DiDonato v. Derwinski — Notice of Appeal Must Be Received Within 120 Days; Equitable Tolling Not Warranted

In this consolidated order, the Court considered motions to dismiss in two cases involving untimely Notices of Appeal from Board of Veterans’ Appeals decisions. In DiDonato, the appellant’s NOA was mailed before the deadline but received by the Court after the 120-day period had expired. In Elegado, the appellant argued that Rule 26 provided an additional 30 days, but the Court held that Rule 26 does not extend the filing deadline for a Notice of Appeal.

The Court reaffirmed that, under Rule 4 and 38 U.S.C. § 7266(a), a Notice of Appeal must generally be actually received by the Court within 120 days after the BVA mails its decision. The Court further concluded that equitable tolling was unavailable because the cases did not present the extraordinary circumstances required under Irwin and Elsevier. On that basis, the Court granted the Secretary’s motions and dismissed both appeals for lack of jurisdiction. The concurring opinion separately criticized the receipt-based rule and urged a postmark rule, but that view did not alter the controlling disposition.

A Notice of Appeal from a Board decision is timely only if received by the Court within 120 days of the Board’s mailing date, absent extraordinary circumstances justifying equitable tolling.

Mailing an NOA before the deadline does not preserve jurisdiction if the Court receives it late. Advocates should confirm actual filing and not rely on ordinary mail delivery when preserving appellate rights.

This case is an early jurisdictional timeliness decision that underscores how strictly the Court enforced the NOA deadline. It matters because missing the filing deadline deprives the Court of jurisdiction, leaving no merits review regardless of the underlying claim.

Untimely filing of the Notice of Appeal

A veteran mails a Notice of Appeal three days before the 120-day deadline, but postal delays cause the Court to receive it after the deadline. Under this case, the appeal is dismissed unless equitable tolling is justified by extraordinary circumstances.

Use this case to support motions to dismiss untimely appeals and to emphasize that actual receipt controls. It also serves as a warning to file early, use reliable delivery methods, and preserve proof of receipt in appellate practice.

Elsevier v. Derwinski, Torres v. Derwinski, Irwin v. Veterans Admin., Christianson v. Colt Industries Operating Corp., Prenzler v. Derwinski, Skinner v. Derwinski