David L. Henderson v. James B. Peake

impact Hyatt’s have a on Mrs. ac- direct claim, part if

crued benefits deemed

record. above, I

For the reasons stated dissent denying Hyatt

from the Mrs. substi-

tution in this matter. HENDERSON, Appellant,

David L. PEAKE, M.D., Secretary

James B. Affairs, Appellee. Stoever, Denver, of Veterans Thomas W. Colora- do, for appellant. No. 05-0090. Mayerick, Deputy Richard Assistant Appeals

United States Court of Counsel, Hutter, General with Paul J. Act- for Veterans Claims. Counsel; ing General Camp- Randall bell, Counsel, Assistant General all of Argued Nov. D.C., Washington, appellee. July Decided Mailander, Blauhut, William S. E. Linda Zajac,

and Jennifer A. all Washington, D.C., for Paralyzed amicus curiae of America. GREENE, Judge,

Before Chief SCHOELEN, HAGEL Judges. GREENE, Judge: Chief Before the is Mr. Henderson’s August of an decision of (Board) the Board of Veterans’ Department that denied entitlement to (VA) special monthly Veterans Affairs compensation. Mr. Notice (NOA) Appeal January was received on more than 120 after the Board Consequently, decision was mailed. he why was ordered to show cause his untimely. should not be dismissed as Mr. requested Henderson the time for filing his NOA to the Court be extended West, Ap- in the U.S. Court v. which disabili his VA service-connected (Federal him his the Federal Circuit Cir- timely filing peals prevented ty cuit) is available Subsequent equitable tolling the Board decision. held appeal of provide was ordered filed at this Court. See ly, Mr. Henderson for NOAs information, (Fed.Cir.1998). including Secretary medical main- The additional evidence, bright-line a basis for support other has created tains that Bowles Bar longer as authorized under no equitable tolling can rule that (Fed.Cir. Principi, v. 863 F.3d 1316 in It is untimely rett NOAs this Court. excuse Mr. Henderson sub response, In rising positions from these question the private psychia his mitted a letter from the now considers. Court disability. of his describing trist the effects petitioned Mr. Bowles a U.S. In submitted, considering After the evidence him, under rule permit court to district the Court dis single-judge in a 4(a)(6) Appellate of the Federal Rules jurisdiction. appeal for lack of missed the Procedure, statutorily which are enacted sought reconsideration Mr. Henderson rules, pre- appeal to file an after time request was dismissal and that of the appeal for such an had by scribed was submitted to a granted. The matter 4(a)(6) permits Rule a district expired. During pen- panel disposition. appeal the time to file an judge to extend States dency appeal, the United days day from the for a Russell, v. decided Bowles Supreme Court motion. See 28 grants district - U.S. -, 2360, 168 L.Ed.2d 2107(c). granting In Mr. (2007), which addressed whether motion, court errone- Bowles’s the district jurisdictional requirement an NOA is a gave Mr. Bowles 17 ously inexplicably thus, courts, and cannot appeal rather than the days to file his light In of that deci equitably tolled. statutorily prescribed days. Mr. sion, to sub parties