Kenneth J. Irwin v. Eric K. Shinseki

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 08-1381

KENNETH J. IRWIN , APPELLANT ,

V.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided August 20, 2009)

Jennifer A. Zajac, of Oceanside, California, was on the pleading for the appellant.

Paul J. Hutter, General Counsel; R. Randall Campbell, Assistant General Counsel; Richard

Mayerick, Deputy Assistant General Counsel; and Gabielle L. Clemons, all of Washington, D.C.,

were on the pleading for the appellee.

Before GREENE, Chief Judge, and MOORMAN and SCHOELEN, Judges.

MOORMAN, Judge: On December 7, 2007, the Board of Veterans' Appeals (Board) issued

a decision denying veteran Kenneth J. Irwin's claim for service connection for diabetes mellitus.

On May 2, 2008, the Court received the appellant's Notice of Appeal (NOA). For the reasons

discussed below, the Court holds that because the appellant has not demonstrated that he filed his

NOA with the Court within the judicial-appeal period prescribed by statute, the Court will dismiss

the appeal for lack of jurisdiction.

I. FACTS

On May 2, 2008, more than 120 days after the Board's decision, the Court received a

document signed by Mr. Irwin and presented on the Court's preprinted NOA form, along with

several pages of correspondence. The preprinted NOA form, in bold lettering at the top of the form,

identifies this Court and states: "Notice of Appeal." It further contains the following preprinted

language: "The following named appellant appeals to the Court from a final Board of Veterans'

Appeals . . . decision." The document also identifies the date of the Board decision as December 7,

2007, and Mr. Irwin's name and address. The document was received from the Board. In the

attached correspondence from Mr. Irwin dated December 14, 2007, which is addressed to the Board,

he stated: "I wish to file a Notice of Appeal to the U.S. Court. I disagree with the decision the Board

of Veterans' Appeals made [o]n my claim." Mr. Irwin had addressed the envelope containing these

documents to the "Board of Veterans['] Appeals, Department of Veterans Affairs, Washington, DC,

20420." The envelope was postmarked "15 Dec 2007" by the U.S. Postal Service, and date stamps

on both the envelope and the documents themselves indicate that the Board received these

documents on January 7, 2008.

On June 2, 2008, in response to a Court order directing Mr. Irwin, who was pro se at the

time, to explain why the Court should not dismiss his appeal because it was filed more than 120 days

after the mailing of the Board decision, Mr. Irwin states that he "had never received [the Board]

decision dated 7 Dec 07 until mid-May 2008. This is no fault of mine that 120 days had passed

since decision." June 2, 2008, Response to Court Order. Later that month, the Court issued an order

directing the Secretary to file a response and to include a preliminary record evidencing that the

Board decision was properly mailed to Mr. Irwin. A July 11, 2008, response from the Secretary

included a preliminary record and a declaration that a copy of the Board's December 7, 2007,

decision was timely mailed to the appellant. On September 5, 2008, counsel for Mr. Irwin filed a

notice of appearance.

On November 6, 2008, the Court issued an order (1) directing the Secretary to submit a

memorandum explaining whether the above sequence of events was accurate and, if so, what effects,

if any, those events had on the Court's jurisdiction in this appeal, and (2) directing that Mr. Irwin file

a memorandum in response to the Secretary's memorandum not later than 20 days thereafter. On

November 26, 2008, the Secretary filed his response. The Secretary states that the Board's

computerized appeal tracking system showed that the above sequence of events was correct.

According to the Secretary, Mr. Irwin's documents were "'initially construed as a motion [for

reconsideration] pursuant to [Board] decision dated 12/7/07, but [were] actually a[n] NOA to the

[Court].'" Staff at the Board therefore subsequently mailed the documents to the Court. The

Secretary did not explain why it apparently took the Board four months to construe as an NOA the

documents submitted to the Board that consisted of the Court's preprinted NOA form and

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accompanying correspondence, and to forward those documents to the Court. The Secretary asserts

that the Court lacks jurisdiction over this appeal because the Court had not received a timely NOA

from Mr. Irwin.

On December 2, 2008, Mr. Irwin moved through counsel that this appeal be stayed until the

Court issued a decision in either Boone v. Shinseki, 22 Vet.App. 412 (2009), or Kouvaris v. Shinseki,

22 Vet.App. 377 (2009). The Court granted the relief sought in the motion. The Court issued

decisions in those appeals on March 10, 2009, and on February 25, 2009, respectively. The stay

therefore expired upon the issuance of those decisions, and the preexisting schedule for the filing

of Mr. Irwin's memorandum resumed at the point at which the appeal was stayed. See U.S. VET.

