UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 01-1695

Janet S. Evans, Appellant,

v\.

Anthony J. Principi,

Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans\' Appeals

(Argued November 6, 2002 Decided March 18, 2003)

Michael P. Horan, with whom Morgain M. Sprague, both of Washington,
D.C., was on the pleadings, for the appellant.

Cristine D. Senseman, with whom Tim S. McClain, General Counsel; R.
Randall Campbell, Assistant General Counsel; and Thomas A. McLaughlin,
Special Assistant to the Assistant General Counsel, all of Washington,
D.C., were on the pleadings, for the appellee.

Before KRAMER, Chief Judge, and STEINBERG and GREENE, Judges.

STEINBERG, Judge, filed the opinion of the Court and separate views.

STEINBERG, Judge: Before the Court is the jurisdictional issue of
whether the appellant\'s Notice of Appeal (NOA) was timely filed either
under 38 U.S.C. § 7266(c)(2) or by virtue of applying the principles of
equitable tolling to the 120-day judicial-appeal period found in
38 U.S.C. § 7266(a). (All references herein to section 7266 are to that
section as redesignated by section 507 of the Veterans Education and
Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976, 997
(2001).) Specifically, because the NOA was docketed as filed on
September 27, 2001, the date it was actually received by the Court, the
NOA would be untimely as to the Board of Veterans\' Appeals (Board or
BVA) decision of which the appellant seeks review, unless either the
postmark rule under section 7266(c) or equitable tolling is applied. See
38 U.S.C. § 7266; U.S. Vet. App. R. 4(a). For the reasons set forth
below, the Court holds that the appellant\'s NOA was timely filed, and
the appeal will proceed before a single judge.

I. Relevant Background

On September 27, 2001, the Court received both the original and a
photocopy of the then-pro se appellant\'s NOA seeking review of a May
25, 2001, Board decision. The photocopied NOA and the envelope in which
it was received (addressed to the Department of Veterans Affairs (VA)
Office of the General Counsel (GC)), according to the Clerk of the Court
(Clerk), were received in the morning of September 27, 2001, from the
VAGC (a fact that was noted on that document). The NOA was stamped as
the \"ORIGINAL\" because it was the only NOA bearing the appellant\'s
name in the Court\'s Public Office (PO) at that time, and it provided
the basis for opening the Court\'s case file and docket. According to
the Clerk, the second NOA bearing the appellant\'s name that was
received that day in the mail via the U.S. Postal Service (USPS), and
not from the VAGC, was actually the original (although it was stamped as
a \"COPY\" because it was received after the case had been opened that
morning) and was eventually filed in the case file. (Although \"COPY\"
was stamped on it, that NOA will be hereinafter referred to as the
\"original NOA\".) The Clerk has further advised, however, that the
envelope in which that original NOA was received was mistakenly not
filed in the case file or otherwise retained. The PO\'s daily incoming
mail log for September 27, 2001, shows receipt, inter alia, on that date
of an NOA for this case. According to the Clerk, this log entry must
have been a reference to the receipt of the original NOA, because NOA
copies received from the VAGC are not recorded on that log. Both the
original NOA and the photocopy were stamped \"RECEIVED\" on September
27, 2001.

The Court\'s case file also contains a certified-mail receipt, provided
by the appellant, from the USPS showing a mailing to \"Clerk, US Court
of Appeals for Veterans Claims\[,\] 625 Indiana Ave NW\[,\] Suite
900\[,\] Washington, DC 20004\", which is the Court\'s address. That
receipt bears a date-stamp notation signifying that the mailing occurred
on September 22, 2001. Furthermore, the case file contains a
return-receipt card, provided to the Court by the appellant, that
acknowledges the Court\'s receipt of the item mailed on September 22 via
USPS and bearing a partial postmark and a date, September 27, 2001,
handwritten in the \"Date of Delivery\" box. (The appellant submitted to
the Court on January 14, 2002, via facsimile, copies of that
certified-mail receipt and return-receipt card and later resubmitted,
through counsel, copies of those documents as part of an exhibit
attached to a March 1, 2002, pleading.) According to the Clerk, the
return-receipt card bears the signature of a member of the Court\'s
staff; the signature signifies acceptance of the mailed item on behalf
of the Court on September 27, 2001. The Court\'s case file also contains
a copy of a USPS sales receipt, also provided by the appellant, that
itemizes the postage cost for two separate mailings and is dated
\"9/22/2001\" and time-stamped \"11:04:01 AM\". The sales receipt
reflects that two items were mailed via certified mail on that date. One
item is identified with the same certified-mailing number
(70010320000127225743) found on the envelope (which is in the case file)
that contained the photocopied NOA stamped \"ORIGINAL\", that was
delivered to the Court by VAGC, and that bears a September 22, 2001,
postmark. The other item is identified by the same certified-mailing
number (70010320000127225729) found on the certified-mail receipt that
bears the Court\'s address and on the return-receipt card signed by the
member of the Court\'s staff.

