[00:00:00] Speaker 01:
taken under submission, and we thank both counsel for their argument.

[00:00:03] Speaker 01:
The final case for today, or not final, I guess we have two more.

[00:00:06] Speaker 01:
Our next case for today is 2017-1049 Sterling v. Shulkin.

[00:00:30] Speaker 04:
Please proceed.

[00:00:51] Speaker 04:
Yes ma'am.

[00:00:53] Speaker 04:
May it please the court?

[00:00:56] Speaker 04:
We're here today on an appeal from a

[00:01:00] Speaker 04:
dismissal from the Court of Appeals for Veterans Claims.

[00:01:04] Speaker 04:
This is a relatively straightforward issue.

[00:01:08] Speaker 04:
Under 7292A, this court has jurisdiction to review decisions de novo by the Court of Appeals of Veterans Claims concerning the challenge to an interpretation of a statute, regulation, or rule.

[00:01:23] Speaker 04:
And under case law that we cited from this court

[00:01:28] Speaker 04:
the court does have the authority to review whether or not the Court of Appeals of Veterans claims airs a matter of law in using an improper legal standard in dismissing an appeal.

[00:01:38] Speaker 04:
In this case, what we're talking about is the presumption of regularity.

[00:01:46] Speaker 04:
And just a brief review of the facts is on September 22, 2015, the veteran, which is the veteran's widow, received

[00:01:59] Speaker 04:
received an unfavorable board decision issued on September 22, 2015 and mailed out on that day.

[00:02:09] Speaker 04:
The mail was returned as undeliverable.

[00:02:12] Speaker 04:
She contacted the board, I believe sometime in November 2015, and they informed her that the mail was returned as undeliverable, and she gave an updated address for which she received.

[00:02:29] Speaker 04:
She filed an appeal, I think, 121 days after the original decision of September 22, 2015.

[00:02:40] Speaker 04:
The CAVC issued a rule to show cause as to why the appeal should not be dismissed as untimely.

[00:02:51] Speaker 04:
They dismissed the appeal as untimely, and they relied on

[00:02:56] Speaker 04:
on prior precedent wherein they established that a two-pronged test must be met.

[00:03:03] Speaker 04:
First of all, the appellant must first establish that the mailing was returned as undeliverable.

[00:03:08] Speaker 04:
And the CAVC stated that she met the first prong.

[00:03:13] Speaker 04:
Then they added in the second prong, which is that other possible and plausible addresses available to the secretary was at the time of the board's decision.

[00:03:26] Speaker 04:
They argued that the second problem was not met, and so then therefore they dismissed the appeal as untimely.

[00:03:32] Speaker 01:
But you've asked for a rule of law that just says, if it's clear the veteran didn't receive it, then the clock shouldn't start ticking, right?

[00:03:43] Speaker 04:
Essentially, yes, ma'am.

[00:03:44] Speaker 01:
Yes, ma'am.

[00:03:44] Speaker 01:
But see, the problem with that is, doesn't the veteran have some obligation to update their own address

[00:03:55] Speaker 01:
with the VA in this process.

[00:03:57] Speaker 01:
What if the veteran never updates, it moves, then years later comes back.

[00:04:01] Speaker 01:
It gets undelivered.

[00:04:02] Speaker 01:
Years later comes back.

[00:04:04] Speaker 01:
Should that claim have remained pending the whole time?

[00:04:06] Speaker 01:
I understand your client was diligent.

[00:04:08] Speaker 01:
This has nothing to do with your client.

[00:04:09] Speaker 01:
This has to do with me being concerned that you're asking for a rule of law that would, apart from the sympathetic facts of your case, not work in many, many, many other cases.

[00:04:23] Speaker 04:
I'm not sure how often from a practical sense that that happens because most veterans, at least the ones that I deal with, usually are pretty up to date with their claims.

[00:04:44] Speaker 03:
I mean, isn't the problem

[00:04:46] Speaker 03:
You're essentially asking us to read the time for notice of appeal as running from receipt.

