[00:00:00] Speaker 01:
May it please the court.

[00:00:07] Speaker 01:
This case is about the statutory interpretation of 38 USC 7266A, which sets forth the 120-day period in which a notice of appeal must be filed to the Veterans Court.

[00:00:21] Speaker 02:
In denying... Is it about statutory interpretation?

[00:00:24] Speaker 02:
I thought it was about the Veterans Court

[00:00:27] Speaker 02:
misinterpretation of the equitable doctrine of equitable tolling.

[00:00:33] Speaker 01:
Right.

[00:00:34] Speaker 01:
And my understanding of this court's cases is that that flows from an interpretation of 7266.

[00:00:38] Speaker 02:
I'm a little confused by exactly what your argument here is.

[00:00:42] Speaker 02:
Is it that the Veterans Court erred in deciding that equitable tolling didn't apply to the particular facts of this case or that the Veterans Court is erred as a matter of law by foreclosing

[00:00:56] Speaker 02:
the entire category of facts of the type present here from equitable tolling.

[00:01:00] Speaker 01:
The latter, Your Honor.

[00:01:02] Speaker 01:
It's our contention that there was no fact-finding or application of a lot of fact.

[00:01:05] Speaker 02:
I think that... Let me ask you the converse question, then, is assuming... It seems to me that that's the better argument for you, that they've made a legal error by foreclosing the entire category.

[00:01:18] Speaker 02:
Do you think that in every instance where somebody puts a piece of mail in

[00:01:25] Speaker 02:
a mailbox that that is sufficient to warrant equitable tolling categorically, or is it still going to be a case-by-case determination?

[00:01:32] Speaker 01:
It would still be a case-by-case determination.

[00:01:34] Speaker 01:
The standard that we are proposing here is similar to standards that happen in other cases where there was a sort of mechanical problem.

[00:01:45] Speaker 01:
And it's very circumspect.

[00:01:46] Speaker 05:
Well, what interests me is it appears in this instance, based on

[00:01:53] Speaker 05:
or speculation and allegations of your client, that there's more than an allegation of a mechanical problem.

[00:02:02] Speaker 05:
It may be there's an allegation of a criminal problem.

[00:02:05] Speaker 05:
Interference with the United States' mails.

[00:02:09] Speaker 05:
And I'm not sure which road that takes us down, although it certainly takes us down your initial argument road of a legal error.

[00:02:22] Speaker 01:
It's true, Your Honor.

[00:02:23] Speaker 05:
We don't know whether the wind blew the flag down or someone specifically... As I recall, he said something about his neighbor told him, hearsay, that the children were playing with the mailboxes and may have lowered the flag.

[00:02:39] Speaker 05:
But the problem I have with that is if it's true, it's a crime.

[00:02:44] Speaker 01:
Right.

[00:02:44] Speaker 01:
And I don't want to overstate, Your Honor.

[00:02:47] Speaker 01:
It's true that that was said, but the fact is we don't know.

[00:02:50] Speaker 01:
We don't know.

[00:02:51] Speaker 01:
But what we do know is even the Veterans Court recognizes that it was a circumstance beyond Mr. James' control.

[00:02:57] Speaker 01:
Their specific rule that they impose here is we hold that an errantly fallen mailbox flag is not an extraordinary circumstance.

[00:03:06] Speaker 01:
That's a categorical exclusion.

[00:03:08] Speaker 01:
And even they recognize using the word errant.

[00:03:13] Speaker 05:
And that's where I have the problem, because it may not be errantly fallen.

[00:03:17] Speaker 01:
That's correct.

[00:03:18] Speaker 01:
But I think what that reflects is

[00:03:20] Speaker 01:
that that articulation by the Veterans Court is not a factual articulation.

[00:03:25] Speaker 01:
It's a categorical articulation.

[00:03:26] Speaker 02:
Well, it doesn't seem like they've made a particular determination that in this case, on these facts, equitable tolling is not warranted.

[00:03:34] Speaker 02:
They made a categorical determination that a fallen mailbox flag is not entitled to equitable tolling.

