Magula v Derwinski




No. 90-195  


1990 U.S. Vet. App. LEXIS 23; 1 Vet. App. 76

June 25, 1990, Submitted. November 7, 1990, Decided.


COUNSEL: Daniel A. Miscavige on the pleadings for appellant.  

Raoul L. Carroll, General Counsel, Andrew J. Mullen, then Acting Assistant  General Counsel, and Joan E. Moriarty on the pleadings for appellee.  

JUDGES: Kramer, Ivers, and Stainberg, Associate Judges.  


OPINION: On Appellee’s Motion To Dismiss For Lack of Jurisdiction.   

Summary of Opinion

The appellant, Richard M. Magula, filed an appeal with the Court from a Board of Veterans’ Appeals (BVA) decision. The Secretary of Veterans Affairs  (Secretary) moved to dismiss the appeal for lack of jurisdiction on the grounds that the filing date of the Notice of Disagreement (NOD) was October 28, 1988,  the date on which the Philadelphia, Pennsylvania, Regional Office (Regional  Office) received the NOD. The appellant has always maintained that his NOD was filed on December 13, 1988, the date the NOD was recorded by the Regional  Office. Under the Veterans’ Judicial Review Act (Act), the Court has  jurisdiction to hear an appeal in which an NOD is filed on or after November 18, 1988. The Court holds that the NOD was filed on October 28, 1988, the  date it was received by the Regional Office, and that the Court is thus without jurisdiction. The motion of the Secretary to dismiss is granted.

Procedural History  

On January 24, 1990, the BVA denied appellant service connection for chronic organic gastrointestinal disorder. The appellant filed a timely Notice of  Appeal with the Court in which he stated that the NOD filing date was December  13, 1988. The Secretary filed a motion to, among other things, dismiss for lack of jurisdiction alleging that the appellant’s NOD was filed on October 28, 1988. The record shows that the NOD was stamped as follows: on its reverse side,  “RECEIVED OCT 28, 1988 ADJUDICATION PHILA., PA.”; and on its front side, “Notice of Disagreement recorded DEC 13, 1988”. The appellant responded by continuing  to state that his NOD was filed on December 13, 1988. It is agreed by the  appellant and the Secretary that the NOD was received and recorded by the  Regional Office on the dates indicated. However, the Secretary contends that the NOD was filed on the date it was received and the appellant contends that  the filing date was the date the NOD was recorded. The issue before the  Court is on which date was the NOD “filed” under the terms of 38 U.S.C. §  4005(b)(1) (1988).  


The Act provides that the new provisions relating to judicial review “shall  apply with respect to any case in which a notice of disagreement is filed under section 4005 of title 38, United States Code, on or after . . . [November 18,  1988].” Veterans’ Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat.  4105, 4122 (1988). Section 4005(b)(1) states that the NOD shall be filed within one year from the date of mailing of notice of the result of initial review or  determination . . . and be filed with the activity which entered the  determination with which disagreement is expressed . . . .If an NOD is not filed within this one-year period, this review or determination becomes final. 38 U.S.C. § 4005(b)(1) (1988).

In Skinner v. Derwinski, U.S. Vet. App. No. 89-150 (Jan. 29, 1990), the Court held that it had jurisdiction to hear an appeal only when the NOD was filed on  or after November 18, 1988. Therefore, if the appellant’s NOD was filed on the date it was received by the Regional Office, that is, October 28, 1988, the  Court does not have jurisdiction. However, if the appellant’s NOD was  filed on the date it was recorded by the Regional Office, that is, December 13, 1988, the Court has jurisdiction.

The Adjudication Procedures Manual, 21-1 (Manual), provides that “[a]n  appellate review is initiated by receipt of a notice of disagreement, in  writing, filed with the activity which made the determination with which  disagreement is expressed . . . .” Manual, Paragraph 18.01a. Paragraph 18.01b  of the Manual further provides that “[u]pon receipt of a claimant’s written  notice of disagreement, the agency of original jurisdiction will review the  claim and take any development or other adjudicative action as the facts warrant . . . .” Paragraph 18.05a of the Manual states that “[f]ollowing timely receipt of a written notice of disagreement . . . the [Regional Office] . . . will  review the claim and determine whether any development or other action is  indicated.”  

In contrast, paragraph 18.06a of the Manual discusses the “automated appeal  record” which “will reflect the status of appeals from the initial filing of a  notice of disagreement through final disposition by the BVA.” In this context,  paragraph 18.06b of the Manual is titled “Recording the Notice of Disagreement . . . .”

Paragraph 18.01(a) of the Manual is in accord with the case law interpreting Federal Rule of Civil Procedure 5(e) which governs the filing of pleadings and  other documents in a United States district court. These cases consistently  hold that a document is deemed filed when actually received by the clerk of the court and not when some other processing event occurs. See 2 J. Moore and J.  Lucas, Moore’s Federal Practice P 5.11 (2d ed. 1988); Cooper v. City of Ashland, 871 F.2d 104, 105-6 (9th Cir. 1989); cf. Greenwood v. State of N.Y. Office of  Mental Health, 842 F.2d 636 (2d Cir. 1988); Torras Herreria y Construcciones,  S.A. v. M/V Timur Star, 803 F.2d 215, 216 (6th Cir. 1986); Tucker v. Secretary of Health and Human Services, 684 F. Supp. 556, 558 (N.D. Ind. 1988); Buxton v. Lovell, 559 F. Supp. 979 (S.D. Ind. 1983); Wiss v. Weinberger, 415 F. Supp. 293, 294 (E.D. Pa. 1976).

Because of the one-year time requirement, it usually is to the veteran’s  advantage for an NOD to be filed as early as possible. The time that an NOD is received will always be earlier than the time it is recorded. The date of  receipt involves no discretion on the part of the Regional Office. It  is whatever date the NOD is received by the Regional Office from the veteran.  On the other hand, while the recording of the NOD is no more than a clerical  entry, the date of this entry is one over which the Regional Office has  significant discretion and control. It would be patently unfair for the  Regional Office to have the capability to delay the recording of an NOD beyond  the one-year time limit and thereby deny a veteran the right to appeal.

For the reasons stated above, we hold that an NOD is deemed filed on the date it is received. Accordingly, as the NOD here was filed prior to November 18,  1988, the motion of the Secretary to dismiss for lack of jurisdiction is  granted.

It is so Ordered.

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