Graves v. Principi

• Decision Date: 25 June 2002
• Docket Number: No. 01-7053.,01-7053.
• Citation: 294 F.3d 1350
• Parties: Clarence D. GRAVES, Claimant-Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

294 F.3d 1350

Clarence D. GRAVES, Claimant-Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellee.

No. 01-7053.

United States Court of Appeals, Federal Circuit.

June 25, 2002.

Mark C. Jahne, of Magna, UT, argued for claimant-appellant.

Jane M.E. Peterson, Trial Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent-appellee. With her on the brief were Stuart E. Schiffer, Acting Assistant Attorney General; David M. Cohen, Director; and Mark A. Melnick, Assistant Director. Of counsel on the brief were Richard J. Hipolit, Deputy Assistant General Counsel; and Y. Ken Lee, Attorney, Department of Veterans Affairs, of Washington, DC.

Before NEWMAN, CLEVENGER, and SCHALL, Circuit Judges.

SCHALL, Circuit Judge.

Clarence D. Graves appeals the decision of the United States Court of Appeals for Veterans Claims ("Veterans Court") that dismissed his appeal of a decision of the Board of Veterans' Appeals ("Board") for lack of jurisdiction on the ground that the appeal was untimely. Graves v. Gober, 2001 WL 65588 (Table) (Vet.App. January 5, 2001). We affirm.

BACKGROUND

I.

A preliminary discussion of the process for appealing a Board decision and for seeking reconsideration of a Board decision will assist the reader in understanding Mr. Graves' appeal.

The Veterans Court has exclusive jurisdiction to review decisions of the Board. 38 U.S.C. § 7252(a) (1994 & Supp. V 1999). Pursuant to 38 U.S.C. § 7266(a) (1994 & Supp. V 1999), the time allowed for appealing to the Veterans Court from a decision of the Board is 120 days. Section 7266(a) provides as follows:

In order to obtain review by the Court of Appeals for Veterans Claims of a final decision of the Board of Veterans' Appeals, a person adversely affected by such decision shall file a notice of appeal with the Court within 120 days after the date on which notice of the decision is mailed pursuant to section 7104(e) of this title.

38 U.S.C. § 7266(a)(1) (Supp. V 1999).

However, instead of immediately appealing to the Veterans Court from a final decision of the Board, a claimant may ask the Board to reconsider its decision. See 38 C.F.R. § 20.1000 (2001) ("Reconsideration of an appellate decision may be accorded at any time by the Board of Veterans' Appeals on motion by the appellant or his or her representative or on the Board's own motion...."). The Board's regulations provide that "[a] motion for reconsideration of a prior Board of Veterans' Appeals decision may be filed at any time." 38 C.F.R. § 20.1001(b) (2001). The Chairman of the Board reviews motions for reconsideration and decides whether they should be granted or denied. See 38 U.S.C. § 7103(a) (1994); 38 C.F.R. § 20.1001(c) (2001).

In Rosler v. Derwinski, 1 Vet.App. 241 (1991), the Veterans Court addressed the effect that the filing of a motion for reconsideration of a Board decision has upon the 120-day period for appealing to the court. In that case, the Veterans Court held that a motion for reconsideration tolls the running of the 120-day judicial appeal period, if it is filed before the expiration of the 120-day period. The appellant then has 120 days from the date that notice of the Board's reconsideration decision is sent to file a notice of appeal with the Veterans Court. Rosler at 244-45. We adopted the Rosler rule in Linville v. West, 165 F.3d 1382, 1385-86 (Fed.Cir.1999).

Because an appellant may ask the Board to reconsider one of its decisions at any time, it may happen that a motion for reconsideration of a Board decision is filed after an appeal has been timely filed with the Veterans Court. In that situation, jurisdiction over the case already has passed to the Veterans Court. See Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) ("The filing of a notice of appeal is an event of jurisdictional significance — it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal."); Cerullo v. Derwinski, 1 Vet.App. 195, 196-97 (1991) (applying the Griggs principle in the context of an appeal from the Board and concluding that jurisdiction is considered transferred to the Veterans Court at the time that a notice of appeal is filed). In that event, the Veterans Court may suspend proceedings in the appeal that is pending before it. Rule 5 of the court's Rules of Practice and Procedure provides:

The Court may suspend proceedings after an appeal has been filed under Rule 4:(1) on motion by the appellant seeking reconsideration by the Board; or (2) by motion of the Secretary for reasons of confession of error, by specifying the error below and the proceedings or remedy deemed to be appropriate on remand. The Court, on its own initiative, may also suspend appellate proceedings. See also Rule 28(b)(2).

