A Properly Filed Notice of Appeal
The case of William C. Rickett v. Eric K. Shinseki, Opinion Number 09-2493, decided
The Court was confronted with a Notice of Appeal (NOA) that was timely sent to the VA General Counsel’s office rather than the Court, and only later sent to the Court (after more than 120 days after the date of the Board of Veterans’ Appeals’ decision). Irwin had decided that equitable tolling is no longer permissible for misfiled notices of appeal. Instead, the veteran attempted to argue that the notice of appellate rights sent by the VA was inadequate and that the Court should exercise its authority to deem the notice of appeal filed with the Court on the date it was misfiled with the Secretary.
Both the majority and the dissent rejected any argument that the notice of appellate rights was inadequate and the majority found the case was controlled by Irwin and required dismissal of the case for lack of jurisdiction.
The dissent pointed to the circumstances where a late notice of appeal would be accepted by the Court and used that to determine that a timely notice of appeal was not a jurisdictional requirement and then concluded that because “[m]ost appeals to the Court involve disabled veterans” and “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 is proper and appropriate that we focus on timing, not location, and that we consider the date an NOA is misfiled with the Secretary to be the date the NOA is filed with the Court.”
Despite the spirited dissent by Judge Kasold, the lesson is that the Notice of Appeal is a jurisdictional requirement that must be met absent very limited exceptions. So, a self-represented veteran should carefully read the notice of appellate rights and perhaps consult an attorney as early as possible.
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