Veteranclaims’s Blog

April 21, 2015

Toomer v. McDonald, No. 2014-7045(Decided: April 21, 2015);

Filed under: Uncategorized — veteranclaims @ 5:39 pm

United States Court of Appeals for the Federal Circuit
______________________
HARVEST O. TOOMER,
Claimant-Appellant
v.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS,
Respondent-Appellee
______________________
2014-7045
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 09-4086, Chief Judge Bruce E.
Kasold.
______________________
Decided: April 21, 2015
______________________
ETHAN LEE, Fenwick & West, LLP, Mountain View,
CA, argued for claimant-appellant. Also represented by
LAWRENCE T. KASS, Milbank, Tweed, Hadley & McCloy,
LLP, New York, NY.
TARA K. HOGAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice,
Washington, DC, argued for respondent-appellee. Also
represented by LOREN MISHA PREHEIM, STUART F. DELERY,
ROBERT E. KIRSCHMAN, JR., MARTIN F. HOCKEY, JR.;
CHRISTA A. SHRIBER, Y. KEN LEE, CHRISTINA LYNN GREGG,
2 TOOMER v. MCDONALD
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
Before REYNA, CLEVENGER, and WALLACH, Circuit Judges.
Opinion for the court filed by Circuit Judge WALLACH.
Dissenting opinion filed by Circuit Judge REYNA.
WALLACH, Circuit Judge.
Appellant Harvest O. Toomer appeals an order of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) dismissing his appeal as untimely
filed. See Toomer v. Shinseki, No. 09-4086 (Vet. App.
Sept. 6, 2013) (Appellant’s App. (“App.”) 1–5) (the
“Order”); see also In re Toomer, No. 05-24 637A (Bd. of
Veterans Affairs June 2, 2009) (App. 13–20) (the “Board
Decision”). For the reasons set forth below, this court
affirms.

BACKGROUND
Mr. Toomer served in the United States Army on
active duty from August 1971 to August 1974. Mr.
Toomer sought veterans benefits for degenerative disc
disease, which he contended was “causally related to an
in-service back strain from lifting heavy objects in August
1972.” Board Decision at 4. In September 2004, a
Regional Office of the United States Department of
Veterans Affairs (“VA”) denied the claim.
In 2009, the Board of Veterans’ Appeals (the “Board”)
also denied the claim because it found Mr. Toomer’s
injuries were not service-connected. In doing so, the
Board relied on a 2007 VA examination, finding that
although Mr. Toomer was treated for a back strain during
service in August 1972, there was no objective evidence
from subsequent clinical visits to indicate his current
back pain was connected to the August 1972 injury; that
TOOMER v. MCDONALD 3
an August 1972 x-ray was within normal limits (with the
exception of minimal scoliosis); and that “after January
1973, there were no further complaints of back pain
during the remainder of [Mr. Toomer’s] service.” Id. at 6.
The examiner also reported “given the Veteran’s age and
potential post-service spine injuries, particularly when
considering his post-service occupational duties as a
construction worker, which placed him at risk for spine
trauma, there was no objective evidence to support his
claim.” Id. The Board also relied on a subsequent 2009
VA examination by a specialist who found Mr. Toomer’s
“current back disabilities were not related to service.” Id.
at 7. According to the Board, the Board Decision was sent
to Mr. Toomer on June 2, 2009.
On July 27, 2009, however, Mr. Toomer informed the
VA by telephone that he had not yet received the Board
Decision. He was informed a decision had already been
entered and another copy would be mailed to him. On
August 4, 2009, the VA mailed a cover letter to Mr.
Toomer with a date-stamp of “AUG 04 2009,” stating:
On June 2, 2009, the [Board] entered a decision in
your appeal, a copy of which was mailed to your
most recent address of record at that time.
However, on July 27, 2009, you informed VA that
you had not yet received your copy.
I am furnishing you with another copy of the
Board’s June 2, 2009 decision.
App. 24 (emphasis added). Along with this letter, the VA
enclosed: (1) a copy of the VA’s cover letter to Mr. Toomer
hand-dated “6/02/09,” App. 12; (2) a copy of the Board’s
June 2, 2009 decision, also hand-dated “6/02/09” with a
stamped “FILE COPY” over the signature block, App. 13–
20; and a copy of VA Form 4597 (“Form 4597”), which is a
notice of appellate rights, stating the veteran has “120
days from the date this decision was mailed to you (as
shown on the first page of this decision) to file a Notice of
4 TOOMER v. MCDONALD
Appeal,” App. 21 (emphasis added). On October 28, 2009,
more than 120 days from the date of the June 2, 2009,
Board Decision, but within 120 days of the August 4,
2009, letter, Mr. Toomer filed a notice of appeal with the
Veterans Court.
On April 14, 2010, the Veterans Court dismissed Mr.
Toomer’s appeal as untimely after determining it was
filed outside the 120-day appeal period established by 38
U.S.C. § 7266(a) (2006), which the court found to be
jurisdictional and therefore not subject to equitable
tolling. Mr. Toomer appealed to this court, which stayed
his appeal pending the United States Supreme Court’s
decision in Henderson v. Shinseki, 562 U.S. 428 (2011). In
Henderson, the Court reversed this court, concluding the
120-day period to file a notice of appeal to the Veterans
Court is not jurisdictional. Id. at 438. As a consequence,
both the Veterans Court and this court have treated the
filing period as subject to equitable tolling. See, e.g.,
Sneed v. Shinseki, 737 F.3d 719, 726 (Fed. Cir. 2013);
Bove v. Shinseki, 25 Vet. App. 136, 139 (2011). In
Henderson, the Court reversed this court, concluding the
120-day period to file a notice of appeal to the Veterans
Court is not jurisdictional and is therefore subject to
equitable tolling. Id. at 438. Accordingly, on May 25,
2011, this court granted the VA’s unopposed motion to
vacate and remand for further adjudication. Toomer v.