[00:03:41] Speaker 02:
And it seems like that's inconsistent with our prior precedent, which is to say

[00:03:49] Speaker 02:
you know, lightly encouraged them to not treat these as categorical claims to treat each particular instance on a fact-by-fact determination.

[00:03:59] Speaker 01:
That's exactly right, Your Honor.

[00:04:01] Speaker 01:
We can look at this court's prior cases as confirmation.

[00:04:04] Speaker 01:
For example, the Barrett case, the Veterans Court had before them a veteran who claimed that due to mental incapacity, he wasn't able to file his NOA on time.

[00:04:14] Speaker 01:
But rather than looking at the facts of his case, they categorically held

[00:04:17] Speaker 01:
mental incapacity is not an extraordinary circumstance.

[00:04:21] Speaker 01:
And that's the same thing they did here.

[00:04:23] Speaker 01:
This rule would apply to a veteran who put his NOA in his mailbox and had no idea whether it would be postmark stamp that day.

[00:04:33] Speaker 01:
Or it would apply to a veteran who put his NOA in his mailbox at 1159 PM and knew absolutely that it would not be postmark stamp that day.

[00:04:43] Speaker 01:
And it also dictates the outcome in this case

[00:04:47] Speaker 01:
under circumstances in which the veteran had, quote unquote, no doubt that it would be postmark stamped that same day.

[00:04:54] Speaker 01:
So yes, it's a categorical exclusion.

[00:04:57] Speaker 01:
It's also similar to the court's cases involving misfiling, which we tend to lump those cases in with this case because they don't involve mental incapacity or homelessness, other sorts of conditions.

[00:05:13] Speaker 01:
But the government in those cases argued

[00:05:16] Speaker 01:
Well, he sent it to the wrong place.

[00:05:18] Speaker 01:
There was more he could have done.

[00:05:20] Speaker 01:
This court found that the facts were wrong.

[00:05:22] Speaker 01:
Sure.

[00:05:22] Speaker 02:
Those cases seem, I mean, I understand where you're analogizing them.

[00:05:25] Speaker 02:
But to me, those cases don't seem all that helpful because they're mostly misfiling with different parts of the VA.

[00:05:32] Speaker 02:
And so the VA is getting official receipt of that.

[00:05:35] Speaker 02:
Whereas this, I don't think we can, beyond the specific

[00:05:40] Speaker 02:
outlines of the postmark rule in parts, I think CND or whatever, in the statute, we can attribute filing with the postal service as filing with the VA, just because it's a branch of the government.

[00:05:52] Speaker 02:
Congress is specified when the actual postmark rule would apply.

[00:05:57] Speaker 02:
So it seems to me, those cases may be somewhat analogous, but I wouldn't want to over-read them.

[00:06:04] Speaker 01:
Yeah, I agree that they're not identical, and that is a distinction.

[00:06:07] Speaker 01:
I think what's similar to those is in each case, the veteran believed that he or she had filed his NOA on time and took steps to preserve his rights, the touchstone that the Supreme Court set forth in Irwin.

[00:06:21] Speaker 01:
So I won't belabor those points.

[00:06:24] Speaker 01:
And the final thing I would say is that it's clear in this case that this court may determine the issue as a matter of law because the facts are undisputed

[00:06:35] Speaker 01:
and the correct interpretation of 7266A, in fact, does dictate the outcome in this case?

[00:06:42] Speaker 02:
I don't.

[00:06:43] Speaker 02:
Honestly, I don't quite understand it.

[00:06:45] Speaker 02:
That makes sense in those misfiling cases where we're basically deciding that if you file at the RO or file somewhere else in the VA, it's constructive receipt.

[00:06:56] Speaker 02:
That as a matter of law seems to be correct.

[00:06:59] Speaker 02:
But in a case like this where

[00:07:02] Speaker 02:
It's based upon particular facts.

[00:07:04] Speaker 02:
And I think you yourself said not every instance of a fallen mailbox flag is going to lead to equitable tolling isn't the proper result to remand to the Veterans Court to make these kind of application of law to facts in the first instance.

[00:07:23] Speaker 01:
Yeah, absolutely, Your Honor.

