Anania v. McDonough ( 2021 )

Case: 20-1086 Document: 39 Page: 1 Filed: 06/10/2021
United States Court of Appeals
for the Federal Circuit
______________________
ROY E. ANANIA,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2020-1086
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-0180, Senior Judge Mary J.
Schoelen.
______________________
Decided: June 10, 2021
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
SOSUN BAE, Commercial Litigation Branch, Civil Divi-
sion, United States Department of Justice, Washington,
DC, argued for respondent-appellee. Also represented by
JEFFREY B. CLARK, ROBERT EDWARD KIRSCHMAN, JR.; JULIE
HONAN, Y. KEN LEE, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
______________________
Case: 20-1086 Document: 39 Page: 2 Filed: 06/10/2021
2 ANANIA v. MCDONOUGH
Before DYK, TARANTO, and STOLL, Circuit Judges.
STOLL, Circuit Judge.
Roy E. Anania appeals the decision of the United
States Court of Appeals for Veterans Claims affirming the
decision by the Board of Veterans’ Appeals that his sub-
stantive appeal was not timely filed. The Veterans Court
relied on a bright-line rule holding “a party’s own self-serv-
ing testimony” per se insufficient to establish the presump-
tion of receipt under the common law mailbox rule.
Because we conclude that a party’s affidavit may provide
credible evidence to satisfy the mailbox rule, and because
the Government does not challenge the credibility of the
party’s affidavit in this case, we reverse.
BACKGROUND
Mr. Anania served in the United States Army from
1972 through 1975. In July 2008, Mr. Anania filed a claim
with the Department of Veterans Affairs (VA) seeking an
increased evaluation for the degenerative joint disease of
his spine and for his major depressive disorder, and also
seeking entitlement to a total disability rating based on in-
dividual unemployability (TDIU). In February 2009, the
VA issued a rating decision awarding Mr. Anania entitle-
ment to TDIU with an effective date of June 22, 2008, rais-
ing his evaluation of major depressive disorder to thirty
percent effective October 31, 2006, and to fifty percent ef-
fective June 22, 2008. Mr. Anania was notified of this de-
cision on March 3, 2009. Later in March, the VA issued a
statement of the case (SOC) that addressed the evaluation
of Mr. Anania’s major depressive disorder, confirming the
rating of thirty percent effective October 31, 2006, and the
increase to fifty percent effective June 22, 2008. In Sep-
tember 2009, Mr. Anania filed a Notice of Disagreement
(NOD) challenging the effective date of his TDIU award,
asserting the correct date was August 1, 2007. On Decem-
ber 4, 2009, the VA issued a SOC denying Mr. Anania’s re-
quest for an earlier effective date. The December 2009
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ANANIA v. MCDONOUGH 3
SOC stipulated that Mr. Anania must file an “appeal with
this office within 60 days from the date of this letter or
within the remainder, if any, of the one-year period from
the date of the letter notifying [him] of the action that [he
had] appealed.” J.A. 114. As such, Mr. Anania had until
March 3, 2010—one year after the date of mailing of the
notification of the VA’s decision—to file a substantive ap-
peal with the Waco Regional Office of the VA at One Vet-
erans Plaza, 701 Clay Avenue, Waco, TX 76799.
On June 26, 2012, Kenneth Carpenter, counsel for
Mr. Anania, sent a letter on behalf of Mr. Anania to the
Board of Veterans’ Appeals (Board) requesting confirma-
tion that it had docketed Mr. Anania’s substantive appeal
of the VA’s February 2009 rating decision. Mr. Carpenter’s
letter included a copy of the purported substantive appeal
as an exhibit. In March 2013, the Board issued a decision
concluding that Mr. Anania failed to timely file his sub-
stantive appeal, reasoning that “the claims file does not
contain a copy of the Veteran’s substantive appeal with ev-
idence of the date of receipt by [the] VA in the claims file.”
J.A. 168.