Since submitting the NOA, the appellant has retained counsel, and this
matter was referred to the instant panel for further consideration. The
Court then issued a March 21, 2002, briefing order in which it ordered
the parties to file memoranda of law addressing the following issues:
(1) The application of 38 U.S.C. § 7266(c) in this case, (2) the
applicability of \"extraordinary circumstances\" equitable-tolling
principles to the facts of this case, and (3) the relevance, if any, to
this case of the policy set forth in Rule 26(a)(3) of the Federal Rules
of Appellate Procedure (FRAP), which excludes from the last day of any
time period specified in FRAP \"a day on which the weather or other
conditions make the clerk\'s office inaccessible\". Evans (Janet) v.
Principi, 16 Vet.App. 28, 30-31 (2002) (per curiam order).

The appellant and the Secretary each filed a memorandum of law in
response to the Court\'s March 2002 order, and the appellant filed a
reply. The appellant subsequently filed a notice of supplemental
authority, in which she noted the potential relevance to this case of
the opinion of the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit) in Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002)
(en banc). On November 1, 2002, the Secretary filed a notice of
supplemental authority regarding Jaquay, supra, Lariosa v. Principi, 16
Vet.App. 323 (2002) (per curiam order), and Mapu v. Principi,
16 Vet.App. 320 (2002) (per curiam order).

II\. Contentions of the Parties

In her memorandum of law, the appellant asserts that her NOA was timely
filed under 38 U.S.C. § 7266(c) because it was properly addressed to the
Court and because the certified-mail receipt was postmarked within the
judicial-appeal period. Memorandum (Mem.) at 3-4. The appellant asserts
that in Santoro v. Principi, 274 F.3d 1366 (Fed. Cir. 2001), the Federal
Circuit \"accepted a certified-mail receipt containing a postmark
proving that an NOA was mailed within 120\[\] days after the BVA
decision\[\] as sufficient for proving that the NOA was timely under
38 U.S.C. § 7266(c)\". Mem. at 4.

With regard to the applicability of \"extraordinary circumstances\"
equitable-tolling principles, the appellant asserts that because her NOA
was timely filed, she \"has no need to avail herself of
equitable\[-\]tolling principles\". Mem. at 5. She asserts that even if
the Court does not deem her NOA timely, the Court should not apply the
\"extraordinary circumstances\" theory because \"it can be too
restrictive\" (Mem. at 5); she urges the Court to adopt a more liberal
equitable-tolling standard given that \"the veterans benefits context
involves paternalistic statutory provisions in which Congress intended
to allow liberal judicial review of claims\" (Mem. at 8).

In his memorandum of law, the Secretary asserts that because the
envelope that contained the NOA that was mailed via USPS to the Court is
not available (1) the date of the postmark on the NOA\'s \"cover\" --
that is, envelope -- cannot be ascertained according to section 7266,
and (2) the plain meaning of section 7266(c)(2) and (d) \"seem\[s\] to
preclude a finding of jurisdiction . . . where the mailing envelope is
simply not available for inspection\" (Mem. at 6); the Secretary further
contends that section 7266(d) requires \"inspection of an envelope to
establish the date of mailing\" (Mem. at 10). The Secretary assets that
Santoro, supra, is not controlling because the Federal Circuit there
\"ignored the evidentiary problem posed by veteran Santoro (and now by
\[the appellant\]) when the USPS postmark date cannot be ascertained
because there is no \'cover in which the notice is posted\' that can be
inspected.\" Mem. at 9. The Secretary acknowledges that when, as here,
an appellant proffers a certified-mail receipt, a return-receipt card,
and confirmation that the signatory on the return-receipt card is the
addressee or the agent or employee of that addressee, that appellant
\"has done everything possible to establish the circumstances of
mailing.\" Mem. at 10. He contends, however, that Congress \"could have
easily provided \[for purposes of section 7266\] alternative methods for
establishing the circumstances of mailing, but did not do so.\" Mem. at
10.

With regard to the applicability of equitable-tolling principles, the
Secretary argues that this Court and the Federal Circuit have
interpreted those principles narrowly and applied them sparingly and
that they \"should not be expanded to allow the statutory filing
deadline to be tolled in \'\[extraordinary\] circumstances\'\". Mem. at
11-12. He characterizes the applicable equitable-tolling caselaw as
permitting equitable tolling \"when a claimant had actively pursued his
\[or her\] judicial remedies, but had filed a defective pleading (during
the statutory period) or had been tricked or induced by his adversary\'s
conduct into allowing the statutory deadline to pass\" (Mem. at 11
(citing Bailey v. West, 160 F.3d 1360, 1368 (Fed. Cir. 1998) (en
banc))), and suggests that neither of these two prongs applies here
(Mem. at 12). The Secretary concludes that \"\[t\]his is not a case in
which the circumstances are so extraordinary . . . as to require
equitable tolling\". Mem. at 12, 13. Finally, the Secretary, citing
Bailey, 160 F.3d at 1367, asserts that the FRAP \"govern appeals from
Article III District Courts and do not apply to proceedings in this
forum.\" Mem. at 13. In her reply, the appellant reiterates her prior
arguments. Reply at 1-3.

