Emilio T. Palomer v. Robert A. McDonald

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 14-1017

EMILIO T. PALOMER, APPELLANT,

V.

ROBERT A. MCDONALD,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before KASOLD, Chief Judge, and SCHOELEN and GREENBERG, Judges.

ORDER

Mr. Emilio T. Palomer seeks to appeal a July 10, 2013, decision of the Board of Veterans'

Appeals (Board). However, he mailed his motion for reconsideration of the Board decision 133 days

after the Board decision was mailed, and then filed his Notice of Appeal (NOA) 102 days after the

Board Chairman denied reconsideration. The Secretary moved to dismiss the appeal because Mr.

Palomer did not file either an NOA or a request for reconsideration within 120 days of the Board

decision, such that the NOA he ultimately filed was untimely.1 See Rosler v. Derwinski, 1 Vet.App.

241, 249 (1991) (holding that if, following a final Board decision, the claimant files a motion for

reconsideration with the Board during the 120-day appeal period, the finality of the Board decision

is abated); see also 38 U.S.C. § 7266 (providing a 120-day period in which to file an NOA).

Mr. Palomer presents three arguments why the Court should equitably toll the 120-day period

in which a claimant may file a motion for reconsideration in order to abate the finality of the Board

decision for purposes of timely filing an NOA: (1) The time it takes for him to send and receive mail

in the Philippines constitutes an extraordinary circumstance; (2) his physical condition rendered him

incapable of handling his affairs and precluded a timely filing; and (3) the Secretary provided a

1

Mr. Palomer's motion for reconsideration was postmarked by the Philippine Postal Corporation on November

20, 2013, one hundred and thirty-three days after the Board decision was mailed. The Board received his motion on

December 5, 2013, one hundred and forty-eight days after notice of the Board's decision. Because there is no dispute

that Mr. Palomer mailed his motion for reconsideration more than 120 days after the Board decision was mailed, we do

not need to decide whether VA's "postmark rule" applies to postmarks outside the United States. See Linville v. West,

165 F.3d 1382, 1386 (Fed. Cir. 1999) (applying VA's postmark rule to find that a motion for reconsideration postmarked

by the U.S. Postal Service within the 120-day appeal period abated the finality of the Board's decision); compare

38 C.F.R. § 20.305(a) (2014) ("When these Rules require that any written document be filed within a specified period

of time, a response postmarked prior to expiration of the applicable time limit will be accepted as having been timely

filed. In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date

of receipt of the document by the Department of Veterans Affairs."), with 38 U.S.C. § 7266(c)(2) (providing that an NOA

shall be deemed received 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 mailed"); see also Mapu v. Nicholson, 397 F.3d 1375

(Fed. Cir. 2005) (mail sent by FedEx was not a basis for equitably tolling the time to file an NOA).

confusing notice of appellate rights letter (VA Form 4597, "Notice of Appellate Rights"). Mr.

Palomer also argues that he timely filed an appeal of the Board Chairman's denial of reconsideration

and the Court has jurisdiction to decide that appeal.2 His arguments present an issue of first

impression. A panel decision is warranted. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990);

U.S. VET. APP. INTERNAL OPERATING PROCEDURE (IOP) I(b)(2), (4).

I. BACKGROUND AND ARGUMENTS

On July 10, 2013, the Board issued a decision denying Mr. Palomer a one-time payment from

the Filipino Veterans Equity Compensation Fund (FVECF). Mr. Palomer mailed his request for

reconsideration of the Board decision on November 20, 2013, one hundred and thirty-three days after

the Board decision was issued. On December 26, 2013, the Board denied his motion for

reconsideration, and 82 days later, on March 18, 2014, Mr. Palomer mailed his NOA to the Court.

Mr. Palomer's NOA was received by the Court 20 days later, on April 7, 2014.

As noted above, the Secretary moved to dismiss the appeal because it was untimely filed.

