Lead Opinion
ORDER
On Aрril 14, 2009, more than 120 days after the November 5, 2008, Board of Veterans’ Appeals (Board) decision that denied benefits for his bilateral lower extremity peripheral neuropathy, veteran William Rickett filed pro se a Notice of Appeal (NOA) with the Court. See 38 U.S.C. § 7266(a) (NOA must be filed within 120 days of Board decision). Prior to April 14, however, and within the 120-day period to file an NOA, Mr. Rickett had mailed a letter to an office (022D) within the VA Office of General Counsel (OGC), expressing an intent to appeal to the “Courts.” Preliminary Record (PR) at 1. As further discussed below, because Mr. Rickett mailed his letter to OGC (022D) within the 120-day appeal period, his letter reflected an intent to seek review at the Court, and he promptly filed an NOA with the Court upon learning that he had misfiled, equitable tolling of the 120-day appeal period is warranted, and his appeal will be accepted.
I. BACKGROUND
On November 5, 2008, the Board mailed to Mr. Rickett its decision and a standard Notice of Appellate Rights (NAR). As reflected by a U.S. Postal Service (USPS) postmark, on January 8, 2009, Mr. Rickett mailed to the “Office of General Counsel (022D)” a document that states:
Refer to (014A4)
William C. Rickett
[Social Security Number]
This is to inform you that I wish to appeal this to the Courts
Thank you
[signed William C. Rickett]
PR at 1-3. The document reflects a VA date stamp of January 26, 2009, and at some point it was forwarded to the VA regional office (RO) in Waco, Texas, which received the document on February 19, 2009. See PR at 3. The RO stamped it “appeals” and placed it in a locked cabinet where Board decision files are held — to maintain their integrity pending possible appeal — for 150 days following a Board decision. PR at 1; see also April 26, 2012, Oral Argument Transcript at 33:30. On March 6, 2009, the 120-day period to file an appeal expired. See 38 U.S.C. § 7266(a). Upon receiving no response with regard to his appeal, on April 14, 2009, Mr. Rickett contacted the Court and recognized his error in sending his intent
At the time Mr. Rickett filed his NOA with the Court, equitable tolling of the time to file an NOA was deemed legally impermissible, and Mr. Rickett’s appeal was dismissed for lack of jurisdiction. See Rickett v. Shinseki,
Following Henderson III, this Court held in a panel decision that, “subject to revision, pursuant to the Court’s rule-making authority,” the 120-day period to file an NOA is subject to equitable tolling within the parameters established by the precedents of the Federal Circuit and this Court prior to Henderson I. See Bove v. Shinseki,
However, later Federal Circuit precedents — namely, Brandenburg v. Principi,
II. ANALYSIS
A. Caselaw Regarding Equitable Tolling in Cases of Timely Misfilings
Our analysis begins with this Court’s and the Federal Circuit’s equitable tolling caselaw as applied in varying circumstances over time. Section 7266(a) states that a claimant “shall file a notice of appeal with the Court within 120 days after the date on which notice of the decision is mailed” to the claimant. The 120-day period initially was viewed as a jurisdictional barrier to the exercise of this Court’s authority to review Board decisions. See Butler v. Derwinski,
Although Bailey (Harold) involved the untimely filing of an NO A due to the misleading conduct of an adversary (the Secretary), the Federal Circuit’s subsequent caselaw on equitable tolling primarily has addressed the other prong of equitable tolling recognized by Bailey (Harold), to wit: the timely filing of a defective pleading. The first pertinent holding is found in Jaquay v. Principi,
The appellant in Jaquay filed a motion for Board Chairman reconsideration of a Board decision within the 120-day appeal period, but he filed it with the RO that had processed his claim instead of with the Board Chairman, as required by VA regulation.
In support of its holding in Jaquay, the Federal Circuit noted that (1) the due diligence requirement for equitable tolling is more relaxed when a pro se claimant timely misfiles a pleading, (2) the veteran-friendly nature of proceedings before VA, during the “non-adversarial stage of a claim for benefits,” counseled construing due diligence in favor of the claimant, (3) the misfiling at the RO from which the claim originated showed that the claimant actively sought redress of the Secretary’s action and did not constitute a garden variety claim of excusable neglect, (4) the misfiling with the RO was the claimant’s only misstep in filing his motion for reconsideration by the Board Chairman, and (5) internal VA policies governed the forwarding or return of misdirected mail. Id. at 1287; see id. at 1288 (citing provision of the VA Adjudication Procedures Manual M21-1 that is now located at M21-1MR, pt. II, ch. 5, sec. 3).
In this context — the misfiling within the 120-day appeal period of a motion for reconsideration by the Board Chairman at the RO from which the claim originated— the Federal Circuit further noted that the postmisfiling actions by the claimant were not for consideration in the equitable tolling assessment; rather, the timely misfiling at the RO from which the claim originated satisfied, as a matter of law, the due diligence requirement for equitably tolling the time to file a motion for reconsideration by the Board Chairman for purposes
Unlike Jaquay, subsequent decisions by the Federal Circuit on equitable tolling did not involve the misfiling of an administrative motion for reconsideration by the Board Chairman and a Rosier abatement of the 120-day appeal period. Santana-Venegas v. Principi,
Following Jaquay and Santanar-Vene-gas, this Court was faced with a situation in Reed that involved a prospective appellant who mailed his NOA to “General Counsel (027)” approximately one month before the expiration of the 120-day appeal period, although (apparently as a result of mailing delays related to an anthrax scare) it was not received by the OGC until 9 days after the appeal period had expired, and was not forwarded by OGC and received by the Court for another 4 days.
