William E. McCreary v. R. James Nicholson , 2005 U.S. Vet. App. LEXIS 602 ( 2005 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 05-45
WILLIAM E. MCCREARY , APPELLANT ,
V.
R. JAMES NICHOLSON ,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Decided September 2, 2005 )
William E. McCreary, pro se.
Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; Thomas
A. McLaughlin, Special Assistant to the Assistant General Counsel; and Gabrielle L. Clemons
(non-attorney practitioner), all of Washington, D.C., were on the pleading for the appellee.
Before GREENE, Chief Judge, and LANCE and SCHOELEN, Judges.
SCHOELEN, Judge: The pro se appellant, William E. McCreary, seeks review of an
August 30, 2004, Board of Veterans' Appeals (Board) decision denying his claims for entitlement
to service connection for chronic respiratory disease, including a claim based on undiagnosed illness.
William E. McCreary, BVA 99-24007 (Aug. 30, 2004). The Court is addressing the issue of its
jurisdiction over this appeal because the appellant's Notice of Appeal (NOA) was filed more than
120 days after the date stamped on the Board decision. See Rosler v. Derwinski, 1 Vet.App. 241,
242 (1991) (holding that it is presumed that the Board decision was mailed on the date it was issued);
see also Cintron v. West, 13 Vet.App. 251, 254 (1999); Henderson v. West, 12 Vet.App. 11, 14
(1998) (Court has jurisdiction to determine its own jurisdiction over a case); Smith (Irma) v. Brown,
10 Vet.App. 330, 332 (1997) ("'It is well-established judicial doctrine that any statutory tribunal must
ensure that it has jurisdiction over each case before adjudicating the merits, that a potential
jurisdictional defect may be raised by the court or tribunal, sua sponte or by any party at any stage
in the proceedings, and, once apparent, must be adjudicated.'" (quoting Barnett v. Brown, 83 F.3d
1380, 1383 (Fed. Cir. 1996))). Because the appellant has not met his burden of establishing that he
filed a timely NOA and because equitable tolling is not appropriate in this case, the Court will
dismiss this appeal for lack of jurisdiction.
I. BACKGROUND
The Court filed the appellant's NOA on January 4, 2005, because it was received in an
envelope stamped with a United States Postal Service postmark of that date. See 38 U.S.C.
§ 7266(c); U.S. VET . APP . R. 4(a). On his NOA, the appellant indicates that he is appealing a Board
decision dated August 30, 2004. In response to a January 18, 2005, Court order, the Secretary
provided the Court a signed copy of the Board decision, verifying that August 30, 2004, is the date
stamped on the Board decision. Thus, his NOA was filed 127 days after the date stamped on the
Board decision, which is presumed to be the date of mailing. See Rosler, 1 Vet.App. at 242;
38 C.F.R. § 20.1100 (2004) (stating that Board decisions "will be stamped with the date of mailing
on the face of the decision"). Attached to the back of the Board decision was a form advising the
appellant of his appellate rights, informing him that he had 120 days from the date of the Board
decision to file an NOA in this Court. The appellant has not asserted that either he or his
representative failed to receive a copy of the Board decision. See McCreary, BVA 99-24007, at 1
(stating that the appellant was represented before the Board by the American Legion).
The appellant has acknowledged, in a signed, certified statement, that his NOA is untimely.
In his January 4, 2005, statement accompanying the NOA, he stated:
The purpose of this statement is to request that I be granted a delay in my
filing of my Notice of Appeal[.] It was to be filed by the 23rd of December[,] 2004,
but it would be a grievous injustice to not perfect my appeal because of a few days.
We were struck very hard by Hurricane Ivan, and received a very substantial amount
of damage to our home. In the attempt to settle with the insurance company and [sic]
repairs to my house[,] the paperwork was misplaced. We were living in 3 room[s],
and had a myriad of boxes with various paperwork stored in them[.] On
December 31, I found the paperwork again, and immediately contacted my local
veterans service officer for assistance in perfecting my appeal. Please allow the lapse
of time to be excused[.] I did not plan on a hurricane.
