U.S. Court of Appeals, Federal Circuit
February 05, 1999
ROGER V. MANNING, CLAIMANT-APPELLANT,
TOGO D. WEST, JR., SECRETARY OF VETERANS AFFAIRS, RESPONDENT-APPELLEE.
Before Plager, Circuit Judge, Skelton, Senior Circuit Judge, and Gajarsa, Circuit Judge.
The opinion of the court was delivered by: Per Curiam.
Mr. Roger V. Manning appeals the dismissal by the United States Court of Veterans Appeals, on jurisdictional grounds, of his claim for veterans' benefits. See Manning v. West, No. 98-572 (Vet. App. May 29, 1998) (order designated for electronic publication only). The Court of Veterans Appeals held that Manning's notice of appeal from the final decision of the Board of Veterans' Appeals ("Board") was untimely. See id. The court's decision hinged on its implicit Conclusion that the filing of a motion for reconsideration with the Board is not evaluated under the "postmark" rule for purposes of determining whether the motion was filed in time to toll, pursuant to Rosler v. Derwinski, 1 Vet. App. 241 (1991), the period for filing a notice of appeal with the Court of Veterans Appeals. See Manning, slip op. at 1. The postmark rule is pivotal because Manning's motion for reconsideration was postmarked within the 120-day period recognized in Rosler for tolling, but was received by the Board outside of that period; additionally, with tolling, Manning's notice of appeal was (under Rosler) timely.
The Court of Veterans Appeals' implicit Conclusion in this case that the postmark rule is inapplicable was previously reached explicitly by the Court of Veterans Appeals in Linville v. West, 11 Vet. App. 60 (1998) (en banc). However, subsequently, on January 26, 1999, this court reversed the Court of Veterans Appeals' Linville decision. See Linville v. West, No. 98-7063, - F.3d -, 1999 WL 30937 (Fed. Cir. Jan. 26, 1999). In Linville, we held that the filing of a motion for reconsideration with the Board is governed by the postmark rule in determining whether the motion tolls the period for filing a notice of appeal, overruling the Court of Veterans Appeals' contrary holding in that case. Accordingly, based on our opinion in Linville, we reverse and remand with instructions to reinstate Manning's appeal.