William Rickett v. Eric K. Shinseki , 26 Vet. App. 210 ( 2013 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-2493
WILLIAM RICKETT, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
ORDER
Before KASOLD, Chief Judge, and HAGEL, MOORMAN, LANCE, DAVIS, SCHOELEN,
PIETSCH, and BARTLEY, Judges.1
On April 14, 2009, more than 120 days after the November 5, 2008, Board of Veterans'
Appeals (Board) decision that denied benefits for his bilateral lower extremity peripheral neuropathy,
veteran William Rickett filed pro se a Notice of Appeal (NOA) with the Court. See 38 U.S.C.
§ 7266(a) (NOA must be filed within 120 days of Board decision). Prior to April 14, however, and
within the 120-day period to file an NOA, Mr. Rickett had mailed a letter to an office (022D) within
the VA Office of General Counsel (OGC), expressing an intent to appeal to the "Courts."
Preliminary Record (PR) at 1. As further discussed below, because Mr. Rickett mailed his letter to
OGC (022D) within the 120-day appeal period, his letter reflected an intent to seek review at the
Court, and he promptly filed an NOA with the Court upon learning that he had misfiled, equitable
tolling of the 120-day appeal period is warranted, and his appeal will be accepted.
I. BACKGROUND2
On November 5, 2008, the Board mailed to Mr. Rickett its decision and a standard Notice
of Appellate Rights (NAR). As reflected by a U.S. Postal Service (USPS) postmark, on January 8,
2009, Mr. Rickett mailed to the "Office of General Counsel (022D)" a document that states:
Refer to (014A4)
William C. Rickett
[Social Security Number]
This is to inform you that I wish to appeal this to the Courts
Thank you
[signed William C. Rickett]
1
Judge Greenberg did not participate in this matter because it was assigned for a full court decision and
conferencing was held prior to his appointment with the Court. See Court's INTERNAL OPERATING PROCEDURES, sec.
VII(b)(1)(B).
2
The facts below are based on the parties' submissions, confirmed by the preliminary record, and undisputed.
PR at 1-3. The document reflects a VA date stamp of January 26, 2009, and at some point it was
forwarded to the VA regional office (RO) in Waco, Texas, which received the document on February
19, 2009. See PR at 3. The RO stamped it "appeals" and placed it in a locked cabinet where Board
decision files are held – to maintain their integrity pending possible appeal – for 150 days following
a Board decision. PR at 1; see also April 26, 2012, Oral Argument Transcript at 33:30. On March
6, 2009, the 120-day period to file an appeal expired. See 38 U.S.C. § 7266(a). Upon receiving no
response with regard to his appeal, on April 14, 2009, Mr. Rickett contacted the Court and
recognized his error in sending his intent to appeal to OGC (022D). That day, he also mailed an
NOA to the Court, attached a copy of his letter to OGC (022D), and explained his error. On July 28,
2009, the Secretary filed a motion to dismiss for untimely filing.
At the time Mr. Rickett filed his NOA with the Court, equitable tolling of the time to file an
NOA was deemed legally impermissible, and Mr. Rickett's appeal was dismissed for lack of
jurisdiction. See Rickett v. Shinseki, 23 Vet.App. 366, 368-71 (2010) (relying on Henderson v.
Peake, 22 Vet.App. 217 (2008), and Henderson v. Shinseki, 589 F.3d 1201 (Fed. Cir. 2009)
(Henderson I and II, respectively)). Mr. Rickett appealed to the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit). While his appeal was pending decision by the Federal Circuit,
Henderson II was overturned by the U.S. Supreme Court in Henderson v. Shinseki, 131 S. Ct. 1197,
1206 (2011) (Henderson III), which found that the 120-day period to file an appeal to this Court
under section 7266(a), although an "important procedural rule," was not jurisdictional. Based on
Henderson III, the Federal Circuit vacated the Court's Rickett decision and remanded the case for
further adjudication. See Rickett v. Shinseki, 421 F. App'x 967 (Fed. Cir. 2011).
Following Henderson III, this Court held in a panel decision that, "subject to revision,
pursuant to the Court's rule-making authority," the 120-day period to file an NOA is subject to
equitable tolling within the parameters established by the precedents of the Federal Circuit and this
Court prior to Henderson I. See Bove v. Shinseki, 25 Vet.App. 136, 140 (2011) (per curiam order).
One such precedential decision is Reed v. Principi, 17 Vet.App. 380, 383 (2003). Reed held that an
NOA addressed to and filed with the OGC after the 120-day appeal period (1) could not be accepted
as timely under the statutory postmark filing rule, id. (noting that 38 U.S.C. § 7266(c) applies to
NOAs "properly addressed to the Court"), and (2) did not warrant equitable tolling because, inter
alia, claimants are unfamiliar with the VA OGC. 17 Vet.App. at 385.
However, later Federal Circuit precedents – namely, Brandenburg v. Principi, 371 F.3d 1362(Fed. Cir. 2004) (NOA misfiled at Board), and Bailey (Edward) v. Principi, 351 F.3d 1381 (Fed. Cir.
2003) (NOA misfiled at RO) – focused on factors other than familiarity with the place of filing in
their equitable tolling analyses. In light of these later precedents, as well as the fact that the 120-day
appeal period is an important procedural rule, Henderson III at 1206, en banc review is warranted
to assess the continued viability of Reed and the application of equitable tolling when an NOA is
filed within the 120-day appeal period, but at a location other than the Court.
2
II. ANALYSIS
A. Caselaw Regarding Equitable Tolling in Cases of Timely Misfilings
Our analysis begins with this Court's and the Federal Circuit's equitable tolling caselaw as
applied in varying circumstances over time. Section 7266(a) states that a claimant "shall file a notice
of appeal with the Court within 120 days after the date on which notice of the decision is mailed"
to the claimant. The 120-day period initially was viewed as a jurisdictional barrier to the exercise
of this Court's authority to review Board decisions. See Butler v. Derwinski, 960 F.2d 139, 140-41
(Fed. Cir. 1992); Cleary v. Brown, 8 Vet.App. 305, 307 (1995). The Federal Circuit in Bailey
(Howard) v. West, 160 F.3d 1360 (Fed. Cir. 1998) (en banc), subsequently held that the 120-day
period could be equitably tolled in cases where "'the claimant has actively pursued his judicial
remedies by filing a defective pleading during the statutory period, or where the complainant has
been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass.'" Id.
at 1364 (quoting Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) (footnotes omitted)).
Although Bailey (Howard) involved the untimely filing of an NOA due to the misleading
conduct of an adversary (the Secretary), the Federal Circuit's subsequent caselaw on equitable tolling
primarily has addressed the other prong of equitable tolling recognized by Bailey (Howard), to wit:
the timely filing of a defective pleading. The first pertinent holding is found in Jaquay v. Principi,
304 F.3d 1276 (Fed. Cir. 2002), which involved the interplay between the filing of a motion for
Board Chairman reconsideration, and this Court's decision in Rosler v. Derwinski, 1 Vet.App. 241,
249 (1991), which held that the finality of a Board decision was abated upon the filing of a motion
for Board Chairman reconsideration if the motion was filed within the 120-day appeal period, such
that a new 120-day period would begin when and if the motion for reconsideration by the Board
Chairman was denied.
The appellant in Jaquay filed a motion for Board Chairman reconsideration of a Board
decision within the 120-day appeal period, but he filed it with the RO that had processed his claim
instead of with the Board Chairman, as required by VA regulation. 304 F.3d at 1279. About 10
months later, the RO forwarded the motion to the Board Chairman, who denied it. Id. Within 120
days of that denial, the appellant filed his NOA with the Court, which rejected it as untimely filed
because the motion for reconsideration by the Board Chairman had not been filed with the Board
Chairman within the 120-day period. Id. at 1279-80. The Federal Circuit held that the filing of a
motion for reconsideration by the Board Chairman within the 120-day appeal period – as needed to
effectuate a Rosler abatement – did not require strict compliance with VA regulations on where to
file such a motion for reconsideration; therefore, filing the motion with the RO effectuated a Rosler
abatement. Id. at 1288-89.
In support of its holding in Jaquay, the Federal Circuit noted that (1) the due diligence
requirement for equitable tolling is more relaxed when a pro se claimant timely misfiles a pleading,
(2) the veteran-friendly nature of proceedings before VA, during the "non-adversarial stage of a
claim for benefits," counseled construing due diligence in favor of the claimant, (3) the misfiling at
the RO from which the claim originated showed that the claimant actively sought redress of the
3
Secretary's action and did not constitute a garden variety claim of excusable neglect, (4) the misfiling
with the RO was the claimant's only misstep in filing his motion for reconsideration by the Board
Chairman, and (5) internal VA policies governed the forwarding or return of misdirected mail. Id.
at 1287; see id. at 1288 (citing provision of the VA Adjudication Procedures Manual M21-1 that is
now located at M21-1MR, pt. II, ch. 5, sec. 3).