[00:07:24] Speaker 01:
And I don't mean to say that the mis-filing cases are identical.

[00:07:30] Speaker 01:
there is that distinction that Your Honor put forward.

[00:07:32] Speaker 01:
What is similar about them is that initially the Veterans Court made a categorical determination.

[00:07:38] Speaker 01:
They said, if you misfile, you're not entitled to equitable tolling.

[00:07:41] Speaker 01:
Whereas here, they made it also a similar categorical pronouncement.

[00:07:47] Speaker 01:
And what's similar between this case and the misfiling cases is the veteran thought that he had done everything he needed to do.

[00:07:53] Speaker 01:
It's unlike cases such as the cases of government sites where the veteran actually knew

[00:07:58] Speaker 01:
that the NOA wasn't going to be filed on time.

[00:08:01] Speaker 01:
So that's the distinction.

[00:08:02] Speaker 01:
And so when we formulated.

[00:08:07] Speaker 02:
Isn't that something that still, because they didn't make that conclusion, which is either a factual conclusion or an application of the general principles to the facts of this case, still something that should be left for the Veterans Court to decide in the first instance.

[00:08:23] Speaker 02:
I mean, your view is they haven't made the inquiry they should have.

[00:08:28] Speaker 02:
They've made an incorrect legal determination.

[00:08:31] Speaker 02:
So shouldn't it be remanded to them to do what really is their job to apply the law to the facts?

[00:08:36] Speaker 01:
I think in this case, because the facts are undisputed, it's not as if there's some... Well, I get it, but it still doesn't matter whether the facts are disputed or not.

[00:08:45] Speaker 02:
Our jurisdiction isn't just on factual finding, it's application of law to facts.

[00:08:51] Speaker 02:
I agree.

[00:08:51] Speaker 02:
And application of law to undisputed facts to reach a discretionary decision is still not within our jurisdiction.

[00:08:57] Speaker 01:
Understood, your honor.

[00:08:58] Speaker 01:
And if you look at the standard that we I mean, I'm with you.

[00:09:02] Speaker 02:
If this goes back to the Veterans Court, the Veterans Court should find equitable tolling here.

[00:09:07] Speaker 02:
It's pretty clear to me that they're applying an overly an incorrect legal standard and being overly stingy.

[00:09:15] Speaker 02:
But I think we usurp their authority and we go beyond our statutory jurisdiction if we make that finding for them in the first instance.

[00:09:26] Speaker 01:
I think we're on the same page, Your Honor.

[00:09:30] Speaker 01:
And I don't want to be labored.

[00:09:31] Speaker 01:
But I think there is a distinction in situations where a narrowly tailored interpretation of 7266 dictates the outcome of the equitable tolling claim.

[00:09:43] Speaker 01:
And in a sense, this case is similar to the mis-filing cases in that way, because you could say in instances.

[00:09:49] Speaker 02:
I don't understand what narrowly tailored

[00:09:51] Speaker 02:
circumstance you would have a straw here though.

[00:09:54] Speaker 02:
Would it be that every time somebody puts something in a mailbox and puts the flag up that would get it to the post office in time that warrants that quota tolling even if it doesn't?

[00:10:06] Speaker 01:
Something like that, Your Honor, yes.

[00:10:08] Speaker 02:
Well, see, that's where I have a little bit of a problem in making that a categorical rule because Congress has spoken to

[00:10:18] Speaker 02:
delivery of things through the postal service.

[00:10:20] Speaker 02:
And they've spoken to when those kind of operations will deem something timely filed if not.

[00:10:28] Speaker 02:
And if we're using our equitable powers to expand that category categorically, then it seems to me that we're broadening that postmark rule in a way that's inconsistent with Congress's intent categorically.

[00:10:43] Speaker 02:
Now equitable tolling is a specific case remedy.

[00:10:46] Speaker 02:
And the Veterans Court can determine that on a case by case basis.

[00:10:51] Speaker 02:
But if we're doing that as a matter of law for every case where you file it or where you put it in the post box, then that seems to me like we're rewriting the statute.

[00:11:03] Speaker 01:
I understand, Your Honor.