ordered the Court later, days one Bowles filed his NOA 16 law. supplemental mit memoranda by day prescribed earlier than the district filings, Mr. Subsequent court, 14-day peri- two after the but Supple a Notice of Henderson submitted expired. The provided od statute had 30(b) Authority to Rule pursuant mental argued respondent Rules of Practice and Proce the Court’s for the United States Court Secretary The moved to strike Mr. dure. lacked to hear Sixth Circuit Supplemental Au Henderson’s Notice of Bowles’s because it was filed Mr. thority grounds on the does beyond 14-day period prescribed 30(b). Secretary’s comply with Rule The agreed. Supreme statute. Court portions to strike of Mr. pending motion (“This has 127 S.Ct. at 2363 Au Supplemental Notice of taking of an long held that moot. thority will be denied as ‘mandatory within the ” (citations omitted)). jurisdictional.’ argument regarding this matter Oral 16, considering distinguishing sever- Mr. After was held on November jurisdic- qualify al situations that do not argues that Bowles does not Henderson limits,1 held tional time precedent established disturb limit); See, Scarborough Principi, e.g., Arbaugh Corp., v. Y & H (2004) 158 L.Ed.2d 674 126 S.Ct (2006) plenary jurisdiction numerosity (finding had (holding employee re- that court limitation, ancillary judgment of statutory over matters quirement not time unequivocally: “Today (1936); we make clear that 80 L.Ed. 1135 Bethea v. Derwinski, (1992). timely filing Vet.App. of a notice of jurisdictional requirement.” civil case is a In Bailey, 160 F.3d at mandate, Id. at 2366. we review With Federal Circuit held that part of sec authorizing the statutes this Court to con- tion governing this Court’s review judicial appellate duct its review. authority subject equitable was to tolling Department under Irwin v. First, just Congress ap created Affairs, 89, 95-96, 453, 498 U.S. 111 S.Ct. pellate courts in each circuit as “a court of (1990) (once Congress has record, known as the United States Court sovereign immunity, waived equita rule of Appeals for the circuit” under Article tolling ble is applicable way in same Constitution, 43(a), § III of the 28 U.S.C. suits). in private would be It did so on the this Court was established under Article basis that section 7266 was more like a as “a court of record to be known as the statute of limitations in ju nature than a Appeals United Stated Court of for Veter risdictional requirement and that the Su Claims,” Second, § ans 38 U.S.C. it preme provided Court had not a distinction is well settled that proceedings of this Bailey, between the two. 160 F.3d at 1364 Court are “civil actions.” (“[Irwin] See Scarbor distinguish does not among the 413, ough, 541 (ap U.S. 124 S.Ct. 1856 various kinds of time limitations that may plying Act, Equal Access to Justice 28 act as conditions to the of sovereign waiver 2412(d)(1)(A), § U.S.C. to this Court and immunity required permit to a cause of specifically referring underlying to action action pitched against to be the United States.”). ”); as “civil action see also Abbs v. Princ 1342, (Fed.Cir.2001) (civ