In this context – the misfiling within the 120-day appeal period of a motion for
reconsideration by the Board Chairman at the RO from which the claim originated – the Federal
Circuit further noted that the postmisfiling actions by the claimant were not for consideration in the
equitable tolling assessment; rather, the timely misfiling at the RO from which the claim originated
satisfied, as a matter of law, the due diligence requirement for equitably tolling the time to file a
motion for reconsideration by the Board Chairman for purposes of a Rosler abatement. Id. at 1288-
89. The Federal Circuit also explicitly noted that there was no dispute that Mr. Jaquay filed his NOA
at the Court within 120 days of the Board Chairman's denial of the motion for reconsideration, such
that, per Rosler, the NOA was timely filed with the Court. Id.Unlike Jaquay, subsequent decisions by the Federal Circuit on equitable tolling did not
involve the misfiling of an administrative motion for reconsideration by the Board Chairman and a
Rosler abatement of the 120-day appeal period. Santana-Venegas v. Principi, 314 F.3d 1293, 1295
(Fed. Cir. 2002), involved an NOA that was timely, yet misfiled at the RO from which the claim
originated. Twenty days after the 120-day period expired, the RO informed the appellant that he had
to file his NOA with the Court, and the appellant thereafter filed his NOA with the Court 21 days
later. A single-judge order of this Court dismissed his appeal as untimely. Id. at 1295-96. In
reversing, the Federal Circuit, inter alia, (1) reiterated that the due diligence requirement for
equitable tolling was more relaxed when a pro se, prospective appellant timely misfiled a pleading,
(2) again noted that internal VA policies governed the forwarding or return of misdirected mail, (3)
held that a prospective appellant's misfiling of an NOA with the RO from which the claim originated
showed an intent to seek redress of the Secretary's action and was not a garden variety claim of
excusable neglect, and (4) further held, as a matter of law, that the misfiling of an NOA at the RO
from which the claim originated constituted due diligence. Of note, the Federal Circuit's decision
is devoid of any implication or charge that the appellant had not filed with the Court promptly after
learning he had misfiled his NOA.
Following Jaquay and Santana-Venegas, this Court was faced with a situation in Reed that
involved a prospective appellant who mailed his NOA to "General Counsel (027)" approximately
one month before the expiration of the 120-day appeal period, although (apparently as a result of
mailing delays related to an anthrax scare) it was not received by the OGC until 9 days after the
appeal period had expired, and was not forwarded by OGC and received by the Court for another 4
days.3 17 Vet.App. at 381. The Court acknowledged that equitable tolling was permitted for NOA
misfilings at the RO within the 120-day appeal period pursuant to Santana-Venegas, but held that
3
Our concurring colleagues correctly note that Reed involved an untimely misfiling. However, the analysis
in that decision was not predicated on the fact that it was untimely.
4
Mr. Reed's filing of an NOA at the OGC did not warrant similar treatment. The Court based that
distinction on essentially four factors: (1) The OGC – unlike the RO – was an office "with which [the
prospective appellant] had no familiarity," (2) prospective appellants filing NOAs have moved from
the nonadversarial VA administrative system to a Federal court with adversarial process, (3) the
OGC had acted promptly in forwarding Mr. Reed's NOA to the Court, and (4) Mr. Reed was warned
in the NAR that filing with the OGC would not protect the right to appeal to the Court. 17 Vet.App.
at 385.
Reed was not appealed, but, three days after Reed was issued, the Federal Circuit provided
additional guidance on key criteria for applying equitable tolling in cases involving timely misfiled
NOAs. See Bailey (Edward), 351 F.3d at 1385. The appellant in Bailey (Edward), through his state
veterans service representative, mailed his NOA4 to the RO from which his claim originated within
the 120-day appeal period. Id. at 1383. After receiving no response from the RO for almost six
months, the appellant submitted an NOA to the Court. Id. Although a single-judge decision of this
Court found that the appellant – by using the wrong form and sending it to the wrong location – had
not exercised due diligence to warrant equitable tolling, the Federal Circuit again found that filing
the NOA with the RO from which the claim originated satisfied the due diligence requirement as a
matter of law. Id. at 1385. More specifically, the Federal Circuit found the errors in form and
location of filing inapposite, stating that
[a]s long as the veteran's intention is clear and [VA] is put on notice
of his intention to seek further review of his claim, an error in the
form or in the office to which it is sent, or both, is not sufficient to
render the filing ineligible for consideration under the equitable
tolling doctrine.
Id. Thus, rather than the factors found significant in Reed, the Federal Circuit emphasized in its
analysis: (1) Due diligence; (2) the prospective appellant's intention to appeal; and (3) VA's being
put on notice of that intent to appeal. Moreover, he filed his NOA at the Court promptly after
inquiring as to the status of his appeal at the Court. Bailey (Edward) v. Principi, No. 01-1116, 2002
WL 1269893, at *1 (Vet. App. May 31, 2002) (mem. dec.).
Shortly thereafter, the Federal Circuit in Brandenburg again instructed that "the focus [of
equitable tolling analysis is] whether the veteran exercised due diligence in preserving his legal
rights, and whether the veteran's intention is clear and [VA] is put on notice of his intention to seek
further review of his claim." 371 F.3d at 1364 (internal quotation marks omitted). Brandenburg
involved an appellant who filed his NOA at the Board near the end of the 120-day appeal period.
Id. at 1363. The RO promptly notified Mr. Brandenburg that he should have filed his NOA with the
Court, and Mr. Brandenburg filed an NOA with the Court about three months after such notification.
Id.4
Although the claimant submitted his NOA on a Form 9 (Substantive Appeal to the Board), it was "undisputed
that Mr. Bailey intended that document to serve as his [NOA] to the Veterans Court." Id. at 1383.
5
In Brandenburg, a single-judge decision of this Court held that equitable tolling was
unwarranted under Santana-Venegas because the appellant filed his NOA at the Board, rather than
the RO from which the claim originated. Id. Applying the principles enunciated in Bailey (Edward),
however, the Federal Circuit found that "there is no meaningful difference between the [RO] and the
[B]oard," and held that equitable tolling "may apply when an appellant timely misfiles [an NOA]
with the Board." Id. at 1364. Of note, the Federal Circuit specifically recognized that past cases
involved misfilings at the RO from which the claim originated, but further noted that "whether
equitable tolling applied in each case did not hinge on that particularity." Id. Also significant is the
fact that the Federal Circuit's decision contained no implication or charge that the three-month period
between Mr. Brandenburg being notified by the RO of the proper location to file his NOA and his
subsequent filing at the Court reflected a lack of due diligence in pursuing his judicial remedy.
Thereafter, in Hunt v. Nicholson, this Court recognized that the Federal Circuit, in effect, had
established three criteria for equitable tolling in misfiling cases:
It is clear from the law developed by the Federal Circuit that in cases
involving an appellant who misfiles his NOA at a place other than
this Court, three criteria must be satisfied before equitable tolling may
be allowed: (1) the claimant must have exercised due diligence in
pursuing his legal rights; (2) the misfiled document must reveal a
clear intention by the claimant to seek further review; and (3) the
misfiled document must put VA on notice of the claimant's intention.
20 Vet.App. 519, 524 (2006).
Read together, Santana-Venegas, Bailey (Edward), Brandenburg, and Hunt stand for the
proposition that equitable tolling is predicated primarily on the due diligence of the prospective
appellant as opposed to the particularity of the location at which the prospective appellant misfiles
his or her NOA and that the due diligence requirement is relaxed in cases of timely misfilings by pro
se, prospective appellants. Thus, to the extent that Reed stands for the proposition that equitable
tolling based on a misfiled NOA applies only when the misfiling is at the RO that processed the
claim or at the Board, or that timely misfilings at the OGC are not subject to equitable tolling per se,
such holdings are overturned, consistent with the Federal Circuit precedents cited above. See
Patterson v. McLean Credit Union, 491 U.S. 164, 173 (1989) (where the "growth of judicial
doctrine" has "removed or weakened the conceptual underpinnings from the prior decision . . . , the
Court has not hesitated to overrule an earlier decision"); Bethea v. Derwinski, 2 Vet.App. 252, 254
(1992) (panel decisions constitute binding precedent unless overturned by, inter alia, the full Court
or the Federal Circuit). Further, to the extent Reed considered the promptness of Agency action in
informing the prospective appellant of the misfiling as a factor that weighed against equitable tolling,
we further hold that this factor has no bearing against an individual's due diligence.
6
B. The Criteria for Equitable Tolling in Cases of Timely Misfilings
The Court's summation in Hunt of the Federal Circuit's criteria for assessing whether
equitable tolling is warranted in the case of a timely misfiling remains intact, but requires further
elaboration in light of our holding today that Reed has been overtaken by Federal Circuit caselaw.
Moreover, although not included in Hunt's enumerated list of criteria for equitable tolling, a timely
misfiling is a necessary criterion in application of the test recognized by the Court in Hunt. Thus,
the Court is required to address each of these four criteria when assessing whether equitable tolling
is warranted in such a situation.
1. Timely Misfiling
Although not a focus of the above-cited Federal Circuit cases addressing equitable tolling,
a necessary factual predicate in all those cases – except Jaquay, which involved an administrative
motion for reconsideration by the Board Chairman – was the filing of a purported NOA at a location
other than the Court within the 120-day judicial appeal period. See Brandenburg, Bailey (Edward),
and Santana-Venegas, all supra (all involving a misfiling within the 120-day period); see also Hunt,
20 Vet.App. at 524 (distilling from those Federal Circuit decisions the criteria for equitable tolling
"in cases involving an appellant who misfiles his NOA at a place other than this Court").
A prospective appellant must demonstrate with independent proof (i.e., evidence beyond his
or her bare assertion) that the NOA was misfiled–i.e., filed at a location other than the Court–within
the 120-day filing period. Fithian v. Shinseki, 24 Vet.App. 146, 151 (2010) (requiring independent
proof of mailing to invoke a presumption of receipt under the common law mailbox rule or to rebut
an established Agency presumption of regularity with respect to handling incoming mail). Indeed,
to hold otherwise would create a lesser burden to establish timeliness for prospective appellants who
misfile an NOA than the burden for those who deliver or mail an NOA to the Court. See, e.g., Rios
v. Nicholson, 490 F.3d 928, 931-34 (Fed. Cir. 2007) (recognizing that common law mailbox rule is
for application), on remand at Rios v. Mansfield, 21 Vet.App. 481, 482 (2007) (outlining when
common law mailbox rule is for application). We note that the date of a misfiling frequently will
be established by a preliminary record or affidavit filed by the Secretary. See, e.g., Barrett v.
Nicholson, 466 F.3d 1038, 1042-44 (Fed. Cir. 2006).
