James v. Wilkie

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, Wash-
ington, DC; THOMAS W. STOEVER, JR., Denver, CO.

SOSUN BAE, Commercial Litigation Branch, Civil Divi-
sion, 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 cer-
vical 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 toll-
ing applies.
BACKGROUND 1
Mr. James served on active duty during the Vietnam
War. See Appellant’s Br. 3. Mr. James sought service-con-
nected disability compensation for “a lumbar spine disabil-
ity 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 res-
idence and put the flag up for collection. Id.; see 38 U.S.C.
§ 7266 (2012) (requiring that an NOA be filed with the Vet-
erans 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 even-
ing 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 partic-
ular facts of his case, an errantly lowered flag on his resi-
dential 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 submit-
ted 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 Fri-
day,” 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 Dec-
laration also states that the postman confirmed to Mr.
James that he had made his rounds through the neighbor-
hood 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 de-
cision dismissing Mr. James’s appeal for the untimely fil-
ing 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 be-
yond [Mr. James]’s control . . . but rather an ordinary haz-
ard 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 deci-
sion.” 38 U.S.C. § 7292(c). “[We] may not review (A) a chal-
lenge 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 equi-
table tolling employs a case-by-case inquiry. See Appel-
lant’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 mate-
rial 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 in-
apposite. See Appellee’s Br. 8 (citing 223 F.3d 1374, 1376
(Fed. Cir. 2000)). In Leonard, the Veterans Court “specifi-
cally 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 pre-
sented no issue of law, and, further, presented no contested
interpretation of § 7266. See id.; see also id. at 1375 (ex-
plaining 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 ques-
tion 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 ex-
traordinary circumstances, the NOA was not postmarked
within the 120-day period. Appellant’s Br. 16−18. Alt-
hough we need not address this alternative argument, our
clarification of a § 7266 legal interpretation would neces-
sarily demonstrate whether Mr. James was entitled to eq-
uitable 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) (“Be-
cause 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 juris-
dictional and may be tolled where appropriate. See Hen-
derson v. Shinseki, 562 U.S. 428, 434−36 (2011). “In order
to benefit from equitable tolling, . . . a claimant [must]
demonstrate three elements: (1) extraordinary circum-
stance; (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 eq-
uitable tolling is available, including when a veteran mis-
filed 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 (in-
ternal citations omitted) (compiling cases), we have re-
jected 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 (recount-
ing the development of equitable tolling doctrine in veter-
ans’ 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) (inter-
nal quotation marks and citation omitted). It further di-
rects that in cases of equitable tolling, courts consider the
uniquely pro-claimant nature of the veterans benefits sys-
tem. See Henderson, 562 U.S. at 440−41 (“The contrast be-
tween ordinary civil litigation . . . and the system that
Congress created for the adjudication of veterans’ benefits
claims could hardly be more dramatic. . . . Rigid jurisdic-
tional 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 Stand-
ard 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 last-
minute 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 categor-
ical 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 deter-
mining 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 re-
cited. See Int’l Custom Prods., Inc. v. United States, 843
F.3d 1355, 1359 (Fed. Cir. 2016) (stating that “a single ref-
erence 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 (cit-
ing Sneed, 737 F.3d at 726), it actually applied a categori-
cal 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 extraor-
dinary 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 ‘lim-
ited 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 de-
nial of equitable tolling by the Veterans Court where it
“failed to consider whether attorney misconduct—as op-
posed 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 Vet-
erans Court’s decision to dismiss a veteran’s appeal as un-
timely 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 con-
tacted the Board regarding the status of her case and dili-
gently 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 (con-
cluding 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 cir-
cumstance.
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 “volun-
tarily 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 con-
sidered 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 (pro-
hibiting “knowingly and willfully obstructing . . . the pas-
sage 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 circum-
stances 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 extraordi-
nary 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 ordi-
nary operation of retrieving mail from a residential mail-
box and postmarking it the same day. Cf. Santana-
Venegas 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 ex-
traordinary circumstance beyond his control that “pre-
vented his NOA from being [timely] postmarked.”
Appellant’s Br. 16. We reject Mr. James’s alternative ar-
gument 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 toll-
ing analysis finds no support in our precedent. We con-
clude 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 Vet-
erans Court to decide whether equitable tolling is appro-
priate 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.