Shinseki (Toomer I), 424 F. App’x 950 (Fed. Cir. 2011)
(unpublished).
On remand, on January 20, 2012, the Veterans Court
ordered Mr. Toomer to show cause why his appeal should
not be dismissed for failure to file within the 120-day
period. In response, Mr. Toomer argued (1) there was
“clear evidence” the VA did not mail the Board Decision in
June 2009 because Mr. Toomer contacted the VA in July
2009 to inform the VA he had not received it, and the VA
was “unable to show that the Board decision was properly
mailed,” App. at 55 (capitalization omitted); (2) the VA’s
TOOMER v. MCDONALD 5
mailing of an unsigned copy of the Board Decision in
August violated agency procedures; and (3) in the
alternative, his filing should have been equitably tolled
because Mr. Toomer acted with reasonable diligence when
he contacted the VA regarding the status of his claim
before expiration of the 120-day period, and because Form
4597 misled him into believing his notice of appeal could
be filed within 120 days of the August mailing. In
response to a separate order, the VA submitted evidence
that (1) the Board Decision was mailed to Mr. Toomer’s
last known address on June 2, 2009, and (2) the mailing
was not returned as undeliverable.
On March 12, 2012, the Veterans Court again
dismissed Mr. Toomer’s appeal as untimely filed. Toomer
v. Shinseki, No. 09-4086, 2012 WL 762844, (Vet. App.
Mar. 12, 2012) (Appellee’s App. (“Supp. App.”) 1–3). The
court considered Mr. Toomer’s proffered evidence that the
VA had not mailed the Board Decision on June 2, 2009,
but found it did not rise to the level of clear evidence
necessary to rebut the presumption of regularity. Supp.
App. 2 (“Although the appellant’s informing a VA
representative in July that he had not received the
decision provides some evidence that he did not receive
the decision in June, it does not constitute clear evidence
that the decision was not mailed to the proper address in
June, especially in light of the evidence provided by the
Secretary, which includes a sworn affidavit that the
decision was mailed to the appellant’s last known address
and also to his veterans service representative on the date
of decision, and computer screenshots of the Board’s
computerized tracking system noting that a cover letter
was created on June 1, and the appeal decided on June
2.”). The court also acknowledged the 120-day period for
filing a notice of appeal is not jurisdictional, but found Mr.
Toomer had failed to demonstrate his circumstances were
extraordinary, and therefore warranting equitable tolling.
6 TOOMER v. MCDONALD
On a second appeal to this court, the Veterans Court’s
decision was again vacated and remanded after this court
found the Veterans Court erred by failing to consider Mr.
Toomer’s evidence as a whole in deciding whether he
rebutted the presumption of regularity. Toomer v.
Shinseki (Toomer II), 524 F. App’x 666, 669 (Fed. Cir.
2013) (unpublished) (“[T]he Veterans Court must first
consider the totality of the evidence the veteran presents
to rebut the presumption, and then, if the Veterans Court
determines it rises to the level of clear evidence, consider
if the government has shown by the preponderance of the
evidence that the challenged action actually occurred.”).
This court noted Mr. Toomer’s contacting the VA “is
certainly relevant to the question of whether the VA
mailed the decision in June,” but “does not . . . alone rise
to the level of clear evidence of irregularity.” Id.
However, this court noted the mailing of the second
courtesy copy of the Board Decision was “at least some
evidence that [the] first mailing was irregular” and,
because “[t]he irregularities in the second mailing should
have been considered when the Veterans Court weighed
Toomer’s evidence of rebuttal of the presumption of
regularity,” and because the court “failed to consider
Toomer’s evidence separately from the [VA’s],” this court
remanded. Id. at 670. This court declined to reach Mr.
Toomer’s alternate equitable tolling argument, stating if
on remand “the Veterans Court concludes that Toomer
did not overcome the presumption of regularity, then
Toomer would not be entitled to equitable tolling because
he cannot show that the government violated its
procedures with regard to his Board decision.” Id.
On remand, the Veterans Court issued the September
6, 2013 Order now before this court, again dismissing Mr.
Toomer’s appeal as untimely. In doing so, the court
explained “Mr. Toomer has not submitted clear evidence
of irregularity in the VA’s normal mailing procedures,
such that he fails to rebut the presumption that his June
TOOMER v. MCDONALD 7
2, 2009, Board decision was mailed to him on the date of
issuance.” Order at 2. The court considered Mr. Toomer’s
rebuttal evidence (i.e., that he informed the VA in July
2009 that he had not received the Board Decision and the
VA had mailed him an unsigned, hand-dated Board
Decision in August 2009), but found his “assertion of
nonreceipt in July does not alone rise to the level of clear
evidence.” Id. at 3. In addition, “while Mr. Toomer’s
August receipt of an unsigned, hand-dated Board decision
is some evidence that the original decision might not have
been finalized or mailed on June 2, it does not rise to the
level of clear evidence of irregularity.” Id. at 3. In sum,
the court concluded, Mr. Toomer’s evidence amounted to
“an assertion of nonreceipt that could be the result of
many factors other than the failure to mail the Board
decision, including, for example, faulty memory or
misplacement of delivered mail by a third party.” It also
found “receipt of an unsigned, hand-dated copy of the
Board decision . . . sheds little light on whether the
original Board decision was signed, dated, and mailed
when issued.” Id.
