James v. Wilkie

• Decision Date: 07 March 2019
• Docket Number: 2018-1264
• Citation: 917 F.3d 1368
• Parties: Charles H. JAMES, Claimant-Appellant v. Robert WILKIE, Secretary of Veterans Affairs, Respondent-Appellee
• Court: U.S. Court of Appeals — Federal Circuit

917 F.3d 1368

Charles H. JAMES, Claimant-Appellant

v.Robert WILKIE, Secretary of Veterans Affairs, Respondent-Appellee

2018-1264

United States Court of Appeals, Federal Circuit.

Decided: March 7, 2019

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.

BACKGROUND ¹

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 mailing available, as his actions would have likely been sufficient to ensure timely mailing but for circumstances beyond his control." Id. (Greenberg, J., dissenting).

JURISDICTION

As an initial matter, Appellee Robert Wilkie, Secretary of Veterans Affairs ("Government"), contends that we lack jurisdiction to review the Veterans Court’s determination that equitable tolling is unwarranted. Appellee’s Br. 7; see id . at 7–12 (arguing the Veterans Court’s decision is either a factual determination or an application of law to the facts of a particular case, and that our review is therefore barred by 38 U.S.C. § 7292(d)(2) ). We disagree.

Our jurisdiction to review decisions of the Veterans Court is limited by statute. Goodman v. Shulkin , 870 F.3d 1383, 1385 (Fed. Cir. 2017) (citing 38 U.S.C. § 7292 ). We may "review and decide any challenge to the validity of any statute or regulation or any interpretation thereof ... and ... interpret constitutional and statutory provisions, to the extent presented and necessary to a decision." 38 U.S.C. § 7292(c). "[We] may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case." Id . § 7292(d)(2). As such, "we have authority to decide whether the Veterans Court applied the correct legal standard." Sneed v. Shinseki , 737 F.3d 719, 724 (Fed. Cir. 2013) (internal quotation marks, citation, and footnote omitted).

We have jurisdiction over Mr. James’s appeal from the Veterans Court’s determination that he is not entitled to equitable tolling of the filing deadline. Mr. James alleges error as a matter of law, contending the Veterans Court erred in creating a categorical ban against equitable tolling in cases involving a fallen mailbox flag, even though equitable tolling employs a case-by-case inquiry. See Appellant’s Br. 15–16; Oral. Arg. at 1:15-55, http://oralarguments.cafc.uscourts.gov/default.aspx?fl=2018-1264.mp3 (confirming the same by counsel for Mr. James). We have "consistently held" that when "the mate-rial facts are not in dispute and the adoption of a particular legal standard would dictate the outcome of the equitable tolling claim, this court has treated the question of the availability of equitable tolling as a matter of law that we are authorized by statute to address." Mapu v. Nicholson , 397 F.3d 1375, 1379 (Fed. Cir. 2005) (internal quotation marks and citation omitted). Since we are asked to review whether the Veterans Court applied the correct legal standard for equitable tolling, this issue is one of law within our jurisdiction. See Sneed , 737 F.3d at 728–29.³

The Government’s citation to our precedent in Leonard v. Gober , where we dismissed for lack of jurisdiction, is in-apposite. See Appellee’s Br. 8 (citing 223 F.3d 1374, 1376 (Fed. Cir. 2000) ). In Leonard , the Veterans Court "specifically found that [the veteran] failed to timely file her NOA due to her own neglect and that the statute of limitations could not therefore be tolled." 223 F.3d at 1375-76. We dismissed the appeal for lack of jurisdiction because it presented no issue of law, and, further, presented no contested interpretation of § 7266. See id . ; see also id. at 1375 (explaining that "[i]n order to reverse the [Veterans] [C]ourt’s decision, we would have to evaluate the facts and conclude otherwise," and therefore, "the question whether equitable tolling would ever be appropriate in the case of a late filing was not decided"). Here, as we stated previously, a question of law is presented. Accordingly, we turn to the merits of Mr. James’s equitable tolling argument.

DISCUSSION

I. Standard of Review and Legal Standard

We "review[ ] legal determinations of the Veterans Court de novo." Cushman v. Shinseki , 576 F.3d 1290, 1296 (Fed. Cir. 2009). The filing deadline of § 7266 is not jurisdictional and may be tolled where appropriate. See Henderson v. Shinseki , 562 U.S. 428, 434-36, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011). "In order to benefit from equitable tolling, ... a claimant [must] demonstrate three elements: (1) extraordinary circumstance; (2) due diligence; and (3) causation." Checo v. Shinseki , 748 F.3d 1373, 1378 (Fed. Cir. 2014) (citing Irwin v. Dep’t of Veterans Affairs , 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) ). While we have identified several circumstances under which equitable tolling is available, including when a veteran misfiled his notice of appeal at a Department of Veterans Affairs ("VA") regional office, timely-filed an incorrect form, or when a veteran suffers from mental or physical illness that prevented filing, see Sneed , 737 F.3d at 725 (internal citations omitted) (compiling cases), we have rejected the argument that equitable tolling "is limited to a small and closed set of factual patterns and that equitable tolling is precluded if...