Lead Opinion
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 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 Veterans Affairs (“VA”) Regional Office (“RO”), based on his need for in-home carе. The RO denied the claim, and Mr. Henderson appealed to the Board. The appeal was 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 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.
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,
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,
Does the Supreme Court’s decision in Bowles v. Russell,551 U.S. 205 ,127 S.Ct. 2360 ,168 L.Ed.2d 96 (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
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 Supreme Court granted certiorari. Deciding the case, the Court held that “the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.” Id. at 95,
The Bailey Court distinguished Stone v. Immigration & Naturalization Service,
In Missouri v. Jenkins, the Supreme Court held that the ninety-day time limit for filing a petition for certiorari in a civil action, set forth in 28 U.S.C. § 2101(c), is not subject to equitable tolling.
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,
Dissenting, Judge Bryson pointed out that the Federal Circuit had “previously characterized compliance with the 120-day appeal period in 38 U.S.C. § 7266(a) as ‘a prerequisite for jurisdiction in the [Veterans Court],’ ” and that consequently the court had held that the 120-day period was not subject to extension upon a showing of good cause. Id. According to the dissent, the question of whether § 7266(a) is subject to equitable tolling was controlled not by Irwin, but by Stone. Id. at
By contrast, the dissent stated, the statute in Stone specified the time for review of a decision of the BIA by a federal court of appeals. The dissent highlighted the following language from the Court’s opinion in Stone, id.:
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,
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.”
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,
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, after unsuccessfully challenging on direct appeal in state court both his conviction and sentence of fifteen years to life.
The Supreme Court affirmed the decision of the Sixth Circuit. Focusing on 28
Continuing, the Court opined that “[j]u-risdictional treatment of statutory time limits makes good sense.” Id. at 212,
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,
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 Ja-quay. 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,
According to Mr. Henderson, because § 7266(a) is analogous to a statute of limitations provision, the Irwin presumption in favor of equitable tolling applies. In that regard, he argues that, as we determined in Bailey, there is no evidence of congressional intent to foreclose the application of equitable tolling to § 7266(a). Mr. Henderson posits that where Congress has written in exceptions to a time period set forth in a statute, as it did in 28 U.S.C. § 2107(c), then the specified time period cannot be equitably tolled. However, in the case of § 7266(a), no such exception was written in. Thus, Mr. Henderson contends that “equitable tolling is presumed to exist in the statute.” Id. at 6:04-08. Relatedly, Mr. Henderson urges that the intent to provide for equitable tolling has been solidified in the past eleven years. In the period since Bailey, Congress has amended § 7266(a), and chosen not to specify that equitable tolling is unavailable, indicating to Mr. Henderson that Congress has acquiesced in the interpretation we
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 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,
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,
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.”
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,
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,
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,
Congress amended § 7266 in 1994. See Veterans’ Benefits Improvements Act of 1994, Pub.L. No., 103-446, § 511(a), 108 Stat. 4645, 4670 (1994). The amendment did not affect the jurisdictional nature of the timing requirement, however. Bailey,
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 reenacts 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,
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,
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,
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, - U.S. -,
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 veteran 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 еquitable tolling because it is a claim processing rule. As
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,
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 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 “[accurate, informal, efficient, and fair.” H.R.Rep. No. 100-963 (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,
As far as the uniquely pro-claimant, non-adversarial nature of the veterans system is concerned, we acknowledge that the government has special 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,
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 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.”
AFFIRMED
COSTS
No costs.
Notes
. 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.
. 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).
. The Court, however, found equitable tolling
. 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).
. 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.
. Section 6511 of Title 26 deals with the procedures for filing tax-refund claims.
. Section 2409a of Title 28 addresses procedures for bringing actions for quiet title where the United States is a party.
. 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:
(6) Reopening the Time to File an Appeal. The district court may 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.
. 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
. 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.
. In Griggs, the Supreme Court reversed the Third Circuit's acceptance of jurisdiction pursuant to a premature filing of a notice of appeal.
. The court is grateful to Thomas W. Stoe-ver, Jr. and Jacek A. Wypych of Arnold & Porter LLP for their excellent pro bono representation of Mr. Henderson.
Concurrence Opinion
join, concurring.
I join the opinion of the Court, but I also agree with Judge Mayer that the rigid
. See Barrett v. Nicholson,
Dissenting Opinion
“Courts do not normally overturn a long line of earlier cases without mentioning the matter.” John R. Sand & Gravel Co. v. United States,
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 whо 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,
Although a majority of this court now wants to jettison this well-established, salutary precedent, Bowles provides a very
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, althоugh 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.
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.”
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.
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 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,
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.”
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 Jaguay,
Stone v. Immigration & Naturalization Service,
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-claimant.” Jaguay,
II.
“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.,
Indeed, in an aptly titled case, United States v. Henderson,
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,
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) jurisdictiоnal 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,
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,
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 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,
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 aрpeal” 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
It should be noted, moreover, that Bowles addresses the jurisdictional magnitude of Rule 4 of the Federal Rules of Appellate Procedure. See
B. The Brockamp Factors
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) 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,
Moreover, section 7266(a) does not contain explicit exceptions to the time to file requirements. Applying the maxim ex-pressio 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 “reading] other unmentioned, open-ended,
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, fairnеss, 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.... [Jjudicial 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
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]ccu-rate, informal, efficient, and fair.” H.R.Rep. No. 100-963, 100th Cong., 2d Sess. 26 (1988), 1988 U.S.C.C.A.N. 5782, 5808. By eradicating equitable tolling, the majority creates a harsh and formalistic adjudicatory scheme that is the antithesis of what Congress intended. See Forshey,
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 thе Veterans Court. See U.S. Court of Appeals for Veterans Claims Annual Report (2008), available at http//www.useourts.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.,
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 7266(a) was subject to equitable tolling.
Statistics from the Veterans Court make clear that the elimination of equitable tolling will deal a heavy blow to many deserv
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 factual 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,
IV.
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
The majority does not dispute thаt 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, — U.S. -,
. The Court concluded that the "definitive earlier interpretation of the statute” applicable to suits filed in the Court of Federal Claims "offerfed] a ... sufficient rebuttal” to the Irwin presumption. Sand & Gravel,
. 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,
. 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,
. 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 precedent of this court on the question of whether equitable tolling applies in Veterans Court proceedings.