[00:04:53] Speaker 03:
And there are time for appeal periods out there that run from receipt.

[00:04:57] Speaker 03:
But this one doesn't.

[00:04:58] Speaker 03:
7266 says it runs from the date it's mailed, pursuant to some other statute which says the VA mails it promptly to the last known address.

[00:05:11] Speaker 03:
So if the time runs from mailing,

[00:05:15] Speaker 03:
to the last known address, then that was met here, wasn't it?

[00:05:19] Speaker 04:
Are you talking about if the time was from the time it was mailed the first time or the time it was mailed?

[00:05:25] Speaker 03:
Well, it doesn't matter which one.

[00:05:26] Speaker 03:
The statute that runs the time of appeal says that the notice of appeal must be filed within 120 days after the date on which the notice of decision is mailed pursuant to section 7104.

[00:05:40] Speaker 03:
So the mailing date is what causes the time for appeal to run, right?

[00:05:46] Speaker 04:
That's correct.

[00:05:47] Speaker 03:
That's correct.

[00:05:48] Speaker 03:
And 7104 requires the board to mail a copy of the decision to the last known address.

[00:05:54] Speaker 03:
That's correct.

[00:05:55] Speaker 03:
And so that's where you get the second requirement that they mail to the last known address.

[00:06:01] Speaker 03:
And if perhaps they didn't mail to all known addresses, then you may get a presumption that it wasn't the time should have run.

[00:06:10] Speaker 04:
Well, here you don't have that.

[00:06:13] Speaker 04:
Well, my argument is that,

[00:06:17] Speaker 04:
And I understand your argument.

[00:06:21] Speaker 04:
I guess the point that I made in my brief is that the purpose of this presumption of regularity is to address the issue of whether or not a veteran received the mailing or not.

[00:06:37] Speaker 03:
But that's not true.

[00:06:38] Speaker 03:
Isn't the presumption of regularity

[00:06:41] Speaker 03:
It's not to show that the veteran received it because we apply it in cases where there's a question of whether the VA actually mailed it.

[00:06:52] Speaker 03:
Because that's the critical date for the time to appeal to run.

[00:06:55] Speaker 03:
Look, I have a lot of sympathy for your client.

[00:06:59] Speaker 03:
Even after not getting it and apparently having allegations of homelessness and the like, she still filed one day later.

[00:07:07] Speaker 03:
That's a different question.

[00:07:09] Speaker 03:
The statutory question of when the time for appeal runs and the presumption of regularity attaching to that is based upon the fact that VA mailed it to the last known address.

[00:07:20] Speaker 03:
And you're asking us to read out something that's not only kind of a common sense use of the presumption of regularity, but something in the statute.

[00:07:29] Speaker 04:
Well, I think that the way that I understand what the presumption of regularity is, is that

[00:07:37] Speaker 04:
is that it's used in situations where the veteran states, I didn't receive it.

[00:07:48] Speaker 04:
And what the court end up applies to say, OK, well, if the mail doesn't come back as undelivered, or if it was sent to the right address, we pretty much say, well, we

[00:08:06] Speaker 03:
that you actually received it.

[00:08:07] Speaker 03:
But it was sent to the right address.

[00:08:09] Speaker 03:
It was sent to the only address on file.

[00:08:13] Speaker 03:
That is correct.

[00:08:14] Speaker 03:
That is correct.

[00:08:14] Speaker 01:
Can I ask you about the facts?

[00:08:16] Speaker 01:
So it was September 22nd when the board decision was sent to the address on file and it came back to the board as undeliverable.

[00:08:23] Speaker 01:
That's correct.

[00:08:25] Speaker 01:
And then in this case, Mrs. Sterling called the VA inquiring about the status of her case in October.

[00:08:34] Speaker 01:
I don't remember the precise date.

[00:08:36] Speaker 04:
Do you?

[00:08:36] Speaker 04:
I'm not exactly sure of the precise date.

[00:08:39] Speaker 01:
But then the weird thing is, I'm kind of wondering what she was told in October.

