           UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


NO . 01-2028

JOHN MAPU , JR.,                                               APPELLANT ,

    v.

ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS,                                 APPELLEE.


            Before KRAMER, Chief Judge, and STEINBERG and GREENE, Judges.

                                             ORDER

           On June 13, 2002, the Court, in a single-judge order, dismissed this appeal for lack of
jurisdiction because the appellant had not filed a Notice of Appeal (NOA) within the 120-day
judicial-appeal period. See Mapu v. Principi, No.01-2028, 2002 WL 1926515 (Vet. App. June 13,
2002) (attached as appendix for explanatory purposes). On July 2, 2002, the appellant, through
counsel, filed a motion for a panel decision.

           In his motion for a panel decision, the appellant argues that his NOA, received via FedEx
(formerly known as Federal Express), should be deemed timely because the Court was "'inaccessible'
due to an act of war which had disabled the [United States Postal Service (USPS)] and inhibited the
normal delivery of mail in the United States," and states that the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) has deemed itself inaccessible due to USPS mail disruption.
Appellant's July 2, 2002, Opposed Motion for Panel Consideration at 1-2. The Court notes that Rule
26(a)(3) of the Federal Rules of Appellate Procedure provides the Federal Circuit with the authority
to deem its clerk's office inaccessible, whereas this Court's Rules of Practice and Procedure (Rules)
provide no such authority. Compare FED . R. APP . P. 26(a)(3) (excluding from filing period day "on
which the weather or other conditions make the clerk's office inaccessible"), with U.S. VET . APP . R.
26(a)(1) (addressing computing time periods set by Court's rules, but containing no such exclusion).


            Moreover, controlling caselaw limits the application of equitable tolling to cases where
VA conduct caused the late filing–a situation not presented here. See Bailey v. West, 160 F.3d 1360,
1365 (Fed. Cir. 1998) (en banc) (holding equitable tolling principles applicable where VA's conduct
misled claimant into "allowing the filing deadline to pass"); Smith (William) v. West, 13 Vet.App.
525, 528-29 (2000); Evans v. West, 12 Vet.App. 396, 399 (1999). Furthermore, under 38 U.S.C.
§ 7266(c)(2) and (d), and Rule 4(a)(1) of the Court's Rules, when an NOA is mailed via the USPS,
it does not need to be received by the last day of the judicial-appeal period in order to be considered
timely filed; rather, the NOA will be deemed timely if the envelope in which it was mailed bears a
USPS postmark dated on or before the last day of the judicial-appeal period. 38 U.S.C. § 7266(c)(2),
(d); U.S. VET . APP . R. 4(a)(1). Given that the Court's Rules do not provide for deeming the Court
"inaccessible", that the appellant did not send his NOA via USPS, and that his NOA was not
received within the 120-day judicial-appeal period, there exists no basis for finding it timely. See
38 U.S.C. § 7266(c)(2), (d); Bailey, Smith (William), and Evans, all supra; U.S. VET . APP . R. 4(a)(1),
26(a)(1). Accordingly, the Court will deny his motion for a panel decision. The Court notes that if
the USPS is, in certain locations, contracting out functions, such as the delivery of overnight mail,
the U.S. Congress may wish to consider whether modifications to section 7266 are warranted in
order to maintain the purpose sought by the postmark provision in that section.

           Upon consideration of the foregoing, it is

           ORDERED that the appellant's motion for a panel decision is DENIED.

DATED:      September 13, 2002                                 PER CURIAM.



                                             APPENDIX

                             Designated for electronic publication only

           UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


                                             NO . 01-2028

                                    JOHN MAPU , JR., APPELLANT ,

                                                  V.


                                    ANTHONY J. PRINCIPI,
                          SECRETARY OF VETERANS AFFAIRS, APPELLEE.


                                      Before GREENE, Judge.

                                             ORDER

                             Note: Pursuant to U.S. Vet. App. R. 30(a),
                             this action may not be cited as precedent.