Reed was not appealed, but, three days after Reed was issued, the Federal Circuit provided additional guidance on key criteria for applying equitable tolling in cases involving timely misfiled NOAs. See Bailey (Edward),
[a]s long as the veteran’s intention is clear and [VA] is put on notice of his intention to seek further review of his claim, an error in the form or in the office to which it is sent, or both, is not sufficient to render the filing ineligible for consideration under the equitable tolling doctrine.
Id. Thus, rather than the factors found significant in Reed, the Fedеral Circuit emphasized in its analysis: (1) Due diligence; (2) the prospective appellant’s intention to appeal; and (3) VA’s being put on notice of that intent to appeal. Moreover, he filed his NOA at the Court promptly after inquiring as to the status of his appeal at the Court. Bailey (Edward) v. Principi, No. 01-1116,
Shortly thereafter, the Federal Circuit in Brandenburg again instructed that “the focus [of equitable tolling analysis is] whether the veteran exercised due diligence in preserving his legal rights, and whether the veteran’s intention is clear and [VA] is put on notice of his intention to seek further review of his claim.”
In Brandenburg, a single judge decision of this Court held that equitable tolling was unwarranted under Santana-Venegas because the appellant filed his NOA at the Board, rather than the RO from which the claim originated. Id. Applying the principles enunciated in Bailey (Edward), however, the Federal Circuit found that “there is no meaningful difference between the [RO] and the [B]oard,” and held that equitable tolling “may apply when an appellant timely misfiles [an NOA] with the Board.” Id. at 1364. Of note, the Federal Circuit specifically recognized that past cases involved misfilings at the RO from which the claim originated, but further noted that “whether equitable tolling applied in each case did not hinge on that particularity.” Id. Also significant is the fact that the Federal Circuit’s decision contained no implication or charge that the three-month period between Mr. Brandenburg being notified by the RO of the proper location to file his NOA and his subsequent filing at the Court reflected a lack of due diligence in pursuing his judicial remedy.
Thereafter, in Hunt v. Nicholson, this Court recognized that the Federal Circuit, in effect, had established three criteria for equitable tolling in misfiling cases:
*218 It is clear from the law developed by the Federal Circuit that in cases involving an appellant who misfiles his NOA at a place other than this Court, three criteria must be satisfied before equitable tolling may be allowed: (1) the claimant must have exercised due diligence in pursuing his legal rights; (2) the misfiled document must reveal a clear intention by the claimant to seek further review; and (3) the misfiled document must put VA on notice of the claimant’s intention.
Read together, Santana-Venegas, Bailey (Edward), Brandenburg, and Hunt stand for the proposition that equitable tolling is predicated primarily on the due diligence of the prospective appellant as opposed to the particularity of the location at which the prospective appellant misfiles his or her NOA and that the due diligence requirement is relaxed in cases of timely misfilings by pro se, prospective appellants. Thus, to the extent that Reed stands for the proposition that equitable tolling based on a misfiled NOA applies only when the misfiling is at the RO that processed the claim or at the Board, or that timely misfilings at the OGC are not subject to equitable tolling per se, such holdings are overturned, consistent with the Federal Circuit precedents cited above. See Patterson v. McLean Credit Union,
B. The Criteria for Equitable Tolling in Cases of Timely Misfilings
The Court’s summation in Hunt of the Federal Circuit’s criteria for assessing whether equitable tolling is warranted in the case of a timely misfiling remains intact, but requires further eláboration in light of our holding today that Reed has been overtaken by Federal Circuit case-law. Moreover, although not included in Hunt’s enumerated list of criteria for equitable tolling, a timely misfiling is a necessary criterion in application of the test recognized by the Court in Hunt. Thus, the Court is required to address each of these four criteria when assessing whether equitable tolling is warranted in such a situation.
1. Timely Misfiling
Although not a focus of the above-cited Federal Circuit cases addressing equitable tolling, a necessary factual predicate in all those cases — except Jaquay, which involved an administrative motion for reconsideration by the Board Chairman — was the filing of a purported NOA at a location other than the Court within the 120-day judicial appeal period. See Brandenburg, Bailey (Edward), and Santana-Venegas, all supra (all involving a misfiling within the 120-day period); see also Hunt,
A prospective appellant must demonstrate with independent proof (i.e., evidence beyond his or her bare assertion) that the NOA was misfiled — i.e., filed at a location other than the Court — within the
Moreover, we further hold today that the rules that apply to determining whether an NOA filed in this Court is timely (i.e., date of receipt of an NOA or the date of the mailing as reflected by a USPS postmark, see 38 U.S.C. § 7266(c), or by application of the common law mailbox rule, see Rios v. Mansfield, supra) will be used to determine whether an NOA was timely misfiled at another location. In this regard, we overrule Reed’s holding that the statutory postmark rule in section 7266(c) does not apply to an NOA that was misfiled at another location. See Reed,
2. Intent To Appeal
A prospective appellant’s intent in filing a document can be discerned from the form and content of the purported NOA and the circumstances surrounding the filing of that document. See Fithian,
(1) should show the name, address, and telephone number of the person or persons making the appeal, and the appropriate [VA] claims file number; [and]
(2) shall reasonably identify the Board decision appealed from and be capable of being reasonably construed, on its face or from the surrounding circumstances, as expressing an intent to seek Court review of that decision[.]