Moreover, we further hold today that the rules that apply to determining whether an NOA
filed in this Court is timely (i.e., date of receipt of an NOA or the date of the mailing as reflected by
a USPS postmark, see 38 U.S.C. § 7266(c), or by application of the common law mailbox rule, see
Rios v. Mansfield, supra) will be used to determine whether an NOA was timely misfiled at another
location. In this regard, we overrule Reed's holding that the statutory postmark rule in section
7266(c) does not apply to an NOA that was misfiled at another location. See Reed, 17 Vet.App. at
383.
7
2. Intent To Appeal
A prospective appellant's intent in filing a document can be discerned from the form and
content of the purported NOA and the circumstances surrounding the filing of that document. See
Fithian, 24 Vet.App. at 157 ("The Court . . . does have the authority, in determining whether a timely
NOA has been filed, to also determine whether a document is a motion for reconsideration.");
Kouvaris v. Shinseki, 22 Vet.App. 377, 379 (2009) (examining "'the document as a whole and the
circumstances of its filing'" to discern whether a document was intended to be an NOA (quoting
Durr v. Nicholson, 400 F.3d 1375, 1381 (Fed. Cir. 2005))). The Court's Rules of Practice and
Procedure provide, in pertinent part, that an NOA
(1) should show the name, address, and telephone number of the person or persons
making the appeal, and the appropriate [VA] claims file number; [and]
(2) shall reasonably identify the Board decision appealed from and be capable of
being reasonably construed, on its face or from the surrounding circumstances, as
expressing an intent to seek Court review of that decision[.]
U.S. VET. APP. R. 3(c). These requirements, however, have not been strictly construed, so that an
individual's failure to include his or her telephone number, for example, does not necessarily prove
fatal. See Kouvaris, 22 Vet.App. at 379.
The requirement that an NOA reflect a clear intent to appeal to the Court is particularly
important because a claimant for VA benefits has several options when the Board denies the benefit
sought – e.g., a motion for reconsideration by the Board Chairman, a request to reopen, or an appeal
to the Court – such that the filing of the document at VA itself can connote a lack of intent to seek
judicial review if the document does not reveal a clear intention by the individual to seek further
review at the Court. See Brandenburg, 371 F.3d at 1364; Bailey (Edward), 351 F.3d at 1385; Boone
v. Shinseki, 22 Vet.App. 412, 414 (2009) (examining the "circumstances surrounding its filing" to
determine whether a document is an NOA or otherwise). Nevertheless, use of the Court's NOA form
or any specific language is not required, and any filing must be construed liberally in the context of
its language and circumstances of filing. See Posey v. Shinseki, 23 Vet.App. 406, 408 (2010);
Kouvaris, 22 Vet.App. at 379 (noting that "the failure to explicitly ask for judicial review, or state
that one is appealing, does not necessarily mean that a document filed with the Court will not be
considered an NOA"); id. at 380 (finding that document filed at the Board, even liberally read, was
not a misfiled NOA).
3. Notice to VA of Intent To Appeal
The purported NOA must also place the Secretary on notice of the individual's intent to seek
further review of his or her claim. See Brandenburg, Bailey (Edward), and Hunt, all supra. The
Court's consideration of this criterion, like the issue of whether an individual intended to appeal an
adverse Board decision, requires a factual determination based on a liberal reading of the misfiled
document, as well as consideration of the circumstances surrounding its filing. See Boone, supra.
8
4. The Relaxed Due Diligence Requirement
In Brandenburg, the Federal Circuit made clear that "the focus [of an equitable tolling
analysis is] whether the veteran exercised due diligence in preserving his legal rights," 371 F.3d at
1364 (internal quotation marks omitted), and, in Santana-Venegas and Jaquay, the Federal Circuit
indicated that the due diligence requirement for a pro se appellant who timely misfiles is "relaxed,"
314 F.3d at 1297; 304 F.3d at 1287. As discussed below, we hold that the due diligence assessment
in timely misfiling cases is based on a totality of circumstances. Although the Court will not now
endeavor to provide an exhaustive list of factors to consider in a due diligence analysis, we will
elaborate on two such factors that are particularly relevant in cases of timely misfiled NOAs and that
come into play in Mr. Rickett's case: The location of the misfiling and any corrective actions that the
prospective appellant takes after learning of the misfiling.
a. Location of Misfiling
The Federal Circuit clearly has held that a prospective appellant exercises due diligence as
a matter of law at the point in time when he or she files an NOA within the 120-day appeal period
at the RO from which the claim originated or the Board. However, there is little guidance from the
Federal Circuit as to when a misfiling at another location might reflect due diligence. Although
familiarity with the particular location where the NOA was misfiled is not a determinative or
required factor when assessing whether a misfiling is eligible for equitable tolling, see Bailey
(Edward), 351 F.3d at 1385, we believe the prospective, pro se appellant nevertheless must
demonstrate a reasonable basis for the misfiling. The Federal Circuit noted in Brandenburg that
there was "no meaningful difference between the [RO] and the [B]oard" for purposes of evaluating
a prospective appellant's diligence. 371 F.3d at 1364. In certain circumstances, there may be
misfilings of an NOA at other VA offices that might reflect due diligence. As such, the
reasonableness assessment will consider the prospective appellant's reasons for believing that such
a location might be appropriate for obtaining judicial review or filing an appeal of a decision on
veterans benefits. We address below whether the filing in this instance at the "Office of General
Counsel (022D)" reflects relaxed due diligence on the part of Mr. Rickett.
b. Actions Taken After Learning of Misfiling
The Federal Circuit has not discussed what actions taken by a prospective appellant after
learning that he or she misfiled an NOA at the wrong location constitute due diligence. Although
the Federal Circuit noted in Jaquay that Mr. Jaquay's actions after the misfiling were not for
consideration in the equitable tolling assessment of that case, Jaquay involved (1) a misfiling – at
the RO instead of the Board – of a motion for reconsideration by the Board Chairman, during the
administrative and nonadversarial portion of the VA benefits adjudication process, and (2) the
question whether such a misfiling would abate the finality of the Board decision for purposes of
appealing to the Court per Rosler. 304 F.3d at 1288. Specifically, Jaquay did not involve the
misfiling of an NOA. Indeed, actions taken after learning of a misfiling are relevant in the context
of NOAs because Congress has provided that the Court may not hear an appeal unless an NOA is
filed with the Court. See 38 U.S.C. § 7266(a) (NOA must be filed at the Court "to obtain review by
9
the Court"). Although an NOA may – in circumstances outlined by statute – be deemed filed with
the Court, the NOA must be either delivered to the Court or, if mailed, addressed to the Court. 38
U.S.C. § 7266(c) (NOA deemed received by the Court "if the [NOA] is delivered" to the Court or
"if the [NOA] is properly addressed to the Court and is mailed" with a legible USPS postmark); see
also U.S. VET. APP. R. 4(a); Rios, supra (common law mailbox rule applies). Thus, under the terms
of the statute, receipt of an NOA by the Secretary does not constitute filing with the Court, which
stands as an independent, judicial body, wholly separate from VA.
Within the administrative and nonadversarial portion of the VA benefits claims and appeal
process, the Secretary has the duty to assist and has enacted policies with regard to forwarding
misdirected mail within the Agency, such that there is no doubt that a VA RO, which adjudicates
claims, has the duty to transfer a misfiled administrative motion for Board Chairman reconsideration
to the proper VA office. See Jaquay, 304 F.3d at 1288 (citing misdirected mail policies in the M21-
1, the then-existing VA Adjudication Procedures Manual); M21-1MR, pt. I, ch. 1, sec. 1.05 (ROs
contain divisions that carry out the functions of the Veterans Benefits Administration); see also 38
U.S.C. § 5103A. Moreover, the doctrine of laches does not apply to a veteran's failure to pursue his
claim when the delay is caused by the Secretary's failure to take required action, see Browder v.
Derwinski, 1 Vet.App. 204, 208 (1991) (noting that "the VA benefits system, as well as the Veterans'
Judicial Review Act both militate against the application of the [laches] doctrine to cases before this
Court") (citing Manio v. Derwinski, 1 Vet.App. 140, 144 (1991)), such as the Board Chairman's
rendering of a decision on reconsideration, 38 U.S.C. § 7103. In the context of a motion for Board
reconsideration, it is not surprising that the Federal Circuit deemed irrelevant Mr. Jaquay's
postmisfiling actions. The timely misfiling of the motion for reconsideration by the Board Chairman
– an action internal to VA – at the RO where the claim originated instead of with the Board
Chairman abates the finality of the Board decision for Rosler purposes, and the time to file an NOA
with the Court does not begin anew until the Chairman denies the motion for reconsideration. As
noted by the Federal Circuit, after he was notified that his motion was denied, Mr. Jaquay filed his
NOA with the Court within the new 120-day appeal period.
Unlike the timely misfiling of a motion for reconsideration by the Board Chairman – an
internal matter within VA – the timely misfiling of an NOA with VA does not abate the finality of
a Board decision, and the date of that misfiling is not the operative date for a filing at the Court
because the NOA still must be filed at the Court for a judicial appeal to proceed. See 38 U.S.C.
§ 7266(a), (c); Rios, supra (common law mailbox rule applies). Otherwise stated, filing an NOA
commences a judicial appeal and its adversarial process, an action decidedly not within VA. Indeed,
VA is an executive branch agency and the Secretary is an adverse party in litigation before the Court,
which exercises the judicial power of the United States. See Freytag v. Comm'r of Internal Revenue,
501 U.S. 868, 889 (1991) (holding that Article I courts "exercise the judicial power of the United
States"). Moreover, the availability of equitable tolling in cases of misfiled NOAs is not based on
VA's duty to assist or other internal VA policies, but on the due-diligent pursuit of judicial remedies
by the prospective appellant. See Bailey (Howard), 160 F.3d at 1364.
