United States Court of Appeals for the Federal Circuit 

04-7099 

LUTHER N. DURR, 

Claimant-Appellant, 

v. 

R. JAMES NICHOLSON, 

Secretary of Veterans Affairs, 

Respondent-Appellee. 

Mark R. Lippman, The Veterans Law Group, of La Jolla, California, argued for 

claimant-appellant. 

Leslie Cayer Ohta, Attorney, Commercial Litigation Branch, Civil Division, United 

States Department of Justice, of Washington, DC, argued for respondent-appellee. 

With her on the brief were Peter D. Keisler, Assistant Attorney General; David M. 

Cohen, Director; and Todd M. Hughes, Assistant Director. Of counsel on the brief were 

Michael J. Timinski, Deputy Assistant General Counsel, United States Department of 

Veterans Affairs, of Washington, DC; and Y. Ken Lee, Attorney. Of counsel were 

Donald E. Kinner, Assistant Director, Commercial Litigation Branch; and Christina C. 

Ashworth, Attorney. 

Appealed from: United States Court of Appeals for Veterans Claims 

Former Chief Judge Kenneth B. Kramer 
 

United States Court of Appeals for the Federal Circuit 

04-7099 

LUTHER N. DURR, 

 Claimant-Appellant, 

v. 

R. JAMES NICHOLSON, Secretary of Veterans Affairs, 

 Respondent-Appellee. 

 ___________________________ 

 DECIDED: March 11, 2005 

 ___________________________ 

Before NEWMAN, CLEVENGER, and DYK, Circuit Judges. 

DYK, Circuit Judge. 

 Luther N. Durr (“Durr”) appeals from the decision of the Court of Appeals for 

Veterans Claims (“Veterans’ Court”), which dismissed his appeal for failure to file a 

timely notice of appeal. Durr v. Principi, 17 Vet. App. 486 (2004). Because we find that 

the Veterans’ Court misconstrued the notice of appeal requirements of Rule 3 of the 

Rules of Practice and Procedure of the Court of Appeals for Veterans Claims, we 

reverse and remand for further proceedings. 

BACKGROUND 

 In 1997, the Department of Veterans Affairs (“VA”) denied Durr’s claims for 

cervical spine disorder and tinnitus. Durr appealed to the Board of Veterans’ Appeals 

(“Board”). On September 28, 2000, the Board also denied Durr’s claim.
On December 6, 2000, Durr filed a motion for reconsideration with the Board. 

The Board denied reconsideration on January 9, 2001. Attached to the Board decision 

was a standard appeal notice, which stated: “You have the right to appeal this decision 

to the United States Court of Appeals for Veterans Claims . . . . A Notice of Appeal 

must be filed with the Court within 120 days from the date of mailing of the notice of the 

BVA’s decision.”

On January 29, 2001, within the 120 day period, the Veterans’ Court received a 

document with Durr’s printed name and signature, titled “Memorandum”, and addressed 

to the Board (the “notice”). In bold type, the notice stated: “I hear by [sic] request the 

Court of Appeals for Veterans Claims, to file my appeal with the court.” (J.A. at 8.) The 

body of the document then discussed the issues raised by the Board decision, stating: 

“Treatments at medical facilities . . . show an old injury consistent to [sic] the type of 

head trauma I received in service as a boxer,” and later stating: “On the issue of 

Tinnitus, evidence of record does show an in head trauma.” (Id.) The notice arrived at 

the Veterans’ Court in an envelope bearing the return address of a VA facility in 

California. It did not have Durr’s address, telephone number, or VA claims file number. 

On January 31, 2001, the Veterans’ Court sent Durr an information sheet on how 

to appeal to the Veterans’ Court, along with a notice of appeal form. Durr filed a pro se 

notice of appeal with the Veterans’ Court on July 18, 2001, 190 days after the Board’s 

reconsideration decision. The Veterans’ Court issued an order for Durr to show cause 

why the appeal should not be dismissed as untimely. Durr, having secured counsel, 

responded. The Veterans’ Court eventually found that the January 29 notice of appeal 

did not satisfy the requirements for a valid notice of appeal, and that the July 18 notice 

04-7099 2 
of appeal was untimely. The Veterans’ Court thus dismissed the appeal for lack of 

jurisdiction. 