U.S. Vet.App. R. 3(c). These requirements, however, have not been strictly construed, so that an individual’s failure to include his or her telephone number, for example, does not necessarily prove fatal. See Kouvaris,
The requirement that an NOA reflect a clear intent to appeal to the Court is particularly important because a claimant for VA benefits has several options when the Board denies the benefit sought—e.g., a motion for reconsideration by the Board Chairman, a request to reopen, or an appeal to the Court—such that the filing of the document at VA itself can connote a lack of intent to seek judicial review if the document does not reveal a clear intention by the individuаl to seek further review at the Court. See Brandenburg,
3. Notice to VA of Intent To Appeal
The purported NOA must also place the Secretary on notice of the individual’s intent to seek further review of his or her claim. See Brandenburg, Bailey (Edward), and Hunt, all supra. The Court’s consideration of this criterion, like the issue of whether an individual intended to appeal an adverse Board decision, requires a factual determination based on a liberal reading of the misfiled document, as well as consideration of the circumstances surrounding its filing. See Boone, supra.
h. The Relaxed Due Diligence Requirement
In Brandenburg, the Federal Circuit made clear that “the focus [of an equitable tolling analysis is] whether the veteran exercised due diligence in preserving his legal rights,”
a. Location of Misfiling
The Federal Circuit clearly has held that a prospective appellant exercises due diligence as a matter of law at the point in time when he or she files an NOA within the 120-day appeal period at the RO from which the claim originated or the Board. However, there is little guidance from the Federal Circuit as to when a misfiling at another location might reflect due diligence. Although familiarity with the particular location where the NOA was misfiled is not a determinative or required factor when assessing whether a misfiling is eligible for equitable tolling, see Bailey (Edward),
The Federal Circuit has not discussed what actions taken by a prospective appellant after learning that he or she misfiled an NOA at the wrong location constitute due diligence. Although the Federal Circuit noted in Jaguay that Mr. Jaquay’s actions after the misfiling were not for consideration in the equitable tolling assessment of that case, Jaguay involved (1) a misfiling — at the RO instead of the Board — of a motion for reconsideration by the Board Chairman, during the administrative and nonadversarial portion of the VA benefits adjudication process, and (2) the question whether such a misfiling would abate the finality of the Board decision for purposes of appealing to the Court per Rosier.
Within the administrative and nonadversarial portion of the VA benefits claims and appeal process, the Secretary has the duty to assist and has enacted policies with regard to forwarding misdirected mail within the Agency, such that there is no doubt that a VA RO, which adjudicates claims, has the duty to transfer a misfiled administrative motion for Board Chairman reconsideration to the proper VA office. See Jaguay,
Therefore, although a prospective appellant exercises due diligence as a matter of law at the point in time when he or she files an NOA within the 120-day appeal period at the RO from which the claim originated, the Board, or possibly other locations within VA, we believe that a prospective appellant’s actions taken after learning of the misfiling are factors in the “relaxed” due diligence assеssment. This view is not inconsistent with Santanar-Venegas and Brandenburg; those decisions specifically noted the time between the appellant learning of the misfiling and the proper filing at the Court. See Santana-Venegas,
Accordingly, we hold that the due diligence assessment, which is “relaxed” in cases of timely misfilings by pro se, prospective appellants, is based on the totality of the circumstances surrounding the misfiling and actions taken after learning of the misfiling, which culminate in the ultimate filing of an NOA with the Court— either because the Secretary forwarded a misfiled NOA to the Court, or because the prospective appellant subsequently filed an NOA with the Court. See 38 U.S.C. § 7266(a), (c); Rios, supra (common law mailbox rule applies).
Our holding today is made in the context of Federal Circuit precedents and in furtherance of our rulemaking authority. See 38 U.S.C. § 7264. As stated in Henderson III,
C. Application to Mr. Rickett’s Case
1. Timely Misfiling
There is no dispute, and the record reflects, that Mr. Rickett’s purported NOA was received by the “Office of General Counsel (022D)” on January 26, 2009, with more than 50 days remaining in the appeal period.