Therefore, although a prospective appellant exercises due diligence as a matter of law at the
point in time when he or she files an NOA within the 120-day appeal period at the RO from which
10
the claim originated, the Board, or possibly other locations within VA, we believe that a prospective
appellant's actions taken after learning of the misfiling are factors in the "relaxed" due diligence
assessment. This view is not inconsistent with Santana-Venegas and Brandenburg; those decisions
specifically noted the time between the appellant learning of the misfiling and the proper filing at
the Court. See Santana-Venegas, 314 F.3d at 1295-96 (RO informed prospective appellant that he
had misfiled his NOA, and he filed at the Court 21 days later); see also Brandenburg, 371 F.3d at
1363 (RO informed prospective appellant that he had misfiled his NOA, and he filed at the Court
within 3 months). Significantly, those cases did not contain the explicit statement of Jaquay that
postmisfiling actions were not relevant.5
Accordingly, we hold that the due diligence assessment, which is "relaxed" in cases of timely
misfilings by pro se, prospective appellants, is based on the totality of the circumstances surrounding
the misfiling and actions taken after learning of the misfiling, which culminate in the ultimate filing
of an NOA with the Court – either because the Secretary forwarded a misfiled NOA to the Court,
or because the prospective appellant subsequently filed an NOA with the Court. See 38 U.S.C.
§ 7266(a), (c); Rios, supra (common law mailbox rule applies).
Our holding today is made in the context of Federal Circuit precedents and in furtherance of
our rulemaking authority. See 38 U.S.C. § 7264. As stated in Henderson III, 131 S. Ct. at 1206, the
120-day appeal period is an "important procedural rule," and equitably tolling this important rule
cannot be based solely on a timely misfiling at any location outside the Court, possibly followed by
inaction for many years after learning of the misfiling. To do so would subjugate the important rule
that requires filing of a timely NOA with the Court to the control of others and give little meaning
to the term "relaxed due diligence" and the requirement that prospective appellants diligently pursue
judicial review to invoke equitable tolling. See Bove, 25 Vet.App. at 143 ("[I]t is the role of
Congress and the Court . . . to enforce or adjust the 'important procedural rule' prescribed by
Congress in section 7266."); see also In re Violation of Rule 28(c), 388 F.3d 1383, 1385 (Fed. Cir.
2004) ("[I]n order to get its work done, [a court] must insist on strict compliance with its rules.
Violations . . . are all too frequent . . . , impos[e] an unfair burden on opposing parties . . . , [and]
burden the court."). Accordingly, when an NOA is timely misfiled, we find it reasonable and
prudent to hold that the due diligence assessment for equitable tolling of the time to file an NOA
with the Court must be based on the totality of the circumstances, including whether there was a
reasonable basis for the pro se, prospective appellant to file his or her NOA at a location other than
5
In this decision, we decline to address and leave for another day the question whether relaxed due diligence
is required for the period between a timely misfiling and learning that the NOA was misfiled in the wrong location.
Although not necessary to our holding, we observe that – if relaxed due diligence were required between his timely
misfiling and learning that he had misfiled – then Mr. Rickett's actions during that period would appear to have satisfied
that requirement. See e.g., Brandenburg, 371 F.3d at 1363 (RO informed prospective appellant 23 days after his
misfiling that he had misfiled his NOA, and he then filed at the Court within 3 months); Bailey (Edward), 351 F.3d at
1383 (prospective appellant filed NOA at Court 6 months after no response from filing at RO); Santana-Venegas, 314
F.3d at 1295-96 (RO informed prospective appellant 70 days after his misfiling that he had misfiled his NOA, and he
filed at the Court 21 days later).
11
the Court, and whether he or she showed the necessary relaxed due diligence after learning of such
misfiling.
C. Application to Mr. Rickett's Case
1. Timely Misfiling
There is no dispute, and the record reflects, that Mr. Rickett's purported NOA was received
by the "Office of General Counsel (022D)" on January 26, 2009, with more than 50 days remaining
in the appeal period.
2. Intent To Appeal
Mr. Rickett's purported NOA included what he believed was his VA claims file number and
stated that he wanted to appeal "this to the Courts." PR at 1. He included his full name, and the
envelope in which the document was sent bore his mailing address. PR at 1, 3. Although the
document was not filed at the Court, the circumstances surrounding Mr. Rickett's submission –
namely, his filing two months after an adverse Board decision and his invoking the words "appeal"
and "Courts" – reflect an intent to appeal. See Boone, 22 Vet.App. at 414 (examining "the document
and the circumstances surrounding its filing" to determine whether it was an NOA). Taken as a
whole, Mr. Rickett's January 2009 letter reveals a clear intention to seek further review at the Court
and, therefore, the Court is satisfied that the document meets the content requirements of an NOA.
See Bailey (Edward), 351 F.3d at 1385; see also Brandenburg, 371 F.3d at 1364. Compare Calma
v. Brown, 9 Vet.App. 11, 15 (1996) (statement appealing Board Chairman's denial of reconsideration
held to be an NOA because prospective appellant's intent clearly was "to pursue his claim to the next
appropriate level in the system"), and Chadwick v. Derwinski, 1 Vet.App. 74, 76 (1990) (statement
filed with Board held to be an NOA because "it requested review by the Court"), with Kouvaris,
22 Vet.App. at 380 (statement filed with Board not an NOA because "it lacked any indicia of intent
to seek review by the Court"), and Boone, 22 Vet.App. at 414 (statement filed with RO not an NOA
because it "evidenced no clear intent to seek judicial review").
Although the Secretary argues that Mr. Rickett's letter addressed to an office within OGC,
specifically 022D, reflects no clear intent to appeal to the Court, the misfiled letter specifically noted
an intent to "appeal this to the Courts." PR at 1. When a prospective appellant's letter reflects an
intent to appeal to the courts, the location to which the letter was addressed is not determinative of
whether the letter constitutes an NOA. See Chadwick, supra. Moreover, as to the Secretary's
suggestion that the terms "this" and "Courts" render the document ambiguous as to what decision
Mr. Rickett was appealing and what court he was appealing to, such a technical reading ignores
common sense, contravenes the Secretary's duty to read pro se filings sympathetically, and is not
supported by the OGC's and RO's actions. See Andrews v. Nicholson, 421 F.3d 1278, 1283 (Fed.
Cir. 2005); Kouvaris, 22 Vet.App. at 379; cf. Goldlawr, Inc. v. Heiman, 369 U.S. 463, 467 (1962)
(complaints shall not be dismissed based on "'time-consuming and justice-defeating technicalities'"
(quoting Internatio-Rotterdam, Inc. v. Thomsen, 218 F.3d 514, 517 (Fed. Cir. 1955))). The actions
of the OGC in forwarding Mr. Rickett's letter to the RO reflect an understanding that Mr. Rickett's
12
use of "this" referred to his claim for VA benefits, and the RO's stamping of the document as
"appeals" and placing it in a locked cabinet where files are held following a Board decision reflect
an understanding that the document was an appeal following a Board decision. Moreover, the
Secretary's suggestion at oral argument that the professionals in Group II of the OGC, the section of
OGC to which his envelope was addressed, may have been confused and thought that Mr. Rickett
intended to appeal his claim to the Federal Circuit or some other court strains credulity.
3. Notice To VA of Intent to Appeal
Mr. Rickett's letter also put the Secretary on notice of his intention within the 120-day period
to file an appeal. See Bailey (Edward), 351 F.3d at 1385 (equitable tolling warranted where, inter
alia, "[VA] is put on notice of [a prospective appellant's] intention to seek further review of his
claim"). To the extent the Secretary argues that the document's receipt at OGC (022D) does not put
"VA on notice," his argument is not persuasive. Id. That document expressly states that Mr. Rickett
wished to appeal to the courts, was associated readily with Mr. Rickett's claim, and was forwarded
to the RO where it was stamped "appeals." We have no doubt that Mr. Rickett's filing with OGC
(022D) put the Secretary on notice of Mr. Rickett's intent to seek review in this Court. See Fithian,
supra; 38 C.F.R. § 14.500 (2012) ("Functions and Responsibilities of General Counsel").
4. Relaxed Due Diligence
a. Location of Misfiling
Mr. Rickett mailed his NOA to the "Office of General Counsel (022D)," which is an address
on the NAR attached to the November 5, 2008, Board decision that was provided to Mr. Rickett by
the Secretary. The NAR indicates that this address is for the office within VA, Professional Staff
Group II (Group II), that, inter alia, handles fee agreements between appellants and attorneys or
accredited agents for representation at the Court.6 Although the NAR notes that the OGC address
is to be used for filing attorney fee agreements, Mr. Rickett asserts that the small print, multiple
addresses, and overwhelming amount of information provided on the NAR confused him. While
6
Professional Staff Group II
has overall responsibility for providing advice concerning VA's multi-billion-dollar programs of
disability and death compensation and pension for Veterans and their survivors, and Federal
life-insurance programs for service members and Veterans. In addition, the group is responsible for
all legal advice concerning the national cemetery system (except land acquisition, which is handled
by [Professional Staff Group] V) and various burial benefits administered by the Veterans Benefits
Administration. The group is also responsible for reviewing proposed and final rules for all VA
programs to ensure compliance with the Administrative Procedure Act, and other statutes and orders
governing rulemaking.
Evaluating the U.S. Department of Veterans Affairs Office of General Counsel: Hearing Before the Subcomm. on
Oversight and Investigations of the H. Comm. on Veterans' Affairs, 111th Cong. 26 (2010) (statement of Will Gunn,
General Counsel, U.S. Dep't of Veterans Affairs).
13
such an excuse likely would constitute "a garden variety claim of excusable neglect" if proffered by
an attorney, Irwin, 498 U.S. at 96, the due diligence requirement for a pro se appellant's timely
misfiling is relaxed. See Santana-Venegas, 314 F.3d at 1297; Bazalo v. Brown, 9 Vet.App. 304, 310-
11 (1996) (noting that counsel is held to a higher standard than pro se appellants in following rules
and statutes), rev'd on other grounds, 150 F.3d 1380 (Fed. Cir. 1998).