Durr appealed to this court. While the appeal was pending, we decided Jaquay 

v. Principi, 304 F.3d 1276 (Fed. Cir. 2002) (en banc), which held that a motion for 

reconsideration misfiled with the regional office of the VA instead of the Board may 

trigger equitable tolling of the 120 day notice of appeal period. In light of our Jaquay

decision, the VA moved unopposed for a remand to the Veterans’ Court, which was 

granted. Durr v. Principi, 66 Fed. Appx. 884 (Fed. Cir. 2003). On remand, in a 

published opinion, the Veterans’ Court again determined that there was no timely notice 

of appeal, and thus it lacked jurisdiction. The Veterans’ Court concluded that the 

January 29 notice was fatally defective as a notice of appeal because the notice “in no 

way indicated in that document which [Board] decision he sought to appeal. . . . 

Moreover . . . , he did not include in the document his address, telephone number, and 

VA claims file number.” 17 Vet. App. at 493. The Veterans’ Court also rejected Durr’s 

argument that his January 29 notice was a second motion for reconsideration.1

Durr appeals to this court. 

DISCUSSION 

I 

We must first consider whether we have jurisdiction in this case. We review 

decisions of the Veterans’ Court pursuant to 38 U.S.C. § 7292. Under 38 U.S.C. 

 1 In view of our conclusion that Durr’s January 29 notice conferred 

jurisdiction on the Veterans’ Court, we do not reach the question of whether it may also 

be properly considered a second motion for reconsideration. Nor need we decide 

whether a second motion for reconsideration tolls the 120 day statutory notice of appeal 

period. See generally Perez v. Derwinski, 2 Vet. App. 149 (1992). 

04-7099 3 
§ 7292(d)(2), we “may not review (A) a challenge to a factual determination, or (B) a 

challenge to a law or regulation as applied to the facts of a particular case,” except to 

the extent that an appeal raises a constitutional issue. The government contends that 

the case involves an application of law to fact, namely the application of the law 

regarding requirements of a notice of appeal to the facts of Durr’s notice. 

The government misunderstands § 7292(d)(2). “[W]e . . . have jurisdiction to 

determine whether the legal requirement of the statute or regulation has been correctly 

interpreted in a particular context where the relevant facts are not in dispute.” Szemraj 

v. Principi, 357 F.3d 1370, 1375 (Fed. Cir. 2004). “[W]hen the material facts are not in 

dispute and the adoption of a particular legal standard would dictate the outcome of the 

. . . claim, this court has treated the question . . . as a matter of law that we are 

authorized by statute to address.” Bailey v. Principi, 351 F.3d 1381, 1384 (Fed. Cir. 

2003). The material facts concerning the content of Durr’s notice of appeal are not in 

dispute, and our interpretation of the legal requirements governing notices of appeal will 

dictate the outcome in this case. In these circumstances, the issue before us is one of 

law, and we have jurisdiction. 

II 

A 

The issue in this case is whether the Veterans’ Court properly interpreted the 

requirements of a notice of appeal. Notices of appeal are required by 38 U.S.C. § 7266, 

which provides that “[i]n order to obtain review by the Court of Appeals for Veterans 

Claims . . . , a person . . . shall file a notice of appeal with the Court within 120 days 

after the date on which notice of the [Board] decision is mailed.” Pursuant to this 

04-7099 4 
statutory requirement, Rule 3(c) of the Rules of the Court of Appeals for Veterans 

Claims (“CAVC Rule 3”) prescribes the content of a notice of appeal. CAVC Rule 3 is 

modeled after Rule 3 of the Federal Rules of Appellate Procedure (“FRAP”).2 Calma v. 

Brown, 9 Vet. App. 11, 14 (1996). The language of the rule is not discussed in the 

Veterans’ Court’s opinion. The language of the rule is important, especially because 

there are two versions of the rule that are potentially relevant. The rule in effect at the 

time of the filing of the first notice, namely January 29, 2001, stated: 

(c) Content. The Notice of Appeal shall: 

 (1) name the party or parties taking the appeal; 

 (2) designate the Board decision appealed from; and 

 (3) include the addresses of the appellant(s) and of any representative. 

Form 1 in the Appendix of Forms is a suggested form of Notice of Appeal. An 

appeal will not be dismissed for informality of the Notice of Appeal. 

38 U.S.C. app. Rule 3(c) (2000). 

The rule was subsequently amended. On the date of the Veterans’ Court’s 

decision and presently, Rule 3(c) states: 

(c) Content. The Notice of Appeal . . . must — 

 2 FRAP 3(c) provides: 

(c) Contents of the Notice of Appeal. 

