 BVA decision on appeal, which was accompanied by the BVA Notice of Appellate Rights (Notice) that had been sent to the appellant with that decision. The Secretary on March 12, 1999, moved to dismiss, asserting that the appellant‘s December 15, 1998, NOA was untimely filed. On March 19, 1999, the Court ordered the appellant to show cause, within 20 days, why this appeal should not be dismissed for lack of jurisdiction. On April 6, 1999, the appellant filed a response to the Court‘s order. The appellant argues that this appeal should not be dismissed because a timely NOA was mailed and subsequently received by “Gen Counsel PA” on July 27, 1998, and that any “mishandling of either delivery of the NOA by the postal service or receipt of the NOA by any other administrative office, should not preempt the good faith effort of the [a]ppellant to meet all prescribed periods.” He has submitted the original of the return-receipt-request card, addressed “Court of Veterans Appeals, 625 Indiana Ave., NW, Washington, DC 20420“, and postmarked July 27, 1998.
On May 25, 1999, a panel of this Court ordered the Secretary to file a reply to the appellant‘s December 15, 1998, letter and his response to the Secretary‘s motion to dismiss. The Secretary was “directed specifically to address the following issues: (1) Whether an OGC employee signed for receipt of the July 1998 letter; (2) if an OGC employee did in fact receive that letter, the significance of such receipt in light of the fact that on July 27 there were still more than 30 days remaining within the 120-day filing period; and (3) the significance of the delivery to VA by the U.S. Postal Service of the appellant‘s July 1998 letter in light of the time remaining within that filing period.” In his July 26, 1999, reply, the Secretary, although conceding that an OGC employee did sign for and receive the appellant‘s July 1998 letter, argues that the appellant‘s initial lack of due diligence in using the wrong zip code precludes equitable tolling.
II. Analysis
The ultimate burden of establishing jurisdiction rests with the appellant. See McNutt v. G.M.A.C., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Bethea v. Derwinski, 2 Vet.App. 252, 255 (1992). Pursuant to
A. Secretary‘s Motion to Withdraw His Motion to Dismiss
In his motion to withdraw his motion to dismiss, the Secretary proposes the application of a presumption of regularity to VA‘s actions in forwarding the appellant‘s July 1998 letter to the Court after that letter was delivered to OGC instead of the Court (VA avers that under its normal procedures, it would have delivered the misaddressed mail to the Court within the 120-day judicial-appeal period) and states that there is no “clear evidence to the contrary” to rebut that presumption because nonreceipt by the Court is not sufficiently “clear evidence to the contrary“, citing YT v. Brown, 9 Vet.App. 195, 199 (1996). Based on such an asserted unrebutted presumption of regularity, the Secretary contends that the appellant‘s NOA should be deemed to have been received within the 120-day judicial-appeal period. Mar. 7, 2000, Motion at 1-2.
However, the insufficiency of nonreceipt as “clear evidence to the contrary” works only when the statutory requirement is for VA to mail the item, such as with a copy of a BVA decision or a BVA Notice of Appellate Rights. In such an instance, the Board‘s mailing of the document is the action or process that is under scrutiny and the regularity of that mailing is presumed subject to rebuttal; that is, mailing, not receipt, is the act to be established. Where the statutory requirement is that the NOA be filed with the Court, as here, the appellant, who has the ultimate burden of establishing jurisdiction, see McNutt and Bethea, both supra, must provide evidence that the Court actually received that document within the 120-day period (or that it was legibly postmarked therein).
Where, as here, the Court has no evidence that an appellant filed an NOA with the Court within the statutory time period (see part II.B., infra), even if the VA procedures are regular in forwarding any misaddressed NOA to the Court, any such regularity would provide no basis on which to establish the Court‘s jurisdiction under the Court‘s jurisdictional statute,
B. Receipt of NOA Within Judicial-Appeal Period
This Court may not review denials of reconsideration by or on behalf of the BVA Chairman in cases where it does not already have jurisdiction by virtue of a timely appeal from a final Board decision. See Mayer v. Brown, 37 F.3d 618, 619 (Fed.Cir.1994), overruled in part by Bailey, 160 F.3d at 1368. There is an exception in those cases in which the appellant has (1) filed a motion for BVA reconsideration within 120 days after the mailing date of notice of the underlying final BVA decision and also (2) filed an NOA within 120 days after the BVA Chairman has mailed notice of a denial of the reconsideration motion. See Rosler v. Derwinski, 1 Vet.App. 241, 249 (1991); see also Linville v. West, 165 F.3d 1382, 1385-86 (Fed.Cir.1999) (by implication ratifying Rosler holding, applying liberalizing VA regulation (
In the instant case, according to the Court‘s files, the appellant‘s July 1998 letter was received by this Court only as an attachment to his December 1998 NOA. That December 1998 NOA, which “was properly addressed to the Court and mailed“, was deemed to have been received on December 15, 1998, “the date of the United States Postal Service postmark stamped on the cover in which the notice [was] posted“.
