 United States Court of Appeals for the Federal Circuit
                            CORRECTED: February 15, 2005

                                       04-7088



                                   JOHN MAPU, JR.

                                                Claimant-Appellant,

                                           v.


                R. JAMES NICHOLSON, Secretary of Veterans Affairs,

                                                Respondent-Appellee.



      Courtenay C. Brinckerhoff, Foley & Lardner, LLP, of Washington, DC, argued for
claimant-appellant. With her on the brief was George E. Quillin.

       Christian J. Moran, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent-
appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General;
David M. Cohen, Director; and Mark A. Melnick, Assistant Director. Of counsel on the
brief were Michael J. Timinski, Deputy Assistant General Counsel, and James T. Dehn,
Attorney, United States Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge William P. Greene, Jr.
 United States Court of Appeals for the Federal Circuit


                                       04-7088

                                  JOHN MAPU, JR.,

                                                Claimant-Appellant,

                                           v.

                 R. JAMES NICHOLSON, Secretary of Veterans Affairs,

                                                Respondent-Appellee.

                           ___________________________

                           DECIDED: February 15, 2005
                           ___________________________


Before RADER, Circuit Judge, ARCHER, Senior Circuit Judge, and BRYSON, Circuit
Judge.

BRYSON, Circuit Judge.

       This case arises from a missed filing deadline. Appellant John Mapu, Jr., is a

United States Army veteran. He alleges that he sustained an injury during his service.

He sought veterans’ benefits for the injury, and when his request was denied, he

appealed to the Board of Veterans’ Appeals. The Board upheld the denial of benefits

on July 31, 2001. The Board’s opinion included a notice informing Mr. Mapu that if he

wanted to appeal the decision, he had to file a notice of appeal with the Court of

Appeals for Veterans Claims (“the Veterans Court”) in Washington, D.C., within 120

days of that decision.

       Acting pro se, Mr. Mapu went to a United States Post Office to mail his notice on

November 28, 2001, which was the 120th day after the Board’s decision. At that time,
mail service to Washington, D.C., was disrupted due to the anthrax crisis. A customer

service supervisor and a manager at the Post Office told him that the Postal Service

was not providing Overnight Express service to Washington, D.C.               There is no

suggestion that the Postal Service was not providing regular mail service to

Washington, D.C. However, because Mr. Mapu wanted overnight delivery, the Postal

Service representatives suggested that if he wanted to have his package delivered

overnight, he should use a private carrier service. Mr. Mapu sent the notice by FedEx

overnight delivery service. The Veterans Court received the notice the next day, which

was 121 days after the Board’s decision.

       In a single-judge order, the Veterans Court dismissed Mr. Mapu’s appeal for lack

of jurisdiction because the notice of appeal was not received within 120 days of the

Board’s decision. Because Mr. Mapu had not mailed his notice of appeal within the

120-day period, the court ruled that he was not entitled to the benefit of the “postmark

rule” of 38 U.S.C. § 7266, which provides that a notice of appeal sent to the court

through the Postal Service and having a legible postmark is deemed to have been filed

with the Veterans Court on the date of the postmark. The court rejected Mr. Mapu’s

argument that the use of FedEx overnight delivery service should be equivalent to the

use of the Postal Service for purposes of determining the filing date. The court also

rejected Mr. Mapu’s argument that the 120-day appeal period should be equitably tolled.

       A three-judge panel of the Veterans Court affirmed the decision that Mr. Mapu’s

appeal was untimely and that he was ineligible for equitable tolling of the filing deadline.

Mr. Mapu appealed that decision to this court, and we remanded the appeal to the

Veterans Court for further review in light of our decisions in Jaquay v. Principi, 304 F.3d




04-7088                                      2
1276 (Fed. Cir. 2002) (en banc), and Santana-Venegas v. Principi, 314 F.3d 1293 (Fed.

Cir. 2002). On remand, the Veterans Court found that Jaquay and Santana-Venegas

were inapplicable to Mr. Mapu’s case and again concluded that Mr. Mapu’s appeal was

untimely. Mr. Mapu appeals that decision.

                                            I

      As a preliminary matter, Mr. Mapu argues that his notice of appeal was not

untimely within the meaning of 38 U.S.C. § 7266. Subsection (a) of section 7266 states

that in order to obtain Veterans Court review of a decision by the Board of Veterans’

Appeals, “a person . . . shall file a notice of appeal with the Court within 120 days.”