The Veterans Court took note of this court’s statement
that equitable tolling could not be demonstrated if Mr.
Toomer could not rebut the presumption of regularity, but
stated “this statement presumably was made in the
context of the arguments presented by Mr. Toomer at the
Federal Circuit” and “should not [be] viewed as an
absolute holding in this case or one that bars equitable
tolling in all cases involving the presumption of regularity
associated with mailing a Board decision.” Id. at 4. As to
Mr. Toomer’s assertion that he acted diligently by
inquiring about the status of his claim, the court agreed
this reflected some diligence, but “at the same time,”
when he contacted the VA Mr. Toomer also learned a
decision had been made on June 2, 2009, a copy of which
would be sent to him. Id.
8 TOOMER v. MCDONALD
Regarding the copy Mr. Toomer received, the court
noted the cover letter stated the original Board Decision
was rendered on June 2, 2009, and this mailing contained
“another copy.” Id. As to the purportedly misleading
language of Form 4597, the court said Mr. Toomer’s
argument reflected a misrepresentation by omission of the
information on that form, “which not only states, as Mr.
Toomer notes, that ‘[y]ou have 120 days from the date this
decision was mailed to you,’ but also states immediately
thereafter ‘(as shown on the first page of this decision) to
file a Notice of Appeal with the Court.’ As noted above,
the date on the first page of the decision received by Mr.
Toomer in August is ‘6/02/09.’” Id. at 4–5. The court also
noted Mr. Toomer failed to identify any factor preventing
him from filing a timely appeal, “such as reliance on the
incorrect statement of a VA official, a physical or mental
illness preventing filing, or a timely misfiling at certain
VA entities, which generally is required to warrant
equitable tolling.” Id. at 5 (citing Bove, 25 Vet. App. at
140). Therefore, the court concluded, “Mr. Toomer fails to
demonstrate that he followed [Form 4597], that the
instructions therein were confusing or misleading, or that
the totality of his circumstances otherwise demonstrates
that he was precluded from filing his [notice of appeal] in
a timely manner.” Id.
In response to the Order, on September 17, 2013, Mr.
Toomer submitted a Freedom of Information Act (“FOIA”)
Request to the VA requesting the Board’s procedures
pertaining to mailing documents to veterans.
Specifically, Mr. Toomer requested (1) an internal Board
manual, titled the “Outcode & Dispatch Procedural
Manual” (“Dispatch Manual”), referenced by the VA in
Mr. Toomer’s first appeal before the Federal Circuit, and
(2) all VA “manuals, publications, instructions, or
documents related to procedures used to send documents
to veterans.” App. 67. In response, on September 24,
2013, the VA provided the Dispatch Manual.
TOOMER v. MCDONALD 9
Mr. Toomer moved for panel review of the Order on
September 27, 2013, arguing the Veterans Court erred in
its presumption of regularity and equitable tolling
analyses. The panel granted the motion, but ordered that
the original single-judge Order remain the decision of the
court. Mr. Toomer timely appeals.
DISCUSSION
I. Jurisdiction and Standard of Review
This court’s jurisdiction to review decisions of the
Veterans Court is limited by statute. Pursuant to 38
U.S.C. § 7292(a), this court has jurisdiction to review “the
validity of a decision of the [Veterans] Court on a rule of
law or of any statute or regulation . . . or any
interpretation thereof (other than a determination as to a
factual matter) that was relied on by the [Veterans] Court
in making the decision.” Except to the extent that a
constitutional issue is presented, this court may not
review “a challenge to a factual determination,” or “a
challenge to a law or regulation as applied to the facts of a
particular case.” Id. § 7292(d)(2)(A)–(B). The Veterans
Court’s legal determinations are reviewed de novo.
Cushman v. Shinseki, 576 F.3d 1290, 1296 (Fed. Cir.
2009).
II. The Veterans Court Properly Found Mr. Toomer Failed
to Overcome the Presumption of Regularity
Under 38 U.S.C. § 5104(a), “the Secretary [of the VA]
shall, on a timely basis, provide to the claimant (and to
the claimant’s representative) notice of [its] decision
[affecting the provision of benefits].” In addition, 38
U.S.C. § 7104(e)(1) provides: “After reaching a decision on
a case, the Board shall promptly mail a copy of its written
decision to the claimant at the last known address of the
claimant,” as well as to his or her “authorized
representative,” id. § 7104(e)(2)(A).
10 TOOMER v. MCDONALD
In fulfilling these statutory directives, the Secretary is
presumed to have properly discharged his official duties
under the “presumption of regularity.” See Sickels v.
Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011) (“The
presumption of regularity provides that, in the absence of
clear evidence to the contrary, the court will presume that
public officers have properly discharged their official
duties.” (quoting Rizzo v. Shinseki, 580 F.3d 1288, 1292
(Fed. Cir. 2009)). Thus, the presumption is overcome only
in the face of “clear evidence to the contrary.” Parks v.
Shinseki, 716 F.3d 581, 584 (Fed. Cir. 2013) (quoting
Rizzo, 580 F.3d at 1292).
Here, Mr. Toomer does not directly challenge the
Veterans Court’s finding that he failed to overcome the
presumption of regularity. Rather, he argues the court
erred during the panel review phase in failing to find the
VA breached its duty under Barrett v. Nicholson, 466 F.3d
1038 (Fed. Cir. 2006), to provide him with available
jurisdictional evidence that he argues would have aided
him in rebutting the presumption. This argument was
first presented in a footnote to his petition for panel
review.
