This version contains the errata dated 2Mar00-e

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 98-2373

ALFRED P. SANTORO, APPELLANT,

V.

TOGO D. WEST, JR.,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before KRAMER, FARLEY, and STEINBERG, Judges.

O R D E R

This appeal is currently pending before a panel on the Secretary's March 12, 1999, motion

to dismiss for lack of jurisdiction. On December 15, 1998, the pro se appellant filed a Notice of

Appeal (NOA) from a May 1, 1998, decision of the Acting Chairman of the Board of Veterans'

Appeals (BVA or Board) denying reconsideration of a January 29, 1998, BVA decision. The May 1,

1998, decision by the BVA Acting Chairman was accompanied by a BVA Notice of Appellate

Rights (BVA Notice). The BVA Notice stated that an appeal of the BVA decision needed to be

mailed to "The United States Court of Veterans Appeals [(now the U.S. Court of Appeals for

Veterans Claims)], 625 Indiana Avenue, NW., Washington, DC 20004". Although the Board

received the appellant's motion for reconsideration on March 30, 1998, within 120 days after the date

stamped on the BVA decision, the Court received the appellant's NOA more than 120 days after the

date of the BVA's denial of his motion for reconsideration. See 38 U.S.C. § 7266(a); Rosler

v. Derwinski, 1 Vet.App. 241, 249 (1991) (holding that motion for reconsideration filed with Board

within 120-day judicial-appeal period will toll time limit for filing NOA to this Court).

Accompanying the appellant's NOA was (1) a letter indicating that he had previously mailed,

with a return receipt requested, a "request for appeal" to the "Court of Veterans Appeals, 625 Indiana

Ave., NW, Washington, DC 20420" [hereinafter "July 1998 letter"], and (2) a photocopy of a U.S.

Postal Service (USPS) return-receipt-request card sent to that address and signed for as received on

July 27, 1998, by a handwritten notation of "General Counsel PA". The appellant contends that his

NOA was misdelivered to the Department of Veterans Affairs (VA) "Board of Appeals [sic] at 810

Vermont Ave" because of an incorrect zip code on the letter. He states that the USPS had recently

advised him (although he offers no verification of such advice) that such return-receipt-requested

mail should have been returned to him for an address correction, rather than delivered to an incorrect

address that merely matched the zip code. In addition, the appellant argues, based on the signature

on the returned-receipt card, that a person in the VA Office of General Counsel (OGC) had signed

that receipt card and accepted the mailing. Based on that information, the appellant contends that
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that signature misled him into believing, at a time when he was not represented by counsel, that the

Court had received his NOA within the 120-day statutory judicial-appeal period and that that belief

caused him to miss that deadline.

On December 31, 1998, the Secretary transmitted to the Court a copy of the January 1998

BVA decision on appeal, which was also accompanied by a similar BVA Notice; that Notice

specified the address for this Court that had been included in the previous Notice, except that "Suite

900" was included after "NW.". On March 12, 1999, the Secretary moved to dismiss, asserting that

the appellant's December 15, 1998, NOA was untimely filed. On March 19, 1999, the Court ordered

the appellant to show cause, within 20 days, why this appeal should not be dismissed for lack of

jurisdiction. On April 6, 1999, the appellant filed a response to the Court's order. The appellant

argues that this appeal should not be dismissed because he timely mailed his NOA and then received

the signed return-receipt-request card, and that any "mishandling of either delivery of the NOA by

the [USPS] or receipt of the NOA by any other administrative office, should not preempt the good

faith effort of the [a]ppellant to meet all prescribed periods." He has submitted the original of the

return-receipt-request card, postmarked July 27, 1998.

On May 25, 1999, a panel of this Court ordered the Secretary to file a reply to the appellant's

December 15, 1998, letter and his response to the Secretary's motion to dismiss. The Secretary was

"directed specifically to address the following issues: (1) Whether an OGC employee signed for

receipt of the July 1998 letter; (2) if an OGC employee did in fact receive that letter, the significance

of such receipt in light of the fact that on July 27 there were still more than 30 days remaining within

the 120-day filing period; and (3) the significance of the delivery to VA by the [USPS] of the

appellant's July 1998 letter in light of the time remaining within that filing period." In his July 26,

1999, reply, the Secretary, although conceding that an OGC employee did sign for and receive the

appellant's July 1998 letter, argues that the appellant's initial lack of due diligence in using the wrong

zip code precludes equitable tolling.