This Court previously found in Bobbitt v. Principi, 17 Vet.App. 547, 548 (2004), that
equitable tolling applied where an NOA was timely misfiled at the Board notwithstanding the clear
instructions on the NAR that "Filing a copy of your [N]otice of Appeal with the General Counsel,
the Board, or any other VA office WILL NOT protect your right to appeal to the Court." As we
reasoned with regard to a misfiling at the Board in Bobbitt, we likewise find here that, despite the
NAR, it is understandable that an appeal of a Board decision might be filed by a pro se, prospective
appellant with OGC Group II (022D). The complete mailing address for OGC (022D) appears in
bold type centered at the bottom of the last page of the NAR that Mr. Rickett received with the Board
decision. In mailing his letter to this particular OGC group within VA, Mr. Rickett made some
showing of a diligent effort, even erroneously, to follow the directions for filing an appeal.
b. Actions Taken After Learning of Misfiling
It is undisputed that Mr. Rickett (1) contacted the Court as to the status of his appeal
approximately one month after the 120-day appeal period expired, and (2) filed a new NOA with the
Court promptly upon learning his mistake in mailing his original NOA to the OGC.7 Accordingly,
we conclude that his actions taken after learning of the misfiling reflect "relaxed" due diligence that
culminated in the ultimate filing of an NOA with the Court.
III. CONCLUSION
In conclusion, we find that – under the totality of the circumstances – Mr. Rickett's letter of
January 8, 2009, which was misfiled with the OGC within the 120-day judicial appeal period,
adequately expressed his intent to appeal his adverse Board decision and put VA on notice of that
intent. We also find that Mr. Rickett's prompt action in filing his NOA with the Court after learning
of the misfiling constitutes "relaxed" due diligence. Thus, equitable tolling of the 120-day appeal
period is warranted, and his appeal is accepted.
Accordingly, it is
ORDERED that the Secretary's July 28, 2009, motion to dismiss the appeal is denied. It is
further
7
As explained in note 5, supra, we decline to address in this decision whether relaxed due diligence was
required of Mr. Rickett between his timely misfiling at the wrong location and his learning that he had misfiled.
14
ORDERED that the Secretary, not later than 30 days after the date of this order, file a notice
certifying that the appellant was served with a copy of the record before the agency, U.S. VET. APP.
R. 10(a). Thereafter, both parties should proceed in accordance with the Court's Rules of Practice
and Procedure. It is further
ORDERED that, upon the Secretary's filing of the Rule 10 notice, this matter is returned to
the Clerk for further assignment to a single Judge in the normal course.
DATED: March 12, 2013 PER CURIAM.
HAGEL, Judge, with whom LANCE, Judge, joins, concurring in the result: We concur in
the result reached by the majority because Mr. Rickett's Notice of Appeal was received by a location
approved by the Federal Circuit within the 120-day appeal period and because, after he was notified
of the misfiling, his Notice of Appeal was received by Court within a period of time shorter than
those already deemed acceptable by the Federal Circuit. We write separately, however, to express
several points of diversion from the reasoning in the majority opinion.
As explained below, the road between us forks at four locations. First, Reed v. Principi,
17 Vet.App. 380 (2003), has no bearing on this case. Second, the majority's inquiry into due
diligence beyond the timely misfiling of the Notice of Appeal is unnecessary in determining
entitlement to equitable tolling in the case of a timely but misfiled Notice of Appeal. Third, the
application of existing caselaw resolves this appeal without the need for further discussion. Fourth,
the majority appears to expand, without sufficient guidance, the judicially approved locations for
misfiling a Notice of Appeal beyond those already sanctioned by this Court and the Federal Circuit.
A. Unnecessary Use of Reed
First and foremost, because Reed concerned an untimely misfiling of a Notice of Appeal with
the VA Office of the General Counsel, it is crystal clear that Reed has no bearing on the outcome of
Mr. Rickett's request for equitable tolling of his timely misfiled Notice of Appeal. In fact, the
majority appears to recognize this when it states that "a timely misfiling is a necessary criterion in
application of the test recognized by the Court in Hunt [v. Nicholson, 20 Vet.App. 519 (2006)]."
Ante at 7 (emphasis added). Nevertheless, the majority appears to ignore its own unequivocal
statement to find that Reed must be overruled.
Likewise, Reed is easily distinguishable from the Federal Circuit cases on which the majority
relies, because each of those cases also involved timely misfilings. Thus the majority's use of Reed
as the launching pad for its decision is improvident at best.
B. Use of Post-Misfiling Actions to Prove Diligence
1. Misapplication of Federal Circuit Precedent
Second, in our view, the majority's conclusion that an appellant must demonstrate
postmisfiling due diligence (and during two distinct periods of time, as discussed further below)
directly contradicts the position the Federal Circuit has consistently expressed in its caselaw. From
the Federal Circuit cases, we think it clear that, as the Court concluded in Hunt, three things must
be present before equitable tolling is warranted in cases of timely misfilings of Notices of Appeal:
(1) Intent to appeal, (2) sufficient notice to VA of that intent, and (3) due diligence in pursuing an
appeal to this Court.8 We also think it clear, however, given the Federal Circuit's repeated reliance
on Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002), and the fact that it reversed, rather than
vacated, this Court's dismissals in that case and the cases that followed, that the diligence factor is
satisfied as a matter of law where the purported Notice of Appeal is misfiled at the Board or the
regional office where the claim originated within the 120-day appeal period without regard for the
postmisfiling actions of the appellant. See Brandenburg, 371 F.3d at 1364; Bailey (Edward) v.
Principi, 351 F.3d 1381, 1384 (Fed. Cir. 2003); Santana-Venegas v. Principi, 314 F.3d 1293, 1297
(Fed. Cir. 2002); see also Jaquay, 304 F.3d at 1288.
The majority's repeated emphasis on the Federal Circuit's silence regarding postmisfiling
actions in Santana-Venegas, Bailey (Edward), and Brandenburg ignores the fact that no discussion
of postmisfiling actions was necessary in those cases because, as the Federal Circuit repeatedly stated
in those cases, the timely misfiling of a Notice of Appeal at the Board or the regional office where
the claim originated satisfied the diligence requirement as a matter of law. See Bailey (Edward),
351 F.3d at 1385; Santana-Venegas, 314 F.3d at 1297-98; Jaquay, 304 F.3d at 1288-89; see also
Brandenburg, 371 F.3d at 1364. The majority rests its determination that postmisfiling actions are
relevant on the fact that the Federal Circuit "specifically noted the time between the misfiling and
the proper filing at the Court" in the various cases that followed Jaquay. Ante at 11. Although
technically correct, the majority ignores that the Federal Circuit "specifically noted" this information
in its recitation of the facts of each case, not its analysis. See Brandenburg, 371 F.3d at 1363; Bailey
(Edward), 351 F.3d at 1383; Santana-Venegas, 314 F.3d at 1295-96. To add, as the majority does,
an additional requirement of diligence beyond the timely misfiling itself not only ignores the law
established by the Federal Circuit, but also establishes yet another element that must be proven by
the appellant before a timely misfiled Notice of Appeal will meet the due diligence requirement.
2. Creation of Distinct Periods of Required Due Diligence
As noted briefly above, the rule the majority announces today creates two distinct periods
during which an appellant must demonstrate due diligence. Although the majority purportedly
accepts the Federal Circuit's repeated ruling that an appellant demonstrates due diligence as a matter
of law through the timely misfiling of a Notice of Appeal (at possibly indeterminate locations, as will
be discussed below), the majority holds that the appellant does so only with respect to "the point in
time when he or she files a[] [Notice of Appeal] within the 120-day appeal period at the [regional
office] from which the claim originated, the Board, or possibly other locations within VA." Ante at
10-11. The majority then creates a second period (and hints at a third) during which an appellant
must also demonstrate some broad concept dubbed "relaxed due diligence"–between the time the
appellant discovers the misfiling and the time the appellant actually files the Notice of Appeal with
8
To the extent that Brandenburg v. Principi conflated intent to appeal and notice to VA of that intent, see
371 F.3d 1362, 1364 (Fed. Cir. 2004) ("[i]f the veteran meets both criteria . . ."), we believe, practically, that it matters
not whether they are separate factors or a single factor.
16
the Court–and has done so without explaining the criteria by which that diligence is to be judged .
See ante at 11.9 We think this tremendously unwise, as it will necessarily lead to either a plethora
of divergent single-judge decisions or a series of panel decisions attempting to define the new
standard by means of a thousand cuts. In either case, absent clear congruence with a prior precedent
decision, the ultimate question of whether an appeal that has, as a matter of law, been diligently
pursued will unlock the courthouse doors remains uncertain in every case.
3. Conceptual Agreement with Majority
The fact that we agree with the Federal Circuit that an appellant demonstrates due diligence
through the timely misfiling of the purported Notice of Appeal at the regional office where the claim
originated or the Board does not mean that we disagree with the concept advanced by the majority
that an appellant cannot amble at his own speed toward the Court merely because he has diligently
(mis)filed a Notice of Appeal. In fact, we agree with the majority that the time to file the Notice of
Appeal "with the Court," 38 U.S.C. § 7266(a) (emphasis added), after the appellant becomes aware
of the misfiling is not, or ought not be, indefinite. In other words, a Notice of Appeal timely misfiled
at a judicially approved location may not be "deemed received" by or "deemed filed" with the Court
and thereby automatically permit the Court to consider the appeal on the merits. See 38 U.S.C.
§ 7266(c) ("A notice of appeal shall be deemed to be received by the Court as follows: (1) On the
date of receipt by the Court, if the notice is delivered. (2) On the date of the United States Postal
Service postmark stamped on the cover in which the notice is posted, if the notice is properly
addressed to the Court and is mailed."). Further, we agree with the majority that the actual filing of
the Notice of Appeal with the Court–that is, the perfection of the appeal–within a reasonably prompt
amount of time after notification of misfiling is required. See 38 U.S.C. § 7266(a).
