This version includes the errata dated February 8, 2000 - e

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 97-1161

CHARLES E. CHASTAIN, APPELLANT,

V.

TOGO D. WEST, JR.,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Remand from the U.S. Court of Appeals for the Federal Circuit

(Decided January 24, 2000 )

Juan D. Keller for the appellant.

Leigh A. Bradley, General Counsel; Ron Garvin, Assistant General Counsel; and Thomas A.

McLaughlin were on the pleadings for the appellee.

Before NEBEKER, Chief Judge, and FARLEY and STEINBERG, Judges.

STEINBERG, Judge: Before the Court in this appeal, on remand from the U.S. Court of

Appeals for the Federal Circuit (Federal Circuit), is a jurisdictional issue of the timeliness of filing

in this Court of the appellant's Notice of Appeal (NOA). Chastain v. West, 178 F.3d 1309 (Fed. Cir.

1998) (table), 1998 WL 804561, at *1. The Court's determination of this issue turns on whether the

circumstances of this case support the application of equitable tolling, within the meaning of Bailey

v. West, 160 F.3d 1360 (Fed. Cir. 1998) (en banc), to the 38 U.S.C. § 7266(a) 120-day judicialappeal filing deadline. For the reasons set forth below, the Court has referred this case to a panel for

decision. Because the Court will find that the situation here does not support the application of

equitable tolling, the Court will dismiss this appeal for lack of jurisdiction.

I. Relevant Background
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On July 9, 1997, the appellant filed through counsel an NOA from an October 9, 1996,

decision of the Board of Veterans' Appeals (BVA or Board) that determined that new and material

evidence had not been presented to reopen a previously and finally disallowed claim for Department

of Veterans Affairs (VA)service connection for a low back disability. That same day, the appellant

filed a motion for the Court's consideration of the appeal that had been filed more than 120 days after

the October 1996 BVA decision. On September 12, 1997, the Court, by single-judge order,

dismissed this appeal for lack of jurisdiction; the Court cited as controlling authority two decisions

of this Court: Pittman v. Brown, 9 Vet.App. 60, 65 (1996) (BVA notice of appellate rights satisfies

38 U.S.C. § 5104(a) requirements), rev'd on other grounds, 124 F.3d 227 (1997), and Dudley

v. Derwinski, 2 Vet.App. 602, 603 (1992) (en banc order) (holding that equitable estoppel and

equitable tolling cannot apply to extend the 120-day NOA filing period set forth in 38 U.S.C.

§ 7266(a)). Chastain v. Gober, No. 97-1161, 1997 WL 603552 (Vet. App. Sep. 12, 1997). The

Court also noted there a minority view in this Court that equitable tolling was applicable to this

Court's NOA filing period. Ibid. (citing Bailey v. Gober, 10 Vet.App. at 453, 455-56 (1997)

(Kramer, J., dissenting)); id. at 456-57 (Steinberg, J., dissenting);Dudley, 2 Vet.App. at 603 (Kramer

and Steinberg, JJ., dissenting). 

The judgment was entered by this Court on October 6, 1997. The appellant appealed, and

on November 19, 1998, the Federal Circuit reversed this Court’s decision and remanded this appeal

for a determination, pursuant to intervening precedent, of whether the appellant is entitled to have

the statutory time limit in 38 U.S.C. § 7266(a) equitably tolled. Chastain, supra (citing Bailey,

160 F.3d 1360). The Court received the Federal Circuit's mandate on January 12, 1999.

On January 29, 1999, the Court, by single-judge order, recalled its October 6, 1997, judgment

in this appeal, revoked the Court’s September 12, 1997, order, and reinstated this appeal. The Court

also ordered (1) that the Secretary file, and serve on the appellant, a copy of any VA Form 4597, in

the appellant's claims file, that appeared to have been included with the Board's decision mailed to

the appellant and any evidence that such form was so included and (2) that, after the Secretary served

his response, the appellant show cause why this appeal should not be dismissed for lack of

jurisdiction. The Court also stayed proceedings pending further order of the Court. On February 26,

1999, the Secretary responded to the Court's January 29, 1999, order; he submitted a copy of the VA
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Form 4597 that was attached to the October 9, 1996, BVA decision. On March 26, 1999, the

appellant responded to the Court's show-cause order. On April 30, 1999, the Court ordered the

Secretary to reply to the appellant's March 26, 1999, response. On June 23, 1999, the Secretary filed

a reply. On October 29, 1999, by single-judge order, the Court dismissed this appeal for lack of

jurisdiction. Chastain v. West, No. 97-1161, 1999 WL 1023835 (Vet. App. Oct. 29, 1999).