2. Intent To Appeal
Mr. Rickett’s purported NOA included what he believed was his VA claims file number and stated that he wanted to appeal “this to the Courts.” PR at 1. He included his full name, and the envelope in which the document was sent bore his mailing address. PR at 1, 3. Although the document was not filed at the Court, the circumstances surrounding Mr. Rickett’s submission — namely, his filing two months after an adverse Board decision and his invoking the words “appeal” and “Courts” — reflect an intent to appeal. See Boone,
Although the Secretary argues that Mr. Rickett’s letter addressed to an office within OGC, specifically 022D, reflects no clear intent to appeal to the Court, the misfiled letter specifically noted an intent to “ap
3. Notice To VA of Intent to Appeal
Mr. Rickett’s letter also put the Secretary on notice of his intention within the 120-day period to file an appeal. See Bailey (Edward),
A Relaxed Due Diligence
a. Location of Misfiling
Mr. Rickett mailed his NOA to the “Office of General Counsel (022D),” which is an address on the NAR attached to the November 5, 2008, Board decision that was provided to Mr. Rickett by the Secretary. The NAR indicates that this address is for the office within VA, Professional Staff Group II (Group II), that, inter alia, handles fee agreements between appellants and attorneys or accredited agents for representation at the Court.
This Court previously found in Bobbitt v. Principi,
b. Actions Taken After Learning of Misfiling
It is undisputed that Mr. Rickett (1) contacted the Court as to the status of his appeal approximately one month after the 120-day appeal period expired, and (2) filed a new NOA with the Court promptly upon learning his mistake in mailing his original NOA to the OGC.
III. CONCLUSION
In conclusion, we find that — under the totality of the circumstances — Mr. Rick-ett’s letter of January 8, 2009, which was misfiled with the OGC within the 120-day judicial appeal period, adequately expressed his intent to appeal his adverse Board decision and put VA on notice of that intent. We also find that Mr. Rick-ett’s prompt action in filing his NOA with the Court after learning of the misfiling constitutes “relaxed” due diligence. Thus, equitable tolling of the 120-day appeal period is warranted, and his appeal is accepted.
Accordingly, it is
ORDERED that the Secretary’s July 28, 2009, motion to dismiss the appeal is denied. It is further
ORDERED that, upon the Secretary’s filing of the Rule 10 notice, this matter is rеturned to the Clerk for further assignment to a single Judge in the normal course.
Notes
. The facts below are based on the parties’ submissions, confirmed by the preliminary record, and undisputed.
. Our concurring colleagues correctly note that Reed involved an untimely misfiling. However, the analysis in that decision was not predicated on the fact that it was untimely-
. Although the claimant submitted his NOA on a Form 9 (Substantive Appeal to the Board), it was "undisputed that Mr. Bailey intended that document to serve as his [NOA] to the Veterans Court.” Id. at 1383.
. In this decision, we decline to address and leave for another day the question whether relaxed due diligence is required for the period between a timely misfiling and learning that the NOA was misfiled in the wrong location. Although not necessary to our holding, we observe that — if relaxed due diligence were required between his timely misfiling and learning that he had misfiled — then Mr. Rickett's actions during that period would appear to have satisfied that requirement. See e.g., Brandenburg,
. Professional Staff Group II
has overall responsibility for providing advice concerning VA’s multi-billion-dollar programs of disability and death compensation and pension for Veterans and their survivors, and Federal life-insurance programs for service members and Veterans. In addition, the group is responsible for all legal advice concerning the national cemetery system (except land acquisition, which is handled by [Professional Staff Group] V) and various burial benefits administered by the Veterans Benefits Administration. The group is also responsible for reviewing pro*225 posed and final rules for all VA programs to ensure compliance with the Administrative Procedure Act, and other statutes and orders governing rulemaking.
Evaluating the U.S. Department of Veterans Affairs Office of General Counsel: Hearing Before the Subcomm. on Oversight and Investigations of the H. Comm. on Veterans’ Affairs, 111th Cong. 26 (2010) (statement of Will Gunn, General Counsel, U.S. Dep't of Veterans Affairs).
. As explained in note 5, supra, we decline to address in this decision whether relaxed due diligence was required of Mr. Rickett between his timely misfiling at the wrong location and his learning that he had misfiled.
Concurrence Opinion
with whom LANCE, Judge, joins, concurring in the result:
We concur in the result reached by the majority because Mr. Rickett’s Notice of Appeal was received by a location approved by the Federal Circuit within the 120-day appeal period and because, after he was notified of the misfiling, his Notice of Appeal was received by Court within a period of time shorter than those already deemed acceptable by the Federal Circuit. We write separately, however, to express several points of diversion from the reasoning in the majority opinion.
As explained below, the road between us forks at four locations. First, Reed v. Principi,
A. Unnecessary Use of Reed
First and foremost, because Reed concerned an untimely misfiling of a Notice of Appeal with the VA Office of the General Counsel, it is crystal clear that Reed has no bearing on the outcome of Mr. Rickett’s request for equitable tolling of his timely misfiled Notice of Appeal. In fact, the majority appears to recognize this when it states that “a timely misfiling is a necessary criterion in application of the test recognized by the Court in Hunt [v. Nicholson,
Likewise, Reed is easily distinguishable from the Federal Circuit cases on which the majority relies, because each of those cases also involved timely misfilings. Thus the majority’s use of Reed as the launching pad for its decision is improvident at. best.
