Rios v. Nicholson

• Decision Date: 11 June 2007
• Docket Number: No. 2006-7352.,2006-7352.
• Citation: 490 F.3d 928
• Parties: Rafael G. RIOS, Claimant-Appellant, v. R. James NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

490 F.3d 928

Rafael G. RIOS, Claimant-Appellant, v. R. James NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee.

No. 2006-7352.

United States Court of Appeals, Federal Circuit.

June 11, 2007.

Robert V. Chisholm, Chisholm Chisholm & Kilpatrick LLP, of Providence, Rhode Island, argued for claimant-appellant. Of counsel was Kathy A. Lieberman, Lieberman & Mark, of Washington, DC.

Todd M. Hughes, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. On the brief were Peter D. Keisler, Assistant Attorney General, and Martin F. Hockey, Jr., Senior Trial Counsel. Of counsel on the brief were Michael J. Timinski, Assistant General Counsel, and Joshua S. Blume, Staff Attorney, United States Department of Veterans Affairs, of Washington, DC.

Before MICHEL, Chief Judge, ARCHER, Senior Circuit Judge and DYK, Circuit Judge.

MICHEL, Chief Judge.

Petitioner Rafael G. Rios appeals from an en banc decision of the U.S. Court of Appeals for Veterans Claims ("Veterans Court") dismissing Mr. Rios's appeal on the ground that his Notice of Appeal was not timely filed under 38 U.S.C. § 7266(c). Rios v. Nicholson, 20 Vet.App. 104 (2006) (en banc). Because the Veterans Court erred by precluding Mr. Rios from relying upon the common law mailbox rule to show timely filing, we reverse and remand for further proceedings consistent with this opinion.

I.

Mr. Rios, a U.S. veteran, originally filed a claim for disability compensation for a condition that allegedly arose during his active service. The claim was granted in 1970, and the disability was rated at 100%. Later, however, Mr. Rios's disability rating was reduced to 30%. Mr. Rios timely filed a Notice of Disagreement. After a series of appeals and remands, the Board of Veterans' Appeals ("Board") denied Mr. Rios's claim on October 16, 2003. Mr. Rios claims that he filed a Notice of Appeal ("NOA") from the Board's decision on November 6, 2003. The deadline for filing a NOA was February 13, 2004, that is, 120 days after the October 16, 2003 Board decision. See 38 U.S.C. § 7266(a) (setting a 120 day deadline for filing a NOA).

On March 4, 2004, the Veterans Court received a letter dated February 25, 2004 and postmarked March 1, 2004 from Mr. Rios via certified mail inquiring as to the status of his appeal. The letter stated that he had submitted a Department of Veterans Affairs ("VA") form expressing his disagreement with the Board's decision to the Veterans Court on November 6, 2003, and that he had not received any response. The letter requested that the court "please expedite" the appeal. The Veterans Court, having no record of the NOA, construed the February 25, 2004 letter as Rios's NOA, effective as of its postmarked date, March 1, 2004. Because March 1, 2004 is more than 120 days after the Board mailed its October 16, 2003 decision, the court ordered Mr. Rios to show cause as to why his appeal should not be dismissed.

In response to the show-cause order, Mr. Rios submitted a copy of his November 6, 2003 document, a copy of a "Page of Registry of Sent Correspondence" maintained by the Puerto Rico Public Advocate for Veterans Affairs ("PRPAVA"), and two affidavits from Mrs. Santa Virgen Cruz Carrion, an employee of PRPAVA responsible for handling mail. In her affidavits, Mrs. Carrion attested to personally mailing Mr. Rios's November 6, 2003 document to the Veterans Court and the VA Office of General Counsel, and that she recorded those mailings on the "Page of Registry of Sent Correspondence." The "Page of Registry of Sent Correspondence" contains two notations of mail sent on November 6, 2003 to the "U.S. Court of Appeals, Washington" and "General Counsel" on behalf of Mr. Rios.

In response to Mr. Rios's submission, the court ordered supplemental briefing and requested amicus briefs on October 28, 2004, and considered the case en banc. The Veterans Court issued a decision on June 27, 2006, dismissing Mr. Rios's appeal as untimely filed. In its decision, the Veterans Court held that (1) 38 U.S.C. §§ 7266(c) and (d) do not authorize the application of the common law mailbox rule to create a presumption that Rios's NOA was timely filed, (2) section 7266(c)(2) does not authorize the use of extrinsic evidence to show that Rios's NOA was timely filed, and (3) the circumstances of this case do not warrant application of equitable tolling.

A final judgment followed on July 19, 2006. Mr. Rios timely appealed to this court. This court has jurisdiction pursuant to 38 U.S.C. § 7292.

II.

