Bole v. Derwinski ( 1992 )

ORDER

On June 26,1991, appellant filed a Notice of Appeal (NOA). On September 30, 1991, the Secretary of Veterans Affairs (Secretary) filed a motion to dismiss, together with a copy of appellant’s Board of Veterans’ Appeals (BVA) decision, dated February 19, 1991. On December 3, 1991, the Court directed appellant to show cause why this appeal should not be dismissed for lack of jurisdiction because of an untimely filed NOA. Appellant has not responded to the Court’s December 3, 1991, order.

Although the Court received appellant’s NOA on the 127th day after the Board’s mailing of its decision to him, appellant’s envelope carrying the NOA was postmarked on June 19, 1991, the 120th day. However, a postmark date within 120 days of the BVA’s mailing of its decision does not make the NOA timely filed. To be timely filed under the Court’s rules (U.S.Vet.App.R. 4) and precedents construing 38 U.S.C. § 7266(a) (formerly § 4066(a)), an NOA must be actually received by the Court within 120 days after the BVA decision is mailed to an appellant. See Elsevier v. Derwinski, 1 Vet.App. 150 (1991); Torres v. Derwinski, 1 Vet.App. 15 (1990); but see DiDonato/Elegado v. Derwinski, 2 Vet.App. 42 (1991) (Steinberg, J., concurring) (expressing disagreement with Court’s position that section 7266(a) mandates that NOA must be actually received by Court by 120th day and suggesting change in Court’s Rule to accept post-mark date as date of “filing”). 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). Since this appeal was not received by the Court within 120 days after the date on which the BVA mailed its decision to appellant, it was untimely.

On consideration of the foregoing, it is

ORDERED that the Secretary’s motion is granted and this appeal is dismissed for lack of jurisdiction.