Jaquay v. Principi, No. 98-7051.

CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit
Writing for the CourtLinn
Citation304 F.3d 1276
Docket NumberNo. 98-7051.
Decision Date16 September 2002
PartiesOliver L. JAQUAY, Claimant-Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.
304 F.3d 1276
Oliver L. JAQUAY, Claimant-Appellant,
v.
Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.
No. 98-7051.
United States Court of Appeals, Federal Circuit.
September 16, 2002.

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Thomas W. Stoever, Jr., Arnold & Porter, of Denver, Colorado, argued for claimant-appellant. Of counsel was Keri L. Howe.

Steven J. Abelson, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Stuart E. Schiffer, Acting Assistant Attorney General; David M. Cohen, Director; Kathryn A. Bleecker, Assistant Director; and Ho Sik Shin, Trial Attorney. Of counsel on the brief were Donald E. Zeglin, Deputy Assistant General Counsel; and David R. McLenachen, Attorney, Department of Veterans Affairs, of Washington, DC. Of counsel was John P. Sholar, Trial Attorney.

Michael P. Horan, Attorney, Paralyzed Veterans of America, of Washington, DC, for amicus curiae Paralyzed Veterans of America. With him on the brief was Morgain M. Sprague.

Robert V. Chisholm, Chisholm Chisholm & Kilpatrick, of Providence, Rhode Island, for amicus curiae National Organization of Veterans' Advocates, Inc.

Martin D. Minsker, Baker Botts L.L.P., of Washington, DC, for amicus curiae Vietnam Veterans of America, Inc.

Before MAYER, Chief Judge, NEWMAN, MICHEL, LOURIE, CLEVENGER, RADER, SCHALL, BRYSON, GAJARSA, LINN, DYK, and PROST, Circuit Judges.

LINN, Circuit Judge.


Oliver L. Jaquay seeks review of the final decision of the Court of Appeals for Veterans Claims ("Veterans Court")1 holding that it lacked jurisdiction to hear an appeal from the Board of Veterans' Appeals ("BVA") because the notice of appeal was not timely filed nor otherwise tolled. See Jaquay v. West, 11 Vet.App. 67 (1998). Because Jaquay's misfiled request for reconsideration with the VA regional office ("VARO") from which his claim originated equitably tolled the judicial appeal period for filing his notice of appeal to the Veterans Court, the Veterans Court's dismissal is reversed, and the case is remanded.

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BACKGROUND

Jaquay served in the United States military from February 1953 to July 1961, where he developed a service-connected hearing loss. On April 2, 1992, Jaquay applied for an increase in his service-connected benefits. The Department of Veterans Affairs New York Regional Office denied the claim in October 1992. Jaquay appealed the decision to the BVA in February 1993. On September 20, 1993, the BVA notified Jaquay of the denial of his benefits request. Along with a copy of the decision, the BVA sent Jaquay the statutorily required form entitled "Board of Veterans' Appeals Notice" ("Appeals Notice"), informing Jaquay of his right to either file a motion for reconsideration with the BVA or an appeal to the Veterans Court. Specifically, the Appeals Notice provided: "You may file a motion for reconsideration of this BVA decision at the following address: Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420." See 38 U.S.C. § 5104(a) (2000).

On December 17, 1993, Jaquay executed a motion for reconsideration and addressed it to the "Chairman of the Board of Veterans Appeals." In the motion, Jaquay sought an independent medical opinion and expressed his belief that the Department of Veterans Affairs ("VA") failed to assist him in the development of this claim. The motion concludes: "This is why I am asking the Board of Veterans Appeals for reconsideration. Please review this reconsideration carefully because I intend to go to the Court of Veterans Appeals if my request is not granted." Instead of mailing the motion to the BVA in Washington, D.C., Jaquay's non-attorney representative, Joseph E. Hill of the Division of Veterans Affairs of the State of New York, mailed it to the Department of Veterans Affairs New York Regional Office, which was the VARO where Jaquay's claims file was located. Approximately ten months later, that VARO forwarded Jaquay's motion to the BVA, where it was received on November 17, 1994. The BVA considered and denied Jaquay's motion for reconsideration on January 27, 1995.