He also argued that the Court lacks jurisdiction to review the Board Chairman's denial of

reconsideration. Mr. Palomer argues that equitable tolling should apply to his case. The heart of Mr.

Palomer's argument is that Rosler predates Henderson ex rel. Henderson v. Shinseki, 131 S. Ct.

1197, 1206 (2011), which found that the 120-day appeal period for filing an NOA is not

jurisdictional. Mr. Palomer contends that failing to file the motion for reconsideration within the

120-day period after the Board issued its decision does not jurisdictionally bar his appeal, and thus,

equitable tolling applies to the 120-day period in which a claimant may file a motion for

reconsideration in order to abate the finality of the Board decision for purposes of timely filing an

NOA.

In support of his argument that his situation merits equitable tolling, Mr. Palomer relies on

Checo v. Shinseki, 748 F.3d 1373, 1378 (Fed. Cir. 2014), and argues that just as the Checo homeless

veteran's living situation warranted equitable tolling, Mr. Palomer's living situation warrants

equitable tolling. Specifically, he notes that he lives in the Philippines, where it takes mail from the

continental United States considerably longer to reach him than it does for veterans living in the

continental United States.

Mr. Palomer also argues that his deteriorating eyes and hearing, as well as old age, prevented

him from timely filing an appeal. In support of this argument, he notes that he must rely on a third

party to relay the contents of the Board communications to him, and he was either misinformed or

misunderstood the time requirements for filing his NOA. He further contends that he exercised

reasonable diligence in submitting his request for reconsideration.

2

On December 30, 2014, counsel for Mr. Palomer entered the case, and on January 23, 2015, he submitted

a response to the motion to dismiss, and he submitted a motion to expedite proceedings. On February 12, 2015, counsel

filed a motion to file a substitute response and attached such substitute response. The motion is granted and the text of

the Court's order reflects the arguments in the substituted response. The motion to expedite proceedings will be denied

as moot.

2

Additionally, Mr. Palomer contends that the Notice of Appellate Rights issued by the Board

is confusing. He notes that the letter first states that there is no time limit for filing a motion for

reconsideration, but then later states that there is a 120-day deadline. Given his desire to request

reconsideration and the format of the notice, he asserts that he was unaware of the 120-day deadline.

Mr. Palomer further argues that even if the Court does not equitably toll the time to file his

motion for reconsideration, he timely appealed the Chairman of the Board's denial of

reconsideration. He contends that the Court may review denials of reconsideration when the motion

is based on new evidence or changed circumstances. He further contends that the recent decision

in Tagupa v. McDonald, 27 Vet.App. 95, 101, 103-04 (2014) (holding a request to the National

Personnel Records Center (NPRC) to verify a claimant's service does not satisfy the Secretary's duty

under 38 C.F.R. § 3.203 (2014), and holding that the Board erred by not addressing whether the

appellant served in an unrecognized guerrilla service) constitutes a changed circumstance. Pursuant

to Tagupa, Mr. Palomer argues that the Board erred because (1) it relied solely on the response of

the NPRC in assessing his veteran status, and did not seek verification of service from the

appropriate service department, and (2) the NPRC provided no information as to whether he served

as a member of an unrecognized guerilla group.

II. DISCUSSION

A. Abatement of Finality in the Board Decision

Pursuant to 38 U.S.C. § 7266(a), an appellant has 120 days in which to appeal an adverse

Board decision to the Court. In Rosler, the Court held that when a claimant files a motion for

reconsideration with the Board during the 120-day judicial appeal period, the finality of the Board

decision is abated for purposes of timely filing an NOA. 1 Vet.App. at 242. The Court further held

that "[i]t is implicit in the tolling principle that the motion for reconsideration must be made within

the time period for filing a judicial appeal from the decision which is the subject of the

reconsideration motion. Otherwise the appeal period would already have elapsed and thus could not

be tolled." Id. at 245.

