Veteranclaims’s Blog

February 16, 2018

FedCir.; equitable tolling; homelessness; Section 7104(e)(1); “possible and plausible” address;

Excerpt from decision below:

“Although we make no determination as to whether the facts of this case warrant equitable tolling, we find that the Veterans Court erred by not considering whether equitable tolling should apply.
Accordingly, we remand for the Veterans Court to consider whether the facts of this case warrant equitable tolling.”


NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
Appeal from the United States Court of Appeals for
Veterans Claims in No. 16-277, Senior Judge Lawrence B.
Decided: February 15, 2018
JENNINGS JONES, III, Lake Charles, LA, argued for
RETA EMMA BEZAK, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent-appellee. Also
LEE, AMANDA BLACKMON, Office of General Counsel,
United States Department of Veterans Affairs, Washington,
Before MOORE, MAYER, and HUGHES, Circuit Judges.
HUGHES, Circuit Judge.
Mary Sterling appeals from a decision by the U.S. Court of Appeals for Veterans Claims dismissing her appeal as untimely. Because the Veterans Court failed to
consider whether equitable tolling is warranted, we vacate and remand.
The facts here are undisputed. On September 22,
2015, the Board of Veterans’ Appeals issued a decision
denying Mrs. Sterling’s claim for service connection for
the cause of her veteran-husband’s death. The decision
was mailed to an address on Dixy Drive in Lake Charles,
Louisiana. The mailing was returned to the Board as
undeliverable. In October, Mrs. Sterling contacted the
Board to inquire about the status of her case. At that
time, she confirmed the Dixy Drive address. On November
17, 2015, Mrs. Sterling’s address on file was changed
to one on 4th Street in Lake Charles, Louisiana. The next
day, the Board decision was remailed to Mrs. Sterling at
the 4th Street address. Mrs. Sterling received the Board
decision on November 20, 2015. Acting pro se, she filed a
Notice of Appeal. The Veterans Court received her notice
on January 21, 2016, 121 days after the Board decision
and one day after the filing deadline. The Veterans Court
determined that Mrs. Sterling’s Notice of Appeal was
untimely and dismissed her appeal. Mrs. Sterling appeals.
We have jurisdiction pursuant to 38 U.S.C.
§ 7292(a), (c), (d)(1).
We have exclusive jurisdiction to decide appeals that
challenge the Veterans Court’s legal determinations,
including the interpretation or validity of any statute or
regulation. Id. We review the Veterans Court’s legal
determinations without deference. Checo v. Shinseki, 748
F.3d 1373, 1376 (Fed. Cir. 2014). Unless an appeal presents
a constitutional issue, we may not review factual
challenges. 38 U.S.C. § 7292(d)(2).
In dismissing Mrs. Sterling’s appeal, the Veterans Court applied the rule outlined in Davis v. Prinicipi:
For purposes of determining whether an NOA is
timely filed under section 7266(a) within the 120-
day period from the Board’s mailing of notice of its
decision, the Court applies to the Board’s mailing
of a decision copy under section 7104(e) a “presumption
of regularity” that the Secretary and the
Board discharged their official duties by mailing
the decision copy to the claimant and to the
claimant’s representative, if any, at each of their
last known mailing addresses on the date on
which the decision is issued. . . . [T]he presumption
of regularity of mailing has been rebutted
where a copy of a [Board] decision that is mailed
to a claimant at his or her last known address is
returned as undeliverable by the USPS and the
claimant’s claims file discloses other possible and
plausible addresses that were available to the
Secretary at the time of the [Board] decision.
17 Vet. App. 29, 36–37 (2003) (citations omitted); J.A. 2.
Because the Secretary lacked any other “possible and plausible” address to mail the Board decision in September 2015, the Veterans Court found that Mrs. Sterling
failed to rebut the presumption of regularity. J.A. 2.

Mrs. Sterling argues that the Veterans Court erred in applying Davis, and requests we hold that “in order to establish a rebuttal of the presumption of regularity, the
veteran only needs to establish that the mailing was not received by the veteran.” Appellant’s Opening Br. 3. We decline to do so.
The time bar statute is 38 U.S.C. § 7266, which states that a notice of appeal must be filed “within 120 days after the date on which notice of the decision is mailed
pursuant to section 7104(e) of this title.” Section 7104(e)(1) requires the Board to “promptly mail a copy of its written decision to the claimant at the last known
address of the claimant.” Based on the statutory language, the Veterans Court correctly applied the presumption of regularity. It is not enough for Mrs. Sterling to
show that she did not receive the mailing if the Board did not have any alternative address to send the decision.
The Veterans Court did err, however, in failing to consider whether Mrs. Sterling’s appeal warranted equitable tolling. See J.A. 3. A litigant seeking equitable tolling bears the burden of establishing that (1) she has been pursuing her rights diligently, and (2) that some extraordinary circumstance prevented timely filing.
Sneed v. Shinseki, 737 F.3d 719, 725 (Fed. Cir. 2013). The 120-day deadline for filing appeals to the Veterans Court is subject to equitable tolling. Id.
Whether equitable tolling applies is a flexible inquiry, determined on a case-by-case basis. Toomer v. McDonald, 783 F.3d 1229, 1239 (Fed. Cir. 2015). In past cases, we have found that equitable tolling could apply due to: incapacitation caused by mental or physical illness, see Barrett v. Principi, 363 F.3d 1316 (Fed. Cir. 2004); Arbas v. Nicholson, 403 F.3d 1379 (Fed. Cir. 2005); the veteran’s attorney abandoning the appeal, see Sneed, 737 F.3d at 725–29; the veteran misfiling a notice of appeal, Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002); and the veteran

using an incorrect form to file a notice of appeal, Bailey v. Principi, 351 F.3d 1382 (Fed. Cir. 2003).
Here, we note that Mrs. Sterling appears to have actively contacted the Board regarding the status of her case and diligently updated her address. The Veterans
Court also noted that Mrs. Sterling asserted that she was homeless for several years. J.A. 2. Moreover, the Veterans Court received her Notice of Appeal a mere one day after the 120 day deadline. Although we make no determination as to whether the facts of this case warrant equitable tolling, we find that the Veterans Court erred by not considering whether equitable tolling should apply.
Accordingly, we remand for the Veterans Court to consider whether the facts of this case warrant equitable tolling.

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