Veteranclaims’s Blog

January 2, 2022

Single Judge Application; Anania v. McDonough, 1 F.4th 1019 (Fed. Cir. 2021), which addressed the propriety of various methods of proof related to the common law mailbox rule—a doctrine that directs a court’s analysis when one party claims to have sent correspondence that the counter party claims never to have received.;

Filed under: Uncategorized — veteranclaims @ 12:19 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-4959
JACK A. FOX, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before TOTH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
TOTH, Judge: Navy veteran Jack A. Fox had active service from 1965 to 1968. He seeks
review of a Board decision that declined to consider at least 11 issues based on the Board’s
conclusion that the veteran failed to file a timely Substantive Appeal as to those matters. In June
2021, the Court affirmed in a single-judge memorandum decision, concluding that the Board
provided an adequate and reasonable explanation for its determination that Mr. Fox hadn’t
proffered sufficient evidence that he submitted (and the Agency received) a Substantive Appeal in
April 2015. Fox v. McDonough, No. 20-4959, 2021 WL 2458214 (Vet. App. June 17, 2021). The
Court also declined to consider an argument raised but not adequately developed, namely whether
the fax at issue here was sufficient to trigger a duty on the Board’s part to search its system to
confirm receipt of its contents.
On July 7, 2021, the Court received Mr. Fox’s motion for single-judge reconsideration or,
in the alternative, panel review. He contends that the Court’s memorandum decision overlooked or
misunderstood certain matters related to its review of the Board’s findings concerning whether Mr.
Fox demonstrated that he had, in fact, transmitted an appeal to VA.
Almost contemporaneous to the issuance of the memorandum decision here, the Federal
Circuit decided Anania v. McDonough, 1 F.4th 1019 (Fed. Cir. 2021), which addressed the
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propriety of various methods of proof related to the common law mailbox rule—a doctrine that directs a court’s analysis when one party claims to have sent correspondence that the counter party claims never to have received.

Although neither Mr. Fox nor the Board expressly discussed the mailbox rule, the Court
nonetheless remands for the Board to consider this matter in the first instance in light of any
potential development in the law presented by Anania. Mr. Fox is free on remand to press the
arguments raised in his briefing and post-decisional motion.
The motion for single-judge reconsideration is granted; the June 17, 2021, memorandum
decision is WITHDRAWN; and this decision is issued in its stead. The January 24, 2019, Board
decision is VACATED, and the matter is REMANDED for further proceedings consistent with
this opinion.
DATED: July 27, 2021
Copies to:
Daniel G. Krasnegor, Esq.
VA General Counsel (027)

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