Bove v. Shinseki
2011 U.S. Vet. App. LEXIS 2795
| Vet. App. | 2011Background
- This Court consolidates four appeals to decide whether the 120-day NOA filing period under 38 U.S.C. § 7266(a) is subject to equitable tolling.
- Henderson v. Peake held the 120-day period was jurisdictional, but the Supreme Court later held it is not jurisdictional and did not decide tolling applicability.
- Bailey v. West and related precedents allowed equitable tolling of nonjurisdictional time limits under Bailey’s framework.
- The Court reevaluates tolling within Bailey’s parameters and sua sponte authority, given the VA appeal context and independence of the Court.
- Consolidated cases include Bove, Rasheed, Lopez, and King, each presenting distinct timeliness and tolling arguments.
- The Court ultimately reinstates Bove, dismisses Rasheed for untimeliness, accepts Lopez as timely due to E-rule interpretation, and grants King relief via reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the 120-day period tollable under equitable tolling? | Bailey framework supports tolling. | Henderson forecloses tolling as jurisdictional shift, and Tolling is limited. | Yes, tolling is allowed within Bailey parameters. |
| May the Court address tolling sua sponte and weigh extra-record facts? | Court has inherent authority to consider tolling and gather facts. | Tolling is ordinarily raised by parties and not sua sponte. | Court may address untimeliness and weigh facts sua sponte. |
| Can the Secretary waive the 120-day period by forfeiture or waiver? | Waiver by the Secretary would undermine independence of the Court. | Nonjurisdictional limits are often waivable in civil litigation. | No, the Secretary cannot waive the 120-day period. |
| What is the proper outcome for Bove given timely RO filing but late Court transmission? | Timely RO filing warrants tolling and reinstatement. | Timing depends on proper transmission and tolling standards. | Reinstated. |
| What is the disposition for Rasheed, Lopez, and King in light of tolling analysis? | Lopez may be tolled; Rasheed may be dismissed for lack of evidence; King relief warranted. | Lopez contested, Rasheed untimely, King merits reconsideration only if tolling applies. | Rasheed dismissed; Lopez timely due to e-filing; King reconsideration granted. |
Key Cases Cited
- Henderson v. Peake, 22 Vet.App. 217 (2008) (120-day NOA not jurisdictional; tolling question left undecided)
- Santana-Venegas v. Principi, 314 F.3d 1293 (Fed. Cir. 2002) (NOA filed at RO within 120-day period may toll filing)
- Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998) (equitable tolling applicable to non-jurisdictional time limits)
- Bowles v. Russell, 551 U.S. 205 (2007) (time limit for appeals may be jurisdictional in some contexts)
- Barrett v. Principi, 363 F.3d 1316 (Fed. Cir. 2004) (Barrett test for mental-illness-based tolling)
- Claiborne v. Nicholson, 19 Vet.App. 181 (2005) (letters about impairment of functioning viewed with caution for tolling)
- Day v. McDonough, 547 U.S. 198 (2006) (ordinary tolling rules in civil litigation; court discretion)
- John R. Sand & Gravel Co. v. U.S., 552 U.S. 130 (2008) (limitations defenses are generally pleading defenses but context varies)