APP. R. 5(b) (providing that "[w]hen a stay expires, the preexisting filing schedule resumes at the

point at which it was stayed"). Mr. Irwin has not filed a response to the Secretary's November 26,

2008, memorandum. On March 26, 2009, the appeal was submitted to this panel for decision and

the parties were so notified.

II. ANALYSIS

A. Equitable Tolling

Under 38 U.S.C. § 7266(a),1 in order for a claimant to obtain review of a Board decision by

this Court, the Court must receive the claimant's NOA within 120 days after the date on which the

Board decision was mailed. See Henderson v. Peake, 22 Vet.App. 217, 221 (2008), appeal

docketed, No. 2009-7006 (Fed. Cir. Oct. 7, 2008) (submitted en banc June 29, 2009); Rosler v.

Derwinski, 1 Vet.App. 241, 242 (1991); U.S. VET. APP. R. 4. In Henderson, this Court held that the

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38 U.S.C. § 7266 provides, in pertinent part:

(a) In order to obtain review by the Court of Appeals for Veterans Claims of a final

decision of the Board of Veterans' Appeals, a person adversely affected by such

decision shall file a notice of appeal with the Court within 120 days after the date

on which notice of the decision is mailed pursuant to section 7104(e) of this title.

(b) An appellant shall file a notice of appeal under this section by delivering or

mailing the notice to the Court.

(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.

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120-day filing requirement under 38 U.S.C. § 7266(a) is jurisdictional and not subject to equitable

tolling. See 22 Vet.App. at 220-21 (holding that "for the civil cases rising from appeals to this

Court, there are no equitable exceptions to the 120-day judicial-appeal period established by section

7266(a)") (citing Bowles v. Russell, 127 S. Ct. 2360, 2366 (2007)).

In Bowles, the U.S. Supreme Court held that Mr. Bowles's failure to timely file his NOA in

accordance with the statute, 28 U.S.C. § 2107, deprived the appellate court of jurisdiction.

127 S. Ct. at 2366. In so holding, the Supreme Court reasoned: "Congress decides what cases the

federal courts have jurisdiction to consider. Because Congress decides whether federal courts can

hear cases at all, it can also determine when, and under what conditions, federal courts can hear

them." Id. at 2365. The Supreme Court stated: "As we have long held, when an 'appeal has not

been prosecuted in the manner directed, within the time limited by acts of Congress, it must be

dismissed for want of jurisdiction.'" Id. at 2366 (quoting United States v. Curry, 6 How. 106, 113

(1848)). In addressing the appellant's argument that his untimely filing should be excused because

he satisfied the "unique circumstances" doctrine, which had its roots in prior precedent, the Supreme

Court made clear that such doctrine is "illegitimate" because the Court has "no authority to create

equitable exceptions to jurisdictional requirements." Id. at 2366. The Supreme Court noted that if

its holding is thought to be "inequitable," Congress had the power to authorize courts to excuse

compliance with the statutory time limits.

In Henderson, this Court discussed the effect of Bowles on Bailey v. West, 160 F.3d 1360

(Fed. Cir. 1998), which held that equitable tolling is available for NOAs filed at this Court, and

concluded that the premise upon which Bailey was decided could no longer stand. Applying Bowles,

the Court in Henderson held that because of the jurisdictional nature of the time limit for filing an

NOA, the Court could not consider Mr. Henderson's contention that his service-connected disability

prevented him from timely filing his appeal of the Board decision. Henderson, 22 Vet.App. at 221;

see also Jones (Bobby) v. Peake, 22 Vet.App. 247, 249 (2008) (holding that equitable tolling is

foreclosed by Bowles and Henderson, both supra, and dismissing appeal for lack of jurisdiction).2

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The Court acknowledges the shift in caselaw based on Bowles, supra. Prior to Bowles and Henderson, this

Court had issued Bobbitt v. Principi, 17 Vet.App. 547, 554 (2004) (per curiam order), which held that the misfiling of

a Notice of Appeal with the Board within the 120-day judicial-appeal period would be considered a timely filed NOA

based on the equitable tolling of the judicial appeal period of 38 U.S.C. § 7266. The Court in Bobbitt noted that binding

caselaw required it to conclude that the Court had jurisdiction to review the appeal despite the misfiling of the NOA.