ipi, 237 F.3d Supreme In provided against il actions brought VA are in Court the distinction between statutes limita- Claims). Third, jurisdictional tion requirements not appellate jurisdiction this Court’s derives found in Irwin and held that in civil cases exclusively statutory grants of au statutory periods limiting the time for thority by Congress enacted may not filing jurisdictional an NOA are beyond permitted extended by law. strict sense subject equita- and are not See Christianson v. Colt Indus. Operating tolling. ble 127 S.Ct. at 2365. Corp., 486 U.S. opinion emphasized The Bowles its (1988). 100 L.Ed.2d 811 The time to file reasoning statutory was based on the ori- appeal an in this Court prescribed by gin of the time limitation and thus made statute, not a Court rule. See 38 expressed clear that time limits in statutes 7266(a). To obtain re for appeal subject-matter limit Court, view in this an NOA must be filed jurisdiction. Specifically, Id.

with the Court within 120 after notice Court timely filing held: “[T]he [an of the Board decision is appel mailed to an jurisdictional in a civil NOA] case is a lant. Id. The ultimate burden of establish requirement,” and courts have “no authori- appellant. rests with the ty to equitable exceptions juris- create G.M.A.C., See McNutt v. requirements.” 56 dictional Id. at including application Equal Bankruptcy procedure fees under Federal Rule of was Act); Ryan, Access to Justice jurisdictional Kontrick v. because such rules were not U.S. statutory, but were rules issued court for (2004) (holding comply business). orderly failure to with transaction of its (statutes of limi- foundation the beneficent recognize

