Mapu v. Nicholson, 04-7088.

• Decision Date: 15 February 2005
• Docket Number: No. 04-7088.,04-7088.
• Citation: 397 F.3d 1375
• Parties: John MAPU, Jr. Claimant-Appellant, v. R. James NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

397 F.3d 1375

John MAPU, Jr. Claimant-Appellant, v. R. James NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee.

No. 04-7088.

United States Court of Appeals, Federal Circuit.

February 15, 2005.

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Courtenay C. Brinckerhoff, Foley & Lardner, LLP, of Washington, DC, argued for claimant-appellant. With her on the brief was George E. Quillin.

Christian J. Moran, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; and Mark A. Melnick, Assistant Director. Of counsel on the brief were Michael J. Timinski, Deputy Assistant General Counsel, and James T. Dehn, Attorney, United States Department of Veterans Affairs, of Washington, DC.

Before RADER, Circuit Judge, ARCHER, Senior Circuit Judge, and BRYSON, Circuit Judge.

BRYSON, Circuit Judge.

This case arises from a missed filing deadline. Appellant John Mapu, Jr., is a United States Army veteran. He alleges that he sustained an injury during his service. He sought veterans' benefits for the injury, and when his request was denied, he appealed to the Board of Veterans' Appeals. The Board upheld the denial of benefits on July 31, 2001. The Board's opinion included a notice informing Mr. Mapu that if he wanted to appeal the decision, he had to file a notice of appeal with the Court of Appeals for Veterans Claims ("the Veterans Court") in Washington, D.C., within 120 days of that decision.

Acting pro se, Mr. Mapu went to a United States Post Office to mail his notice on November 28, 2001, which was the 120th day after the Board's decision. At that time, mail service to Washington, D.C., was disrupted due to the anthrax crisis. A customer service supervisor and a manager at the Post Office told him that the Postal Service was not providing Overnight Express service to Washington, D.C. There is no suggestion that the Postal Service was not providing regular mail service to Washington, D.C. However, because Mr. Mapu wanted overnight delivery, the Postal Service representatives suggested that if he wanted to have his package delivered overnight, he should use a private carrier service. Mr. Mapu sent the notice by FedEx overnight delivery service. The Veterans Court received the notice the next day, which was 121 days after the Board's decision.

In a single-judge order, the Veterans Court dismissed Mr. Mapu's appeal for lack of jurisdiction because the notice of appeal was not received within 120 days of the Board's decision. Because Mr. Mapu had not mailed his notice of appeal within the 120-day period, the court ruled that he was not entitled to the benefit of the "postmark rule" of 38 U.S.C. § 7266, which provides that a notice of appeal sent to the court through the Postal Service and having a legible postmark is deemed to have been filed with the Veterans Court on the date of the postmark. The court rejected Mr. Mapu's argument that the use of FedEx overnight delivery service should be equivalent to the use of the Postal Service for purposes of determining the filing date. The court also rejected Mr. Mapu's argument that the 120-day appeal period should be equitably tolled.

A three-judge panel of the Veterans Court affirmed the decision that Mr. Mapu's appeal was untimely and that he was ineligible for equitable tolling of the filing deadline. Mr. Mapu appealed that decision to this court, and we remanded the appeal to the Veterans Court for further review in light of our decisions in Jaquay v. Principi, 304 F.3d 1276 (Fed.Cir.2002) (en banc), and Santana-Venegas v. Principi, 314 F.3d 1293 (Fed.Cir.2002). On remand, the Veterans Court found that Jaquay and Santana-Venegas were inapplicable to Mr. Mapu's case and again concluded that Mr. Mapu's appeal was untimely. Mr. Mapu appeals that decision.

I

As a preliminary matter, Mr. Mapu argues that his notice of appeal was not untimely within the meaning of 38 U.S.C. § 7266. Subsection (a) of section 7266 states that in order to obtain Veterans Court review of a decision by the Board of Veterans' Appeals, "a person ... shall file a notice of appeal with the Court within 120 days." Subsection (b) allows a person to file that notice of appeal "by delivering or mailing the notice to the Court." Mr. Mapu contends that the phrase "delivering or mailing" encompasses the act of depositing his notice of appeal with FedEx for delivery. Because he deposited his notice with FedEx within 120 days of the Board decision, Mr. Mapu argues that he fulfilled the requirements of section 7266 regardless of when the Veterans Court received the notice.

