*3 Bеfore MICHEL, Chief Judge, NEWMAN, MAYER, LOURIE, RADER, SCHALL, BRYSON, GAJARSA, LINN, DYK, PROST, and MOORE, Circuit Judges.
Opinion for the court filed by Circuit Judge SCHALL, in which Circuit Judges LOURIE, RADER, BRYSON, GAJARSA, LINN, DYK, PROST, and MOORE join. Concurring opinion filed by Circuit Judge DYK, in which Circuit Judges GAJARSA and MOORE join. Dissenting opinion filed by Circuit Judge MAYER, in which Chief Judge MICHEL and Circuit Judge NEWMAN join.
SCHALL, Circuit Judge.
This is a veterans case. It involves 38 U.S.C. § 7266(a). Pursuant to that
statute, a veteran may appeal a final decision of the Board of Veterans’ Appeals
(“Board”) to the United States Court of Appeals for Veterans Claims (“Veterans Court”)
within 120 days after the date on which notice of the Board’s decision is mailed. In this
case, veteran David L. Henderson appeals the decision of the Veterans Court which
*4
dismissed his appeal of an adverse Board decision for lack of jurisdiction, on the ground
that the appeal was untimely. Henderson v. Peake,
BACKGROUND
Mr. Henderson served on active military duty from 1950 to 1952. He was discharged in 1952 after being diagnosed with paranoid schizophrenia, for which he has established service connection and currently has a 100% disability rating. In August of 2001, Mr. Henderson filed a claim for monthly compensation with the Department of Vеterans Affairs (“VA”) Regional Office (“RO”), based on his need for in-home care. The RO denied the claim, and Mr. Henderson appealed to the Board. The appeal was *5 denied on August 30, 2004. Thereafter, on January 12, 2005, Mr. Henderson filed a notice of appeal with the Veterans Court, fifteen days after the expiration of the 120-day appeal period set forth in 38 U.S.C. § 7266(a). Section 7266(a) provides as follows:
In order to obtain review by the Court of Appeals for Veterans Claims of a final decision of the Board of Veterans’ Appeals, a person adversely affected by such decision shall file a notice of appeal with the Court within 120 days after the date on which notice of the decision is mailed pursuant to section 7104(e) of this title. [1]
In 2005, the Veterans Court entered two orders asking Mr. Henderson to explain why his appeal should not be dismissed as untimely. Mr. Henderson responded that his failure to timely appeal was a direct result of his illness, and he asked that the court allow for equitable tolling in light of Bailey.
In March of 2006, in a single-judge decision, the Veterans Court held that equitable tolling was inappropriate in Mr. Henderson’s case, and dismissed his appeal as untimely. Subsequently, however, the court appointed pro bono representation to Mr. Henderson and revoked its initial order, reassigning the appeal to a panel. While Mr. Henderson’s appeal was pending, the Supreme Court rendered its decision in Bowles, in which it stated that “the timely filing of a notice of appeal in a civil case is a jurisdictional requirement,” and thus cannot be waived. 551 U.S. at 214. The Court also stated that it had “no authority to create equitable exceptions to jurisdictional requirements.” Id. The Veterans Court requested additional briefing on whether Bowles had abrogated our en banc decision in Bailey.
On July 24, 2008, the Veterans Court ruled in a 2–1 decision that the holding in Bowles prohibited it from using equitable tolling to extend the 120-day appeal period set forth in § 7266(a). Henderson, 22 Vet. App. at 221. The court determined that Congress had “sрecifically authorized” it to conduct “independent judicial appellate review” of the Board, and that well-settled law established that its cases were “civil actions.” Id. at 220. Starting from that premise, the court concluded that § 7266(a) was a notice of appeal provision in a civil case, and that it was jurisdictional and could not be equitably tolled. Id. at 220–21. Accordingly, the court ruled that our precedent in Bailey was effectively overruled, and it dismissed Mr. Henderson’s appeal for lack of jurisdiction. See id. at 218–20 (discussing Bailey). Judge Schoelen dissented, stating that the majority had failed to explain how Bowles changed the analysis of the governmental waiver of sovereign immunity that the Federal Circuit undertook in Bailey and reaffirmed in Jaquay. Id. at 222 (Schoelen J., dissenting).
Mr. Henderson timely appealed to this court, and a panel heard oral argument on
June 5, 2009. Recognizing that the case raised the question of whether Bowles
requires or suggests that we overrule previous en banc holdings of our court, we
granted rehearing en banc sua sponte on June 29, 2009. Henderson v. Shinseki, No.
2009-7006,
Does the Supreme Court’s decision in Bowles v. Russell,127 S. Ct. 2360 (2007), require or suggest that this court should overrule its decisions in Bailey v. West,160 F.3d 1360 (Fed. Cir. 1998) (en banc), and Jaquay v. Principi,304 F.3d 1276 (Fed. Cir. 2002) (en banc), holding that 38 U.S.C. § 7266 is subject to equitable tolling?
DISCUSSION
I. Under 38 U.S.C. § 7292(c), we have jurisdiction “to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof . . . and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision.” Pursuant to 38 U.S.C. § 7292(d)(1), we “decide all relevant questions of law, including interpreting constitutional and statutory provisions.” However, absent a constitutional issue, we “may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2). As we stated in Bailey, “[b]ecause our review of this decision involves a question of statutory interpretation—namely the ability of the [Veterans Court] to equitably toll a particular statutory time limit and thereby exercise jurisdiction over a late-filed notice of appeal—we have jurisdiction over this matter.” 160 F.3d at 1362. The question of whether § 7266(a) is subject to equitable tolling is a question of law and is reviewed de novo. See id.; see also 38 U.S.C. § 7292(d)(2). II.
A.
Before turning to the contentions of the parties and our analysis, we examine
Bailey, Jaquay, and Bowles. In Bailey, veteran Harold Bailey sought service connection
for a pulmonary disorder. After his claim was denied by the RO, Bailey appealed to the
Board, which also denied his claim. Bailey,
Bailey filed his Notice of Appeal with the Veterans Court on January 25, 1997, after the expiration of the 120-day period specified in § 7266(a). Id. at 1361–62. Eventually, the Veterans Court dismissed the appeal for lack of jurisdiction, stating that equitable tolling was not available “to provide any relief in the case of an untimely filed [Notice of Appeal].” Id. at 1362. After Bailey appealed, we took the case en banc to determine whether the 120-day time period set forth in § 7266(a) is subject to equitable tolling.
The en banc court held that the time period in § 7266(a) is subject to equitable
tolling. In so doing, the court “t[ook its] guidance” from Irwin v. Department of Veterans
Affairs,
After the district court dismissed Irwin’s complaint and the Fifth Circuit affirmed the dismissal, the Suрreme Court granted certiorari. Deciding the case, the Court held that “the same rebuttable presumption of equitable tolling applicable to suits against *9 private defendants should also apply to suits against the United States.” Id. at 95. The Court further held that equitable tolling should apply to 42 U.S.C. § 2000e-16(c), stating that the use of equitable tolling against the government did not improperly broaden Congress’s statutory waiver of sovereign immunity. [3] Id. at 95–96.
In Bailey, we viewed § 7266(a) as a time of review provision, see 160 F.3d at 1365–66, but we declined to cabin Irwin to cases involving statutes of limitations. Id. We stated that the Supreme Court’s opinion in Irwin did not “distinguish among the various kinds of time limitations that may act as conditions to the waivers of sovereign immunity required to permit a cause of action to be pitched against the United States.” Id. at 1364. We further stated that the rule we drew from Irwin was that “the doctrine of equitable tolling, when available in comparable suits of private parties, is available in suits against the United States, unless Congress has expressed its intent to the contrary.” Id. We concluded that there was “no reason to believe” that Congress wanted to bar the application of equitable tolling to § 7266(a). Id. at 1368.
The Bailey Court distinguished Stone v. Immigration & Naturalization Service,
514 U.S. 386 (1995), and Missouri v. Jenkins, 495 U.S. 33 (1990). In Stone, which
involved a final deportation order of the Board of Immigration Appeals (“BIA”), the
Supreme Court held that the time for filing a petition for review of the order with a circuit
court of appeals was jurisdictional and thus could not be equitably tolled.
