This version contains the errata dated 2Mar00-e

            UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


NO . 98-2373

ALFRED P. SANTORO ,                                           APPELLANT ,

       V.


TOGO D. WEST , JR.,
SECRETARY OF VETERANS AFFAIRS,                                APPELLEE.


                     Before KRAMER, FARLEY, and STEINBERG, Judges.

                                            ORDER

       This appeal is currently pending before a panel on the Secretary's March 12, 1999, motion
to dismiss for lack of jurisdiction. On December 15, 1998, the pro se appellant filed a Notice of
Appeal (NOA) from a May 1, 1998, decision of the Acting Chairman of the Board of Veterans'
Appeals (BVA or Board) denying reconsideration of a January 29, 1998, BVA decision. The May 1,
1998, decision by the BVA Acting Chairman was accompanied by a BVA Notice of Appellate
Rights (BVA Notice). The BVA Notice stated that an appeal of the BVA decision needed to be
mailed to "The United States Court of Veterans Appeals [(now the U.S. Court of Appeals for
Veterans Claims)], 625 Indiana Avenue, NW., Washington, DC 20004". Although the Board
received the appellant's motion for reconsideration on March 30, 1998, within 120 days after the date
stamped on the BVA decision, the Court received the appellant's NOA more than 120 days after the
date of the BVA's denial of his motion for reconsideration. See 38 U.S.C. § 7266(a); Rosler
v. Derwinski, 1 Vet.App. 241, 249 (1991) (holding that motion for reconsideration filed with Board
within 120-day judicial-appeal period will toll time limit for filing NOA to this Court).

        Accompanying the appellant's NOA was (1) a letter indicating that he had previously mailed,
with a return receipt requested, a "request for appeal" to the "Court of Veterans Appeals, 625 Indiana
Ave., NW, Washington, DC 20420" [hereinafter "July 1998 letter"], and (2) a photocopy of a U.S.
Postal Service (USPS) return-receipt-request card sent to that address and signed for as received on
July 27, 1998, by a handwritten notation of "General Counsel PA". The appellant contends that his
NOA was misdelivered to the Department of Veterans Affairs (VA) "Board of Appeals [sic] at 810
Vermont Ave" because of an incorrect zip code on the letter. He states that the USPS had recently
advised him (although he offers no verification of such advice) that such return-receipt-requested
mail should have been returned to him for an address correction, rather than delivered to an incorrect
address that merely matched the zip code. In addition, the appellant argues, based on the signature
on the returned-receipt card, that a person in the VA Office of General Counsel (OGC) had signed
that receipt card and accepted the mailing. Based on that information, the appellant contends that
that signature misled him into believing, at a time when he was not represented by counsel, that the
Court had received his NOA within the 120-day statutory judicial-appeal period and that that belief
caused him to miss that deadline.

        On December 31, 1998, the Secretary transmitted to the Court a copy of the January 1998
BVA decision on appeal, which was also accompanied by a similar BVA Notice; that Notice
specified the address for this Court that had been included in the previous Notice, except that "Suite
900" was included after "NW.". On March 12, 1999, the Secretary moved to dismiss, asserting that
the appellant's December 15, 1998, NOA was untimely filed. On March 19, 1999, the Court ordered
the appellant to show cause, within 20 days, why this appeal should not be dismissed for lack of
jurisdiction. On April 6, 1999, the appellant filed a response to the Court's order. The appellant
argues that this appeal should not be dismissed because he timely mailed his NOA and then received
the signed return-receipt-request card, and that any "mishandling of either delivery of the NOA by
the [USPS] or receipt of the NOA by any other administrative office, should not preempt the good
faith effort of the [a]ppellant to meet all prescribed periods." He has submitted the original of the
return-receipt-request card, postmarked July 27, 1998.

        On May 25, 1999, a panel of this Court ordered the Secretary to file a reply to the appellant's
December 15, 1998, letter and his response to the Secretary's motion to dismiss. The Secretary was
"directed specifically to address the following issues: (1) Whether an OGC employee signed for
receipt of the July 1998 letter; (2) if an OGC employee did in fact receive that letter, the significance
of such receipt in light of the fact that on July 27 there were still more than 30 days remaining within
the 120-day filing period; and (3) the significance of the delivery to VA by the [USPS] of the
appellant's July 1998 letter in light of the time remaining within that filing period." In his July 26,
1999, reply, the Secretary, although conceding that an OGC employee did sign for and receive the
appellant's July 1998 letter, argues that the appellant's initial lack of due diligence in using the wrong
zip code precludes equitable tolling.