However, in Jaquay v. Principi, 304 F.3d 1276, 1286-87 (Fed. Cir. 2002), the U.S. Court of

Appeals for the Federal Circuit (Federal Circuit) applied the principles of equitable tolling described

in Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) (providing that equitable tolling is

generally available "where the claimant has actively pursued his judicial remedies by filing a

defective pleading . . . or where [he] has been induced or tricked by his adversary's misconduct into

allowing the filing deadline to pass"), to find that a timely misfiled motion for reconsideration tolled

the Rosler limitations period. The Federal Circuit stated:

In the context of the non-adversarial, paternalistic, uniquely pro-claimant veterans'

compensation system, and consistent with our decision in Bailey [v. West, 160 F.3d

1360 (Fed. Cir. 1998) (en banc)], the availability of equitable tolling pursuant to

Irwin should be interpreted liberally with respect to filings during the non-adversarial

stage of the veterans' benefits process. Just as the limitations period of 38 U.S.C.

3

§ 7266 can be stopped and reset by the timely filing of a properly addressed motion

for reconsideration, see Rosler, 1 Vet.App. at 249, nothing in the statute or

regulations at issue suggests that equitable tolling should not be available under

appropriate circumstances.

304 F.3d at 1286.

Although for a short period, equitable tolling of the time to file an NOA was not permitted

because the time to file was deemed jurisdictional, that understanding of the law has been rejected,

and the time to appeal may be equitably tolled. See Henderson, supra; Bove v. Shinseki, 25 Vet.App.

136, 140 (2011) (per curiam order) (reinstating equitable tolling "within the parameters established

by . . . the precedential decisions of [the Federal Circuit] and this Court prior to" the Henderson

decision, which overturned decisions holding that the 120-day filing period could not be equitably

tolled). Furthermore, although Jaquay did not address the situation that is presented here, we find

no reason to limit the availability of equitable tolling of the Rosler limitations period to timely

misfiled requests for reconsideration. See Sneed v. Shinseki, 737 F.3d 719, 726 (Fed. Cir. 2013)

(noting that equitable tolling is not "'limited to a small and closed set of factual patterns'" (quoting

Mapu v. Nicholson, 397 F.3d 1375, 1380 (Fed. Cir. 2005))). Indeed, the Federal Circuit has

repeatedly "rejected the approach of looking to whether a particular case falls within the facts

specifically identified in Irwin or one of [the Federal Circuit's] prior cases." Mapu, 397 F.3d at 1380;

see, e.g., Sneed, 737 F.3d at 728 (holding that attorney abandonment may justify equitable tolling);

Barrett v. Principi, 363 F.3d 1316, 1320 (Fed. Cir. 2004) (holding that mental illness may justify

equitable tolling). Succinctly stated, we hold that the finality of a Board decision may be abated

even when a request for reconsideration is filed beyond the 120-day appeal period, provided the

circumstances surrounding such a filing warrant equitable tolling.

Accordingly, we turn to Mr. Palomer's arguments that equitable tolling should apply to his

case.

B. Equitable Tolling

Whether a situation warrants equitable tolling is a matter to be decided on a case-by-case

basis. See Sneed, 737 F.3d at 726. Furthermore, it is the appellant's burden to demonstrate

entitlement to equitable tolling and to produce any evidence supporting his claim for equitable

tolling. See Chastain v. West, 13 Vet.App. 296, 300-01 (2000) (appellant bears burden of

demonstrating that equitable tolling is warranted), aff'd sub nom. Chastain v. Principi, 6 F. App'x

854 (Fed. Cir. 2001) (per curiam); see also McCreary v. Nicholson, 19 Vet.App. 324, 332 (2005)

("It is the appellant's obligation . . . to produce any evidence supporting his claim for equitable

tolling."), adhered to on reconsideration by 20 Vet.App. 86 (2006). Based on the arguments

presented, we find that Mr. Palomer fails to demonstrate that equitable tolling is warranted.3

