589 F.3d 1201 (Fed. Cir. 2009), 2009-7006, Henderson v. Shinseki

Docket Nº:2009-7006.
Citation:589 F.3d 1201
Opinion Judge:SCHALL, Circuit Judge.
Party Name:David L. HENDERSON, Claimant-Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.
Attorney:Thomas W. Stoever, Jr., Arnold & Porter LLP, of Denver, Colorado, argued for claimant-appellant. With him on the brief was Jacek Wypych. Todd M. Hughes, Deputy Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-app...
Judge Panel:Before 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 b...
Case Date:December 17, 2009
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1201

589 F.3d 1201 (Fed. Cir. 2009)

David L. HENDERSON, Claimant-Appellant,

v.

Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

No. 2009-7006.

United States Court of Appeals, Federal Circuit

December 17, 2009

Page 1202

Thomas W. Stoever, Jr., Arnold & Porter LLP, of Denver, Colorado, argued for claimant-appellant. With him on the brief was Jacek Wypych.

Todd M. Hughes, Deputy Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Michael F. Hertz, Acting Assistant Attorney General, and Jeanne E. Davidson, Director. Of counsel were David J. Barrans, Deputy Assistant General Counsel, and Ethan G. Kalett, Attorney, United States Department of Veterans Affairs, Office of the General Counsel, of Washington, DC.

Martin V. Totaro, Baker Botts L.L.P., of Washington, DC, argued for amicus curiae Allan G. Halseth. With him on the brief was Jeffrey A. Lamken.

Robert V. Chisholm, Chisholm, Chisholm & Kilpatrick, of Providence, Rhode Island, for amicus curiae Disabled American Veterans, on petition for rehearing en banc. Of counsel on the brief were Zachary M. Stolz, of Washington, DC; and Christopher Clay, Disabled American Veterans, of Washington, DC.

Linda E. Blauhut, Paralyzed Veterans of America, of Washington, DC, for amicus curiae Paralyzed Veterans of America and Jewish War Veterans of the United States of America, on petition for rehearing en banc. With her on the brief were William S. Mailander, General Counsel, and Michael P. Horan, Deputy General Counsel.

Todd M. Wesche, Goodman, Allen & Filetti, PLLC, of Richmond, Virginia, for amicus curiae National Organization of Veterans' Advocates, Inc., on petition for rehearing en banc.

Lara C. Kelley, Finnegan, Henderson, Farabow, Garrett & Dunner LLP, of Washington, DC, for amicus curiae United Spinal Association, on petition for rehearing en banc. With her on the brief was James F. Sheerwood. Of counsel on the brief was Barton F. Stichman, National Veterans Legal Services Program, of Washington, DC.

Before MICHEL, Chief Judge, NEWMAN, MAYER, LOURIE, RADER, SCHALL, BRYSON, GAJARSA, LINN, DYK, PROST, and MOORE, Circuit Judges.

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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.

OPINION

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 dismissed his appeal of an adverse Board decision for lack of jurisdiction, on the ground that the appeal was untimely. Henderson v. Peake, 22 Vet.App. 217 (2008). In arriving at its decision, the court held that the 120-day appeal period set forth in § 7266(a) is not subject to equitable tolling. It was the view of the Veterans Court that the decision of the Supreme Court in Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007), had abrogated the decision of this court in Bailey v. West, 160 F.3d 1360 (Fed.Cir.1998) (en banc). In Bailey, we held that § 7266(a) is subject to equitable tolling. Following argument before a panel, we decided to rehear Mr. Henderson's appeal en banc, in order to determine whether, in light of Bowles, we should overrule Bailey and Jaquay v. Principi, 304 F.3d 1276 (Fed.Cir.2002) (en banc). In Jaquay, we followed Bailey and held that the misfiling of a motion for reconsideration before the Board equitably tolls the period for filing a notice of appeal with the Veterans Court. Today, for the reasons set forth below, based on Bowles, we expressly overrule Bailey and Jaquay ' s holdings that the time period set forth in § 7266(a) is subject to equitable tolling. We therefore affirm the decision of the Veterans Court dismissing Mr. Henderson's appeal for lack of jurisdiction.

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 care. 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

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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, 127 S.Ct. 2360. 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 " specifically 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, 327 Fed.Appx. 901 (Fed.Cir.2009). The single question posed to the en banc court is this:

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

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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.

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