James: Equitable Tolling; Extraordinary Circumstances
/James v. Wilkie, 917 F.3d 1368 (Fed. Cir. Mar. 7, 2019)
HELD: In determining whether a situation is extraordinary enough to warrant equitable tolling of the 120-day appeal deadline, the Court must analyze the specific facts of the case and cannot make a “categorical determination that a particular set of facts will never warrant equitable tolling of the filing deadline.”
SUMMARY: Charles James sought service connection for back and neck conditions and an increased rating for pseudofolliculitis barbae. The Board denied his claims on January 28, 2016. On May 27, 2016, Mr. James put his Notice of Appeal to the CAVC in a stamped envelope, put the envelope in his home mailbox, and raised the flag on the box for collection. He then left town for the weekend. He returned the evening of May 30 – and saw that the mail had not been picked up. He mailed it that night and the CAVC received the appeal, postmarked May 31, 2016.
This was more than 120 days after the January 28, 2016 decision – so the CAVC ordered Mr. James to show cause why his appeal should not be dismissed. Through counsel, Mr. James responded, arguing that the 120-day appeal deadline should be equitably tolled because “an errantly lowered flag on his residential mailbox constitutes an extraordinary circumstance beyond his control.” He submitted a sworn declaration that he had spoken with his neighbor who had received mail on May 27 – and had seen some neighborhood kids playing in the street who “might have put the flag down.” The CAVC dismissed the appeal because he had not demonstrated that equitable tolling was warranted because “a fallen mailbox flag” was not “an extraordinary circumstance beyond [his] control … but rather an ordinary hazard of last minute mailing that could have been avoided.”
On appeal to the Federal Circuit, Mr. James argued that the CAVC erred as a matter of law by “creating a categorical ban against equitable tolling in cases involving a fallen mailbox flag.” The Federal Circuit agreed, finding that the CAVC did not perform the necessary case-specific analysis of Mr. James’s case, but instead “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.”
The Federal Circuit held that “because the extraordinary circumstances element requires a case-by-case analysis” the CAVC erred in making what appeared to be a categorical determination that Mr. James’s fallen mailbox flag did not neatly fall into “one of the factual patterns of past cases” that considered equitable tolling. The Court stated that the CAVC “failed to consider whether the fallen mailbox flag due to an alleged third-party interference with the federal collection of mail could justify invoking equitable tolling in Mr. James’s case as a matter of law.”
The Court further held that “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” – when the relevant and undisputed fact was that he put his NOA in a mailbox “in time for it to be postmarked within the 120-day filing deadline.”