3

We note that our dissenting colleague cites Lord Ellesmere's view that a general law cannot meet every

situation, post at ___, as well as his own opinion that equity exists to protect against narrowly prescribed rules and narrow

interpretations of precedential case law, post at ___. We agree with both Lord Ellesmere and our dissenting colleague,

4

1. Philippine Mail System

Mr. Palomer argues that because he lives in the Philippines and mail from the United States

takes longer to arrive at his home than it does for veterans living in the continental United States,

his living situation is an extraordinary circumstance warranting equitable tolling, just as the veteran's

homelessness in Checo was an extraordinary circumstance. See Checo, 748 F.3d at 1378-79. In

support of his argument, Mr. Palomer notes the 15-day delay between when his request for

reconsideration was postmarked as mailed in the Philippines to when it was marked as received by

the Board. He also notes the 13-day delay between his June 27, 2014, pro se response to the

Secretary's motion to dismiss and the date it was received by the Court.4 He therefore contends that

the time for filing his motion for reconsideration should be tolled for at least 14 days to account for

this delay.

At the outset, we note that Mr. Palomer mailed his request for reconsideration after the 120-

day period in which to file his NOA had passed. Accordingly, the time it took to be received by the

Board is irrelevant to the 120-day equitable tolling analysis. Acknowledging, however, that it takes

longer for mail to travel between the United States and the Philippines than it does for mail to travel

within the United States, Mr. Palomer nevertheless fails to demonstrate that this circumstance

warrants equitable tolling of the 120-day period in which to file an NOA or a request for

reconsideration that would abate the finality of the Board decision.

Indeed, we note that Mr. Palomer was able to file his NOA within 102 days of the denial of

his request for reconsideration, and he was able to respond to the Secretary's motion to dismiss

within 38 days from when the motion was mailed. We also note that Mr. Palomer does not state

when he received the Board's decision; instead, based on the pattern of outgoing mail, he speculates

that he received the Board's decision on July 24, 2013, at the earliest. Although the inefficiencies

in the delivery of mail between the United States and the Philippines may be a circumstance beyond

Mr. Palomer's control, he fails to assert, let alone demonstrate, that he had an inadequate amount of

time to consider his options and timely mail his request for reconsideration. Succinctly stated, Mr.

Palomer fails to demonstrate that the time for mail to be delivered between the United States and the

Philippines rises to the level of an extraordinary circumstance warranting equitable tolling.

See Sneed, 737 F.3d at 725 ("'[A] litigant seeking equitable tolling bears the burden of establishing

two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way.'" (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005))); Sandvik

but we also agree with William Blackstone, who is attributed in the William Blackstone, Commentaries *62 as noting

that "the liberty of considering all cases in an equitable light must not be indulged too far, lest thereby we destroy all law,

and . . . . make every judge a legislator, and introduce most infinite confusion . . . . "). We also note that our

determination that equitable tolling is not warranted in this case is not predicated on a narrowly prescribed rule or a

narrow interpretation of precedential caselaw, but on our conclusion that the facts in this case do not warrant equitable

tolling.

4

The Court observes that it is not clear from the record whether it took 13 days for Mr. Palomer's June 27th

response to arrive in the United States. Although his response was received at the Court on July 10, 2014, the response

was transmitted via facsimile from the Veterans Consortium Pro Bono Program. The record does not indicate when Mr.

Palomer's response was received by the Veterans Consortium Pro Bono Program.

5

v. United States, 177 F.3d 1269, 1271-72 (11th Cir. 1999) (per curiam) (refusing to apply equitable

tolling where Sandvik's filing was late because his lawyer sent it by ordinary mail from Atlanta less

than one week before it was due in Miami); see also Harper v. Ercole, 648 F.3d 132, 137 (2d Cir.