2
On January 18, 2005, the Court ordered the appellant to explain why his appeal should not be
dismissed because his NOA was filed more than 120 days after the date stamped on the Board
decision. On February 18, 2005, the Court received a response, in the form of a signed, certified
statement from the appellant, dated February 16, 2005. The text of this second statement is identical
to his previous statement accompanying the NOA, except that the following sentence was added at
the end of the statement: "Couldn't an Act of God[] be a valid reason for the extension on . . . my
appeal?"
We take judicial notice of the following information regarding Hurricane Ivan. See Smith
(Brady) v. Derwinski, 1 Vet.App. 235, 238 (1991) ("Courts may take judicial notice of facts not
subject to reasonable dispute." (citing FED . R. EVID. 201(b))). On the morning of September 16,
2004, Hurricane Ivan made landfall just west of Gulf Shores, Alabama, with winds of approximately
120 miles per hour. Stacy R. Stewart, Tropical Cyclone Report, Hurricane Ivan, National Hurricane
Center, at http://www.nhc.noaa.gov/2004ivan.shtml (revised June 3, 2005). Twelve hours later, the
hurricane weakened to a tropical storm over central Alabama. Id. The storm brought flooding and
tornadoes to much of the southeastern United States, and total rainfall of three to seven inches
throughout Alabama. Id. The strong winds from the storm spread inland, as well, damaging homes,
and downing trees and power lines. Id.II. ANALYSIS
A. Equitable Tolling of the 120-Day Judicial-Appeal Period
In order to obtain review in this Court of a final Board decision, an NOA must be filed
"within 120 days after the date on which notice of the [Board] decision is mailed . . . ." 38 U.S.C.
§ 7266(a). In this case, the appellant concedes that his appeal is untimely; however, he asks that the
Court extend his time to appeal. We consider this statement to be a request that the 120-day judicial-
appeal period be equitably tolled, based on the effect of Hurricane Ivan on the appellant's ability to
file a timely NOA.
The 120-day judicial-appeal period may be equitably tolled under certain, limited
circumstances. In Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990), the U.S.
Supreme Court held that equitable tolling applied to suits against the United States. It identified two
3
situations where equitable tolling has been recognized – first, where the claimant has "actively
pursued his judicial remedies by filing a defective pleading during the statutory period," or second,
"where the claimant has been induced or tricked" by the opposing party's misconduct. Id. In
addition, the Court emphasized in Irwin that courts are "much less forgiving in receiving late filings
where the claimant failed to exercise due diligence in preserving his legal rights," and held that the
failure to file an employment discrimination complaint within the 30-day filing period because the
complainant's attorney was out of the country constituted a "garden-variety claim of excusable
neglect" that did not justify equitable tolling. Id.In Bailey (Harold) v. West, 160 F.3d 1360, 1362-64 (Fed. Cir. 1998) (en banc), the U.S.
Court of Appeals for the Federal Circuit (Federal Circuit) held that equitable tolling applies to the
120-day judicial-appeal period in 38 U.S.C. § 7266(a). In Bailey, the appellant's reliance on a VA
employee's statement that the appellant's judicial appeal would be processed was a sufficient basis
for equitable tolling of the judicial-appeal period when it was discovered that the VA employee
failed to file the appeal with the Court. Id. at 1361. The Federal Circuit has also recognized that the
120-day judicial-appeal period may be equitably tolled based on the appellant's filing of his NOA
at a location other than the Court. See Brandenburg v. Principi, 371 F.3d 1362, 1364 (Fed. Cir.
2004) (appellant misfiled the NOA with the Board rather than the Court); Bailey (Edward) v.
