DiDonato v. Derwinski , 2 Vet. App. 42 ( 1991 )

ORDER

PER CURIAM.

These cases were consolidated by order of the Court issued on November 4, 1991, for purposes of disposition of the Secretary’s motion to dismiss in each case based on lack of jurisdiction. In the case of appellant DiDonato, the Board of Veterans’ Appeals (BVA) issued a decision dated December 7, 1990. On August 19, 1991, the Secretary of Veterans Affairs submitted a motion to dismiss this appeal as untimely filed. On September 13, 1991, the Court ordered appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. Appellant’s response, filed on October 15, 1991, by his sister on his behalf, explains that appellant does not relate well to time and that his efforts to file an appeal were frustrated when he was unable to secure forms from a veterans service organization. Appellant does identify correspondence, postmarked on April 3, 1991, and stamped “received April 12, 1991”, in this Court, that may serve as appellant’s Notice of Appeal (NOA), but, according to the Court’s stamp, this correspondence was received by the Court 5 days after the 120-day appeal period had elapsed.

On April 23, 1991, appellant Elegado filed an NOA from a BVA decision with a mailing date of December 19, 1990. On May 15, 1991, the Court ordered the Secretary of Veterans Affairs to file a preliminary récord. On June 4, 1991, in response to the Court’s order, the Secretary filed a motion to dismiss and to stay proceedings, accompanied by a preliminary record, and asserted that appellant’s NOA was untimely filed. On September 3, 1991, appellant filed a response to the Secretary’s motion to dismiss, and asserted that, under Rule 26 of this Court’s Rules of Practice and Procedure, she is entitled to a 30-day extension of time in which to file her NOA. However, Rule 26 does not permit additional, or an extension of, time for the filing of an NOA.

To be timely filed under Rule 4 of this Court’s Rules of Practice and Procedure and precedents construing 38 U.S.C. § 7266(a) (formerly 38 U.S.C. § 4066(a)), an NOA must generally be actually received by, not mailed to, the Court within 120 days after the Board of Veterans’ Appeals (BVA) decision is mailed to an appellant. See Elsevier v. Derwinski, 1 Vet.App. 150, 152 (1991); Torres v. Derwinski, 1 Vet.App. 15, 16 (1990). This Court’s jurisdiction derives exclusively from statutory grants of authority provided by Congress, and the Court may not extend its jurisdiction beyond that permitted by law. See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 2178, 100 L.Ed.2d 811 (1988); see also Prenzler v. Derwinski, 928 F.2d 392 (Fed.Cir.1991); Skinner v. Derwinski, 1 Vet.App. 2 (1990). In these cases, the NOA, although mailed on the 117th day after the mailing of the BVA decision, was not received by the Court until after the 120th day after such mailing.

In Irwin v. Veterans Admin., 498 U.S. 89, 111 S.Ct. 453, 458, 112 L.Ed.2d 435 (1990), the Supreme Court extended “the principles of equitable tolling” to cases where the United States is a party but held that those “principles ... do not extend to what is at best a garden variety claim of excusable neglect.” In Elsevier, at 153-54, this Court concluded that “the rule of equitable tolling [is] applicable to the 120-day time limit of 38 U.S.C. § 4066(a) [redesig-nated § 7266(a) ]”. This Court finds, however, that the cases here do not present the extraordinary and carefully circumscribed conditions necessary to warrant equitable tolling under Irwin and Elsevier, at 154.

Therefore, since neither of these appeals were filed within 120 days after the date on which the BVA mailed its decision to the respective appellants, the NO As in each case were untimely. Accordingly, it is

ORDERED that the Secretary’s motions are granted and each of these appeals is dismissed for lack of jurisdiction.