Subsection (b) allows a person to file that notice of appeal “by delivering or mailing the

notice to the Court.”    Mr. Mapu contends that the phrase “delivering or mailing”

encompasses the act of depositing his notice of appeal with FedEx for delivery.

Because he deposited his notice with FedEx within 120 days of the Board decision, Mr.

Mapu argues that he fulfilled the requirements of section 7266 regardless of when the

Veterans Court received the notice.

      Mr. Mapu’s construction of the term “delivering” is belied by subsections (c) and

(d) of section 7266. Section 7266(c) states that a notice of appeal shall be deemed to

be received by the Veterans Court “[o]n the date of receipt by the Court, if the notice is

delivered.” If the notice is mailed, section 7266(c) states that the notice is deemed to

have been received by the Veterans Court on the date of its postmark. Section 7266(d)

elaborates on the postmark rule, stating the requirements and procedures used to

determine whether a postmark is sufficient for a notice of appeal to be considered filed.

Under Mr. Mapu’s broad interpretation of section 7266(b), a veteran would meet the




04-7088                                     3
filing deadline the instant the notice of appeal was deposited with a common carrier. It

would be irrelevant in Mr. Mapu’s view when the Veterans Court actually received the

notice, which would make subsections (c) and (d) meaningless. As we discuss below,

Congress added subsections (c) and (d) in an effort to liberalize the time requirement

for filing a notice of appeal. That legislation would have been unnecessary if sections

7266(a) and (b) already treated filing as complete when the notice of appeal was

deposited with the Postal Service or a private courier service. Given the structure of

section 7266 and its legislative history, we decline to interpret subsections (a) and (b) in

a way that would read subsections (c) and (d) out of the statute. Therefore, we hold

that for an appeal to be timely, the Veterans Court must receive the notice of appeal

within 120 days of the Board’s decision, or the notice must be deemed received within

120 days of the Board’s decision pursuant to the postmark rule of sections 7266(c) and

(d). Because Mr. Mapu did not comply with either requirement, we agree with the

Veterans Court that his appeal did not satisfy the timeliness requirement of section

7266.

                                             II

        Even if his appeal is otherwise untimely, Mr. Mapu argues that he is entitled to

have the filing deadline equitably tolled. In support of that contention, he notes (1) that

he actively pursued his right to appeal; (2) that he was unaware that he might lose his

right of appeal by delivering the notice by FedEx rather than through the Postal Service;

and (3) that filing his notice using FedEx was equivalent to filing a defective pleading,

which can give rise to equitable tolling under Irwin v. Department of Veterans Affairs,




04-7088                                      4
498 U.S. 89 (1990). For the reasons given below, we conclude that equitable tolling is

unavailable on the facts of this case.

                                            A

       As an initial matter, the government contends that we lack jurisdiction to review

the Veterans Court’s determination that equitable tolling is inappropriate in this case.

The government contends that the Veterans Court’s decision is either a factual

determination or an application of law to the facts of a particular case and that our

review is therefore barred by 38 U.S.C. § 7292(d)(2). That argument is without merit.

In Jaquay, we were presented with the same argument that we lacked jurisdiction

because the case concerned the application of the law of equitable tolling to the facts.

304 F.3d at 1289.     We rejected that argument, noting that “our holding resolves a

contested interpretation of the Veterans Court's jurisdictional statute, 38 U.S.C. § 7266.”

Id. We have consistently held that “when the material 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.” Bailey v. Principi, 351 F.3d

1381, 1384 (Fed. Cir. 2003), citing Jaquay, 304 F.3d at 1289. Mr. Mapu’s case is

similar to Jaquay in that regard, and we therefore have jurisdiction over his appeal.

Accordingly, we turn to the merits of Mr. Mapu’s equitable tolling claim.