Mr. Mapu's construction of the term "delivering" is belied by subsections (c) and (d) of section 7266. Section 7266(c) states that a notice of appeal shall be deemed to be received by the Veterans Court "[o]n the date of receipt by the Court, if the notice is delivered." If the notice is mailed, section 7266(c) states that the notice is deemed to have been received by the Veterans Court on the date of its postmark. Section 7266(d) elaborates on the postmark rule, stating the requirements and procedures used to determine whether a postmark is sufficient for a notice of appeal to be considered filed. Under Mr. Mapu's broad interpretation of section 7266(b), a veteran would meet the filing deadline the instant the notice of appeal was deposited with a common carrier. It would be irrelevant in Mr. Mapu's view when the Veterans Court actually received the notice, which would make subsections (c) and (d) meaningless. As we discuss below, Congress added subsections (c) and (d) in an effort to liberalize the time requirement for filing a notice of appeal. That legislation would have been unnecessary if sections 7266(a) and (b) already treated filing as complete when the notice of appeal was deposited with the Postal Service or a private courier service. Given the structure of section 7266 and its legislative history, we decline to interpret subsections (a) and (b) in a way that would read subsections (c) and (d) out of the statute. Therefore, we hold that for an appeal to be timely, the Veterans Court must receive the notice of appeal within 120 days of the Board's decision, or the notice must be deemed received within 120 days of the Board's decision pursuant to the postmark rule of sections 7266(c) and (d). Because Mr. Mapu did not comply with either requirement, we agree with the Veterans Court that his appeal did not satisfy the timeliness requirement of section 7266.

II

Even if his appeal is otherwise untimely, Mr. Mapu argues that he is entitled to have the filing deadline equitably tolled. In support of that contention, he notes (1) that he actively pursued his right to appeal; (2) that he was unaware that he might lose his right of appeal by delivering the notice by FedEx rather than through the Postal Service; and (3) that filing his notice using FedEx was equivalent to filing a defective pleading, which can give rise to equitable tolling under Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990). For the reasons given below, we conclude that equitable tolling is unavailable on the facts of this case.

A

As an initial matter, the government contends that we lack jurisdiction to review the Veterans Court's determination that equitable tolling is inappropriate in this case. The government contends that 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). That argument is without merit. In Jaquay, we were presented with the same argument that we lacked jurisdiction because the case concerned the application of the law of equitable tolling to the facts. 304 F.3d at 1289. We rejected that argument, noting that "our holding resolves a contested interpretation of the Veterans Court's jurisdictional statute, 38 U.S.C. § 7266." Id. We have consistently held that "when the material 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." Bailey v. Principi, 351 F.3d 1381, 1384 (Fed.Cir.2003), citing Jaquay, 304 F.3d at 1289. Mr. Mapu's case is similar to Jaquay in that regard, and we therefore have jurisdiction over his appeal. Accordingly, we turn to the merits of Mr. Mapu's equitable tolling claim.

B

The Supreme Court stated in Irwin that "the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States." 498 U.S. at 95-96, 111 S.Ct. 453. The Court then listed two settings in which equitable tolling had been recognized in private law suits, namely "where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass." Id. at 96, 111 S.Ct. 453. The Court's opinion does not, however, suggest that those two settings were the only ones in which equitable tolling would be appropriate. See Nunnally v. MacCausland, 996 F.2d 1, 5 n. 7 (1st Cir.1993) ("A fair reading of Irwin, however, shows that the Court did not undertake an exhaustive list of factors that may be considered in the equitable weighing process."). We have recognized that equitable tolling of the deadline in 38 U.S.C. § 7266 is allowed "in a variety of circumstances," Barrett v. Principi, 363 F.3d 1316, 1318 (Fed.Cir.2004), and we have not limited equitable tolling of the 120-day appeal deadline to cases falling within the two examples cited in Irwin. See Barre...