Joyce Ratliff v. Eric K. Shinseki
26 Vet. App. 356
Vet. App.2013Background
- Mrs. Joyce Ratliff received a Board of Veterans' Appeals (BVA) decision dated July 24, 2008, and sent a letter to the North Little Rock RO on August 29, 2008 stating, "I want to appeal."
- Mrs. Ratliff did not file an NOA with this Court until October 19, 2011, outside the 120-day statutory window. The Secretary moved to dismiss as untimely.
- The Secretary produced the August 29, 2008 RO letter and ultimately agreed it could be a timely misfiled NOA; the RO had not acted on or notified Ratliff about that letter.
- The Secretary’s M21-1MR policy instructs ROs to treat any written disagreement with a BVA decision as a possible motion for Board reconsideration and to forward such documents to the Board, which will decide whether they are motions for reconsideration or misfiled NOAs.
- The Court addressed whether the RO’s receipt of a written disagreement during the 120-day period abates finality of the Board decision for purposes of appeal, and whether Ratliff’s August 2008 letter was a misfiled NOA or a motion for reconsideration.
Issues
| Issue | Ratliff's Argument | Shinseki's Argument | Held |
|---|---|---|---|
| Whether a written disagreement filed at the RO during the 120-day appeal period abates finality of the Board decision for Court appeal | The August 2008 RO filing was a timely NOA misfiled at the RO and thus tolls the appeal period | The Secretary initially moved to dismiss as untimely but conceded the August 2008 letter could be a misfiled NOA and described M21-1MR processing | When an RO receives a written disagreement within the 120 days, finality is abated until (1) Secretary returns/forwards it as an NOA, (2) Board Chairman rules on status, or (3) Court determines it was a misfiled NOA. |
| Effect of Secretary’s M21-1MR policy treating all RO disagreements as possible motions for reconsideration | N/A (argued misfiling and equitable tolling) | The policy requires forwarding disagreements to BVA for determination and RO notification, but RO did not act here | The Court gave the Secretary’s policy effect: treating such filings as abating finality like a motion for reconsideration. |
| Whether Ratliff’s August 29, 2008 letter was a motion for reconsideration or an NOA | The letter should be treated as a timely misfiled NOA | The Secretary agreed the letter could be an NOA; RO took no action so Board never reviewed it | The Court found the August 2008 letter substantially met NOA requirements and was a misfiled NOA, not a motion for reconsideration. |
| Whether Ratliff’s October 2011 NOA to the Court was timely/effective given the RO filing | The October 2011 NOA is effective because the RO filing abated finality and the RO took no action to change that status | The Secretary withdrew the motion to dismiss and agreed the RO inaction left finality abated | Because the August 2008 letter was a misfiled NOA and finality remained abated, the October 2011 NOA was timely and the Court retained jurisdiction. |
Key Cases Cited
- Rosler v. Derwinski, 1 Vet.App. 241 (Court held filing a motion for agency reconsideration within the appeal period abates finality and tolls the judicial appeal period)
- Rickett v. Shinseki, 26 Vet.App. 210 (outlining requirements for equitable tolling of misfiled NOAs)
- Posey v. Shinseki, 23 Vet.App. 406 (distinguishing motions for reconsideration from NOAs)
- Boone v. Shinseki, 22 Vet.App. 412 (discussing return/forwarding of potential NOAs misfiled at VARO)
- Wachter v. Brown, 7 Vet.App. 396 (premature NOA can become effective upon Chairman’s denial of motion for reconsideration)
- Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir.) (filing a motion for reconsideration at the VARO abates finality per Rosler)