2011) (stating that "'extraordinary' refers not to the uniqueness of a party's circumstances, but rather

to the severity of the obstacle impeding compliance with a limitations period"); McCreary,

19 Vet.App. at 329 (noting that at least eight Federal courts of appeal generally recognize

"'extraordinary circumstances that are both beyond [a claimant's] control and unavoidable even with

diligence'" (quoting Sandvik, 177 F.3d at 1271)).

2. Deteriorating Physical Condition

Mr. Palomer also argues that his age, poor eyesight, and hearing rendered him incapable of

handling his own affairs and prevented him from timely filing an appeal. Equitable tolling may be

warranted if a claimant's mental or physical illness renders him incapable of handling his own affairs

or functioning in society. See Barrett, 363 F.3d at 1321 (holding that equitable tolling may be

warranted if an untimely filing is "the direct result of a mental illness that rendered [a claimant]

incapable of . . . handling [a claimant's] own affairs" (internal quotations and citation omitted));

see also Arbas v. Nicholson, 403 F.3d 1379, 1381 (Fed. Cir. 2005) (extending the Barrett holding

to all infirmities that prevent a claimant from, inter alia, handling his own affairs). However, a

"medical diagnosis alone or vague assertions of mental [or physical] problems will not suffice" to

support an application of equitable tolling. Barrett, 363 F.3d at 1321.

In this case, the facts belie his argument, as Mr. Palomer was capable of filing his NOA and

responding to the Secretary's motion well within 120 days of the denial of his motion for

reconsideration and the filing of the Secretary's motion to dismiss, and he does not assert that his

condition was worse following issuance of the Board decision, and then improved such that he was

able to timely file his other responses. Moreover, other than vague assertions of physical infirmity,

Mr. Palomer offers no evidence demonstrating that his physical condition rendered him incapable

of handling his affairs. See Barrett, supra. In sum, Mr. Palomer fails to demonstrate that his

physical condition prevented him from filing his request for reconsideration within the 120-day

period following issuance of the Board decision, or that his condition otherwise warrants equitable

tolling. See Sneed, Chastain, and McCreary, all supra; see also Bove, 25 Vet.App. at 145

(physician's letter describing veteran's difficulty making everyday decisions and that his mental

disorders cause him to over-think and procrastinate did not meet Barrett's test); Claiborne v.

Nicholson, 19 Vet.App. 181, 187 (2005) (physician's letters explaining that the claimant had a

"severely impaired" ability to handle his own affairs did not meet Barrett's "high standard" for

equitable tolling).

Mr. Palomer further contends that as a result of his poor eyesight and failing health, he must

rely on a third party to relay the contents of the Board communications to him. Mr. Palomer alleges

that either the third party misinformed him as to the contents of the letter or he misunderstood the

time period for filing his appeal. Neither argument, however, demonstrates a basis for equitably

tolling the time to file. Mr. Palomer provides no information regarding the third party who may have

read his Board decision, when he sought or received assistance from the third party, or what

questions Mr. Palomer may have asked the third party regarding this matter, such that his reliance

6

on the third party precluded a timely filing. See Sneed, Chastain, and McCreary, all supra; see also

Nelson v. Nicholson, 19 Vet.App. 548, 553 (2006) (refusing to extend equitable tolling to cases

involving attorney neglect such as missing a filing deadline), aff'd, 489 F.3d 1380 (Fed. Cir. 2007);

Leonard v. West, 12 Vet.App. 554, 555 (1999) (per curiam order) (refusing to grant equitable tolling

where the service representative took a long time to review the claim and the U.S. Post Office closed

early on the last day of the filing period).

3. Confusing NOA Instructions

Mr. Palomer contends that the Notice of Appellate Rights issued by the Board is confusing

because it states at one point that there is no time limit for filing a motion for reconsideration, but

then later states that there is a 120-day deadline. At the outset, it is noted that the Federal Circuit has

held that the Notice of Appellate Rights used by the Board is adequate. Cummings v. West, 136 F.3d

1468, 1474 (Fed. Cir. 1998) (finding adequate an appeals notice letter where the letter did not

explain that the claimant could preserve jurisdiction of the Court by filing a motion for

reconsideration within the 120-day appeal period, and noting that 38 U.S.C. § 5104 required only

that the appeals notice provide a "general outline of the available procedures for obtaining review

of a final Board decision"), overruled on other grounds by Bailey, 160 F.3d at 1360.