On May 23, 1995, within 120 days of the BVA's decision on reconsideration, Jaquay filed a notice of appeal with the Veterans Court. The Secretary moved for dismissal of the action as untimely. Throughout a series of orders directing the parties to brief the issue of the Veterans Court's jurisdiction in the case, Jaquay argued that (1) the VARO should have forwarded his motion for reconsideration to the BVA and (2) any time limits should have been tolled in light of the fact that his appeal would have been timely but for the mailing being directed to the VARO rather than the BVA's office in Washington, D.C.

The Veterans Court granted the Secretary's motion to dismiss because Jaquay's notice of appeal was not timely filed within 120 days of the initial BVA decision as required by 38 U.S.C. § 7266(a)(1) nor otherwise tolled under the principles set forth in Rosler v. Derwinski, 1 Vet.App. 241, 249 (1991). In Rosler, the Veterans Court, relying on ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 107 S.Ct. 2360, 96 L.Ed.2d 222 (1987), held that if a motion for reconsideration is filed within 120 days of a final decision by the BVA, "the finality of the initial BVA decision is abated by that motion for reconsideration," and "[a] new 120-day period begins to run on the date on which the BVA mails to the claimant notice of its denial of the motion to reconsider." See Linville v. West, 165 F.3d 1382, 1385 (Fed.Cir.1999) (applying the Rosler doctrine). Jaquay argued that equitable tolling should apply because the VARO had a duty to forward the motion to the BVA, or return it to Jaquay in a timely manner with instructions on proper filing.

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In determining when Jaquay's motion for reconsideration was "filed" with the BVA, the Veterans Court applied its caselaw regarding when notices of appeal are "filed" with the Veterans Court. The Veterans Court then strictly construed Rosler and found that Jaquay's motion for reconsideration was "filed" with the BVA only upon the Board's actual receipt, and the Board's receipt came more than 120 days following the initial decision of the BVA. Id. at 71. The Veterans Court further concluded that Jaquay's filing with the VARO did not constitute constructive receipt by the Board, and the VARO had no duty to forward or return the motion. Id. at 71-73.

Jaquay timely appealed to this court, and the case was heard before a panel on September 5, 2000. On February 16, 2001, the court took the case en banc and entered a sua sponte order directing the parties to brief the following issues:

1. Do the provisions of 38 U.S.C. §§ 7721, 7722 (P.L. 92-219 & 102-83) and/or the Department of Veterans Affairs Procedure Manual, M21-1, Part III § 11.02, create a duty to timely return or forward all documents misfiled with the Department of Veterans Affairs?

2. Did the enactment of the Veterans Claims Assistance Act of 2000 (P.L. 106-475) affect any duty of the Department of Veterans Affairs established by 38 U.S.C. §§ 7721, 7722, and/or the DVA Procedure Manual, M21-1, Part III § 11.02?

3. If the answer to question one is yes, what effect does a violation of such duty have on the requirement that a veteran must exercise "due diligence" before invoking the doctrine of equitable tolling? See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990).

DISCUSSION
I

We begin with a brief overview of the veterans' benefits system. Congress has created a paternalistic veterans' benefits system to care for those who served their country in uniform. See, e.g., Hensley v. West, 212 F.3d 1255, 1262 (Fed.Cir.2000) (recognizing that the veterans' benefit system is "uniquely pro-claimant"); Nolen v. Gober, 222 F.3d 1356, 1361 (Fed.Cir.2000) (pointing out Congress' recognition of the "strongly and uniquely pro-claimant system of awarding benefits to veterans") (citations omitted). Under this system, the Secretary has the affirmative duty to assist claimants by informing veterans of the benefits available to them and assisting them in developing claims they may have. See 38 U.S.C. § 7722 (2000). Congress recently passed the Veterans Claims Assistance Act of 2000 ("VCAA"), Pub.L. No. 106-475, 114 Stat.2096, "to reaffirm and clarify the duty of the Secretary of Veterans Affairs to assist claimants for benefits under laws administered by the Secretary...."

When a veteran seeks to file an original claim for benefits or reopen an existing claim, he does so at one of the fifty-eight VAROs located throughout the country. If the veteran is unsatisfied with a VARO decision, he can, among other things, appeal the decision to the BVA. To appeal a VARO decision, the veteran is required to file a Notice of Disagreement ("NOD"). 38 C.F.R. § 20.201 (2001). Rather than sending the NOD to the BVA in Washington, D.C., the veteran must send it to the VARO from which the veteran received the adverse decision. Id. § 20.300. The VARO reviews the NOD and prepares a Statement of the Case ("SOC"), which details the VARO's position on the issues. Id. § 19.26. The filing of the SOC marks the start of the appeal. Id. § 20.200. The

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veteran then responds to the SOC by filing a Substantive Appeal on VA Form 9 or another form of correspondence containing the necessary information. Id. § 20.202. The VARO then prepares a Certification of the Appeal which certifies the case to the BVA. Id. § 19.35.