Mr. Anania appealed the Board’s decision to the Court
of Appeals for Veterans Claims (Veterans Court) and, after
the parties filed a joint motion for partial remand, the Vet-
erans Court remanded back to the Board so that the Board
could remand the matter to the VA for consideration in the
first instance. In June 2014, the VA issued a supplemental
statement of the case (SSOC) concluding that it had not re-
ceived from Mr. Anania a timely substantive appeal be-
cause the substantive appeal “was not received into VA
custody until June 29, 2012.” J.A. 193–94. The VA further
explained that “[g]iven the presumption of regularity[, 1]
1 The presumption of regularity is where, “in the ab-
sence of clear evidence to the contrary, courts presume that
[public officers] have properly discharged their official
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4 ANANIA v. MCDONOUGH
there is no indication in the file or in our computer systems
that the attorney’s document was in our custody prior to
June 29, 2012.” J.A. 194.
Mr. Anania again appealed to the Board. In November
2014, Mr. Anania urged the Board to find his substantive
appeal timely filed under the common law mailbox rule. In
support, Mr. Anania submitted a signed affidavit from his
counsel, Mr. Carpenter, alleging that Mr. Carpenter had
personally mailed the substantive appeal on January 18,
2010. The affidavit stated, in pertinent part:
On December 4, 2009, the VA issued a Statement
of the Case. On January 18, 2010, I mailed a sub-
stantive appeal (in lieu of a VA form 9) to the Re-
gional Office in Waco, Texas.
J.A. 195. As Mr. Anania had until March 3, 2010 to file his
appeal, the parties do not dispute that mailing the substan-
tive appeal on January 18, 2010 would have allowed suffi-
cient time for the appeal to be received by the due date.
Additionally, the affidavit indicates that the appeal was
sent to the correct location, i.e., the Regional Office in
Waco, Texas.
In May 2015, the Board again determined that Mr. An-
ania’s substantive appeal was not timely filed. Mr. Anania
appealed, and in April 2017, the Veterans Court vacated
and remanded the Board’s decision for failing to explain
why the affidavit of counsel was insufficient to trigger the
presumption of receipt under the common law mailbox
rule. Anania v. Shulkin, No. 15-3413, 2017 WL 1316372,
at *3 (Vet. App. Apr. 10, 2017).
In September 2017, the Board once again concluded
that Mr. Anania failed to timely file his substantive appeal.
duties.” United States v. Chem. Found., Inc., 272 U.S. 1,
14–15 (1926).
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ANANIA v. MCDONOUGH 5
The Board reasoned that the mailbox rule’s presumption of
receipt did not attach because Mr. Carpenter’s affidavit
“amount[ed] to no more than self-serving testimony.”
J.A. 223. Mr. Anania appealed to the Veterans Court, and
this time the Veterans Court affirmed the Board’s decision.
Anania v. Wilkie, No. 18-0180, 2019 WL 3436604, at *4
(Vet. App. July 31, 2019).
Mr. Anania appeals to this court. We have jurisdiction
pursuant to 38 U.S.C. § 7292.
DISCUSSION
“Under the common law mailbox rule, ‘if a letter
properly directed is proved to have been either put into the
post office or delivered to the postman, it is presumed, from
the known course of business in the post office department,
that it reached its destination at the regular time, and was
received by the person to whom it was addressed.’” Rios
v. Nicholson (Rios I), 490 F.3d 928, 930–31 (Fed. Cir. 2007)
(quoting Rosenthal v. Walker, 111 U.S. 185, 193 (1884)).
This presumption “is not a conclusive presumption of law,
but a mere inference of fact, founded on the probability that
the officers of the government will do their duty and the
usual course of business.” Rosenthal, 111 U.S. at 193 (quot-
ing Huntley v. Whittier, 105 Mass. 391, 392 (1870)). If evi-
dence is presented that the letters were never received, the
evidence “must be weighed with all the other circum-
stances of the case, by the [trier of fact] in determining the
question whether the letters were actually received or not.”
Id. at 194 (quoting Huntley, 105 Mass. at 392).
This appeal asks us to consider whether a party’s own
self-serving testimony—or that of his counsel—can be used
to invoke the common law mailbox rule. The Veterans
Court held that it cannot as a matter of law.
We have jurisdiction to “decide all relevant questions
of law” in an appeal from a decision by the Veterans Court.
