United States Court of Appeals 

for the Federal Circuit ______________________

CHARLES H. JAMES,

Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee

______________________

2018-1264

______________________

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 16-1948, Judge Mary J. Schoelen, 

Judge Coral Wong Pietsch, Judge William S. Greenberg.

______________________

Decided: March 7, 2019

______________________

THOMAS T. CARMACK, Arnold & Porter Kaye Scholer 

LLP, Palo Alto, CA, argued for claimant-appellant. Also 

represented by NATHANIEL EDWARD CASTELLANO, Washington, DC; THOMAS W. STOEVER, JR., Denver, CO. 

 SOSUN BAE, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, 

DC, argued for respondent-appellee. Also represented by 

CLAUDIA BURKE, ROBERT EDWARD KIRSCHMAN, JR., JOSEPH 

H. HUNT; LARA EILHARDT, Y. KEN LEE, Office of General 
2 JAMES v. WILKIE

Counsel, United States Department of Veterans Affairs, 

Washington, DC.

 ______________________

Before WALLACH, LINN, and HUGHES, Circuit Judges.

WALLACH, Circuit Judge.

Appellant Charles H. James appeals an order of the 

U.S. Court of Appeals for Veterans Claims (“Veterans 

Court”). The Veterans Court dismissed as untimely Mr. 

James’s appeal of a Board of Veterans’ Appeals (“Board”)

denial of (1) compensation claims for lumbar spine and cervical spine disability and (2) an increased rating claim for 

pseudofolliculitis barbae, finding that equitable tolling of 

the filing deadline was not available to Mr. James. See 

James v. Shulkin, 29 Vet. App. 127, 130 (2017); see also

J.A. 1 (Final Judgment). Because the Veterans Court did 

not apply the proper legal standard, we vacate and remand 

for the Veterans Court to reconsider whether equitable tolling applies.

BACKGROUND1

Mr. James served on active duty during the Vietnam 

War. See Appellant’s Br. 3. Mr. James sought service-connected disability compensation for “a lumbar spine disability and cervical spine disability, as well as an increased 

rating claim for pseudofolliculitis barbae.” James, 29 Vet. 

App. at 128. On January 28, 2016, the Board denied Mr. 

James’s claims. Id. 

On Friday, May 27, 2016, acting pro se, Mr. James 

placed his notice of appeal (“NOA”) in a stamped envelope 

 

1 Because the parties do not dispute the relevant 

facts, see Appellant’s Br. 4; Appellee’s Br. 9, we cite to the 

Veterans Court’s decision unless otherwise noted, see

James, 29 Vet. App. at 128.
JAMES v. WILKIE 3

addressed to the Veterans Court in the mailbox at his residence and put the flag up for collection. Id.; see 38 U.S.C. 

§ 7266 (2012) (requiring that an NOA be filed with the Veterans Court “within 120 days after the date on which notice 

of the [Board] decision is mailed”).2 Mr. and Mrs. James 

left town for the weekend and did not return until the evening of Monday, May 30. See J.A. 14 (excerpt from Mr. 

James Decl.), 21 (excerpt from Mrs. James Decl.); see also

J.A. 17−18 (hotel receipts). 

When Mr. James discovered the uncollected NOA still 

sitting in his residence mailbox upon his return home, he 

proceeded to deposit it that night at his local post office. 

James, 29 Vet. App. at 128; see J.A. 14−15. The next day, 

the Veterans Court received and electronically docketed

Mr. James’s NOA, which bore a postmark of May 31, 2016. 

James, 29 Vet. App. at 128.

Because May 31, 2016, is more than 120 days after the 

Board mailed its January 28, 2016 decision, the Veterans 

Court ordered Mr. James to “show cause why his appeal 

should not be dismissed for untimely filing.” Id.; see J.A. 8. 

After obtaining counsel, Mr. James filed a response to the 

show-cause order, arguing that the 120-day appeal window 

should be equitably tolled because, based upon the particular facts of his case, an errantly lowered flag on his residential mailbox constitutes an extraordinary circumstance 

beyond his control. See James, 29 Vet. App. at 129. As 

evidence of his having pre-planned a trip with his wife out 

of town and proof of where they stayed, Mr. James submitted two declarations, one each from himself and his wife, 

see J.A. 13−15 (Mr. James Decl.), 20−22 (Mrs. James Decl.), 

as well as copies of the hotel receipts, see J.A. 17−18. Mr. 