On November 11, 1999, the appellant filed, through counsel, a motion for a panel decision

pursuant to Rule 35(b) of this Court's Rules of Practice and Procedure (Rules). He argues that (1) "it

cannot be said that the circumstances surrounding [his] filing of his appeal are controlled by this

Court's precedents", (2) in Bailey, 160 F.3d at 1368, the Federal Circuit held that the veteran was

entitled to a presumption of equitable tolling and given that presumption, it is "critical for the Court

to determine whether [VA] has the burden to prove that the presumption should be overcome, rather

than an imposition of a burden of proof on [the appellant] to prove that there was a basis for

equitable tolling", and (3) the Court "failed to consider the uniquely benevolent nature of the

veterans process and . . . to consider whether the filing of the appeal should be viewed from the

position of a non-adversarial process or an adversarial process." The appellant also asserted, without

supporting legal authority, that allowing the single-judge order to stand would result in a violation

of the appellant's constitutional due process rights.

The Court notes that the appellant's arguments were not previously made to the Court and

that the Court disfavors piecemeal litigation. See Lynch v. West, 12 Vet.App. 391, 393 (1999) (this

Court has "repeatedly discouraged appellants from raising arguments to this Court . . . that were not

argued in the appellant's initial [pleading] to this Court"). Nonetheless, the single judge has sua

sponte withdrawn the October 29, 1999, single-judge order and referred the appeal to a panel, which

will consider the appellant's arguments.

II. Analysis

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(a), 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 that decision generally must file a timely
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NOA with the Court. See Bailey, 160 F.3d at 1363. To have been timely filed under 38 U.S.C.

§ 7266(a) and Rule 4, an NOA must have been received by the Court (or, in certain circumstances,

deemed so received) within 120 days after notice of the underlying final BVA decision was mailed.

See Leonard v. West, 12 Vet.App. 554, 555 (1999). But see Evans (Billy) v. West, 12 Vet.App. 396,

399 (1999) (citing cases regarding equitable tolling of NOA-filing period under certain

circumstances).

In the instant case, on July 9, 1997, the appellant filed, through counsel, an NOA from an

October 9, 1996, BVA decision. Thus, the appellant's NOA was filed more than 120 days after

notice of the BVA decision was mailed. The question before the Court, therefore, is whether the

circumstances here regarding the appellant's NOA qualify for equitable tolling of the statutory

judicial-appeal time period.

In Bailey, the Federal Circuit characterized Irwin v. Dep't of Veterans Affairs, 498 U.S. 89,

95-96 (1990), as having held that "equitable tolling is available in suits between private litigants . . .

'where the complainant has been induced or tricked by his adversary's misconduct into allowing the

filing deadline to pass.'" Bailey, 160 F.3d at 1364 (quoting Irwin, supra). The Federal Circuit held

in Bailey that equitable tolling in the paternalistic veterans' benefits context does not require

misconduct (such as trickery, id. at 1365); however, Bailey does require the appellant to have been

misled or induced by VA conduct "into allowing the filing deadline to pass". Id. at 1364 (quoting

Irwin, supra); see also Leonard v. West, 12 Vet.App. 554, 557 (1999) (Steinberg, J., concurring).

There must be cause and effect; that is, the appellant must have relied to his detriment on something

that VA did (or should have but did not do). See Bailey, 160 F.3d at 1365 (noting that veteran had

accepted and relied on VA advice and was misled by that advice "into allowing filing deadline to

pass"). Therefore, "excusable neglect" in the veterans' benefits context still means that the late filing

was the appellant's (including the appellant's attorney's) fault or, put another way, that the appellant's

reliance on VA was not the cause of the late filing.

The appellant concedes that he received in October 1996, with the October 6, 1996, BVA

decision on appeal, a copy of the BVA Notice of Appellate Rights (Notice). He argues, however,

that the Court should revisit its holding (that that Notice is adequate under 38 U.S.C. § 5104(a)) in

Pittman, supra, because its rationale is questionable and it is an obvious encroachment on the
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lawmaking authority of Congress. Response (Resp.) at 5-7. The Court cannot here reconsider its

holding in Pittman because the issue is controlled by Cummings v. West, in which the Federal Circuit

held that the Notice was adequate under section 5104(a). Cummings, 136 F.3d 1468, 1474 (Fed.

Cir.), cert. denied, 118 S. Ct. 2373 (1998). Although the Federal Circuit, in Bailey, 160 F.3d at

1368, has overruled Cummings as to equitable tolling, the Cummings holding as to the adequacy of

the Notice is still good law and is binding on this Court. See Tobler v. Derwinski, 2 Vet.App. 8, 14

(1991).