[00:08:43] Speaker 01:
The record doesn't explain it to me, but the reason I ask is she called in October, probably roughly a month after the case was actually resolved.

[00:08:54] Speaker 01:
And I'm just dying to know what she was told.

[00:08:56] Speaker 01:
Was she told it was resolved?

[00:08:58] Speaker 01:
The reason I ask is because then they didn't send, she called back in, I guess, in November.

[00:09:03] Speaker 01:
And at that time, updated her address.

[00:09:06] Speaker 01:
And they sent, at that time, a copy of the September decision to the address that she gave them when she updated it in November.

[00:09:15] Speaker 01:
And I guess I'm just sort of curious why it couldn't have been mailed to her in October, why she wasn't told about the decision on the phone.

[00:09:24] Speaker 01:
What happened in October?

[00:09:26] Speaker 01:
She called.

[00:09:26] Speaker 01:
There's no question.

[00:09:27] Speaker 01:
She called on this record to inquire what was going on with her case.

[00:09:30] Speaker 01:
And it had already been decided.

[00:09:32] Speaker 01:
So at that point,

[00:09:33] Speaker 01:
Why did she then not get a copy of the decision until at least a month later?

[00:09:38] Speaker 04:
I do not know the answer to that question.

[00:09:40] Speaker 04:
And as far as I can tell that the record doesn't reflect an answer to my question.

[00:09:44] Speaker 04:
Does not reflect an answer.

[00:09:45] Speaker 04:
So that's the best answer that I can give.

[00:09:47] Speaker 02:
But that was her address.

[00:09:49] Speaker 02:
Even then, was it not?

[00:09:51] Speaker 02:
The Dixie address.

[00:09:53] Speaker 02:
I believe so.

[00:09:54] Speaker 02:
I believe so.

[00:09:55] Speaker 02:
That's what the record says.

[00:09:56] Speaker 02:
Yes.

[00:09:56] Speaker 02:
Yes.

[00:09:57] Speaker 02:
Yes.

[00:09:58] Speaker 02:
And they didn't send it there.

[00:09:59] Speaker 02:
They waited until another address.

[00:10:02] Speaker 04:
I believe so.

[00:10:03] Speaker 04:
I believe maybe she was going back and forth between two addresses as far as I can tell.

[00:10:11] Speaker 01:
Well, out of curiosity, I understand that she was pro se in the early stages of this process, but I am just beside myself that there isn't an equitable tolling argument here because I can't imagine a better case for it being required to have been granted.

[00:10:30] Speaker 01:
And yet, it doesn't seem to be an argument.

[00:10:32] Speaker 01:
The words aren't even in your brief.

[00:10:34] Speaker 04:
Well, I'm not quite sure.

[00:10:37] Speaker 04:
And this is a question that I did not know the answer to.

[00:10:41] Speaker 04:
I kind of read that I wasn't sure if the court would have jurisdiction to review a factual determination made by the Court of Appeals of Veterans Claims arguing that there was not equitable tolling.

[00:10:55] Speaker 04:
Now, I guess maybe the court could maybe say that if it's

[00:10:59] Speaker 04:
that it could be like an error as a matter of law whenever the facts are not in dispute, whenever the facts are not in dispute that they made an error as a matter of law in arguing as to why there shouldn't be equitable tolling.

[00:11:15] Speaker 04:
And clearly, the Supreme Court has stated that equitable tolling is available.

[00:11:20] Speaker 04:
But I had a little bit of concern about the jurisdictional question.

[00:11:25] Speaker 04:
And that's why I didn't brief it that way.

[00:11:27] Speaker 03:
Did you make that equitable tolling argument below?

[00:11:31] Speaker 03:
The Veterans Court decision notes that she alleged homelessness and the like, but she didn't allege that that was the basis for not being able to timely file and therefore it wouldn't reach equitable tolling.

[00:11:45] Speaker 04:
I think that the Court of Appeals of Veterans Claims

[00:11:48] Speaker 04:
did state that.

[00:11:50] Speaker 03:
Let me ask you this.