B. Use of Post-Misfiling Actions to Prove Diligence
1. Misapplication of Federal Circuit Precedent
Second, in our view, the majority’s conclusion that an appellant must demonstrate postmisfiling due diligence (and during two distinct periods of time, as discussed further below) directly contradicts the position the Federal Circuit has consistently expressed in its caselaw. From the Federal Circuit cases, we think it clear that, as the Court concluded in Hunt, three things must be present before equitable tolling is warranted in cases of timely misfilings of Notices of Appeal: (1) Intent to appeal, (2) sufficient notice to VA of that intent, and (3) duе diligence in pursuing an appeal to this Court.
The majority’s repeated emphasis on the Federal Circuit’s silence regarding post-misfiling actions in Santana-Venegas, Bailey (Edward), and Brandenburg ignores the fact that no discussion of postmisfiling actions was necessary in those cases because, as the Federal Circuit repeatedly stated in those cases, the timely misfiling of a Notice of Appeal at the Board or the regional office where the claim originated satisfied the diligence requirement as a matter of law. See Bailey (Edward),
2. Creation of Distinct Periods of Required Due Diligence
As noted briefly above, the rule the majority announces today creates two distinct periods during which an appellant must demonstrate due diligence. Although the majority purportedly accepts the Federal Circuit’s repeated ruling that an appellant demonstrates due diligence as a matter of law through the timely misfiling of a Notice of Appeal (at possibly indeterminate locations, as will be discussed below), the majority holds that the appellant does so only with respect to “the point in time when he or she files a[ ] [Notice of Appeal] within the 120-day appeal period at the [regional office] from which the claim originated, the Board, or possibly other locations within VA.” Ante at 222. The majority then creates a second period (and hints at a third) during which an appellant must also demonstrate some broad concept dubbed “relaxed due diligence” — between the time the appellant discovers the misfiling and the time the appellant actually files the Notice of Appeal with the Court— and has done so without explaining the criteria by which that diligence is to be judged. See ante at 222.
3. Conceptual Agreement with Majority
The fact that we agree with the Federal Circuit that an appellant demonstrates due diligence through the timely misfiling of the purported Notice of Appeal at the regional office where the claim originated or the Board does not mean that we disagree with the concept advanced by the majority that an appellant cannot amble at his own speed toward the Court merely because he has diligently (mis)filed a Notice of Appeal. In fact, we agree with the majority that the time to file the Notice of Appeal “with the Court,” 38 U.S.C. § 7266(a) (emphasis added), after the appellant becomes aware of the misfiling is not, or ought not be, indefinite. In other words, a Notice of Appeal timely misfiled at a judicially approved location may not be “deemed received” by or “deemed filed” with the Court and thereby automatically permit the Court to consider the appeal on the merits. See 38 U.S.C. § 7266(c) (“A notice of appeal shall be deemed to be received by the Court as follows: (1) On the date of receipt by the Court, if the notice is delivered. (2) On the date of the United States Postal Service postmark stamped on the cover in which the notice is posted, if the notice is properly addressed to the Court and is mailed.”). Further, we agree with the majority that the actual jailing of thé Notice of Appeal with the Court — that is, the perfection of the appeal — within a reasonably prompt amount of time after notification of misfiling is required. See 38 U.S.C. § 7266(a).
Having said that, a review of the Federal Cirсuit cases discussed above reveals that, after receiving notice of the misfiling, each of the appellants acted reasonably promptly to file his Notice of Appeal with the Court.
As a final matter on this point, we note that the majority asserts that the “rule” it announces — presumably the totality of the circumstances test to establish “relaxed due diligence” — is based on the Court’s rulemaking authority. See ante at 222 (“Our holding today is made in the context of Federal Circuit precedents and in furtherance of our own rulemaking authority.” (emphasis added)). But because, as noted above, the “relaxed due diligence” standard is like putty — malleable to a judge’s individual view — “rule” is hardly the term we would use to describe it. Importantly, the “rule” established by the majority today will, in many cases, act as a gatekeeper to the Court. Consequently, we believe that, if a rule is to be established, it is more properly and prudently done through the amendment of Rule 4(a), which implements 38 U.S.C. § 7266(a). The Court has adopted an orderly process for doing so, which includes the Court’s self-imposed solicitation of public comment and the advice of the Rules Advisory Committee that was wisely established at the Court’s beginning for this very purposе. See 38 U.S.C. § 7264(a) (“The proceedings of the Court of Appeals for Veterans Claims shall be conducted in accordance with such rules of practice and procedure as the Court prescribes.”); 28 U.S.C. § 2071(b) (“Any rule prescribed by a court, other than the Supreme Court, ... shall be prescribed only after giving appropriate public notice and an opportunity for comment.”); In re Rules Advisory Comm.,
We are, apparently, not alone in this concern. See Baldridge v. Nicholson,
C. Application of Existing Precedent Resolves this Appeal
Third, although Mr. Rickett’s case may seem unique among the Federal Circuit cases discussed by the majority, in that he timely misfiled his Notice of Appeal at VA’s Office оf the General Counsel, the issue it presents is easily resolved by the simple application of Bailey (Edward).