On October 12, 1999, the Court stayed proceedings in this case until November 11, 1999, in

order to permit the appellant to consider seeking representation. See In re Panel Referrals in Pro

Se Cases, 12 Vet.App. 316 (1999) (en banc order). On November 9, 1999, the Veterans Consortium

Pro Bono Program filed a motion for a stay of proceedings until December 26, 1999, to allow the

appellant a reasonable period of time to retain counsel. The Court stamp-granted that motion. On

December 2, 1999, Michael P. Horan entered an appearance on behalf of the appellant. However,

the appellant has made no further filing.

The Secretary's March 12, 1999, motion implicates the question of the application of the

doctrine of equitable tolling to the facts of this case. See Bailey v. West, 160 F.3d 1360, 1364 (Fed.

Cir. 1998) (characterizing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96 (1990), as holding

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'").

In Bailey, the U.S. Court of Appeals for the Federal Circuit held that even in absence of misconduct

by VA a claimant's detrimental reliance on representations of a VA employee could provide a basis
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for the application of the doctrine of equitable tolling to the 38 U.S.C. § 7266(a) judicial-appeal

period. Bailey, 160 F.3d at 1365. On remand of the Bailey case to this Court, the appeal was

ultimately dismissed on the joint motion of the parties in light of a settlement reached on the merits

by them. Bailey v. West, U.S. Vet. App. No. 97-232 (order Aug. 23, 1999).

The instant appeal raises significant questions as to application of the doctrine of equitable

tolling to particular facts, and the Court will schedule oral argument to consider that matter.

However, before that occurs, the Court is in need of the assistance of the parties on the following

matters in connection with the Secretary's motion to dismiss:

(1) Does the appellant's use, in mailing an NOA to this Court, of a mistaken

zip code for the Court's address constitute a lack of "due diligence", Bailey, 160 F.3d

at 1364, because he failed to comply with the instruction for filing an appeal in the

Court set forth in the BVA Notice mailed to him by VA with the BVA Acting

Chairman's May 1, 1998, decision, as required by 38 U.S.C. § 5104(a); Thompson

(Charles) v. Brown, 8 Vet.App. 169, 175-76, vacated in part on other grounds,

8 Vet.App. 430 (1995)?

(2) Does a lack of due diligence preclude the application of the doctrine of

equitable tolling? If not, would VA's conduct warrant the application of the doctrine,

even if VA's conduct is not considered to constitute an affirmative misrepresentation

upon which the appellant justifiably relies to his or her detriment, such as in Bailey,

supra; cf. Jones (Carlos) v. West, 13 Vet.App. 129 (1999) (per curiam order)?

(3) Does the receipt signed by the OGC employee constitute misleading

conduct, and does it constitute affirmative misrepresentation such as in Bailey,

supra?

(4) Do the actions of the USPS in this case comply with applicable law and

regulation governing the delivery of mail (please provide copies of any authorities

cited that are not published in the U.S. Code or the Code of Federal Regulations)?

If not, would those USPS actions warrant the application of the doctrine against the

USPS were it a party?

(5) If so, can the doctrine be applied against VA based on the action of

another governmental entity, here the USPS, cf. 28 U.S.C. § 2680(b)?

On consideration of the foregoing, it is

ORDERED that, not later than 15 days after the date of this order, the Secretary file and serve

on the appellant, a clarification (with supporting affidavits) of his July 26, 1999, response so as to

answer the following questions: (a) Was the appellant's July 1998 letter ever delivered to any VAoccupied building within the 20420 zip code; (b) if so, what chain of events transpired by which that
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letter was received at OGC Group VII at 625 Indiana Avenue, NW; (c) what information pertinent

to this matter can be provided by the other "Group VII employee . . . who customarily delivers to the

Court any mail that is misdelivered to Group VII" (Secretary's July 26, 1998, Resp., Declaration of

Perterie A. Thompson, page 2 (point 5)) (please provide an appropriate affidavit from that

employee); and (d) what are VA's regular policies and practices regarding the handling of mail,

including return-receipt mail and mail not addressed to but delivered to VA, and to what extent were

they followed in this case? It is further

ORDERED that, not later than 30 days after the date of service of the clarifications ordered

above, the appellant file, and serve on the Secretary, a supplemental memorandum addressing all of

the above questions and also incorporating any response that he chooses to make to the Secretary's

motion. It is further

ORDERED that, not later than 15 days after service of the appellant's supplemental

memorandum, the Secretary file, and serve on the appellant, a supplemental memorandum

addressing the above questions and responding to the appellant's supplemental memorandum. It is

further

ORDERED that oral argument will be scheduled at the convenience of the parties after

supplemental briefing is completed. The Court notes that it intends to grant no extension of time to

either party to comply with this order.

DATED: February 2, 2000 PER CURIAM.