We are against Government in actions tations Federal Circuit part, led presumption subject to same rebuttable 120-day judi to the equitable tolling apply against applicable to suits tolling equitable to this for NOAs filing period cial-appeal defendants). specifi- has private (ap Bailey, Court. conduct, cally authorized this state employee’s on VA reliance pellant’s required and statutorily receipt of upon processed would be ment NOA, judicial ap- independent timely filed judicial- sufficient deci- agency of a pellate failed to employee after VA (granting §§ 7252 sion. See 38 U.S.C. Court). Later, the with timely file deci- jurisdiction to review exclusive Court equita expanded further Circuit Federal Board), scope of (limiting 7261 of sions period established tolling of the ble 7266(a) (review review), of and Court’s 7266(a) including to situations in section NOA); Frank- by initiated Board decision prevents a illness that mental and physical (1990) Derwinski, Vet.App. el v. See timely filing an from NOA. veteran authority appellate (examining Court’s (Fed. Nicholson, 403 F.3d 1379 v. Arbas 100-963, at court); H.R.Rep. No. see also Barrett, Cir.2005); How 363 F.3d 1316. (1988) creating (purpose of premise ever, Bowles establishes independent to Court was “establish Circuit in which the Federal upon decisions). Board to review While court” to the time applied Irwin progeny its and equitable tolling applies to the Irwin 7266(a) can in section established period rules, unequivo- claims-processing to al According longer stand. no statutory for the cally provides the rule rule” “claim-processing though simple a judicial appeals to period governing tolled, 127 equitably may be waived Bowles, 127 See S.Ct. this Court.2 in a taking of an “the S.Ct. by prescribed within the time case civil this jurisdictional’,” legislation that created ‘mandatory and The same is provisions for the also Griggs v. Provident Court contained (quoting id. Co., 56, 61, appeals within the filing of administrative 459 U.S. Disc. Consumer (1982) explicitly permitted relief Agency cu (per within the riam)). prescribed appeal periods from This Court’s (c) See, 7105(b), e.g., 38 U.S.C. distinguishable Agency. is Board decisions Irwin, Secretary prescribe regula- to (permitting considered in type of case appeal period if to allow claim seeking eq tions even petitioner who where (d)(3) 60-day (stating that expired), has against filed a had uitable ap- prescribed for “formal period a Federal district agency U.S. Irwin, Board Veterans’ peal” with complaint, not an NOA. guidance preme in John R. Sand & recently Court's Although has 7266(a) Gravel, 120-day period Gravel U.S. that in John Sand & v. the section stated decision, it properly after the Bowles Irwin survives an NOA in this classified file any to bar extension must also read conferring statute because as a -See to NOAs at this Court. Irwin filed governmental a represents a on limitation 750, 752, -, L.Ed.2d sovereign immunity de- and is waiver (2008) by (anomaly created Irwin specific signed protect a "case defendant's judi merely reflects "a other cases different timeliness,” the case with a as is interest weight comparative assumption cial about claims-processing or statute limita- rule likely to com have attached at 753. Id. tions. interests”). Following Su- peting national “may be extended for a Upon reasonable foregoing, consideration Mr. shown”). request good on for cause of August Con- Board decision is trasting provisions these DISMISSED. with the clear unqualified time limit GREENE, Judge, Chief filed the Court, section to this opinion of the Court. we can no draw other conclusion than SCHOELEN, Judge, arising dissenting: the civil cases from appeals to Court, there are no excep- Although I commend the for its 120-day judicial tions to appeal period lucid treatment of the issue before the 7266(a). established See Court, I must write separately because Bowles, supra. do not believe the majority’s analysis pro- ceeds from the proper foundation. The recognize We also even after Supreme Court’s decision in an appeal to this Court is Russell, opportunity the first for an appellant (2007) does not change the have judicial his claim considered basis for the Court’s authority apply body independent that is of the executive equitable 7266(a). to 38 U.S.C. claim, agency deciding his one might be apply The Court should existing precedent tempted analogize to period provided the to equitable evaluate whether tolling is to file such an appeal to a limita warranted in this case to excuse the late However, clarity tions. the and forceful filing appellant’s of the NOA. In the alter- ness with which Bowles speaks regarding native, majority explain should why its jurisdictional importance congres departure from existing precedent also sionally imposed periods of re appeal, forecloses equitable tolling grounds on dif- quires any tous abandon such effort. To ferent from currently in force. questions posed dissent, answer the by the majority The acknowledges that in Bai as Judge then-Circuit Scalia in Na stated West, (Fed.Cir.1998) ley v. 160 F.3d 1360 tional Media Black Coalition v. Federal (en banc) the Federal Circuit that held Commission, Communications no matter 7266(a) subject section equitable circumstances, how compelling the if a tolling, majority but the characterizes that court jurisdiction, does not have it cannot holding being as “on the basis that section 1297, act on a matter. See 760 7266 was F.2d more like a statute of limitations (D.C.Cir.1985). jurisdictional in nature than a requirement Supreme that pro Court had not Accordingly, Mr. untimely vided distinction between the two.” NOA juris- must be dismissed for lack of 1364). at (citing Ante at F.3d Bowles, diction. See 127 S.Ct. at 2366 majority goes Bowles, on to state that “[i]n (“[W]hen ‘appeal prosecut- has not been Supreme provided the distinc directed, ed in the manner within the time tion ju between statutes of limitation and limited the acts of Congress, it must be requirements risdictional not in Ir found ” jurisdiction.’ for want of dismissed (quot- win Department [v. Veterans Affairs, Curry, v. U.S. 47 U.S. 6 How. 453, 112 111 S.Ct. (1848))). 12 L.Ed. Additionally, (1990)] and held that in civil cases statuto Secretary’s motion to portions strike ry periods limiting the time for Mr. Henderson’s Notice of Supplemental jurisdictional an NOA are in the strict Authority is denied as moot. subject sense and are changes the any other 127 Bowles—or (citing Ante at