Having said that, a review of the Federal Circuit cases discussed above reveals that, after
receiving notice of the misfiling, each of the appellants acted reasonably promptly to file his Notice
of Appeal with the Court.10 Mr. Rickett filed his Notice of Appeal with the Court no more than 13
days after becoming aware of his initial timely misfiling.11 This, by our measure, falls well under
9
The majority purports to "leave for another day" the question of whether due diligence must also be shown
between the timely misfiling and learning of the misfiling. Ante at 11 n.5; see also ante at 14 n.7. One is hard pressed
to imagine what a prospective appellant might do during that time that could demonstrate due diligence. Obviously, as
the Federal Circuit's repeated finding of due diligence as a matter of law in the timely misfiling itself implies, the
prospective appellant has already done all be understands to be necessary to pursue his appeal and has no reason to take
any additional action until he learns of the misfiling.
10
Mr. Santana-Venegas took 21 days; Mr. Edward Bailey took fewer than 27 days; Mr. Brandenburg took 91
days.
11
In fact, Mr. Rickett's Notice of Appeal to the Court appears to have been written and sent the very day he
learned of the misfiling. The cover letter attached to his Notice of Appeal, dated April 14, 2009, indicates that he
received a return phone call from the Court's Public Office that day, as that letter states, "Thank you for returning my
[call] today." Notice of Appeal at 1. Although Mr. Rickett's Notice of Appeal was date-stamped received by the Court
on April 17, 2009, by operation of 38 U.S.C. § 7266(c)(b)(2), it is docketed as filed on April 14, 2009, the date of the
U.S. Postal Service postmark on the envelope.
17
the various time periods for perfecting an appeal already accepted by the Federal Circuit, and
therefore we think entering into a drawn out exercise in expanding established precedent in this case,
as the majority does, is unwise.
4. Exercise of Rulemaking Authority
As a final matter on this point, we note that the majority asserts that the "rule" it
announces–presumably the totality of the circumstances test to establish "relaxed due diligence"–is
based on the Court's rulemaking authority. See ante at 11 ("Our holding today is made in the context
of Federal Circuit precedents and in furtherance of our own rulemaking authority." (emphasis
added)). But because, as noted above, the "relaxed due diligence" standard is like putty–malleable
to a judge's individual view–"rule" is hardly the term we would use to describe it. Importantly, the
"rule" established by the majority today will, in many cases, act as a gatekeeper to the Court.
Consequently, we believe that, if a rule is to be established, it is more properly and prudently done
through the amendment of Rule 4(a), which implements 38 U.S.C. § 7266(a). The Court has
adopted an orderly process for doing so, which includes the Court's self-imposed solicitation of
public comment and the advice of the Rules Advisory Committee that was wisely established at the
Court's beginning for this very purpose. See 38 U.S.C. § 7264(a) ("The proceedings of the Court of
Appeals for Veterans Claims shall be conducted in accordance with such rules of practice and
procedure as the Court prescribes."); 28 U.S.C. § 2071(b) ("Any rule prescribed by a court, other
than the Supreme Court, . . . shall be prescribed only after giving appropriate public notice and an
opportunity for comment."); In re Rules Advisory Comm., 2 Vet.App. 584, 584 (1992) (establishing
Rules Advisory Committee to "advise the Court on proposed changes to its Rules of Practice and
Procedure and other related matters").
We are, apparently, not alone in this concern. See Baldrige v. Nicholson, 19 Vet.App. 227,
249 (Kasold, J., dissenting) ("I question the appropriateness and effectiveness of suggesting in this
case detailed procedures that two judges of the Court might prefer, particularly when the Court has
established rule-promulgating procedures that generally include the participation of our Rules
Advisory Committee and other interested parties."). More recently, three of the judges in the
majority have also taken this view. See also Bove v. Shinseki, 25 Vet.App. 136, 140 (2011) (per
curiam order) (stating that its holding re-establishing pre-Henderson I precedent for equitable tolling
of the 120-day appeal judicial period "is subject to revision, pursuant to the Court's rule-making
authority"). Thus, by our count, five of the judges of the Court–our three colleagues in Bove and the
two of us–favor a more measured approach to the adoption of such a rule. Why that count does not
carry the day remains unexplained.
C. Application of Existing Precedent Resolves this Appeal
Third, although Mr. Rickett's case may seem unique among the Federal Circuit cases
discussed by the majority, in that he timely misfiled his Notice of Appeal at VA's Office of the
General Counsel, the issue it presents is easily resolved by the simple application of Bailey
(Edward).
18
In that case, the underlying Board decision was issued on September 18, 2000. On December
28, 2000, 101 days after the Board decision, Mr. Bailey completed a VA Form 9, ordinarily used for
filing a Substantive Appeal to the Board from a regional office decision, that the parties agreed was
intended to serve as a Notice of Appeal to the Court. Mr. Bailey took the Form 9 to his non-attorney
representative at the Georgia Department of Veterans Services, a State agency, who agreed to
forward it to the appropriate place. Instead of sending the Notice of Appeal to the Court, however,
the representative forwarded it to the regional office where Mr. Bailey's claim originated. The
Notice of Appeal was received there on January 3, 2001, 107 days after the Board decision. In June
2001, Mr. Bailey called the Court to inquire as to the status of his appeal and, upon learning that the
Court never received his Notice of Appeal, immediately sent a copy to the Court, where it was
received on June 27, 2011.
Later investigation revealed that, although the regional office received Mr. Bailey's
Form 9 from the [Georgia Department of Veterans Services] on January 3, 2001, it
took no action with respect to that document until October 4, 2001, when Mr.
Bailey's new representative contacted the regional office to inquire as to the
whereabouts of the notice of appeal. The regional office located the date-stamped
Form 9 in its "overflow" file where it had been sitting since it was received from the
[Georgia Department of Veterans Services].
Bailey (Edward), 351 F.3d at 1383.
The similarities to Mr. Rickett's case are undeniable. On November 5, 2008, the Board
mailed its decision to Mr. Rickett. On January 8, 2009, Mr. Rickett mailed to VA's Office of the
General Counsel a document that the majority concludes–and we agree–was intended to serve as a
Notice of Appeal. The Office of the General Counsel received Mr. Rickett's Notice of Appeal on
January 26, 2009, well before the end of the 120-day judicial appeal period. The Office of the
General Counsel forwarded the document to the Waco VA regional office where Mr. Rickett's claim
originated, which received it on February 19, 2009, also prior to the expiration of the judicial appeal
period. The regional office stamped the document "Appeals" and placed it in a locked cabinet where
Board decision files are held for 150 days after a Board decision to maintain their integrity pending
appeal to this Court. Neither the Office of the General Counsel nor the regional office advised Mr.
Rickett that he had misdirected his Notice of Appeal. In April 2009, after receiving no information
regarding his appeal, Mr. Rickett contacted the Court and learned that no Notice of Appeal had been
received. To correct his error, he immediately mailed a Notice of Appeal to the Court and attached
a copy of his letter to the Office of the General Counsel. The Notice of Appeal was received by the
Court on April 14, 2009, again, no more than 13 days after Mr. Rickett learned of his misfiling.
As noted above, the Federal Circuit in Bailey (Edward) unequivocally stated that, "as a matter
of law, a veteran who attempts to file a [N]otice of [A]ppeal by completing a document that is clearly
intended to serve as a [N]otice of [A]ppeal and who has that document delivered to the regional
office from which the veteran's claim originated within the 120-day statutory period for appeal is
entitled to invoke the doctrine of equitable tolling." Id. at 1385 (emphasis added); see Santana-
Venegas, 314 F.3d at 1297-98; Jaquay, 304 F.3d at 1288-89; Bailey (Harold) v. West, 160 F.3d 1360,
19
1368 (Fed. Cir. 1998); see also Brandenburg, 371 F.3d at 1382. In this case, Mr. Rickett's Notice
of Appeal reached the regional office where his claim originated within the 120-day judicial appeal
period and, as the Federal Circuit has unequivocally found, he has therefore demonstrated diligence
in pursuing his appeal to this Court as a matter of law. Mr. Rickett has therefore also met the three
Hunt requirements for equitable tolling: (1) He acted diligently by (2) timely delivering to the
regional office where the claim originated (or the Board) a document intended to serve as a Notice
of Appeal (3) that was sufficient to put VA on notice of his intent to appeal the Board decision to
the Court. See Hunt, 20 Vet.App. at 524; see also Jaquay, 304 F.3d at 1288. Accordingly, that is
the end of the matter.
D. Expansion of Acceptable Locations for Timely Misfilings
Law made in a vacuum is fraught with unintended consequences. The majority ignores the
Federal Circuit's guidance on acceptable locations for the timely misfiling of a Notice of Appeal that
trigger the consideration of equitable tolling:
Read together, Santana-Venegas, Bailey (Edward), Brandenburg, and Hunt stand for
the proposition that equitable tolling is predicated primarily on the due diligence of
the prospective appellant as opposed to the particularity of the location at which the
prospective appellant misfiles his or her [Notice of Appeal]. Thus, to the extent that
Reed stands for the proposition that equitable tolling based on a misfiled [Notice of
Appeal] applies only when the misfiling is at the [regional office] that processed the
claim or at the Board, or that timely misfilings at the [VA Office of the General
Counsel] are not subject to equitable tolling per se, such holdings are overturned . . . .
Ante at 6. The majority effectively–and impermissibly–eliminates the limitations so far imposed by
the Federal Circuit (i.e., that the Notice of Appeal be filed within VA, either at the regional office
where the claim was originally filed, Santana-Venegas, 314 F.3d at 1297, or at the Board, with
which the appellant has previously and most recently dealt in the prosecution of the claim,
Brandenburg, 371 F.3d at 1364; or, in very limited circumstances, outside VA, such as with a
representative of a service organization who provided representation to the appellant throughout the
administrative claims process and who forwarded the Notice of Appeal to the regional office where
the claim originated, Bailey (Edward), 351 F.3d at 138). At least one part of the majority opinion
might also be read to expand the locations for timely misfiling even well outside VA. See ante at
7 ("A prospective appellant must demonstrate with independent proof . . . that the [Notice of Appeal]
was misfiled–i.e., filed at a location other than the Court–within the 120-day filing period."
