Bailey v. Principi, 02-7405.
| Decision Date | 15 December 2003 |
| Docket Number | No. 02-7405.,02-7405. |
| Citation | 351 F.3d 1381 |
| Parties | Edward C. BAILEY, Claimant-Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Federal Circuit |
Keri L. Howe, Arnold & Porter, of New York, NY, argued for claimant-appellant.
Thomas D. Dinackus, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him in the brief were David M. Cohen, Director; and Todd M. Hughes, Assistant Director. Of counsel on the brief was David R. McLenachen, Attorney, United States Department of Veterans Affairs, of Washington, DC. Of counsel was Donald E. Zeglin, Attorney, United States Department of Veterans Affairs, of Washington, DC.
Before NEWMAN, BRYSON, and PROST, Circuit Judges.
Edward C. Bailey appeals from a decision of the Court of Appeals for Veterans Claims ("the Veterans Court") dismissing his appeal from the Board of Veterans' Appeals on the ground that his notice of appeal was untimely. The Veterans Court held that the 120-day period for filing the notice of appeal was not equitably tolled even though the document through which he expressed his intention to appeal was filed with a regional office of the Department of Veterans Affairs ("DVA"), rather than with the Veterans Court, within the prescribed 120-day statutory period for filing a notice of appeal. Docket No. 01-1116. We hold that the filing with the regional office of a document that expresses the veteran's intention to appeal to the Veterans Court equitably tolls the running of the 120-day notice of appeal period, and we therefore reverse and remand.
The facts of this case are not in dispute. Mr. Bailey was on active duty with the United States Army from September 1965 to September 1967, when he was honorably discharged. In June of 1984, a psychiatric examination resulted in a diagnosis of service-connected post-traumatic stress disorder ("PTSD") based on Mr. Bailey's combat experience in Vietnam. The DVA granted Mr. Bailey service-connected disability status and rated his condition as 10 percent disabling. His disability rating was increased to 30 percent in 1988 and to 50 percent in 1996. On several occasions, Mr. Bailey has received inpatient treatment at DVA hospitals for schizophrenia and bipolar disorder in addition to PTSD.
In 1998, the DVA's regional office in Atlanta, Georgia, denied Mr. Bailey's claim for an increase in his disability rating above 50 percent for PTSD. The regional office also denied his separate claim for service-connected hepatitis C. Mr. Bailey appealed the regional office's decisions to the Board of Veterans' Appeals. In the proceedings before the Board, Mr. Bailey was assisted by the Georgia Department of Veterans Services ("GDVS"). The Board of Veterans' Appeals denied Mr. Bailey's appeal on both claims on September 18, 2000.
On December 28, 2000, 101 days after the Board denied his appeal, Mr. Bailey completed a document identified as "Form 9 Appeal to the Board of Veterans' Appeals." Although Form 9 is the form for noting an appeal to the Board of Veterans' Appeals, it is undisputed that Mr. Bailey intended that document to serve as his notice of appeal to the Veterans Court. Mr. Bailey prepared the Form 9 on his own without the assistance of a service representative because the GDVS, which had been assisting Mr. Bailey with his claim up to that point, does not provide assistance to veterans with their claims beyond the Board of Veterans' Appeals.
On the day that he completed his Form 9, Mr. Bailey took it to the GDVS where a representative of that organization accepted it and agreed to forward it to the appropriate location. The GDVS employee forwarded the document to the DVA's Atlanta regional office, where it was received on January 3, 2001, 107 days after the Board's decision.
After having heard nothing about his appeal for nearly six months, Mr. Bailey contacted the Veterans Court in June of 2001. In his June 27, 2001, submission to the Veterans Court, Mr. Bailey restated his desire to appeal the Board's decision and attached a copy of the Form 9 dated December 28, 2000.
Later investigation revealed that, although the regional office received Mr. Bailey's Form 9 from the GDVS 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 GDVS.
The Veterans Court ordered Mr. Bailey to show cause why his appeal should not be dismissed for lack of jurisdiction because his notice of appeal was not filed with the court within 120 days after the decision of the Board, as is required by 38 U.S.C. § 7266(a). Mr. Bailey argued that in light of this court's decision in Bailey v. West, 160 F.3d 1360 (Fed.Cir.1998), the Veterans Court should apply the doctrine of equitable tolling and hold that his appeal was timely.
The Veterans Court dismissed Mr. Bailey's appeal for lack of jurisdiction. The court held that equitable tolling did not apply to Mr. Bailey's appeal because the GDVS employee who agreed to assist Mr. Bailey was not an "adversary in proceedings" and because Mr. Bailey did not exercise the due diligence necessary to invoke the doctrine of equitable tolling. In so ruling, the Veterans Court cited its decision in Jaquay v. West, 11 Vet.App. 67 (1998), for the proposition that the regional office had no duty to forward his Form 9 to the Veterans Court and that even if it had such a duty and violated it, the remedy of equitable tolling could not be invoked.
Both parties agree that the decision of the Veterans Court should be vacated in light of our opinion in Jaquay v. Principi, 304 F.3d 1276 (Fed.Cir.2002) (en banc), in which this court reversed the decision on which the Veterans Court relied in declining to find equitable tolling in this case. The parties disagree, however, as to whether this court may rule on the equitable tolling issue rather than remanding for the Veterans Court to make the ultimate decision with respect to that issue.
The statute that governs our review of decisions of the Veterans Court, 38 U.S.C. § 7292, authorizes us to address legal issues but instructs us that ordinarily we may not address the application of law to the facts of a particular case. See 38 U.S.C. § 7292(d)(2)(B) (...
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