Dixon v. McDonald
2016 U.S. App. LEXIS 4376
Fed. Cir.2016Background
- Donald Dixon, a Gulf War veteran, filed for VA benefits for sarcoidosis; his Board appeal was denied and he filed a notice of appeal to the Veterans Court 60 days late under 38 U.S.C. § 7266(a).
- The Veterans Court initially dismissed for lack of jurisdiction; later Supreme Court decisions (Henderson) and this Court’s remand prompted renewed consideration and a recall motion for equitable tolling.
- After Dixon died, Karen Dixon substituted as appellant; she submitted equitable-tolling evidence on remand.
- The Secretary explicitly waived any timeliness objection in briefing before the Veterans Court.
- Despite the Secretary’s waiver, the Veterans Court sua sponte raised and decided timeliness against Mrs. Dixon and dismissed the appeal as untimely.
- The Federal Circuit reversed, holding the Veterans Court lacked authority to grant relief on a non‑jurisdictional timeliness defense that the Secretary had deliberately waived, and remanded for merits consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Veterans Court may sua sponte decide a non‑jurisdictional timeliness defense after the Secretary waived it | Dixon: waiver bars the court from deciding timeliness; court must reach the merits | Secretary: court has authority (by statute/rules and Bove) to raise/decide timeliness to manage docket and enforce rules | Held: Veterans Court lacks sua sponte authority to grant relief on a non‑jurisdictional timeliness defense that the Secretary deliberately waived; reversal and remand |
| Whether Bove’s extension of the Day exception permits the Veterans Court to override waiver | Dixon: Day exception inapplicable to deliberate waiver | Secretary: Bove permits the court’s exception to resolve timeliness despite waiver | Held: Day applies only to inadvertent forfeiture in habeas context and does not authorize reaching a deliberate waiver; Bove was overruled on this point |
| Whether statutory language (“when presented”) permits the Veterans Court to act despite waiver | Dixon: § 7261(a) limits court to issues presented by parties; waiver forecloses court action | Secretary: court rules and practice give the Veterans Court procedural autonomy to act | Held: The statutory grant limits the Veterans Court to deciding issues presented; rules cannot expand statutory jurisdiction |
| Whether Veterans Court rules create independent sua sponte power to enforce the time bar | Dixon: rules merely mirror statute and cannot enlarge jurisdiction | Secretary: Veterans Court Rule 4 authorizes enforcement | Held: Rule 4 mirrors § 7266(a) and cannot confer greater authority than statute; no special power exists |
Key Cases Cited
- Bowles v. Russell, 551 U.S. 205 (clarified limits on appellate jurisdiction to excuse late appeals)
- Henderson v. Shinseki, 562 U.S. 428 (held § 7266 time bar is non‑jurisdictional for Veterans Court appeals)
- Day v. McDonough, 547 U.S. 198 (allowed district courts to reach an inadvertently forfeited habeas timeliness defense)
- John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (distinguished jurisdictional vs. non‑jurisdictional defenses)
- Christianson v. Colt Indus. Operating Corp., 486 U.S. 800 (statutory courts have only the jurisdiction Congress grants)
- Checo v. Shinseki, 748 F.3d 1373 (Veterans Court may request early briefing on timeliness issues)
- Dixon v. Shinseki, 741 F.3d 1367 (prior Federal Circuit decision remanding for consideration of post‑deadline evidence)