(emphasis added)). In other portions of its opinion, however, the majority appears to limit the
possible locations for timely misfilings to VA, although without limiting the locations within VA.
See ante at 9 ("In certain circumstances, there may be misfilings of a[] [Notice of Appeal] at other
VA offices that might reflect due diligence."), 10 ("[T]he timely misfiling of a[] [Notice of Appeal]
with VA does not abate the finality of a Board decision . . . ."), 10-11 ("[A]lthough a prospective
appellant exercises due diligence as a matter of law at the point in time where he or she files a[]
[Notice of Appeal] within the 120-day appeal period at . . . possibly other locations within VA, . . .").
Such inconsistency only further confuses the issue.
20
Even more troubling, in eliminating the limitations imposed by the Federal Circuit, the
majority offers no guidance for Judges of the Court considering timely misfilings at "locations other
than the Court" or "other VA offices," leaving the door open to unnecessary litigation regarding what
persons or entities within the vastness of VA may receive a timely misfiled Notice of Appeal.12
Leaving the determination of such an important question afloat without navigational aids means only
that the issue will drift from place to place, carried by the current of multiple decisions of this Court,
until it finds permanent anchorage, which will undoubtedly be provided by the Federal Circuit.
In light of the analysis set forth above, we concur only in the result reached by the majority.
SCHOELEN, Judge, concurring: Although I concur with my colleagues' conclusion that
Mr. Rickett's NOA, misfiled at the OGC within the 120-day judicial appeal period, along with the
Court's subsequent receipt of the NOA, warrants equitable tolling,13 I respectfully dissent from that
part of the decision that adopts a totality-of-the-circumstances approach to examining whether an
12
VA employs more than 278,000 people in numerous divisions, including the following: Compensation and
Pension, Education and Training, Medical Care, Home Loan Assistance, Research, Insurance, Vocational Rehabilitation,
National Cemeteries, General Administration. See http://www.va.gov/landing_organizations.htm (last visited Jan 16,
2013); see also http://www.va.gov/opa/publications/factsheets/fs_department_of_veterans_affairs.pdf (Jan. 2009 VA
Fact Sheet). In delivering medical care alone, VA operates "152 hospitals; 800 community based outpatient clinics; 126
nursing home care units; and 35 domiciliaries." http://www.va.gov/about_va/vahistory.asp (last visited Jan. 16, 2013).
The VA Office of the General Counsel consists of seven professional groups dealing with such diverse legal
questions as administrative claims and litigation under the Federal Tort Claims Act; legal services regarding education
programs for veterans and their dependents; advice concerning programs of disability and death compensation and
pension for Veterans and their survivors; and Federal life-insurance programs for servicemembers and veterans; advice
in the areas of health-care eligibility and benefits, medical administration, medical research, labor-management relations,
human resources, crimes and police matters, VA-affiliated nonprofit corporations, technology transfer and ethics; equal
employment opportunity law, information law, appropriations/fiscal law, and intellectual property law; Government
contracts, including procurement, bid protests, and contract litigation; real- and personal-property law; and environmental
law. See Evaluating the U.S. Department of Veterans Affairs Office of General Counsel: Hearing Before the Subcomm.
on Oversight and Investigations of the H. Comm. on Veterans' Affairs, 111th Cong. (2010) (statement of Will Gunn,
General Counsel, U.S. Dep't of Veterans Affairs).
Ultimately, when an appellant does not follow instructions for properly filing a Notice of Appeal, he places a
burden on the system that diverts resources from claims filed by his fellow veterans. In a sympathetic system, it is fair
to require the Secretary to train employees in certain offices how to handle a misfiled Notice of Appeal. Beyond a certain
point, however, large swaths of VA employees have no meaningful connection to appellate adjudication; training
employees of these divisions to recognize a misfiled Notice of Appeal is unreasonable. The expenditure of resources
involved in such training would far outstrip the benefit to the rare veteran who, contrary to express instruction, grossly
misfiles a Notice of Appeal.
13
As a result, I also agree with the majority that this Court's decision in Reed v. Principi, 17 Vet.App. 380(2003) – to the extent that it "stands for the proposition that equitable tolling based on a misfiled NOA applies only when
the misfiling is at the RO that processed the claim or at the Board, or that timely misfilings at the OGC are not subject
to equitable tolling per se, such holdings" – should be overturned. Ante at 6.
21
appellant who timely misfiles an NOA at the RO, the Board, or, as in this case, the OGC,
demonstrates due diligence in preserving his rights. In Brandenburg v. Principi, the Federal Circuit
examined the circumstances when equitable tolling had previously been applied in timely misfiling
cases, noting that "the focus was whether the veteran 'exercised due diligence in preserving his legal
rights,' . . . and whether 'the veteran's intention is clear and . . . [VA] is put on notice of his intention
to seek further review of his claim.'" 371 F.3d 1362, 1364 (Fed. Cir. 2004) (alteration in original)
(citations omitted) (quoting Jaquay v. Principi, 304 F.3d 1276, 1287 (Fed. Cir. 2002), and Bailey
(Edward) v. Principi, 351 F.3d 1381, 1385 (Fed. Cir. 2003)). The Federal Circuit unequivocally
stated: "If the veteran meets both criteria, 'an error in the form or in the office to which [notice] is
sent, or both, is not sufficient to render the filing ineligible for consideration under the equitable
tolling doctrine.'" Id. (alteration in original) (quoting Bailey (Edward), 351 F.3d at 1385).
A. Conflict With Existing Precedent
The majority now adopts an analysis for determining whether equitable tolling is appropriate,
which the Federal Circuit has indicated does not apply to timely misfiled appeals to this Court. That
is, although the Federal Circuit did not examine the postmisfiling activities of the veteran in
Brandenburg, supra; Bailey (Edward), supra; and Santana-Venegas v. Principi, 314 F.3d 1293 (Fed.
Cir. 2002), when assessing whether the veteran satisfied the due diligence requirement, the majority,
for the first time, requires an examination of the actions taken by a prospective appellant after
learning that he misfiled an NOA.
My colleagues attempt to explain their expansion of the Federal Circuit's holdings in
Brandenburg, Bailey (Edward), and Santana-Venegas, all supra, which involved the timely misfiling
of an NOA at the RO or the Board, by (1) examining the differences between a timely misfiled
motion for reconsideration of a Board decision by the Board Chairman, see Jaquay, supra, and a
timely misfiled NOA, and (2) assigning significance to the Federal Circuit's silence in Brandenburg
and Santana-Venegas. See ante at 11 (noting that "those cases did not contain the explicit statement
of Jaquay that postmisfiling actions were not relevant"). Undoubtedly, there are several differences
between a motion for Board reconsideration, an internal VA matter, and an NOA to the Court. See,
e.g., Jaquay, 304 F.3d at 1283-87 (examining the difference between motions for Board
reconsideration and NOAs to the Court); see also 38 U.S.C. § 7266(a); 38 C.F.R. § 20.1001 (2012).
Despite these variances, an examination of the Federal Circuit's decisions demonstrates that the
postmisfiling actions of the prospective appellant were not relevant to the Court's due diligence
assessment – but, even assuming there was any doubt, I would resolve that doubt in favor of the
veteran. See Henderson v. Shinseki, 131 S. Ct. 1197, 1205 (2011) (noting that Congress's solicitude
for veterans is longstanding and "plainly reflected in the [Veterans' Judicial Review Act], as well as
in subsequent laws that 'place a thumb on the scale in the veteran's favor in the course of
administrative and judicial review of VA decisions,'" quoting Shinseki v. Sanders, 556 U.S. 396, 416
(2009) (Souter, J., dissenting)).
22
1. Jaquay and Santana-Venegas
In Jaquay, the Federal Circuit observed that there was a split among its sister circuits,
"whether one satisfies Irwin's diligence requirement simply by filing the right thing in the wrong
place" and that the decision is "not always clear cut." 304 F.3d at 1288; see Irwin v. Dep't of
Veterans Affairs, 498 U.S. 89, 96 (1990) (noting that equitable tolling is generally available in two
situations: (1) "where the claimant has actively pursued his judicial remedies by filing a defective
pleading during the statutory period," or (2) "where the complainant has been induced or tricked by
his adversary's misconduct into allowing the filing deadline to pass"). Nonetheless, the Federal
Circuit reasoned that it need not get entwined in the split because Jaquay's case was different: the
misfiling "took place several steps into a claim for benefits." Jaquay, 304 F.3d at 1288. Noting that
"[m]isfiling cases within the veterans' system are unlike the typical late-filing cases," the Court stated
that "[t]he filing of the misdirected paper itself satisfies the diligence requirement as a matter of
law." Id. at 1287, 1288 (emphasis added).
Subsequently, in Santana-Venegas, the Federal Circuit addressed for the first time whether
a veteran was entitled to equitable tolling when he misfiled an NOA at the RO from which his claim
originated. 314 F.3d at 1293. The Federal Circuit found that the veteran acted diligently when he
misfiled his NOA within 120 days of the Board's decision and held, as a matter of law, "that a
veteran who misfiles his or her [NOA] at the same [RO] from which the claim originated within the
120-day judicial appeal period of 38 U.S.C. § 7266[] thereby actively pursues his or her judicial
remedies, despite the defective filing, so as to toll the statute of limitations." Id. at 1298. In
determining that Mr. Santana-Venegas satisfied the due diligence requirement, the Federal Circuit
did not differentiate between Mr. Jaquay's misfiled motion for reconsideration by the Board
Chairman and Mr. Santana-Venegas's misfiled NOA. See id. at 1297-98. Instead, the Federal
Circuit stated:
In the context of the non-adversarial manifestly pro-claimant veterans' benefits
system, and consistent with our decisions in Jaquay and Bailey [(Howard) v. West,
160 F.3d 1360 (Fed. Cir. 1998) (en banc)], misfiling a[n NOA] at the [RO] from
which the claim originated shows that the claimant seeks redress before the Secretary
despite the claimant's mistaken belief as to the accuracy of the filing location and
does not involve "a garden variety claim of excusable neglect." Irwin, 498 U.S. at
96, 111 S. Ct. 453; see also Bailey [(Howard)], 160 F.3d at 1365. Once a veteran
takes the affirmative act of seeking redress of his or her claim through a filing with
the [RO] from which the claim originated rather than the Veterans Court, "[t]he
filing of the misdirected paper itself satisfies the diligence requirement as a matter
of law."