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Henderson and Bowles dictate the outcome here. Congress, in this Court's jurisdictional

statute, 38 U.S.C. § 7266, prescribed the time and manner for filing an appeal to this Court.

Pursuant to the statute, to obtain review by this Court, a person adversely affected by such decision

"shall file a notice of appeal with the Court within 120 days after the date on which notice of the

decision is mailed pursuant to section 7104(e) of this title." 38 U.S.C. § 7266(a) (emphasis added).

As noted above, Henderson specifically held the 120-day appeal period to be jurisdictional. In the

same statutory section, Congress set forth the requirement that the filing of the notice be made with

the Court. 38 U.S.C. § 7266(a). The requirement that the filing be with the Court is again made

clear in subsections (b) and (c) of the same statute. Pursuant to section 7266(b), an appellant "shall

file a notice of appeal under this section by delivering or mailing the notice to the Court." 38 U.S.C.

§ 7266(b) (emphasis added). Section 7266(c) provides the two specific circumstances under which

an NOA "shall be deemed to be received by the Court": (1) on the date of receipt by the Court, if

the notice is delivered; and (2) on the date of the U.S. Postal Service postmark, if the notice is

properly addressed to the Court and is mailed. There are no further exceptions set forth in the

jurisdictional statute. Congress has not authorized this Court to excuse compliance with the

statutory time limit of 120-days and the requirement that the notice be filed with the Court.

The Court, however, first discussed the relevant statutory provisions and clear direction in the appeals notice that

accompanied the Board decision:

Nowhere in the text of the statute [(38 U.S.C. § 7266)] has Congress authorized a

veteran to file an NOA with a VA regional office (VARO), the Board, the VA

medical system, or the VA Office of General Counsel in lieu of submitting it to the

Court. . . . In accordance with section 5104(a), VA sends to claimants with each

decision of the Board an appeals notice (VA Form 4597) that specifically directs

claimants how to appeal to the Court. The appeals notice also instructs a VA

claimant that an NOA "must be filed with the Court within 120 days from the date

of mailing" of the Board decision, provides the Court's address, and states that

while a claimant must mail a copy of the NOA to the VA General Counsel, that

mailing "does not take the place of" the NOA that must be filed with the Court.

The Federal Circuit has recognized the appeals notice as complying with the

requirements of section 5104(a), holding that it adequately explains "how and

when" to pursue an appeal to the Court. Cummings v. West, 136 F.3d 1468, 1472-

73 (Fed. Cir. 1998), cert. denied, 524 U.S. 954 [(1998)].

Id. at 550. As discussed above, the Supreme Court decision in Bowles and our Court's decision in Henderson

make clear that the statutory filing deadline in a judicial review statute is not subject to the doctrine of equitable tolling.

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In this case, Mr. Irwin did not file, within 120 days of the mailing of the December 7, 2007,

Board decision, an NOA with this Court as required by 38 U.S.C. § 7266. The Court received

Mr. Irwin's NOA on May 2, 2008, directly from the Board through the mail. The NOA was filed

on that date, a date that is not within the 120-day period provided in the statute. Because the Court

did not receive an NOA from Mr. Irwin within the 120-day period prescribed by 38 U.S.C.

§ 7266(a), this Court lacks jurisdiction over this appeal.

B. Motion for Reconsideration

That is not the end of the matter. The Court must determine whether the Court's decisions

in Boone or Kouvaris, both supra, apply here. In Boone, this Court held that a pending motion for

Board reconsideration served to abate the finality of the Board decision, and the Court dismissed the

appeal for lack of jurisdiction. 22 Vet.App. at 415. The Court held that Mr. Boone's submission to

the VA regional office (RO) was not an NOA "because the document and the circumstances

surrounding its filing evidenced no clear intent to seek judicial review." Boone, 22 Vet.App. at 414.

The Court concluded that the filing, however, constituted a motion for Board reconsideration, which

was still pending at VA. Id. In Kouvaris, 22 Vet.App. at 379-80, the Court held that, although the

document filed with the Board within the 120-day judicial-appeal filing period was not an NOA

because it lacked any indicia of intent to seek review by the Court, the document constituted a

motion for reconsideration of the Board's decision, the motion for reconsideration was still pending

at VA, and the finality of the Board's decision was abated by the filing.