[00:11:51] Speaker 03:
The record is a little thin.

[00:11:54] Speaker 03:
She was pro se, then you represented her.

[00:11:57] Speaker 03:
Did you file any kind of brief to the Veterans Court?

[00:11:59] Speaker 04:
No.

[00:12:00] Speaker 04:
Well, in fact, I believe if I'm mistakenly corrected, I thought that she was pro se at first and she hired another counsel.

[00:12:08] Speaker 03:
Are you just here on appeal?

[00:12:10] Speaker 03:
I'm just here up to the federal circuit.

[00:12:11] Speaker 03:
Are you aware of any brief filed by counsel below one equitable twill link?

[00:12:18] Speaker 04:
I didn't notice, but the only reason why I say that is because when she come in to see me, she showed me a letter showing that she had previous counseling.

[00:12:28] Speaker 03:
Well, you presumably looked at the record.

[00:12:31] Speaker 03:
Was there a brief file at the Veterans Court on her behalf, arguing for accrual in full length?

[00:12:37] Speaker 04:
Yes, in fact, there was.

[00:12:40] Speaker 03:
But it's not in the materials you gave us.

[00:12:46] Speaker 04:
It is.

[00:12:47] Speaker 03:
I mean, you only gave us the decision.

[00:12:49] Speaker 03:
The government gave us some additional stuff.

[00:12:51] Speaker 03:
But do you remember what it argued?

[00:12:54] Speaker 03:
I mean, it's hard for us to piece this together when we don't even know what was argued to the Veterans Court.

[00:12:59] Speaker 04:
The Veterans Court, on its face.

[00:13:01] Speaker 04:
Yeah, but the argument that they made, essentially, was that equitable tolling.

[00:13:06] Speaker 04:
Equitable tolling because of the homelessness issue.

[00:13:12] Speaker 03:
That's exactly what the Veterans Court said they didn't make.

[00:13:17] Speaker 04:
So yeah, and it was my understanding whenever I looked at the brief that that was more of their argument.

[00:13:27] Speaker 04:
But I did not put that in there because I was concerned about whether or not this court would even have jurisdiction, because it's a review of a factual issue.

[00:13:37] Speaker 04:
And as we both know, the court has limited.

[00:13:41] Speaker 03:
You wouldn't be the first one to argue factual questions to us.

[00:13:44] Speaker 03:
It seems to me like you should have

[00:13:46] Speaker 03:
at least made some attempt to preserve that issue.

[00:13:50] Speaker 01:
Okay, well, we'll save the rest of your time for rebuttal.

[00:13:55] Speaker 02:
Let's hear from the government.

[00:14:09] Speaker 03:
given to the Veterans Court on this issue.

[00:14:11] Speaker 03:
I mean, you gave us some additional materials.

[00:14:13] Speaker 03:
And I'm not faulting you for not giving us everything.

[00:14:15] Speaker 03:
But you gave us her handwritten notice of appeal, which if that was all we had, I think I would send this back and say the Veterans Court didn't properly consider this.

[00:14:26] Speaker 03:
But clearly, at some point, there was some argument about an equitable tolling because the Veterans Court suggested that it wasn't going to reach it because insufficient arguments had been made.

[00:14:36] Speaker 00:
Your Honor, I don't have it in front of me, but I am familiar

[00:14:39] Speaker 00:
to some degree, there was a revised brief that the Veterans Court permitted Ms.

[00:14:44] Speaker 00:
Sterling to file once she did have an attorney.

[00:14:46] Speaker 00:
And this was after the VA had filed its preliminary file.

[00:14:50] Speaker 03:
And what was in that brief?

[00:14:53] Speaker 03:
Was it this argument that we have before us today?

[00:14:55] Speaker 03:
Was it an equitable target argument, or was it both?

[00:14:59] Speaker 00:
It didn't entirely specify Iran.

[00:15:01] Speaker 00:
It was a very short, I believe, about three pages that also included a declaration, attached a declaration from Ms.

[00:15:07] Speaker 00:
Sterling.