           On November 29, 2001, Mr. John Mapu, Jr., filed, pro se, a Notice of Appeal (NOA) from
a July 31, 2001, Board of Veterans' Appeals (Board) decision. Mr. Mapu's NOA was delivered to


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the Court by Federal Express (FedEx) 121 days after the Board mailed its decision. The Secretary
later moved to dismiss the appeal for lack of jurisdiction, asserting that Mr. Mapu had filed an
untimely NOA. On February 25, 2002, Mr. Mapu filed, through counsel, an opposition to the
Secretary's motion to dismiss. He argues that the claims file contains no evidence that July 31, 2001,
is the date the Board's decision was mailed to both the appellant and his representative. Further, Mr.
Mapu argues that he complied with the law by delivering his NOA to FedEx on November 28, 2001.
He asserts that during the time he forwarded the NOA, the U.S. Postal Service (USPS) had
suspended overnight delivery to the Washington, D.C. area. Thus he was directed to use FedEx.


           This Court's jurisdiction derives exclusively from statutory grants of authority provided
by Congress and may not be extended beyond that permitted by law. See Christianson v. Colt Indus.
Operating Corp., 486 U.S. 800, 818 (1988). The ultimate burden of establishing jurisdiction rests
with the appellant. See McNutt v. G.M.A.C., 298 U.S. 178 (1936); Bethea v. Derwinski, 2 Vet.App.
252 (1992). In order to obtain review by this Court of a final Board decision, an appellant must file
a timely NOA. 38 U.S.C. § 7266(a). To be timely under Rule 4 of this Court's Rules of Practice and
Procedure and precedents construing 38 U.S.C. § 7266(a), an NOA must be filed with the Court
within 120 days after notice of the Board decision is mailed to an appellant.

            Mr. Mapu's appeal was processed in the normal course of business, a process that is
entitled to the presumption of administrative regularity in the absence of evidence to the contrary.
Clark v. Principi, 15 Vet.App. 61, 63 (2001); Davis v. Brown, 7 Vet.App. 298, 300 (1994); Ashley
v. Derwinski, 2 Vet.App. 307, 208-09 (1992). See also Morris v. Sullivan, 897 F.2d 553, 560
(D.C.Cir. 1990) (citing United States v. Chem. Found., 272 U.S. 1, 14-15 (1926), for proposition that
"presumption of regularity" supports official acts of public officers, and in absence of clear evidence
to contrary, courts presume that they have properly discharged their official duties). Although Mr.
Mapu maintains that the claims file contains no evidence that the Board decision was mailed on the
date that it was issued, in the absence of any evidence showing a mailing date other than the date
recorded on the decision, it is presumed that the Board decision was, in fact, mailed to both the
appellant and his representative on July 31, 2001. See Clark and Ashley, both supra. Mr. Mapu's
mere allegation is insufficient to rebut the presumption that copies of the Board decision were
properly mailed. See, e.g., Mindenhall v. Brown, 7 Vet.App. 271, 274 (1994) (holding that statement
of nonreceipt, standing alone, is not the type of "clear evidence to the contrary" sufficient to rebut
the presumption of regularity).

           In addition, as noted above, the NOA in this appeal was delivered to the Court via FedEx
on November 29, 2001. Rule 4 of the Court's Rules of Practice and Procedure states that an NOA
shall be deemed received (1) on the date of its legible postmark, affixed by the USPS, if the mailing
is properly addressed to the Court and is mailed; or (2) "on the date of its receipt by the Clerk, if it
does not bear a legible postmark affixed by the [USPS], or it is delivered or sent by a means other
than United States mail." U.S. Vet. App. R. 4(a)(2) (emphasis added). Because this NOA does not
bear a USPS postmark, Mr. Mapu is not entitled to the benefit of the postmark rule. Rather, his
NOA must be deemed received on the date it was actually received by the Court. Mr. Mapu's


                                                   3
argument that delivery by FedEx is the same as mailing by USPS for purposes of interpreting the
mailbox rule is contrary to both statute, see 38 U.S.C. § 7266(a)(3), and this Court's Rules.

           Because there is otherwise nothing in this appeal to suggest that tolling of the 120-day
appeal period is permissible, Irwin v. Dep't of Veterans Affairs, 498 U.S. 89 (1990); Bailey v. West,
160 F.3d 1360 (Fed. Cir. 1998), the Court concludes that Mr. Mapu has not met the burden of
demonstrating that an NOA was filed within 120 days after the date of mailing of notice of the Board
decision.

            On consideration of the foregoing, it is

            ORDERED that the Secretary's motion is granted and this appeal is DISMISSED for lack
of jurisdiction.


DATED: June 13, 2002

                                                              BY THE COURT:

                                                                   /s/
                                                              WILLIAM P. GREENE, JR.
                                                              Judge

COPIES TO:

(omitted)




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