Jones v. NicholsonJones v. Nicholson
- Reporters:
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- Before:
- Lourie, Linn, Prost
Bobby R. Jones (“Jones“) appeals from a non-final order of the United States Court of Appeals for Veterans Claims (“CAVC” or “Veterans Court“) denying Jones‘s motion for a limited remand to allow the Secretary of Veterans Affairs (“Secretary” or “government“) to assist Jones in his tolling claim and ordering Jones to submit further evidence to support his claim of entitlement to equitable tolling on the grounds of mental incapacity. Jones v. Principi, No. 03-1996 (Vet. App. Nov. 19, 2004).1 On appeal, Jones argues that the Veterans Court improperly interpreted
I. BACKGROUND
Jones had active duty for training with the Louisiana National Guard for five weeks, from May 19, 1976 to June 25, 1976. On August 8, 2002, the Board of Veterans’ Appeals (“BVA” or “Board“) denied Jones‘s claim for service connection for a nervous condition to include schizophrenia and depression. Over a year later, on August 27, 2003, the Board received Jones‘s motion for reconsideration, and on October 17, 2003 the Board denied the motion.
On November 10, 2003, after the 120-day jurisdictional time period prescribed by
While this matter was pending before the Veterans Court, this court reversed the Veterans Court‘s decision in Barrett v. Principi, U.S. Vet. App. No. 02-2382 (order June 5, 2003), which had dismissed the veteran‘s appeal for lack of jurisdiction on the grounds that mental incapacity had not been adopted as a basis for equitable tolling. Barrett v. Principi, 363 F.3d 1316 (Fed. Cir. 2004). This court stated in that opinion that “mental illness can justify equitable tolling of section 7266(a) under some circumstances.” Id. at 1321. Thereafter, on May 14, 2004, the Veterans Court ordered Jones to submit evidence on his asserted claim of equitable tolling on the grounds of mental illness. Jones, slip op. at 1 (noting that the May 14, 2004 order “directed the appellant to submit to the Court evidence, consistent with the ‘generalized standards’ outlined in Barrett v. Principi, 363 F.3d 1316 (Fed. Cir. 2004), that during the 120-day judicial-appeal period he had a mental illness of sufficient severity to warrant equitable tolling based on mental incapacity“). On May 19, 2004, Jones filed a motion for reconsideration, or in the alternative, for a panel review, of the May 14, 2004 order. Jones, slip op. at 1. Jones claimed entitlement to Veterans Affairs (“VA“) assistance in establishing his theory of equitable tolling. Id., slip op. at 2. “The appellant, in effect moves that the Court issue a ‘limited remand’ and order the Secretary to assist the appellant in
On November 19, 2004, the Veterans Court, in a published three-judge panel order, denied the motion for reconsideration. Id., slip op. at 1. The court found that Jones improperly relied on Juarez v. Principi, 16 Vet. App. 518 (2002), to show that “his claim remained pending at VA after the Board issued its decision and that he is thus entitled to VA‘s duty to assist in proving his mental incapacity during the 120-day judicial-appeal period.” Jones, slip op. at 2. The court stated that ”Juarez is not relevant to deciding the issue presented here . . . [and] the reasoning in Juarez was rejected by the Federal Circuit in Hayslip v. Principi, 364 F.3d 1321, 1326 (2004).” Jones, slip op. at 2. The Veterans Court then concluded that “[t]he appellant‘s central position, that he is entitled to VA‘s assistance in developing his equitable-tolling motion in this Court, is erroneous.” Id., slip op. at 3. The Veterans Court stated that
This court has jurisdiction under
II. DISCUSSION
A. Standard of Review
This court reviews decisions by the Veterans Court deferentially. Under
B. Finality
The threshold issue in this case is whether this court has jurisdiction over Jones‘s appeal. Jones argues that we do, relying on the basic principle that this court has jurisdiction to review Veterans Court decisions concerning any challenge to an interpretation of a statute, regulation, or rule under
Jones acknowledges that the Veterans Court‘s interim orders are treated like remand orders and are generally not reviewable. See Adams v. Principi, 256 F.3d 1318, 1320 (Fed. Cir. 2001) (“In applying the statute that grants us jurisdiction over appeals from the Veterans Court, we have generally declined to review non-final orders of the Veterans Court.“); see also Catlin v. United States, 324 U.S. 229, 233 (1945) (finding that an “order is final only when it ends the litigation on the merits and leaves nothing more for the court to do but execute judgment“). However, Jones maintains that this court needs to review the Veterans Court interim decision for three reasons:
- The order will govern future Veterans Court decisions, because it “made a clear and final decision on a legal issue.” He argues that the decision “held that VA does not have a duty-to-assist in the development of the record on the issue of equitable tolling.”
