Dixon v. McDonald

• Decision Date: 09 March 2016
• Docket Number: No. 2015–7051.,2015–7051.
• Citation: 815 F.3d 799
• Parties: Karen DIXON, Claimant–Appellant v. Robert A. McDONALD, Secretary of Veterans Affairs, Respondent–Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

815 F.3d 799

Karen DIXON, Claimant–Appellant

v.Robert A. McDONALD, Secretary of Veterans Affairs, Respondent–Appellee.

No. 2015–7051.

United States Court of Appeals, Federal Circuit.

March 9, 2016.

Holly Elizabeth Sterrett, Arnold & Porter, LLP, Denver, CO, argued for claimant-appellant. Also represented by Thomas W. Stoever, Jr.

Alexander V. Sverdlov, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by Benjamin C. Mizer, Robert E. Kirschman, Jr., Martin F. Hockey, Jr. ; Y. Ken Lee, Martin J. Sendek, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

Before NEWMAN, CHEN, and STOLL, Circuit Judges.

CHEN

, Circuit Judge.

Karen Dixon, recently substituted as appellant for her deceased husband Donald Dixon, appeals a decision by the Court of Appeals for Veterans Claims (Veterans Court) dismissing her appeal based on a non-jurisdictional timeliness defense that Robert McDonald, Secretary of Veterans Affairs (the Secretary) waived. Because the Veterans Court does not have the sua sponte authority to grant the Secretary relief on a defense he waived, we reverse the dismissal of Mrs. Dixon's appeal and remand for consideration on the merits.

BACKGROUND

Mr. Dixon served in the Army from 1979 through 1992, including in the Persian Gulf War. Dixon v. Shinseki, 741 F.3d 1367, 1370 (Fed.Cir.2014)

(Dixon I ). Mr. Dixon was diagnosed in 2003 with sarcoidosis of the lungs and transverse myelitis. Id. He filed a claim with the Department of Veterans Affairs (VA) seeking benefits for his sarcoidosis, which he alleged was connected to his service. Id.

A VA regional office denied Mr. Dixon's claim, and the Board of Veterans Appeals affirmed this denial. Id. Acting pro se, Mr. Dixon filed a notice of appeal with the Veterans Court. Id. He filed this notice of appeal late, sixty days beyond the 120–day filing deadline set out in 38 U.S.C. § 7266(a)

. Id.

The Veterans Court found that, because Mr. Dixon had filed late, it was without jurisdiction to hear his appeal or to take up any argument that equitable tolling excused his filing delay. J.A. 130. Although the Veterans Court offered no explanation for its determination that it lacked jurisdiction, it presumably believed itself bound by the Supreme Court's Bowles opinion, which clarified that Article III appellate courts lack jurisdiction to excuse a filing delay when a notice of appeal has been filed out of time. See, e.g., Henderson v. Peake, 22 Vet.App. 217, 221 (2008)

(citing Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) ). After the Veterans Court dismissed Mr. Dixon's appeal, the Supreme Court held that Bowles did not extend to appeals before the Veterans Court. Henderson v. Shinseki, 562 U.S. 428, 431, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011). After determining that the Henderson holding would alter the reasoning underlying its dismissal of Mr. Dixon's appeal, the Veterans Court informed Mr. Dixon that he could move to recall the mandate based on an equitable-tolling argument. Dixon I, 741 F.3d at 1371. He made this motion. Id.

The Veterans Court denied Mr. Dixon equitable tolling. Id. He obtained pro bono counsel and filed a request for reconsideration of this denial, but the Veterans Court denied that request too. Id. Mr. Dixon appealed, but then he died of his medical conditions while his appeal was pending before us. We reversed because the Veterans Court's denial of an extension of time had effectively denied Mr. Dixon's new pro bono counsel access to evidence he would need to prove his claim, and we remanded to the Veterans Court with instructions to consider the evidence Mr. Dixon obtained after the deadline. Id. at 1379

. On remand, the Veterans Court substituted Mrs. Dixon and requested briefing from the parties on whether equitable tolling excused Mr. Dixon's late filing. Mrs. Dixon submitted evidence and argument supporting her claim that equitable tolling excused her husband's filing delay. The Secretary responded by waiving¹ his objection that Mr. Dixon filed his appeal out of time. Despite this waiver, the Veterans Court considered and rejected Mrs. Dixon's equitable-tolling arguments sua sponte. It dismissed Mrs. Dixon's appeal, granting the Secretary relief he had explicitly declined to seek on a defense he had waived.

