UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

MISC. NO. 09-19

IN RE: RULES OF PRACTICE AND PROCEDURE

O R D E R

 Pursuant to the authority of 38 U.S.C. §§ 7263(b) and 7264(a) and consistent with 28 

U.S.C. § 2071(b), the Court has revised Rule 4 (FILING OF APPEAL; DOCKETING; COPY OF BOARD 

DECISION), Rule 3 (APPELLATE PROCEDURE), and Rule 26 (COMPUTATION AND EXTENSION OF TIME)

of its Rules of Practice and Procedure. A proposed revision was published for public 

comment by MISC. NO. 04-19 (January 29, 2019). 

The Court benefited from public comment and from the views of its Rules Advisory 

Committee. Accordingly, it is

ORDERED that the attached revision of Rules 4, 3 and 26 is hereby published and is 

effective this date. It is further

ORDERED that as proposed by MISC. NO. 04-19, the Instructions section of the Court's

standard Notice of Appeal (Form 1) reflect the changes to Rule 4.

DATED: June 21, 2019 FOR THE COURT:

 /s/Gregory.O. Block

GREGORY O. BLOCK

 Clerk of the Court

Attachment
Attachment 1 - Revised Rules

RULE 4. FILING APPEAL; DOCKETING; COPY OF BOARD DECISION

(a) (1) Time for Appeal. A Notice of Appeal must be received by the Clerk not later than 120 

days after the date on which the Board mailed notice of the decision to the last known address of 

the appellant and the appellant's authorized representative, if any. See also Rule 25 (Filing and 

Service).

(2) Deemed Receipt. A Notice of Appeal is deemed received-

(A) on the date of its legible postmark, affixed by the U.S. Postal Service (not including a 

postage-metered date imprint other than one affixed by the U.S. Postal Service) on the cover in 

which the Notice of Appeal is posted, if the mailing is properly addressed to the Court and is 

mailed; or

(B) on the date of its receipt by the Clerk, if it does not bear a legible postmark affixed by the

U.S. Postal Service, or if it is delivered or sent by means other than U.S. mail. But see Rule

25(b)(1)(B) (filing and service for appellant confined in an institution).

(3) Timeliness; Good Cause or Excusable Neglect; Equitable Tolling

(A) If the Secretary does not within 45 days after the filing date of the Board decision 

(pursuant to Rule 4(c)) file a motion to dismiss an appeal for failure to file a timely Notice of 

Appeal within the 120-day appeal period, the Notice of Appeal will be treated as timely 

regardless of the date it was received.

(B) If the Secretary within 45 days after the filing date of the Board decision moves to 

dismiss an appeal for failure to file a timely Notice of Appeal within the 120-day appeal 

period, an untimely Notice of Appeal will be treated as timely if

(i) the Notice of Appeal is received within 30 days after the expiration of the filing 

deadline and the appellant demonstrates good cause or excusable neglect for failure to file the 

Notice of Appeal within the 120-day period; or

(ii) the Notice of Appeal is received more than 30 days after the expiration of the filing 

deadline but equitable tolling is warranted because the appellant demonstrates an extraordinary 

circumstance that prevented filing in a timely manner and the exercise of reasonable due

diligence in attempting to file a timely Notice of Appeal.
Attachment 1 - Revised Rules

(b) Docketing.

(1) Docketing the appeal. Upon receipt of the Notice of Appeal, the Clerk will docket the 

appeal, identifying the appellant by name, unless otherwise ordered by the Court.

(2) Designation of public official. The Secretary shall be described as the "appellee" by name 

and official title.

(3) Notice of docketing. The Clerk shall send a notice of docketing to all parties advising them 

of the date the Clerk received the Notice of Appeal.

(c) Copy of Board Decision. Not later than 30 days after the date the Clerk issues a notice of 

docketing (See subsection (b)(3)), the Secretary shall file with the Clerk under separate docket 

entries and serve on the appellant a copy of the Board's decision, showing-

(1) the date on which notice of the decision was mailed, with any personal identifiers redacted 

except the name of the appellant (See E-Rule1(a)(10) (definition of "personal identifier"));

(2) a reference transmittal identifying the Board decision with any necessary personal identifiers, 

which when electronically filed will be locked (See E-Rule 4(d)); and

(3) if applicable, the filing date of any motion for reconsideration or vacatur of the Board 

decision, and the date and nature of any action on such a motion.
Attachment 1 - Revised Rules

RULE 3: APPELLATE PROCEDURE

(a) Filing. To appeal a Board of Veterans' Appeals (Board) decision, a person adversely affected 

by the decision must file a Notice of Appeal with the Clerk, within the time allowed by law. See 

Rule 4(a). Because the Notice of Appeal will likely contain personal identifiers, that electronic 

record will be locked and accessible through CM/ECF only to CM/ECF Users in that case. See

E-Rule 4(b). Failure to file a timely Notice of Appeal in accordance with law will result in 

dismissal of the appeal, except to the extent an untimely Notice of Appeal satisfies Rule 

4(a)(3). See also Rule 38(b) (Failure to Act).

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RULE 26: COMPUTATION AND EXTENSIONOF TIME

 

(b) Extension of Time. The Court, on its own initiative or on a party's motion for good cause 

shown, may extend the time set by these Rules for doing any act, or may permit an act to be done 

after the expiration of such time, but the Court may not extend the time for filing a Notice of 

Appeal except as provided by Rule 4, or an application for attorney fees and expenses. See also 

Rule 5(a) (Stay of Appellate Proceedings). The Court may grant an extension of time not to 

exceed a total of 45 days for any particular filing for good cause. Any motion to extend the time 

set by these Rules or by an order or notice of the Court beyond a total of 45 days for a particular 

filing will be granted only for extraordinary circumstances.

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