             UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


                                                    NO . 09-2493

                                      WILLIAM C. RICKETT , APPELLANT ,

                                                           V.


                                           ERIC K. SHINSEKI,
                               SECRETARY OF VETERANS AFFAIRS, APPELLEE.


                              Before KASOLD, HAGEL, and DAVIS, Judges.

                                                     ORDER


        This matter is before the Court as a result of the Secretary's motion to dismiss William C.
Rickett's appeal due to the untimely filing of a Notice of Appeal. For the reasons that follow, the
Court will grant the Secretary's motion and dismiss the appeal for lack of jurisdiction.

                                                     I. FACTS

       On April 14, 2009, more than 120 days after the November 5, 2008, Board of Veterans'
Appeals' (Board) adverse decision, Mr. Rickett filed a Notice of Appeal with the Court. On July 28,
2009, the Secretary filed a motion seeking the dismissal of Mr. Rickett's appeal as untimely.1

       As justification for his untimely filing, Mr. Rickett explained that he had initially sent a
Notice of Appeal to "the wrong department." Notice of Appeal at 1. He attached a copy of a
document hand dated January 7, 2009, and addressed to the VA Office of General Counsel, 810
Vermont Ave, NW, Washington, D.C., 20420. That document stated, in pertinent part:

         Refer to (014A4)
         William C. Rickett
         [Social Security Number]
         This is to inform you that I wish to appeal this to the Courts.
         Thank you
         [signed] William C. Rickett.




         1
          On the same date, the Secretary filed a motion seeking a stay of proceedings in this matter pending the Court's
resolution of the motion to dismiss. The Clerk of the Court granted the motion to stay proceedings.
Notice of Appeal at 2. That January 2009 letter–mailed to the Office of General Counsel within 120
days of the Board decision–is the letter Mr. Rickett urges this Court to construe as his Notice of
Appeal with respect to the November 2008 Board decision.

        The Court subsequently referred this case to a panel of the Court for oral argument and
resolution.

       On December 22, 2009, in response to a Court order, the Secretary informed the Court that
VA had received Mr. Rickett's correspondence on January 26, 2009, at the offices of its Professional
Staff Group 2 of the Office of the General Counsel. Secretary's Response at 2. The Secretary
averred that the correspondence was forwarded to the Waco, Texas, VA regional office where it was
received on February 19, 2009, but no further action was taken. Id.

       The Secretary argued that the agency's receipt of Mr. Rickett's correspondence within the
120-day timeframe set forth for appeals to the Court in 38 U.S.C. § 7266 does not vest the Court
with jurisdiction to hear Mr. Rickett's appeal. The Secretary argued that this Court's decision in
Henderson v. Peake foreclosed any possibility that the time to file a Notice of Appeal with this Court
could be equitably tolled. Secretary's Response at 3 (citing 22 Vet. App. 217, 220 (2008), aff'd sub
nom. Henderson v. Shinseki, 589 F.3d 1201 (Fed. Cir. 2009)). Moreover, the Secretary contended,
this Court's decision in Irwin v. Shinseki addressed the very question at issue here–a timely but
misfiled Notice of Appeal–and held that such a filing had not been timely made "with the Court" as
required by section 7266(a). Secretary's Response at 3 (citing 23 Vet.App 128, 131-32 (2009)).

        In response, Mr. Rickett, now represented by counsel, argued that, because VA received his
Notice of Appeal within the 120 days after the date on which the Board decision was mailed, it was
timely for the purposes of vesting the Court with jurisdiction under section 7266(a).

       On January 12, 2009, the Court heard oral argument in this matter. The parties' arguments
remained wholly unchanged from their filings with the Court.

                                          II. ANALYSIS

         This matter is firmly controlled by Irwin and Henderson. Indeed, the facts of Irwin are nearly
indistinguishable from this case. There, the appellant filed his Notice of Appeal with the Board,
rather than the Court, within 120 days of the date on which the Board mailed its adverse decision.
The Board later forwarded the Notice of Appeal to the Court, but the Court received it well after the
120-day period had expired. The Court determined that, based on Henderson and the United States
Supreme Court's decision in Bowles v. Russell, 127 S.Ct. 2360 (2007) (holding that equitable tolling
of the time to file a Notice of Appeal is not permitted), a timely but misfiled Notice of Appeal could
not confer jurisdiction on the Court. Irwin, 23 Vet.App. at 131. Moreover, the Irwin Court
emphasized that Mr. Irwin's Notice of Appeal had not been filed "with the Court" as required by
section 7266(a), and that it did not meet one of the two circumstances under which a Notice of
Appeal could be "deemed received" by the Court (i.e., on the date of receipt by the Court, if the


