Tyrues v. Dept. Of Veterans Affairs
2011 U.S. App. LEXIS 2633
| Fed. Cir. | 2011Background
- Tyrues served in the U.S. Army, including the Persian Gulf War; hospitalized in 1994 for tonsillitis and pneumonia.
- He pursued two VA disability claims: direct service connection under §1110 (filed 1995) and Persian Gulf Syndrome under §1117 (added 1996).
- In September 1998, the Board denied §1110 and remanded §1117; the Board issued a Notice of Appellate Rights stating a 120-day appeal period and that remanded issues were not appealable.
- Tyrues did not file a Notice of Appeal within 120 days of the 1998 decision mailing.
- In 2004 the Board denied the remanded §1117 claim; Tyrues appealed to the Veterans Court, which in 2009 affirmed the 2004 denial but dismissed the §1110/§1117 mixed-decision claim for lack of jurisdiction; the matter was remanded for reconsideration.
- The en banc Veterans Court again dismissed the September 1998 claim for lack of jurisdiction; the Federal Circuit reviews this as a question of statutory interpretation of §7266(a).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §7266(a)’s 120-day deadline is mandatory/jurisdictional for final Board decisions in mixed decisions. | Tyrues argues the non-remanded portion may be reviewed later; some claims may be final only after remand. | The statute is mandatory; final decisions must be appealed within 120 days regardless of remand status. | Mandatory and jurisdictional; all final decisions must be appealed within 120 days. |
| Whether non-remanded portions of a mixed Board decision are final for purposes of §7266(a). | Non-remanded claims may be separable and appealable without waiting for all remanded claims. | Finality is determined by statute and administrative context; not all non-remanded parts are appealable separately. | Non-remanded portions can be separable, but §7266(a) governs finality and timing for appeal. |
| Whether Brownlee-Elkins framework allows discretionary timing for veterans appeals of mixed decisions. | Brownlee supports allowing appeals after individual claims become final. | Brownlee is distinguishable; veterans statutory framework differs from contract appeals. | Brownlee distinguished; §7266(a) requires 120-day appeal period for final decisions. |
Key Cases Cited
- Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62 (U.S. 1970) (finality and administrative adjudication concepts referenced in final-decision analysis)
- Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000) (final administrative adjudication determined by disruption risk and rights consequences)
- Brownlee v. DynCorp, 349 F.3d 1343 (Fed. Cir. 2003) (discretionary review in mixed decisions under contract disputes authority)
- Dewey Elecs. Corp. v. United States, 803 F.3d 650 (Fed. Cir. 1986) (treatment of non-remanded portions in administrative appeals; governance of finality differ from district courts)
- Henderson v. Shinseki, 589 F.3d 1201 (Fed. Cir. 2009 (en banc)) (§7266(a) jurisdictional; final decisions must be appealed within 120 days)