[4]
Although the
*10
Stone Court stated that “statutory provisions specifying the time of review” are
“mandatory and jurisdictional,”
After analyzing § 7266(a), we concluded that the government had not rebutted
the Irwin presumption, and that § 7266(a)’s time period was therefore subject to
equitable tolling. In reaching this conclusion, we noted that Congress did not express
contrary intent that would indicate equitable tolling should not apply. For example, in
United States v. Brockamp,
In concurrence, now-Chief Judge Michel wrote separately “because certain
statements of our court about certain comments in Irwin could be read to suggest a
broader application of Irwin to other tribunals . . . .” Bailey,
Judicial review provisions . . . are jurisdictional in nature and must be construed with strict fidelity to their terms. . . . This is all the more true of statutory review provisions specifying the timing of review, for those time limits are, as we have often stated, “mandatory and jurisdictional,” . . . and are not subject to equitable tolling.
Stone, 514 U.S. at 405. The dissent concluded that the appeal provision in Stone,
8 U.S.C. § 1105a(a)(1), paralleled § 7266(a), “in that both provide a fixed period of time
within which an appeal may be taken to a reviewing court.” Bailey,
B.
In Jaquay, the en banc court addressed the question of whether a misfiled motion asking for Board reconsideration “equitably tolled the judicial appeal period for filing [a] notice of appeal to the Veterans Court.” 304 F.3d at 1278. Veteran Oliver Jaquay attempted to file a motion for reconsideration of a final Board decision, but incorrectly filed it with his RO. After ten months had elapsed, the RO forwarded the *14 motion to the Board, where it was denied. When Jaquay appealed the reconsideration decision to the Veterans Court (within 120 days of the denial), the Veterans Court granted the government’s motion to dismiss because the notice of appeal was not filed within 120 days of the initial final Board decision. Further, the Veterans Court found tolling inappropriate under Rosler v. Derwinski, 1 Vet. App. 241, 249 (1991), where it had held that a motion for reconsideration filed with the Board within 120 days of the Board’s final decision tolls the time required to file a notice of appeal with the Veterans Court until 120 days after the reconsideration decision. Id. We reversed, holding that Jaquay’s misfiling equitably tolled the 120-day period for filing at the Veterans Court.
We noted that, in Irwin, the Supreme Court stated that equitable tolling is available (1) “where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period,” or (2) “where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.” Irwin, 498 U.S. at 96. We also noted that the Supreme Court had previously found equitable tolling appropriate where a plaintiff had “filed the correct complaint in the wrong court.” Jaquay, 304 F.3d at 1285. We stated that, “[i]n the context of the non-adversarial, paternalistic, uniquely pro-claimant veterans’ compensation system, and consistent with our decision in Bailey, the availability of equitable tolling pursuant to Irwin should be interpreted liberally with respect to filings during the non-adversarial stage of the veterans’ benefits process.” Id. at 1286. We thus held as a matter of law
that “a veteran who seeks redress of a claim and misfiles his request at the same [RO] from which the claim originated” is entitled to equitable tolling under the first Irwin prong *15 “despite the defective filing” because he has “actively pursued his judicial remedies.” Id. at 1288–89.
C.
The Supreme Court decided Bowles in 2007, after Bailey and Jaquay were decided by this court. In Bowles, the Court sought to clarify the circumstances in which time limits have jurisdictional significance. In the case, Keith Bowles petitioned for habeas corpus relief from a murder conviction, aftеr unsuccessfully challenging on direct appeal in state court both his conviction and sentence of fifteen years to life. 551 U.S. at 207. The district court in Ohio denied the petition, and Bowles failed to timely appeal. Id. Pursuant to 28 U.S.C. § 2107(c) and Federal Rule of Appellate Procedure 4(a)(6) (“Rule 4(a)(6)”), though, the district court exercised its right to extend the period for filing a notice of appeal. [8] Id. However, the court’s order erroneously gave Bowles *16 seventeen days to file the notice of appeal, instead of the fourteen days allowed by the statute and the rule. Bowles filed his notice of appeal on the sixteenth day. Id. Before the United States Court of Appeals for the Sixth Circuit, Russell, the Warden who had custody of Bowles, argued that Bowles’s notice of appeal was untimely and that the court therefore lacked jurisdiction to hear the case. The Sixth Circuit agreed and dismissed the appeal. Bowles v. Russell, 432 F.3d 668, 677 (6th Cir. 2005). Noting that Rule 4(a) had been interpreted as “both mandatory and jurisdictional” by the Supreme Court and the Sixth Circuit, id. at 673, the court held that the Rule was “not susceptible to extension through mistake, courtesy, or grace.” Id. at 669.
The Supreme Court affirmed the decision of the Sixth Circuit. Focusing on 28
U.S.C. § 2107(c), the Court held that the statute was more than a “claim processing
rule,” Bowles,
reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:
(A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry; (B) the motion is filed within 180 days after the judgment or order is entered or within 7 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and
(C)
the court finds that no party would be prejudiced.
*17
and jurisdictional.’” Id. at 209. In addition, the Court emphasized that there is particular
“jurisdictional significance” when the time limit is set forth statutorily, rather than through
court-promulgated rules. Id. at 210–11. In that regard, the Court contrasted its
treatment of Federal Rule of Bankruptcy Procedure 4004 (“Rule 4004”), which governs
the filing deadline for a complaint objecting to a debtor’s discharge, with 28 U.S.C.
§ 2101(c), which governs the filing deadline for a writ of certiorari in civil cases. In
discussing Rule 4004, the Court recounted its decision in Kontrick v. Ryan, 540 U.S.
443 (2004). In Kontrick, the Court held that Rule 4004 was not jurisdictional. According
to the Bowles Court, “[c]ritical to [the] analysis [in Kontrick] was the fact that ‘no
statute . . . specifies a time limit for filing a complaint objecting to the debtor’s
discharge.’”
Continuing, the Court opined that “[j]urisdictional treatment of statutory time limits makes good sense.” Id. at 212. “Within constitutional bounds, Congress decides what cases the federal courts have jurisdiction to consider. Because Congress decides whether federal courts can hear cases at all, it can also determine when, and under what conditions, federal courts can hear them.” Id. at 212–13. Because Congress specifically provided a limit on the number of days a court may extend the period in which to file a notice of appeal in 28 U.S.C. § 2107(c), the Court found that limit to be “more than a simple ‘claim-processing rule,’” and thus jurisdictional. Id. at 213. The *18 Court stated: “Bowles' failure to file his notice of appeal in accordance with the statute therefore deprived the Court of Appeals of jurisdiction. And because Bowles’ error is one of jurisdictional magnitude, he cannot rely on forfeiture or waiver to excuse his lack of compliance with the statute's time limitations.” Id. In conclusion, the Court emphasized: “Today we make clear that the timely filing оf a notice of appeal in a civil case is a jurisdictional requirement.” Id. at 214. The Court added that it had “no authority to create equitable exceptions to jurisdictional requirements.” Id. The Court thus affirmed the dismissal of Bowles’s habeas appeal. Id. at 214–15.
III.
On appeal, Mr. Henderson, supported by various amici, makes several arguments as to why Bowles does not require us to overrule Bailey and Jaquay. [9] He first contends that 38 U.S.C. § 7266(a) is analogous to a statute of limitations rather than a jurisdictional time of review provision. Starting from that premise, he argues that the question of whether the 120-day filing period in § 7266(a) is subject to equitable tolling is governed by Irwin. Mr. Henderson urges that, in any event, the Bowles analysis should be limited to appeals in Article III courts, and should not be extended to cover appeals to the Article I Veterans Court. Finally, Mr. Henderson points to the unique pro-claimant, non-adversarial nature of proceedings before the RO and the Board. According to Mr. Henderson, the unique nature of veterans proceedings supports a reading of § 7266(a) that allows for equitable tolling.
In arguing that § 7266(a) is analogous to a statute of limitations, rather than a
time of review provision, and that Irwin therefore controls, Mr. Henderson points to
Jaquay. There, we stated that “the filing of a notice of appeal at the Veterans Court, like
the filing of a complaint in a trial court, is the first action taken by a veteran in a court of
law.”