- “The interim order will adversely affect Jones, as he will bear sole responsibility (financial and otherwise) for the development of the record. Under the order, he will not be entitled to any VA assistance.”
- A substantial risk exists that the legal issue decided by the Veterans Court interim order may “evade future review.” He points out that if he prevails on his claim of equitable tolling, “the question of VA assistance becomes moot.” Therefore, Jones argues that if he “succeeds on the jurisdictional issue, but loses his appeal on the merits, the issue of VA assistance on the equitable tolling claim escapes review.” Moreover, if Jones loses under the Veterans Court‘s final decision, he argues that “[w]ith the record developed, the Veterans Court would then be making unreviewable factual findings as to the credibility and persuasiveness of the medical evidence on the mental incapacity question.”
The government responds that this court lacks jurisdiction and must accordingly dismiss. The government points out that controlling law holds that non-final orders are not reviewable and that the only exception is the collateral rule exception, which requires the fulfillment of certain conditions that are not met in this case. Namely, the conditions include that the issue addressed by the non-final order would be “effectively unreviewable” from a final judgment in the case. See Caesar v. West, 195 F.3d 1373, 1374-75 (Fed. Cir. 1999). The government argues that because Jones can raise this argument after the Veterans Court issues its final judgment, the interim order is not “effectively unreviewable,” and thus it does not come under the collateral order exception.
This court does not typically review remand or interim orders by the Veterans Court “because they are not final judgments.” Winn v. Brown, 110 F.3d 56, 57 (Fed. Cir. 1997); see also Williams v. Principi, 275 F.3d 1361, 1364 (Fed. Cir. 2002); Adams, 256 F.3d at 1320. This rule requires that “a party must ordinarily raise all claims of error in a single appeal
(1) there must have been a clear and final decision of a legal issue that (a) is separate from the remand proceedings, (b) will directly govern the remand proceedings or, (c) if reversed by this court, would render the remand proceedings unnecessary; (2) the resolution of the legal issues must adversely affect the party seeking review; and, (3) there must be a substantial risk that the decision would not survive a remand, i.e., that the remand proceeding may moot the issue.
Williams, 275 F.3d at 1364 (footnotes omitted); see also Myore v. Principi, 323 F.3d 1347, 1351 (Fed. Cir. 2003).3
Agreeing that the Williams standard applies in this instance, both parties acknowledge that the first two requirements of Williams are met and therefore the last criterion is the only one in dispute.4 While Jones argues that the issue in this case of whether
We find that this case does not satisfy the narrow exception to the rule of finality. This court has addressed this issue in at least two similar cases. See Myore, 323 F.3d 1347; Winn, 110 F.3d 56. In Winn, the Board denied disability benefits to the veteran based on lack of service connection. 110 F.3d at 57. On appeal to the Veterans Court, Winn argued that his condition was service-connected and also challenged the validity of a VA regulation,
On appeal of the remand to this court, Winn argued that the issue would evade review. This court rejected Winn‘s argument that he had a right to appeal from the non-final order and dismissed the appeal, finding instead that the order would not be unreviewable at a later stage of litigation. Analogous to the facts in this case, this court noted that “Mr. Winn may win or lose on the facts of his case without regard to the regulation he now challenges.” Id. This court found that the issue would be reviewable if Winn lost in a final judgment, stating
[i]f he loses, and the regulation is applied against him, and the loss is affirmed by the Court of Veterans Appeals, then Mr. Winn can certainly appeal to this court on what will then be a final judgment. At that time, if the regulation had been relied upon by the Court of Veterans Appeals in reaching its decision, then Mr. Winn may have proper standing to challenge its validity before this court.
Relying in part on Winn, this court in Myore also found that the issue in that appeal would be reviewable at a later stage of litigation. Myore, 323 F.3d at 1352 (“Myore may win or lose on the facts of her case without regard to the Veterans Court‘s interpretation of
Following the holdings of Winn and Myore, we find that the Williams test does not depend on whether the Veterans Court‘s interpretation of
CONCLUSION
Accordingly, we hold that we lack jurisdiction and the appeal is dismissed.
COSTS
No costs.
DISMISSED
Notes
(1) The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant‘s claim for a benefit under a law administered by the Secretary.
(2) The Secretary is not required to provide assistance-to a claimant under this section if no reasonable possibility exists that such assistance would aid in substantiating the claim.
(3) The Secretary may defer providing assistance under this section pending the submission by the claimant of essential information missing from the claimant‘s application.