Principi, 351 F.3d 1381, 1385 (Fed. Cir. 2003) (appellant filed the NOA at the wrong location using
the wrong form); Santana-Venegas v. Principi, 314 F.3d 1293, 1296-98 (Fed. Cir. 2002) (appellant
misfiled NOA with regional office rather than Court); Jaquay v. Principi, 304 F.3d 1276, 1289
(Fed. Cir. 2002) (en banc) (appellant misfiled motion for Board reconsideration with regional office
rather than Board). Moreover, the Federal Circuit has held that ill health may be a basis for tolling
the judicial-appeal period. See Arbas v. Nicholson, 403 F.3d 1379, 1381-82 (Fed. Cir. 2005)
(remanding to determine whether appellant's ill physical health prevented timely filing of NOA);
Barrett v. Principi, 363 F.3d 1316, 1318-21 (Fed. Cir. 2004) (remanding to determine whether
appellant's untimely filing of NOA was "direct result" of mental incapacitation). However, the
Federal Circuit noted in Mapu v. Nicholson, 397 F.3d 1375, 1380 (Fed. Cir. 2005), that, in applying
the doctrine of equitable tolling, "we have rejected the approach of looking to whether a particular
4
case falls within the facts specifically identified in Irwin[, supra,] or one of our prior cases." See
also Arbas, 403 F.3d at 1381.
The appellant's request that an "Act of God" extend the time to file his NOA appears to be
an argument for this Court to allow equitable tolling of the judicial-appeal period in 38 U.S.C.
§ 7266(a) based on extraordinary circumstances and presents an issue of first impression for this
Court. Cf. Evans v. Principi, 17 Vet.App. 41, 51-54 (2003) (Steinberg, J., separate views)
(discussing equitable tolling based on extraordinary circumstances). The Court will consider
whether equitable tolling should be applied in cases involving extraordinary circumstances, in light
of the Federal Circuit's assertion in Mapu that the application of the doctrine of equitable tolling is
not limited to factual patterns where it has already been applied.
B. Equitable Tolling Based on Extraordinary Circumstances in Other Courts
Although the Federal Circuit has never considered whether a statute of limitations may be
equitably tolled based on extraordinary circumstances, a majority of other Federal appellate courts
that have considered the issue have recognized equitable tolling based on extraordinary
circumstances. One application of equitable tolling has taken place when an extraordinary
circumstance makes timely filing impossible. For example, in Hanger v. Abbott, 73 U.S. (6 Wall.)
532, 542 (1867), the Supreme Court recognized that extraordinary circumstances could be a basis
for equitable tolling and held that the closing of courts in the South during the Civil War was an
extraordinary circumstance warranting equitable tolling of the statute of limitations. More recently,
the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) followed Hanger in applying the
doctrine of equitable tolling. See Seattle Audubon Soc. v. Robertson, 931 F.2d 590 (9th Cir. 1991),
rev'd on other grounds, 503 U.S. 429 (1992). In Seattle Audubon Society, the Ninth Circuit held that
an unconstitutional statute and a district court's erroneous interpretation of the statute prevented the
plaintiffs from raising certain claims, which had, by that point, become time barred, and the court
therefore equitably tolled the statute of limitations. Id. at 597-98. The court distinguished that case
from Irwin, supra, by noting that "when external forces, rather than plaintiff's lack of diligence,
account for the failure to file a timely claim, equitable tolling is proper." Id. at 596.
In Alvarez-Machain v. United States, 107 F.3d 696, 701 (9th Cir. 1996), the Ninth Circuit
applied the doctrine of equitable tolling to a suit against the Government brought under the Federal
5
Tort Claims Act, 28 U.S.C. § 2401(b). The Government attempted to invoke the statute of
limitations against a plaintiff who, because he had been abducted, incarcerated, and tried in a foreign
country, filed a lawsuit more than one year after the expiration of the statute of limitations. Id. at
700. The court identified two situations where federal courts have applied the doctrine of equitable
tolling: (1) Where claimants were prevented from asserting their claims by some kind of wrongful
conduct, or (2) where extraordinary circumstances beyond the claimant's control made it impossible
to file the claims on time. Id. at 701. The court concluded that this was a "rare situation where
equitable tolling is demanded by sound legal principles as well as the interests of justice." Id.