[00:15:09] Speaker 00:
It didn't say either we think this court should find that the presumption had been rebutted or that this court should find equitable tolling.

[00:15:17] Speaker 00:
It basically explained her circumstances, explained that she had been homeless for on and off during the previous years, also explained that she was living at that Dixie Drive address in September of 2015.

[00:15:28] Speaker 03:
Which is where the notice was mailed the first time.

[00:15:31] Speaker 00:
Which is where the notice was mailed.

[00:15:34] Speaker 01:
So wait.

[00:15:36] Speaker 01:
What I don't understand is the record

[00:15:39] Speaker 01:
It doesn't seem to be disputed that she then called in in October, OK?

[00:15:43] Speaker 01:
Yes.

[00:15:44] Speaker 01:
If the address of record, the VA knew she didn't get the September thing.

[00:15:50] Speaker 01:
It came back.

[00:15:50] Speaker 00:
Yes, Your Honor.

[00:15:51] Speaker 01:
And she's calling in in October asking diligently, where is it?

[00:15:54] Speaker 01:
Why didn't you re-mail it to the Dixie address at that time?

[00:15:57] Speaker 00:
Your Honor, the record suggests.

[00:15:58] Speaker 00:
Isn't that your obligation?

[00:15:59] Speaker 01:
It came back.

[00:16:00] Speaker 01:
You knew she didn't get it.

[00:16:02] Speaker 00:
My apologies, Your Honor.

[00:16:02] Speaker 00:
The record suggests that the VA did, in fact, re-mail it to the Dixie Drive address when she contacted in October.

[00:16:09] Speaker 00:
And what happened to it?

[00:16:11] Speaker 00:
It's unclear.

[00:16:12] Speaker 00:
Ms.

[00:16:12] Speaker 00:
Sterling, I believe, has asserted that she did not receive it, but it was never returned.

[00:16:17] Speaker 00:
There's no record of it being returned.

[00:16:19] Speaker 01:
Okay, so the VA did, after she called in, the VA did mail another copy to that same address.

[00:16:25] Speaker 00:
Yes, Your Honor, and so there's a record of her call, the intake of the VA of her call at our supplemental appendix, page 73, and then the cover letter that was sent back out with

[00:16:36] Speaker 00:
the October re-mailing of the September decision, which is at the supplemental appendix, page 75.

[00:16:44] Speaker 01:
And so then she called in in November, and she must have again asserted, I have not yet received this opinion, and updated her address, because then the VA sent it to the new address?

[00:16:54] Speaker 01:
Yes, Your Honor.

[00:16:56] Speaker 01:
So just out of curiosity, she was pro se.

[00:17:00] Speaker 01:
Yes.

[00:17:00] Speaker 01:
And when you have pro se veterans, aren't you supposed to interpret the pleading as

[00:17:07] Speaker 01:
raising every claim or give them sort of every benefit.

[00:17:11] Speaker 01:
Why didn't you interpret her pleading as one of equitable tolling?

[00:17:17] Speaker 00:
Well, Your Honor, it seems that the Veterans Court, to some extent at least, did.

[00:17:20] Speaker 00:
They addressed the question of equitable tolling.

[00:17:24] Speaker 00:
The problem that they had, both based on her initial brief and on her revised brief, was that there was no claim that the only potential ground for equitable tolling, the only extraordinary circumstance that they could have

[00:17:37] Speaker 00:
pieced out of her briefs was this allegation of homelessness.

[00:17:42] Speaker 00:
And there was no indication in either of her briefs that the homelessness contributed in any way to her failure, to her inability to file.

[00:17:51] Speaker 03:
She was pro se for most of this.

[00:17:54] Speaker 03:
For part of it, yes.

[00:17:55] Speaker 03:
And so there's certainly representations

[00:17:58] Speaker 03:
that she was diligent by calling the office, calling with a new address and the like.

[00:18:03] Speaker 03:
There are also allegations that she was homeless during parts of this time.

[00:18:08] Speaker 03:
Is it really her obligation to say on the record, the reason I didn't receive this was because I was homeless and therefore you should equitably toll?

