James: Equitable Tolling Related to Late Notices of Appeal

James v. Wilkie, Opinion Number 2018-1264 is a Federal Circuit decision that discusses equitable tolling related to the filing of the notice of appeal.

The Veterans Court had rejected as late a notice of appeal filed 1 day late.  A Board decision was made on January 28, 2016 and on May 27, 2016 the pro se party placed a notice of appeal in a stamped envelope addressed to the Veterans Court in his mailbox at his residence and put the flag up for collection.  They then left town for several days.  They returned on May 30 and when he discovered the uncollected notice of appeal in his mailbox he took it to his local post office that night.  The Veterans Court received and docketed the notice which bore a postmark of May 31, 2016.

The Veterans Court ordered the veteran to show cause why his appeal should not be dismissed as untimely filed.  Now, with counsel, he argued “the 120-day appeal window

should be equitably tolled because, based upon the particular facts of his case, an errantly lowered flag on his residential mailbox constitutes an extraordinary circumstance

beyond his control.”  Id. at *3.    He also stated in an affidavit

[the neighbor] had received mail on Friday,” and also observed “that some neighborhood kids had been playing in the street near [Mr. James’s] house” and “might have put the flag down.” J.A. 15. Mr. James’s Declaration also states that the postman confirmed to Mr. James that he had made his rounds through the neighborhood after 1:00 p.m. on Friday, May 27, 2016, but he did not stop to pick up any mail at the James residence because the flag was down and he had nothing to deliver to the

James residence.

Id. at *4.

The Veterans Court dismissed the appeal as untimely stating “Mr. James had not demonstrated that equitable tolling was warranted because “a fallen mailbox flag” was not “an extraordinary circumstance beyond [Mr. James]’s control . . . but rather an ordinary hazard of last minute mailing that could have been avoided.”  Id. at *4.

The Federal Circuit began by finding it did have jurisdiction to hear the matter (no small  matter itself) explaining “Since we are asked to review whether the Veterans Court applied the correct legal standard for equitable tolling, this issue is one of law within our jurisdiction.”  Id. at *5-6.

The Court then addressed equitable tolling in general and reaffirmed that the filing deadline is not jurisdictional but may be tolled where appropriate.  It then discussed the Checo factors:

In order to benefit from equitable tolling, . . . a claimant [must] demonstrate three elements: (1) extraordinary circumstance; (2) due diligence; and (3) causation.” Checo v. Shinseki, 748 F.3d 1373, 1378 (Fed. Cir. 2014).

Id. at *7.  It also made clear that “we have rejected the argument that equitable tolling “is limited to a small and closed set of factual patterns and that equitable tolling is precluded if a veteran’s case does not fall within those patterns,”  Id. at *7. 

The Federal Circuit rejected the Veterans Court’s ruling by stating:

The Veterans Court held “that a fallen mailbox flag is not an extraordinary circumstance beyond [Mr. James]’s control that warrants equitable tolling.” James, 29 Vet. App. at 130. The Veterans Court, however, did not perform a case-specific analysis of the undisputed facts of Mr. James’s case. See id. at 129. Instead, it made a categorical

determination that a fallen mailbox flag is not entitled to equitable tolling but is “rather an ordinary hazard of last minute mailing that could have been avoided but for [Mr.

James]’s ‘garden variety neglect.’”

Id. at*8.  It further explained that while the Veterans Court framed its conclusions in terms of a case-by-case analysis, “it actually applied a categorical ban foreclosing the possibility that a fallen mailbox flag may ever constitute an extraordinary circumstance.”  Id. at *9.    It also stated the Veterans Court focused too narrowly on whether the case at hand fit within on the fact patterns of past cases whereas the Federal Court has

expressly stated that “[e]quitable tolling is not ‘limited to a small and closed set of factual patterns’” and have historically “rejected the approach of looking to whether a particular case falls within the facts specifically identified in Irwin or one of our prior cases.”

Id. at *9

The Court also dealt with government arguments that the failure to wait until the final day to mail the notice was support for dismissal by stating “We disagree with the Government’s implication that Mr. James was required to file earlier in order for the

Veterans Court’s categorical bar not to apply. There is no requirement that Mr. James file any earlier than the 120- day deadline.”  Id. at *11.  It continued to explain:

Moreover, it is irrelevant to the extraordinary circumstances element analysis whether Mr. James could have done more after he put his NOA in his residential mailbox.

Instead, under the proper legal standard, what would have been highly relevant is the undisputed fact that Mr. James placed his NOA in a U.S. Postal Service mailbox in time for it to be postmarked within the 120-day filing deadline of § 7266.

Id. at *11.

This case represents the constant push by the Veterans Court to limit equitable tolling and the corresponding push by the Federal Circuit against an unreasonable limitation on equitable tolling.  This case is not the end of these as the Veterans Court has suggested a proposed Court Rule that would attempt to divide late notices of appeal into those before and beyond 30 days late and apply different standards for them.  This proposed Court Rule would appear to run afoul of the Federal Circuit’s demand that all such determinations be done on a case by case basis.

Decision by Judge Wallach and joined by Judges Linn and Hughes.

To know more about whether Thomas Andrews can help you, please visit my website.