In that case, the underlying Board decision was issued on September 18, 2000. On December 28, 2000, 101 days after the Board decision, Mr. Bailey completed a VA Form 9, ordinarily used for filing a Substantive Appeal to the Board from a regional office decision, that the parties agreed was intended to serve as a Notice of Appeal to the Court. Mr. Bailey took the Form 9 to his non-attorney representative at the Georgia Department of Veterans Services, a State agency, who agreed to forward it to the appropriate place. Instead of sending the Notice of Appeal to the Court, however, the representative for
Later investigation revealed that, although the regional office received Mr. Bailey’s Form 9 from the [Georgia Department of Veterans Services] on January 3, 2001, it took no action with respect to that document until October 4, 2001, when Mr. Bailey’s new representative contacted the regional office to inquire as to the whereabouts of the notice of appeal. The regional office located the date-stamped Form 9 in its “overflow” file where it had been sitting since it was received from the [Georgia Department of Veterans Services].
Bailey (Edward),
The similarities to Mr. Rickett’s case are undeniable. On November 5, 2008, the Board mailed its decision to Mr. Rickett. On January 8, 2009, Mr. Rickett mailed to VA’s Office of the General Counsel a document that the majority concludes — and we agree — was intended to serve as a Notice of Appeal. The Office of the General Counsel received Mr. Rickett’s Notice of Appeal on January 26, 2009, well before the end of the 120-day judicial appeal period. The Office of the General Counsel forwarded the document to the Waco VA regional office where Mr. Rickett’s claim originated, which received it on February 19, 2009, also prior to the expiration of the judicial appeal period. The regional office stamped the document “Appeals” and placed it in a locked cabinet where Board decision files are held for 150 days after a Board decision to maintain their integrity pending appeal to this Court. Neither the Office of the General Counsel nor the regional office advised Mr. Rickett that he had misdirected his Notice of Appeal. In April 2009, after receiving no information regarding his appeal, Mr. Rickett contacted the Court and learned that no Notice of Appeal had been received. To correct his error, he immediately mailed a Notice of Appeal to the Court and attached a copy of his letter to the Office of the General Counsel. The Notice of Appeal was received by the Court on April 14, 2009, again, no more than 13 days after Mr. Rickett learned of his misfiling.
As noted above, the Federal Circuit in Bailey (Edward) unequivocally stated that, “as a matter of law, a veteran who attempts to file a [N]otice of [A]ppeal by completing a document that is clearly intended to serve as a [N]otice of [Ajppeal and who has that document delivered to the regional office from which the veteran’s claim originated within the 120-day statutory period for appeal is entitled to invoke the doctrine of equitable tolling.” Id. at 1385 (emphasis added); see Santana-Venegas,
D. Expansion of Acceptable Locations for Timely Misfílings
Law made in a vacuum is fraught with unintended consequences. The majority ignores the Federal Circuit’s guidance on acceptable locations for the timely misfiling of a Notice of Appeal that trigger the consideration of equitable tolling:
Read together, Santana-Venegas, Bailey (Edward), Brandenburg, and Hunt stand for the proposition that equitable tolling is predicated primarily on the due diligence of the prospective appellant as opposed to the particularity of the location at which the prospective appellant misfiles his or her [Notice of Appeal]. Thus, to the extent that Reed stands for the proposition that equitable tolling based on a misfiled [Notice of Appeal] applies only when the misfiling is at the [regional office] that processed the claim or at the Board, or that timely misfílings at the [VA Office of the General Counsel] are not subject to equitable tolling per se, such holdings are overturned ....
Ante at 218. The majority effectively — and impermissibly — eliminates the limitations so far imposed by the Federal Circuit (i.e., that the Notice of Appeal be filed within VA, either at the regional office where the claim was originally filed, Santana-Venegas,
Even more troubling, in eliminating the limitations imposed by the Federal Circuit, the majority offers no guidance for Judges of the Court considering timely misfílings at “locations other than the Court” or “other VA offices,” leaving the door open to unnecessary litigation regarding what persons or entities within the vastness of VA may receive a timely misfiled Notice of Appeal.
In light of the analysis set forth above, we concur оnly in the result reached by the majority.
. To the extent that Brandenburg v. Principi conflated intent to appeal and notice to VA of
. The majority purports to "leave for another day” the question of whether due diligence
. Mr. Santana-Venegas took 21 days; Mr. Edward Bailey took fewer than 27 days; Mr. Brandenburg took 91 days.
. In fact, Mr. Rickett’s Notice of Appeal to the Court appears to have been written and sent the very day he learned of the misfiling. The cover letter attached to his Notice of Appeal, dated April 14, 2009, indicates that he received a return phone call from the Court's Public Office that day, as that letter states, "Thank you for returning my [call] today.” Notice of Appeal at 1. Although Mr. Rickett’s Notice of Appeal was date-stamped received by the Court on April 17, 2009, by operation of 38 U.S.C. § 7266(c)(b)(2), it is docketed as filed on April 14, 2009, the date of the U.S. Postal Service postmark on the envelope.