                                                  2
notice is delivered; or on the date of the U.S. Postal Service postmark, if the notice is properly
addressed to the Court and is mailed). Id. (citing 38 U.S.C. § 7266(c)). There is no dispute that
(1) the Court did not actually receive Mr. Rickett's Notice of Appeal until April 14, 2009–more than
120 days after the date of the Board decision–and (2) Mr. Rickett initially did not properly address
his Notice of Appeal to the Court. Therefore, his Notice of Appeal may not be "deemed received"
by the Court under section 7266(c).

        To the extent that our dissenting colleague and Mr. Rickett attempt to circumvent Irwin by
arguing that a Notice of Appeal should be "deemed filed" with the Court as of the date it is received
by VA, we find no practical distinction between a document filed and a document "deemed filed."
For a document to be filed with the Court, it must first be received by the Court. It follows, then,
that for a document to be "deemed filed," it must first be "deemed received," and Congress has
dictated the circumstances under which a document may be deemed received: either on the date of
receipt of the document by the Court, or on the date of the U.S. postmark if the document was
properly addressed to the Court and mailed. See 38 U.S.C. § 7266(c). As noted above, Mr. Rickett's
January 2009 submission, addressed to VA, does not meet that requirement. See id.

        Further, the common law mailbox rule to which our dissenting colleague refers applies only
in circumstances in which the appellant can demonstrate that he deposited a properly addressed
mailing with the U.S. Postal Service. See Rios v. Nicholson, 490 F.3d 928, 930-31 (Fed. Cir. 2007)
("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.'" (quoting Rosenthal v. Walker, 111 U.S. 185, 193 (1884)
(emphasis added)).

        In other words, in all cases in which the Court has not physically received a Notice of Appeal
within 120 days of a final Board decision, an exception is made to deem a document received by the
Court within that time frame only where the appellant demonstrates that the document was addressed
to the Court. Again, in this case, there is no dispute that Mr. Rickett's properly addressed Notice of
Appeal was not received by the Court within the 120-day timeframe allowed by statute. See
38 U.S.C. § 7266(a).

        Importantly, a review of the legislative history of 38 U.S.C. § 7266 reveals that Congress
expressly considered the possibility that veterans might address their notices of appeal to VA rather
than the Court and amended section 7266 to require that notice of appeal be addressed to the Court.
In 1993, 38 U.S.C. § 7266(a) read:

       (a) In order to obtain review by the Court of Veterans Appeals of a final decision of
       the Board of Veterans' Appeals, a person adversely affected by that action must file
       a notice of appeal with the Court. Any such notice must be filed within 120 days after
       the date on which notice of the decision is mailed pursuant to section 7104(e) of this
       title.


                                                  3
38 U.S.C. § 7266 (1993). In October 1993, proposed amendments to that section, among others,
were introduced and, in March 1994, those amendments were reported to the Senate by the
Committee on Veterans' Affairs (Committee). Proposed section 7266 added a provision permitting
the Court to deem a Notice of Appeal received in only two circumstances:

       [(a)](3) A notice of appeal shall be deemed to be received by the Court as follows:

               (A) On the date of receipt by the Court, if the notice is delivered.

               (B) On the date of the United States Post Service postmark stamped on the
               cover in which the notice is posted, if the notice is mailed.

S. Rep. No. 103-232, at 1-2 (1993). Also in October 1993, the Committee Chairman sought the
Court's views of the proposed amendments from former Chief Judge of the Court, Frank Nebeker.
In response to the proposed amendments to section 7266(a), Chief Judge Nebeker wrote:

       [P]roposed section [7266(a)] does not provide that the envelope containing the notice
       of appeal must be properly addressed to the Court. For example, many veterans have
       sent the notice of appeal to the Department of Veterans Affairs, State veterans
       departments, or veterans service organizations. This is despite the Secretary's notice
       of appeal rights, which gives the Court's address. Envelopes that are not properly
       addressed may arrive at the Court months, or even years[,] after mailing. This factor
       would call into question the finality of Board of Veterans' Appeals decisions for an
       indefinite period. Finality would certainly be doubtful after the 120-day appeal
       period to the Court had passed, contrary to what is now the case. Under proposed
       section [7266(a)], the period during which a Board decision could be stripped of its
       apparent finality by appeal to the Court would become open[-]ended. The potential
       impact of this amendment could be substantial.