A more common application of the doctrine of equitable tolling has taken place in cases
involving the filing of writs of habeas corpus. The Antiterrorism and Effective Death Penalty Act
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), placed a one-year time limitation
on filing a petition for a writ of habeas corpus in Federal courts after, among other things, final
judgment. At least eight Federal courts of appeal have recognized extraordinary circumstances as
a basis for equitably tolling that one-year statute of limitations. See e.g., United States v. Marcello,
212 F.3d 1005, 1010 (7th Cir. 2000); Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000); Smith
v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000); Sandvik v. United States, 177 F.3d 1269, 1271-72 (11th
Cir. 1999) (per curiam); Davis v. Johnson, 158 F.3d 806, 810 (5th Cir. 1998); Miller v. N.J. State
Dep't of Corr., 145 F.3d 616, 618 (3d Cir. 1998); Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998);
Calderon v. United States Dist. Ct., 128 F.3d 1283, 1288-89 (9th Cir. 1997) [hereinafter Calderon I],
overruled on other grounds by 163 F.3d 530 (9th Cir. 1998) (en banc) [hereinafter Calderon II],
overruled on other grounds by Woodford v. Garceau, 538 U.S. 202, 206 (2003); see also Delaney
v. Matesanz, 264 F.3d 7, 16 (1st Cir. 2001) (per curiam) (noting, without explicitly holding that
extraordinary circumstances may be a basis for equitable tolling, that "no extraordinary
circumstances prevented the petitioner from protecting his own interests, so the district court did not
abuse its discretion in declining to apply equitable tolling to resuscitate his time-barred habeas
case"). These cases generally recognize that "extraordinary circumstances that are both beyond [a
claimant's] control and unavoidable even with diligence" will equitably toll a statute of limitations.
Sandvik, 177 F.3d at 1271.
6
The U.S. Court of Appeals for the Sixth Circuit (Sixth Circuit), however, expressly declined
to adopt extraordinary circumstances as a basis for equitably tolling the one-year limitations under
the AEDPA. See Dunlap v. United States, 250 F.3d 1001, 1007-09 (6th Cir. 2001). In describing
the cases in which other courts have, based on extraordinary circumstances, equitably tolled the one-
year statute of limitations under the AEDPA, the Sixth Circuit recognized its application both in
habeas corpus cases and in civil cases:
The courts that have applied the "rare and exceptional circumstances" or
"extraordinary circumstances" test actually apply the test to all cases involving
equitable tolling–not simply habeas cases. In fact, the Calderon [I] Court, in
applying the test to the habeas case before it cited Alvarez-Machain[, supra], a civil
case wherein the Plaintiff asserted claims under the Federal Tort Claims Act against
the government and certain government officials for the proposition that equitable
tolling should only be applied in extraordinary circumstances. Similarly, other cases
applying the "extraordinary circumstances" and "rare and exceptional circumstances"
test have apparently followed the dictates of Irwin[, supra], a civil case involving
employment discrimination and have made no mention of a special need to adopt this
standard simply because the statute of limitations pertains to a habeas case. Other
cases have simply followed Calderon [I], the cases cited therein, or employment
discrimination cases. None of these courts, however, adopted a standard different
from the standard they would apply in any other case addressing the issue of
equitable tolling. We therefore see no reason to depart from the test that we have
uniformly applied to the issue of equitable tolling in this Circuit.
Dunlap, 250 F.3d at 1009 (citations omitted). While declining to specifically extend equitable
tolling to extraordinary circumstances, the court instead chose to use the test it applied in all cases
of equitable tolling. Id. This test, as articulated in Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988),
and referred to in Dunlap, considers five factors to determine whether a statute of limitations should
be equitably tolled in a particular case: (1) Lack of notice of the filing requirement; (2) lack of
constructive knowledge of the filing requirement; (3) diligence in pursuing one's rights; (4) absence
of prejudice to the respondent; and (5) reasonableness in remaining ignorant of the legal
requirements for filing a claim. Andrews, 851 F.2d at 151; see Dunlap, 250 F.3d at 1008.