. VA employs more than 278,000 people in numerоus divisions, including the following: Compensation and Pension, Education and Training, Medical Care, Home Loan Assistance, Research, Insurance, Vocational Rehabilitation, National Cemeteries, General Administration. See http://www.va.gov/landing_ organizations.htm (last visited Jan. 16, 2013);
The VA Office of the General Counsel consists of seven professional groups dealing with such diverse legal questions as administrative claims and litigation under the Federal Tort Claims Act; legal services regarding education programs for veterans and their dependents; advice concerning programs of disability and death compensation and pension for Veterans and their survivors; and Federal life-insurance programs for servicemembers and veterans; advice in the areas of healthcare eligibility and benefits, medical administration, medical research, labor-management relations, human resources, crimes and police matters, VA-affiliated nonprofit corporations, technology transfer and ethics; equal employment opportunity law, information law, appropriations/fiscal law, and intellectual property law; Government contracts, including procurement, bid protests, and contraсt litigation; real- and personal-property law; and environmental law. See Evaluating the U.S. Department of Veterans Affairs Office of General Counsel: Hearing Before the Subcomm. on Oversight and Investigations of the H. Comm, on Veterans' Affairs, 111th Cong. (2010) (statement of Will Gunn, General Counsel, U.S. Dep’t of Veterans Affairs).
Ultimately, when an appellant does not follow instructions for properly filing a Notice of Appeal, he places a burden on the system that diverts resources from claims filed by his fellow veterans. In a sympathetic system, it is fair to require the Secretary to train employees in certain offices how to handle a misfiled Notice of Appeal. Beyond a certain point, however, large swaths of VA employees have no meaningful connection to appellate adjudication; training employees of these divisions to recognize a misfiled Notice of Appeal is unreasonable. The expenditure of resources involved in such training would far outstrip the benefit to the rare veteran who, contrary to express instruction, grossly misfiles a Notice of Appeal.
Concurrence Opinion
concurring:
Although I concur with my colleagues’ conclusion that Mr. Rickett’s NOA, misfiled at the OGC within the 120-day judicial appeal period, along with the Court’s subsequent receipt of the NOA, warrants equitable tolling,
A. Conflict With Existing Precedent
The majority now adopts an analysis for determining whether equitable tolling is appropriate, which the Federal Circuit has indicated does not apply to timely misfiled appeals to this Court. That is, although the Federal Circuit did not examine the postmisfiling activities of the veteran in Brandenburg, supra; Bailey (Edward), supra; and Santana-Venegas v. Principi,
My colleagues attempt to explain their expansion of the Federal Circuit’s holdings in Brandenburg, Bailey (Edward), and Santana-Venegas, all supra, which involved the timely misfiling of an NOA at the RO or the Board, by (1) examining the differences between a timely misfiled motion for reconsideration of a Board decision by the Board Chairman, see Jaguay, supra, and a timely misfiled NOA, and (2) assigning significance to the Federal Circuit’s silence in Brandenburg and Santana-Venegas. See ante at 222 (noting that “those cases did not contain the explicit statement of Jaguay that postmisfiling actions were not relevant”). Undoubtedly, there are several differences between a motion for Board reconsideration, an internal VA matter, and an NOA to the Court. See, e.g., Jaguay,
1. Jaquay and Santana-Venegas
In Jaguay, the Federal Circuit observed that there was a split among its sister circuits, “whether one satisfies Irwin’s diligence requirement simply by filing the right thing in the wrong place” and that the decision is “not always clear cut.”
Subsequently, in Santana-Venegas, the Federal Circuit addressed for the first time whether a veteran was entitled to equitable tolling when he misfiled an NOA at the RO from which his claim originated.
In the context of the non-adversarial manifestly pro-claimant veterans’ benefits system, and consistent with our decisions in Jaguay and Bailey [ (Harold) v. West,160 F.3d 1360 (Fed.Cir.1998) (en banc) ], misfiling a[n NOA] at the [RO] from which the claim originated shows that the claimant seeks redress before the Secretary despite the claimant’s mistaken belief as to the accuracy of the filing location and does not involve “a garden variety claim of excusable ne-gleet.” Irwin,498 U.S. at 96 ,111 S.Ct. 453 ; see also Bailey [ (Harold) ],160 F.3d at 1365 . Once a veteran takes the affirmative act of seeking redress of his or her claim through a filing with the [RO ] from which the claim originated rather than the Veterans Court, “[t]he filing of the misdirected paper itself satisfies the diligence requirement аs a matter of law.”
Id. (emphasis added) (quoting Jaguay,
Notwithstanding Santana-Venegas’s wholesale adoption of Jaguay and its determination that the diligence requirement was “ satisfie[d] ... as a matter of law,’ ” the majority improvidently limits the effect of a timely misfiling. Id. at 1298 (emphasis added) (quoting Jaguay,
2. Uncertainty and Confusion Created by the Majority’s Relaxed Due Diligence Requirement
First and foremost, my colleagues fail to provide the Court with any guidance to determine in the future whether a prospective appellant demonstrates “relaxed” due diligence. Whereas a prospective appellant previously satisfied the due diligence requirement, as a matter of law, by showing that he misfiled an NOA at the RO or the Board within the 120-day judicial appeal period, the majority creates a separate, distinct period during which a prospective appellant must demonstrate “relaxed” due diligence — after learning that an NOA was misfiled — but fails to provide any indicia of what actions — short of refiling the NOA at the Court — the prospective appellant must take to satisfy this burden. Indeed, the facts in Mr. Rickett’s case demonstrate that he filed his NOA with the Court on the same day that he learned of the misfiling.