At oral argument before the Court, the appellant asserted that if the
Court were to find her NOA not timely filed under section 7266, then the
Court should apply equitable-tolling principles to do so; the appellant
asserted that the \"extraordinary circumstances\" theory could be
applicable in the VA context. The Secretary acknowledged that the
documents that the Court and VA had received were the subjects of the
mailing receipts provided by the appellant. The Secretary then revised
his prior statements regarding the inapplicability of equitable-tolling
principles to the instant case and asserted that the Court, based on
Jaquay, supra, should deem the coverless NOA timely filed as a defective
pleading or, alternatively, deem it timely under the
extraordinary-circumstances basis for equitable tolling.

III\. Analysis

Law on Jurisdiction

Section 7266 of title 38, U.S. Code, provides:

\(a\) In order to obtain review by the Court of Appeals for Veterans
Claims of a final decision of the Board . . . , 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 \[USPS\] postmark stamped on the cover in which
the notice is posted, if the notice is properly addressed to the Court
and is mailed.

\(d\) For a notice of appeal mailed to the Court to be deemed to be
received under subsection (c)(2) on a particular date, the \[USPS\]
postmark on the cover in which the notice is posted must be legible. The
Court shall determine the legibility of any such postmark and the
Court\'s determination as to legibility shall be final and not subject
to review by any other Court.

38 U.S.C. § 7266.

The ultimate burden of establishing jurisdiction rests with the
appellant. See McNutt v. G.M.A.C., 298 U.S. 178, 189 (1936); Bethea v.
Derwinski, 2 Vet.App. 252, 255 (1992). Pursuant to 38 U.S.C. § 7266, in
order for a claimant to obtain review of a BVA decision by this Court,
that decision must be final and the person adversely affected by it
generally must file a timely NOA with the Court. See Bailey, 160 F.3d at
1363. But see Santana-Venegas v. Principi, 314 F.3d 1293, 1298 (Fed.
Cir. 2002) (holding as matter of law that, in light of VA guidelines on
providing timely assistance and timely response to correspondence sent
to VA, where veteran misfiles NOA at VA regional office where he filed
his original claim but files that NOA within 120-day judicial-appeal
period, that period is tolled until Court actually receives NOA). To
have been timely filed under 38 U.S.C. § 7266 and Rule 4 of this
Court\'s Rules of Practice and Procedure (Rules), an NOA generally must
have been received (or, in certain circumstances, be deemed received) by
the Court not later than 120 days after notice of the underlying final
BVA decision was mailed. See Cintron v. West, 13 Vet.App. 251, 254
(1999); Leonard v. West, 12 Vet.App. 554, 555 (1999) (per curiam order);
see also 38 U.S.C. § 7266(c)(2). But see Irwin v. Dep\'t of Veterans
Affairs, 498 U.S. 89, 96 (1990); Evans (Billy) v. West, 12 Vet.App. 396,
399 (1999) (citing Bailey, 160 F.3d at 1365, and other cases regarding
equitable tolling of NOA-filing period under certain circumstances); see
also Jaquay and Santoro, both supra; Linville v. West, 165 F.3d 1382,
1385-86 (Fed. Cir. 1999).

In the instant case, the parties do not dispute the following facts: The
Board mailed its decision on May 25, 2001, in compliance with 38 U.S.C.
§ 7104(e); the appellant mailed to the Court her NOA via USPS on
September 22, 2001; the Court received the appellant\'s NOA on
September 27, 2001, five days after the expiration of the 120-day appeal
period; and, upon receipt, the envelope that had contained the NOA was
inadvertently discarded by Court staff. There is no envelope, therefore,
to establish by a postmark on it that the appellant \"filed\" her NOA
within the 120-day appeal period pursuant to section 7266.

B. Application of Section 7266(c)(2) and (d) Requirements to Facts of
Case

In order to establish that she has timely filed her NOA even though the
envelope is not available to the Court, the appellant presents to the
Court a postmark-stamped certified-mail receipt and argues that that
postmark demonstrates that she mailed her NOA by USPS certified mail on
September 22, 2001, within the 120-day judicial-appeal period, see 38
U.S.C. § 7266(a), (c)(2). The Court notes that the language of the
statute is far less clear than the Secretary contends in that
subsections (c) and (d) of section 7266 contain ambiguities that could
yield a number of results that there is no indication that Congress
intended. For example, subsection (c) refers to an NOA\'s being \"deemed
to be received\", yet subsections (a) and (b) speak only to an NOA\'s
being \"file\[d\]\". Hence, subsection (c)\'s deeming an NOA
\"received\", literally read, seems to be without significance.
Moreover, subsection (c)(2) specifies that it is the \"notice\" (that
is, the NOA) that needs to be properly addressed, as distinguished from
the \"cover\". This provision technically could be read to permit a
postmark on an envelope (that contained a properly addressed notice)
that was mailed to anywhere other than the Court to be considered timely
filed when it finally arrived at the Court, even years after it was
mailed (indeed, the immediately preceding language (\"postmark stamped
on the cover in which the notice is posted\", 38 U.S.C. § 7266(c)(2))
almost compels this reading). Finally, subsections (c)(2) and (d) could
also be read to mean that the \"cover\" means only the envelope and does
not include anything attached to the envelope, a reading that we will
reject in this case. None of these literal readings would comport with
the common-sense reading of congressional intent to provide for a
liberalized but objectively discernible means of determining whether an
NOA was timely filed. See S. Rep. No. 103-232, at 6 (1994) (noting that
new postmark rule would \"ease compliance with statutory filing
requirements and avoid unfortunate dismissals of appeals that are mailed
within a reasonable period of time prior to the expiration of the
120-day period but received by the Court after that date\").