C. Equitable Tolling of 38 U.S.C. § 7266(a) Based on Extraordinary Circumstances
Based upon this Court's jurisprudence and the guidance of the vast majority of other appellate
courts that have considered the issue, we hold that extraordinary circumstances can trigger
consideration of the principles of equitable tolling. In defining the criteria that will determine when
7
equitable tolling will be applied based on extraordinary circumstances, we will incorporate the
standards used by other courts with the standards for equitable tolling currently applied in this Court.
Almost all courts that have considered the issue have recognized extraordinary circumstances
as a basis for equitable tolling. One exception, as noted above, is the Sixth Circuit, which uses a
specific five-factor test. See Dunlap and Andrews, both supra. We find that test too restrictive and
will not adopt it. Rather, we believe it is necessary to consider all relevant factors in determining
whether equitable tolling is appropriate. Also, in many cases before this Court, some of the factors
in the Andrews test will be irrelevant. For example, the prejudice to the Secretary caused by the
untimely filing, in almost all cases would be negligible. Moreover, the Sixth Circuit's rationale for
using its five-factor test rather than specifically adopting extraordinary circumstances as a basis for
equitable tolling is that it would involve modifying the standards used in prior cases. See Dunlap,
250 F.3d at 1009. This Court is not so bound – that is, we have no generally applicable test that is
applied in all claims for equitable tolling. See Mapu, 397 F.3d at 1380 ("[W]e have rejected the
approach of looking to whether a particular case falls within the facts specifically identified in Irwin
or one of our prior cases.").
A common factor in all decisions adopting extraordinary circumstances as a basis for
equitable tolling is the requirement that the extraordinary circumstance be beyond the claimant's
control. See Irwin, 498 U.S. at 96; Calderon II, 163 F.3d at 541. This requirement strikes a balance,
between, on one side, preserving judicial review for appellants who suffer unavoidable misfortune,
and, on the other side, ensuring that circumstances based upon the appellant's own doing will not
excuse an untimely filing. Such a requirement is consistent with the types of cases where equitable
tolling of the 120-day judicial-appeal period under 38 U.S.C. § 7266(a) has already been recognized,
for example, where the appellant is either mentally or physically ill. See Arbas and Barrett,
both supra.
A requirement in cases of equitable tolling based on mental incapacity is that the appellant
must establish that the "failure to file was the direct result of a mental illness." Barrett, 363 F.3d
at 1321 (emphasis added). Merely establishing mental incapacity, no matter how severe, is not
sufficient for equitably tolling the judicial-appeal period. See id; see also Claiborne v. Nicholson,
19 Vet.App. 181, 185-86 (2005). The appellant must establish a causal link between the mental
8
illness and the untimely filing. This requirement is equally applicable in the context of equitable
tolling based on extraordinary circumstances.
Another consideration when determining whether equitable tolling is appropriate is the
appellant's exercise of "due diligence" in preserving his appellate rights, as recognized by the
Supreme Court in Irwin, 498 U.S. at 96. See Davis v. Principi, 17 Vet.App. 29, 38-39 (2003)
(holding that equitable tolling did not apply because the appellant did not exercise "due diligence").
The U.S. Court of Appeals for the Second Circuit has noted that waiting until the end of a limitations
period to file a claim does not automatically disqualify a claimant from equitable tolling. See
Valverde v. Stinson, 224 F.3d 129, 135-36 (2d Cir. 2000) ("A petitioner should not be faulted,
however, for failing to file early or take other extraordinary precautions early in the limitations
period against what are, by definition, rare and exceptional circumstances that occur later in that
period."). The same court also observed, however, that "the party seeking equitable tolling must
have acted with reasonable diligence throughout the period he seeks to toll." Smith v. McGinnis,
208 F.3d at 17. Interpreted together, these two statements guide this Court to evaluate the
reasonableness of an appellant's diligence in preserving his judicial-appeal rights on a case-by-case
basis. Thus, we will not adopt an explicit requirement that an appellant attempt to file an NOA early
in the judicial-appeal period in order to obtain the benefit of the doctrine of equitable tolling.