James contended, as he does here, that he did not know 

 

2 The parties do not dispute that the statutorily 

mandated 120-day deadline for Mr. James to file an NOA 

with the Veterans Court was on Friday, May 27, 2016.
4 JAMES v. WILKIE

why his NOA was not collected and postmarked on May 27, 

2016, but stated under oath in his declaration that his 

neighbor “said that [the neighbor] had received mail on Friday,” and also observed “that some neighborhood kids had 

been playing in the street near [Mr. James’s] house” and 

“might have put the flag down.” J.A. 15. Mr. James’s Declaration also states that the postman confirmed to Mr. 

James that he had made his rounds through the neighborhood after 1:00 p.m. on Friday, May 27, 2016, but he did 

not stop to pick up any mail at the James residence because 

the flag was down and he had nothing to deliver to the 

James residence on that Friday, Saturday, or Monday. J.A. 

15. 

In October 2017, a divided Veterans Court issued a decision dismissing Mr. James’s appeal for the untimely filing of his NOA. James, 29 Vet. App. at 129−30. The 

majority determined that Mr. James had not demonstrated 

that equitable tolling was warranted because “a fallen 

mailbox flag” was not “an extraordinary circumstance beyond [Mr. James]’s control . . . but rather an ordinary hazard of last minute mailing that could have been avoided.” 

Id. at 130. The dissent argued that equitable tolling should 

apply and noted that, given Mr. James’s placement of his 

NOA in his mailbox within the 120-day timeframe, “[i]t 

[wa]s irrelevant that there were other methods of mailing 

available, as his actions would have likely been sufficient 

to ensure timely mailing but for circumstances beyond his 

control.” Id. (Greenberg, J., dissenting).

JURISDICTION

As an initial matter, Appellee Robert Wilkie, Secretary 

of Veterans Affairs (“Government”), contends that we lack 

jurisdiction to review the Veterans Court’s determination 

that equitable tolling is unwarranted. Appellee’s Br. 7; see 

id. at 7−12 (arguing the Veterans Court’s decision is either 

a factual determination or an application of law to the facts 
JAMES v. WILKIE 5

of a particular case, and that our review is therefore barred 

by 38 U.S.C. § 7292(d)(2)). We disagree.

Our jurisdiction to review decisions of the Veterans 

Court is limited by statute. Goodman v. Shulkin, 870 F.3d 

1383, 1385 (Fed. Cir. 2017) (citing 38 U.S.C. § 7292). We 

may “review and decide any challenge to the validity of any 

statute or regulation or any interpretation 

thereof . . . and . . . interpret constitutional and statutory 

provisions, to the extent presented and necessary to a decision.” 38 U.S.C. § 7292(c). “[We] may not review (A) a challenge to a factual determination, or (B) a challenge to a law 

or regulation as applied to the facts of a particular case.” 

Id. § 7292(d)(2). As such, “we have authority to decide 

whether the Veterans Court applied the correct legal 

standard.” Sneed v. Shinseki, 737 F.3d 719, 724 (Fed. Cir. 

2013) (internal quotation marks, citation, and footnote 

omitted). 

We have jurisdiction over Mr. James’s appeal from the 

Veterans Court’s determination that he is not entitled to 

equitable tolling of the filing deadline. Mr. James alleges

error as a matter of law, contending the Veterans Court 

erred in creating a categorical ban against equitable tolling 

in cases involving a fallen mailbox flag, even though equitable tolling employs a case-by-case inquiry. See Appellant’s Br. 15–16; Oral. Arg. at 1:15−55, 

http://oralarguments.cafc.uscourts.gov/default.aspx?fl=

2018-1264.mp3 (confirming the same by counsel for Mr. 

