Santoro v. Principi, 00-7177

• Decision Date: 20 December 2001
• Docket Number: No. 00-7177,00-7177
• Parties: (Fed. Cir. 2001) ALFRED P. SANTORO, Claimant-Appellant, v. ANTHONY J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee
• Court: U.S. Court of Appeals — Federal Circuit

Page 1366

274 F.3d 1366 (Fed. Cir. 2001)

ALFRED P. SANTORO, Claimant-Appellant, v. ANTHONY J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.

No. 00-7177

United States Court of Appeals for the Federal Circuit

December 20, 2001

Appealed from: United States Court of Appeals for Veterans Claims, Judge Jonathan R. Steinberg

Michael P. Horan, Paralyzed Veterans of America, of Washington, DC, argued for claimant-appellant.

Martin F. Hockey, Jr., Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent-appellee. Of counsel were David M. Cohen, Director; Robert E. Kirschman, Jr., Assistant Director; and Virginia G. Farrier, Attorney. Also of counsel were Donald E. Zeglin; Michael J. Timinski; and Joshua S. Blume, Department of Veterans Affairs, of Washington, DC.

Before NEWMAN, RADER, and BRYSON, Circuit Judges.

RADER, Circuit Judge.

The United States Court of Appeals for Veterans Claims dismissed the appeal of Alfred P. Santoro for lack of jurisdiction because Mr. Santoro used an incorrect zip code. The Court of Appeals for Veterans Claims determined that Mr. Santoro improperly addressed his notice of appeal, making his submission ineligible for the postmark rule of 38 U.S.C. 7266(a)(3)(b) (West Supp. 2000). Because Mr. Santoro's notice of appeal was "properly addressed" within the meaning of 38 U.S.C. 7266(a)(3)(b), this court reverses.

I.

On January 29, 1998, the Board of Veterans' Appeals (Board) denied Mr. Santoro service connection for a chronic cervical spine disorder. On March 24, 1998, Mr. Santoro requested reconsideration of the decision, which the Board denied on May 1, 1998. The Board also notified Mr. Santoro that to preserve his right of appeal he must file a notice of appeal with the Court of Appeals for Veterans Claims within 120 days from the date of mailing of the Board's decision, i.e., by August 29, 1998. The Board's notice further stated:

You must file your Notice of Appeal with the Court at the following address: The United States Court of Veterans Appeals,^* 625 Indiana Avenue, N.W., Washington, DC 20004. File the original Notice of Appeal with the Court [of Veterans Appeals]. File a copy of the Notice of Appeal at the following address: Office of the General Counsel (027), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington DC 20420. Although you must file a copy of your Notice of Appeal with the Office of the General Counsel, filing your Notice of Appeal with the General Counsel, the Board, or any other VA office will not protect your right of appeal.

(emphasis and footnote added).

In July 1998, Mr. Santoro sent a notice of appeal to the Court of Appeals for Veterans Claims by return-receipt-requested certified mail. He addressed the notice as specified above except that he used the wrong zip code. Mr. Santoro used the zip code 20420, the zip code for the Department of Veterans Affairs, rather than 20004. The Post Office erroneously delivered the notice of appeal to the Office of the General Counsel, Department of Veterans Affairs (VA General Counsel's office) on July 27, 1998, thirty-three days before the 120-day filing deadline. The VA General Counsel's office signed for and accepted the notice of appeal.