Id. at 9-10. In response, in November 1994, Congress ultimately enacted the version of section
7266(a)(3) that is in effect today (as section 7266(c)), which provided:

(3) A notice of appeal shall be deemed to be received by the Court as follows:

       (A) On the date of receipt by the Court, if the notice is delivered.

       (B) On the date of the United States Postal Service postmark stamped on the cover
       in which the notice is posted, if the notice is properly addressed to the Court and is
       mailed.




                                                 4
38 U.S.C. § 7266(a)(3) (1994) (emphasis added). It is clear, then, that Congress intended that the
Court entertain only those appeals received (or properly addressed and deemed received) by the
Court within 120 days of a final Board decision.

        Our dissenting colleague also contends that the Court has a long history of interpreting the
120-day period prescribed by Congress to allow, in essence, additional time to file a Notice of
Appeal. We disagree. In cases where the Court has allowed "additional" time–for example, in cases
where the 120th day fell on a date the Court was closed, or where an incarcerated prisoner deposited
his Notice of Appeal with prison authorities prior to the expiration of the time period but the Notice
of Appeal was not received by the Court until after the expiration of the time period–technical
compliance with section 7266(a) was not merely "difficult," as our colleague asserts, but impossible.
If the Court is closed, a document simply cannot be filed. Cf. Torres v. Derwinski, 1 Vet.App. 15,
17 (1990) (holding, in a case in which the appellant mailed his Notice of Appeal to VA at a time
when the Court had no "physical facilities," that "'literal compliance [with filing requirements is not
required] in cases in which it cannot fairly be exacted.'" (quoting FED . R. APP . P. 3, advisory comm.
note)).2 Once a prisoner deposits mail with prison authorities, he has no control over when the mail
is actually dispatched. Houston v. Lack, 487 U.S. 266, 276 (1988).3

         Moreover, although our colleague is correct that Rosler v. Derwinski determined that a
motion for reconsideration of a final Board decision filed within 120 days of that decision abates the
finality of the Board decision, he is incorrect that Rosler is an extra-statutory, judicial extension of
the 120 day period to file a Notice of Appeal from that Board decision. 1 Vet.App. 241, 249 (1991).
In fact, Rosler clearly states that a motion for reconsideration of a final Board decision filed within
120 days of that Board decision renders the Board decision not final. Id. Because finality does not
attach until the Board Chairman renders a decision denying the motion for reconsideration, the 120-
day period to file a Notice of Appeal with the Court does not begin until that time. Id. Rosler thus
leaves intact Congress's requirement that a Notice of Appeal be filed within 120 days of a final
Board decision. 38 U.S.C. § 7266(a).


         2
             In Torres, the Court stated:

         In this case, the Court's address was not available when Mr. Torres expressed a desire for judicial
         review. Because the Court had no antecedent, there was not even a former address to which Mr. Torres
         could have sent his notice. Under these circumstances, which can only arise at the initial phase of a
         court's operation, literal compliance with the statute was impossible.

1 Vet.App. at 17.

         3
           To the extent that Mr. Rickett relies on Houston for the proposition that the timing of the filing of the Notice
of Appeal is paramount to the location where the Notice of Appeal is filed, we note that the statute at issue in that case,
28 U.S.C. § 2107, does not specify where the notice of appeal is to be filed. See 28 U.S.C. § 2107(a) ("[N]o appeal shall
bring any judgment, order or decree in an action, suit or proceeding of a civil nature before a court of appeals for review
unless notice of appeal is filed, within thirty days after the entry of such judgment, order or decree."). By contrast,
section 7266(a) expressly states that the Notice of Appeal must be filed "with the Court." 38 U.S.C. § 7266(a); Irwin,
23 Vet.App. at 131.