38 U.S.C. § 7292(d)(1). We review legal determinations of
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6 ANANIA v. MCDONOUGH
the Veterans Court under a de novo standard. Prenzler
v. Derwinski, 928 F.2d 392, 393 (Fed. Cir. 1991); see also
Hudgens v. McDonald, 823 F.3d 630, 634 (Fed. Cir. 2016)
(“We review statutory and regulatory interpretations of the
Veterans Court de novo.” (emphasis omitted)).
I
A
This court previously addressed the application of the
mailbox rule in appeals to the Veterans Court in Rios I. In
that case, veteran Rafael Rios claimed that he timely filed
a Notice of Appeal (NOA) from the Board’s decision reduc-
ing his disability rating. Rios I, 490 F.3d at 929. The Vet-
erans Court claimed that it never received Mr. Rios’s NOA,
and thus deemed his appeal untimely. Id. at 929–30. As
evidence that his appeal was timely filed, Mr. Rios submit-
ted a copy of his original NOA, a copy of a mail logbook
maintained by the Puerto Rico Public Advocate for Veter-
ans Affairs (PRPAVA) that contained two notations of mail
sent on the alleged date of mailing, and two affidavits from
an employee of PRPAVA that stated she personally mailed
Mr. Rios’s NOA. Id. at 930. The Veterans Court nonethe-
less dismissed his appeal as untimely filed, concluding in
part that 38 U.S.C. § 7266(c)(2) “does not authorize the use
of extrinsic evidence to show that [Mr.] Rios’s NOA was
timely filed.” Id.On appeal, we held that Congress did not intend to ab-
rogate the common law mailbox rule as it applies to the fil-
ing of NOAs with the Veterans Court. Id. at 931–32.
Because the presumption of receipt under the common law
mailbox rule is a rebuttable presumption of fact, we re-
versed the Veterans Court’s judgment and remanded, ex-
plaining that the Veterans Court had to make “findings of
fact as to whether [Mr.] Rios properly and timely directed
his NOA to the Veterans Court.” Id. at 933. We further
explained that, “for the presumption to attach, Mr. Rios
must provide evidence demonstrating that his NOA was
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ANANIA v. MCDONOUGH 7
properly addressed, stamped, and mailed in adequate time
to reach the Veterans Court in the normal course of post
office business before the elapse of the 120-day deadline,”
or, “[i]n lieu of ‘direct’ proof of mailing, Mr. Rios may also
prove the fact of mailing through evidence of mailing cus-
tom or routine practice.” Id.
On remand, the Veterans Court in Rios v. Mansfield
(Rios II) explained that the “presumption of receipt permit-
ted under the common law mailbox rule is not invoked
lightly.” 21 Vet. App. 481, 482 (2007) (citing Sorrentino
v. IRS, 383 F.3d 1187, 1191 (10th Cir. 2004)). Rather, ac-
cording to the Veterans Court, “[i]t requires proof of mail-
ing, such as an independent proof of a postmark, a dated
receipt, or evidence of mailing apart from a party’s own
self-serving testimony.” Id. (citing Sorrentino, 383 F.3d
at 1195). The Veterans Court further reasoned that “[t]he
independent proof of a postmark may be in the form of busi-
ness records establishing the mailing, evidence of a course
of business regarding mailing, or third party testimony
witnessing the mailing.” Id. at 483. Considering Mr. Rios’s
evidence, the Veterans Court determined that Mr. Rios
timely filed his NOA, finding that he did mail his NOA
“well before the end of the 120-day filing period,” thereby
invoking the presumption of receipt under the common law
mailbox rule. Id. at 483–84.
In a subsequent case, the Veterans Court rejected a
veteran’s affidavit as insufficient to establish the presump-
tion of receipt under the common law mailbox rule. Fithian
v. Shinseki, 24 Vet. App. 146, 151 (2010). To support his
claim that he had timely mailed a letter that met the re-
quirements for a motion for reconsideration, id. at 150, vet-
eran Jonathan Fithian offered an affidavit that stated:
“(1) he mailed the letter first class postage prepaid; (2) he
sent the letter to the Board in Washington, D.C.; and (3) he
assumed it was delivered,” id. at 151. Citing Rios II, the
Veterans Court concluded that the affidavit did not estab-
lish that Mr. Fithian mailed the letter. Id.
