United States is a party to the proceedings, the time for filing an appeal is 60 days after entry of judgment. Also, if an appeal is mistakenly filed in the court of appeals, it will be sent to the district court and deemed filed on the date received by the clerk of the court of appeals. Section (a)(5) of Rule 4 states that "[t]he district court, upon a showing of excusable neglect or good cause, may extend the time for filing *** [an appeal) upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a)." Rule 25(a), FRAP, defines “filing" as the date that papers are received by the clerk. While filing may be accomplished by mail addressed to the clerk, it is not timely unless the papers are received within the time fixed for filing. An exception to the physical receipt rule is made only with respect to briefs and appendices. They are deemed filed on the day of mailing if the most expeditious form of mail delivery (excepting special delivery) is used. Rule 25(a) also gives courts of appeals the discretion, by local rule, to permit papers to be filed by facsimile or other electronic means, provided such procedure is authorized by the Judicial Conference of the United States.

A majority of the federal circuits considering the question of when a notice of appeal is filed have held that the notice is filed on the date it is received by the district court. This includes the Fifth, Sixth, Eighth, and Eleventh Circuits and represents no more than a statement of the general rules-Rules 4(a)(1) and 25(a)—in civil appeals. See, e.g., Vogelsang v. Patterson Dental Co., 904 F.2d 427 (8th Cir. 1990). Also, the Second Circuit incorporates FRAP Rules 4(a) and 25 without change. 28 U.S.C.A. Rules, Part I (1992). 4. Notice of Appeal in Specialized Courts-When Filed.-The Court of Appeals for the Federal Circuit adopts FRAP Rule 4(a), but adds Local Rule 4 which permits a mail box rule. Local Rule 4(a) states that "[i]f, pursuant to statute, the trial court has adopted a rule that deems a document filed on the date it is transmitted by a specified type of mail, a notice of appeal shall be deemed filed as provided in that rule" (emphasis added). The specialized courts over which the Federal Circuit exercises appellate jurisdiction are the Claims Court, the Court of International Trade, and the Court of Veterans Appeals. The latter is the only court which is not a trial court.

The Claims Court is an Article I court which not only requires physical receipt of a paper as a requisite to filing, but does not permit facsimile filing. This information was telephonically related by the Chief Deputy Clerk, Mr. Roger Nieman, on July 8, 1992. However, while Rule 3, Rules of the U.S. Claims Court (RUSCC), does state that the clerk's records, to include the date stamped on the complaint, are conclusive evidence of the date on which the complaint was filed, it also permits the plaintiff to attempt to show by motion that the clerk's records are factually incorrect. RUSCC 3(b)(2) (A) and (B). Further, if the complaint is sent by mail and stamped by the clerk after the statute of limitations has run, the plaintiff can establish a timely filing if he can show (a) that the complaint was properly addressed and sent by certified or registered mail, return receipt requested; (b) that it was deposited in the mail sufficiently in advance to provide for timely receipt by tie clerk in the ordinary course of mail; and (c) that the plaintiff as

sender had no control over the mail between deposit and delivery. RUSCC 3(b)(2)(C). While there is no rule permitting facsimile filing of a complaint, it was permitted by decisional law purporting to elevate the interests of justice over full compliance with court rules. See Ross v. United States, 16 Cl.Ct. 378, 382-83 (1989). Finally, RUSCC 5(b) states, in part, that "[s]ervice by mail is complete upon mailing, but filing is not" (emphasis added). Subsection (d) of Rule 5 defines filing with the Claims Court as follows:

The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit papers to be filed with chambers, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. All matter are to be brought to the attention of a judge through formal filings rather than by correspondence; letters are not to be directed to a judge unless specifically requested.

RUSCC 5(d).

Commencement of a civil action in the Court of International Trade, an Article III court, is prescribed by 28 U.S.C.A. § 2632. Subsection (d) of this provision permits, but does not require, the Court to establish a mail box rule for the filing of any summons, pleading or other paper. Generally, filing is completed when a paper is received by the clerk or, if the judge to whom a matter is referred permits, a judge. The Court, through Rule 5(e) (FilingHow Made), has implemented a mail box exception if a pleading or other paper is mailed by registered or certified mail, return receipt requested, and is properly addressed to the clerk with the proper postage. Such papers are deemed filed on the date mailed as determined by the postmark. This was telephonically confirmed by Mr. Leo Gordon, Assistant Clerk of the Court, on July 8, 1992.