We will also not require that extraordinary circumstances make the timely filing of an NOA
impossible. The Court's Rules of Practice and Procedure contemplate one situation where timely
filing of an NOA would be impossible – that is, because the Court is closed. See U.S. VET . APP .
R. 26(a) (in computing due date of a filing in this Court, the last day is not counted if "it is a day
when the Clerk's Office has been closed by direction of the Chief Judge or when the weather or
another condition makes the Clerk's Office inaccessible, as declared by the Court or the Chief
Judge").
Therefore, the Court will adopt a three-part test to determine whether equitable tolling based
on extraordinary circumstances is appropriate. First, the extraordinary circumstance must be beyond
the appellant's control. Second, the appellant must demonstrate that the untimely filing was a direct
result of the extraordinary circumstances. See Barrett, 363 F.3d at 1321; Valverde, 224 F.3d at 134("If the person seeking equitable tolling has not exercised reasonable diligence in attempting to file
9
after the extraordinary circumstances began, the link of causation between the extraordinary
circumstances and the failure to file is broken, and the extraordinary circumstances therefore did not
prevent timely filing."). Third, the appellant must exercise "due diligence" in preserving his
appellate rights, meaning that a reasonably diligent appellant, under the same circumstances, would
not have filed his appeal within the 120-day judicial-appeal period. See Irwin, 498 U.S. at 96;
Sandvik, 177 F.3d at 1271-72. This standard, though not requiring impossibility, ensures that the
exception (equitable tolling) does not swallow the 120-day judicial-appeal period rule set forth in
38 U.S.C. § 7266(a).
We reemphasize that the burden of establishing jurisdiction rests with the appellant. See
McNutt v. G.M.A.C., 298 U.S. 178, 181 (1936); Bethea v. Derwinski, 2 Vet.App. 252, 255 (1992).
It is the appellant's obligation not only to state the specific extraordinary circumstances that
prevented the filing of a timely NOA, but also to produce any evidence supporting his claim for
equitable tolling. See Jones v. Principi, 18 Vet.App. 500, 502 (2004) (per curiam order) (holding
that the duty-to-assist provisions of 38 U.S.C. § 5103A do not apply to establishing mental
incapacity for the purposes of equitably tolling the judicial-appeal period). It will then be for the
Court to evaluate the evidence presented and determine whether equitable tolling is appropriate on
a case-by-case basis. See id. at 503 (noting Court's authority to find facts "'crucial to the proper
determination of whether this Court has jurisdiction.'" (quoting Stokes v. Derwinski, 1 Vet.App. 201,
203-04 (1991))).
D. Application of Standard to Present Case
We now turn to the issue of whether the appellant has met his burden of establishing
jurisdiction under the standard for equitable tolling based on extraordinary circumstances established
above. Regarding the first part of the test, it is obvious that a hurricane is a type of extraordinary
circumstance that is beyond the appellant's control. Therefore, the only elements remaining for the
Court to assess are whether the untimely filing was a direct result of Hurricane Ivan and whether the
appellant exercised due diligence in pursuing his appeal. Although the Court is sympathetic to the
appellant's hardship, for the reasons stated below, we must conclude that he has failed to demonstrate
that his untimely appeal was a direct result of Hurricane Ivan, nor has he demonstrated that he
exercised due diligence in pursuing his appeal.
10
At best, the appellant, with his statement, has established that his untimely appeal was an
indirect result of the hurricane – that is, in an effort to settle hurricane-related damage claims with
an insurance company, he misplaced his paperwork related to this appeal. Nothing in the appellant's
statement satisfies his burden of establishing that his untimely filing was a direct result of
extraordinary circumstances. See Claiborne, 19 Vet.App. at 186 (holding that equitable tolling is
not appropriate because appellant failed to establish that his failure to file a timely NOA was a
"direct result" of his mental illness). Although the appellant states that he had to live in three rooms
for some amount of time after the hurricane, he also notes that the paperwork was "misplaced." The
common definitions of "misplace" are "to put in a wrong or inappropriate place" or "to mislay."
