thumb_d10d7a64-04ab-4462-9561-19cb885ef6d9Every decade, it seems the Court has to restate their position on some facet of VA law. Here, it’s the confusing tapestry of decisions coming down from the Fed. Circuit that seems to confuse the Court again and again. Each time they rule, the Court has to revamp their jurisprudence to comport with the new interpretation. From reading this decision, you can see the long, tortured path we have traveled to get where we are today.

The VA, in the past, has been anything but forthcoming about handling grammatically and verbally challenged pro se Vets who, for whatever reason, sent their appeals off to the wrong address and were summarily prevented from pursuing an appeal. This went on for years after the inception of the VJRA in 1988. Most Vets might be excused as they have no legal training. VA didn’t agree. If you mailed your Form 9 to the BVA, it might end up just about anywhere. If you mailed your Notice of Appeal for CAVC review to the BVA or the RO, it would languish there for a magic number of days and only then be sent to the proper place. Of course this meant that your claim was dead in the water.

This happened for years until the Court started to see it was unjust to expect us to be lawyers. If you could prove you mailed it to a VA entity within the legal time limit, you suddenly were given a reprieve. This list of unique circumstances grew slowly. VA continued to send legitimate appeals to just about anywhere you can imagine but the CAVC. Sometimes a belated appeal arrived 125 days (five days late) to the Courts and they would unceremoniously drop it in the circular file under dismissed for tardiness.

You would think these folks would start reading the correspondence and get out the chicken bones to construe what it was you were trying to do. William Rickett here  arrived on the scene after a lot of this jurisprudence cleared up the proper procedure to follow when a pleading ended up at the wrong desk. The rocket boys at the BVA nevertheless shipped off what could only be construed as a legitimate (and timely) attempt to appeal his recent BVA denial back to his RO. There it was carefully wrapped in plastic to hide the stink and allowed to rot.

The facts:

 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]

Pretty straight forward, huh? No big mystery here. Wrong address but not something that could not be corrected with a 44¢ stamp and a helping hand. But nooooooooooo, the legally trained bozos down at Vermin Ave. saw a golden opportunity to file this under  Return to  VARO- Intentions unknown.

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.  Rickett v. Shinseki 2013

Stop for a moment and think. VASEC and his minions have sandbagged Mr. Rickett on this and then they file to dismiss based on their mailing back to his RO and filing it in the  refrigerator that isn’t plugged in. Knowing spoilage would occur, they bided their time waiting. Nope. Nothing adversarial here. Just that good ol’ claimant-friendly environment in which to present our claims.

A bit of history now. We have been kicked off the bus for decades on this legal requirement. We are no longer in a nonadversarial process when we leave the VA reservation. The CAVC and the Fed.Circus are adversarial venues. You have dissed the VASEC and appealed. He takes off the gloves (if he was ever wearing any to begin with) and proceeds to demolish the legal reasoning for your claim. When the filing time limit has been involved, the CAVC always sided with him. It was 120 sunrises and sunsets and if you were calendar-challenged, that was all she wrote. Santana-Venegas  v. Principi 314 F.3d 1293, 1295 (Fed. Cir. 2002) , in some respects, was the first good case to reflect what Mr. Rickett was going through.

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.    Rickett supra

This seems pretty clear. Vet loses. Vet screws up and mails appeal to wrong address. VA promptly buries it. Court refuses to grant equitable tolling of the 120 day filing rule. Fed. Circus overrules and gives the Vet a break. Precedence is set, right? Well, not exactly. The Court was not going to take this bitch slap lightly. They proceeded to keep moving the goal posts.

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. 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 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.   Rickett supra

Okay, I’ll bite on the anthrax scare. What is obvious is that our savior, the CAVC, is working hand-in-glove with the VASEC to read this in the light least favorable to a Vet  and especially Mr. Reed.  Gee, buddy. What were you thinking? You got this far and now you mailed it (accidentally) to the Office of General Counsel (OGC). Newsflash. The OGC has a fax machine. Next newsflash. The CAVC also has a fax machine. This isn’t 1876 and the Pony Express. Sadly, Mr. Reed didn’t appeal. Three days later,  the Feds decided Bailey (Edward) 351 F.3d at 1385.

The appellant in Bailey (Edward), through his state veterans service representative, mailed his NOA 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.

Well, so much for knowledgeable VSOs knowing what to do. You can see the battle lines being drawn between the Feds and the Court. Each new bitchslap was met with a “Yeah, but Mr. Bailey was different. He filed at the RO– BUT his VSO should have known better about where to file it.” Reed, on the other hand, was crucified on the “If you’re knowledgeable enough to know about the OGC, then you should have known how.” cross.

A few minutes later (in judicial time) Brandenburg ” 371 F.3d at 1364 was handed down by the Feds. Once again, the RO / BVA error had occurred and the Court myopically viewed it as they had Reed and Bailey. The Feds took them to task once again.

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.”

Once again, the Court tried mightily to enforce it’s ideas of how to run its railroad. The Feds had to step in to try and right the applecart. The Court absolutely resisted the idea that anyone (but them) was going to interpret what the meaning of 120 days was.

Finally we got some guidance from the Henderson imbroglio. Mr. Henderson ran afoul of this sticky wicket under VASEC Peake and lost. He appealed to the Feds and lost again. Fortunately for him (and all Vets) the Supreme Court granted him an audience and overturned the foolishness of 120 days being chiseled in stone.

The Court, duly admonished, had to admit they had been a little overbearing all these decades and their intransigence was unwarranted. Mr. Rickett’s predicament was the perfect vehicle to enunciate all they had learned and express it in DickandJanespeak for the law dogs. It basically summarizes, as I have, the history of equitable tolling and how it stands today.

The Court continues to pick at this scab. They have to anally recite it for themselves just in case they (or the VASEC) is confused. The rule is still strict in that you have to file within the 120 day window. If you are really sofa king stupid and file at the local 7-11, you do not get this dispensation. However, if you have a mental time out and do it at the RO or the BVA, no more will you get the short straw. Ego te absolvo, as they say in Rome.

What remains unclear is whether there will be a FAST Letter issued that explains to the   BVA personnel that they are not permitted to secret you appeal in their underwear and smuggle it out to the RO. The RO, in turn, is not to misconstrue it as a DRO review and let it sit on someone’s desk for a year before the  “Aha!” moment of revelation. For this reason, we award the en banc panel of the Court of Veterans Appeals our shiny Dick Tracy Award for figuring out the obvious and explaining it in only 26 pages. Trees everywhere thank your Honors for your attempt at brevity. Global warming has been abated.


About asknod

VA claims blogger
This entry was posted in CAVC Knowledge, CAVC ruling, Equitable tolling, Veterans Law and tagged , , , , , , , , , , . Bookmark the permalink.

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