In Barrett, this court defined the VA’s duty “in
developing the record before the Veterans Court on the
issue of equitable tolling.” Id. at 1041. This court held
where
a veteran alleges facts to show entitlement to
equitable tolling . . . and jurisdiction is called into
question, . . . the government must assist the court
by providing and, where necessary, procuring
further evidence helpful in deciding jurisdiction,
e.g., declarations, new medical examinations, and
other forms of evidence as appropriate.
Id. at 1044 (emphasis added). The court also clarified
“[t]he government shall make these submissions on its
own initiative, upon request of the veteran, or as required
TOOMER v. MCDONALD 11
by the Veterans Court,” and “[i]f a veteran makes such a
request, the government may advert to the court for a
determination that it is reasonably necessary to deciding
the jurisdictional issues before it.” Id.
Mr. Toomer appears to link the duty identified in
Barrett to the VA’s alleged failure to respond fully to his
FOIA request for Board policies regarding the mailing of
decisions. Mr. Toomer claims he “clearly raised a
jurisdictional issue” by arguing there was sufficient
evidence to rebut the presumption the VA mailed the
Board Decision in June 2009. Appellant’s Br. 19. Mr.
Toomer points out that once the Veterans Court
determined he had not shown clear evidence to rebut the
presumption, he filed his FOIA request, and the VA
breached its Barrett duty by failing to provide a complete
response to this request. Thus, Mr. Toomer argues, the
Veterans Court erred by failing to “address the VA’s
failure to provide an adequate response” to the FOIA
request in its decision upon panel review. Appellant’s Br.
21. For this reason, Mr. Toomer believes a remand is
necessary for the VA to fully respond to Mr. Toomer’s
request for jurisdictional evidence.
The government responds that “[w]hether the VA
complied with its obligation to respond to a FOIA request
is a matter outside of the Veterans Court’s jurisdiction”
because review of an agency’s compliance with a FOIA
request is vested in the district courts by statute.
Appellee’s Br. 17–18 (citing 5 U.S.C. § 552(a)(4)(B)). And,
in any event, the VA properly responded to the FOIA
request; specifically, the government claims, with regard
to the policy documents related to mailing Board decisions
to veterans, which are the only “potentially relevant
jurisdictional evidence in this case,” “an exhaustive search
for relevant documents . . . revealed only two: (1) the
Dispatch Manual . . . , and (2) the Board’s ‘Office of
Management, Planning and Analysis Correspondence
Guide,’ which was issued in September 2011.” Id. at 18–
12 TOOMER v. MCDONALD
19. The VA therefore insists it properly responded to Mr.
Toomer’s request because (1) this case arises from events
that took place in 2009, thus the 2011 document would
not have assisted Mr. Toomer, and (2) the Dispatch
Manual was provided to Mr. Toomer on September 24,
2013. Id. at 19.
To the extent Mr. Toomer challenges the Veterans
Court’s finding that Mr. Toomer failed to overcome the
presumption of regularity with clear evidence, there is no
legal error. As directed in Toomer II, the Veterans Court
was required to “first consider the totality of the evidence
the veteran presents to rebut the presumption, and then,
if the Veterans Court determines it rises to the level of
clear evidence, consider if the government has shown by
the preponderance of the evidence that the challenged
action actually occurred.” Toomer II, 524 F. App’x at 669;
see also Crain v. Principi, 17 Vet. App. 182, 188 (2003)
(The Veterans Court is “required to make an independent
determination whether the record contains clear evidence
of sufficient weight to rebut the presumption of regularity
and whether the Secretary has presented evidence
showing that he complied with his mailing obligation
under the statute or that there was actual receipt.”). The
Veterans Court properly followed this directive on
remand.
In particular, the Veterans Court found the fact that
Mr. Toomer notified the VA in July 2009 that he had not
received the decision did not alone rise to the level of clear
evidence of a deficiency in mailing. Order at 3.
Furthermore, as to Mr. Toomer’s evidence that the Board
Decision he received in the August 4, 2009 mailing was
unsigned and hand-dated, the court acknowledged this
may be “some evidence that the original decision might
not have been finalized or mailed on June 2,” but “does
not rise to the level of clear evidence of irregularity,”
particularly since this was a “file copy” and not the
original decision. Id. That is, the “receipt of an unsigned,
TOOMER v. MCDONALD 13
hand-dated copy of the Board decision . . . sheds little
light on whether the original Board decision was signed,
dated, and mailed when issued.” Id. In sum, the court
concluded, “[t]ogether, Mr. Toomer’s evidence, accepted on
its face, shows only that he does not recall receiving the
original Board decision, and that he later was provided a
copy of the Board decision that was unsigned and hand
dated.” Id. There is no discernable legal error in this
analysis. Indeed, the Veterans Court followed the
analysis prescribed for it in Toomer II. To the extent Mr.
Toomer challenges the Veterans Court’s factual findings
and the weight of the proffered evidence, this court lacks
jurisdiction to reexamine such findings.1 See 38 U.S.C.
§ 7292(d)(2).
1 The dissent states “the material facts in this case
are not in dispute” and “review [of equitable tolling]
would not involve improper reweighing of facts and is
properly within the powers of this court.” Dissent at 3. To
the contrary, Mr. Toomer and the Government disagree
about whether the original Board Decision was sent; if
Mr. Toomer received the original Board Decision; whether
the allotted time to appeal was “greatly reduced,” id., and
whether the VA communication was “confusing,” id. at 7.