Mr. Henderson argues that the title of § 7266(a), “Notice of Appeal,” does not
change the fact that the statute constitutes a statute of limitations. Mr. Henderson
reasons that although a case has been through several non-adversarial administrative
proceedings when it reaches the Veterans Court, it has not yet been heard in a court of
law. By contrast, an appeal from a district court to a circuit court of appeals already has
been heard in one Article III court. See Bowles,
The government responds that 38 U.S.C. § 7266(a) constitutes a mandatory and
jurisdictional time of review provision. It frames the issue by stating that “[a] statute
governing the timing of an appeal is jurisdictional because it identifies the point at which
the subject-matter jurisdiction of the lower court or tribunal ends and that of the
appellate court begins.” Appellee’s Br. 11; see also Griggs v. Provident Consumer Disc.
Co.,
The government argues that, in view of Bowles, there can be no doubt that
§ 7266(a) is jurisdictional. The government notes that, in Bowles, the Supreme Court
*21
stressed the fact that statutes specifying the time for taking an appeal in civil cases are
jurisdictional. The government further notes that both this court and the Supreme Court
have referred to proceedings in the Veterans Court as civil actions. See Scarborough v.
Principi, 541 U.S. 401, 413 (2004); Abbs v. Principi, 237 F.3d 1342, 1348 (Fed. Cir.
2001). Additionally, the government points out, § 7266(a) refers to the filing in the
Veterans Court as a “notice of appeal,” indicating that the Veterans Court does not
commence litigation, but rather continues litigation first brought before the Board. The
government also points out that the Veterans Court cannot review fact findings de novo,
38 U.S.C. § 7261(c), and must apply the doctrine of harmless error. See Shinseki v.
Sanders,
IV.
In Bowles, the Supreme Court “ma[d]e clear that the timely filing of a notice of appeal in a civil case is a jurisdictional requirement.” Bowles, 551 U.S. аt 214. The Court also made it clear that courts “ha[ve] no authority to create exceptions to jurisdictional requirements.” Id. at 214. Only Congress may do that. Id. at 212–13. *22 (“Because Congress decides whether federal courts can hear cases at all, it can also determine when, and under what conditions, federal courts can hear them.”). We hold today that 38 U.S.C. § 7266(a) is a notice of appeal, or time of review, provision in a civil case. In line with Bowles, we further hold that because § 7266(a) is a time of review provision, it is jurisdictional and that because Congress has not so provided, the statute is not subject to equitable tolling.
A.
Preliminarily, we recognize that, as Mr. Henderson points out, we stated in Jaquay that “the filing of a notice of appeal at the Veterans Court, like the filing of a complaint in a trial court, is the first action taken by a veteran in a court of law.” 304 F.3d at 1286. As he further points out, we also stated in Jaquay that Bailey decided “whether the 120-day statue of limitations under 38 U.S.C. § 7266 was subject to equitable tolling.” Id. at 1283 (emphasis added). These statements do not alter our conclusion that § 7266(a) is a time of review provision.
We agree that Mr. Henderson’s appeal to the Veterans Court represented the first time he could appear before a court. However, that was also the case for the litigant in Stone. Although Stone appeared solely within the executive system (namely, the BIA) before his petition to the circuit court of appeals, the Supreme Court still held that 8 U.S.C. § 1105a(a)(1) was mandatory and jurisdictional. Therefore, the fact that the Veterans Court is the first opportunity for a veteran to appear before a judicial body does not make § 7266(a) a statute of limitations rather than a time of review provision. More importantly, the statutory scheme convinces us that § 7266(a) is indeed a time of review provision.
Turning to the nature of proceedings in the Veterans Court, we begin by noting
that both the Supreme Court and this court have labeled actions in the Veterans Court
“civil actions.” See Sanders, 129 S. Ct. at 1700 (“In these two civil cases, the
Department of Veterans Affairs (VA) denied veterans’ claims for disability benefits.”);
Scarborough v. Principi, 541 U.S. 401, 413 (2004) (labeling veterans actions “civil
actions” for purposes of fees allowed by the Equal Access to Justice Act); Abbs v.
Principi,
We also hold that, because it speaks to “the timely filing of a notice of appeal,”
id., § 7266(a) is a time of review provision. First, the statute is titled “Notice of Appeal,”
and it states that a veteran “shall file a notice of appeal” “in order to obtain review” by
the Veterans Court. 38 U.S.C. § 7266(a). This language plainly suggests that
§ 7266(a) is a time of review provision. Beyond that, § 7252(a) of Title 38 states that
the Veterans Court “review[s] decisions of the Board of Veterans’ Appeals,” while
§ 7252(b) provides that a decision of the Veterans Court “shall be on the record of
proceedings before the Secretary and the Board.” Additionally, the Veterans Court
reviews the fact findings of the Board under a clearly erroneous standard, 38 U.S.C.
§ 7261(b), and must consider the rule of prejudicial error, 38 U.S.C. § 7261(b)(2).
These are characteristics of appellate review, rather than of an assessment of claims in
the first instance. See, e.g., Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S.
439, 464 (1988) (noting that it is among “the most basic principles of appellate review”
that an appellate court not disturb findings of fact unless they are clearly in error) (citing
Fed. R. Civ. P. 52(a) (“Findings of fact . . . shall not be set aside unless clearly
*24
erroneous”)); Zenith Radio Corp. v. Hazeltine Research, Inc.,
In holding that § 7266(a) is a time of review provision, we do not break new
ground. Indeed, the Bailey court recognized the statute as such. The court referred to
§ 7266(a) as being “specific in stating where, how and when the notice of appeal must
be filed.”
B.
Holding that 38 U.S.C. § 7266(a) is a time of review provision in a civil case does
not end the inquiry, however. As the dissent in Bailey stated, the “general principle in
Stone regarding timing-of-review provisions would be inapplicable if there were anything
in § 7266(a)(1) or its legislative history indicating that the timing provision governing
appeals to the [Veterans Court] was meant to be subject to equitable tolling.” Bailey,
Beginning with § 7266(a) itself, we see nothing on its face to indicate that it is meant to be subject to equitable tolling. The statutory language is clear and unequivocal, with no suggestion of equitable tolling:
In order to obtain review by the Court of Appeals for Veterans Claims of a final decision of the Board of Veterans’ Appeals, a person adversely affected by such decision shall file a notice of appeal with the Court within 120 days after the date on which notice of the decision is mailed pursuant to section 7104(e) of this title.
38 U.S.C. § 7266(a).
At the same time, looking beyond the language of the statute, we cannot glean
clear intent on the part of Congress to override the presumed jurisdictional treatment of
time of review provisions. See Bread Political Action Comm. v. Fed. Election Comm’n,
As noted above, Mr. Henderson has observed that eleven years have passed
since Bailey, and he argues that Congress has thus acquiesced in our reading of
§ 7266(a) in Bailey. “Congress is presumed to be aware of an administrative or judicial
interpretation of a statute and to adopt that interpretation when it re-enacts a statute
without change.” Lorillard v. Pons,
Though recognizing § 7266(a) as a time of review provision, the Bailey court held that it was subject to equitable tolling. It reached this conclusion because it determined that Irwin was controlling. As seen, this holding was based upon two determinations. First, the court concluded that Irwin “d[id] not distinguish among the various kinds of limitations that may act as conditions to the waivers of sovereign immunity required to permit a cause of action to be pitched against the United States.” Id. at 1364. Second, and most importantly, the court rejected the proposition that Irwin had been limited by Stone. Examining Stone, the court concluded that its language that statutory time of review provisions are “mandatory and jurisdictional” meant only that such provisions “are not subject to equitable tolling after Irwin if Congress has so expressed its intent.”
Id. at 1366. The Bailey court concluded by stating that it was “not comfortable” drawing “a bright line which would place statutes of limitation on one side of the Irwin presumption [in favor of equitable tolling] and statutes of timing of review on the other.” Id. at 1367.