[00:18:16] Speaker 03:
I mean, in these circumstances, isn't it the Veterans Court's obligation, particularly when it's one day, to look at this sympathetically and realize

[00:18:24] Speaker 03:
It meets all of the elements for equitable tolling.

[00:18:27] Speaker 03:
She acted diligently.

[00:18:28] Speaker 03:
There were certainly delays in receiving this that may have been somewhat her fault in updating, but she still was diligent.

[00:18:37] Speaker 03:
I mean, it's really one day.

[00:18:39] Speaker 03:
I mean, this is almost unconscionable that the Veterans Court didn't accept this notice of appeal.

[00:18:45] Speaker 00:
It is one day, Your Honor.

[00:18:47] Speaker 00:
And that does cut both ways.

[00:18:48] Speaker 00:
But the problem with the equitable tolling argument was one of the elements is causation.

[00:18:53] Speaker 00:
And she actually filed a declaration saying that she lived at that address that the VA initially mailed the decision to during that time period, during September of 2015.

[00:19:04] Speaker 03:
No, I get it.

[00:19:06] Speaker 03:
This is not about the statutory argument.

[00:19:08] Speaker 03:
But it seems to me that if that's the case and the VA follows the statute, then your argument is going to be that there's almost never equitable tolling.

[00:19:18] Speaker 03:
I mean, I can't think of a clear case for equitable tolling and somebody coming in and saying,

[00:19:23] Speaker 03:
You may have complied with the statute.

[00:19:25] Speaker 03:
This may have been my address.

[00:19:26] Speaker 03:
I may have been living there, but I was, I mean, it seems to me like she was shuttling back and forth between various relatives' houses.

[00:19:33] Speaker 03:
That's what I gather from the record.

[00:19:35] Speaker 03:
I didn't receive it.

[00:19:36] Speaker 03:
I called.

[00:19:37] Speaker 03:
I still didn't receive it.

[00:19:38] Speaker 03:
I called again or gave a new address.

[00:19:40] Speaker 03:
Finally, I received it.

[00:19:42] Speaker 03:
And then filed.

[00:19:43] Speaker 01:
And then acted promptly.

[00:19:45] Speaker 03:
Yeah.

[00:19:46] Speaker 03:
I mean, if this is in a ground for equitable tolling in the Veterans Court, then what possible grounds are there?

[00:19:54] Speaker 00:
Well, you're out of the quintessential case of homelessness.

[00:19:58] Speaker 00:
And again, the Veterans Court does need to find an extraordinary circumstance.

[00:20:02] Speaker 00:
That is the requirement for equitable tolling.

[00:20:06] Speaker 00:
And in that, the ideal or quintessential case involving homelessness is where there was no address at which the veteran could have received, the claimant could have received the decision at the time.

[00:20:21] Speaker 00:
And in this case, the facts

[00:20:24] Speaker 00:
that are undisputed that are in fact put forth by the claimant.

[00:20:27] Speaker 03:
Well, that may be an essential one, but if you have somebody that is not regularly housed and they're shuttling back and forth between various places to live and they do their best to try to update addresses, even if it was mailed to this address, if this wasn't her house or if she wasn't living there regularly, if there were other people and they threw out the mail, how is that her fault?

[00:20:48] Speaker 03:
I mean, as long as she's acted diligently and showed that the reason that she didn't get this was she wasn't in a regular residence throughout this period, and then that when she finally did receive it, she acted diligently, then I just don't understand how any reasonable fact finder could determine that this isn't grounds for equitable tolling.

[00:21:13] Speaker 00:
Your Honor, the Veterans Court in this case determined that she was not in fact homeless as of

[00:21:19] Speaker 00:
the relevant time period in this case.

[00:21:21] Speaker 01:
No, not the relevant time period.

[00:21:22] Speaker 01:
They said in September of 2015.

[00:21:24] Speaker 01:
Yes, Your Honor.

[00:21:25] Speaker 01:
She doesn't assert she was homeless then.