[00:11:04] Speaker 01:
And there's an issue of the waiver of sovereign immunity that this court does not want to pardon.

[00:11:11] Speaker 01:
And I understand all that.

[00:11:13] Speaker 01:
Something that is distinct about this case, though, he didn't just put it in his mailbox.

[00:11:19] Speaker 01:
What the facts that the Veterans Court did consider, and they're not saying they should have, or that it would have changed the outcome, is that there was a pattern in practice.

[00:11:27] Speaker 01:
And he knew, based on years of experience, that putting it in at that time would result in a postmark.

[00:11:31] Speaker 03:
That's uncontradicted.

[00:11:33] Speaker 03:
But that's exactly what- He had an expectation under the circumstances that it would be retrieved in postmark.

[00:11:39] Speaker 02:
It's exactly why it counsels in favor of equitable atolling based upon the particular facts of this case, but not as proclaiming as a rule in every case where you put something in the mailbox and put the flag up that it should be deemed timely filed.

[00:11:56] Speaker 05:
I think we understand each other, Your Honor.

[00:11:58] Speaker 05:
What you're hearing is that if it comes back up to us, there's probably going to be another result.

[00:12:08] Speaker 01:
Thank you, and we respectfully submit that the decision should be reversed.

[00:12:25] Speaker 02:
When the court below ordered the veteran to show cause as to why this was timely, did the secretary file a response?

[00:12:34] Speaker 00:
I believe that the secretary did file a response.

[00:12:37] Speaker 02:
And did they argue it shouldn't be subject to equitable tolling?

[00:12:43] Speaker 00:
Your Honor, if I may confer with counsel here, I believe that the Secretary filed a response, but I cannot remember off the top of my head if I could confer with counsel.

[00:12:52] Speaker 02:
No, just go on.

[00:12:52] Speaker 02:
You should know the record a little bit better than that.

[00:12:56] Speaker 02:
I don't.

[00:12:57] Speaker 02:
It baffles me why the Veterans Court and the Secretary continues to insist on being overly rigid in equitable tolling in these cases.

[00:13:07] Speaker 02:
I mean, the Supreme Court has reversed the notion that this is jurisdictional.

[00:13:13] Speaker 02:
We reversed on a number of occasions when the Veterans Court rules out entire classes of cases categorically and said, look at them case by case.

[00:13:21] Speaker 02:
And yet here, they have again ruled out a category of circumstances categorically.

[00:13:28] Speaker 00:
Your Honor, I would respectfully disagree that in this case, the Veterans Court categorically ruled out this entire category of cases.

[00:13:36] Speaker 00:
We submit that the Veterans Court looked at Mr. James' case on a case-by-case basis and even cited, I believe, the Snead case stating that it should look at the circumstances on a case-by-case basis.

[00:13:49] Speaker 02:
Well, it may have cited that, but it also had a big, long thing of here are the categories of cases that might be equitable tolling.

[00:13:57] Speaker 02:
He tries to put it in one case.

[00:13:59] Speaker 02:
We don't group.

[00:14:00] Speaker 02:
We don't find it there.

[00:14:02] Speaker 02:
then it says rather broadly that the court finds a fallen mailbox flag is not an extraordinary circumstance, but rather an ordinary hazard of last minute mailing.

[00:14:13] Speaker 02:
It doesn't seem to me that they've looked at the particular equities of this case.

[00:14:18] Speaker 05:
So if the mailbox flag was lowered by a third party, would that be extraordinary?

[00:14:25] Speaker 00:
Your Honor, the Veterans Court admittedly did not discuss specifically

[00:14:30] Speaker 00:
the reasons for the mailbox flag being lowered.

[00:14:33] Speaker 05:
You know they just said errantly lowered.

[00:14:35] Speaker 00:
I don't believe it said errantly.

[00:14:37] Speaker 00:
What I saw is that the court found that a fallen mailbox flag, I don't see the word errant.

[00:14:41] Speaker 05:
Here Mr. James contends that the 120-day appeal window should be equally told because an errantly lowered flag on his residential mailbox, right?