MERRIAM -WEBSTER 'S COLLEGIATE DICTIONARY 742 (10th ed. 2001). We cannot assume that
"misplaced" means any more than its common definition – that is, that the appellant simply put his
paperwork in the wrong place. A person exercising "due diligence" would not have filed his NOA
late simply because he "misplaced" his paperwork. The appellant, in his statement, implies that the
hurricane damage to his home may have resulted in items being stored in boxes. However, he offers
no explanation for how his paperwork was misplaced or where it was misplaced. Without any
evidence directly attributing his untimely appeal to the hurricane, we will not equitably toll the
120 day judicial-appeal period simply because the appellant misplaced his paperwork.
Furthermore, the low burden for filing an NOA in this Court further justifies not equitably
tolling the 120-day judicial-appeal period in this case. Rule 3(c) of the Court's Rules of Practice and
Procedure requires that an NOA contain the appellant's name, address, telephone number, VA claims
file number, a reasonable identification of the Board decision appealed, and an expressed intent to
seek Court review of that decision. U.S. VET . APP . R. 3(c). Moreover, the Federal Circuit has held
that the failure of the appellant to provide an address in his NOA does not preclude the Court's
jurisdiction over a case. See Durr v. Nicholson, 400 F.3d 1375, 1381-83 (Fed. Cir. 2005); see also
U.S. VET . APP . R. 1(b) (Court's rules do not extend or limit Court's jurisdiction). In addition, the
Court is required to construe an NOA liberally. See Durr, 400 F.3d at 1380; see also Smith v. Barry,
502 U.S. 244, 248 (1992) (holding same with respect to Rule 3 of the Federal Rules of Appellate
Procedure). For example, the Court must accept the NOA even if the appellant could not identify
the specific date of the Board decision. See Calma v. Brown, 9 Vet.App. 11, 15-16 (1996); see also
11
U.S. VET . APP . R. 3(c)(2) (NOA must "reasonably identify the Board decision appealed from").
These cases indicate that the burden on the appellant for filing of an NOA is very low. Therefore,
it cannot be said that the appellant needed his paperwork to file an NOA in this Court and he has not
demonstrated how the misplacement of it prevented him from doing so. A statement of the
approximate date and issues of the Board decision, along with a statement indicating intent to seek
review of the decision would have been sufficient to satisfy the low burden on a claimant's seeking
to file an NOA. See Smith v. Barry, Durr, and Calma, all supra; U.S. VET . APP . R. 3.
Most importantly, the appellant has also failed to demonstrate how Hurricane Ivan, which
struck in September, affected his ability to file a timely appeal, which was due over three months
later. Although the appellant asserts that his paperwork was packed in boxes and he was forced to
live in three rooms while his home was being repaired, he does not relate how this circumstance
prevented him from filing a timely appeal. In addition, the Court would be more inclined to apply
equitable tolling had the hurricane struck later in the judicial-appeal period. As noted above, the
appellant would not be ineligible for equitable tolling because he waited until the end of the judicial-
appeal period to file his NOA. See Valverde, 224 F.3d at 135-136. However, this is the opposite
case. The extraordinary circumstance that the appellant relies upon for justifying equitable tolling
of the judicial-appeal period occurred early in the period. The appellant had over three months after
Hurricane Ivan struck in September 2004 to file his NOA with the Court, and he failed to do so.
This failure demonstrates the appellant's lack of due diligence in pursuing his judicial appeal.
III. CONCLUSION
Based on the information before the Court, the appellant has neither established that his
untimely appeal was the direct result of Hurricane Ivan, nor demonstrated that he has acted with due
diligence in pursuing his judicial appeal. Therefore, we conclude that he has not met his burden of
establishing jurisdiction in this Court. See McNutt and Bethea, both supra. Accordingly, this appeal
is DISMISSED for lack of jurisdiction.
12