[00:21:26] Speaker 01:
Correct.

[00:21:27] Speaker 01:
But we know she didn't receive it because it went back.

[00:21:29] Speaker 00:
Yes, Your Honor.

[00:21:30] Speaker 01:
So what if she was homeless from October on to November?

[00:21:34] Speaker 01:
It says that she was homeless for several years, and it doesn't say none of the times when she was homeless was any of the relevant time period.

[00:21:43] Speaker 01:
The Veterans Court doesn't make those findings.

[00:21:45] Speaker 00:
It does not make those findings, Your Honor.

[00:21:48] Speaker 00:
There is no connection.

[00:21:50] Speaker 00:
She again, she confirmed this mailing address when she called in October.

[00:21:56] Speaker 00:
And to the court asking it to resend this decision, which it did, there is no showing in the record that that could not be delivered or that she no longer lived there at that point.

[00:22:08] Speaker 00:
And to the extent that the Veterans Court applied these facts to the equitable tolling

[00:22:17] Speaker 00:
standards.

[00:22:21] Speaker 00:
It did so correctly.

[00:22:27] Speaker 03:
Well, I'm not sure it did it correctly, but I assume your argument would be that it's a factual determination that we can't review.

[00:22:33] Speaker 00:
Or an application thereof, yes, Your Honor.

[00:22:36] Speaker 03:
It certainly doesn't seem correct to me.

[00:22:38] Speaker 00:
And as Your Honor pointed out earlier, the equitable tolling argument

[00:22:44] Speaker 00:
Well, again, the second brief is not in the record before the brief of Mr. Lincoln.

[00:22:51] Speaker 03:
Can I just direct you?

[00:22:52] Speaker 03:
I mean, I'm sure you're familiar with the Veterans Court's decision, because it's very short.

[00:22:57] Speaker 03:
But the last sentence is, under these circumstances, the court concludes that it need not consider whether or not the ruling is warranted.

[00:23:06] Speaker 03:
Isn't that different than it considered it and determined it not to be available?

[00:23:12] Speaker 00:
Your Honor, that line is, I admit, a bit unclear, but it does explain that it recognizes that homelessness can be that extraordinary circumstance, but it does apply the causation requirement to that, to Ms.

[00:23:29] Speaker 00:
Sterling's situation in saying that she doesn't assert that she was homeless during September of 2015, nor does she allege that her homelessness caused the untimely filing of her notice of appeal.

[00:23:42] Speaker 03:
So you would have us infer from that that the court did consider equitable tolling and decided it wouldn't equitably toll even though it said it need not consider whether it's warranted?

[00:23:53] Speaker 00:
It's just fuzzy language.

[00:23:55] Speaker 00:
I understand.

[00:23:56] Speaker 00:
That is certainly fuzzy language.

[00:23:57] Speaker 00:
I think this is also somewhat indicative of the fact that the court is bringing up this equitable tolling question.

[00:24:06] Speaker 00:
Sort of on its own.

[00:24:07] Speaker 00:
There wasn't.

[00:24:08] Speaker 03:
Well, that's another problem for me.

[00:24:09] Speaker 03:
We don't have in the record that filing from her counsel to determine whether he made that argument or not, or she made that argument.

[00:24:18] Speaker 03:
I don't know who it was.

[00:24:20] Speaker 03:
Have you read that filing?

[00:24:21] Speaker 01:
I have.

[00:24:22] Speaker 03:
And we were talking about this before.

[00:24:24] Speaker 03:
Never mind.

[00:24:25] Speaker 03:
I don't need to rehash that.

[00:24:27] Speaker 02:
But you said you didn't remember that it was in there.

[00:24:30] Speaker 00:
I am confident that the filing did not use the phrase as either presumption of regularity or equitable tolling.

[00:24:43] Speaker 00:
It simply explained her circumstances and said that under these circumstances the court should find that this notice of appeal was timely filed.

[00:24:52] Speaker 02:
I'm just wondering if there was no mention of it in the briefing why the court would feel compelled to say therefore we're not going to consider it.

