Posey: The Misfiled Notice of Appeal and the VA's Duty

The Misfiled Notice of Appeal and the VA’s Duty

The case of Robert V. Posey v. Eric K. Shinkseki, Opinion Number 08-0240, decided April 23, 2010, concerns an improperly filed notice of appeal and is another extension of a line of cases arising from the Court’s 2009 decision in Irwin v. Shinseki and coming on the heals of William C. Rickett v. Eric K. Shinseki, Opinion Number 09-2493, decided March 17, 2010.

This is one of a long line of cases that deals with a possibly improperly filed notice of appeal. Here, the VA had sent a BVA decision to the wrong address and resent it to the correct address apparently two months later. The veteran sent a letter to the VA 114 days after the decision was apparently resent. The VA interpreted the letter to be a notice of appeal. The letter was received by the VA on November 8, 2007 and forwarded to the Court of Appeals on January 19, 2008. By the time the letter was received at the Court of Appeals, more than 120 days had elapsed, meaning the purported notice of appeal was untimely.

The Court called the VA to task for waiting over 2 months to forward the purported notice of appeal to the Court and instead determined that the document was not a notice of appeal but a motion for reconsideration directed to the BVA. This effectively meant the motion for reconsideration tolled the finality of the BVA decision and meant that the BVA had to render a decision on the motion to reconsider before the notice of appeal had to be sent.

The Court considered the document a motion to reconsider because it requested a Board hearing in Washington, DC, had attached a VA form 1-9, was directed to the Board of Veteran Appeals in salutation, and does not in its body refer to the Court.

The Court further dealt with a side issue regarding the presumption of regularity of the Secretary’s actions before two concurring opinions took the VA to task for possibly sitting on a notice of appeal to “run…out the clock.”

Judge Hagel said “it has become clear to me that VA somewhat routinely holds correspondence from claimants that it determines, sometime after receipt, are Notices of Appeal to this Court. As a result, in far too many cases, the Court receives the Notices of Appeal from VA only after the 120-day appeal period has expired.” Judge Hagel suggested that Congress address this issue by amending 38 U.S.C. Section 7266 (regarding Notices of Appeals) to say that if it is sent to the VA during the 120-day appeal period that it will be regarded as a motion for reconsideration.

Judge Lance also wrote a separate concurrence wherein he noted the problem and stated, “The perception [that the VA is willfully failing to return or forward the purported notices of appeals in a timely manner] will persist until such time as the Secretary develops uniform practices and procedures dealing with misfiled NOAs…. Of course, the Secretary, if he elects, can merely return the misfiled NOAs within a reasonable amount of time and advise veterans to perfect their appeal in a timely manner with instructions as to where to send their NOA.” The judge noted that while it is ultimately the Secretary’s responsibility to develop practices to take care of the misfiled NOAs, “it is this Court’s obligation to ensure that rights and protections given to veterans by Congress and a grateful citizenry are effectuated in the spirit as well as letter of the law”. Judge Lance then noted it is appropriate in some circumstances for the Court to construe misfiled NOAs that are not timely and appropriately addressed by the Secretary as a request for reconsideration by the Board or in the alternative that the Secretary’s actions can result in waiver of the technical requirements associated with filing an appeal.

While this decision is not an ultimate resolution of the problem of misfiled NOAs, it does represent a significant signal to the VA that the Court is concerned about a possible pattern by the VA of not adequately addressing misfiled NOAs and that the Court (especially Judges Lance, Hagel, Kasold (see his dissent in Rickett) and Schoelen) might be willing to assist a veteran who has misfiled a NOA.

Decision by Judges Hagel, Lance and Schoelen, with separate concurrences by Hagel and Lance.