As noted above, under 38 U.S.C. § 7292(d)(2), this court
lacks jurisdiction to reexamine such findings, and
certainly to make its own factual findings that conflict
with those reached by the Veterans Court. Thus, under
§ 7292(d)(2), we are barred from finding “Mr. Toomer was
misled by the muddled, conflicting official statements by
the government.” Dissent at 5.
The dissent also states, “I take no issue with the
imposition of the presumption of regularity.” Id. at 4 n.1.
However, the finding that Mr. Toomer failed to rebut the
presumption of regularity necessitates the finding that
the original Board Decision was properly sent to Mr.
Toomer on June 2, 2009.
14 TOOMER v. MCDONALD
Mr. Toomer’s assertions regarding the VA’s duty
under Barrett do not disturb this conclusion. The issue is
whether the Veterans Court erred by failing to address in
its order granting Mr. Toomer’s motion for panel review
his assertion that the government failed to comply fully
with an expansive FOIA request made by him after the
court had rendered its jurisdictional decision. See App. 67
(“[W]e request that you send: 1. Board of Veterans’
Appeals, Outcode & Dispatch Procedural Manual, dated
June 29, 2007 or the latest edition (including all
attachments). 2. Any other [VA] manuals, publications,
instructions, or document related to procedures used to
send documents to veterans.”) (emphasis added).
The government’s duty under Barrett is to “assist the
court by providing and, where necessary, procuring further
evidence helpful in deciding jurisdiction, e.g.,
declarations, new medical examinations, and other forms
of evidence as appropriate.” Barrett, 466 F.3d at 1044
(emphases added). Such information shall be provided
“on [the government’s] own initiative, upon request of the
veteran, or as required by the Veterans Court.” Id. Thus,
the duty concerns the development of the record before
the Veterans Court, and not outside FOIA requests made
by the Veteran for information not pertinent to the
equitable tolling issue. Mr. Toomer has also made no
showing that the court found further evidence was
“necessary,” or that the government withheld any
information relevant to the jurisdictional issue. Indeed,
the government provided the requested information that
was applicable to Mr. Toomer’s claim of procedural
irregularity. The Veterans Court’s failure to take up the
issue of the government’s response to Mr. Toomer’s FOIA
request in granting Mr. Toomer’s motion for panel review
was not legally erroneous.
TOOMER v. MCDONALD 15
III. There Was No Legal Error in the Veterans Court’s
Equitable Tolling Analysis
Because the 120-day deadline to file a notice of appeal
is not jurisdictional, Henderson, 562 U.S. 428, a court may
excuse a late filing under the doctrine of equitable tolling.
Here, having found the presumption of regularity applies,
the Board Decision is presumed to have been mailed on
June 2, 2009, and therefore Mr. Toomer’s appeal was
untimely filed unless the deadline is equitably tolled.
In Holland, the United States Supreme Court
reiterated the requirements for equitable tolling it had
previously set forth in Pace: a petitioner must show “‘(1)
that he has been pursuing his rights diligently, and (2)
that some extraordinary circumstance stood in his way’
and prevented timely filing.” Holland v. Florida, 560 U.S.
631, 649 (2010) (quoting Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005)) (emphasis added); see also Lozano v.
Montoya Alvarez, 134 S. Ct. 1224, 1231–32 (2014) (“As a
general matter, equitable tolling pauses the running of, or
‘tolls,’ a statute of limitations when a litigant has pursued
his rights diligently but some extraordinary circumstance
prevents him from bringing a timely action.”) (emphasis
added). Thus, this court has made clear that “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). That is, due diligence must
be shown “[i]n addition to an extraordinary
circumstance.” Id.
Mr. Toomer contends the Veterans Court applied an
incorrect standard for equitable tolling. In support, Mr.
Toomer argues “[t]he test for equitable tolling has two
parts. First, the court must determine whether the
veteran has exercised due diligence. And if so, the court
must ask whether the circumstances precluded a timely
filing.” Appellant’s Br. 10–11. As to the first part, Mr.
16 TOOMER v. MCDONALD
Toomer contends the court erred in conducting its “due
diligence” inquiry, arguing the standard is “relaxed” and
requires the court to ask “whether a reasonably diligent
veteran would have missed the 120-day deadline in like
circumstances.” Id. at 11, 8 (citing Nelson v. Nicholson,
489 F.3d 1380, 1382 (Fed. Cir. 2007); Jaquay v. Principi,
304 F.3d 1276, 1287 (Fed. Cir. 2002) (en banc)). To Mr.
Toomer, under this relaxed standard, “a reasonably
diligent pro se veteran is permitted to make mistakes in
following the instructions [on Form 4597] to appeal his
claim.” Id. at 12.
As to the second part of the analysis, Mr. Toomer
contends, in contrast to governing law, there is no
requirement that the “circumstances” preventing timely
filing be “extraordinary,” arguing there are other
circumstances that may justify untimely filing.
Appellant’s Br. 10–11; Reply 5 (“‘Extraordinary
circumstances’ is but one of the categories in which the
courts have found equitable tolling appropriate in
veterans cases.”). Thus, Appellant insists “there is no
requirement for Mr. Toomer to establish that his
circumstances were ‘extraordinary.’” Reply 6.
In addition, Mr. Toomer argues the Veterans Court
failed to recognize that misleading actions by the VA may
justify equitable tolling. Specifically, Mr. Toomer argues
he was misled by the August 4, 2009 mailing into missing
the 120-day deadline by the multiple, conflicting dates in
the documents the VA sent to him (i.e., June 2, 2009 and
August 4, 2009). Mr. Toomer also argues he was misled
by Form 4597, which stated “You have 120 days from the
date this decision was mailed to you (as shown on the first
page of the decision).” Appellant’s Br. 15 (internal
citation and quotation marks omitted). He further
contends the Veterans Court “improperly limited” “its
circumstances analysis to the three enumerated
circumstances in Bove.” Id. at 8, 14 (citing Bove, 25 Vet.