[00:14:49] Speaker 00:
Yes, Your Honor, it does say that in that section of it.

[00:14:52] Speaker 00:
I was pointing to the other section where they said simply that a fallen mailbox flag is not

[00:14:57] Speaker 00:
an extraordinary circumstance.

[00:14:59] Speaker 02:
Well, that's even worse for you, because it seems like that conclusion is we're never going to consider a fallen mailbox flag as sufficient for equitable tolling.

[00:15:08] Speaker 00:
Well, Your Honor, the Veterans Court did say that a fallen mailbox flag.

[00:15:11] Speaker 02:
Let me just ask you a hypothetical.

[00:15:13] Speaker 02:
It's not much of a hypothetical for me.

[00:15:17] Speaker 02:
That's the way I read it.

[00:15:18] Speaker 02:
If this decision stands for the notion that a fallen mailbox flag never can warrant equitable tolling, that's legal error, isn't it?

[00:15:27] Speaker 00:
Your honor, again, we don't necessarily agree that this.

[00:15:31] Speaker 02:
Yeah, yeah, but answer my question.

[00:15:32] Speaker 02:
If that's the correct interpretation of this, that a fallen mailbox flag can never constitute legal grounds for equitable tolling, isn't that inconsistent with our case law that they can't rule out categorically entire classes of circumstances, that they have to do it on a case by case basis?

[00:15:51] Speaker 00:
Yes, your honor.

[00:15:53] Speaker 00:
The case law is that they need to assess on a case-by-case basis.

[00:15:56] Speaker 02:
So if we read them as not doing a case-by-case analysis here, a specific analysis of the facts here, but have rather made that legal error, then there needs to be a remand, a vacate and remand for them to address this specifically on the facts.

[00:16:11] Speaker 00:
Your Honor, if this court determines that the Veterans Court did not assess Mr. James's case on a case-by-case basis, which, again, we do disagree with, but if the court does make that determination,

[00:16:22] Speaker 00:
then the proper step would be to remand for the Veterans Court to make that determination on a case-by-case basis, rather than holding as a matter of law and as appellant requests that a falling mailbox flag in this sort of circumstance is, as a matter of law, an extraordinary circumstance.

[00:16:41] Speaker 05:
So let's go back to my initial question, where I asked you about apparently lowered flags.

[00:16:47] Speaker 05:
Supposing that the flag was lowered by a third person.

[00:16:51] Speaker 05:
Wouldn't that constitute a crime?

[00:16:54] Speaker 00:
Your Honor, I believe that if the flag was deliberately lowered without having complete knowledge of the Postal Service laws, according to my knowledge, I believe if somebody had deliberately lowered the mailbox flag, that would be mail tampering and therefore would likely be a crime.

[00:17:12] Speaker 05:
Isn't that extraordinary?

[00:17:15] Speaker 00:
Your Honor, I can't say standing here speculate as to whether

[00:17:19] Speaker 05:
that circumstance would be extraordinary or not, but the Veterans Court did state that... Well, any crime against a veteran interfering with their ability to make a claim, you would think that would be an extraordinary circumstance.

[00:17:32] Speaker 00:
Yes, Your Honor.

[00:17:33] Speaker 00:
However, the Veterans Court did state that a fallen mailbox flag would be considered an ordinary hazard of last-minute mailing, and the fact is here... Right, that's your problem is

[00:17:45] Speaker 02:
They have categorically determined that a fallen mailbox flag falls into the category of ordinary, excusable neglect, not treating this on an individual case basis, but as a category.

[00:17:58] Speaker 02:
And we've told them over and over again that they can't do that.

[00:18:03] Speaker 00:
Your Honor, we do think that the Veterans Court here did assess Mr. James's scenario on a case-by-case basis in the paragraph previous to the one that has been off-quoted.

[00:18:13] Speaker 00:
the Veterans Court did find that in the case at hand, Mr. James did not misfile his case, unlike Santana Venegas and Jacque and those types of cases.

[00:18:22] Speaker 02:
But that's just another example of them saying he doesn't fall into this other category where this court has determined, apparently categorically, it is always equitable tolling.