                                                            5
        Where appellants have been afforded a certain amount of time to file a document by Congress
and technical compliance is impossible, the Court will not infringe upon the right provided by
Congress by requiring that the document be filed on, for example, the 119th day. Here, however,
Mr. Rickett does not argue that technical compliance was impossible. He admits that, along with
the asserted confusion caused by the notice of appellate rights, it was his haste that caused him to
misread the instructions for filing his Notice of Appeal with the Court. The Court's address is given
in bold type on the first page of the notice of appellate rights, along with the statement that the appeal
must be filed within 120 days of the date stamped on the front of the Board decision. Further, the
notice of appellate rights informs would-be appellants that "[t]o ensure full protection of your right
of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or
any other VA office." Notice of Appellant Rights at 1 (emphasis in original). While it is
conceivable that VA could provide its notice of appellate rights in a more concise fashion, we do not
believe that the current notice of appellate rights is confusing. Although our dissenting colleague
notes that 13 appeals have been dismissed since the Irwin decision was issued because the Notices
of Appeal were filed with VA rather than with the Court, we note that hundreds more Notices of
Appeal have been properly filed with the Court since Irwin.

        Because, as the Court in Irwin succinctly stated, "Congress has not authorized this Court to
excuse compliance with the statutory time limit of 120-days and the requirement that the notice be
filed with the Court" (23 Vet.App. at 131), and because there can be no dispute that Mr. Rickett's
appeal was not filed "with the Court" within 120 days after the Board mailed its decision (38 U.S.C.
§ 7266(a)), the Court lacks jurisdiction over this appeal. Accordingly, the Court will grant the
Secretary's motion and dismiss the appeal.

                                         III. CONCLUSION

         Upon consideration of the foregoing, it is ORDERED that the stay of proceedings is lifted.
It is further ORDERED that this appeal is DISMISSED for lack of jurisdiction.

DATED: March 19, 2010                                                            PER CURIAM.

KASOLD, Judge, dissenting: Without question, equitable tolling of our jurisdictional statute is not
permitted when a would-be appellant files a Notice of Appeal (NOA) late. See Bowles v. Russell,
551 U.S. 205 (2007); Henderson v. Peake, 22 Vet.App. 217 (2008), aff'd sub nom. Henderson v.
Shinseki, 589 F.3d 1201(Fed. Cir. 2009). There are valid reasons for Congress to limit our authority
to hear appeals when appellants fail to timely file an NOA. Finality is not an unimportant
consideration. Bingham v. Nicholson, 421 F.3d 1346, 1349 (Fed. Cir. 2005) ("'The purpose of the
rule of finality is to preclude repetitive and belated readjudication of veterans' benefit claims.'"
(quoting Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc))).

      Recently, the Court also held that equitable tolling was not permissible for a misfiling, even
when filed within the 120-day filing period. Irwin v. Shinseki, 23 Vet.App. 128, 131 (2009).

                                                    6
Recognizing that equitable tolling is no longer available for a misfiled NOA, Mr. Rickett presents
two arguments in support of jurisdiction over a timely, yet misfiled NOA, i.e: (1) the notice of
appellate rights is inadequate; and (2) the Court should exercise its authority to deem the NOA filed
with the Court on the date it was misfiled with the Secretary.

         1. Notice of Appellate Rights. I agree with the majority that the appellant fails to
demonstrate that the notice of appellate rights provided in this case was so confusing to the appellant
that it failed to serve its purpose. Certainly, the appellant established that the notice of appellate
rights is confusing, but in his own words he admitted that he erred in mailing his NOA to the correct
address, in part, due to his "haste," and, ultimately, he was able on review to discern the requirement
to file his NOA with the Court (albeit, only after calling the Court and being so informed). Bethea
v. Derwinski, 2 Vet.App. 252, 255 (1992) (holding that appellant bears burden of establishing
jurisdiction by a preponderance of the evidence); see also Irwin, supra at 134 (stating that the notice
of appellate rights was adequate with regard to how and when to file an NOA).