Most relevant to this case, the statute is not clear as to whether, as
the Secretary contends, the envelope itself must be available in order
for the Court to determine the date of the \"postmark stamped on the
cover\". 38 U.S.C. § 7266(c)(2). The highly literal reading of the cover
requirement urged by the Secretary does not comport with the
above-described common-sense reading of congressional intent to provide
for a liberalized, as well as objectively discernible, means of
determining whether an NOA was timely filed. Nor would it appear to
comport with the Federal Circuit\'s opinion in Santoro, supra, in which
section 7266(c)(2) was applied even though the envelope in which the NOA
was mailed was apparently not available.

The question at this juncture is whether the September 22, 2001,
postmark-stamped certified-mail receipt satisfies the requirements of
section 7266(c)(2) and (d). In that regard, the USPS has promulgated
regulations regarding domestic mail services. See 39 C.F.R. §§ 111.1,
111.5 (2002). Those regulations incorporated by reference the USPS
Domestic Mail Manual (DMM). The DMM section containing information and
procedures for certified mail provides in pertinent part:

2.5 A mailer of certified mail must:

d\. If a postmarked sender\'s receipt is requested, attach the certified
mail sticker to the address side of the article and present the article
and the completed receipt to the USPS employee, who then round-dates the
receipt to show when the article was accepted.

DMM § S912, ¶ 2.5(d) (Jan. 9, 2003). Hence, a sender of certified mail
who wishes a certified-mail receipt must complete the certified-mail
label, place the completed certified-mail label on the envelope, and
give to the USPS mail clerk the envelope with the certified-mail receipt
attached. Following acceptance of the envelope for mailing, the mail
clerk then postmarks the certified-mail receipt to show when the article
was accepted for mailing. Ibid.

Pursuant to section 7266(c)(2), the appellant is entitled, once her NOA
is received by the Court, to have her NOA filed as of the date of the
USPS postmark stamp on the cover in which the NOA was posted. Without an
appellant\'s envelope, the Court generally could not determine the date
of the postmark stamp; here, however, the appellant has proffered a
postmark stamp on a certified-mail receipt that, according to
well-established USPS mailing and postmarking practices, was part of the
NOA envelope at the time the NOA was posted. See 39 C.F.R. §§ 111.1,
111.5; DMM § S912, ¶ 2.5(d). The lack of statutory clarity, the remedial
nature of the statute, see S. Rep. No. 103-232, at 6, and the command of
the U.S. Supreme Court in Brown v. Gardner, 513 U.S. 115, 117 (1994), to
resolve interpretive doubt in favor of the claimant all counsel strongly
in favor of construing the statute liberally.

Because the certified-mail receipt was, at the time of mailing, part of
the cover, or envelope, that contained the appellant\'s NOA, the Court
considers the postmark stamp on that certified-mail receipt to have been
on the NOA cover. Accordingly, the Court holds that a postmark-stamped
certified-mail receipt satisfies the statutory requirement of a
\"postmark stamped on the cover in which the notice is posted\".
38 U.S.C. § 7266(c)(2). In any event, the certified-mail-receipt
postmark constitutes, under USPS regulations, DMM § S912, ¶ 2.5(d), the
evidentiary equivalent of a postmark on the NOA cover because under the
DMM that same postmark date would have been on the envelope. Cf. Woods
v. Gober, 14 Vet.App. 214, 221 (2000) (holding that presumption of
regularity establishes that appellant\'s address was identical on two
different copies of same document even though one copy was faulty and
did not include full address).

In addition to satisfying the section 7266(c)(2) requirements under
either of the theories of compliance set forth in the preceding
paragraph, the appellant must meet the section 7266(d) requirement that
\"the \[USPS\] postmark on the cover in which the notice is posted must
be legible.\" 38 U.S.C. § 7266(d). Congress has entrusted the Court with
the sole responsibility to \"determine the legibility of any such
postmark\". 38 U.S.C. § 7266(d) (\"the Court\'s determination as to
legibility \[of a postmark\] shall be final and not subject to review by
any other Court\"). In that regard, the Court has already determined
that the date of the certified-mail-receipt postmark was stamped \"on
the cover in which the notice \[was\] posted\". 38 U.S.C. § 7266(d). The
Court now determines, from a review of the copy of the postmark-stamped
certified-mail receipt provided by the appellant, that that postmark
contains a legible date, September 22, 2001. Accordingly, the Court
holds that the September 22, 2001, postmark date on the certified-mail
receipt establishes conclusively that the appellant\'s NOA was filed
with the Court on the date of that postmark and that the appellant has
therefore satisfied the timely filing requirements of 38 U.S.C. § 7266.

