Shropshire v. Derwinski — Notice of Appeal must be received within 120 days

This published order addressed whether the appellant’s notice of appeal was timely for jurisdictional purposes. A single judge had dismissed the case on December 20, 1991, because the notice of appeal was not received by the Court within the required period. The appellant sought panel review, but the Court denied the motion. The concurrence explained that existing precedent and Rule 4 compelled dismissal because the notice had to be actually received within 120 days after mailing of the Board decision. The concurrence also expressed disagreement with that rule and suggested that a legible postmark should be treated as the filing date, but that view was not the controlling holding. The practical effect was to leave intact the jurisdictional dismissal and reinforce the importance of ensuring actual receipt of a notice of appeal within the deadline.

Under the controlling rule applied in this order, a notice of appeal was not timely unless actually received by the Court within the 120-day filing period.

For appellate practice, mailing a notice of appeal near the deadline was not enough under the Court’s then-existing rule; counsel had to ensure timely receipt to avoid a jurisdictional dismissal.

The case is a clear example of the Court’s strict treatment of appellate filing deadlines in the early years of the veterans court. It is useful for understanding historical jurisdiction doctrine and the consequences of missing a notice-of-appeal deadline.

Missing the Court’s jurisdictional filing deadline by relying on mailing date instead of actual receipt.

A veteran mails a notice of appeal on day 119, but the Court receives it after day 120. Under the rule applied here, the appeal would be dismissed for lack of jurisdiction.

Use this order to illustrate the importance of preserving jurisdictional deadlines and, historically, to support arguments about the unfairness of receipt-based filing rules in cases involving mailing delays.

Fletcher v. Derwinski, DiDonato/Elegado v. Derwinski