In this case, the Notice of Appellate Rights provided the same information as the notice in

Cummings, supra, as well as a correct explanation of the effect of filing a motion for reconsideration

on the deadline for filing an NOA to this Court. Although the notice states that there is no time limit

for filing a request for reconsideration, this statement immediately precedes a paragraph that

separately addresses "How long do I have to start my appeal to the Court?" Motion (Mot.) to

Dismiss, Exhibit 1 at 8 (VA Form 4597, Notice of Appellate Rights) (bold in original). This

paragraph informs the claimant that he or she may file a request for reconsideration instead of an

NOA and still have time to file an NOA, "[a]s long as [he] file[s] [his] motion(s) with the Board

within 120 days of the date this decision was mailed to [him]." Mot. to Dismiss, Exhibit 1 at 8 (VA

Form 4597, Notice of Appellate Rights) (emphasis in original). Additionally, in a separate paragraph

that addresses "How do I file a motion for reconsideration?" the claimant is reminded that he must

file a motion for reconsideration within 120 days of the Board's decision if he or she also wants to

pursue an appeal to the Court. Mot. to Dismiss, Exhibit 1 at 9 (VA Form 4597, Notice of Appellate

Rights) ("Remember, the Board places no time limit on filing a motion for reconsideration, and you

can do this at any time. However, if you also plan to appeal this decision to the Court, you must file

your motion within 120 days from the date of this decision.").

In sum, the Court finds no basis here to apply equitable tolling because Mr. Palomer fails to

demonstrate that the Notice of Appellate Rights is inadequate or confusing on this issue. See Sneed,

Chastain, and McCreary, all supra; see also Cummings, supra; Smith v. West, 13 Vet.App. 525

(2000) (holding that the assertion that language in a Board Chairman's denial of motion for Board

reconsideration was confusing and misleading was insufficient, by itself or taken together with the

notice of appellate rights, to trigger the application of the doctrine of equitable tolling); Leonard,

12 Vet.App. at 555 (holding appellant's contention that her alleged limited education and experience

rendered her unable to understand the amount of time for filing an NOA was "at best a garden variety

claim of excusable neglect" and refusing to apply equitable tolling) (internal quotation marks

7

omitted); Schreiner v. Derwinski, 2 Vet.App. 72, 72 (1991) (per curiam) (holding that equitable

tolling does not extend to "'a garden variety claim of excusable neglect'" (quoting Irwin, 498 U.S.

at 96)).

4. Overall

Based on the foregoing analysis, we find that Mr. Palomer fails to demonstrate that the delay

in sending and receiving mail in the Philippines, his deteriorating physical condition, and the Board's

Notice of Appellate Rights, individually or together, warrant equitably tolling the 120-day period to

file a motion for reconsideration in order to abate the finality of the Board decision for purposes of

timely filing an NOA. See Sneed, 737 F.3d at 726 (noting that "courts acting in equity have

emphasized 'the need for flexibility' and 'for avoiding mechanical rules,' and have proceeded on a

'case-by-case basis'"); see also Mapu, supra.

C. Board Chairman's Denial of Reconsideration

Mr. Palomer argues that even if the Court does not equitably toll the time to file his appeal

of the July 2013 Board decision, he nevertheless timely appealed the Board Chairman's denial of

reconsideration. He concedes that the Court may not normally review denials of reconsideration,

however, he relies on Patterson v. Brown, 5 Vet.App. 362 (1993) for the proposition that when the

motion is based on new evidence or changed circumstances, the Court has jurisdiction to review the

Board Chairman's denial of reconsideration. He contends that the Court's decision in Tagupa,

27 Vet.App. at 101, presents the changed circumstances in his case, and, based on Tagupa, he argues

that the Board erred because it relied solely on the response of the NPRC and did not seek

verification of service from the appropriate service department.