[00:18:34] Speaker 00:
Yes, Your Honor, but he also then states that he placed his NOA in a personal

[00:18:39] Speaker 00:
mailbox on the last day of the appeal period and left town for the weekend.

[00:18:43] Speaker 02:
Can I ask you another question?

[00:18:44] Speaker 02:
And my guess is you're not going to know the answer to this and don't feel bad about it.

[00:18:49] Speaker 02:
But I wonder how many of these cases come up where there's a late filed appeal by a matter of days or a week or two where the court orders the veteran to show cause by their timely and

[00:19:06] Speaker 02:
And my question is, does the Secretary ever agree that Equal Tolling should apply?

[00:19:11] Speaker 02:
Absent it falling within one of these specific cases from the federal circuit, does it ever agree on a case-by-case basis that, yeah, we don't see any reason why this case shouldn't go forward based on the facts in this specific case?

[00:19:28] Speaker 00:
Your Honor, I'm not aware of whether the Secretary does or does not

[00:19:35] Speaker 00:
React in certain ways to types of equitable tolling shall cause orders from this court.

[00:19:41] Speaker 00:
I am not able to say that.

[00:19:42] Speaker 02:
Well, not from this court, from the Veterans Court.

[00:19:43] Speaker 00:
You have apologies from the Veterans Court now.

[00:19:46] Speaker 02:
I mean, we get a different, we get a limited view because, of course, if the veteran gets equitable tolling and prevails or even doesn't prevail on the merits and those cases come up, we don't see that issue.

[00:20:00] Speaker 00:
Yes, Your Honor.

[00:20:00] Speaker 02:
So the cases we see are where the secretary opposes, but I've never seen a case where a notice of appeal was untimely, but it was equitably told, and the case came up here on the merits, and there was any kind of evidence that the secretary ever raised technically.

[00:20:21] Speaker 00:
Yes, Your Honor.

[00:20:21] Speaker 00:
Unfortunately, I'm not able to say off the top of my head.

[00:20:23] Speaker 00:
If you like, I could confer with counsel to see if she has more insight, but I don't know off the top of my head.

[00:20:29] Speaker 00:
I would submit, going back to the court's earlier question, I would submit that even if this court finds that it does have jurisdiction to address Mr. James's case, that it does not have jurisdiction to ultimately decide whether Mr. James's falling mailbox flag constitutes an extraordinary circumstance as a matter of law.

[00:20:51] Speaker 00:
And therefore, if the court

[00:20:54] Speaker 00:
determines that a remand to the Veterans Court is necessary.

[00:20:57] Speaker 00:
It should do so only for the purposes of having the Veterans Court conduct a more extensive case-by-case analysis of the facts of this case and how the legal standard of extraordinary circumstance applies to the facts of that case.

[00:21:12] Speaker 00:
We do submit that the Veterans Court is the entity that is charged with reviewing the facts and drawing inferences from those facts.

[00:21:19] Speaker 02:
Sure, but the reason I ask you about the Secretary's practice is

[00:21:24] Speaker 02:
This is no longer jurisdictional.

[00:21:26] Speaker 02:
So it is, and it's subject to, it's no longer mandatory and jurisdictional in the sense that it can't be equitable tolled after Anderson.

[00:21:35] Speaker 02:
And so it seems to me that if the secretary agreed that equitable tolling should apply, even though it's still ultimately the Veterans Court's decision, that the court might be weighed by that non-opposition from the secretary.

[00:21:51] Speaker 02:
And it might behoove the secretary

[00:21:53] Speaker 02:
in these kinds of cases where there's very little delay and seemingly no harm to the secretary for them to agree that equal tolling should be applied.

[00:22:03] Speaker 02:
Because if we keep getting cases like this, you're going to get really bad law on these points.

[00:22:09] Speaker 05:
Taking in mind that, at least in theory, the VA should act in favor of the veterans.

[00:22:16] Speaker 00:
Yes, Your Honor, and I'm sure that whatever the court

[00:22:19] Speaker 00:
determines to issue as an order, the secretary will take that into account if it does decide to remand the case.

