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Rule 4: Filing Appeal; Docketing; Copy of Board Decision

(a) (1) Time for Appeal. A Notice of Appeal must be received by the Clerk not later than 120 days after the date on which the Board mailed notice of the decision to the last known address of the appellant and the appellant's authorized representative, if any. See also Rule 25 (Filing and Service).

(2) Deemed Receipt. A Notice of Appeal is deemed received-


A) on the date of its legible postmark, affixed by the U.S. Postal Service (not including a postage-metered date imprint other than one affixed by the U.S. Postal Service) on the cover in which the Notice of Appeal is posted, if the mailing is properly addressed to the Court and is mailed; or

(B) on the date of its receipt by the Clerk, if it does not bear a legible postmark affixed by the U.S. Postal Service, or if it is delivered or sent by means other than U.S. mail. But see Rule 25(b)(1)(B) (filing and service for appellant confined in an institution).


(3) Timeliness; Good Cause or Excusable Neglect; Equitable Tolling

(A) If the Secretary does not within 45 days after the filing date of the Board decision (pursuant to Rule 4(c)) file a motion to dismiss an appeal for failure to file a timely Notice of Appeal within the 120-day appeal period, the Notice of Appeal will be treated as timely regardless of the date it was received.

(B) If the Secretary within 45 days after the filing date of the Board decision moves to dismiss an appeal for failure to file a timely Notice of Appeal within the 120-day appeal period, an untimely Notice of Appeal will be treated as timely if

(i) the Notice of Appeal is received within 30 days after the expiration of the filing deadline and the appellant demonstrates good cause or excusable neglect for failure to file the Notice of Appeal within the 120-day period; or

(ii) the Notice of Appeal is received more than 30 days after the expiration of the filing deadline but equitable tolling is warranted because the appellant demonstrates an extraordinary circumstance that prevented filing in a timely manner and the exercise of reasonable due diligence in attempting to file a timely Notice of Appeal.

(b) Docketing.

(1) Docketing the appeal. Upon receipt of the Notice of Appeal, the Clerk will docket the appeal, identifying the appellant by name, unless otherwise ordered by the Court.

(2) Designation of public official. The Secretary shall be described as the "appellee" by name and official title.

(3) Notice of docketing. The Clerk shall send a notice of docketing to all parties advising them of the date the Clerk received the Notice of Appeal.

(c) Copy of Board Decision. Not later than 30 days after the date the Clerk issues a notice of docketing (See subsection (b)(3)), the Secretary shall file with the Clerk under separate docket entries and serve on the appellant a copy of the Board's decision, showing-

(1) the date on which notice of the decision was mailed, with any personal identifiers redacted except the name of the appellant (See E-Rule1(a)(10) (definition of "personal identifier"));

(2) a reference transmittal identifying the Board decision with any necessary personal identifiers, which when electronically filed will be locked (See E-Rule 4(d)); and

(3) if applicable, the filing date of any motion for reconsideration or vacatur of the Board decision, and the date and nature of any action on such a motion.

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