Bailey’s holding that § 7266(a) is subject to equitable tolling has been
undermined by Bowles, however. As seen, in Bowles, the Supreme Court stated:
“Today we make clear that the timely filing of a notice of appeal in a civil case is a
jurisdictional requirement.” Bowles,
C.
Faced with Bowles, Mr. Henderson contends that the reach of the Court’s
decision is limited. First, he argues that, in John R. Sand & Gravel Co. v. United States,
552 U.S. 130 (2008), the Supreme Court had the opportunity to expand its holding in
Bowles, but chose not to do so. Appellant’s Br. 15. He states that one issue in John R.
Sand & Gravel was whether 28 U.S.C. § 2501, the six-year statute of limitations
applicable to Tucker Act suits in the United States Court of Federal Claims, is subject to
equitable tolling. According to Mr. Henderson, the Court held that § 2501 is
“jurisdictional,” citing Bowles to support its definition of a “jurisdictional” statute. “But,”
Mr. Henderson continues, “the Supreme Court did not expand Bowles by holding that
*30
because the statute is jurisdictional, it is not subject to equitable tolling.” Id. The
government rejoins that John R. Sand & Gravel does not help Mr. Henderson.
We are not persuaded by Mr. Henderson’s argument that John R. Sand & Gravel
suggests that Bowles is limited. The issue in John R. Sand & Gravel was narrow. The
Supreme Court stated: “The question presented is whether a court must raise on its
own the timeliness of a lawsuit filed in the Court of Federal Claims, despite the
Government’s waiver of the issue.”
It is true that, in deciding John R. Sand & Gravel, the Court mentioned Bowles in passing in referring to “jurisdictional” statutes. See John R. Sand & Gravel, 552 U.S. at 134 (“As convenient shorthand, the Court has sometimes referred to the time limits in [statutes of limitations] as ‘jurisdictional.’ See, e.g., Bowles, supra, at 2364.”) However, contrary to Mr. Henderson’s argument, because John R. Sand & Gravel involved the issue of waiver and a statute of limitations provision, rather than the issue of equitable tolling and a time of review provision, which was at issue in Bowles, there was no need for the John R. Sand & Gravel Court to discuss Bowles further one way or the other. Thus, not surprisingly, the Court focused its attention on Irwin, which, as a statute of limitations case, was pertinent to the issue before it. In short, we do not see John R. Sand & Gravel as being helpful to Mr. Henderson.
Mr. Henderson makes a second argument to limit Bowles. He contends that the
Court’s decision in Bowles, which did not discuss § 7266(a) or the doctrine of equitable
tolling, Appellant’s Br. 13–14, “relies on separation of powers principles that apply to
Article III courts.” Id. at 22. Mr. Henderson states that Bowles “is consistent with the
fundamental principle that Article III courts cannot ‘extend by rule the judicial power of
the United States described in Article III of the Constitution.’” Id. at 23 (quoting Willy v.
Coastal Corp.,
The government urges that the Article I nature of the Veterans Court should not
change our analysis. The government notes that the Supreme Court and circuit courts
of appeals have held that time limits on appeals from agency orders and adjudications
can be jurisdictional. See Stone, 514 U.S. at 406; Reueiz-Martinez v. Mukasey, 516
F.3d 102, 118 (2d Cir. 2008) (applying Bowles); Cellular Telecomm’s. & Internet Ass’n
v. FCC,
The Supreme Court has recently said: “[I]t is for Congress to determine the
subject-matter jurisdiction of federal courts. This rule applies with added force to Article
I tribunals, . . . which owe their existence to Congress’ authority to enact legislation
pursuant to Art. 1, § 8 of the Constitution.” United States v. Denedo,
D.
For their part, the amici contend that while 28 U.S.C. § 2107(c), which was at issue in Bowles, is written in language limiting the Article III jurisdiction of the federal appellate courts, § 7266(a) is written as a “claim processing” rule, and therefore should be treated as non-jurisdictional. The amici note that subsection (c) of § 2107 provides that the “district court” can “extend the time for appeal” in certain instances. See, e.g., Halseth Br. 22; NOVA Br. 8. They argue that this language defines the limits of what the district court can and cannot do, and therefore must be jurisdictional. By contrast, amici urge, § 7266(a) defines what the veterаn must do, and the statute is therefore a
claim processing rule, and not jurisdictional. Specifically, as seen, § 7266(a) provides
that “a person adversely affected” by a decision of the Board “shall file a notice of
appeal with the [Veterans Court] within 120 days after the date on which notice of the
decision is mailed.” Because the statute does not facially indicate which cases the
Veterans Court can and cannot take, amici argue that § 7266(a) does not contain any
jurisdictional limitations. See, e.g., Halseth Br. 13, 23; DAM Br. 6–7; PV/JWV Br. 4.
We reject the argument that § 7266(a) is subject to equitable tolling because it is
a claim processing rule. As stated by the Supreme Court in Bowles, claim-processing
rules “adopted by [a c]ourt for the orderly transaction of its business” are not
jurisdictional (and indeed, cannot be, as only Congress can dictate the jurisdiction of the
lower Article III courts).
We recognize that while 28 U.S.C. § 2107, the statute at issue in Bowles, is phrased in terms of what the district court can and may do, § 7266(a) is phrased in terms of the actions a veteran must take to preserve his or her right to appeal. We conclude, however, that this distinction does not convert § 7266(a) into a claim- processing rule. The time limit is set out statutorily, a crucial point for the Supreme Court in determining which of such limits are jurisdictional and which are not. See Bowles, 551 U.S. at 211 (noting that § 2107 contains “the type of statutory time constraints that would limit a court’s jurisdiction.”) Moreover, although the statute at issue here is drafted in terms of the veteran’s obligations, it states that the notice of appeal “shall” be filed with the Veterans Court within 120 days of the mailing of the Board’s final decision. 38 U.S.C. § 7266(a) (emphasis added). Furthermore, as we stated in Bailey, we must read the jurisdictional waiver of sovereign immunity for the Veterans Court, set forth in 38 U.S.C. § 7252, in light of the qualifications in § 7266, “because we must construe jurisdictional statutes narrowly and ‘with precision and with fidelity to the terms by which Congress has expressed its wishes.’” Bailey, 160 F.3d at 1363. Section 7266(a) is the only provision that specifies the timing for filing a notice of appeal in the Veterans Court. The textual focus on the veteran does not transform the statute into a claim-processing rule.
V.
The final argument Mr. Henderson and the various amici make is that because the veterans system is uniquely non-adversarial and pro-claimant, we should not import *35 jurisdictional rules into the system. The amici note that the Veterans Court was created to be an extra safeguard for those who served in the military, and that Congress strove to ensure, at the court’s inception, that it was “[a]ccurate, informal, efficient, and fair.” H.R. Rep. No. 100-936 (1988), reprinted in 1988 U.S.C.C.A.N. 5782, 5808. The amici urge that only a flexible system, which allows for equitable tolling, can meet these four goals. See, e.g., United Spinal Br. 4.
The government responds that we have stated that proceedings before the Veterans Court are not non-adversarial, and that there are certain legal requirements veterans must meet. See Forshey v. Principi, 284 F.3d 1335, 1355 (Fed. Cir. 2002), superseded by statute on other grounds (“The veterans’ benefits system remains a non- adversarial system when cases are pending before the Veterans’ Administration. However, the [Veterans Court’s] proceedings are not non-adversarial.”); Bailey, 160 F.3d at 1365 (“[V]eterans like Bailey must satisfy formal legal requirements, often without the benefit of legal counsel, before they are entitled to administrative and judicial review.”). Although recognizing that special protections are afforded the veteran, the government argues that the meaning of § 7266(a) is clear, and we may not ignore the fact that the statute is a time of review provision.
As far as the uniquely pro-claimant, non-adversarial nature of the veterans system is concerned, we acknowledge that the government has speсial duties to assist a veteran with his or her claim. However, we have recently been reminded by the Supreme Court that, although “Congress has expressed special solicitude for the veterans’ cause,” we do not have free rein to establish special procedural schemes governing the veterans’ system alone. Shinseki v. Sanders, 129 S. Ct. at 1707. In *36 Sanders, the Supreme Court struck down our unique harmless error rubric, concluding that it was “too complex and rigid,” and “impose[d] unreasonable evidentiary burdens upon the VA.” Id. at 1700. In reaching this conclusion, the Court traced the parallel language of the Administrative Procedure Act and the Veterans Court’s harmless error statutes. The Supreme Court found “no indication of any relevant distinction between the manner in which reviewing courts treat civil and administrative” cases, and concluded that we must apply the harmless error framework set forth for “ordinary civil cases.” Id. at 1704.