App. at 140 (stating equitable tolling is “applied only
TOOMER v. MCDONALD 17
when circumstances precluded a timely filing despite the
exercise of due diligence, such as (1) a mental illness
rendering one incapable of handling one’s own affairs or
other extraordinary circumstances beyond one’s control,
(2) reliance on the incorrect statement of a VA official, or
(3) a misfiling at the regional office or the Board”)). In
support, Mr. Toomer cites this court’s cases explaining the
Veterans Court errs when it limits “extraordinary
circumstances” to certain listed examples from past cases.
Id. at 17 (citing Sneed, 737 F.3d at 726).
While Mr. Toomer may have been somewhat diligent
in pursuing his rights, as the Veterans Court found, he
failed “to identify any factor preventing him from filing a
timely [notice of appeal], such as reliance on the incorrect
statement of a VA official, a physical or mental illness
preventing filing, or a timely misfiling at certain VA
entities.” Order at 5 (citing Bove, 25 Vet. App. at 140)
(emphasis added). Without a showing of an
“extraordinary circumstance,” Mr. Toomer’s claim cannot
be equitably tolled. See Sneed, 737 F.3d at 725 (“‘[A]
litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing
his rights diligently, and (2) that some extraordinary
circumstance stood in his way.’” (quoting Pace, 544 U.S. at
418)). Indeed, this court has made clear that due
diligence must be shown “[i]n addition to an extraordinary
circumstance.” Checo, 748 F.3d at 1378. Thus, Mr.
Toomer’s assertion that he “does not need to show
‘extraordinary’ circumstances,” Reply 5, is belied by the
Supreme Court’s and this court’s case law, which make
clear that both “due diligence” and “extraordinary
circumstances” are required elements for equitable
tolling. See Lozano, 134 S. Ct. at 1231–32; Holland, 560
U.S. at 649; Pace, 544 U.S. at 418; Checo, 748 F.3d at
1378; Sneed, 737 F.3d at 726.
Mr. Toomer is correct, however, that equitable tolling
is not “limited to a small and closed set of factual
18 TOOMER v. MCDONALD
patterns.” Mapu v. Nicholson, 397 F.3d 1375, 1380 (Fed.
Cir. 2005). This court has “rejected the approach of
looking to whether a particular case falls within the facts
specifically identified in . . . one of our prior cases.” Id.;
see also Sneed, 737 F.3d at 726 (holding “the Veterans
Court improperly treated the listed examples—including
reliance on the incorrect statement of a VA official—as
the exclusive ‘parameters’ of equitable tolling”). Rather,
we have acknowledged “the need for flexibility” and “for
avoiding mechanical rules,” and have proceeded on a
“case-by-case basis.” Holland, 560 U.S. at 631 (internal
quotation marks and citation omitted).
Here, however, the Veterans Court did not commit
legal error by focusing too narrowly on whether Mr.
Toomer’s case conformed to a particular fact pattern;
rather, it properly considered whether, in this case, Mr.
Toomer’s claim that he was misled by a VA document
constitutes an extraordinary circumstance. The Veterans
Court found it did not. In particular, the court found the
August 4, 2009 cover letter stated the original Board
Decision was rendered on June 2, 2009, and this mailing
contained “another copy.” Order at 4. As to the
purportedly misleading language of Form 4597, the court
noted that Mr. Toomer’s argument reflected a
misrepresentation by omission of the information on that
form, “which not only states, as Mr. Toomer notes, that
‘[y]ou have 120 days from the date this decision was
mailed to you,’ but also states immediately thereafter ‘(as
shown on the first page of this decision)’” and “the date on
the first page of the decision received by Mr. Toomer in
August is ‘6/02/09.’” Id. at 4–5. Therefore, the court
concluded, “Mr. Toomer fails to demonstrate that he
followed [Form 4597], that the instructions therein were
confusing or misleading, or that the totality of his
circumstances otherwise demonstrates that he was
precluded from filing his [notice of appeal] in a timely
manner.” Id. at 5. The court only cited to Bove to provide
TOOMER v. MCDONALD 19
examples of extraordinary circumstances, not to
determine whether Mr. Toomer’s circumstances
conformed to a prescribed list of “extraordinary
circumstances.” See Order at 5.
Thus, the Veterans Court’s analysis does not evince
any legal error or misinterpretation of the law
surrounding equitable tolling. To the extent Mr. Toomer
asks this court to review the Veterans Court’s factual
findings surrounding whether or not the filings were
misleading or confusing, this is of course outside our
jurisdiction. See Singleton v. Shinseki, 659 F.3d 1332,
1334 (Fed. Cir. 2011). Thus, even if this court disagreed
with the Veterans Court’s factual finding that the two
dates on the correspondence from the VA were not
confusing or misleading, and therefore did not rise to the
level of “extraordinary circumstance,” revisiting this
finding is beyond our jurisdiction. Indeed, this court may
not review “a challenge to a factual determination” or “a
challenge to a law or regulation as applied to the facts of a
particular case” unless a constitutional challenge is
presented. 38 U.S.C. § 7292(d)(2).
CONCLUSION
For the foregoing reasons, the Veterans Court’s
decision is
AFFIRMED
United States Court of Appeals
for the Federal Circuit
______________________
HARVEST O. TOOMER,
Claimant-Appellant
v.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS,
Respondent-Appellee
______________________
2014-7045
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 09-4086, Chief Judge Bruce E.
