McGee: Late Notices of Appeal and Miscellaneous Order Number 09-19

McGee v. Wilkie, Case Number 18-6853, decided August 20, 2019 concerned a late notice of appeal to the Court.

The veteran received a Board decision on October 19, 2015 and within 120 days of that decision asked the Board of Veterans’ Appeals reconsideration.  Reconsideration denied the motion on August 7, 2018.  The veteran filed a notice of appeal on December 7, 2019, which is 122 days after the issuance of the denial of reconsideration.

As the Court noted:

Board decisions must be appealed to this Court within 120 days of the decision's mailing.  If a claimant files a motion for Board reconsideration within that 120-day period, the finality of the Board decision is abated and a new 120-day appeal period begins to run on the date the Board mails the claimant notice that the Board Chairman denied reconsideration.  An NOA filed within that new 120-day period initiates an appeal of the underlying Board decision.  Where an appellant files such an NOA, the NOA may also initiate review of the Board Chairman's denial of reconsideration, but the Court's review of that denial is limited.

Id. at *1.

The veteran argued he actually sent the notice of appeal in the mail on December 4, 2018, which would be timely, but it was not actually received by the Court.  The Court noted it could wade into a discussion of whether the notice was actually mailed or whether equitable tolling applied, but instead could potentially rely upon the Court’s Miscellaneous Order Number 09-19, which revised Rule 4 of the Court’s Rules of Practice and Procedure.  The Court described the order:

In its revised form, the rule provides that NOAs "received within 30 days after the expiration of the filing deadline" are considered timely if "the appellant demonstrates good cause or excusable neglect for failure to file" within the 120-day window.  The revised rule also provides that NOAs "received more than 30 days after the expiration of the filing deadline" can be considered timely if equitable tolling is warranted.  Misc. Order 09-19 provides that this rule was "published and [] effective" on June 21, 2019.13 But the order did not state whether the rule change was intended to apply only to NOAs filed after that date or, should a motion to dismiss be filed, to all claims pending as of that date.

Id. at *2-3.

The Court formed a panel to consider and determine whether the provision applies only to NOAs filed after the Order or those pending before and ultimately “the Court interpret[ed] Misc. Order 09-19 to apply to all appeals pending at the Court as of June 21, 2019, regardless of when the NOA itself was filed.”  Id. at *3-4.

The Court then considered the issue of good cause or excusable neglect to determine if the filing should be allowed pursuant to the Order.  I take a moment to note the Order does not eliminate the possibility that equitable tolling could apply to a late NOA, but offers another path—note the Court states the Order provides that NOA received more than 30 days late may be considered timely if equitable tolling is warranted.  Id. at *3.

In terms of good cause or excusable neglect, the Court essentially accepted the veteran’s explanation and messy procedural history of this case and noted:

Appellant alleges he "received duplicate(s) of the Board's [decision] at three junctures with two different dates and three different time stamps." On appeal to this Court, the Secretary himself was confused about what decision was on appeal as he initially filed a December 7, 2018, Board decision, later correcting the record with an October 19, 2015, Board decision. In a nonlegal sense, the administrative record here is "messy."

The Secretary hasn't given the Court any reason to doubt appellant's assertion that he "received duplicate(s) of the Board's [decision] at three junctures with two different dates and three different time stamps." And there's no question the sequence of events involving multiple decisions and repeated mailings was confusing. Given this, and considering both the revisions to Rule 4 and "the need for flexibility" when enforcing procedural bars in Federal courts when equity is in play, the Court holds appellant had good cause for filing his NOA 2 days late.

Id. at *4.

This is an interesting early application of the Court rule about late filings that demonstrates a pro-veteran slant.  It will be likely be used as the template for such cases in the future, though I believe the term “good cause or excusable neglect” will likely need to be fleshed out by future cases.

The was a per curium decision was by Judges Bartley, Greenberg, and Allen.

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