James). We have “consistently held” that when “the material facts are not in dispute and the adoption of a particular 

legal standard would dictate the outcome of the equitable 

tolling claim, this court has treated the question of the 

availability of equitable tolling as a matter of law that we 

are authorized by statute to address.” Mapu v. Nicholson, 

397 F.3d 1375, 1379 (Fed. Cir. 2005) (internal quotation 

marks and citation omitted). Since we are asked to review

whether the Veterans Court applied the correct legal 
6 JAMES v. WILKIE

standard for equitable tolling, this issue is one of law 

within our jurisdiction. See Sneed, 737 F.3d at 728–29.3

The Government’s citation to our precedent in Leonard 

v. Gober, where we dismissed for lack of jurisdiction, is inapposite. See Appellee’s Br. 8 (citing 223 F.3d 1374, 1376

(Fed. Cir. 2000)). In Leonard, the Veterans Court “specifically found that [the veteran] failed to timely file her NOA 

due to her own neglect and that the statute of limitations 

could not therefore be tolled.” 223 F.3d at 1375−76. We

dismissed the appeal for lack of jurisdiction because it presented no issue of law, and, further, presented no contested 

interpretation of § 7266. See id.; see also id. at 1375 (explaining that “[i]n order to reverse the [Veterans] [C]ourt’s 

decision, we would have to evaluate the facts and conclude 

otherwise,” and therefore, “the question whether equitable 

tolling would ever be appropriate in the case of a late filing 

was not decided”). Here, as we stated previously, a question of law is presented. Accordingly, we turn to the merits 

of Mr. James’s equitable tolling argument. 

 

3 In addition, Mr. James argues that § 7266 should 

per se allow a veteran to invoke equitable tolling where he 

timely places a proper NOA in a mailbox, and due to extraordinary circumstances, the NOA was not postmarked 

within the 120-day period. Appellant’s Br. 16−18. Although we need not address this alternative argument, our 

clarification of a § 7266 legal interpretation would necessarily demonstrate whether Mr. James was entitled to equitable tolling in this case, an issue that is also within our 

jurisdiction. See Mapu, 397 F.3d at 1379; see also Nelson 

v. Nicholson, 489 F.3d 1380, 1383 (Fed. Cir. 2007) (“Because the issue before us is whether equitable tolling is 

available under 38 U.S.C. § 7266(a) in a case of excusable 

neglect, we have jurisdiction to decide whether equitable 

tolling is appropriate in this case.”).
JAMES v. WILKIE 7

DISCUSSION

I. Standard of Review and Legal Standard

We “review[] legal determinations of the Veterans 

Court de novo.” Cushman v. Shinseki, 576 F.3d 1290, 1296 

(Fed. Cir. 2009). The filing deadline of § 7266 is not jurisdictional and may be tolled where appropriate. See Henderson v. Shinseki, 562 U.S. 428, 434−36 (2011). “In order 

to benefit from equitable tolling, . . . a claimant [must] 

demonstrate three elements: (1) extraordinary circumstance; (2) due diligence; and (3) causation.” Checo v. 

Shinseki, 748 F.3d 1373, 1378 (Fed. Cir. 2014) (citing Irwin 

v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)). While 

we have identified several circumstances under which equitable tolling is available, including when a veteran misfiled his notice of appeal at a Department of Veterans 

Affairs (“VA”) regional office, timely-filed an incorrect 

form, or when a veteran suffers from mental or physical 

illness that prevented filing, see Sneed, 737 F.3d at 725 (internal citations omitted) (compiling cases), we have rejected the argument that equitable tolling “is limited to a 

small and closed set of factual patterns and that equitable 

tolling is precluded if a veteran’s case does not fall within 

those patterns,” Mapu, 397 F.3d at 1380; see Bailey v. West,

160 F.3d 1360, 1364 (Fed. Cir. 1998) (en banc) (stating that 

such a conclusion would run counter to our holding that 

“requiring ruthless application of the time limit [of § 7266] 

is somewhat arbitrary”), overruled on other grounds by 

Henderson v. Shinseki, 589 F.3d 1201 (Fed. Cir. 2009) (en 

banc), rev’d, 562 U.S. 428 (2011). Conversely, the Supreme 

Court has noted that courts are “less forgiving in receiving 

late filings” where, inter alia, there is “a garden variety 

claim of excusable neglect.” Irwin, 498 U.S. at 96 (internal 

citations omitted); see Sneed, 737 F.3d at 725–28 (recounting the development of equitable tolling doctrine in veterans’ benefits cases).
8 JAMES v. WILKIE

The Supreme Court has also previously acknowledged 

“the need for flexibility” and “for avoiding mechanical 

rules” in courts of equity and to proceed on a “case-by-case 

basis.” Holland v. Florida, 560 U.S. 631, 650 (2010) (internal quotation marks and citation omitted). It further directs that in cases of equitable tolling, courts consider the 

uniquely pro-claimant nature of the veterans benefits system. See Henderson, 562 U.S. at 440−41 (“The contrast between ordinary civil litigation . . . and the system that 

Congress created for the adjudication of veterans’ benefits 

claims could hardly be more dramatic. . . . Rigid jurisdictional treatment of the 120-day period for filing a notice of 

appeal in the Veterans Court would clash sharply with this 

scheme.” (emphasis added)). 