In addition to filing the Substantive Appeal with the BVA, a veteran has the right to a hearing before the BVA. Id. § 20.700. The location of the hearing is governed by 38 C.F.R. § 20.705, which provides:

A hearing on appeal before the Board of Veterans' Appeals may be held in one of the following places at the option of the appellant:

(a) In Washington, DC,...

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31 practice notes
  • Durden v. Colvin, Civ. No. 1:15–cv–0118
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • March 3, 2016
    ...412, 129 S.Ct. 1696, 1707, 173 L.Ed.2d 532 (2009) ; see also H.R. REP. 100–963, 13, 1988 U.S.C.C.A.N. 5782, 5795; Jaquay v. Principi , 304 F.3d 1276, 1280 (Fed.Cir.2002) overruled on other grounds by Henderson v. Shinseki , 589 F.3d 1201 (Fed.Cir.2009) (noting Congress' recognition of the "......
  • Martinez v. U.S., No. 99-5163.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • June 17, 2003
    ...and that others are not, depending on the language and context of the particular limitation statute at issue. See Jaquay v. Principi, 304 F.3d 1276, 1286 (Fed.Cir. 2002) (en banc) (equitable tolling available in a veterans claims case); Bailey v. West, 160 F.3d 1360, 1362-68 (Fed.Cir.1998) ......
  • Cook v. Principi, No. 00-7171.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • December 20, 2002
    ...See 38 U.S.C. § 5904(c)(1) (prohibiting fee agreements with an attorney until the Board issues a final decision); Jaquay v. Principi, 304 F.3d 1276, 1282 (Fed.Cir.2002) (en banc) ("[T]he law prohibiting lawyers from charging a fee has the practical effect of limiting the ability of veterans......
  • Gambill v. Shinseki, No. 2008-7120.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • August 13, 2009
    ...West, 155 F.3d 1356, 1362 (Fed.Cir.1998). The relationship between the veteran and the government is nonadversarial, Jaquay v. Principi, 304 F.3d 1276, 1282 (Fed.Cir. 2002) (en banc), and because of the paternalistic nature of DVA proceedings, the DVA is required "to fully and sympathetical......
  • Request a trial to view additional results
31 cases
  • Durden v. Colvin, Civ. No. 1:15–cv–0118
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • March 3, 2016
    ...412, 129 S.Ct. 1696, 1707, 173 L.Ed.2d 532 (2009) ; see also H.R. REP. 100–963, 13, 1988 U.S.C.C.A.N. 5782, 5795; Jaquay v. Principi , 304 F.3d 1276, 1280 (Fed.Cir.2002) overruled on other grounds by Henderson v. Shinseki , 589 F.3d 1201 (Fed.Cir.2009) (noting Congress' recognition of the "......
  • Martinez v. U.S., No. 99-5163.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • June 17, 2003
    ...and that others are not, depending on the language and context of the particular limitation statute at issue. See Jaquay v. Principi, 304 F.3d 1276, 1286 (Fed.Cir. 2002) (en banc) (equitable tolling available in a veterans claims case); Bailey v. West, 160 F.3d 1360, 1362-68 (Fed.Cir.1998) ......
  • Cook v. Principi, No. 00-7171.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • December 20, 2002
    ...See 38 U.S.C. § 5904(c)(1) (prohibiting fee agreements with an attorney until the Board issues a final decision); Jaquay v. Principi, 304 F.3d 1276, 1282 (Fed.Cir.2002) (en banc) ("[T]he law prohibiting lawyers from charging a fee has the practical effect of limiting the ability of veterans......
  • Gambill v. Shinseki, No. 2008-7120.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • August 13, 2009
    ...West, 155 F.3d 1356, 1362 (Fed.Cir.1998). The relationship between the veteran and the government is nonadversarial, Jaquay v. Principi, 304 F.3d 1276, 1282 (Fed.Cir. 2002) (en banc), and because of the paternalistic nature of DVA proceedings, the DVA is required "to fully and sympathetical......
  • Request a trial to view additional results

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