C. Miscellaneous Matter

Regarding FRAP Rule 26(a)(3), the Court stated in Mapu, supra, that that
rule is not applicable to filings with this Court and that this Court\'s
Rules do not provide for deeming the Court \"inaccessible\". Mapu, 16
Vet.App. at 322. Compare Fed. R. App. P. 26(a)(3) (excluding from filing
period day \"on which the weather or other conditions make the clerk\'s
office inaccessible\"), with U.S. Vet. App. R. 26(a)(1) (addressing
computing time periods set by Court\'s Rules but containing no such
exclusion). Cf. In Re: Rules of Practice and Procedure, Misc. Order No.
1-03, 16 Vet.App. Ct.R-1, at Ct.R-11 (advance sheet No. 2, Feb. 2003)
(Jan. 15, 2003) (en banc) (making comprehensive revision of Court\'s
Rules, effective February 14, 2003, including amendment of Rule
26(a)(1), so as to provide that last day of filing period will not be
day \"when the weather or another condition makes the Clerk\'s Office
inaccessible\").

IV\. Conclusion

Upon consideration of the foregoing analysis and the submissions of the
parties, the Court holds that the appellant\'s NOA was timely filed
under 38 U.S.C. § 7266(c) and (d), and the Clerk is directed to correct
the docket to show the filing of the NOA on September 22, 2001; the
appeal will proceed before a single judge. Not later than 30 days after
the date of this opinion, the Secretary will file with the Clerk and
serve on the appellant the designation of the record on appeal.

APPEAL TIMELY FILED; CASE RETURNED TO SINGLE JUDGE.\*

SEPARATE VIEWS

STEINBERG, Judge: I write separately to set forth my view that if the
statute were not construed as permitting the application to the facts of
this case of the postmark rule under 38 U.S.C. § 7266(c) and (d)1 -- for
example, had the appellant not mailed the letter by certified mail or
had the postmark on the certified‑mail receipt not been legible -- then,
I would sustain the timeliness of the appellant\'s Notice of Appeal
(NOA) by the application of equitable-tolling principles. Indeed, as the
opinion of the Court notes, the appellant and the Secretary both took
the position at oral argument that the facts of this case would be
appropriate for the application of equitable-tolling principles.

I. General Principles

The Supreme Court in Irwin v. Department of Veterans Affairs held that
equitable-tolling principles that apply to private litigants also apply
to the United States and that tolling may be available against the
United States under two prongs: (1) \"\[W\]here 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\". Irwin, 498 U.S. 89, 95-96 (1990) (footnotes
omitted). In adopting a rule of general applicability of private-suit
equitable-tolling principles to suits against the Federal Government,
the Supreme Court seemed to abolish prior equitable-tolling caselaw
distinctions between jurisdictional time limits and statutes of
limitations.2 The Supreme Court concluded that equitable-tolling
principles could be applied to a filing deadline in an
employment-discrimination suit against the Department of Veterans
Affairs (VA) but declined to apply those principles there, noting that
the Court has been \"much less forgiving in receiving late filings where
the claimant failed to exercise due diligence in preserving his legal
rights\" and that those principles \"do not extend to what is at best a
garden variety claim of excusable neglect.\" Id. at 96.

In Bailey v. West, the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit) held that, absent a contrary congressional expression,
this Court would be entitled to toll the 120-day period in 38 U.S.C. §
7266(a) for filing an NOA in this Court. Bailey, 160 F.3d 1360, 1365
(Fed. Cir. 1998) (en banc). Specifically, the Federal Circuit held that
that filing period could be tolled where a veteran was misled by a VA
benefits officer into believing that the officer would file his NOA for
him. Ibid. The court stressed the \"particular\" relationship between
veterans and the government in finding that that veteran \"was misled by
the conduct of his adversary into allowing the filing deadline to
pass.\" Ibid. The court held that, although there was no suggestion of
misconduct, such as tricking the veteran into missing the 120-day NOA
filing deadline, \"a veteran\'s inducement by an adversary\'s conduct is
akin to grounds sufficient to toll a limitations period in a private
suit.\" Ibid. (citing Irwin, supra).

When applying equitable-tolling principles in the NOA context after
Irwin, supra, the Federal Circuit has found NOAs timely filed despite
seemingly clear language in title 38 statutory and regulatory provisions
setting forth the 120-day filing deadline. For example, in Linville v.
West, the Federal Circuit held that, in keeping with Rosler v.
Derwinski, 1 Vet.App. 241, 249 (1991), a VA postmark regulation (VA
receipt on the date of a postmark) applied to motions for
reconsideration by the Board of Veterans\' Appeals (BVA or Board) so as
to toll the section 7266(a) 120‑day filing deadline. Linville, 165 F.3d
at 1386 (Fed. Cir. 1999). The Federal Circuit so held even though
reconsideration motions generally \"may be filed at any time\", 38
C.F.R. § 20.1001(b) (2002), and the VA regulation being applied provided
specifically that the postmark rule applied to filings with VA only
\"\[w\]hen these Rules \[that is, VA regulations\] require that any
written document be filed within a specified period of time\", 38 C.F.R.
§ 20.305(a) (2002). Linville, 165 F.3d at 1385-86. The Federal Circuit
stated that adopting a contrary position \"would erect obstacles to a
claimant who wished to seek administrative reconsideration without risk
of extinguishing appellate rights\". Id. at 1386.