II. The Veterans Court Applied an Improper Legal Standard when Considering the Extraordinary Circumstances 

Requirement

The Veterans Court held “that a fallen mailbox flag is 

not an extraordinary circumstance beyond [Mr. James]’s

control that warrants equitable tolling.” James, 29 Vet. 

App. at 130. The Veterans Court, however, did not perform 

a case-specific analysis of the undisputed facts of Mr. 

James’s case. See id. at 129. Instead, it made a categorical 

determination that a fallen mailbox flag is not entitled to 

equitable tolling but is “rather an ordinary hazard of lastminute mailing that could have been avoided but for [Mr. 

James]’s ‘garden variety neglect.’” Id. at 130. Mr. James 

argues that the Veterans Court erred in creating a categorical ban by holding that equitable tolling can never apply 

to an entire category of cases involving a fallen mailbox 

flag. See Appellant’s Br. 15. We agree with Mr. James. 

The Veterans Court erred because the extraordinary 

circumstance element necessarily requires a case-by-case 

analysis and not a categorical determination. When determining whether a court committed legal error in selecting 

the appropriate legal standard, we determine which legal 
JAMES v. WILKIE 9

standard the tribunal applied, not which standard it recited. See Int’l Custom Prods., Inc. v. United States, 843 

F.3d 1355, 1359 (Fed. Cir. 2016) (stating that “a single reference to an incorrect legal standard does not undermine a 

final decision, only its application does” and holding that, 

despite referencing an incorrect legal standard, the court 

under review did not err because it “repeatedly applied the 

correct . . . standard”). Here, although the Veterans Court 

framed its standard of review and conclusions in terms of 

a case-by-case analysis, see James, 29 Vet. App. at 129 (citing Sneed, 737 F.3d at 726), it actually applied a categorical ban foreclosing the possibility that a fallen mailbox flag 

may ever constitute an extraordinary circumstance, see id.

at 130 (holding “that a fallen mailbox flag is not an extraordinary circumstance beyond [Mr. James]’s control”).

The Veterans Court focused too narrowly on whether 

Mr. James’s case fell into one of the factual patterns of past 

cases considering § 7266(a). See id. at 129 (distinguishing 

from “other timely misfiling cases”), 130 (analogizing Mr. 

James’s facts to a single prior decision of the Veterans 

Court that found no extraordinary circumstance where the 

veteran arrived five minutes late to the post office on the 

120-day deadline, and mailed the NOA on day 121). We

have expressly stated that “[e]quitable tolling is not ‘limited to a small and closed set of factual patterns’” and have

historically “rejected the approach of looking to whether a 

particular case falls within the facts specifically identified 

in Irwin or one of our prior cases.” Sneed, 737 F.3d at 726 

(quoting Mapu, 397 F.3d at 1380); see id. (reversing a denial of equitable tolling by the Veterans Court where it 

“failed to consider whether attorney misconduct—as opposed to misconduct by the VA official—may constitute a 

basis for equitable tolling”); see also Sterling v. Shulkin, 

712 F. App’x 1001, 1003 (Fed. Cir. 2018) (vacating the Veterans Court’s decision to dismiss a veteran’s appeal as untimely because the Veterans Court “erred by not 

considering whether equitable tolling should apply” where 
10 JAMES v. WILKIE

the veteran “was homeless for several years,” the “Veterans 

Court received her [NOA] a mere one day after the 120 day 

deadline,” and the veteran “appear[ed] to have actively contacted the Board regarding the status of her case and diligently updated her address”). The Veterans Court failed to 

consider whether the fallen mailbox flag due to an alleged 

third-party interference with the federal collection of mail 

could justify invoking equitable tolling in Mr. James’s case 

as a matter of law. See James, 29 Vet. App. at 130 (concluding that a fallen mailbox flag is not an extraordinary 

circumstance but rather is per se “an ordinary hazard of 

last-minute mailing that could have been avoided but for 

[Mr. James’s] . . . neglect”).4 Such an improperly narrowed 

analysis cannot support a finding of no extraordinary circumstance. 