The Court of Veterans Appeals is discussed in paragraph 6, infra. In summary, with respect to the specialized courts subject to the appellate jurisdiction of the Court of Appeals for the Federal Circuit, only the Court of International Trade has a per se postmark rule. The Claims Court permits the plaintiff to introduce evidence showing that he complied with its rules if his notice of appeal is postmarked before the appeal period runs, but is physically received after it has run. However, at least by court rule, it does not sanction facsimile filing.

5. Notice of Appeal in Tax Court-When Filed.-The Tax Court, another specialized Article I trial court, is the court that Senator Cranston referred to in his statement because of its broad use of the postmark as the filing date for documents. Generally, the Tax Court has jurisdiction over appeals by taxpayers from deficiencies asserted against them by the Commissioner of the IRS. The process starts when a notice of deficiency is mailed to the taxpayer at his last known address. Within 90 days after the notice is mailed, or 150 days if the notice is addressed to a person outside the United States, the taxpayer may file a petition with the Tax Court. 26 U.S.C.A. §6213(a). If the taxpayer does not file a petition within the prescribed time, the deficiency will be assessed and the Secretary of the Treasury will demand payment. Thus, any taxpayer

who fails to file timely will be required to pay the amount assessed. Determination of a deficiency and issuance of a notice are absolute requisites for the Court's exercise of jurisdiction.

Because of the complexity of the IRS Code, strict construction of the time periods for filing prescribed in 26 U.S.C.A. §6213(a) does not appear possible. Subsections (e) and (f), for example, provide for suspension of the filing period under specified circumstances. Rule 22 of the Tax Court's Rules of Practice and Procedure pertains to filing and provides that—

[a]ny pleadings or other papers to be filed with the Court must be filed with the Clerk in Washington, D.C., during business hours, except that the Judge presiding at any trial or hearing may permit or require documents pertaining thereto to be filed at that particular session of the Court, or except as otherwise directed by the Court.

26 U.S.C.A. foll. §7453, Rules (1992).

The Tax Court's postmark rule noted by Senator Cranston, 26 U.S.C.A. § 7502, is part of the Internal Revenue Code and does not apply exclusively to that court; it appears to encompass all taxpayer filings. Subsection (a)(1) prescribes the general rule for determining the delivery date of "any return, claim, statement, or other document required to be filed, or any payment required." If the document or payment is delivered by United States mail, the postmark on the cover will be deemed the delivery date. Subsection (a)(2) sets forth mailing requirements to include (a) that the postmark date be on or before the prescribed date and (b) that the document be deposited in the mail in the United States, properly covered, addressed and with the proper postage. Subsection (b) indicates that the rule applies to other than U.S. Postal Service postmarks only as prescribed by secretarial regulation. Subsection (c) deals with registered and certified mail. Registered mail, for example, is prima facie evidence that the document was delivered to the office to which addressed and the registration date is deemed the postmark date. Finally, for the purposes of this discussion, subsection (d) lists exceptions which, inter alia, preclude § 7502 from applying to “*** the filing of a document in, or the making of a payment to, any court other than the Tax Court."

One thing is clear. If Congress decides to impose a mail box rule on the Court of Veterans Appeals by amending the VJRA, it should not be modeled on statutory provisions of the Internal Revenue Code. Although not mentioned by Senator Cranston, FRAP Rule 13(b) also prescribes the mail box rule, subject to the provisions of § 7502, supra, for filing a notice of appeal from a Tax Court decision.

6. Notice of Appeal in the Court of Veterans Appeals-When Filed. The time for filing an appeal with our Court is expressly and simply prescribed by statute. A veteran adversely affected by a final Board of Veterans' Appeals (BVA) decision has 120 days after the date on which notice of the decision is mailed to file an appeal with this Court. 38 U.S.C. §7266(a) (formerly §4066(a)). The notice of the BVA decision must be mailed pursuant to section 7104(e) (formerly §4004(e)), which requires the BVA to mail promptly a copy of its written decision to the claimant and his au

thorized representative, if any. The decision must be mailed to the last known address of each.