                                            B

       The Supreme Court stated in Irwin that “the same rebuttable presumption of

equitable tolling applicable to suits against private defendants should also apply to suits

against the United States.” 498 U.S. at 95-96. The Court then listed two settings in




04-7088                                     5
which equitable tolling had been recognized in private law suits, namely “where the

claimant has actively pursued his judicial remedies by filing a defective pleading during

the statutory period, or where the complainant has been induced or tricked by his

adversary’s misconduct into allowing the filing deadline to pass.” Id. at 96. The Court’s

opinion does not, however, suggest that those two settings were the only ones in which

equitable tolling would be appropriate. See Nunnally v. MacCausland, 996 F.2d 1, 5 n.7

(1st Cir. 1993) (“A fair reading of Irwin, however, shows that the Court did not undertake

an exhaustive list of factors that may be considered in the equitable weighing

process.”).   We have recognized that equitable tolling of the deadline in 38 U.S.C.

§ 7266 is allowed “in a variety of circumstances,” Barrett v. Principi, 363 F.3d 1316,

1318 (Fed. Cir. 2004), and we have not limited equitable tolling of the 120-day appeal

deadline to cases falling within the two examples cited in Irwin. See Barrett, 363 F.3d at

1318 (equitable tolling is available during a period when the veteran was mentally

incapacitated); Brandenburg v. Principi, 371 F.3d 1362, 1364 (Fed. Cir. 2004) (equitable

tolling is available when the veteran files the notice of appeal with the Board rather than

with the Veterans Court); Bailey v. Principi, 351 F.3d at 1385 (equitable tolling is

available when the veteran files the notice of appeal at the wrong location, using an

incorrect form); Santana-Venegas, 314 F.3d at 1298 (equitable tolling is available when

the veteran files the notice of appeal with the regional office rather than with the

Veterans Court); see also Jaquay, 304 F.3d at 1289 (equitable tolling is available when

the veteran misfiles a motion for Board reconsideration with the regional office rather

than with the Board).




04-7088                                     6
       In ruling on Mr. Mapu’s claim of equitable tolling on remand, the Veterans Court

looked to whether the facts of Mr. Mapu’s appeal fell within the two examples set forth in

Irwin or within the facts of Santana-Venegas and Jaquay. The court concluded that

Santana-Venegas and Jaquay did not apply because Mr. Mapu did not file his notice

with a regional office; the court held that Irwin was inapplicable because Mr. Mapu did

not file a defective pleading and he did not allege any agency employee had engaged in

misconduct that caused him to miss the filing deadline.

       In applying the equitable tolling doctrine, we have rejected the approach of

looking to whether a particular case falls within the facts specifically identified in Irwin or

one of our prior cases. In Barrett, for example, we considered whether a veteran’s

mental illness can excuse the untimely filing of his appeal. 363 F.3d at 1318. The

government argued that equitable tolling under section 7266 was limited to the specific

factual circumstances listed in Irwin. We rejected that argument, noting that “[a] careful

study of Supreme Court precedent” directs otherwise.             Id.   We again reject 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. Such a conclusion would run counter to our holding that “requiring ruthless

application of the time limit [of section 7266] is somewhat arbitrary.” Bailey v. West, 160

F.3d 1360, 1364 (Fed. Cir. 1998) (en banc).

       Irwin provides guidance as to the proper analysis in determining whether

equitable tolling is appropriate.     The first question is whether equitable tolling is

available in private litigation with similar circumstances, recognizing that equitable tolling

does “not extend to what is at best a garden variety claim of excusable neglect.” Irwin,




04-7088                                       7
498 U.S. at 95-96. The second question is whether Congress has either provided or

intended that equitable tolling be unavailable in the situation at issue. Id.

                                             C

         The 120-day deadline of section 7266 was established in 1988 as part of the

Veterans Judicial Review Act, Pub. L. No. 100-687, Div. A, § 301(a), 102 Stat. 4105,

4113 (1988).      That statute gave the Veterans Court authority to establish rules

governing the filing of appeals. In 1991, the Veterans Court published its Rules of

Practice and Procedure, Rule 4 of which required that the Veterans Court actually

receive a notice of appeal within 120 days for it to be timely. In Re: Rules of Practice

and Procedure, 1 Vet. App. XXIX, XXXII (May 1, 1991).                 The Veterans Court

subsequently dismissed the appeals of several veterans in which the notice of appeal

had been postmarked by the 120-day deadline, but was not received by the Veterans

Court within that time period. See, e.g., Holliday v. Derwinski, 2 Vet. App. 199, 199

(1992); DiDonato v. Derwinski, 2 Vet. App. 42, 43 (1991). At least one such dismissal

was upheld by this court. See Espelita v. Derwinski, 958 F.2d 1052, 1053 (Fed. Cir.