[00:22:27] Speaker 00:
And we do realize that these laws are supposed to be construed in favor of the veterans, but nonetheless, they are in place.

[00:22:34] Speaker 00:
And the Veterans Court is the entity that is tasked with determining whether equitable holdings should be extended in a circumstance.

[00:22:41] Speaker 05:
And it did determine here that... Did you oppose it below the Veterans Administration

[00:22:50] Speaker 05:
DBA oppose at parole tolling below.

[00:22:53] Speaker 00:
Did they deviate below?

[00:22:58] Speaker 00:
I could look at the joint appendix very quickly.

[00:23:02] Speaker 00:
And I apologize.

[00:23:05] Speaker 00:
I don't recall.

[00:23:09] Speaker 00:
I believe in the joint appendix at page 8, it would state whether the

[00:23:18] Speaker 00:
whether the VA opposed it below.

[00:23:21] Speaker 00:
And it stayed that.

[00:23:28] Speaker 00:
I do not believe that the VA filed anything.

[00:23:33] Speaker 00:
It did file something, I believe, on June 9, 2017, responding to appellants' response to the court's show cause order.

[00:23:41] Speaker 00:
And I do believe that it opposed the

[00:23:45] Speaker 00:
propellants, or it stated that equitable tolling should not be extended in that circumstance.

[00:23:52] Speaker 00:
However, I cannot speak for whether the VA has, in other cases, opposed or not opposed in certain circumstances where equitable tolling was at hand.

[00:24:04] Speaker 00:
Again, we simply submit that this case is, unlike other misfiling cases that appellant relies heavily upon,

[00:24:13] Speaker 00:
In fact, this court stated, I think in Santana Venegas quoting to a different case, that this court is generally more lenient in misfiling cases than in cases where the appellant actually filed his notice late, which is what happened in this case.

[00:24:27] Speaker 00:
As such, we do not think that the misfiling cases are applicable to the current case at hand.

[00:24:32] Speaker 00:
And again, submit that should the court determine that it should remand to the Veterans Court for a further case-by-case analysis, that it should do so only

[00:24:42] Speaker 00:
in terms of ordering the Veterans Court to conduct a more specific analysis and not to rule as a matter of law that extraordinary circumstances exist in a case such as Mr. James'.

[00:24:53] Speaker 04:
I would hope that the government would take into account when they're evaluating these orders to show cause and applying equitable tolling, that they take into account the fact that in this pro-vet system,

[00:25:12] Speaker 04:
Consider what the harm is to the government in applying this standard leniently.

[00:25:20] Speaker 00:
Yes, Your Honor.

[00:25:21] Speaker 04:
You're talking about the difference between filing on a Friday and filing on a Monday.

[00:25:27] Speaker 04:
The harm to the government is virtually non-existent.

[00:25:33] Speaker 04:
And it seems to me that should be taken into account.

[00:25:37] Speaker 04:
I just don't see any reason why the government should

[00:25:42] Speaker 04:
should not consider as a significant factor the extent to which there might be any harm whatsoever to the government in applying equitable tolling in the facts of these various cases.

[00:25:58] Speaker 00:
Yes, Your Honor, and I understand.

[00:26:00] Speaker 00:
However, again, it is the Veterans Court that is ultimately charged with the term.

[00:26:04] Speaker 02:
Yes, but my guess is that the Secretary routinely files responses to these orders saying,

[00:26:11] Speaker 02:
we agree that equal tolling should be applied here, that the Veterans Court might consider that non-opposition as yet another factor for why tolling should be applied.

[00:26:23] Speaker 04:
Absolutely.

[00:26:23] Speaker 00:
Yes, Your Honor.

[00:26:24] Speaker 00:
If the Court has no further questions, thank you for your time.

[00:26:28] Speaker 05:
Oh, wait.

[00:26:28] Speaker 05:
Just comments.

[00:26:35] Speaker 01:
We have nothing further, Your Honors, unless you have additional questions.

[00:26:38] Speaker 01:
Thank you.

[00:26:38] Speaker 01:
OK, thank you.

[00:26:41] Speaker 01:
Matter stands adjourned.