Based on 7266(a), the Court has developed concise, simple rules on how and when to appeal. These rules were drafted with pro se veterans in mind, not attorneys or non-attorney representatives. Rule 3 of the Court's Rules of Practice and Procedure informs an appellant how to appeal. It permits a Notice of Appeal to be filed by facsimile or other printed electronic transmission. It states that the notice must contain the name of the party appealing, “designate" the BVA decision being appealed, and contain the address of the appellant' and his authorized representative, if any. Rule 3(b) expressly states that "[a]n appeal will not be dismissed for informality of the Notice of Appeal." It also identifies a form included in the appendix to the rules which the appellant can use to complete and file his appeal. U.S. Vet. App. R. 3. Rule 4 informs an appellant when to appeal. It states that the Notice of Appeal must be received by the Clerk within 120 days after the date the BVA mails notice of its decision to the appellant and his authorized representative, if any.

As a matter of standard procedure, when a veteran inquires about appealing to this Court, he is sent instructions on how to file a Notice of Appeal, the necessary forms to file, and a copy of the rules. Moreover, deputy clerks and paralegals are available to advise the veteran about what he needs to do to file a timely appeal. 7. Conclusion-Benefits of the Physical Delivery Rule.-With respect to this Court, Congress provided the veteran with a fourmonth period to get his Notice of Appeal to the Court. This 120day period gives the veteran, at minimum, 60 more days to file an appeal with this Court than the average citizen has when appealing a federal district court decision. When the United States is a party to a case decided by a federal district court, there is a 60day appeal period. When the United States is not a party, there are only 30 days in which to appeal. Moreover, the BVA, at the time it sends notice of its decision, is required to advise the veteran of his appellate rights and the Court's mailing address. So the veteran simultaneously receives the BVA decision and information about the Court, its location, and his right to judicial review.

The Court, in turn, through its rules, decisional law, and provision of information and materials to veterans, has established a bright-line standard for the timely filing of a Notice of Appeal. It is clear and easy for pro se veterans to understand. Facsimile and other means of electronic filing are permitted. In addition, the Court has liberally construed Rule 3 concerning what constitutes a Notice of Appeal with a view toward ensuring timely filing. Thus, when a pro se veteran timely files papers which clearly evince his intent to appeal, the Court has found substantial compliance with the Notice of Appeal requirements and exercised jurisdiction over the appeal.

A mail box rule has the potential to confuse the veteran to the extent it requires the use of certain types of mail like registered or certified mail with a return receipt requested. A good example of how perplexing a mail box rule can be is 26 U.S.C.A. §7502, the Internal Revenue Code provision which applies to the Tax Court. Although advocated by Senator Cranston, mail box rules, with

their various requirements, are not easily understood or complied with. In the event of an untimely received Notice of Appeal with an illegible postmark, for example, or one not sent through the U.S. Postal Service, the Court would be in the position of seeking affidavits and other evidence to resolve the jurisdictional question. Unless carefully and simply drafted, veterans can be frustrated by such a rule, and this Court can be stymied by it as it attempts to get beyond jurisdiction and proceed to the merits.

Again, what we have now is simple, explicit, and easily complied with. The veteran has ample time to get his Notice of Appeal to the Court, and rules that he can understand and follow. Further, as a national federal appellate court, the Court of Veterans Appeals has adopted a rule for filing appeals that is similar to those adopted by a majority of the federal circuit courts.

Two enclosures:

1. FRAP Rules 4, 25.

2. 26 U.S.C.A. § 7502; Tax Court Rules 13, 20, 22.

CHANGES IN EXISTING LAW MADE BY S. 1546 AS REPORTED

In compliance with paragraph 12 of rule XXVI of the Standing Rules of the Senate, changes in existing law made by the bill, as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, existing law in which no change is proposed is shown in roman): TITLE 38—UNITED STATES CODE

PART IV-GENERAL ADMINISTRATIVE

PROVISIONS

CHAPTER 59-AGENTS AND ATTORNEYS

§ 5904. Recognition of agents and attorneys generally

(a)

(d)(1) *

(2)(A) A fee agreement referred to in paragraph (1) of this subsection is one under which [(i)] the total amount of the fee payable to the attorney (i) is to be paid to the attorney by the Secretary directly from any past-due benefits awarded on the basis of the claim, and (ii) [the amount of the fee] is contingent on whether or not the matter is resolved in a manner favorable to the claimant.