Later, in Santoro v. Principi, the Federal Circuit held that an NOA that
was addressed to the Court but included an incorrect Zip Code number
that had caused it to be delivered to the VA General Counsel rather than
the Court was \"properly addressed\" to the Court and thus, by
implication, was timely filed under section 7266(c)(2) (formerly 38
U.S.C. § 7266(a)(3)(B)) even though the NOA and the cover in which the
NOA was sent were apparently not available. Santoro, 274 F.3d 1366, 1370
(Fed. Cir. 2001) (reversing this Court\'s decision that it had no
jurisdiction because NOA was not timely filed, Santoro v. West,
13 Vet.App. 516, 522-23 (2000)). The Federal Circuit did not address the
portion of section 7266(c)(2) that specifies that the NOA be deemed
received \"\[o\]n the date of the United States Postal Service
\[(USPS)\] postmark stamped on the cover in which the notice is
posted\", 38 U.S.C. § 7266(c)(2).

Most recently, in Santana-Venegas v. Principi, 314 F.3d 1293 (Fed. Cir.
2002), and Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002) (en banc),
the Federal Circuit applied equitable-tolling principles to this
Court\'s 120-day NOA-filing period. In Jaquay, the Federal Circuit held
that the claimant there had actively pursued his judicial remedies by
filing during the statutory judicial-appeal period a motion for BVA
reconsideration, which the court considered a \"defective pleading\",
where the claimant had misfiled that motion with a local VA regional
office (RO) rather than the BVA, and the VARO did not forward the motion
to BVA until 10 months after the motion had been filed. Jaquay, 304 F.3d
at 1288-89. The court so held despite the fact that the appellant had
received specific notice from the BVA to file the motion with the BVA
and despite a VA regulation requiring that motions for BVA
reconsideration \"must\" be filed at the Board, 38 C.F.R. § 20.1001(b)
(emphasis added). Jaquay, supra. The Jaquay court stressed the
\"paternalistic\" and \"\'uniquely pro-claimant\'\" nature of the
veterans benefits system. Id. at 1280 (quoting Hensley v. West, 212 F.3d
1255, 1262 (Fed. Cir. 2000), and Nolen v. Gober, 222 F.3d 1356, 1361
(Fed. Cir. 2000)). The court also stressed the RO\'s obligation to
respond to correspondence: \"\[E\]ven misdirected mail will be forwarded
or returned in due course and . . . proceedings will not be unduly
delayed even where papers are inadvertently misfiled, provided they are
misfiled within the agency itself.\" Id. at 1288 (citing VA Adjudication
Procedure Manual, M21-1, Part III, para. 11.02). In Santana-Venegas, the
Federal Circuit extended Jaquay, supra, by holding that the misfiling of
an NOA, within the 120-day judicial appeal period, at the same RO from
which the claim originated rather than at the Court, tolled the period
for filing a timely NOA until VA delivered the NOA to the Court; the
Federal Circuit so held despite the instructions in the notice of
appellate rights accompanying the copy of the BVA decision mailed to the
appellant. Santana-Venegas, 314 F.3d at 1298. The court noted that the
RO had informed the veteran of the misfiling twenty days after the
120-day appeal period had expired and 70 days after having received the
NOA, id. at 1296, and reiterated its statement from Jaquay that it is
not unreasonable for veterans to rely on VA policies that provide
reasonable assurances that misdirected mail will be forwarded or
returned in due course and that proceedings will not be unduly delayed
where the papers are misfiled at the same RO from which the claim
originated, id. at 1298.

As to the two prongs of Irwin and Bailey, both supra, contrary to the
Secretary\'s position at oral argument, the first prong of Irwin, supra,
does not seem applicable to the facts of this case in the absence of our
holding that there was section 7266(a) compliance based on the postmark
rule, because that prong applies only where a defective pleading was
filed within the statutory period. See Irwin, 498 U.S. at 96; Jaquay,
304 F.3d at 1289. Moreover, here the pleading was not defective as filed
but was rendered defective by the Court\'s inadvertent discarding of the
envelope. As to the second Irwin/Bailey prong, the appellant has alleged
no misleading conduct on the part of the Secretary or his agents.

II\. Equitable Tolling Based on \"Extraordinary Circumstances\"

Subsequent to Irwin, at least five U.S. courts of appeals have
recognized \"extraordinary circumstances\" equitable-tolling principles
in both civil and criminal cases.3 The extraordinary-circumstances
approach permits a court to apply equitable principles to toll a filing
deadline where the filing party is prevented by circumstances beyond his
or her control from meeting that deadline. In Lake v. Arnold, the U.S.
Court of Appeals for the Third Circuit held that, if the plaintiff\'s
allegations proved true on remand, \"extraordinary circumstances\" might
warrant the equitable tolling of a deadline for filing a civil rights
suit against legal guardians charged with the care of a mentally
incompetent plaintiff where that plaintiff was prevented from timely
filing because those charged with acting on her behalf had failed to do
so and she was unable to advocate her own interests. Lake, 232 F.3d 360,
370-71 (3d Cir. 2000). In describing equitable-tolling principles that
could permit the plaintiff\'s civil rights suit to go forward, the court
noted the remedial nature of the civil rights statutes involved and
determined that equitable tolling would promote the congressional intent
(to compensate victims whose federal civil rights have been violated and
to deter government abuse of power) in enacting that legislation. Id. at
369-70 (citing Bowen v. City of New York, 476 U.S. 467, 480 (1986)
(authorizing equitable tolling where consistent with congressional
intent)).