Id. (emphasis added) (quoting Jaquay, 304 F.3d at 1288 (citing Goldlawr, Inc. v. Heiman, 369 U.S.
463, 467 (1962))).
Notwithstanding Santana-Venegas's wholesale adoption of Jaquay and its determination that
the diligence requirement was "'satisfie[d] . . . as a matter of law,'" the majority improvidently limits
23
the effect of a timely misfiling. Id. at 1298 (emphasis added) (quoting Jaquay, 304 F.3d at 1288
(citing Goldlawr, 369 U.S. at 467)). Although the majority purportedly accepts the Federal Circuit's
holdings that an appellant demonstrates due diligence as a matter of law through the timely misfiling
of an NOA, the majority holds that the appellant does so only with respect to "the point in time when
he or she files an NOA within the 120-day appeal period at the RO from which the claim originated,
the Board, or possibly other locations within VA." Ante at 10-11 (emphasis added). The majority
states that "a prospective appellant's actions taken after learning of the misfiling are factors in the
'relaxed' due diligence assessment." Ante at 11. Not only is this assessment unsupported by Federal
Circuit precedent,14 it unnecessarily obfuscates an area that had been clear and unambiguous.
2. Uncertainty and Confusion Created by the Majority's Relaxed Due Diligence Requirement
First and foremost, my colleagues fail to provide the Court with any guidance to determine
in the future whether a prospective appellant demonstrates "relaxed" due diligence. Whereas a
prospective appellant previously satisfied the due diligence requirement, as a matter of law, by
showing that he misfiled an NOA at the RO or the Board within the 120-day judicial appeal period,
the majority creates a separate, distinct period during which a prospective appellant must
demonstrate "relaxed" due diligence – after learning that an NOA was misfiled – but fails to provide
any indicia of what actions – short of refiling the NOA at the Court – the prospective appellant must
take to satisfy this burden. Indeed, the facts in Mr. Rickett's case demonstrate that he filed his NOA
with the Court on the same day that he learned of the misfiling.
Second, by requiring an examination of this separate, distinct period, the majority creates an
additional evidentiary hurdle for the pro se prospective appellant – to prove when he first acquired
knowledge that his NOA was misfiled. Presumably, this would need to be determined as part of the
majority's newly imposed "relaxed" due diligence assessment. However, they fail to articulate what
14
The majority asserts that their view is not inconsistent with Federal Circuit precedent by emphasizing the
Federal Circuit's failure to state that the prospective appellant's postmisfiling actions were not relevant in Brandenburg
and Santana-Venegas, and alludes to an implicit finding that the appellants had demonstrated diligence after learning
of the misfiling, by stating that "those decisions specifically noted the time between the appellant learning of the misfiling
and the proper filing at the Court." Ante at 11. This suggestion is not persuasive for two reasons. First, just as
Brandenburg and Santana-Venegas do not find a lack of postmisfiling diligence, they also do not contain any affirmative
finding that the appellant demonstrated due diligence after learning of the misfiling. Second, nowhere in the Federal
Circuit's analysis whether equitable tolling was warranted was the length of time between learning of the misfiling and
proper filing at the Court pertinent to its discussion. See Santana-Venegas, 314 F.3d at 1297 (concluding that "Mr.
Santana-Venegas acted diligently by filing his [NOA] within 120 days of the [Board's] decision . . . at the [RO] from
which the claim originated" (emphasis added)); see also Brandenburg, 371 F. 3d at 1364 (finding "no meaningful
difference" between a misfiling at the Board and a misfiling at the RO).
Moreover, although the facts in Bailey (Edward), 351 F.3d at 1383, indicate that the appellant did not follow
up with the Court until nearly six months after the RO received his timely misfiled NOA, the Federal Circuit did not
suggest that these facts were pertinent to a determination whether due diligence had been satisfied. Instead, the Federal
Circuit held "as a matter of law, [that] a veteran who attempts to file a[n NOA] by completing a document that is clearly
intended to serve as a[n NOA] and who has that document delivered to the [RO] from which the veteran's claim
originated within the 120-day statutory period for appeal is entitled to invoke the doctrine of equitable tolling." Id. at
1385 (emphasis added).
24
standard the Court should employ to assess when a prospective appellant learned of the misfiling.15
See ante at 14 (stating that it is undisputed that Mr. Rickett contacted the Court approximately one-
month after the 120-day appeal period expired and filed a new NOA "promptly upon learning his
mistake").
3. New Barrier to Judicial Review Does Not Accomplish Goal
The rule adopted by the majority today may serve to deny many pro se prospective appellant's
access to judicial review, where existing precedent otherwise would not have resulted in a similar
bar. Nonetheless, my colleagues attempt to explain their holding by stating that "equitabl[e] tolling
. . . cannot be based solely on a timely misfiling at any location outside the Court, possibly followed
by inaction for many years after learning of the misfiling" because "[t]o do so would subjugate the
important [procedural] rule that requires filing of a timely NOA with the Court to the control of
others and give little meaning to the term 'relaxed due diligence' and the requirement that prospective
appellants diligently pursue judicial review to invoke equitable tolling." Ante at 11 (emphasis
added). If they are concerned that we would have to consider an appeal that languished for years
after a timely misfiling before an NOA reaches the Court, then their focus on the prospective
appellant's actions during the period between learning that an NOA was timely misfiled and the
eventual filing at the Court does not address this concern. If their concern is to "give meaning" to
the term "relaxed due diligence" their decision negates this concern. Ante 9 (stating that Santana-
Venegas and Jaquay indicated that the due diligence requirement for equitable tolling is "relaxed"
when a pro se prospective appellant timely misfiles a pleading). With no disrespect to my esteemed
colleagues, I am perplexed by their characterization of this assessment as "relaxed," when their
decision creates at least one additional obstacle in the path of the pro se veteran's right to judicial
review and alludes to others. Moreover, it ignores the Federal Circuit's explicit refusal in Jaquay,
followed in Santana-Venegas, to get involved in the split among its sister circuits to determine
whether one satisfies due diligence by "filing the right thing in the wrong place," because "[m]isfiling
cases within the veterans' system are unlike the typical late-filing cases." Jaquay, 304 F.3d at 1287,
1288; see also Santana-Venegas, 314 F.3d at 1297-98; see generally Henderson, 131 S. Ct. at 1205-
06 (noting that "[t]he contrast between ordinary civil litigation . . . and the system that Congress
created for the adjudication of veterans' benefits claims could hardly be more dramatic" and that
"[r]igid jurisdictional treatment of the 120-day period for filing a[n NOA] in the Veterans Court
would clash sharply with this scheme"); Bailey (Howard), 160 F.3d at 1368 (Michel, J., concurring)
(noting that both the Supreme Court and the Federal Circuit "have long recognized that disputes that
15
My colleagues repeatedly emphasize the matters that are not decided in this decision: (1) "[T]he Court will
not now endeavor to provide an exhaustive list of factors to consider in a due diligence analysis" (ante at 9); (2) "[W]e
decline to address and leave for another day the question whether relaxed due diligence is required for the period between
a timely misfiling and learning that the NOA was misfiled in the wrong location," but observing that Mr. Rickett's actions
during that period would appear to have satisfied that requirement." (ante at 11 n.5); (3) reiterating that "we decline to
address in this decision whether relaxed due diligence was required of Mr. Rickett between his timely misfiling at the
wrong location and his learning that he had misfiled" (ante at 14 n.7 (emphasis added)). My colleagues' statement that
they "decline to address" a question that was not raised by the parties and which represents a significant departure from
the Federal Circuit's established precedent certainly alludes to more impending hurdles being placed in the pro se
veteran's path to judicial review.
25
arise in this system are subject to procedural and other rules that are distinctly advantageous to the
veteran claimant").
Thus, to the extent that the majority suggests that it may be appropriate to examine the period
between the misfiling and the prospective appellant's learning that the NOA was misfiled, I believe
that such a requirement is particularly inappropriate at a time when VA takes 866 days16 to process
an appeal from the time a claimant files a Notice of Disagreement to issuance of a final Board
decision. An unfortunate reality of the VA benefits system is that veterans are conditioned to wait
years for responses to their claims and appeals. Although the Court is independent from VA, this fact
is not apparent to many pro se appellants. As a result, it is not unreasonable that prospective
appellants, who are accustomed to waiting, may expect to wait a long time for a response or not
know or think to follow up on an NOA.
B. Conclusion
Our existing precedent establishes that, as long as a prospective appellant's intention is clear,
VA is put on notice of his intention to seek further review of his claim, and the prospective appellant
satisfies the due diligence requirement through the defective filing, that is the end of the matter. See
Brandenburg, Bailey (Edward), and Santana-Venegas, all supra. Therefore, although I concur in
the result reached by the majority, I must respectfully dissent from its holding that "the due diligence
assessment, which is 'relaxed' in cases of timely misfilings by pro se, prospective appellants, is based
on the totality of the circumstances surrounding the misfiling and actions taken after learning of the
misfiling." Ante at 11.
16
See 2012 Department of Veterans Affairs Performance and Accountability Report (Nov. 15, 2012);
http://www.va.gov/budget/report/.
26