However, since the filing of a timely notice of appeal vests jurisdiction in the Veterans Court, the court has held that "any attempt by the [Board] or the [Board] Chairman to order reconsideration of a [Board] decision after [a notice of appeal] has been timely filed with this Court is null and void unless the Court first orders a remand." Cerullo, 1 Vet.App. at 196. To maintain its exclusive jurisdiction over a case in which a timely notice of appeal has been filed, but at the same time allow the Board to address a motion for reconsideration, the Veterans Court has adopted a procedure for remanding cases to the Board. Under that procedure, "the [Board] Chairman may indicate, after [a notice of appeal] has been filed with this Court, that he is inclined to grant reconsideration ... or the Board may indicate a desire to correct an obvious error.... At that time, a motion for remand must be filed with this Court." Cerullo at 200; see, e.g., Stuckey v. West, 13 Vet.App. 163 (1999) (describing the granting of an appellant's motion to stay proceedings in the Veterans Court pending Board action on a motion for reconsideration and the subsequent renewal of proceedings upon the Board's denial of the motion); Sumner v. Principi, 15 Vet.App. 256, 257 (2001) (describing the granting of an appellant's motion to stay proceedings in the Veterans Court pending Board action on a motion for reconsideration and the subsequent remand of the case to the Board upon indication that reconsideration would be granted).

With this background in hand, we turn to the facts of Mr. Graves' case.

II.

On January 22, 1998, the Board issued a decision in which it ruled that Mr. Graves was not entitled to a combined disability rating greater than 80% for various service-connected disabilities. Acting pro se, Mr. Graves timely appealed to the Veterans Court on May 19, 1998. Graves, slip op. at 1.

After filing his notice of appeal, Mr. Graves retained counsel. On June 15, 1998, counsel filed in the Veterans Court a document titled "LIMITED APPEARANCE TO REQUEST DISMISSAL WITHOUT PREJUDICE." The document read as follows:

Veteran, through counsel, makes a Limited Appearance before this Court to request this matter be Dismissed without prejudice to a future filing if such becomes necessary. The Veteran retained my services as indicated on the attached Appointment of Representative and Contingency Fee Agreement after he made his appeal to this Court. A file review indicates this file requires more development and action before an appeal could be effective.

The document did not cite to any rules of the Veterans Court and did not provide any indication that Mr. Graves intended to seek reconsideration of the decision of the Board that was on appeal.

On June 18, 1998, the Veterans Court issued an Order in response to Mr. Graves' request. After stating that "[t]he appellant, through counsel, has notified the Court of a desire to withdraw his appeal, as is permitted by Rule 42 of the court's Rules of Practice and Procedure," the court ordered the appeal dismissed, without stating whether the dismissal was with or without prejudice. The court's dismissal of Mr. Graves' appeal was pursuant to its Rule 42, which provides as follows:

If the parties sign and file with the Clerk an agreement that the proceeding be dismissed, the Clerk shall enter the case dismissed. An appeal may be dismissed on motion of the appellant upon terms requested by the appellant, agreed upon by the parties, or fixed by the Court. An appellant may, at any time before appellant's brief is filed, withdraw an appeal in writing without filing a motion.

Subsequently, in January of 1999, Mr. Graves asked the Board to reconsider its January 22, 1998 decision, which Mr. Graves originally had appealed to the Veterans Court. The Board denied the request in June of 1999, and Mr. Graves again turned to the Veterans Court. On September 9, 1999, he filed a notice of appeal with respect to both the Board's denial of his request for reconsideration and its original decision of January 22, 1998.

As noted above, the Veterans Court dismissed Mr. Graves' appeal for lack of jurisdiction on the ground that it was untimely. The court pointed out that, pursuant to 38 U.S.C. § 7266(a), Mr. Graves was required to file his notice of appeal with the court within 120 days of the date the Board mailed its January 22, 1998 decision to him. The court noted that Mr. Graves' original appeal had been dismissed at his request and that, thereafter, Mr. Graves had failed to file a new notice of appeal within 120 days of the mailing of the Board's January 22, 1998 decision. Graves, slip op. at 1-2. The court also noted that Mr. Graves had not filed a motion for reconsideration with the Board within the 120-day period following January 22, 1998. Citing Rosler, the court observed that, if Mr. Graves had filed a motion for reconsideration with the Board within the 120-day judicial appeal period, the finality of the initial Board decision "would have been abated" and a new 120-day...