We complete our analysis with Sanders in mind. While it is clear the veterans’ system is unique, we must be wary of hinging different procedural frameworks solely on the special nature of that system. Jurisdiction is in the province of Congress, and without any clear intent by Congress to provide for equitable relief from the Notice of Appeal filing deadline in 38 U.S.C. § 7266(a), we cannot read in such relief based on the nature of the veterans system.
CONCLUSION
We hold that 38 U.S.C. § 7266(a) is a time of review provision in a civil case and that, because Congress has not so provided, it is not subject to equitable tolling. The statute is thus mandatory and jurisdictional. We therefore overrule our decisions in Bailey and Jaquay, where we held that § 7266(a) is subject to equitable tolling. We overrule Bailey and Jaquay not because we have concluded in retrospect that they were incorrectly decided in light of then-current Supreme Court authority. Rather, we do so because we have concluded that they have been overtaken by subsequent authority, specifically, Bowles, where the Supreme Court unequivocally stated that “the timely *37 filing of a notice of appeal in a civil case is a jurisdictional requirement” and that it had “no authority to create equitable exceptions to jurisdictional requirements.” 551 U.S. at 214. If Congress determines that the 120-day period for appealing to the Veterans Court from a decision of the Board should be subject to equitable tolling, it may amend § 7266(a) to compel a result different from the one we reach today. We, however, are not empowered to make that change. See id. at 215. For the foregoing reasons, the
Veterans Court correctly held that it lacked jurisdiction to consider Mr. Henderson’s appeal. Its decision dismissing his appeal is therefore affirmed. [12]
AFFIRMED COSTS
No costs.
United States Court of Appeals for the Federal Circuit
DAVID L. HENDERSON,
Claimant-Appellant, v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee. Appeal from the United States Court of Appeals for Veterans Claims in 05-0090, Chief Judge William P. Greene, Jr.
DYK, Circuit Judge, with whom GAJARSA and MOORE, Circuit Judges, join, concurring.
I join the opinion of the Court, but I also agree with Judge Mayer that the rigid deadline of the existing statute can and does lead to unfairness. This is particularly so in the many cases where the veteran is not represented by counsel during the processing of the claim at the Veterans Administration and/or is suffering from a mental disability. These circumstances can make it extremely difficult for the veteran to navigate the system and meet the statutory deadline. These situations are not merely hypothetical, as our prior decisions demonstrate. [1] In this case, the veteran suffered *39 from a service-connected mental illness allegedly leading to the late filing. The problems with the rigid rule of the existing statute may suggest that Congress should amend the statute to provide a good cause exception.
1998) (en banc) (no counsel; regional office mistakenly retained appeals documentation, thus resulting in untimely filing).
UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
DAVID L. HENDERSON,
Claimant-Appellant, v.
ERIC K. SHINSEKI, Secretary of Veterans Affairs,
Respondent-Appellee. Appeal from the United States Court of Appeals for Veterans Claims in 05-0090,
Chief Judge William P. Greene, Jr.
MAYER, Circuit Judge, with whom MICHEL, Chief Judge, and NEWMAN, Circuit Judge, join, dissenting.
“Courts do not normally overturn a long line of earlier cases without mentioning
the matter.” John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 137 (2008)
(“Sand & Gravel”). Bowles v. Russell,
I. No legal system can function without deadlines, but the majority’s eradication of equitable tolling in proceedings before the United States Court of Appeals for Veterans Claims (“Veterans Court”) creates a Kafkaesque adjudicatory process in which those veterans who are most deserving of service-connected benefits will frequently be those least likely to obtain them. It is the veteran who incurs the most devastating service- connected injury who will often be the least able to comply with rigidly enforced filing deadlines. Under the majority’s approach, this veteran will be both “out of luck and out of court,” since failure to comply with the 120-day deadline prescribed in 38 U.S.C. § 7266(a) means that he forfeits all right to judicial review of his claim.
Two en banc panels of this court have held that the time limit for filing an action under section 7266(a) at the Veterans Court is subject to equitable tolling. See Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002); Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998). We have recognized that “[i]t would be both ironic and inhumane to rigidly implement section 7266(a) because the condition preventing a veteran from timely filing is often the same illness for which compensation is sought.” Barrett v. Principi, 363 F.3d 1316, 1320 (Fed. Cir. 2004).
Although a majority of this court now wants to jettison this well-established,
salutary precedent, Bowles provides a very flimsy foundation for doing so. Bowles
neither addresses nor undermines this court’s rationale for permitting equitable tolling in
actions brought in the Veterans Court. The application of equitable tolling under section
7266(a) flows directly from the Supreme Court’s decision in Irwin v. Department of
Veterans Affairs,
If there was any doubt that Bowles left the Irwin doctrine of equitable tolling
unscathed, it was dispelled by the Supreme Court’s recent decision in Sand & Gravel.
There the Court reaffirmed the continuing vitality of the Irwin presumption of equitable
tolling, although the Court ultimately concluded that the presumption had been rebutted
with respect to the filing of suit under 28 U.S.C. § 2501 at the United States Court of
Federal Claims.
[1]
Sand & Gravel,
law.” Santos v. United States, 559 F.3d 189, 197 (3d Cir. 2009). Because our application of equitable tolling at the Veterans Court flows directly from Irwin, nothing in Bowles provides a sufficient basis for casting aside our long-established equitable tolling jurisprudence.
The majority seizes upon the following sentence from Bowles: “Today we make
clear that the timely filing of a notice of appeal in a civil case is a jurisdictional
requirement.” 551 U.S. at 214. When read in context, however, it is clear that this
statement means only that the appellate filing deadline set by Rule 4 of the Federal
Rules of Appellate Procedure and 28 U.S.C. § 2107(a) is jurisdictional in nature.
[2]
Bowles begins its analysis by stating that it is addressing the question of “whether the
Court of Appeals lacked jurisdiction to entertain an appeal filed outside the 14-day
window allowed by § 2107(c).”
appeal in accordance with the statute . . . deprived the Court of Appeals of jurisdiction.” (emphasis added)). Notably, each of the cases cited by the Court to support its conclusion that the filing of a notice of appeal within a statutorily prescribed period is “mandatory and jurisdictional” involved appeals from one Article III court to another. Id. at 209-10. Because Bowles is limited, by its facts and the cases upon which it relies, to *44 appeals from one Article III court to another, it does not speak to the separate issue of whether equitable tolling applies to judicial review of agency decisions.
A fundamental fallacy underlying the majority’s approach to section 7266(a) is that it confuses extending a limitations period with suspending one. Bowles addressed the question of whether a district court could extend the statutory time limit for reopening an appeal from fourteen to seventeen days. 551 U.S. at 209-10. Tolling does not extend any statutory deadline; instead it “temporarily halts” the running of the statutory clock. See Jaquay, 304 F.3d at 1281 n.2. “Principles of equitable tolling usually dictate that when a time bar has been suspended and then begins to run again upon a later event, the time remaining on the clock is calculated by subtracting from the full limitations period whatever time ran before the clock was stopped.” United States v. Ibarra, 502 U.S. 1, 4 n.2 (1991). While Bowles considered the question of whether a district court had authority to extend a statutory deadline for filing an appeal, it said nothing about whether а particular limitations period could be suspended because of equitable considerations. Here, the relevant inquiry is not whether the Veterans Court can extend the 120-day filing period, but whether the running of the statutory period is suspended during periods when a veteran is physically or mentally incapacitated.