This appeal involves interpretation of 38 U.S.C. § 7266, entitled "Notice of Appeal." This court reviews de novo statutory interpretations relied upon by the Veterans Court. Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed.Cir.1991).

The statute provides that "a person adversely affected" by a decision of the Board may obtain review by the Veterans Court by "fil[ing] a notice of appeal with the Court within 120 days after the date on which notice of the decision is mailed." 38 U.S.C. § 7266(a). Section 7266(b) provides that "[a]n appellant shall file a notice of appeal under this section by delivering or mailing the notice to the Court." Thus, under the plain wording of the statute, an appellant has two options for filing an NOA: delivering it or mailing it. When an appellant chooses the former option, the NOA is deemed received by the Veterans Court on the date of receipt. 38 U.S.C. § 7266(c)(1). When an appellant chooses the latter option, the NOA is deemed received by the Veterans Court on the date of the United States Postal Service ("USPS") postmark stamped on the cover in which the notice is posted, if the notice is properly addressed to the Court and is mailed. 38 U.S.C. § 7266(c)(2). The latter provision is known as the "postmark rule." In order for section 7266(c)(2) to apply, the USPS postmark must be legible. 38 U.S.C. § 7266(d). This court spoke to these requirements in Mapu v. Nicholson, 397 F.3d 1375, 1378 (Fed.Cir.2005), where we held "that for an appeal to be timely, the Veterans Court must receive the notice of appeal within 120 days of the Board's decision" pursuant to section 7266(c)(1), "or the notice must be deemed received within 120 days of the Board's decision pursuant to the postmark rule" of sections 7266(c)(2) and (d).

Under the common law mailbox rule, "if a letter properly directed is proved to have been either put into the post office or delivered to the postman, it is presumed, from the known course of business in the post office department, that it reached its destination at the regular time, and was received by the person to whom it was addressed." Rosenthal v. Walker, 111 U.S. 185, 193, 4 S.Ct. 382, 28 L.Ed. 395 (1884); see also Hagner v. United States, 285 U.S. 427, 430-31, 52 S.Ct. 417, 76 L.Ed. 861 (1932); Schutz v. Jordan, 141 U.S. 213, 219-20, 11 S.Ct. 906, 35 L.Ed. 705 (1891). The mailbox rule does not create a conclusive presumption that the letter arrived, "but a mere inference of fact founded on the probability that the officers of the government will do their duty and the usual course of business." Rosenthal, 111 U.S. at 193, 4 S.Ct. 382 (quoting Huntley v. Whittier, 105 Mass. 391, 392 (1870)). An issue of fact arises when the intended recipient alleges that the letter was never actually received. Id.; see also Schutz, 141 U.S. at 220, 11 S.Ct. 906. When the presumption "is opposed by evidence that the letters never were received, [it] must be weighed with all the other circumstances of the case, by the [trier of fact] in determining the question whether the letters were actually received or not." Rosenthal, 111 U.S. at 194, 4 S.Ct. 382 (quoting Huntley, 105 Mass. at 392).

This court has not previously addressed the application of the common law mailbox rule to section 7266. However, as with any common law provision, we must begin our analysis with the presumption that the mailbox rule applies, absent clear statutory abrogation thereof. See Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783, 72 S.Ct. 1011, 96 L.Ed. 1294 (1952) ("Statutes which invade the common law ... are to be read with a presumption favoring the retention of long-established and familiar principles. ..."). The parties agree that the rule applies unless Congress clearly intended to abrogate the common law rule when enacting section 7266(c)(2) and (d). Congress's intent to abrogate a common law rule may be shown (1) expressly where the statute "speaks directly" to the question addressed by the common law, United States v. Texas, 507 U.S. 529, 534, 113 S.Ct. 1631, 123 L.Ed.2d 245 (1993), or (2) impliedly where application of the common law rule would render an aspect of the statute superfluous or inoperative, Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 109, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). Both parties appear to agree that Congress did not explicitly speak to abrogate the common law mailbox rule. See Midlantic Nat'l Bank v. N.J. Dep't of Envtl. Prot., 474 U.S. 494, 501, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986) ("The normal rule of statutory construction is that if Congress intends for legislation to change the interpretation of a judicially created concept, it makes that intent specific."). Instead, the parties disagree as to whether sections 7266(c)(2) and (d) exclude operation of the common law rule by implication.

It is that issue to which we now turn. Rios asserts that sections 7266(c)(2) and (d) can co-exist with the mailbox rule, and as such there is no evidence that Congress intended to abrogate the common law rule when enacting sections 7266(c)(2) and (d). In contrast, the government argues that sections 7266(c)(2) and (d) conflict with the common law mailbox rule, and therefore the presumption of intent to retain the mailbox rule is overcome. The government argues that if both the mailbox rule and sections 7266(c)(2) and (d) applied, the postmark rule...