In addition, the appellant contends that the Notice is confusing in various respects, such as

whether the appellant was required to retain an attorney in order to appeal to the Court. Resp. at

8-10. However, Cummings is again dispositive as a result of its holding that VA is not required to

provide detailed descriptions or information regarding a claimant's appellate rights, including any

information on representation. Cummings, 136 F.3d at 1472-73. Nor can the Court find under

Bailey anything misleading in the Notice's reference to representation before the Court that could

reasonably be said to have induced the appellant to miss the filing deadline. See Butler v. Derwinski,

960 F.2d 139, 141 (Fed. Cir. 1992)) ("[a]lthough often effecting a seemingly harsh result, courts

cannot disregard jurisdictional requirements[,] established by Congress[,] out of sympathy for

particular litigants"), overruled in part on other grounds by Bailey, 160 F.3d at 1368; see also

Baldwin Co. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (per curiam) ("[p]rocedural

requirements established by Congress for gaining access to the federal courts are not to be

disregarded by courts out of a vague sympathy for particular litigants"); cf. Gilbert v. Secretary of

HHS, 51 F.3d 254, 257 (Fed. Cir. 1995) (holding that equitable-tolling doctrine cannot apply where

attorney misread statute).

The appellant further asserts that errors (which he does not specify) by the Secretary below

resulted in the appellant's confusion about his case and that equitable tolling is permitted based on

misleading actions by the Secretary coupled with the appellant's diligent efforts to gather information

to file his appeal and his inability to gather that information within the 120-day period. Resp. at 10-

12. The appellant, however, has failed to show the requisite cause-and-effect relationship between

any VA adjudicative conduct and his failure to file a timely appeal. See Irwin, supra; Bailey,

160 F.3d at 1364. As the Secretary argues (Reply at 4-6), this is not a case where the appellant
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missed a filing deadline because he relied on erroneous representations by VA. Moreover, the

appellant's diligent efforts to gather information to file his appeal, in and of themselves, do not

support equitable tolling. See Bailey, supra; see also Leonard, 12 Vet.App. at 557 (Steinberg, J.,

concurring).

The appellant contends that an appellant is entitled to a presumption of equitable tolling, and

that, therefore, the Court needs to determine whetherthe burden of proving whether the presumption

has been rebutted should be shifted from the appellant to the Secretary. Contrary to that contention,

neither Bailey nor Irwin provides for that particular presumption or a shifting of the burden of proof

as to whether the circumstances of a particular case warrant equitable tolling. The Supreme Court

in Irwin stated:

A waiver of sovereign immunity "'cannot be implied but must be

unequivocally expressed.'" Once Congress has made such a waiver, we think that

making the rule of equitable tolling applicable to suits against the Government, in the

same way that it is applicable to private suits, amounts to little, if any, broadening of

the congressional waiver. Such a principle is likely to be a realistic assessment of

legislative intent as well as a practically useful principle of interpretation. We

therefore hold that the same rebuttable presumption of equitable tolling applicable

to suits against private defendants should also apply to suits against the United States.

Congress, of course, may provide otherwise if it wishes to do so.

Irwin, 498 U.S. at 95-96 (citations omitted). That passage from Irwin, which was quoted in Bailey,

supra, refers to a presumption that equitable tolling potentially available to toll specific statutory

time limits absent Congress' clear intent otherwise to rebut that presumption. See also Bailey,

160 F.3d at 1365 (holding that "absent a contrary congressional expression, the Court . . . would be

entitled to toll the statute of limitations found in section 7266"). The appellant cites to no language

in Bailey, or any other case, that provides, once it is determined that equitable tolling is potentially

available as to a particular statutory filing deadline, a basis for placing the burden on the Secretary

to establish that the specific circumstances of a case do not warrant equitable tolling. Nor can the

Court find in Bailey any such language.

Finally, because the appellant did not raise a due process argument in his initial pleadings

in this case, the Court need not reach that due process argument. See Bucklinger v. Brown,

5 Vet.App. 435, 441 (1993) (Court will avoid reaching constitutional questions in advance of

necessity of deciding them). Nonetheless, theCourt concludes that, because the appellant's assertion
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was vague and presented without supporting legal authority, that argument will not be considered.

See Brewer v. West, 11 Vet.App. 228, 236-37 (1998) (where appellant offered "mere assertions of

constitutional impropriety for which he [did] not provide[ ] any legal support," Court concluded that

it need not deal further with appellant's vague argument).

III. Conclusion

In view of the single-judge's withdrawal of the October 29, 1999, order and sua sponte

referral of this appeal to a panel for decision, the appellant's motion for panel decision is denied as

moot. Upon consideration of the foregoing analysis, the record on appeal, and the submissions of

the parties, the Court grants the Secretary's motion and dismisses this appeal for lack of jurisdiction.

APPEAL DISMISSED.