 (1) The notice of appeal must: 

 (A) specify the party or parties taking the appeal by naming each one 

in the caption or body of the notice, but an attorney representing more 

than one party may describe those parties with such terms as “all 

plaintiffs,” “the defendants,” “the plaintiffs A, B, et al.,” or “all defendants 

except X”; 

 (B) designate the judgment, order, or part thereof being appealed; and 

 (C) name the court to which the appeal is taken. 

. . . . 

(4) An appeal must not be dismissed for informality of form or title of the 

notice of appeal, or for failure to name a party whose intent to appeal is 

otherwise clear from the notice. 

(5) Form 1 in the Appendix of Forms is a suggested form of a notice of 

appeal. 

04-7099 5 
(1) show the most recent name, address, and telephone number of the 

person or persons taking the appeal, and the appropriate Department of 

Veterans Affairs (VA) claims file number; 

(2) reasonably identify the Board decision appealed from and be able to 

be reasonably construed, on its face or from the surrounding 

circumstances, as expressing an intent to seek Court review of that 

decision; and 

(3) if filed by a representative other than one making a limited 

appearance, be accompanied by a notice of appearance and its 

attachments. See Rule 46(d)(2) and (6). 

Form 1 in the Appendix of Forms is a suggested, but not required, form 

for a Notice of Appeal. Correspondence will be liberally construed in 

determining whether it is a Notice of Appeal. 

Ct. App. Vet. Cl. R. 3(c) (2004). The first version will be referred to as the “2000 rule” 

and the second as the “2004 rule.” 

Subsection (c)(1) of the 2004 rule imposed new requirements that a notice of 

appeal show the appellant’s telephone number and VA claims file number. The 2004 

rule, however, may be viewed as liberalizing the requirements of the rule in other 

respects. 

We must therefore consider which version of the rule applies. Absent clearly 

expressed intent to the contrary, statutes and regulations are presumed not to have 

retroactive effect. INS v. St. Cyr, 533 U.S. 289, 316 (2001). Moreover, “a statutory 

grant of legislative rulemaking authority will not, as a general matter, be understood to 

encompass the power to promulgate retroactive rules unless that power is conveyed by 

Congress in express terms.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 

(1988). The Veterans’ Court’s statutory grant of rulemaking authority does not contain 

any authorization for retroactive rulemaking. See 38 U.S.C. § 7264(a) (2000). Applying 

the 2004 rule to Durr’s notice of appeal would have impermissible retroactive effect if it 

04-7099 6 
would render invalid a notice that was valid when filed. Therefore, the 2004 rule is 

inapplicable and the requirements of the 2000 rule govern Durr’s notice of appeal. 

B 

The adequacy of a notice of appeal must be determined with two background 

interpretative principles in mind. The first principle is that notices of appeal are to be 

liberally construed. See Smith v. Barry, 502 U.S. 244, 248 (1992) (“Courts will liberally 

construe the requirements of [FRAP] Rule 3.”). The 2000 rule provides that “[a]n appeal 

will not be dismissed for informality of the Notice of Appeal,” and the 2004 rule provides 

that “[c]orrespondence will be liberally construed in determining whether it is a Notice of 

Appeal.” In explaining the similar language of FRAP 3(c), upon which CAVC Rule 3(c) 

was based, the advisory committee notes state that “so long as the function of notice is 

met by the filing of a paper indicating an intention to appeal, the substance of the rule 

has been complied with.” The second background principle is that pro se pleadings 

are to be liberally construed. Hughes v. Rowe, 449 U.S. 5, 9-10 (1990); Forshey v. 

Principi, 284 F.3d 1335, 1357 (Fed. Cir. 2002) (en banc). 

C 

The Veterans’ Court appeared to conclude that Durr’s notice of appeal was 

deficient for three separate reasons, even though, as the government concedes, there 

has been no prejudice.3

 We disagree with each of the reasons given by the Veterans’ 

Court. 

 3 We note that the Veterans’ Court was able to determine the Board 

decision appealed from and Durr’s address. The court mailed information to Durr within 

two days of receiving his notice of appeal. 