1992).

         In response to those decisions, Congress amended section 7266 by adding the

postmark rule to permit a notice of appeal that was mailed via the Postal Service to be

deemed filed on the date of the postmark. See Veterans’ Benefits Improvements Act of

1994, Pub. L. No. 103-446, § 511(a), 108 Stat. 4645, 4670.            Statements made by

members of Congress at that time clearly indicate that they believed the Veterans Court

had previously been correct in requiring that the court actually receive a notice of appeal

within 120 days, regardless of when or how the notice was sent. Senator Rockefeller,




04-7088                                       8
one of the sponsors of the 1994 legislation, explained that “the [Veterans Court] acted

appropriately and within the scope of its authority when it adopted Rule 4.” 139 Cong.

Rec. 24,712 (1993). He explained, however, that the 1994 legislation adopting the

postmark rule was designed to mitigate the harshness of Rule 4 as applied to veterans

whose mail was delayed or who lived far from Washington, D.C. Id.

       It is clear that Congress wanted the postmark rule to apply only to a notice of

appeal that was mailed using the Postal Service. The Joint Explanatory Statement for

one of the related bills that proposed to amend section 7266 explained that the

postmark rule would not be broadly applicable, but that only “legible United States

Postal Service postmarks would be sufficient.” 140 Cong. Rec. 28,849 (1994); see also

id. at 28,840 (containing Senator Rockefeller’s summary of the major provisions of H.R.

4386). The Joint Explanatory Statement further stated that “if a [notice of appeal] is

delivered to the Court (for example, by private courier or delivery service), it would be

considered timely filed if it is received by the Court within the 120-day limit established

by Congress.” 140 Cong. Rec. 28,849 (1994). The intention to limit the waiver of

sovereign immunity to the strict confines of the postmark rule is further manifested in the

provisions of sections 7266(c) and (d), which clearly state that a Postal Service

postmark is necessary for the postmark rule to apply. In short, it is clear that Congress

was aware that the Veterans Court required actual receipt of the notice of appeal and

specifically limited the exception created by the postmark rule to notices of appeal sent

through the Postal Service. Thus, notices of appeal delivered by other means were

specifically excluded from the application of the new statute.




04-7088                                     9
       Mr. Mapu asks that we use equitable tolling to broaden the waiver of sovereign

immunity in exactly the way that Congress refused to—by in effect extending the

postmark rule to a package sent using FedEx. We conclude, however, that Congress’s

explicit decision not to broaden the postmark rule by extending it to delivery services

other than the Postal Service must trump any extension of equitable tolling to this case.

In sum, equitable tolling is unavailable in a case such as this one, in which the veteran’s

only excuse for a late filing of the notice of appeal is that a delivery service other than

the Postal Service was used.

                                            III

       Finally, we reject Mr. Mapu’s contention that the Board’s Appeals Notice

informing him of his appeal rights was defective. Mr. Mapu claims that the notice failed

to provide him with “an explanation of the procedure of obtaining review,” as required by

38 U.S.C. § 5104(a), because it did not explain the postmark rule and did not advise

him that he might lose his appeal rights if he sent the notice of appeal by a private

courier service instead of the Postal Service. However, we have previously held that

section 5104(a) “requires nothing more than the Appeals Notice provides, viz., a general

outline of the available procedures for obtaining review of a final Board decision.”

Cummings v. West, 136 F.3d 1468, 1472 (Fed. Cir. 1998), overruled on other grounds

by Bailey v. West, 160 F.3d 1360, 1368 (Fed. Cir. 1998). In this case, the Board’s

Appeals Notice apprised Mr. Mapu of his right to appeal, the 120-day deadline for the

appeal, and the address of the Veterans Court.         Furthermore, the Appeals Notice

advised him that he could direct any questions to the Veterans Court about the

“procedure by which you may file your Notice of Appeal.” Because the notice provided




04-7088                                     10
the “general outline of the available procedures for obtaining review,” as required by

section 5104, it was not insufficient.

       Each party shall bear its own costs for this appeal.

                                         AFFIRMED.




04-7088                                     11