A second significant difficulty with the majority’s approach is that it applies Bowles to the wrong filing deadline. Bowles addresses the jurisdictional significance of the time limit for appealing a district court decision to a court of appeals. In the veterans’ adjudicatory system, an appeal from the Veterans Court to this court is the procedural equivalent of an appeal from a district court to a court of appeals. See 38 U.S.C. § 7292 (providing that appeals from the Veterans Court to this court are to be *45 taken “within the time and in the manner prescribed for appeals to United States courts of appeal from United States district courts”). Thus, even assuming arguendo that Bowles can be extended to the system for adjudicating veterans’ claims, it would make the time limit for appealing from the Veterans Court—instead of the time limit for appealing to the court—jurisdictional in nature. See Henderson v. Peake, 22 Vet. App. 217, 224 n.2 (2008) (Schoelen, J., dissenting) (“[I]f anything, Bowles supports the Federal Circuit’s practice of refusing to allow equitable tolling for appeals from [the Veterans Court] to the Federal Circuit.”).
The third and most important error infecting the majority’s analysis is that it fails to properly differentiate between deadlines for bringing suit and those for filing appeals. A trial court’s judgment is presumed “correct and final, except only for such review and revision as are specified in the statute authorizing and establishing the pre-conditions for appeal.” Bailey, 160 F.3d at 1370 (Michel, J., concurring). Thus, an “appellate court[’s] power of review is sharply limited, for judgments are reviewable only if both final and adverse to the party appealing and . . . filed within the time required by statute.” Id. This is preсisely what Bowles recognizes: if an appeal of a court’s judgment “has not been prosecuted in the manner directed, within the time limited by the acts of Congress, it must be dismissed for want of jurisdiction.” 551 U.S. at 213 ( citations and internal quotation marks omitted); see Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982). (Filing an appeal of a district court decision “is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.”).
In contrast to time limits for appeal, deadlines for bringing suit are generally not
deemed jurisdictional. They are instead viewed as statutes of limitations, subject to
equitable tolling. See Sand & Gravel,
Just as the statutes construed in Bowen and Irwin, section 7266(a) provides a time limit for seeking initial court review of an adverse agency action. See Jaquay, 304 F.3d at 1286 (“[T]he filing of a notice of appeal at the Veterans Court, like the filing of a complaint in a trial court, is the first action taken by a veteran in a court of law.”). Furthermore, like the Social Security benefits scheme involved in Bowen and the employment discrimination scheme addressed in Irwin, the veterans’ benefits system is an adjudicatory framework “that Congress designed to be unusually protective of claimants.” Bowen, 476 U.S. at 480 (internal quotation marks omitted); see Jaquay, *47 304 F.3d at 1280 (“Congress has created a paternalistic veterans’ benefits system to care for those who served their country in uniform.”). Because section 7266(a) is similar in most important respects to the statutes at issue in Bowen and Irwin, and is fundamentally different from that addressed in Bowles, it is properly viewed as a statute of limitations rather than a rigid jurisdictional bar.
Stone v. Immigration & Naturalization Service,
final deportation order issued by the Board of Immigration Appeals is not amenable to
equitable tolling. Id. at 405. Removal proceedings, however, “closely resemble a trial”
and “are adversarial and employ many of the same procedures used in Article III
courts.” Frango v. Gonzales,
When a veteran brings a claim before the Board of Veterans’ Appeals (“board”),
“the relationship between the veteran and the government is non-adversarial and pro-
*48
claimant.” Jaquay, 304 F.3d at 1282. Thus, unlike depоrtation actions, proceedings
before the board are fundamentally unlike proceedings before a district court. See
Bailey,
“Obedience to a Supreme Court decision is one thing, extrapolating from its
implications a holding on an issue that was not before that Court in order to upend
settled circuit law is another thing.” Main Drug, Inc. v. Aetna U.S. Healthcare, Inc., 475
F.3d 1228, 1230 (11th Cir. 2007). As other circuits have correctly recognized, it is an
“unwarranted extension of Bowles to think that the Court was impliedly rendering
equitable tolling inapplicable to limitations periods just because they are set forth in
statutes.” Diaz,
doctrine of equitable tolling is alive and well and can appropriately be applied to many
different filing deadlines. See, e.g., Rouse v. Dep’t of State,
criminal appeals from the United States Navy-Marine Corps Court of Criminal Appeals, 10 U.S.C. § 867(b), is “jurisdictional” and not susceptible to equitable tolling).
Indeed, in an aptly titled case, United States v. Henderson, 536 F.3d 776, 779
(7th Cir. 2008), the Seventh Circuit correctly determined that, notwithstanding Bowles,
not all statutory time for appeal provisions are jurisdictional. At issue there was the time
for appeal provision contained in 18 U.S.C. § 3731, which provides that the government
has the right to appeal “a decision or order of a district court suppressing or excluding
evidence” so long as the appeal is “taken within thirty days after the decision, judgment
or order has been rendered.”
applied here. Even assuming arguendo that Bowles precludes the Veterans Court from making “exceptions” to section 7266(a)’s limitations period, it does not specify when the limitations period begins to run. Accordingly, there is nothing in Bowles to prevent a determination that the statutory period does not begin to run or, as discussed previously, is suspended during periods when a veteran is physically or mentally incapacitated.
III.
“It is hornbook law that limitations periods are customarily subject to equitable
tolling, unless tolling would be inconsistent with the text of the relevant statute.” Young
v. United States, 535 U.S. 43, 49-50 (2002) (citations and internal quotation marks
omitted). Thus, in analyzing section 7266(a), the key inquiry is whether “there [is] a
good reason to believe that Congress did not want the equitаble tolling doctrine to
apply.” United States v. Brockamp, 519 U.S. 347, 350 (1997) (emphasis in original));
Sand & Gravel, 552 U.S. at 138 (noting that the Irwin presumption of equitable tolling
can be rebutted “by demonstrating Congress’ intent to the contrary”); Arbaugh v. Y & H
Corp.,
A. Limits on a Court’s Reviewing Authority
The Supreme Court has historically distinguished between statutes that address
the power of a court to hear a case and those that impose timely filing obligations on
individual litigants. See Kontrick v. Ryan,
Here, in contrast, section 7266(a) is not framed as an express limit on the authority of the reviewing tribunal, but instead speaks only to the actions a veteran must take to bring his claim:
In order to obtain review by the Court of Appeals for Veterans Claims of a final decision of the Board of Veterans’ Appeals, a person adversely affected by such decision shall file a notice of appeal with the Court within 120 days after the date on which notice of the decision is mailed pursuant to section 7104(e) of this title.
38 U.S.C. § 7266(a).
Because the statute at issue here, unlike the statute at issue in Bowles, does not
contain an explicit limitation on the authority of the reviewing court, it is properly
classified as a claims-processing rule, which, while serving the salutary purpose of
protecting against stale claims, is not imbued with the jurisdictional heft of a statutory
limit on judicial authority. See Kontrick,
Tellingly, Congress considered, but rejected, language that might have made
section 7266(a) jurisdictional in nature. When it was wrestling with different approaches
to judicial review of veterans’ claims, a Senate bill proposed direct review of board
decisions by the regional circuit courts of appeals. It stated that “no action [for judicial
review] may be brought” unless the request for review “is filed not more than 180 days
after” notice of the board’s decision. S. 11, 100th Cong., 2d Sess. § 4025(g)(1). That
language “was clearly jurisdictional in nature,” Bailey, 160 F.3d at 1372 (Bryson, J.,
dissenting), similar in many respects to the language of the statute deemed
jurisdictional in Bowles. See 28 U.S.C. § 2107(a) (“[N]o appeal shall bring any
judgment . . . before a court of appeals for review unless notice of appeal is filed . . .
within thirty days after the entry of . . . judgment.”). Because Congress ultimately
rejected language that would have framed the deadline for filing at the Veterans Court
as a limit on the power of the court to hear a case, we can presume that it did not intend
for section 7266(a) to serve as a jurisdictional bar. See Arctic Slope Native Ass’n v.