In December 1998, Mr. Santoro learned that the Court of Appeals for Veterans Claims had no record of his notice of appeal. He immediately resubmitted his notice of appeal, which arrived well after the filing deadline. The resubmitted notice of appeal included a cover letter explaining the prior timely mailing of the notice, and a photocopy of the corresponding return-receipt-request card signed as received by the VA General Counsel's office on July 27, 1998. On March 12, 1999, the Secretary of Veterans Affairs (the Secretary) moved to dismiss Mr. Santoro's appeal as untimely filed. On March 19, 1999, the Court of Appeals for Veterans Claims ordered Mr. Santoro to show cause why the appeal should not be dismissed for lack of jurisdiction. Mr. Santoro responded that he had timely filed a notice of appeal on July 27, 1998: "[M]ishandling of either delivery of the [notice of appeal] by the postal service or receipt of the [notice of appeal] by any other administrative office, should not preempt [my] good faith effort . . . to meet all prescribed periods." The Court of Appeals for Veterans Claims then ordered the parties to brief the issue of equitable tolling. The Court of Appeals for Veterans Claims also ordered that the Secretary determine, inter alia, what transpired with the notice of appeal signed for and received by the VA General Counsel's office on July 27, 1998.

Following investigation and additional proceedings, the Secretary filed an unopposed motion to withdraw its motion to dismiss:

[I]n the regular course of business, [Mr. Santoro's notice of appeal] was delivered by mailroom personnel to PSG [(General Counsel Professional Group)] VII, and, in turn, by PSG VII personnel to the Court [of Appeals for Veterans Claims], on or about July 27, 1998. As July 27, 1998 was well within 120 days after denial of his motion for reconsideration by the Acting Chairman of the Board, [Mr. Santoro's notice of appeal] should be "deemed to be received" then, and hence timely. In view of this motion, Mr. Santoro did not file a brief with the Court of Appeals for Veterans Claims on the issue of equitable tolling.

The Court of Appeals for Veterans Claims held, nevertheless, that the doctrine of equitable tolling did not apply, and dismissed Mr. Santoro's appeal for lack of jurisdiction as untimely filed. Mr. Santoro filed a motion for reconsideration, seeking opportunity to argue for application of equitable tolling. The Court of Appeals for Veterans Claims denied the motion to reconsider.

Mr. Santoro appeals the Court of Appeals for Veterans Claims' dismissal. He argues that the Court of Appeals for Veterans Claims misconstrued 38 U.S.C. 7266, and erred in refusing to treat as timely the July 1998 notice of appeal under the presumption that the VA General Counsel's office acted with administrative regularity. Mr. Santoro also argues that the Court of Appeals for Veterans Claims denied him due process of law when it dismissed his appeal without again directing him to argue for application of equitable tolling.

II.

This court reviews the Court of Appeals for Veterans Claims' interpretation of statutes without deference to the extent presented and necessary for a decision. 38 U.S.C. 7292(d) (1994); Epps v. Gober, 126 F.3d 1464, 1466-67 (Fed. Cir. 1997); Prenzler v. Derwinski, 928 F.2d 392, 393 (Fed. Cir. 1991). This review includes questions of statutory jurisdiction. 38 U.S.C. 7292(a), (c) (1994); Wick v. Brown, 40 F.3d 367, 370 (Fed. Cir. 1994). Furthermore, this court narrowly construes jurisdictional statutes. Wick, 40 F.3d at 370. This court does not review a challenge to a factual determination made by the Secretary or the Board of Veterans' Appeals, or the application by the Court of Appeals for Veterans Claims of law to factual situations. 38 U.S.C. 7261(c), 7292(d)(2) (1994); Bustos v. West, 179 F.3d 1378, 1380 (Fed. Cir. 1999).

Title 38 imposes specific requirements for preservation of a veteran's right of appeal to the Court of Appeals for Veterans Claims:

(1) In order to obtain review by the Court of Appeals for Veterans Claims of a final decision of the Board of Veterans' Appeals, a person adversely affected by such decision shall file a notice of appeal with the Court within 120 days after the date on which notice of the decision is mailed pursuant to section 7104(e) of this title.

(2) An appellant shall file a notice of appeal under this section by delivering or mailing the notice to the Court.

(3) A notice of appeal shall be deemed to be received by the Court as follows:

(A) On the date of receipt by the Court, if the notice is delivered.

(B) On the date of the United States Postal...