James: NO EQUITABLE TOLLING FOR NOTICE OF APPEAL PLACED IN MAILBOX, BUT NOT PICKED UP ON TIME
/James v. Shulkin, 29 Vet.App. 127 (per curiam order) (Oct. 30, 2017)
HELD: Notice of Appeal that is timely placed in a personal mailbox, but not picked up by the mail carrier prior to the expiration of the 120-day deadline, is not an “extraordinary circumstance” beyond one’s control that warrants equitable tolling.
SUMMARY: Mr. James sought to appeal a January 28, 2016 Board decision. On the last day to file his Notice of Appeal, he placed the NOA in his personal mailbox, raised the flag to alert his mail carrier to pick up the mail, and left town for the weekend. When he returned, the flag had been lowered, but the NOA had not been picked up. He mailed the NOA four days after the 120-day deadline.
The Court rejected his NOA as untimely and found that the circumstances of his case did not warrant equitable tolling. Mr. James argued that the “errantly lowered flag on his residential mailbox constitutes an extraordinary circumstance beyond his control” and that the diligence required here should be the same type of diligence required in cases where the veteran files his NOA on time, but in the wrong place.
The Court disagreed that this situation was the same as the “timely misfiled” cases because he did not timely misfile his NOA – he placed the NOA in his personal mailbox on time and then left town. He filed the NOA 4 days late. The Court found 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.’”
Judge Greenberg dissented, asserting that by placing his NOA in the mailbox on the 120th day, the appellant “did everything required of him to ensure timely mailing under 38 U.S.C. § 7266.” Judge Greenberg stated that it is “irrelevant that there were other methods of mailing available, as his actions would have likely been sufficient to ensure timely mailing but for circumstances beyond his control” – and noted that the majority was imposing requirements on veterans beyond what is required by statute or at common law. Judge Greenberg stated that the majority was relying on “decades-old caselaw” to find Mr. James’s mailing amounted to “garden variety negligence” – and reminded the majority that Henderson v. Shinseki“and the repeated admonishments from the Federal Circuit for denying equitable tolling have changed the fundamental approach to the timely filing requirements.” (citing 562 U.S. 428, 441-42 (2011)). The Judge urged the Court to “start applying its equitable powers more broadly.”
[NOTE: This case was appealed to the Federal Circuit on Dec. 6, 2017.]