*53
Sebelius,
The language Congress ultimately selected for framing the deadline for filing appeals to the Veterans Court, however, is remarkably similar to the language it choose to set forth the time limit for bringing a challenge to a final EEOC action in the statute addressed in Irwin. There the statute provided that “an employment discrimination complaint against the Federal Government under Title VII must be filed ‘within thirty days of receipt of notice of final action taken’ by the EEOC.” Irwin, 498 U.S. at 92 (quoting 42 U.S. C. § 2000e-16(c)). Because section 7266(a), like the Irwin statute, imposes timely filing obligations on an individual litigant seeking court review of an adverse agency action, instead of imposing limits on the authority of a reviewing tribunal, it is properly viewed as a statute of limitations rather than a jurisdictional bar.
Little, if any, significance can be attached to the fact that during the period when
Congress was wrestling with different approaches to providing judicial review of
veterans’ claims, a bill in the House provided that the time period for filing at the
Veterans Court could be extended “for good cause shown.” See H.R. 5288, 100th
Cong., 2d Sess. § 4015(d)(1). This bill also proposed eliminating the board and
replacing it with a 65-judge Court of Veterans Appeals that would have had
responsibility for direct review of decisions from the Veterans Affairs’ regional offices.
Id. at § 4003. Because the good cause exception was part of an adjudicatory
framework that was ultimately rejected by Congress, it is not surprising that there is no
explicit good cause exception in the final version of section 7266(a). Indeed, by the
*54
time Congress finally passed the Veterans Judicial Review Act, Pub. L. No. 100-687,
102 Stat. 4105, in 1988, the Supreme Court had already determined that equitable
tolling applied to the time limits for bringing challenges to adverse agency decisions. See Bowen, 476 U.S. at 477-79. Under such circumstances, it would have been
superfluous to include a provision allowing tolling of the limitatiоns period under section
7266(a). See Midlantic Nat’l Bank v. N.J. Dep’t of Envtl. Prot.,
The majority makes much too much of the fact that the filing a veteran uses to
commence litigation at the Veterans Court is styled a “notice of appeal.” Presumably,
Congress only used the term “notice of appeal” in section 7266(a) to distinguish the
filing a veteran makes at the Veterans Court from the one he makes at the board, which
is called a “notice of disagreement.” See 38 U.S.C. § 7105. There is not a scintilla of
evidence in the legislative history to indicate that Congress used the term “notice of
appeal” in section 7266(a) in order to equate the filing a veteran makes at the Veterans
Court with the filing a litigant makes to appeal a final district court judgment. To the
contrary, Congress uses the term “appeal” throughout Title 38 whenever it wishes to
refer to a veteran’s challenge to a prior determination, regardless of whether that
determination is from the regional office or the board. See, e.g., 38 U.S.C. § 7101
referring to the board as “the Board of Veterans’ Appeals” (emphasis added)); id. at
§ 7104 (discussing “appeals” to the board); id. at § 7105(b)(2) (“Notices of
disagreement, and appeals [to the board], must be in writing.”); id. at § 7105(d)(5) (“The
Board of Veterans’ Appeals may dismiss any appeal which fails to allege specific error.”
*55
(emphasis added)). To conclude that a notice of appeal to the Veterans Court is
equivalent to a notice of appeal to a circuit court of appeals is to exalt semantics over
substance. See Henderson, 22 Vet. App. at 223 (Schoelen, J., dissenting) (“I do not
believe the Supreme Court’s use of the term ‘notice of appeal’ in Bowles is
interchangeable with the use of the term in 38 U.S.C. § 7266(a), and I remain
unconvinced that Bowles compels the result reached today.”); see also King v. St.
Vincent’s Hosp.,
It should be noted, moreover, that Bowles addresses the jurisdictional magnitude
of Rule 4 of the Federal Rules of Appellate Procedure. See
The Supreme Court has identified several factors as important in determining
whether Congress intended equitable tolling to apply to a particular statutory time limit:
(1) whether the language setting forth the time limit is unusually detailed or technical in
nature, (2) whether a statute contains multiple iterations of the limitations period, (3)
*56
whether a timing provision contains explicit exceptions to the filing deadline, and (4) the
underlying subject matter of the statutory scheme in which the timing provision is found.
See Brockamp,
Section 7266(a)’s filing deadline is set forth in simple terms, eschewing the use
of technical jargon to set forth the limitations period. See Brockamp, 519 U.S. at 350
(“Ordinarily limitations statutes use fairly simple language, which one can often plausibly
read as containing an implied ‘equitable tolling’ exception.”); Arctic Slope Native Ass’n,
Moreover, section 7266(a) does not contain explicit exceptions to the time to file requirements. Applying the maxim expressio unius est exclusio alterius, the Supreme Court has made clear that the “explicit listing of exceptions” to the running of the limitations period must be considered by courts to be indicative of Congress’ intent to preclude them from “read[ing] other unmentioned, open-ended, equitable exceptions into the statute.” Brockamp, 519 U.S. at 352 (internal quotation marks omitted). In *57 Bowles, the statute at issue already contained an explicit exception to the time to file requirements, allowing a district court to extend the filing period for fourteen days beyond the thirty-day period allotted to appeal a district court’s final judgment. See 28 U.S.C. § 2107(c). Here, in contrast, section 7266(a) “does not provide its own exceptions to the general rule” regarding when an action must be filed. Bailey, 160 F.3d at 1365; see Arctic Slope Native Ass’n, 2009 U.S. App. LEXIS 21361, at *32-38 (concluding that equitable tolling applies to a Contract Disputes Act timing provision which did not contain any express exceptions to the deadline for a contractor to submit claims).
By far the most important factor compelling the conclusion that equitable tolling
applies to section 7266(a) is the fact that it is found in a uniquely pro-claimant
adjudicatory scheme. See Barrett v. Nicholson,
The impetus for the creation of the Veterans Court was Congress’ abiding concern that individuals who had put their lives on the line through service in the military had no right to have their claims for disability benefits reviewed in a court of law. See, e.g., S. Rep. No. 100-418, 100th Cong., 2d Sess. 30-31 (“Under current law, a veteran . . . aggrieved by a final [board] decision is left without any further recourse. . . . This legislation is designed to ensure that all veterans are served with compassion, fairness, and efficiency, and that each individual veteran receives . . . every benefit and service to which he or she is entitled under law.”); id. at 50-51 (“[T]he committee continues to
believe that providing an opportunity for those aggrieved by VA decisions to have such decisions reviewed by a court, in a manner similar to that enjoyed by claimants before almost all other Federal agencies, is necessary in order to provide such claimants with fundamental justice. . . . [J]udicial review, by opening the decisions of the VA to court scrutiny, will have a salutary effect on such decisions and on the VA decisionmaking process in general by involving the judiciary as a check on agency actions.”). Given Congress’ clearly expressed desire to provide veterans with access to the judicial system, interpreting section 7266(a) in a way that will deprive those who are incapable of meeting rigidly enforced deadlines of the right to judicial review is “as unsupportable as it is counterintuitive.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 158 (2002) precedent of this court on the question оf whether equitable tolling applies in Veterans Court proceedings.
(concluding that time limits specified in the Coal Industry Retiree Health Benefit Act of 1992 should not be construed in a way that might deprive compensation to the intended beneficiaries of the statute).
When it established the Veterans Court, Congress made clear that proceedings before the court were not to be overly “formalized,” but instead were to be “[a]ccurate, informal, efficient, and fair.” H.R. Rep. No. 100-963, 100th Cong., 2d Sess. 26 (1988). By eradicating equitable tolling, the majority creates a harsh and formalistic adjudicatory scheme that is the antithesis of what Congress intended. See Forshey, 284 F.3d at 1360 (Mayer, C.J., dissenting) (“Viewed in its entirety, the veterans’ system is constructed as the antithesis of an adversarial, formalistic dispute resolving apparatus.”).
The majority’s approach to equitable tolling is particularly indefensible given that most veterans act pro se when they file their petitions for review in the Veterans Court. See U.S. Court of Appeals for Veterans Claims Annual Report (2008), available at http//www.uscourts.cavc.gov/documents/Annual_Report_-_20081.pdf. The Supreme Court has cautioned that a strict reading of a filing provision is especially “inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 397 (1982) (internal quotation marks omitted). Because so many veterans must file their petitions without the assistance of counsel, it is highly unlikely that Congress intended for section 7266(a) to serve as a harsh and inflexible jurisdictional bar.