         I note, however, that it may yet be demonstrated that the panoply of information provided in
the current notice of appellate rights provided by the Secretary is simply too much information to
fulfill either the Secretary's statutory requirement to provide notice how to appeal a Board decision
to the Court, 38 U.S.C. § 5104(a); Thompson v. Brown, 8 Vet.App. 169, 177 (1995), or traditional
due process and fair process requirements regarding notice and an opportunity to be heard. Cf.
Cushman v. Shinseki, 576 F.3d 1290, 1298 (Fed. Cir. 2009) (holding that entitlement to benefits is
a property interest protected by the Due Process Clause of the Fifth Amendment to the United States
Constitution), Thurber v. Brown, 5 Vet.App. 119, 123 (1993) (recognizing that the Secretary must
provide reasonable notice and opportunity to respond as a matter of fair process).1 See also Mullane
v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950) ("An elementary and fundamental
requirement of due process in any proceeding which is to be accorded finality is notice reasonably
calculated, under all the circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections."). To this end, judicial notice should be taken
that just since Irwin was issued in August 2009, at least 13 appeals have been dismissed because
veterans timely filed their NOA, but did so with the Secretary.

        It may be that notice how to appeal a Board decision to the Court will have to be provided
in larger print than the current small print used by the Secretary and provided on a stand-alone
document, with the other review rights and information provided to a potential appellant on a
separate document. Although it is the Secretary who has the duty to provide notice how to appeal


         1
            Irwin relied on Cummings v. West, 136 F.3d 1468, 1472-73 (Fed. Cir. 1998), for the proposition that the notice
of appellate rights provided to the appellant in Irwin was adequate with regard to the "how" and "when" to file an NOA.
Presumably because it was not argued, however, Irwin did not address whether the manner in which the notice of
appellate rights was presented was so confusing that it rendered the notice of appellate rights inadequate. In contrast to
the notice of appellate rights reviewed in Cummings, which provided additional information about certain review rights
and requirements not related to an appeal to this Court on less than one page, the appellate notice rights in Irwin was
provided with a myriad of additional information spread over two pages. The appellate notice that Mr. Rickett received
is similar to the notice addressed in Irwin.

                                                            7
to this Court, our duty to review Board decisions cannot be frustrated by the provision of such notice
in such a manner that it leads to confusion.2 Cf. Matter of Cox, 10 Vet.App. 361, 371 (1997) (noting
that the Secretary cannot frustrate the Court's statutory appellate jurisdiction and that mandamus is
appropriate for "cases in which, absent resort to mandamus, we would lose our ability to review"
(quoting United States v. Christian, 660 F.2d 892, 894 (3d Cir. 1981))), vacated on other grounds
sub nom. Cox v. West, 149 F.3d 1360 (Fed. Cir. 1998); see also Cushman and Thurber, both supra.

        2. Deemed Filed. As clear as language might appear when one reads it, it nevertheless may
require interpretation on a subsequent or more thorough reading. See, e.g. Glaser v. Wound Care
Consultants, Inc., 570 F.3d 907, 910 (7th Cir. 2009) (revisiting and more broadly interpreting a prior
interpretation of the phrases "based upon," and "public disclosure" in 31 U.S.C. § 3730(e)(4)(A) to
determine whether the court had jurisdiction to adjudicate a qui tam action to recover improper
Medicaid billing). Thus, while the statutory jurisdictional provision that judicial review of a "final"
Board decision is initiated when an appellant files "a notice of appeal with the Court within 120 days
after the date on which notice of the decision is mailed" appears at one glance to be straightforward
and without room for interpretation, see Irwin, ("Congress has not authorized this Court to excuse
compliance with the statutory time limit of 120-days and the requirement that the notice be filed with
the Court."), on closer review this simply is not accurate.3

         The term "Notice of Appeal" requires interpretation; indeed, the interpretation provided in
the Rules of the Court, U.S. VET .APP . R. 3(c), was later rejected as too restrictive by the Federal
Circuit, Durr v. Nicholson, 400 F.3d 1375, 1382-83 (Fed. Cir. 2005). Similarly, although our
jurisdictional statute states that the mailing of the Board decision starts the 120-day period in which
to file an NOA, the Court has held that the 120-day period begins when the Board decision is mailed
with the notice of appellate rights. See Thompson, supra at 177. Likewise, contrary to the view that


         2
            I ascribe no ill intent with regard to the inclusion of appellate notice rights with the panoply of information
related to other review options and requirements that the Secretary must, or otherwise deems appropriate to, provide to
veterans.

