James v. Wilkie, 030719 FEDFED, 2018-1264
|Opinion Judge:||WALLACH, CIRCUIT JUDGE.|
|Party Name:||CHARLES H. JAMES, Claimant-Appellant v. ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee|
|Attorney:||Thomas T. Carmack, Arnold & Porter Kaye Scholer LLP, Palo Alto, CA, argued for claimant-appellant. Also represented by Nathaniel Edward Castellano, Washington, DC; Thomas W. Stoever, Jr., Denver, CO. Sosun Bae, Commercial Litigation Branch, Civil Division, United States Department of Justice, Was...|
|Judge Panel:||Before Wallach, Linn, and Hughes, Circuit Judges.|
|Case Date:||March 07, 2019|
|Court:||United States Courts of Appeals, Court of Appeals for the Federal Circuit|
Appeal from the United States Court of Appeals for Veterans Claims in No. 16-1948, Judge Mary J. Schoelen, Judge Coral Wong Pietsch, Judge William S. Greenberg.
Thomas T. Carmack, Arnold & Porter Kaye Scholer LLP, Palo Alto, CA, argued for claimant-appellant. Also represented by Nathaniel Edward Castellano, Washington, DC; Thomas W. Stoever, Jr., Denver, CO.
Sosun Bae, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by Claudia Burke, Robert Edward Kirschman, Jr., Joseph H. Hunt; Lara Eilhardt, Y. Ken Lee, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.
Before Wallach, Linn, and Hughes, Circuit Judges.
WALLACH, CIRCUIT JUDGE.
Appellant Charles H. James appeals an order of the U.S. Court of Appeals for Veterans Claims ("Veterans Court"). The Veterans Court dismissed as untimely Mr. James's appeal of a Board of Veterans' Appeals ("Board") denial of (1) compensation claims for lumbar spine and cervical spine disability and (2) an increased rating claim for pseudofolliculitis barbae, finding that equitable tolling of the filing deadline was not available to Mr. James. See James v. Shulkin, 29 Vet. App. 127, 130 (2017); see also J.A. 1 (Final Judgment). Because the Veterans Court did not apply the proper legal standard, we vacate and remand for the Veterans Court to reconsider whether equitable tolling applies.
Mr. James served on active duty during the Vietnam War. See Appellant's Br. 3. Mr. James sought service-connected disability compensation for "a lumbar spine disability and cervical spine disability, as well as an increased rating claim for pseudofolliculitis barbae." James, 29 Vet. App. at 128. On January 28, 2016, the Board denied Mr. James's claims. Id.
On Friday, May 27, 2016, acting pro se, Mr. James placed his notice of appeal ("NOA") in a stamped envelope addressed to the Veterans Court in the mailbox at his residence and put the flag up for collection. Id.;
see 38 U.S.C. § 7266 (2012) (requiring that an NOA be filed with the Veterans Court "within 120 days after the date on which notice of the [Board] decision is mailed").2 Mr. and Mrs. James left town for the weekend and did not return until the evening of Monday, May 30. See J.A. 14 (excerpt from Mr. James Decl.), 21 (excerpt from Mrs. James Decl.); see also J.A. 17-18 (hotel receipts).
When Mr. James discovered the uncollected NOA still sitting in his residence mailbox upon his return home, he proceeded to deposit it that night at his local post office. James, 29 Vet. App. at 128; see J.A. 14-15. The next day, the Veterans Court received and electronically docketed Mr. James's NOA, which bore a postmark of May 31, 2016. James, 29 Vet. App. at 128.
Because May 31, 2016, is more than 120 days after the Board mailed its January 28, 2016 decision, the Veterans Court ordered Mr. James to "show cause why his appeal should not be dismissed for untimely filing." Id.;
see J.A. 8. After obtaining counsel, Mr. James filed a response to the show-cause order, arguing that the 120-day appeal window should be equitably tolled because, based upon the particular facts of his case, an errantly lowered flag on his residential mailbox constitutes an extraordinary circumstance beyond his control. See James, 29 Vet. App. at 129. As evidence of his having pre-planned a trip with his wife out of town and proof of where they stayed, Mr. James submitted two declarations, one each from himself and his wife, see J.A. 13-15 (Mr. James Decl.), 20-22 (Mrs. James Decl.), as well as copies of the hotel receipts, see J.A. 17-18. Mr. James contended, as he does here, that he did not know why his NOA was not collected and postmarked on May 27, 2016, but stated under oath in his declaration that his neighbor "said that [the neighbor] had received mail on Friday," and also observed "that some neighborhood kids had been playing in the street near [Mr. James's] house" and "might have put the flag down." J.A. 15. Mr. James's Declaration also states that the postman confirmed to Mr. James that he had made his rounds through the neighborhood after 1:00 p.m. on Friday, May 27, 2016, but he did not stop to pick up any mail at the James residence because the flag was down and he had nothing to deliver to the James residence on that Friday, Saturday, or Monday. J.A. 15.
In October 2017, a divided Veterans Court issued a decision dismissing Mr. James's appeal for the untimely filing of his NOA. James, 29 Vet. App. at 129-30. The majority determined that Mr. James had not demonstrated that equitable tolling was warranted because "a fallen mailbox flag" was not "an extraordinary circumstance beyond [Mr. James]'s control . . . but rather an ordinary hazard of last minute mailing that could have been avoided." Id. at 130. The dissent argued that equitable tolling should apply and noted that, given Mr. James's placement of his NOA in his mailbox within the 120-day timeframe, "[i]t [wa]s irrelevant that there were other methods of...
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