04-7099 7 
First, the Veterans’ Court held that the notice failed to “designate the Board 

decision appealed from,” because the notice did not specifically identify the Board 

decision from which the appeal was taken. The government attempts to support the 

Veterans’ Court’s decision in this respect, characterizing the appellant’s argument to the 

contrary as “specious.” (Br. of Appellee at 10.) We disagree with the Veterans’ Court’s 

interpretation of CAVC Rule 3(c). 

In interpreting FRAP 3(c)(1)(B), which, in similar language, requires that a notice 

of appeal “designate the judgment, order, or part thereof being appealed,” the Supreme 

Court has held that whether a lower court judgment is designated should be determined 

“in light of all the circumstances.” FirsTier Mortgage Co. v. Investors Mortgage Ins. Co., 

498 U.S. 269, 276 n.6 (1991). Moreover, the 2004 rule expressly states that the issue 

of whether a Board decision has been identified should be determined by reference to 

the surrounding circumstances. While the new rule is not retroactive, the rulemaking 

concerning the 2004 rules sheds light on the proper understanding of the 2000 rule. 

The language of the 2004 rule was expressly adopted to incorporate the understanding 

of the 2000 rule reflected in Calma, 9 Vet. App. at 15, that a notice of appeal “need not 

contain a literal statement that a [Board] decision is being appealed to the Court, as 

long as the intent to seek Court review is clear from the document as a whole and the 

circumstances of its filing with the Court.” In Re Rules of Practice & Proc., Misc. No. 1-

02 (Vet. App. Sept. 17, 2002). It is therefore clear that a Board decision need only be 

reasonably identified in light of the surrounding circumstances. 

The government argues that “Durr makes no reference, however oblique, to any 

board decision.” (Br. of Appellee at 10 (internal quotations omitted).) We disagree. 

04-7099 8 
Durr’s notice of appeal identified the Board decision being appealed, when considered 

in light of the surrounding circumstances. The Board decision from which appeal was 

sought stated that the issues in the case were “Entitlement to service connection for 

tinnitus,” and “Entitlement to service connection for a cervical spine disorder.” The 

Board decision noted that “the veteran attributed both currently claimed conditions to 

boxing injuries he received in service in February 1966.” Durr’s notice was addressed 

to the “Board of Veterans Appeal,” and stated in bold type: “I hear by [sic] request the 

Court of Appeals for Veterans Claims, to file my appeal with the court.” (J.A. at 8.) The 

notice identified the Board decision by stating that: “Treatments at medical facilities . . . 

show an old injury consistent to [sic] the type of head trauma I received in service as a 

boxer,” and “[o]n the issue of Tinnitus, evidence of record does show an in head 

trauma.” (Id.) There is no suggestion that these issues were the subject of multiple 

Board decisions. We think that Durr clearly (though inartfully) identified the underlying 

Board decision, by identifying the issues decided by the Board. 

Second, the Veterans’ Court held that the notice was deficient because it did not 

contain Durr’s telephone number or VA claims file number. This ground of decision is 

not supported by the government on appeal, and is manifestly incorrect. As discussed 

above, these requirements were not in effect at the time Durr filed his notice, and they 

cannot retroactively invalidate Durr’s notice of appeal. 

Third, the Veterans’ Court held that the notice of appeal was deficient because it 

failed to “include the address[ ] of the appellant.” CAVC Rule 3(c)(3). Again the 

government on appeal does not support this aspect of the ruling, but as the sufficiency 

of a notice of appeal is potentially a jurisdictional issue, we will address it. See Graves 

04-7099 9 
v. Gen. Ins. Corp., 381 F.2d 517, 518 (10th Cir. 1967) (“[T]he appellate court itself, with 

or without motion, may dismiss for lack of jurisdiction, if it considers the notice of appeal 

fatally defective.”); Trivette v. N.Y. Life Ins. Co., 270 F.2d 198, 199 (6th Cir. 1959) (“[I]f 

the Court regards the notice of appeal as being insufficient, it can at any time, with or 

without motion, itself raise the jurisdictional question.”). 

Unlike the requirements of naming the appellant and designating the decision 

appealed from, there is no corresponding provision in FRAP requiring that an address 

be provided in the notice of appeal. In 1988, when the Court of Veterans Appeals was 

created as the predecessor to the Veterans’ Court, Congress defined the jurisdiction of 

that court, requiring that “[i]n order to obtain review by the Court . . . , a person . . . must 

file a notice of appeal with the Court.” Veterans Judicial Review Act, Pub. L. No. 100-

687, sec. 301, § 4066, 102 Stat. 4105, 4116 (1988) (codified as amended at 38 U.S.C. 