Although Patterson held that the Court had jurisdiction over a Board Chairman's denial of

reconsideration when the motion for reconsideration was based on new evidence or changed

circumstances, in Mayer v. Brown, 37 F.3d 618, 620 (Fed. Cir. 1994), the Federal Circuit noted that

in Patterson, our Court had jurisdiction over the underlying Board decision based on a timely filed

NOA. The Federal Circuit further stated, however, that while 38 U.S.C. § 7261 "may allow the

[Veterans Court] to review actions of the Chairman [of the Board] in cases where it already has

jurisdiction by virtue of a timely appeal from a final [B]oard decision, it does not independently grant

jurisdiction over such actions." Mayer, supra; see also Trice v. Brown, 9 Vet.App 245, 246 (1996)

(per curiam order) (recognizing that Mayer overruled the Patterson decision regarding jurisdiction

over denials of reconsideration by the Board Chairman).

Although Mayer discusses the Court's authority to review the Board Chairman's denial of

reconsideration in terms of "jurisdiction" over Board decisions, and although the Supreme Court in

Henderson, supra, held that the 120-day appeal period is not jurisdictional, but rather an important

procedural rule, we find that Mayer continues to stand for the proposition that when an NOA is filed

beyond the 120-day appeal period and equitable tolling is not warranted such that the Court declines

to exercise its jurisdiction over an appeal from a Board decision, the Court does not have

independent jurisdiction over an appeal from a denial for reconsideration by the Board Chairman.

In other words, although the time limit for filing an NOA is not jurisdictional, the Court's subject

8

matter jurisdiction is limited to reviewing final decisions of the Board. See 38 U.S.C. §§ 7252(a),

7266(a); Mayer, 37 F.3d at 619-20 (finding that a decision by the Board Chairman is not a decision

of the Board, and therefore, cannot independently grant jurisdiction under 38 U.S.C. § 7252(a)).5

Here, Mr. Palomer untimely filed his NOA and equitable tolling is not warranted such that

we decline to exercise jurisdiction over the appeal from the Board decision. Accordingly, we do not

have jurisdiction over the appeal of the Board Chairman's denial of the motion for reconsideration.

See Mayer, supra.

III. CONCLUSION

Based on the information before the Court, Mr. Palomer has not demonstrated that his

situation warrants equitable tolling.

Therefore, upon consideration of the foregoing, it is

ORDERED that Mr. Palomer's January 23, 2015, motion to expedite proceedings is denied

as moot. It is further

ORDERED that Mr. Palomer's February 12, 2015, motion to file a substitute response is

granted. It is further

ORDERED that the Secretary's motion to dismiss is granted, and the appeal is DISMISSED

for lack of jurisdiction.

DATED: March 18, 2015 PER CURIAM.

GREENBERG, Judge, dissenting:

I dissent. The Court must decide matters of equitable tolling on a case-by-case basis. See

Ferguson v. Shinseki, No. 13-1149, 2014 WL 463690 (U.S. Vet. App. Feb. 6, 2014) (Greenberg, J.,

concurring); Mapu v. Nicholson, 397 F.3d 1375, 1380 (Fed. Cir. 2005) ("equitable tolling is not

limited to a small and closed set of factual patterns" and is rather decided on a "case by case basis").

This Court has been admonished for "focus[ing] too narrowly on whether [an appellant's] case fell

into one of the factual patterns of past cases considering § 7266(a)." Sneed v. Shinseki, 737 F.3d

719, 726 (Fed. Cir. 2013). "[T]his Court is free to extend the principles of equitable tolling to new

situations when warranted," Nelson v. Nicholson, 19 Vet.App. 548, 551 (2006), and it should do so

here, so as to not exclude this diligent appellant from making his case on the merits.

