Jaquay v. West

11 Vet. App. 67, 1998 U.S. Vet. App. LEXIS 177, 1997 WL 834508
CourtUnited States Court of Appeals for Veterans Claims
DecidedFebruary 9, 1998
DocketNo. 95-510
StatusPublished
Cited by13 cases

This text of 11 Vet. App. 67 (Jaquay v. West) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jaquay v. West, 11 Vet. App. 67, 1998 U.S. Vet. App. LEXIS 177, 1997 WL 834508 (Cal. 1998).

Opinion

STEINBERG, Judge:

The case is before the Court pursuant to a May 23,1995, Notice of Appeal (NOA) as to a September 20, 1993, Board of Veterans’ Appeals (Board or BVA) decision. Presently pending is the Secretary’s motion to dismiss the appeal for want of a timely filed NOA. For the reasons that follow, the Court will grant that motion and dismiss the appeal for lack of jurisdiction.

I. Procedural Background and Facts

This case has a complex procedural history, which is briefly summarized as follows. On August 1, 1995, the Secretary filed a motion to dismiss, arguing that the NOA was untimely because the Court received it more than 120 days after the mailing of the notice of the Board decision sought to be appealed. The Secretary also notes that the appellant had filed (on December 27,1993) a motion for BVA reconsideration with a Department of Veterans Affairs (VA) regional office (RO) instead of with the BVA pursuant to 38 C.F.R. § 20.1001(b) (1997), and that that motion was not forwarded by the RO to the BVA until October 1994, resulting in the Board’s receipt of the motion on November 17,1994. The Secretary argues that because that reconsideration motion was not received by the BVA within 120 days after the mailing of the BVA decision in question, the 120-day period for filing an NOA with this Court under 38 U.S.C. § 7266(a) [hereinafter NOA-filing period] was not tolled within the meaning of Rosler v. Derwinski, 1 Vet.App. 241, 249 (1991). The motion for reconsideration was denied by the Board Deputy Vice Chairman on January 27, 1995, and that denial — if the NOA-filing period had been tolled under Rosier, supra, by the motion for reconsideration — would mean that the appellant’s May 23, 1995, NOA was timely filed with this Court.

The appellant argues that the RO had a duty to forward the motion for reconsideration to the BVA. In light of this and because the Secretary’s motion to dismiss raises a question about the interpretation of 38 C.F.R. § 20.1001(b) and whether the motion for reconsideration tolled the NOA-filing period in this case, this case was referred to this panel. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990) (single-judge disposition appropriate only where ease is one “of relative simplicity” whose outcome is controlled by Court’s precedents and is “not reasonably debatable”). Additional orders by the Court and responses by the Secretary and the appellant have further developed the issue of whether the NOA was timely filed within the meaning of Rosier. The Court also granted an unopposed motion by the National Organization of Veterans’ Advocates, Inc., to appear as amicus curiae in this case. All of the ordered pleadings have been filed and considered, and the issue is now ready for resolution.

II. Analysis

Section 7266(a)(1) of title 38, U.S.Code, provides:

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 such decision shall [69]*69file a notice of appeal with the Court within 120 days after the date on which notice of the decision is mailed pursuant to section 7104(e) of this title.

38 U.S.C. § 7266(a)(1). The pertinent precedent is plain: When a claimant

fíles a motion for reconsideration with the BVA during the 120-day judicial appeal period, the finality of the initial BVA decision is abated by that motion.... A new 120-day period begins to run on the date on which the BVA mails to the claimant notice of its denial ... [or, if the motion is granted] on the date that notice of the decision of an expanded section of the BVA is mailed to the claimant.

Rosier, 1 Vet.App. at 249 (emphasis added); see also Murillo v. Brown, 10 Vet.App. 108, 109-10 (1997) (where there are multiple motions for reconsideration, if each is filed within NOA-filing period, each tolls NOA-filing period anew). Because the Court received the appellant’s NOA in the instant case on May 23, 1995 — within 120 days after the BVA Deputy Vice Chairman’s January 27, 1995, denial of the appellant’s motion for reconsideration — the only issue presently before the Court is whether the appellant’s submission of that motion to the RO constituted a filing with the BVA within the meaning of Rosier so as to toll the period for filing an NOA with this Court. As recognized in the Court’s briefing order and the pleadings of the parties and the amicus curiae, this question implicates, inter alia, the interpretation of and authority for 38 C.F.R. § 20.1001(b); the relationship among the RO, the BVA, and the Secretary; the question whether the RO had a legal obligation to forward to the BVA in a more timely manner the motion for reconsideration and/or a legal obligation to return the motion to the claimant promptly with a notice that he needed to file it directly with the BVA; and, if so, what difference that would make as to the timeliness of the NOA. On the basis of the following analysis, the Court holds that the appellant’s motion for reconsideration was not “filed” with the BVA in accordance with Rosier and that, therefore, the Court lacks jurisdiction over the appeal.

A. Authority for and Interpretation of 38 C.F.R. § 20.1001(b)

The Secretary relies on 38 C.F.R.- § 20.1001(b), which states:

A motion for reconsideration of a prior [Board] decision may be filed at any time. Such motions must be filed at the following address: Director, Administrative Service (014), Board of Veterans’ Appeals, 810 Vermont Avenue, NW., Washington, DC[,] 20420.

38 C.F.R. § 20.1001(b). The Secretary is granted broad power in 38 U.S.C. § 501(a) “to prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the Department and are consistent with those laws, including ... the forms of application by claimants under such laws”. Because 38 U.S.C. § 7103(a), which states 'only that “the Chairman [may] order[ ] reconsideration ... on the Chairman’s initiative or upon motion of the claimant”, does not specify where a claimant is to file a motion for BVA reconsideration, the Secretary necessarily must determine where such a motion is to be filed. Cf. 38 U.S.C. § 7105(b)(1) (specifying that Notice of Disagreement as to agency of original jurisdiction (AOJ) decision to be filed with AOJ). Because nothing in the governing statutory

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Bluebook (online)
11 Vet. App. 67, 1998 U.S. Vet. App. LEXIS 177, 1997 WL 834508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jaquay-v-west-cavc-1998.