Second, by requiring an examination of this separate, distinct period, the majority creates an additional evidentiary hurdle for the pro se prospective appellant — to prove when he first acquired knowledge that his NOA was misfiled. Presumably, this would need to be determined as part of the majority’s newly imposed “relaxed” due diligence assessment. However, they fail to articulate what standard the Court should employ to assess when a prospective appellant learned of the misfiling.
3. New Barrier to Judicial Review Does Not Accomplish Goal
The rule adopted by the majority today may serve to deny many pro se prospective appellant’s access to judicial review, where existing precedent otherwise would not have resulted in a similar bar. Nonetheless, my colleagues attempt to explain their holding by stating that “equitabl[e] tolling ... cannot be based solely on a timely misfiling at any location outside the Court, possibly followed by inaction for many years after learning of the misfiling” because “[t]o do so would subjugate the important [procedural] rule that requires filing of a timely NOA with the Court to the control of others and give little meaning to the term ‘relaxed due diligence’ and the requirement that prospective appellants diligently pursue judicial review to invoke equitable tolling.” Ante at 223 (emphasis added). If they arе concerned that we would have to consider an appeal that languished for years after a timely misfiling before an NOA reaches the Court, then their focus on the prospective appellant’s actions during the period between learning that an NOA was timely misfiled and the eventual filing at the Court does not address this concern. If their concern is to “give meaning” to the term “relaxed due diligence” their decision negates this concern. Ante 220 (stating that Santana-Venegas and Jaquay indicated that the due diligence requirement for equitable tolling is “relaxed” when a pro se prospective appellant timely misfiles a pleading). With no disrespect to my esteemed colleagues, I am perplexed by their characterization of this assessment as “relaxed,” when their decision creates at least one additional obstacle in the path of the pro se veteran’s right to judicial review and alludes to others. Moreover, it ignores the Federal Circuit’s explicit refusal in Jaquay, followed in Santana-Venegas, to get involved in the split among its sister circuits to determine whether one satisfies due diligence by “filing the right thing in the wrong place,” because “[m]isfiling cases within the veterans’ system are unlike the typical late-filing cases.” Jaquay,
Thus, to the extent that the majority suggests that it may be appropriate to examine the period between the misfiling and the prospective appellant’s learning that the NOA was misfiled, I believe that such a requirement is particularly inappropriate at a time when VA takes 866 days
B. Conclusion
Our existing precedent establishes that, as long as a prospective appellant’s intention is clear, VA is put on notice of his intention to seek further review of his claim, and the prospective appellant satisfies the due diligence requirement through the defective filing, that is the end of the matter. See Brandenburg, Bailey (Edward), and Santana-Venegas, all supra. Therefore, although I concur in the result reached by the majority, I must respectfully dissent from its holding that “the due diligence assessment, which is ‘relaxed’ in cases of timely misfilings by pro se, prospеctive appellants, is based on the totality of the circumstances surrounding the misfiling and actions taken after learning of the misfiling.” Ante at 222.
. As a result, I also agree with the majority that this Court's decision in Reed v. Principi,
. The majority asserts that their view is not inconsistent with Federal Circuit precedent by emphasizing the Federal Circuit’s failure to state that the prospective appellant's post-misfiling actions were not relevant in Brandenburg and Santana-Venegas, and alludes to an implicit finding that the appellants had demonstrated diligence after learning of the misfiling, by stating that "those decisions specifically noted die time between the appellant learning of the misfiling and the proper filing at the Court." Ante at 222. This suggestion
Moreover, although the facts in Bailey (Edward),
. My colleagues repeatedly emphasize the matters that are not decided in this decision: (1) ”[T]he Court will not now endeavor to provide an exhaustive list of factors to consider in a due diligence analysis” {ante at 220); (2) ”[W]e decline to address and leave for another day the question whether relaxed due diligence is required for the period between a timely misfiling and learning that the NOA was misfiled in the wrong location,” but observing that Mr. Rickett's actions during that period would appear to have satisfied that requirement.” {ante at 222 n. 5); (3) reiterating that “we decline to address in this decision whether relaxed due diligence was required of Mr. Rickett between his timely misfiling at the wrong location and his learning that he had misfiled” {ante at 225 n. 7 (emphasis added)). My colleagues' statement that they "decline to address” a question that was not raised by the parties and which represents a significant departure from the Federal Circuit's established precedent certainly alludes to more impending hurdles being placed in the pro se veteran’s path to judicial review.
. See 2012 Department of Veterans Affairs Performance and Accountability Report (Nov. 15, 2012); http://www.va.gov/budget/reporl/.