The Government argues the Veterans Court did not err 

because “[Mr. James’s] circumstances as described were 

only out of [his] control insofar as Mr. James elected to wait 

until the final day of the appeal period to attempt to mail 

his NOA, chose to place the NOA inside his mailbox with a 

raised flag rather than take it to a post office,” and “voluntarily left his home for a number of days on a pre-planned 

trip without ensuring that the appeal had in fact been 

posted or even retrieved by the postal worker.” Appellee’s 

Br. 13. We disagree with the Government’s implication 

 

4 Once a residential mailbox is put into use, it is considered federal property protected by law. See 18 U.S.C. 

§§ 1701, 1705. It is not unreasonable for a person using the 

U.S. Postal Service to expect that the laws surrounding the 

transport of their mail, including the laws surrounding 

mailbox tampering, will be followed. See id. §§ 1701 (prohibiting “knowingly and willfully obstructing . . . the passage of the mail”), 1705 (making it a federal crime to 

“willfully” tamper or vandalize a mailbox, or to injure or 

destroy any mail deposited in them).
JAMES v. WILKIE 11

that Mr. James was required to file earlier in order for the 

Veterans Court’s categorical bar not to apply. There is no 

requirement that Mr. James file any earlier than the 120-

day deadline. See 38 U.S.C. § 7266(a). 

Moreover, it is irrelevant to the extraordinary circumstances element analysis whether Mr. James could have 

done more after he put his NOA in his residential mailbox. 

Instead, under the proper legal standard, what would have 

been highly relevant is the undisputed fact that Mr. James 

placed his NOA in a U.S. Postal Service mailbox in time for 

it to be postmarked within the 120-day filing deadline of 

§ 7266. See J.A. 14 (evidencing the known pattern and 

practice of Mr. James’s local U.S. Postal Service mailman 

collection times). Therefore, how the Veterans Court

should have interpreted the application of the extraordinary circumstance factor relating to § 7266 hinged on the

weight afforded to the also undisputed fact that someone 

or something interfered with the U.S. Postal Service’s ordinary operation of retrieving mail from a residential mailbox and postmarking it the same day. Cf. SantanaVenegas v. Principi, 314 F.3d 1293, 1297 (Fed. Cir. 2002) 

(holding that equitable tolling existed, and stating that 

whether a veteran “actively pursues his legal remedies” is 

the touchstone of the equitable tolling analysis). 

Mr. James further argues that we should hold that he

meets the extraordinary circumstance prong under “a

proper interpretation” of § 7266(a) because he timely 

placed a proper NOA in a residential U.S. Postal Service 

mailbox, and a fallen mailbox flag constitutes per se an extraordinary circumstance beyond his control that “prevented his NOA from being [timely] postmarked.” 

Appellant’s Br. 16. We reject Mr. James’s alternative argument to interpret the bounds of § 7266(a). While it is 

proper to interpret the relevant statute in, for example, the 

veterans misfiling cases because they involve constructive 

receipt as a matter of law, here, Mr. James concedes that 

not every instance of a fallen mailbox flag is going to lead 
12 JAMES v. WILKIE

to equitable tolling. See Oral. Arg. at 7:01−48. This type 

of appeal necessarily requires a case-specific analysis, and 

we do not make any categorical interpretation under 

§ 7266(a). 

Use of a categorical determination for an equitable tolling analysis finds no support in our precedent. We conclude that the Veterans Court erred as a matter of law in 

making an impermissible categorical determination that a 

particular set of facts will never warrant equitable tolling 

of the filing deadline. We vacate and remand for the Veterans Court to decide whether equitable tolling is appropriate under the correct legal standard. See Sneed, 737 

F.3d at 729; see Sterling, 712 F. App’x at 1003 (vacating 

and remanding for “the Veterans Court to consider 

whether the facts of this case warrant equitable tolling”).5

CONCLUSION

We have considered the parties’ remaining arguments 

and find them unpersuasive. The Final Judgment of the 

U.S. Court of Appeals for Veterans Claims is

VACATED AND REMANDED

COSTS

Costs to Mr. James.

 

5 Furthermore, given that the Veterans Court made 

no findings of fact or law as to the remaining prongs of the 

equitable tolling analysis, see James, 29 Vet. App. at 130 

n.2, we must remand for the Veterans Court to make those 

findings in the first instance.