[00:24:59] Speaker 02:
Otherwise, if it wasn't brought up, he wouldn't have mentioned it, I wouldn't think.

[00:25:05] Speaker 00:
We can certainly only speculate, Your Honor.

[00:25:08] Speaker 00:
Well, again, my speculation would be that it would be because she brought up this allegation of homelessness.

[00:25:13] Speaker 02:
Do you think that the fact that the Postal Service did not deliver the mail when it could have, could rise to an extraordinary circumstance?

[00:25:26] Speaker 00:
There may be a situation where that could be true, Your Honor.

[00:25:29] Speaker 02:
Two government agencies, I mean, you give it to one that doesn't do its job, and you say, I've done my part.

[00:25:37] Speaker 00:
Your Honor, there may be such a situation.

[00:25:40] Speaker 00:
In this case, the Postal Service's notice said, and again, I don't believe a copy of this is in the record, but the undeliverable notice said unable to forward.

[00:25:51] Speaker 00:
It's unclear why.

[00:25:55] Speaker 02:
Right.

[00:25:56] Speaker 02:
And she was there.

[00:25:57] Speaker 00:
Yes, according to Mr. Erling, she was there.

[00:26:00] Speaker 00:
And Your Honor, we certainly recognize that this hopefully is an extraordinary

[00:26:08] Speaker 03:
I think you just selected the wrong choice of words.

[00:26:11] Speaker 00:
I think I did, Your Honor.

[00:26:12] Speaker 03:
It's pretty extraordinary.

[00:26:14] Speaker 00:
I recognize that the second it came out of my mouth.

[00:26:16] Speaker 00:
But what I meant to say is hopefully an unlikely occurrence in the event that Ms.

[00:26:22] Speaker 00:
Sterling was, in fact, at that address.

[00:26:23] Speaker 00:
There are probably numerous reasons why the Postal Service was unable to or could be unable to.

[00:26:29] Speaker 03:
I mean, I'm baffled.

[00:26:30] Speaker 03:
And maybe she just didn't ask for it.

[00:26:32] Speaker 03:
But if she had counsel that it specifically

[00:26:37] Speaker 03:
set out all these factors and said, it's only one day.

[00:26:41] Speaker 03:
I should get equitable tolling and assess your limitations.

[00:26:46] Speaker 03:
Would the secretary have opposed that?

[00:26:50] Speaker 00:
Again, Your Honor, if she could have explained how the fact of her homelessness caused her to be unable to file.

[00:27:02] Speaker 03:
How much does she have to explain?

[00:27:04] Speaker 03:
I don't want to beat you up too much over this.

[00:27:07] Speaker 03:
She was pro se at the LTCH.

[00:27:08] Speaker 03:
She got counsel.

[00:27:10] Speaker 03:
There are all these allegations.

[00:27:11] Speaker 03:
I mean, how specific does she have to say, this is what led me to file a day late?

[00:27:19] Speaker 00:
Well, Frankie LaRona, I think she has to say that.

[00:27:22] Speaker 00:
And I think the problem, again, and I don't want to rehash this too many times, but the problem the Veterans Court has is they made a finding that she was not homeless.

[00:27:31] Speaker 00:
when this decision was mailed out and when it should have arrived at her correct address and that she confirmed both subsequently during the Veterans Court's procedures and then in October of 2015 that she was living at that address and that was the correct address that the Board was using.

[00:27:55] Speaker 00:
Unless there are any further questions.

[00:27:57] Speaker 03:
Thank you, Your Honor.

[00:28:01] Speaker 03:
We would simply ask that the Veterans Court's decision be affirmed.

[00:28:16] Speaker 04:
Do Your Honors ever have any more questions for me?

[00:28:19] Speaker 03:
No.

[00:28:24] Speaker 04:
The court has raised some issues about whether or not there should be equitable tolling or not, especially considering the circumstances.

[00:28:37] Speaker 01:
OK.

[00:28:38] Speaker 01:
We thank both counsel for their argument.

[00:28:40] Speaker 01:
The case is taken.