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8 ANANIA v. MCDONOUGH
B
In this case, the Board rejected the affidavit from
Mr. Anania’s counsel, Mr. Carpenter, as per se insufficient.
Without examining the credibility of Mr. Carpenter’s affi-
davit, the Board explained that the mailbox rule presump-
tion does not attach to Mr. Anania’s filing because “the only
evidence cited by the representative as proof of the mailing
is his own sworn affidavit,” which “amounts to no more
than self-serving testimony, as described by the [Veterans]
Court in Rios II.” J.A. 223.
Affirming the Board, the Veterans Court explained
that “nothing in this Court’s or the Federal Circuit’s case
law counsels us to hold that simply receiving a sworn affi-
davit from the appellant’s attorney necessitates the per se
attachment of the presumption of receipt.” Anania,
2019 WL 3436604, at *3. Rather, the Veterans Court ex-
plained, “the Federal Circuit has held that in order for the
presumption to attach, the appellant must provide evi-
dence demonstrating that his filing was properly ad-
dressed, stamped, and mailed in adequate time to reach the
recipient in the normal course of post office business.” Id.(emphasis omitted) (citing Rios I, 490 F.3d at 930–31). The
Veterans Court further reasoned that “evidence requires
proof of mailing ‘apart from a party’s own self-serving tes-
timony.’” Id. (quoting Rios II, 21 Vet. App. at 482).
The Veterans Court also analogized this case to
Fithian, explaining “that Fithian directly addressed the
presumption of receipt, finding that it did not attach in the
case because only self-serving testimony was given through
affidavit.” Id. Relying on Rios I, Rios II, and Fithian, the
Veterans Court concluded that the Board correctly deter-
mined that Mr. Carpenter’s affidavit was self-serving, and
thus was per se insufficient evidence for the presumption
of receipt to attach. Id. at *4.
The Government agrees with the Veterans Court’s
characterization, asserting that “within the framework of
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ANANIA v. MCDONOUGH 9
veterans benefits law, bare, self-serving statements do not
constitute sufficient evidence.” Resp. Br. 7. Accordingly,
the Government argues that this court “should not disturb
the standard set by the Veterans Court in Rios II, which
requires evidence apart from a self-serving statement.” Id.
C
The common law mailbox rule is a longstanding doc-
trine that originated from British case law early in the
nineteenth century, Adams v. Lindsell (1818) 106 Eng.
Rep. 250 (KB). It was recognized by the Supreme Court by
the end of the nineteenth century. See Rosenthal, 111 U.S.
at 193; Patrick v. Bowman, 149 U.S. 411, 424 (1893). In
assessing the correctness of the Veterans Court’s bright-
line rule against party affidavits, we consider the applica-
tion of the common law mailbox rule in other circuits. 2
Many of our sister circuits have previously identified evi-
dence sufficient to invoke the presumption of receipt under
the rule, and have consistently opted not to apply a per se
rule against self-serving testimony.
For example, in Schikore v. BankAmerica Supple-
mental Retirement Plan, the Ninth Circuit confirmed that
“a sworn statement is credible evidence of mailing for pur-
poses of the mailbox rule,” and a “factfinder must deter-
mine whether [the party] has presented sufficient evidence
of mailing to invoke the presumption of receipt.” 269 F.3d
956, 963–64 (9th Cir. 2001) (citing Lewis v. United States,
144 F.3d 1220, 1223 (9th Cir. 1998)). In that case, a Bank
of America employee provided “a sworn declaration that
she mailed [a] benefit payment election form” as evidence
2 We note that the common law mailbox rule has be-
come less important over time with the emergence and
preference for electronic filing. See, e.g., Fed. R. Civ. P.
5(b)(2)(E) (allowing service by filing papers with the court’s
electronic-filing system).
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10 ANANIA v. MCDONOUGH
of mailing that election form. Id. In remanding “to the
district court to review the administrative record before it,
to apply the common law mailbox rule, and to determine
whether the Plan received [the employee’s] form in a timely
manner,” the Ninth Circuit did not invoke a per se rule re-
quiring more than self-serving testimony. Id. at 965; see
also United States v. Green, 745 F.2d 1205, 1208 (9th Cir.
