holding that a premature NOA became effective upon the Chairman’s denial of a motion for Board reconsideration
How later courts described this case
- holding that a premature NOA became effective upon the Chairman’s denial of a motion for Board reconsideration
- "A party cannot be in 'two places at the same time.'" (quoting Bellsouth Corp. v. F.C.C., 17 F.3d 1487 , 1489 (D.C. Cir. 1994))
Written by the judges who cited it.
The opinion
KRAMER, Judge,
concurring:
The appellant’s NOA was premature when it was filed on May 23, 1994, because the appellant’s prior motion for reconsideration of the April 4,1994, BVA decision abated the finality of such decision. See Rosler v. Derwinski, 1 Vet.App. 241, 249 (1991). While the Court could have dismissed the appeal at the time of receipt of the NOA, see Rosler, 1 Vet.App. at 245 (where a claimant files a motion for reconsideration of a BVA decision, such claimant may not pursue judicial review until the motion is disposed of by the BVA or the claimant withdraws the motion); 38 U.S.C. § 7266 (a) (this Court may only review final BVA decisions), it did not do so.
In light of the fact that the NOA was “received before the ... filing period began and was not returned to the appellant,” March v. Brown, 7 Vet.App. 163, 166 (1994) (involving an application for attorney fees filed under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (d), prior to the entry of judgment), and because the BVA decision became final when the Chairman denied reconsideration on July 8, 1994, see Rosier, 1 Vet.App. at 249 , “such filing [of the NOA] was not untimely even though premature because the appeal period had not run. A premature filing is “treated as if’ it were later filed.” Stillwell v. Brown, 6 Vet.App. 291, 300 (1994) (citations omitted) (EAJA application which was filed after judgment had entered, but prior to the expiration of the 60-day appeal period to the U.S. Court of Appeals for the Federal Circuit, although premature, was deemed timely). Therefore, the appellant’s NOA was timely. The Clerk of the Court should be directed to stamp the NOA filed as of July 9, 1994, one day following the date of the Chairman’s denial of reconsideration, and to so docket it. See March, 7 Vet.App. at 166 (premature EAJA application deemed filed as of the first day of the EAJA application period).