Kasold.
______________________
REYNA, Circuit Judge, dissenting.
The majority concludes that equitable tolling does not
apply in Mr. Toomer’s case primarily because the equitable
tolling analysis requires us to impermissibly reweigh
factual findings made by the Board of Veterans’ Appeals
(“Board”). I respectfully dissent.
I. EQUITABLE TOLLING IS A LEGAL QUESTION WHERE
MATERIAL FACTS ARE UNDISPUTED
When reviewing decisions of the United States Court
of Appeals for Veterans Claims (“Veterans Court”), we are
statutorily constrained from considering pure questions of
2 TOOMER v. MCDONALD
fact, or the application of law to fact. 38 U.S.C.
§ 7292(d)(2).
A well-recognized exception to this rule exists in the
context of equitable tolling. In Bailey v. Principi, we held
that when the material facts are not in dispute and the
adoption of a particular legal standard of review, such as
the rule preventing our review of questions of fact or the
application of law to fact, would dictate the result, “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.” 351 F.3d 1381, 1384 (Fed. Cir. 2003)
(emphasis added); accord Bradenburg v. Principi, 371
F.3d 1362, 1363 (Fed. Cir. 2004); Wood v. Peake, 520 F.3d
1345, 1349 (Fed. Cir. 2008).
The material facts in this case are not in dispute. The
Board issued a decision in Mr. Toomer’s case on June 2,
2009, but that decision was not received by Mr. Toomer.
Mr. Toomer called the Department of Veterans Affairs
(“VA”) to inquire about the status of his case, informing
the VA that he had not received a decision. Prompted by
that call, the VA mailed a package to Mr. Toomer that
included a cover letter, a copy of the Board’s decision, and
a notice of appellate rights. The cover letter was machine
stamped with the date of August 4, 2009. The copy of the
Board’s decision, however, had an informally-styled date
(“6/02/09”) handwritten at an angle on its first page. The
notice of appellate rights set forth standard boilerplate
instructions, stating, “You have 120 days from the date
this decision was mailed to you (as shown on the first
page of this decision) to file a Notice of Appeal with the
Court.” J.A. 21 (emphasis added). At the time the VA
mailed the copy of the decision to Mr. Toomer, 72 of the
120 days provided in 38 U.S.C. § 7266(a) to file an appeal
had elapsed. Mr. Toomer filed his notice of appeal on
October 28, 2009, 85 days after the VA mailed the copy of
the Board’s decision to him and, thus, within 120 days of
TOOMER v. MCDONALD 3
the date on the first page of the package containing the
copy of the decision, August 4, 2009.
Because there are no material facts in dispute in this
case, the question of equitable tolling is one we can, and
here must, review. See Bailey, 351 F.3d 1384. Such
review would not involve improper reweighing of facts
and is properly within the powers of this court.
II. THE GOVERNMENT’S CONFUSING STATEMENTS
JUSTIFY EQUITABLE TOLLING
As the majority recognizes, a veteran seeking to invoke
equitable tolling must establish both diligence in
pursuing his rights and extraordinary circumstances
standing in his way. Sneed v. Shinseki, 737 F.3d 719, 725
(Fed. Cir. 2013). The majority does not suggest that Mr.
Toomer did not meet the diligence prong of equitable
tolling. See Maj. Op. at 16. As such, all that remains is a
showing of exceptional circumstances before equitable
tolling may be properly applied. Numerous facts point to
the existence of exceptional circumstances in Mr. Toomer’s
case.
A. The Allotted Time To Appeal Was Greatly Reduced
Mr. Toomer received a copy of the Board’s decision after
more than half of the filing period had elapsed. The
accompanying notice of appellate rights explained that he
would have 120 days from the date “this decision” was
mailed to him to file his appeal. J.A. 21. The rules permit
120 days to appeal. A legally unsophisticated veteran
may require a significant amount of time, as much as the
entire 120 days, to consider the decision, research the law,
evaluate the merits of an appeal, and prepare and file the
notice of appeal. To the extent Congress deems that the
entire statutorily-provided period as necessary for all of
these steps, cutting that time by more than half, as the
majority does here, casts doubt on the sufficiency of the
resultant filing period. The majority does not state why
4 TOOMER v. MCDONALD
the shortened period should be deemed sufficient for this
particular veteran.
There is no evidence that Mr. Toomer was less than
diligent, as he filed his appeal 85 days after the copy of
the decision was mailed to him, well within the otherwise
applicable 120-day period. Where a claimant acts with
diligence to do everything that could reasonably be expected
of him, and the untimely filing is beyond his control,
the untimely filing should not bar the claim. Herring
v. Merit Sys. Prot. Bd., 778 F.3d 1011, 1016-18 (Fed. Cir.
2015) (reversing dismissal of appeal for untimely filing
where claimant relied on misleading statements made by
her counsel). Such diligence suggests that but for his
confusion as to the date his appeal was due, generated by
the government, Mr. Toomer would have timely filed his
appeal.
B. The VA’s Communication With
Mr. Toomer Was Confusing
Despite sending a personalized letter to Mr. Toomer,
the VA neglected to inform him that the filing period ran
from the date of the supposed mailing of the first decision,
which Mr. Toomer never received. In the personalized
letter, the VA acknowledged it was sending the copy of
the decision in response to Mr. Toomer informing the
agency that he did not receive the original decision.1 J.A.
