HARVEST O. TOOMER, Claimant-Appellant
ROBERT A. MCDONALD, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee
Appeal from the United States Court of Appeals for Veterans Claims in No. 09-4086, Chief Judge Bruce E. Kasold.
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, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.
Before REYNA, CLEVENGER, and WALLACH,
Circuit Judges. 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.
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 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 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, 131 S.Ct. 1197, 179 L.Ed.2d 159 (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 Vt.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 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.
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 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.
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 Vt.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.
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 ...