tolling.” case— waiver analysis governmental that of the I not believe do S.Ct. at Federal Cir any immunity such distinction that the provides sovereign law, clarity to this area any Bailey, and reaffirmed in adds undertook cuit majority’s analysis (Fed. over- and I believe Principi, 304 F.3d Jaquay v. aspects of significant looks several Cir.2002) (en banc) in Kirkendall adju- place Bailey, and this Court’s 479 F.3d 842-44 Army, Dep’t of claims. — of veterans benefits dication (en denied, (Fed.Cir.2007) banc), cert. U.S. -, 169 L.Ed.2d Irwin, analysis on the Feder- Basing its (2007).1 Indeed, Bailey, the Federal that, “ab- concluded Bailey al Circuit recognized that “courts have stated Circuit expression, congressional contrary sent a grants limitations limits statutes of the Court [of (empha jurisdiction,” F.3d to toll the stat- be entitled Claims] analysis of added), and confirmed sis in section 7266.” limitations found ute of required regard 7266 in this Here, majority ex- placement “go beyond prece- that recent plains to ex chose nomenclature “survives” Irwin has stated dent of the waiver metes and press the bounds (ante (citing n. 2 John — added). immunity.” (emphasis Id. States, & v. United Sand Gravel language signifies -, believe juris (2008))), already explored then concludes decision but the properly “is classified of the waiver of scope that section nature and dictional conferring statute because 7266(a), as a immunity of section and sovereign limitation governmen- on a a represents analysis. should follow that this Court immunity is sovereign and tal waiver of concludes majority that The instead ‘case protect a defendant’s designed not sovereign this immuni- supersedes Bowles timeliness,’ as is the in specific interest holds ty analysis because Bowles that rule or stat- processing with a claims case in a civil timely filing NOA] of [an “[t]he (cit- 220, n. 2 Ante at ute of limitations.” jurisdictional requirement,” ante case is Gravel, S.Ct. at R. & John Sand Bowles, added) (quoting (emphasis 753). of Ir- majority’s explanation The 2366), at at and this proceedings role in win’s continued actions,” ante at 219. I are “civil explain how Court does not jurisprudence Irwin and the statute reviewed in the majority John Sand & between 1. The states that R. & Gravel: "anomaly reviewed in R. Sand explains any created statute John that Gravel Irwin, similar to the merely The statute in "while 'a differ- Irwin and other cases reflects pres- language, is unlike the compara- present in judicial assumption the statute about ent key respect the Court in the likely at- ent weight have tive ” previously provided a definitive inter- had competing legitimate tached to interests.’ Thus, John pretation”). the in R. (citing & discussion John Sand Ante at n. R. Gravel, Gravel, by majority, cited amounts & John Sand & Sand at decisis, reaffirmation, through of stare proposition, it does to a Gravel does state but Irwin, upon which the reaffirming as well as the cases Irwin and in the of so context holding was based. I R. Sand & Gravel a conflict John explaining that Irwin did not create than under- grave rather sufficiently conclude of cases therefore with an older line narrowing mining and cases based Irwin concluding older were justify that the cases it, Gravel, upon & Gravel reaffirms John R. Sand & John R. Sand overruled. See vitality.' (describing difference Irwin’s the critical S.Ct. at 755 that distinction case a criminal majority’s de- objections two have not) (or of section applicability triggers regard. in this terminations 4(a) by extension Rule —and reads First, I believe holding in Bowles. of the applicability of consideration sufficient without Bowles jurisdiction of Thus, governs Bowles actually statutory scheme that reviewing a fi- court III Article jurisdic- is about addresses. civil, court a district of nal decision Ap- of Courts States the United of tion criminal, case. rather than III of the Article under constituted peals includes Furthermore, already ju- “shall have Those courts Constitution. distinguish enabling this Court analysis final decisions all appeals from of risdiction jurispru- from our of Bowles holding States the United courts of the district of stated Federal Circuit dence: may a direct except ... where Appellate of Procedure Rules Federal 28 U.S.C. Court.” had § 26(b), as 28 U.S.C. well Rule 4 addresses § 1291. Boioles III district from Article “govern appeals Procedure, of Appellate Rules to the inapplicable and are courts 4(a) in civil appeals governs which Claims], I an Article [Appeals in 4(b) appeals governs and section cases F.3d at Bailey, 160 court.” See R.App.P. 4. Rule Fed. criminal cases. or court not a district Court is This U.S.C.] “carries [28 4, according to III, Article under appeals constituted § into practice.” Veterans’ Board nor —the U.S.Code, of title 2363. Section this whose decisions body adjudicative appeal shall “no provides turn III district Article reviews—an in an order or decree bring any judgment, Although § See 38 court. civil nature of a action, proceeding suit or characterization majority’s agree with the notice ... unless a court before “civil,” Court as proceedings filed, thirty days after within appeal is “civil of the term not believe use I do or de- judgment, entry of such pro- this Court’s equates in Bowles case” 2107(a), pro- also cree,” 28 U.S.C. issue proceedings ceedings to those which a district by mechanism a vides Ar- with the deals Boivles Bowles ... extend “upon motion may court in mechanism III courts’ ticle excusa- showing of upon a for mecha- cases, from the differs which civil ... for a good cause neglect or ble brought to this cases are by which nism of entry of the date from of believe do not consequence, As a Court. appeal.” the time reopening “no- use term Court’s no 2107(c). 