        On October 12, 1999, the Court stayed proceedings in this case until November 11, 1999, in
order to permit the appellant to consider seeking representation. See In re Panel Referrals in Pro
Se Cases, 12 Vet.App. 316 (1999) (en banc order). On November 9, 1999, the Veterans Consortium
Pro Bono Program filed a motion for a stay of proceedings until December 26, 1999, to allow the
appellant a reasonable period of time to retain counsel. The Court stamp-granted that motion. On
December 2, 1999, Michael P. Horan entered an appearance on behalf of the appellant. However,
the appellant has made no further filing.

        The Secretary's March 12, 1999, motion implicates the question of the application of the
doctrine of equitable tolling to the facts of this case. See Bailey v. West, 160 F.3d 1360, 1364 (Fed.
Cir. 1998) (characterizing Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96 (1990), as holding
that "equitable tolling is available in suits between private litigants . . . 'where the complainant has
been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass'").
In Bailey, the U.S. Court of Appeals for the Federal Circuit held that even in absence of misconduct
by VA a claimant's detrimental reliance on representations of a VA employee could provide a basis


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for the application of the doctrine of equitable tolling to the 38 U.S.C. § 7266(a) judicial-appeal
period. Bailey, 160 F.3d at 1365. On remand of the Bailey case to this Court, the appeal was
ultimately dismissed on the joint motion of the parties in light of a settlement reached on the merits
by them. Bailey v. West, U.S. Vet. App. No. 97-232 (order Aug. 23, 1999).

        The instant appeal raises significant questions as to application of the doctrine of equitable
tolling to particular facts, and the Court will schedule oral argument to consider that matter.
However, before that occurs, the Court is in need of the assistance of the parties on the following
matters in connection with the Secretary's motion to dismiss:

              (1) Does the appellant's use, in mailing an NOA to this Court, of a mistaken
       zip code for the Court's address constitute a lack of "due diligence", Bailey, 160 F.3d
       at 1364, because he failed to comply with the instruction for filing an appeal in the
       Court set forth in the BVA Notice mailed to him by VA with the BVA Acting
       Chairman's May 1, 1998, decision, as required by 38 U.S.C. § 5104(a); Thompson
       (Charles) v. Brown, 8 Vet.App. 169, 175-76, vacated in part on other grounds,
       8 Vet.App. 430 (1995)?

               (2) Does a lack of due diligence preclude the application of the doctrine of
       equitable tolling? If not, would VA's conduct warrant the application of the doctrine,
       even if VA's conduct is not considered to constitute an affirmative misrepresentation
       upon which the appellant justifiably relies to his or her detriment, such as in Bailey,
       supra; cf. Jones (Carlos) v. West, 13 Vet.App. 129 (1999) (per curiam order)?

              (3) Does the receipt signed by the OGC employee constitute misleading
       conduct, and does it constitute affirmative misrepresentation such as in Bailey,
       supra?

                (4) Do the actions of the USPS in this case comply with applicable law and
       regulation governing the delivery of mail (please provide copies of any authorities
       cited that are not published in the U.S. Code or the Code of Federal Regulations)?
       If not, would those USPS actions warrant the application of the doctrine against the
       USPS were it a party?

              (5) If so, can the doctrine be applied against VA based on the action of
       another governmental entity, here the USPS, cf. 28 U.S.C. § 2680(b)?

       On consideration of the foregoing, it is

        ORDERED that, not later than 15 days after the date of this order, the Secretary file and serve
on the appellant, a clarification (with supporting affidavits) of his July 26, 1999, response so as to
answer the following questions: (a) Was the appellant's July 1998 letter ever delivered to any VA-
occupied building within the 20420 zip code; (b) if so, what chain of events transpired by which that


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letter was received at OGC Group VII at 625 Indiana Avenue, NW; (c) what information pertinent
to this matter can be provided by the other "Group VII employee . . . who customarily delivers to the
Court any mail that is misdelivered to Group VII" (Secretary's July 26, 1998, Resp., Declaration of
Perterie A. Thompson, page 2 (point 5)) (please provide an appropriate affidavit from that
employee); and (d) what are VA's regular policies and practices regarding the handling of mail,
including return-receipt mail and mail not addressed to but delivered to VA, and to what extent were
they followed in this case? It is further

        ORDERED that, not later than 30 days after the date of service of the clarifications ordered
above, the appellant file, and serve on the Secretary, a supplemental memorandum addressing all of
the above questions and also incorporating any response that he chooses to make to the Secretary's
motion. It is further

        ORDERED that, not later than 15 days after service of the appellant's supplemental
memorandum, the Secretary file, and serve on the appellant, a supplemental memorandum
addressing the above questions and responding to the appellant's supplemental memorandum. It is
further

        ORDERED that oral argument will be scheduled at the convenience of the parties after
supplemental briefing is completed. The Court notes that it intends to grant no extension of time to
either party to comply with this order.

DATED:         February 2, 2000                               PER CURIAM.




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