1984) (accepting the Government’s testimony that it was
“routine . . . for mail in the outgoing basket to be picked up
and placed in the United States mail” as “sufficient [evi-
dence] for the jury to determine that the mail was used”).
Similarly, the Third Circuit has acknowledged that
self-serving affidavits can suffice to establish the presump-
tion of receipt. In Lupyan v. Corinthian Colleges Inc., em-
ployees of Corinthian Colleges provided affidavits as
evidence that they had mailed a letter to the plaintiff ad-
vising her that her requested leave was designated as leave
under the Family and Medical Leave Act. 761 F.3d 314,
317 (3d Cir. 2014). In assessing the credibility of these af-
fidavits, the Third Circuit explained that “self-serving affi-
davits signed nearly four years after the alleged mailing
date,” even with “no corroborating evidence,” “implicate the
presumption of receipt that arises under the mailbox rule,”
albeit “a very weak presumption.” Id. at 320.
The Fifth Circuit has also concluded that a party’s
sworn affidavit is credible evidence of mailing for purposes
of the mailbox rule. In Custer v. Murphy Oil USA, Inc.,
Murphy Oil provided sworn affidavits from both its super-
visor of mail services and its benefits analyst stating that
“the envelopes were metered for first-class postage and
placed in bins for delivery by the United States Postal Ser-
vice,” in addition to a copy of a mailing list identifying the
plaintiff’s name and mailing address. 503 F.3d 415, 420
(5th Cir. 2007) (internal quotation marks omitted). In as-
sessing the credibility of this evidence, the Fifth Circuit
acknowledged that a “sworn statement is credible evidence
of mailing for the purposes of the mailbox rule.” Id. (first
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ANANIA v. MCDONOUGH 11
citing Schikore, 269 F.3d at 964; and then citing Simpson
v. Jefferson Standard Life Ins. Co., 465 F.2d 1320, 1323
(6th Cir. 1972)).
The Second Circuit has likewise concluded that party
affidavits may be sufficient to establish proof of mailing for
purposes of the mailbox rule. In Meckel v. Continental Re-
sources Co., a Citibank employee and Citibank manager
provided affidavits as evidence that a notice of redemption
was mailed to certain debenture holders. 758 F.2d 811, 814
(2d Cir. 1985). The Second Circuit evaluated the credibility
of these affidavits and determined that “[p]roof of mailing
of the notice is established by the affidavit of a Citibank
employee who ‘caused’ the notice to be mailed, and by the
affidavit and deposition of a Citibank manager who testi-
fied about the regular procedures Citibank used to mail no-
tices to debenture holders.” Id. The court concluded as
much notwithstanding the fact that the affidavits and dep-
osition testimony were self-serving. See id. The Second
Circuit further rejected the notion that the Citibank em-
ployee was required to personally mail the notice, explain-
ing that, under New York state law, personal knowledge is
not required to establish the mailing. Id. at 817.
The Sixth Circuit has left open the question of
“whether corroborating evidence is required to support a
party’s statement that she properly mailed a document,”
but has nonetheless provided guidance on how to assess the
credibility of self-serving testimony. Laird v. Norton
Healthcare, Inc., 442 F. App’x 194, 200 (6th Cir. 2011). In
Laird, an employee provided an affidavit as evidence that
she timely mailed an appeal under the Employee Retire-
ment Income Security Act of 1974. The affidavit stated
“[t]hat on or about July 2, 2004[,] I prepared and typed on
my computer a draft letter of appeal regarding my short
term disability claims. . . . This letter was appended to the
Complaint as Plaintiff’s Exhibit ‘B’ and was mailed to the
address shown thereon.” Id. at 199. Notably, there was
“nothing within Laird’s affidavit that state[d] she affixed
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12 ANANIA v. MCDONOUGH
sufficient postage or, more critically, when she deposited
the letter in the mail.” Id. at 199. Considering the credi-
bility of Ms. Laird’s affidavit, the court concluded that
Ms. Laird’s “affidavit and exhibit [did] not have the speci-
ficity required by the mailbox rule,” thus obviating any
need to consider whether corroborating evidence was re-
quired to support the statements in her affidavit. Id.
at 200.