C. Equitable Tolling of the Judicial-Appeal Period
The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) relied in Bailey on Irwin v. Dep‘t of Veterans Affairs, 498 U.S. 89, 95-96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), which it explained had held that “equitable tolling is available in suits between private litigants ... ‘where the complainant has been induced or tricked by his adversary‘s misconduct into allowing the filing deadline to pass.‘” Bailey, 160 F.3d at 1364 (quoting Irwin, 498 U.S. at 96). In Bailey, the Federal Circuit held specifically that in the paternalistic veterans’ benefits context equitable tolling does not require misconduct (such as trickery); however, Bailey does require the appellant to have been misled or induced by VA conduct “into allowing the filing deadline to pass“. Bailey, 160 F.3d at 1365; see also Cintron, 13 Vet.App. at 257. In Bailey, the Federal Circuit recognized that Irwin had refused to “extend equitable tolling” in a situation that was “‘at best a garden variety claim of excusable neglect‘“. Bailey, supra (quoting Irwin, supra). This rather confusing use of “excusable” to characterize
The Secretary has provided evidence, in the form of a May 1, 1998, Notice that accompanied the BVA Acting Chairman‘s denial of BVA reconsideration, that VA properly and promptly advised the veteran of his appellate rights, as required by
As the appellant concedes, in addressing his July 1998 letter to this Court he used zip code 20420, whereas, as the BVA Notice had advised, the Court‘s correct zip code is 20004. That July 1998 letter was thus not “properly addressed to the Court” as required in order for that mailing to have preserved his appellate rights under
The Secretary concedes that an OGC employee signed the return-receipt card on July 27, 1998, and accepted that mailing. Even assuming, as the appellant contends, that that VA signature misled him into believing that his NOA had been received by the Court within the 120-day statutory period and thus that VA conduct caused him to miss that deadline and was thus a contributory cause of the late filing, what ultimately distinguishes this case from Bailey is the extent to which the appellant‘s adversary in this case, the Secretary, or his agents, undertook, or had by law or regulation, a duty to this claimant to deliver his misrouted NOA to the Court on a timely basis once it was received by the wrong VA addressee. In Bailey, the Federal Circuit suggested strongly that equitable tolling of the 120-day NOA period would be applicable where the appellant had relied on the volunteered promise of a VA claims-benefits counselor to forward the appellant‘s NOA to the Court. Bailey, 160 F.3d at 1365. Under those circumstances, the voluntary action of that VA employee towards the particular claimant there created an obligation on the part of that employee, and his principal, the Sec-
In Bailey, although a similar Notice was sent by the Board to the claimant, the voluntary undertaking by the VA benefits counselor superseded any such generalized Notice because the counselor assumed a specific obligation to the claimant to act in such a way that the claimant could reasonably have believed would result in a timely filing. No such action intervened after the Notice was sent to the claimant in the instant case so as to excuse his failure to mail the NOA in accordance with the instructions given to him by the BVA Notice. Hence, although in the instant case the Secretary received the veteran‘s July 1998 letter 30 days before the expiration of the second 120-day NOA-filing period, “even if the Court were to assume a [generalized] duty on the part of VA‘s General Counsel as an officer of the Court to forward ... to the Court [any NOA] as to which there was reason to believe that it was misdirected to the [OGC] rather than mailed to the Court,” as the Court concluded in Baisden, “failure to so forward an NOA could not toll the section 7266(a) NOA-filing period“. Baisden, supra (citing Irwin, supra).
Finally, the appellant argues, without providing supporting evidence, that the misdelivery of the July 1998 letter was not based solely on his error but that the U.S. Postal Service had recently advised him that that agency should have returned to him for an address correction the return-receipt-requested July 1998 letter, rather than have delivered it to an incorrect address that merely matched the zip code. Even assuming that the Postal Service should have caught the appellant‘s error and corrected it by returning the July 1998 letter to him, we hold that the appellant cannot circumvent the 120-day deadline by claiming that an entity other than his adversary here, the Secretary and his agents, erred in failing to correct the address defect that the appellant himself caused by his own lack of due diligence, see Irwin, supra; Bailey, 160 F.3d at 1365; see also Jones (Carlos), supra.
In light of the foregoing, the Court holds that there is nothing in this appeal that allows for equitable tolling of the 120-day statutory judicial-appeal period under Irwin and Bailey, both supra. Accordingly, the Court holds that the appellant has failed to carry his burden of establishing that his NOA was filed with the Court within 120 days after notice of the BVA‘s final decision was mailed to him or that that NOA was timely filed under the toll-
III. Conclusion
Upon consideration of the foregoing analysis, the record on appeal, and the submissions of the parties, the Court dismisses as moot the Secretary‘s March 7, 2000, motion to withdraw his March 12, 1999, motion to dismiss and dismisses this appeal for lack of jurisdiction.
APPEAL DISMISSED.