McNaron v. West

ORDER PER CURIAM: On September 24, 1998, the pro se appellant filed a motion to reinstate his appeal, alleging that this Court erred when it “presumed regularity in DVA performance of it[]s duties in mailing.” A similar motion was denied by this Court in McNaron v. Brown, 10 Vet.App. 61 (1997) (McNaron I). When an appellant moves to reinstate an appeal, the Court must first determine whether a recall of the Court’s mandate is warranted. While the appellant’s most recent motion was pending, the United States Court of Appeals for the Federal Circuit (Federal Circuit) determined that the doctrine of equitable tolling was available to toll the statute of limitations for filing a Notice of Appeal (NOA) to this Court under 38 U.S.C. § 7266. Bailey v. West, 160 F.3d 1360 (Fed.Cir.1998). In an order dated November 30, 1998, the Court asked the Secretary to address any significance the Secretary believed the Bailey decision may have on this matter. On February 3, 1999, the Court extended the time for the Secretary to file his response until February 13, 1999. Since that time, the Secretary has requested two additional extensions of time. The Secretary submitted his response on February 19, 1999. The Court will grant the additional requests for extension of time and file the Secretary’s response as of the date it was received. In his response, the Secretary has indicated his belief that the Bailey decision has no application given the circumstances of this case. The Secretary suggests, however, that the Court’s decision in Cross v. Brown, 9 Vet.App. 18 (1996), may be of significance here. In Cross, the Court applied the rule of constructive notice to address-change information submitted to VA. The Secretary further suggests that the Court’s decision in Cross does not warrant a recall of the Court’s mandate and a reinstatement of the appeal. The appellant filed a reply on March 1, 1999, contending that “the Secretary’s arguments demonstrate DVA’s attitude and actions toward! ][his] claim from the start.” The appellant was directed in June 1993 to show cause why his appeal should not have been dismissed for lack of jurisdiction. The appellant responded that he did not receive the BVA decision until April 1993 and that, if VA had not misdiagnosed his condition, causing him to be unemployed, homeless, and to need to travel to seek employment, he would [336] have received the BVA decision “on time to file a timely appeal.” The Court dismissed the appeal for lack of jurisdiction in July 1993. Thereafter, in a motion for review, the appellant contended that “due to [his] period of unstableness, [he] did not receive the Board’s decision (dated August 31, 1992) until May 1993.” Then, the appellant sought, to no avail, judicial relief by the U.S. Court of Appeals for the Fourth Circuit, the Federal Circuit, and the Supreme Court. After the Supreme Court denied the appellant’s writ of certiorari, this Court issued its mandate in 1994. In May 1996, the appellant then sought further review by this Court in his first request to recall mandate and reinstate his appeal. On January 17, 1997, the Court determined that no exceptional circumstances existed to justify recall of the mandate and denied the appellant’s request. The Court found: “There is nothing to suggest that the newly submitted evidence was unavailable to the appellant at the time of the dismissal of his appeal. In fact, the only error that can be found is the appellant’s failure to present the evidence when he had the opportunity to do so and the Court was authorized to consider it.” McNaron I, 10 Vet.App. at 64. The Court explained that “[extraordinary relief cannot be used as a device for granting a late rehearing, even if the Court ‘becomes doubtful of the wisdom of the decision that has been entered and become final.’” Id. (citing Greater Boston Television Corp. v. FCC, 463 F.2d 268, 277 (D.C.Cir.1971)); see also Johnson v. Bechtel Associates Professional Corp., 801 F.2d 412, 416 (D.C.Cir.1986). The power of this Court to recall its mandate “can be exercised only in extraordinary circumstances.... The sparing use of the power demonstrates it is one of last resort, to be held in reserve against grave, unforeseen contingencies.” Calderon v. Thompson, 523 U.S. 538, -, 118 S.Ct. 1489, 1498, 140 L.Ed.2d 728 (1998). “The limited nature of this power is a reflection of the importance of finality: once parties are afforded a full and fair opportunity to litigate, the controversy must come to an end and courts must be able to clear their dockets of decided cases.” Ute Indian Tribe of the Uintah and Ouray Reservation v. Utah, 114 F.3d 1513, 1522 (10th Cir.1997); see also American Iron & Steel Inst. v. EPA, 560 F.2d 589, 592 (3rd Cir.1977) (“[Parties should be afforded ample opportunity to litigate their claims, but once a final disposition is reached they should not expect that the good offices of the court will be available for a chance to press their claims anew.”). This motion does not present the type of exceptional or extraordinary circumstances necessary to override the strong policy of repose and finality. Greater Boston Television Corp., 463 F.2d at 278-79. The appellant was afforded an opportunity to be heard concerning the issue of whether the Court lacked jurisdiction over his appeal, and the appellant was heard on that subject. The Court rendered a decision adverse to the appellant. On two occasions subsequent to the decision, the appellant has sought to have this Court recall its judgment and mandate based on evidence that was available to him when the Court rendered its original decision dismissing his appeal. The Court declined to recall its mandate in McNaron I, and it will decline to do so now. Even if the Court were to apply Bailey to the facts here, this ease would not avail itself of equitable tolling. This case amounts to “at best a garden variety claim of excusable neglect” to which the principles of equitable tolling do not extend. Bailey v. West, 160 F.3d at 1365; see also Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (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). Moreover, balanced against the countervailing concerns of repose and preservation of finality in judicial proceedings, and taken in light of the facts of this case, the concerns of repose and preservation triumph over the application of Bailey and preclude this Court from granting a motion to recall its mandate and reinstate the appeal. The Court’s original decision dismiss [337] ing the appeal shall not be disturbed. Accordingly, it is ORDERED that the appellant’s motion is denied.