24. The letter contained highly specific information,
1 I take no issue with the imposition of the presumption
of regularity. This case is not about whether
the VA actually mailed the initial decision, as it claims,
but rather about two separate communications that, on
their faces, provide conflicting, confusing information to
Mr. Toomer regarding his right to appeal. To the extent
the majority asserts the presumption of regularity forecloses
consideration of equitable tolling, I dissent.
TOOMER v. MCDONALD 5
including the precise date on which Mr. Toomer requested
the original decision from the VA. Id. This letter was
accompanied by the boilerplate language in the notice of
appellate rights, indicating the filing period would begin
to run on the date “this decision” was mailed to Mr.
Toomer. In spite of the VA’s personalized communication,
it failed to alert Mr. Toomer that the start of the running
of the filing period was unaffected by his non-receipt of
the original decision. This error was compounded by the
VA’s failure to explain that “this decision” actually referred
to the previously mailed decision.
Mr. Toomer was misled by the muddled, conflicting official
statements by the government, wherein two dates
from which to appeal were communicated to him. The
inconsistent language in the notice of appellate rights
could easily confuse a fastidious lawyer. In this case, the
government’s inconsistent statements confused a lay
veteran, Mr. Toomer. The resulting confusion was of the
government’s making and, as such, should not be held
against an otherwise diligent, involved veteran.
C. The Majority Constrains Equitable Tolling
To A Closed Set Of Factual Patterns
This court has rejected the “suggestion 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 v.
Nicholson, 397 F.3d 1375, 1380 (Fed. Cir. 2005). We have
highlighted the need to be flexible in our inquiry, and to
analyze each case individually. Sneed, 737 F.3d at 726
(quoting Holland v. Florida, 560 U.S. 631, 649-50 (2010)).
The majority suggests it remains mindful not to limit
equitable tolling to a small, closed set of factual patterns,
Maj. Op. at 17, but by declining to apply analogous precedent,
it does just that.
In Bailey v. West, we held that equitable tolling is appropriate
when a veteran’s untimely filing results from
6 TOOMER v. MCDONALD
the government’s own misleading statements. 160 F.3d
1360 (Fed. Cir. 1998). A Veterans Benefits Counselor at
the regional office (“RO”) misrepresented to the veteran
that timely filing a notice of appeal at the RO was sufficient
to initiate the veteran’s appeal. Id. at 1361. Relying
on the government’s statement, the veteran timely filed a
notice of appeal at the RO, though that notice was not
forwarded to the Veterans Court within the filing period.
The VA notified the veteran that timely filing a notice of
appeal at the RO does not protect his right of appeal. Id.
at 1362. The veteran then filed an untimely notice of
appeal with the Veterans Court. The Veterans Court
dismissed the appeal for lack of jurisdiction on account of
the untimely filing of the notice of appeal. Id.
The veteran in Bailey appealed the dismissal to this
court. In analyzing whether equitable tolling applied, we
explained that the veteran “was misled by the conduct of
his adversary [the government] into allowing the filing
deadline to pass” even though there was “no suggestion of
misconduct” by the government. Id. at 1365. We concluded
that the government’s misleading statements that
caused the veteran to miss the filing deadline were sufficient
to equitably toll the deadline, even absent evidence
of any intent to mislead. Id.
Just as in Bailey, the government’s misleading statements
in this case, made without intent to mislead, are
sufficient to justify equitably tolling the 120-day filing
period. Mr. Toomer asserts that he relied on the machinestamped
date on the cover letter because he believed the
cover letter was part of the decision itself. His belief is
not unreasonable given that the cover letter and the
decision came in a packet together, and that the date on
the cover letter bears an official appearance while the
handwritten date does not. Using either date from which
to calculate the filing deadline is reasonable in this case.
The instructions in the notice of appellate rights could
easily mislead Mr. Toomer to believe his filing period
TOOMER v. MCDONALD 7
ended later than it actually did. While there is no evidence
of intent by the government to mislead Mr. Toomer,
the official, confusing instructions in the notice of appellate
rights did exactly that. As a result, Mr. Toomer filed
his notice of appeal 85 days after he received the copy of
the Board’s decision. His filing occurred inside the 120-
day period beginning on the date the copy was mailed, but
outside the 120-day window beginning on the date of the
supposed first mailing.
By refusing to apply equitable tolling on the facts of
Mr. Toomer’s case, the majority narrowly circumscribes
Bailey, limiting that decision’s reach to only affirmative
misstatements by the government. Bailey teaches that
misleading statements by the government support equitably
tolling the period for appealing to the Veterans
Court, even absent intent by the government to mislead
the veteran. In any event, I believe that an application of
the flexible, case-by-case analysis espoused, but not
utilized, by the majority leads to the conclusion that the
filing deadline should have been equitably tolled.
D. This Decision Will Produce Undesirable Results
Finally, the majority’s refusal to apply equitable tolling
here will lead to absurd results in other cases. Suppose
the initial mailing of the Board’s decision never
arrives and the veteran contacts the VA after the 120-day
filing period elapses. Even if the veteran filed an appeal
on the day the Board’s decision was received, a mechanical
application of 38 U.S.C. § 7266(a) would lead to a
dismissal of that appeal. Under the majority’s opinion,
equitable tolling would not apply because even in this
scenario, the veteran would not be able to show exceptional
circumstances. In short, the veteran would be left
with no recourse at all. This cannot be the appropriate
result given the remedial nature of veterans law.
The government’s misleading communications and
the lapsing of more than half the filing period before the
8 TOOMER v. MCDONALD
veteran received the Board’s decision clearly illustrate the
existence of extraordinary circumstances in this case.
Because the majority declines to equitably toll the filing
statute, I respectfully dissent.

 

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