In Valverde v. Stinson, the U.S. Court of Appeals for the Second Circuit
remanded to the district court a habeas corpus petition so that the
lower court might make factual findings regarding the applicability of
extraordinary-circumstances equitable-tolling principles. Valverde, 224
F.3d 129, 135 (2d Cir. 2000). The court there held that the confiscation
of the prisoner petitioner\'s legal papers by a corrections officer
\"shortly before\" the filing deadline for such a petition may
constitute \"extraordinary circumstances\" warranting equitable tolling
of the filing deadline. Id. at 133-34. The court emphasized that the
circumstances must actually prevent timely filing and that such a
showing cannot be made where a party acting with reasonable diligence
could have filed on time notwithstanding the \"extraordinary
circumstances\". Ibid. (citing Irwin, supra, and noting that \"\[t\]he
word \'prevent\' requires the petitioner to demonstrate a causal
relationship between the extraordinary circumstances . . . and the
lateness of his filing\"). Regarding the fact that the petitioner there
had intended to file his petition late in the filing period, the court
stated:

\[W\]e note for the benefit of the district court on remand that
Valverde is not ineligible for equitable tolling simply because he
waited until late in the limitations period to file his habeas petition.
. . . A petitioner should not be faulted . . . for failing to file early
or to take other extraordinary precautions early in the limitations
period against what are, by definition, rare and exceptional
circumstances that occur later in that period.

Id. at 135-36.

In Alvarez-Machain v. United States, the U.S. Court of Appeals for the
Ninth Circuit noted the existence of the \"extraordinary circumstances\"
theory and its applicability to a civil suit brought under the Federal
Tort Claims Act. Alvarez-Machain, 107 F.3d 696, 701 (9th Cir. 1996).
There, the appellant failed to file an administrative claim until three
years after the conduct that gave rise to his claim and one year after
the filing deadline had expired. Id. at 700. The court reasoned:

\[T\]he circumstances of Alvarez-Machain\'s abduction and subsequent
trial warrant the equitable tolling of the statute of limitations.
Alvarez-Machain was incarcerated for over two years, facing criminal
charges of the highest gravity in a foreign country whose language he
did not understand. . . . Moreover, . . . had he filed an administrative
claim prior to obtaining an acquittal, many of his claims would have
been dismissed because they necessarily implicated the validity of his
criminal charges.

Id. at 701. The court then concluded that, based on the totality of the
circumstances, that case constituted \"that rare situation where
equitable tolling is demanded by sound legal principles as well as the
interests of justice\" and affirmed the lower court\'s denial of the
government\'s motion to dismiss on statute-of-limitations grounds. Ibid.

The consideration of the applicability of \"extraordinary
circumstances\" equitable-tolling principles to this Court\'s NOA-filing
period under section 7266(c) and (d) must take account of the recent
quartet of Federal Circuit cases that strongly counsel in favor of the
application of equitable-tolling principles to the section 7266 filing
deadline in appropriate circumstances. See Santana-Venegas, Jaquay,
Santoro, and Linville, all supra.4 In the instant case, the appellant
submitted undisputed and undebatable evidence (namely, the USPS
certified-mail receipt showing a mailing to the Court before expiration
of the 120-day appeal period and bearing a mailing number that matches
the one found on the return-receipt card signed by the Court\'s staff)
that she had exercised due diligence in attempting to preserve her legal
rights, see Irwin and Jaquay, both supra, and to file a timely NOA with
the Court by mailing her NOA to the Court before the expiration of the
judicial-appeal period.5 Just as in Valverde, supra, the appellant
demonstrated due diligence notwithstanding that she \"waited until late
in the limitations period to file\". Valverde, 224 F.3d at 136. In my
view, the Court\'s intervening and unforeseen act of inadvertently
discarding the envelope constituted an extraordinary circumstance beyond
the appellant\'s control because such act could have prevented her NOA
from having the opportunity to be considered timely filed by the Court
by virtue of the postmark on its cover. That the Court\'s inadvertent
disgarding of the envelope was, indeed, \"extraordinary\" here is
demonstrated (1) by the fact that it appears to be the first case in the
more than 16,500 NOAs6 filed since the postmark rule was enacted on
November 4, 1994, in the Veterans\' Benefits Improvements Act of 1994,
Public Law 103-446, § 511(a), 108 Stat. 4645, 4670, in which the Court
has been called upon to address the implications of a discarded
envelope, see Smith (Brady) v. Derwinski, 1 Vet.App. 235, 238 (1991)
(\"Courts may take judicial notice of facts not subject to reasonable
dispute.\" (citing Fed. R. Evid. 201(b) (1990))), and (2) by the
definition of \"extraordinary circumstances\" in Black\'s Law Dictionary
as \"\[a\] highly unusual set of facts that are not commonly associated
with a particular thing or event.\" Black\'s Law Dictionary 236 (7th ed.
1999).7

Because the Court did not retain the envelope and because it is
undisputed that the appellant exercised due diligence in attempting to
preserve her legal rights by making a timely mailing to the Court, the
application of \"extraordinary circumstances\" equitable-tolling
principles would be appropriate in my view, thus resulting in the
appellant\'s NOA being considered timely filed if the Court\'s \"cover\"
determination under section 7266(c)(2) and (d) were overturned or if the
Court had not made that determination. The facts of this case would
represent \"that rare situation where equitable tolling is demanded by
sound legal principles as well as the interests of justice\",
Alvarez-Machain, 107 F.3d at 701.