§ 7266 (2000)). This statute was enacted against the background of FRAP 3(c), and we 

think intended to define a notice of appeal in terms of the requirements of FRAP. This 

is confirmed by the statute’s adoption of FRAP Rule 3, together with the remainder of 

FRAP, as interim rules for the Court of Veterans Appeals. Court of Veterans Appeals 

Judges Retirement Act, Pub. L. No. 101-94, § 203, 103 Stat. 617, 627 (1989). 

At the time of the creation of the Court of Veterans Appeals, the Supreme Court 

had decided Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988), holding that the 

requirements enumerated in FRAP 3(c) were jurisdictional, and making clear that these 

requirements were necessary to serve the fundamental objectives of a notice of appeal 

“to provide notice both to the opposition and to the court.” Id. at 318; see Smith, 502 

U.S. at 248. The Court held that, in the absence of clear identification of the appellant 

04-7099 10 
under FRAP 3(c)(1)(A), there would be uncertainty “whether a losing party not named in 

the notice of appeal should be bound by an adverse judgment.” Torres, 487 U.S. at 

318. Likewise, failure to designate the judgment appealed from under FRAP 3(c)(1)(B) 

would lead to uncertainty as to the scope of an appellate decision. The requirement of 

an address was not (and is not) one of the enumerated jurisdictional requirements of 

FRAP 3(c), nor does an address requirement serve any of these central purposes of a 

notice of appeal recognized in Torres. See Intercargo Ins. Co. v. United States, 83 F.3d 

391, 395 (Fed. Cir. 1996) (“[I]t is not the case . . . that any . . . notice that does not 

strictly conform to the ‘form and manner’ prescribed in the regulation is ineffective . . . . 

[N]ot all deviations from the requirements of the statute or regulation would affect the 

interests that the statute and regulation are designed to protect.”). We conclude that the 

statutory notice of appeal requirement cannot be read to require the inclusion of an 

address as a jurisdictional requirement. 

The Veterans’ Court, under its statutory rulemaking authority, 38 U.S.C. 

§ 7264(a), can impose additional procedural requirements, and sanction for violations of 

those requirements. See 38 U.S.C. § 7265 (2000); Ct. App. Vet. Cl. R. 3(a); cf. In re 

Violation of R. 28(c), 388 F.3d 1383 (Fed. Cir. 2004). But “[t]he procedural rules 

adopted by the Court for the orderly transaction of its business are not jurisdictional.” 

Schacht v. United States, 398 U.S. 58, 64 (1970). The Veterans’ Court’s rules “do not 

extend or limit the jurisdiction of the Court as established by law,” Ct. App. Vet. Cl. R. 

1(b), particularly since the Veterans’ Court’s rules, unlike FRAP, do not have the status 

of a congressional statute. See 28 U.S.C. § 2072(b) (2000). Under these 

circumstances the Veterans’ Court’s rules cannot limit the jurisdiction of the Veterans’ 

04-7099 11 
Court. We thus construe the requirement of an address in Rule 3(c)(3) to be an 

additional procedural requirement rather than an additional jurisdictional requirement for 

a notice of appeal. Contrary to the decision of the Veterans’ Court, the failure of the 

appellant to provide an address did not defeat the Veterans’ Court’s jurisdiction.4

CONCLUSION 

The Veterans’ Court’s dismissal is reversed and the case is remanded for further 

proceedings not inconsistent with this opinion. 

REVERSED AND REMANDED

COSTS 

 No costs. 

 4 The Veterans’ Court noted that Durr’s notice of appeal appears to have 

been misfiled with the VA and forwarded by the VA to the Veterans’ Court, but reserved 

the question of whether an appellant must personally file the notice. 17 Vet. App. at 

494. There is no need for an appellant to personally file the notice of appeal. All that is 

required is that the Veterans’ Court receive the notice within the statutory period, as it 

did. We note that even had the VA not forwarded the notice to the Veterans’ Court, 

misfiling a notice of appeal with the VA could trigger equitable tolling. Brandenburg v. 

Principi, 371 F.3d 1362, 1364 (Fed. Cir. 2004); Santana-Venegas v. Principi, 314 F.3d 

1293, 1298(Fed. Cir. 2002). 

04-7099 12