To the contrary, Congress has given every indication that it sanctions equitable
tolling in proceedings before the Veterans Court. In 1998, Bailey held that section
*60
7266(a) was subject to equitable tolling. 160 F.3d at 1364-68. In the eleven years
since Bailey, Congress has had ample opportunity to overturn the application of tolling
in Veterans Court proceedings, but has declined to do so. Instead, in 2000, Congress
enacted comprehensive revisions to the veterans’ benefits system, see Veterans Claims
Assistаnce Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096, but did nothing to
eliminate or circumscribe equitable tolling at the Veterans Court. In 2001, Congress
specifically reviewed and then amended section 7266, repealing a provision that
required a veteran to serve a notice of appeal on the Veterans Administration. See
Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, § 507,
115 Stat. 976, 999. Again, however, Congress chose not to disturb established
equitable tolling jurisprudence. Under such circumstances, it is reasonable to assume
that Congress agrees with equitable tolling in Veterans Court proceedings. See
Cannon v. Univ. of Chicago,
Statistics from the Veterans Court make clear that the elimination of equitable tolling will deal a heavy blow to many deserving veterans. In 2008, the Veterans Court heard 3,542 appeals on the merits and reversed, vacated or remanded 2,184 of the board’s decisions. See U.S. Court of Appeals for Veterans Claims Annual Report (2008), available at http://www.uscourts.cavc.gov/documents/Annual_Report_-_20081. pdf. Thus, veterans often mount successful challenges to adverse board decisions *61 when they come before the Veterans Court. With the eradication of equitable tolling, many deserving veterans will be deprived of the right to have an erroneous board decision corrected on appeal. See Br. of Amicus Curiae United Spinal Assoc. at 14 (noting that since the Veterans Court abolished equitable tolling “it has dismissed over 130 appeals based on the inability of claimants to meet the filing requirements of § 7266, an average of over two dismissals a week”).
While the abolition of equitable tolling will prove calamitous for many severely
disabled veterans, its continuance would result in no prejudice to the government. All
faсtual information must be presented during earlier proceedings, so a delay in bringing
an action in Veterans Court will not hinder the government’s ability to obtain evidence or
present its case. Bailey,
This court often pays lip-service to “the canon that provisions for benefits to
members of the Armed Services are to be construed in the beneficiaries’ favor.” See
King, 502 U.S. at 220 n.9; Brown v. Gardner, 513 U.S. 115, 118 (1994). In reality,
*62
however, it not infrequently fails in its “fundamental obligation to apply the law, when the
issue is an open one, in favor of the veteran.” Schism v. United States,
Four justices of the Supreme Court thought the result in Bowles was
fundamentally unfair. See
Henderson was discharged from active military duty due to service-connected paranoid schizophrenia. His psychiatrist reports that he is “incapable of rational thought or deliberate decision-making” and “incapable of understanding and meeting deadlines.” A1028. Acting pro se, Henderson filed an action challenging the board’s decision denying him monthly compensation for at-home care, but his complaint was dismissed because it was filed a mere fifteen days outside the 120-day filing period specified in section 7266(a). Because the majority has seen fit to renounce equitable tolling, Henderson will be deprived of all right to judicial review of his claim. So while Bowles, a convicted murderer, had several opportunities to present his case in a court of law, Henderson will have none.
The majority does not dispute that Henderson’s mental illness rendered him
incapable of meeting section 7266(a)’s filing deadline. Nor can it dispute that Bowles
does not mention, much less explicitly overrule, this court’s well-established precedent
applying equitable tolling in proceedings before the Veterans Court. Yet the majority
construes Bowles in a way that will deprive many deserving veterans of all right to
judicial review. But “[o]ur Nation has a long tradition of according leniency to veterans
in recognition of their service . . . .” Porter v. McCollum, No. 08-10537, 2009 U.S.
LEXIS 8377, at *22-23 (U.S. Nov. 30, 2009). Eliminating equitable tolling deprives
deserving veterans of the leniency they are due and makes a mockery of the pro-
claimant adjudicatory system Congress intended to create. Those “who have been
obliged to drop their own affairs to take up the burdens of the nation” through service in
the military, Boone v. Lightner,
Notes
[1] In pertinent part, § 7104(e) of Title 38 provides: (e)(1) After reaching a decision on a case, the Board shall promptly mail a copy of its written decision to the claimant at the last known address of the claimant.
[2] In 1991, this time period was extended to ninety days. See Pub. L. No. 102-166, § 114(1), 105 Stat. 1071, 1079 (Nov. 21, 1991).
[3] The Court, however, found equitable tolling was inappropriate in Irwin’s case.
[4] The text of 8 U.S.C. § 1105a(a)(1) (1994), the statute at issue in Stone, provided that “a petition for review [of a final deportation order] may be filed not later than 90 days after the date of the issuance of the final deportation order.” The statute was repealed, effective April 1, 1997, by Pub. Law No. 104-208, Div. C, Title III, § 306(b), 110 Stat. 3009-612 (Sept. 30, 1996).
[5] Section 2101(c) of Title 28 provides: Any other appeal or any writ of certiorari intended to bring any judgment or decree in a civil action, suit or proceeding before the Supreme Court for review shall be taken or applied for within ninety days after the entry of such judgment or decree. A justice of the Supreme Court, for good cause shown, may extend the time for applying for a writ of certiorari for a period not exceeding sixty days.
[6] Section 6511 of Title 26 deals with the procedures for filing tax-refund claims.
[7] Section 2409a of Title 28 addresses procedures for bringing actions for quiet title where the United States is a party.
[8] Section 2107(c) of Title 28 provides: (c) The district court may, upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing appeal, extend the time for appeal upon a showing of excusable neglect or good cause. In addition, if the district court finds— (1) that a party entitled to notice of the entry of a judgment or order did not receive such notice from the clerk or any party within 21 days of its entry, and (2) that no party would be prejudiced, the district court may, upon motion filed within 180 days after entry of the judgment or order or within 7 days after receipt of such notice, whichever is earlier, reopen the time for appeal for a period of 14 days from the date of entry of the order reopening the time for appeal. Rule 4(a)(6) similarly provides:
[9] We received amicus curiae briefs from veteran Allan G. Halseth; Disabled American Veterans (“DAM”); National Organization of Veterans’ Advocates, Inc. (“NOVA”); Paralyzed Veterans of America and the Jewish War Veterans of the United States of America (“PV/JWV”); and United Spinal Association (“United Spinal”), all urging reversal of thе decision of the Veterans Court.
[10] In 2001, Congress amended § 7266 as part of a broad package modifying the veterans’ benefits system. See Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, § 507, 115 Stat. 976, 997.
[11] In Griggs, the Supreme Court reversed the Third Circuit’s acceptance of
jurisdiction pursuant to a premature filing of a notice of appeal.
[12] The court is grateful to Thomas W. Stoever, Jr. and Jacek A. Wypych of Arnold & Porter LLP for their excellent pro bono representation of Mr. Henderson.
[1] See Barrett v. Nicholson, 466 F.3d 1038 (Fed. Cir. 2006) (service-
connected mental illness); Jaquay v. Principi,
[1] The Court concluded that the “definitive earlier interpretation of the statute”
applicable to suits filed in the Court of Federal Claims “offer[ed] a . . . sufficient rebuttal”
to the Irwin presumption. Sand & Gravel,
[2] Fed. R. App. P. 4 “carries [28 U.S.C. § 2107(c)] into practice” and “describes
the district court’s authority to reopen and extend the time for filing a notice of appeal.”
Bowles,
[3] The court ultimately concluded that the statutory period for filing an appeal did
not begin to run during the pendency of a timely filed motion for reconsideration,
notwithstanding the fact that the statute provided that appeals had to be taken within
thirty days of a district court decision. Henderson,
[4] The Veteran’s Court seems to have lost sight of its mandate when it took it upon itself to “overrule” Bailey and Jaquay. In eradicating equitable tolling based on Bowles, the Veterans Court conveniently overlooked the fact that Bowles did not cite to, much less overrule, any case involving section 7266(a). Indeed, even the government acknowledges that the Veterans Court acted inappropriately in failing to follow binding