\*Although Chief Judge Kramer and Judge Greene have not joined Judge
Steinberg\'s separate views, they do not intend thereby to express any
view about the reasoning in those views. They believe the issues
addressed need not be reached.

1 Regarding the postmark rule in 38 U.S.C. § 7266(a) and (d), any
consideration of legislative revisions to section 7266 to clarify its
ambiguities might want to take into account recent amendments to U.S.
Supreme Court Rule 29.2, which was adopted on January 27, 2003, to be
effective May 1, 2003. Rule 29.2 provides that a document is timely
filed if it is received by the Clerk of the Court (Clerk) within the
time specified for filing or if it is sent to the Clerk through the U.S.
Postal Service by first-class mail, postage prepaid, and bears a
postmark showing that the document was mailed on or before the last day
for filing. As amended, Rule 29.2 will also provide that a document is
timely filed \"if it is delivered on or before the last day for filing
to a third-party commercial carrier for delivery to the Clerk within 3
calendar days.\" Sup. Ct. R. 29.2.

2 See Irwin v. Dep\'t of Veterans Affairs, 498 U.S. 89, 95 (1990)
(stating that Supreme Court was \"not persuaded\" as to meaningful
difference, for purposes of availability of equitable tolling, between
filing deadline tolled in Irwin, supra, and type of deadline involved in
Soriano v. United States, 352 U.S. 270 (1957), where Court had held
claim jurisdictionally barred); Andrews v. Principi, 16 Vet.App. 309,
316 (2002).

3 See, e.g., Hill v. Braxton, 277 F.3d 701, 704 (4th Cir. 2002) (noting
that equitable tolling is available in instances \"where -- due to
circumstances external to the party\'s own conduct -- it would be
unconscionable to enforce the limitation against the party\") (internal
citations and quotations omitted); United States v. Clymore, 245 F.3d
1195, 1199 (10th Cir. 2001) (per curiam opinion) (noting that equitable
tolling is appropriate where, inter alia, \"extraordinary
circumstances\" prevent claimant from filing his or her claims within
statutory period (citing Hanger v. Abbott, 73 U.S. 532, 542 (1867),
which held that extraordinary circumstances tolled statute of
limitations where courts in Southern States were closed during Civil
War)); see also United States v. Marolf, 173 F.3d 1213, 1218 n.3 (9th
Cir. 1999); Briley v. Carlin, 172 F.3d 567, 570 (8th Cir. 1999); Oshiver
v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994).

4 See also Davis (Fred A.) v. Principi, \_\_ Vet.App. \_\_, \_\_ , No.
01-323, slip op. at 14-16 (Mar. 18, 2003) (reexamining Court\'s caselaw
in light of recent Federal Circuit cases regarding tolling of section
7266 appeal period and concluding that tolling not warranted because
appellant did not act with necessary due diligence in keeping VA
apprised of his current address).

5 Cf. Davis (Fred A.), supra note 4.

6 See Annual Reports of the U.S. Court of Appeals for Veterans Claims,
at http://www.vet.app.gov/AboutCourt/AnnualReport.asp (last visited Mar.
17, 2003) (1995-2002) (total of cases shown as filed from October 1,
1994, through September 30, 2002; the number of cases reported include
an estimated number of petitions filed during eight-year period); United
States Court of Appeals for Veterans Claims Fiscal Year 2004 Budget
Estimate, at 4 (submitted to Congress on February 3, 2003) (noting that
new case filings averaged 256 for the last four months of calendar year
2002 -- that is, October 1, 2002, through January 31, 2003).

7 See Liesegang v. Sec\'y of Veterans Affairs, 312 F.3d 1368, 1374-75
(Fed. Cir. 2002) (using Black\'s Law Dictionary definition of statutory
term and relying on Humana, Inc. v. Forsyth, 525 U.S. 299, 309-10
(1999), Perrin v. United States, 444 U.S. 37, 42 (1979), and AK Steel
Corp. v. United States, 226 F.3d 1361, 1371 (Fed. Cir. 2000), as
authority to do so); Forshey v. Principi, 284 F.3d 1335, 1348 & n.12
(Fed. Cir. 2002) (utilizing dictionary definitions to interpret
statutory terms); see also Brown v. Gardner, 513 U.S. 115, 117-20
(1994); Smith (William A.) v. Brown, 35 F.3d 1516, 1523 (Fed. Cir. 1994)
(holding that rules of statutory interpretation apply to interpreting
regulations as well).