Unlike Boone and Kouvaris, where the documents filed by each veteran failed to explicitly

express an intent to seek judicial review, here the documents filed by Mr. Irwin clearly expressed

an intent to seek judicial review by this Court. See Boone, 22 Vet.App. at 414 (holding that a

"review of Mr. Boone's submission to the RO . . . and the circumstances surrounding its filing

evidence no clear intent to seek judicial review," but concluding that the filing constituted a motion

for reconsideration); Kouvaris, 22 Vet.App. at 380 (holding that the Form 21-4138 filed at the Board

failed "to explicitly express an intent to seek judicial review" but that it met the regulatory

requirements for a motion for reconsideration). There was no ambiguity in the documents that the

Board received from Mr. Irwin on January 7, 2008, as to whether he sought judicial review. He

clearly did, as he submitted both an NOA on the preprinted form and correspondence stating the he

"wish[ed] to file a [NOA] to the U.S. Court." Neither of those documents expressed a request for

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reconsideration by the Board. In addition, Mr. Irwin did not file a request for Board reconsideration

with the Board within the 120-day period that would abate the finality of the 2007 Board decision.

See Linville v. West, 165 F.3d 1382, 1386 (1999).

C. Timely Receipt of Board Decision

Mr. Irwin, in his June 2008 response, contends that he had not received a copy of the

December 7, 2007, Board decision until mid-May 2008. However, the evidence does not support

this contention, as documents sent to the Board in January 2008 by Mr. Irwin demonstrate that he

had received the Board's decision not later than December 14, 2007, because that is the date that

appears on the documents that Mr. Irwin signed. Further, Mr. Irwin specifically referred to the

December 7, 2007, Board decision in the correspondence accompanying the NOA, and he dated that

correspondence December 14, 2007.

Moreover, this Court has long held that "[t]here is a presumption of regularity under which

it is presumed that government officials 'have properly discharged their official duties.'" Ashley v.

Derwinski, 2 Vet.App. 307, 308 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1,

14-15 (1926)). Although this presumption is not absolute, the burden is on the appellant to present

clear evidence that VA did not follow its regular mailing practices or that its practices were not

regular. Clarke v. Nicholson, 21 Vet.App. 130, 133 (2007); see also Jones v. West, 12 Vet.App. 98,

102 (1998) (noting well-established caselaw that an assertion of nonreceipt, standing alone, does not

rebut the presumption of regularity that VA properly mailed notice of its decision). In this case,

Mr. Irwin has not presented any evidence, let alone clear evidence, to rebut the presumption of

regularity that VA mailed him notice of the December 7, 2007, Board decision. To the contrary, the

Secretary has submitted evidence showing that VA properly discharged its mailing duties here. The

Secretary's July 11, 2008, response filed with the Court included the declaration from the director

of the Management and Administrative Service of the Board, who reviewed the claims file and

VACOLS (the Veterans Appeals Control and Locator System), the Board's computerized tracking

system, and stated that a copy of the December 7, 2007, Board decision was mailed to Mr. Irwin on

December 7, 2007, to an address that Mr. Irwin had indicated to be his mailing address. July 11,

2008, Response, Exhibit, Declaration at para. 3. The declarant noted that this address reflected the

change of address for Mr. Irwin that it had received in October 2007. The declarant further stated

that there was no indication in the claims file or in VACOLS that the Board decision was returned

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by the U.S. Postal Service as undeliverable. Id. The Secretary maintains that the December 7, 2007,

Board decision was mailed to Mr. Irwin at his last known address pursuant to the requirements of

38 U.S.C. § 7104(e). The Court concludes that the Secretary properly mailed the December 7, 2007

Board decision to Mr. Irwin.

D. Notice of Appellate Rights

Finally, the Court notes that Mr. Irwin was fully informed of his appellate rights, which

included notification that his NOA must be filed with the Court. Accompanying the December 7,

2007, Board decision was a notice of appellate rights. See 38 U.S.C. § 5104(a) (providing that when

VA makes a decision as to a claim for benefits, the Secretary "shall, on a timely basis, provide the

claimant . . . notice of such decision . . . that shall include an explanation of the procedure for

obtaining review of the decision"). The notice of appellate rights provided by VA clearly stated that

in order to appeal the Board decision, Mr. Irwin had to file an appeal with the Court. The notice of

appellate rights is contained on VA Form 4597 and is entitled, in boldface, "Your Rights to Appeal

our Decision." June 13, 2008, Secretary's Response to May 20, 2008, Court Order, Attachment.

The notice stated that if "you are not satisfied with the Board's decision," one option is to "Appeal

to the United States Court of Appeals for Veterans Claims (Court)." The notice stated: "You have

120 days from the date this decision was mailed to you (as shown on the first page of this decision)

to file a Notice of Appeal with the Court." Id. The notice also provided instructions on how to

appeal to the Court. The notice instructed that to appeal to the Court, the Notice of Appeal must be

sent to the Court:

How do I appeal to the United States Court of Appeals for Veterans Claims?