         3
            The majority's suggestion that Irwin must somehow be "circumvented" to conclude that a misfiling below
might nevertheless be a timely deemed filing at the Court under our jurisdictional statute, 38 U.S.C. § 7264, reflects a
failure to consider the time-honored principle that case holdings are limited to the issues raised and decided. Chief
Justice Marshall stated:

         It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in
         connection with the case in which those expressions are used. If they go beyond the case, they may
         be respected, but ought not to control the judgment in a subsequent suit when the very point is
         presented for decision. The reason of this maxim is obvious. The question actually before the Court
         is investigated with care, and considered in its full extent. Other principles which may serve to
         illustrate it, are considered in their relation to the case decided, but their possible bearing on all other
         cases is seldom completely investigated.

See Cohens v. Virginia, 19 U.S. 264, 399 (1821). Irwin closed the door on equitable tolling with regard to misfilings,
but it nowhere addressed whether a timely, yet misfiled NOA could be deemed filed at the Court. Thus, the issue is one
of interpretation, not circumvention.

                                                              8
our jurisdictional statute "permits no exceptions" to the requirement to file an NOA with the Court
within the 120-filing period, Irwin, supra, a potential appellant gets 121 days to file an NOA if the
120th day is on a Sunday, and 121 days to file an NOA if the 120th day is on a Saturday, and 122
days if the 120th day falls on a Saturday and Monday is a holiday, and potentially more days if the
Court is closed for some other reason. U.S. VET .APP . R. 26(a). This is so despite the fact that no
extensions are provided in the statute and any such extension is not necessary because an NOA may
be filed by fax or attached to an e-mail on the 120th day, even when the Court otherwise is closed.
U.S. VET .APP . R. 25.

        And, despite the fact that a Board decision is final when it and notice of appellate rights are
provided to a potential appellant, which should start the 120-day period in which to file an NOA with
the Court, if the potential appellant files a motion for reconsideration with the Chairman of the Board
within the 120-day period, the 120-day period in which to file an NOA with the Court begins anew
after the Board Chairman renders a decision on the request for reconsideration. See Rosler v.
Derwinski, 1 Vet.App. 241, 249 (1991). This is so, regardless of the fact that a decision of the Board
Chairman is not a Board decision, and despite the fact that nothing in the statute suggests that a
request for reconsideration not yet acted upon by the Board Chairman somehow renders a Board
decision not final.

        Further, if you are a confined in an institution,4 our Rules deem your NOA filed on the date
you place it in the institution's internal mail system, U.S. VET .APP . R. 25(b)(4), and for those early
days when the Court's address was not readily available, the Court found the judicial interpretative
authority to find a filing with the Secretary to be deemed a filing with the Court, Torres v. Derwinski,
1 Vet.App. 15, 17 (1990) (citing Houston v. Lack, 487 U.S. 266 (1988)). The decision in Torres also
noted that in the future an NOA would have to be received by the Court to be timely filed, and our
Rules reflect this requirement. U.S. VET .APP . R. 4(a). This is so, even though our jurisdictional
statute did not at the time (and still does not) specifically require "receipt" to constitute a "filing."5

      I cite these "exceptions to" or "interpretations of" our jurisdictional statute not to criticize
them. Rather, they confirm, in my opinion, that our jurisdictional statute is not without need of


         4
         Interestingly, "institution" is not defined, raising another interpretation issue as to whether it includes medical
confinement in addition to penal confinement, or confinement by a foreign "institution".

         5
             The majority's view that for "a document to be filed with the Court, it must first be received by the Court,"
ante at 3, parrots our rule, U.S. V ET .A PP . R. 4(a), but no such requirement exists in the statute, see 38 U.S.C. § 7266.
Similarly, the majority's view that there is "no practical distinction between a document filed and a document 'deemed
filed'", ante at 3, ignores reality. If a document is "deemed filed" when received by the Secretary within 120 days of a
Board decision, it could make an NOA timely filed and thereby vest the Court with jurisdiction, similar to the
consequences of a deemed filing under F ED . R U LE A PP . P RO C . 4(d). Finally, the congressional amendments creating a
statutory postmark rule and defining when a document was "deemed received" serve to expand the limitation in our Court
Rules that an NOA actually had to be received within 120 days of a Board decision to vest the Court with jurisdiction.
See 28 U.S.C. § 7264(b). Nothing in legislation or legislative history indicates Congress changed the basic requirement
that an NOA be "filed" with the Court or otherwise limited or intended to limit our judicial authority to interpret when
a misfiled document might be "deemed filed".