In view of these cases, we reject the Veterans Court’s
rule that self-serving affidavits are per se insufficient to es-
tablish the presumption under the mailbox rule. See Rios
II, 21 Vet. App. at 482 (requiring “proof of mailing, such as
an independent proof of a postmark, a dated receipt, or ev-
idence of mailing apart from a party’s own self-serving tes-
timony”); Fithian, 24 Vet. App. at 151 (rejecting self-
serving affidavit evidence as insufficient to establish the
presumption of receipt under the common law mailbox
rule); Anania, 2019 WL 3436604, at *3 (requiring evidence
“apart from a party’s own self-serving testimony”). Indeed,
it seems particularly inappropriate to apply an artificially
rigid approach to the assessment of evidence on the factual
question of mailing in the area of veterans’ benefits law
given the absence of a statute commanding such a rule and
the pro-claimant, nonadversarial nature of the statutory
scheme created by Congress. See Hodge v. West, 155 F.3d
1356, 1362 (Fed. Cir. 1998) (“This court and the Supreme
Court both have long recognized that the character of the
veterans’ benefits statutes is strongly and uniquely pro-
claimant.”).
D
We have also considered the line of tax cases cited by
the Veterans Court in Rios II to support its view that self-
serving testimony alone is not sufficient to invoke the pre-
sumption of receipt. The Veterans Court cited Estate of
Wood v. Commissioner, 909 F.2d 1155 (8th Cir. 1990), An-
derson v. United States, 966 F.2d 487 (9th Cir. 1992), and
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ANANIA v. MCDONOUGH 13
Sorrentino, 383 F.3d at 1191. See Rios II, 21 Vet. App.
at 482–83. While these cases held self-serving testimony
alone insufficient to invoke the presumption of receipt,
they are inapposite because they deal with the mailbox rule
as limited by the Internal Revenue Code (IRC), 26 U.S.C
§ 7502. 3 Indeed, the Third Circuit recognized the distinc-
tion between the common law mailbox rule and the § 7502
mailbox rule in Philadelphia Marine Trade Ass’n-Interna-
tional Longshoremen’s Ass’n Pension Fund v. Commis-
sioner, 523 F.3d 140 (3d Cir. 2008). As the Third Circuit
explained, the “‘intra-§ 7502’ mailbox rule” is unique to tax
cases and affords a presumption of receipt only where the
“taxpayer sends the document by registered, certified, or
electronic mail” or, in a few circumstances, “where the tax-
payer introduced circumstantial evidence of postmark be-
yond its own testimony.” Id. at 148–49 (emphasis added).
Accordingly, the Veterans Court’s reliance on these tax
cases to support its view that self-serving testimony alone
can never invoke the presumption of receipt is misplaced.
In fact, this bright-line proposition was first suggested by
the Eighth Circuit in Wood, which explicitly limited it to
§ 7502. 909 F.2d at 1161. In Anderson, the Ninth Circuit
merely “adopted the Eighth Circuit’s decision in Wood, . . .
interpreting section 7502 as not barring admission of ex-
trinsic evidence.” 966 F.2d at 489. And in Sorrentino, the
Tenth Circuit likewise relied on considerations unique to
3 In August 2011, the Treasury Department promul-
gated an amended version of Treasury Regulation
26 C.F.R. § 301.7502-1(e), which “makes clear that, unless
a taxpayer has direct proof that a document was actually
delivered to the IRS, IRC § 7502 provides the exclusive
means to prove delivery.” Baldwin v. United States,
921 F.3d 836, 841–42 (9th Cir. 2019). “In other words, re-
course to the common-law mailbox rule is no longer availa-
ble” under § 7502. Id. at 842.
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14 ANANIA v. MCDONOUGH
the tax context, with one judge in the majority agreeing
that self-serving testimony was insufficient in the context
of § 7502, see 383 F.3d at 1194 (Baldock, J., delivering the
judgment of the court and an opinion) (“Like the Eighth
Circuit, I would require more than mere proof of mailing,
such as direct proof of postmark which is ‘verifiable beyond
any self-serving testimony of a taxpayer who claims that a
document was timely mailed.’”), and the other judge con-
cluding that the common law mailbox rule did not “sur-
vive[] the enactment” of § 7502 at all, see id. at 1196
(Hartz, J., concurring in the judgment only and delivering
an opinion). None of these cases suggests that the rule
would apply to anything other than tax cases.