Send your Notice of Appeal to the Court at:

Clerk, U.S. Court of Appeals for Veterans Claims

625 Indiana Avenue, NW, Suite 900

Washington, DC 20004-2950

Id. (boldface in original). The notice also stated: "To ensure full protection of your right of appeal

to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other

VA office." Id. (boldface in original). The U.S. Court of Appeals for the Federal Circuit has

recognized the appeals notice as complying with the requirements of section 5104(a), holding that

it adequately explains "how and when" to pursue an appeal to the Court. Cummings v. West,

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136 F.3d 1468, 1474 (Fed. Cir. 1998) (holding that Board notice was sufficient under 38 U.S.C.

§ 5104(a) and that VA was not required to provide detailed descriptions or information; "[t]he

statute requires only that the Secretary explain how and when to pursue reconsideration by the Board

and appeal to the court."), overruled in part on other grounds, Bailey, 160 F.3d at 1368.

Accordingly, the Court concludes that the notice of appellate rights clearly stated that Mr. Irwin

must file his NOA with this Court and that filing an NOA with the Board was not sufficient to

ensure his right to appeal to the Court.

Significantly, Mr. Irwin was again fully and clearly advised of the requirement to file his

NOA with the Court on the one-page preprinted NOA form itself. May 2, 2008, Notice of Appeal.

The preprinted NOA form used by Mr. Irwin contained instructions set out in a box:

INSTRUCTIONS

Send this Notice of Appeal (NOA) (original only) to:

Clerk, US Court of Appeals for Veterans Claims

625 Indiana Avenue, NW, Suite 900

Washington, DC 20004-2950

Id. (underlining, boldface, and italics in original). The instructions further stated: "It will be in time

if it is properly addressed to the Court and bears a legible postmark affixed by the United States

Postal Service (USPS) within 120 days after the mailing date of the [Board] decision that you are

appealing." Id. (boldface and italics in original). The form further instructed that the NOA may be

sent by facsimile transmission, provided the Court's facsimile number, and also stated that, if means

other than USPS were used, "the NOA will be too late if it arrives at the Court after the 120-day

time limit. The Court cannot extend the time limit." Id. (underlining, boldface, and italics in

original).

Because the notice of appellate rights provided Mr. Irwin with the proper procedure for

seeking judicial review of the Board's decision and Mr. Irwin did not file an NOA with the Court

within 120 days of the mailing of the Board's decision, this Court lacks jurisdiction to consider his

appeal, and this appeal must be dismissed.

The Court notes that there is no indication that Agency action frustrated the notice of

appellate rights that the appellant received. The appellant simply mailed the NOA to the wrong

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entity in noncompliance with the jurisdictional statute and his notice of appellate rights. The Court

notes that there was no communication between Mr. Irwin and the Board that indicated that VA

would take any action on the documents received by the Board in January 2008. For example, there

is no indication that VA informed Mr. Irwin that VA would file his appeal for him (or would do so

within the 120-day appeal period) or that VA assisted him in filling out the preprinted NOA form

and led him to believe that VA would file his appeal. Nor is there any indication that VA informed

Mr. Irwin, upon receipt of his documents in January 2008, that VA would consider his filing to be

a motion for Board reconsideration.

The Court recognizes that the record shows that the Board did not transmit Mr. Irwin's

documents to this Court until May 2008, approximately four months after it had received the

documents from Mr. Irwin in January 2008, which was a date within the 120-day judicial-appeal

period. It is not clear why the Board would hold the documents for such a long period prior to

mailing them to the Court. In the absence of evidence to the contrary, however, the Court will not

presume a motive on the Secretary's part that is inconsistent with the pro-veteran, nonadversarial

process that is applicable to proceedings within VA, including at the Board. Nevertheless, the Court

is concerned that VA had the documents for four months and did nothing. Unfortunately, the

statutory jurisdictional requirement of 120 days for filing Notices of Appeal with the Court is not

subject to equitable principles. Without congressional authority, the Court lacks the jurisdiction to

impose a remedy in this appeal.

III. CONCLUSION

Upon consideration of the pleadings of the parties and the foregoing analysis, the Court holds

that it lacks jurisdiction over the December 7, 2007, Board decision because the appellant did not

timely file an NOA in this Court. This appeal is DISMISSED.

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