                                                             9
interpretation to ensure its application fulfills the intent of Congress to provide our veterans judicial
review of their claims provided they "file a notice of appeal [of a final Board decision] with the
Court within 120 days after the date on which notice of the [Board] decision is mailed." 38 U.S.C.
§ 7266(a). Indeed, if "receipt" within 120 days of the mailing of the Board decision truly was a
jurisdictional requirement, as opposed to "filing", none of the exceptions noted above could stand.

        I also note that in response to interpretations that an NOA must be "received" by the Court
within 120 days after the date the Board decision is mailed, Congress amended our jurisdictional
statute such that the date of a United States Postal Service postmark on the envelope in which an
NOA is mailed, is the date the NOA is "deemed received" by the Court. 38 U.S.C. § 7266(c).
Moreover, judicial interpretation creates a rebuttable presumption that it is "deemed received" on the
date of normal delivery by the United States Postal Service, Rios v. Nicholson, 490 F.3d 928, 932-33
(Fed. Cir. 2007) ("[T]he common law mailbox rule creates a presumption of fact that the mail was
actually received by its addressee.")

         Just as it is a fact of life that the Court is closed at certain times, underlying the basis for
interpreting our jurisdictional statute to permit a filing beyond the 120th day of the mailing of a
Board decision, it is a fact of life that NOAs will be filed late, or timely filed, but misfiled. A late
filing cannot serve to invoke our jurisdiction. See Henderson, and Bowles, both supra. However,
because, as the Supreme Court stated, the relevant question under a jurisdictional statute is "one of
timing, not destination," Houston, 487 U.S. at 273, a "misfiling" within the 120-day period is viewed
differently. Thus, an NOA placed by an inmate with the institution's mail system is "deemed filed"
at that time, U.S. VET .APP . R. 25(b)(4), and a veteran's filing with the Secretary was "deemed filed"
at a time when the Court's address was not immediately available, Torres, supra.

        Although Houston and Torres involved circumstances that made it difficult to actually file
an NOA with the Court, timing, not specific location, was the key concern. This concept certainly
underlies Rule 4(d) of the Federal Rules of Appellate Procedure, which deems the date an NOA is
misfiled in a court of appeals to be the date it is filed in the appropriate district court. FED . RULE
APP . PROC. 4(d).

        Congress gave the Court the authority to prescribe rules of practice and procedure, and
directed that the Federal Rules of Appellate Procedure serve as interim rules under the Court until
it prescribed its own rules. Pub.L. 101-94, Title II, § 203, Aug. 16, 1989, 103 Stat. 627. Thus,
Congress manifested understanding that the Court would prescribe rules similar to the Federal Rules,
adjusted for the unique setting of the Court. Most appeals to the Court involve disabled veterans;
the Secretary logs in, by date, mail that he receives, and there is no prejudice in requiring him to
forward misfiled NOAs to the Court. Applying the basis underlying FRAP 4(d), and our duty to
interpret the law, I believe it proper and appropriate that we focus on timing, not location, and that




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we consider the date an NOA is misfiled with the Secretary to be the date the NOA is filed with the
Court.6

         For these reasons, I respectfully dissent.




         6
             To the extent the majority's discussion of the individual exceptions to the 120-day "jurisdictional" filing
requirement "with the Court" indicates that my listing of the exceptions was intended to show one of them applied here,
I clarify that my listing is intended only to show that it ignores reality to hold that there are no exceptions, or that our
jurisdictional statute is not subject tojudicial interpretation to effect the intent of Congress. As a final matter, and
contrary to my colleagues' observation that exceptions have only been allowed when filing with the Court has been
"impossible," I note that: (1) "impossibility" is not an exception to the statute; (2) notices of appeal have been permitted
to be filed by fax, on days the Court is closed, since shortly after the Court was established, such that filing on a weekend
is not an "impossibility," (3) nothing prevented the appellant in Rosler v. Derwinski, 1 Vet.App. 241, 249 (1991) from
filing an NOA with the Court within 120 days of the mailing of the Board decision, and (4) the appellant in Torres v.
Derwinski, 1 Vet.App. 15, 16 (1990), was not a prisoner, and descriptions of impossibility notwithstanding, due diligence
could have revealed the Court's address, which was available no later than 14 November 1989, within the 120-day filing
period.

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