5

We note that the 120-day period in which to appeal a Board decision is not jurisdictional, see 38 U.S.C.

§ 7266(a); it is, however, distinct and separate from our adjudicatory authority to review final Board decisions, which

is jurisdictional, see 38 U.S.C. § 7252(a).

9

The evidence reflects that the appellant never received the statutorily mandated 120 days to

file an appeal because he resides in the Philippines. All the appellant's correspondence related to the

matter on appeal indicates a two- to three-week delay for delivery. For example, the appellant's

motion for reconsideration was postmarked by the Philippine Postal Corporation on November 20,

2013, but was received by VA 15 days later, on December 5, 2013. Additionally, the appellant's

Notice of Appeal was postmarked on March 18, 2014, but was received 20 days later, on April 7,

2014. The time for delivery for these filings exceeds the 13 days by which the appellant missed the

120-day appeal period from the Board decision. The appellant states that he received the Board

decision at least two weeks after it was mailed, and that statement is supported by the pattern of his

other filings. The appellant had, at most, only 106 days to file his appeal.

Equitable tolling is warranted where a diligent appellant was unable to file timely. See JOHN

NORTON POMEROY, POMEROY'S EQUITY JURISPRUDENCE AND EQUITABLE REMEDIES, § 419 (3d ed.

1905) ("'Nothing can call forth this court into activity but conscience, good faith, and reasonable

diligence.'" (quoting Lord Camden, Smith v. Clay, (1767) 27 Eng. Rep. 418 (Ch.) 420; Amb. 645,

647) (emphasis in original)). In this case, there is no action that the appellant could reasonably have

taken to speed up his receipt of the Board decision. It is irrelevant to the Court's evaluation of

diligence that the appellant could have filed his motion within a shortened appeal period of 106 days.

That the appellant filed his motion for reconsideration within 120 days of receiving that decision is

a sufficient demonstration of his diligence. Where, as here, the facts indicate that the appellant's

filing was untimely because of the mailing delay, not in addition to it, equitable tolling is

appropriate.

During Lord Ellesmere's dispute over the roles of equity and law with Lord Coke, Ellesmere

stated: "The Cause why there is a Chancery is, for that Mens Actions are so divers and infinite, That

it is impossible to make any general Law which may aptly meet with every particular Act, and not

fail in some Circumstances." Earl of Oxford's Case, (1615) 21 Eng. Rep. 485 (Ch.) 486; Rep. Ch.

1, 6. The principle that equity exists to protect against the failures of narrowly prescribed rules ought

to be reflected in this Court's equitable tolling jurisprudence. That this appellant's circumstances do

not conform to a narrow interpretation of the Court's precedent should only hasten the Court's

expansion of its equity jurisprudence. That jurisprudence must be more inclusive so as to properly

discharge the essential duty of equity: to provide relief in light of diverse and infinite circumstances

for which fixed laws cannot account. Fiat justitia ruat caelum. See Rex v. Wilkes, (1770) 98 Eng.

Rep. 327 (K.B.) 347 (Lord Mansfield); 4 Burr. 2527, 2562; see also Somerset v. Stewart, (1772)

98 Eng. Rep. 499 (K.B.) 509; Lofft 1, 17; for a relevant description of general equitable principles,

see also Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 499-500 (1952) ("[U]nder general

principles of equity the court may require . . . so that as nearly as may be the parties will be protected

and equity done, Hartman v. Hartle, 95 N.J. Eq. 123, 125, 122 A. 615 (Ch. 1923); Attorney General

v. Linden Cemetery Ass'n, 85 N.J. Eq. 501, 506-07, 96 A. 1001 (E. & A. 1916); 1 POMEROY, EQUITY

JURISPRUDENCE (5th ed. 1941), § 237e; 2 RESTATEMENT, TRUSTS (1935), § 291."). I dissent.

10