Leonard v. West

Veterans Claims

Leonard v. West

12 Vet. App. 554, 1999 U.S. Vet. App. LEXIS 981, 1999 WL 709682

CourtUnited States Court of Appeals for Veterans Claims

DecidedSeptember 10, 1999

DocketNo. 97-1332

StatusPublished

Cited by19 cases

This text of 12 Vet. App. 554 (Leonard v. West) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Leonard v. West, 12 Vet. App. 554, 1999 U.S. Vet. App. LEXIS 981, 1999 WL 709682 (Cal. 1999).

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ORDER

PER CURIAM:

Pursuant to Court order, the parties have filed additional pleadings relating to the exercise of this Court’s jurisdiction in this case. It is undisputed that the appellant’s Notice of Appeal (NOA) was received by the Court 121 days after the Board of Veterans’ Appeals (Board) decision on appeal. The sole issue is [555]*555whether the appellant is entitled to equitable tolling.

The ultimate burden of establishing jurisdiction rests with the appellant. See McNutt v. G.M.A.C., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Bethea v. Derwinski 2 Vet.App. 252 (1992). 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 the BVA decision is mailed to an appellant. Pub.L. No. 103-446, § 511 (1994). 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 Industries Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988). The appellant was fully advised of her appellate rights in accordance with 38 U.S.C. § 5104. See Cummings v. West, 136 F.3d 1468, 1470 (Fed.Cir.1998), cert. denied, — U.S. -, 118 S.Ct. 2373, 141 L.Ed.2d 740 (1998). There is otherwise nothing in this appeal to suggest that tolling of the 120-day appeal period would be appropriate. Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990); see Bailey v. West, 160 F.3d 1360 (Fed.Cir.1998).

The appellant essentially argues two grounds for equitable tolling here. First, circumstances beyond her control prevented her from filing a timely NOA, to wit: there was more than a three-month delay by a service-organization representative in responding to her request for assistance, and when he did so, there were only 12 days remaining to file an appeal. Although the appellant tried to mail an informal NOA on the 120th day, she could not do so because she found that the nearest post office had closed at least 5 minutes early. Thus, she had to wait until the next day to mail her NOA. Second, she has limited education and experience, and thus did not understand, from the instructions provided by the Board, how to count the 120-day period for filing a NOA.

This case amounts to “at best a garden variety claim of excusable neglect” to which the principles of equitable tolling do not extend. Bailey, at 1365; see also Irwin, supra (equitable relief is extended sparingly, where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where he has been induced or tricked by his adversary’s misconduct, but not generally where the claimant has failed to exercise due diligence in preserving his legal rights).

On consideration of the foregoing, it is

ORDERED that this appeal is DISMISSED for lack of jurisdiction.

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ORDER

PER CURIAM:

Pursuant to Court order, the parties have filed additional pleadings relating to the exercise of this Court’s jurisdiction in this case. It is undisputed that the appellant’s Notice of Appeal (NOA) was received by the Court 121 days after the Board of Veterans’ Appeals (Board) decision on appeal. The sole issue is [555]*555whether the appellant is entitled to equitable tolling.

The ultimate burden of establishing jurisdiction rests with the appellant. See McNutt v. G.M.A.C., 298 U.S. 178, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Bethea v. Derwinski 2 Vet.App. 252 (1992). 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 the BVA decision is mailed to an appellant. Pub.L. No. 103-446, § 511 (1994). 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 Industries Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988). The appellant was fully advised of her appellate rights in accordance with 38 U.S.C. § 5104. See Cummings v. West, 136 F.3d 1468, 1470 (Fed.Cir.1998), cert. denied, — U.S. -, 118 S.Ct. 2373, 141 L.Ed.2d 740 (1998). There is otherwise nothing in this appeal to suggest that tolling of the 120-day appeal period would be appropriate. Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990); see Bailey v. West, 160 F.3d 1360 (Fed.Cir.1998).

The appellant essentially argues two grounds for equitable tolling here. First, circumstances beyond her control prevented her from filing a timely NOA, to wit: there was more than a three-month delay by a service-organization representative in responding to her request for assistance, and when he did so, there were only 12 days remaining to file an appeal. Although the appellant tried to mail an informal NOA on the 120th day, she could not do so because she found that the nearest post office had closed at least 5 minutes early. Thus, she had to wait until the next day to mail her NOA. Second, she has limited education and experience, and thus did not understand, from the instructions provided by the Board, how to count the 120-day period for filing a NOA.

This case amounts to “at best a garden variety claim of excusable neglect” to which the principles of equitable tolling do not extend. Bailey, at 1365; see also Irwin, supra (equitable relief is extended sparingly, where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where he has been induced or tricked by his adversary’s misconduct, but not generally where the claimant has failed to exercise due diligence in preserving his legal rights).

On consideration of the foregoing, it is

ORDERED that this appeal is DISMISSED for lack of jurisdiction.

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12 Vet. App. 554, 1999 U.S. Vet. App. LEXIS 981, 1999 WL 709682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leonard-v-west-cavc-1999.

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