After reviewing the decisions of our sister circuits, we
conclude that the common law mailbox rule is best under-
stood as not including a per se rule holding party affidavits
insufficient. As we have previously stated, all that is re-
quired for the presumption to attach is evidence demon-
strating that the mail was “properly addressed, stamped,
and mailed in adequate time to reach the [destination] in
the normal course of post office business,” or, “[i]n lieu of
‘direct’ proof of mailing, . . . evidence of mailing custom or
routine practice.” Rios I, 490 F.3d at 933. The Veterans
Court therefore erred in applying a per se rule to find
Mr. Carpenter’s affidavit insufficient.
II
Having concluded that the Veterans Court erred in
holding Mr. Carpenter’s affidavit per se insufficient to in-
voke the common law mailbox rule, we next consider
whether the Government raised any other challenges to the
affidavit. We note that the Government never challenged
the credibility of the substance of Mr. Carpenter’s state-
ment. Namely, the Government does not assert that the
appeal Mr. Carpenter mailed was not properly addressed,
stamped, and mailed in adequate time to reach its destina-
tion. See Rios I, 490 F.3d at 933. Indeed, the Government
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ANANIA v. MCDONOUGH 15
concedes that a letter mailed on January 18, 2010 would
have arrived on time. Oral Arg. at 13:04–13:33,
http://oralarguments.cafc.uscourts.gov/default.aspx?fl=20-
1086_12072020.mp3.
We also do not understand the Government to chal-
lenge the credibility of Mr. Carpenter’s testimony based on
the amount of time elapsed between the mailing and the
affidavit. Indeed, the Government indicated that it did not
contend that it was unusual that Mr. Anania did not follow
up with the Board for a couple of years. Oral Arg.
at 14:07–14:22. Instead, the Government merely noted the
length of time between mailing and the affidavit to counter
the supposed argument that there is a per se rule that, no
matter the circumstances (i.e., time between mailing and
affidavit), a statement from a party’s representative is al-
ways sufficient for the presumption of receipt to attach. Id.at 14:22–15:02.
The Government does seem to argue that Mr. Carpen-
ter’s affidavit is conclusory. Resp. Br. 23 (“Without more,
the conclusory statements provided in the affidavit are in-
sufficient to establish proof of mailing by circumstantial ev-
idence of mailings and practices.”). Whether testimony is
conclusory presents a legal question within our purview.
See, e.g., TQ Delta, LLC v. Cisco Sys., Inc., 942 F.3d 1352,
1358–1362 (Fed. Cir. 2019) (determining that certain ex-
pert testimony was conclusory and thus inadequate to sup-
port the Board’s factfinding regarding motivation to
combine); Pure Gold, Inc. v. Syntex (U.S.A.), Inc., 739 F.2d
624, 627 (Fed. Cir. 1984) (determining that certain attor-
ney argument was merely conclusory and so did not raise
a genuine issue of material fact). We hold that Mr. Car-
penter’s testimony is not conclusory for purposes of demon-
strating that the substantive appeal was properly
addressed, stamped, and mailed in adequate time to reach
the VA. In his affidavit, Mr. Carpenter expressly stated
that his mail was properly addressed “to the Regional Of-
fice in Waco, Texas.” J.A. 195. Though his statement does
Case: 20-1086 Document: 39 Page: 16 Filed: 06/10/2021
16 ANANIA v. MCDONOUGH
not say that he put on postage, putting on postage is inher-
ent in his statement that he “mailed a substantive appeal.”
Id. Finally, mailing the substantive appeal on January 18,
2010 is more than adequate time to reach the VA before the
filing deadline of March 3, 2010, a point conceded by the
Government.
CONCLUSION
For the foregoing reasons, we reverse the Veterans
Court’s holding that Mr. Carpenter’s affidavit was insuffi-
cient to invoke the presumption of receipt under the mail-
box rule.
REVERSED