James: Equitable Tolling and Filing the Notice of Appeal

James v. Shulkin, Case Number 16-1948, decided October 30, 2017 is another in the line of cases dealing with the equitable tolling of the time allowed to file the notice of appeals with the Court of Appeals for Veterans Claims. 

In this case, the veteran placed his notice of appeal (NOA) in his personnel mailbox the day the NOA was due to be sent.  He then raised the mailbox flag on his box and went out of town for the weekend.  When he got back, he found the mailbox flag was lowered and the mail had not been taken.  He then mailed it at his local post office, outside of the 120 day filing period.  The Court ordered the veteran to show cause why the NOA should not be dismissed as an untimely filing. 

The Court noted equitable tolling is to be determined on a case by case basis, but must be allowed if  the veteran shows three elements (1) extraordinary circumstance; (2) due diligence; and (3) causation.

The veteran argued “ the 120-day appeal window should be equitably tolled because an errantly lowered flag on his residential mailbox constitutes an extraordinary circumstance beyond his control. He argues that "[t]his extraordinary circumstance is akin to other cases in which veterans have filed their NOA on time, but in the wrong place," citing Santana-Venegas, 314 F.3d at 1293, where the veteran timely filed his NOA, but mailed it to the RO instead of the Court.”  Id. at *2.  The Court rejected this argument, saying

The logic of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Santana-Venegas does not apply in this case. The Federal Circuit explicitly noted that "'[m]isfiling cases within the veterans' system are unlike the typical late-filing cases where the limitations period expires before the would-be claimants perform any action to preserve their legal rights.'" Santana-Venegas, 314 F.3d at 1297 (quoting Jaquay v. Principi, 304 F.3d 1276, 1287-88 (Fed. Cir. 2002) (citations omitted)). In the case at hand, Mr. James did not timely misfile his appeal to this Court; rather, he placed his NOA in his personal mailbox on the last day of the appeal period, left town for the weekend, and ultimately mailed his NOA 4 days late. The Court declines to hold that the

alleged extraordinary circumstances here are like those in Santana-Venegas and other timely misfiling cases.

Id. at *2.

The Court finally concluded that “a fallen mailbox flag is not an extraordinary circumstance beyond the appellant's control that warrants equitable tolling, but rather an ordinary hazard of last-minute mailing that could have been avoided but for the appellant's "garden variety neglect."  Id. at *2-3.

Judge Greenberg wrote a dissent that pointed to a key difference in this case and Santana-Venegas.  He noted the majority found “the facts here are akin to ‘the typical late-filing cases where the limitations period expires before the would-be claimants perform any action to preserve their legal rights.’ See ante at 2 (emphasis added) (quoting Santana-Venegas v. Principi, 314 F.3d 1293, 1297 (Fed. Cir. 2002)) (internal quotation marks omitted). Yet, it is undisputed that the appellant placed his NOA in the mailbox on the 120th day, and thus did everything required of him to ensure timely mailing under 38 U.S.C. § 7266.” Id. at *3.  He then essentially argues the majority relies on old case law that ignores repeated admonishments from the Federal Circuit for denying tolling and arguing “The Court must start applying its equitable powers more broadly.”

The decision is a warning to veterans and practitioners that they need to file their notice of appeal quickly and without delay.

Per Curiam Decision by Judges Schoelen and Pietsch. Dissent by Judge Greenberg.