2107 makes § Section U.S.C. interchangea- in is appeal” of tice proceedings. of criminal mention U.S.C. term 38 use of the with the ble 7266(a), on the unconvinced depends I remain and § entire construct This today. reached of a U.S. the result compels decision of a final issuance prior (“[T]he filing 2107 are F.3d at Jaquay, section Rule and court. district Court, is a final decision notice of until there a implicated of trial in a complaint a filing of court, according to section like a district of veteran by action taken a is first is the court’s decision the district Once law.”); see also 38 of appeal, final, party a wish should this (stating that and Rule timing provisions Federal Circuit by the decisions relevant, does only then Court’s and become filing a notice by be obtained “shall a civil case the case matter whether Appeals with the for Vet- scheme for awarding benefit entitle- erans Claims within the time special citizens, to a ments class of manner for appeals to United who risked harm to serve and defend States courts of from United country. their This entire scheme is courts”).2 States district imbued with special beneficence a grateful sovereign. alone, On this basis My objection second majority’s I would allow tolling by the Court of that, approach is once the majority con [Appeals for Veterans Claims]. cludes superseded that Bowles has and, extension, Irwin, by it fails to account Id. at 1370. possibility grounds other may alludes such statements support exist to equitable tolling of section by “recognizing] the beneficent foundation 7266(a)’s In Bailey, deadline. the Federal that, in part, led the Federal Circuit to that, Circuit noted since the introduction apply equitable tolling,” ante at but judicial review VA benefits determi finds it insufficient as a reject basis to wrought by nations the Veteran’s Judicial Bowles construction jurisdictional of “the Act, Review 100-687, Pub.L. No. 102 Stat. importance of eongressionally imposed pe (1988), appears “it the system has riods of appeal,” at 221. ante As I ex changed nonadversarial, from ‘a parte, ex plained above, an appeal in the Article III paternalistic system for adjudicating veter courts is fundamentally different from an claims,’ ans’ to one in which ... veterans appeal to this Court. I suggest that this satisfy must legal requirements, formal of difference, should confront that ten without legal counsel, the benefit of should account for the fact that it is “set in they before are entitled to administrative a sui generis adjudicative scheme,” id., and judicial review.” Bailey, F.3d in order to obtain review in this 1365 (quoting West, Collaro v. Court, a claimant must “satisfy formal le (Fed.Cir.1998)). Also, 1309-10 con gal requirements, [and, often this curring in Bailey, Judge explained Michel case when Mr. NOA,] Henderson filed his Court of without the legal benefit of counsel.” Bai Claims “operates in unique, paternalistic ley, 160 F.3d at 1365. In creating this environment,” administrative Bailey, 160 provide judicial Court to review of final (Michel, J., F.3d at 1368 concurring), and decisions of the Board Veterans’ Ap that the Bailey decision itself “should be peals, did truly intend for this understood as derived from uniquely Court’s limited a tem benevolent statutory framework,” id. at poral restriction in face of extraordi 1369. He summarized his views stating nary circumstances, in way the same the Article III of appeals’ jurisdic courts [t]he Board of Veterans’ Appeals, of tion is limited? course, is a trial court and the Court of [Appeals Claims], while Court has held that inter- surely an appellate is an Article pretive doubt in veterans benefits statutes court set in a sui generis adjudicative should resolved the veteran’s favor. Indeed, anything, if Bowles supports appeals to United States courts practice Federal Circuit's equitable tolling refusing to allow appeals from United States district courts." appeals from this Court 7292(a); Oja also Dep’t see v. Circuit, to the Federal govern- as the statute Army, (Fed.Cir. 405 F.3d dictates they be under- taken "within the time and in manner this Court’s Congress intended Gardner, 117- Brown way in the the Court circumscribed (1994); to be L.Ed.2d there is it must When today concludes be. Hosp., 502 King v. St. Vincent’s the statute doubt, not construe should we (1991); see favor? in the veteran’s (“Even Kirkendall, if also ... canon case a close this were be con- should benefits statutes

veterans’ compel veteran’s favor

strued question] [the find that

us to tolling.”). For the

subject above, I have doubts described

reasons

Case Details

Case Name: David L. Henderson v. James B. Peake

Court Name: United States Court of Appeals for Veterans Claims

Date Published: Jul 24, 2008

Citation: 22 Vet. App. 217

Docket Number: 05-0090

Court Abbreviation: Vet. App.