DISCUSSION

We have jurisdiction over this appeal under 38 U.S.C. § 7292(a)

. See Maggitt v. West, 202 F.3d 1370, 1374 (Fed.Cir.2000) ("The jurisdictional reach of the Veterans Court presents a question of law for our plenary review.").

In Henderson, the Supreme Court considered whether the 120–day period set out in 38 U.S.C. § 7266

to bring an appeal to the Veterans Court is jurisdictional in nature. Henderson, 562 U.S. at 434, 131 S.Ct. 1197. It contrasted the language of

§ 7266

with that of the statute setting out an analogous time limit for appeals of Veterans Court decisions to the Federal Circuit. Id. at 438, 131 S.Ct. 1197 (citing 38 U.S.C. § 7292(a) ). It found the time bar on appeals to the Federal Circuit to directly incorporate language from the jurisdictional time bars ordinarily applicable to appellate review of district courts, but § 7266 to use different language to describe its bar. Id. at 438–39, 131 S.Ct. 1197. It found the placement of § 7266 in the enacting legislation—in a subchapter entitled "procedure"—to similarly provide no indication that Congress intended the time bar to be jurisdictional. Id. at 439, 131 S.Ct. 1197. Lastly, it found Congress's purpose in creating the Veterans Court—to "place a thumb on the scale in favor of veterans"—to imply that Congress could not have intended this time bar to subject veterans to the "harsh consequences that accompany the jurisdiction tag." Id. at 440–41, 131 S.Ct. 1197 (internal quotation and citation omitted).

After the Supreme Court remanded Henderson to us, we in turn remanded the case without additional comment to the Veterans Court. On that remand, the Veterans Court considered a number of consolidated cases and issued an opinion captioned Bove v. Shinseki, 25 Vet.App. 136 (2011)

. The Veterans Court made a number of determinations as to how it would implement the Henderson holding that the statutory time bar was non-jurisdictional. It first held that, because the time bar is non-jurisdictional, equitable tolling may excuse a veteran's failure to comply with it. Id. at 140. It went on to consider whether it had two types of sua sponte authority: (1) the authority to raise the time bar early at the outset of the proceedings, and (2) the authority to resolve whether an appeal is time-barred even in the face of a forfeiture or waiver by the Secretary. Id. at 140–43. It recognized that, as a general background rule, courts lack the authority to raise or resolve non-jurisdictional timeliness defenses sua sponte. Id. at 141 (citing John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008) ). It also noted that the Supreme Court has recognized an exception to this general rule where a district court considering a habeas petition may, under some circumstances, raise a non-jurisdictional timeliness defense sua sponte even after the state had failed to raise that defense. Id. (citing Day v. McDonough, 547 U.S. 198, 202, 126 S.Ct. 1675, 164 L.Ed.2d 376 (2006) ). Noting policy concerns—the need to prevent the Secretary from controlling the court's docket by selectively raising the time bar and the court's own interest in managing its docket—the Veterans Court determined itself to benefit from an exception to the general rule. Id. at 143. It thus granted itself both the sua sponte authority to raise the timeliness issue early and the sua sponte authority to resolve this issue even in the face of a forfeiture or waiver by the Secretary. Id.

In Checo v. Shinseki, we considered the first of the two types of sua sponte authority the Veterans Court granted itself in Bove: the authority to raise timeliness early and request preliminary briefing on it from the parties. 748 F.3d 1373 (Fed.Cir.2014)

. In Checo, the Veterans Court had determined in its initial case screening that the veteran's appeal might have been time-barred. Id. at 1376. As is apparently its general policy, it requested preliminary briefing specific to the issue of timeliness from both the veteran and the Secretary. Id. The veteran submitted briefing arguing that equitable tolling excused her filing delay, and the government submitted briefing asserting its defense and requesting dismissal because the facts did not satisfy the conditions for equitable tolling. The Veterans Court considered this briefing and granted the government the relief it sought on its defense. Id. at 1376

. We held that the Veterans Court has broad autonomy to establish its own procedural rules, including the ability to identify an issue for early briefing. Id. at 1377–78.

The case now before us presents the second type of sua sponte authority that the Veterans Court determined itself to have in Bove: the authority to resolve timeliness in the face of the Secretary's waiver by granting him relief that he explicitly declined to seek. The Veterans Court erred in determining itself to have this power. It correctly recognized the "general rule" that courts cannot grant relief on a non-jurisdictional timeliness defense in the face of a waiver. J.A. 6; accord Bove, 25 Vet.App. at 141

. Its conclusion that it fell within an exception to this general rule, however, was incorrect for three primary reasons: (1) it failed to account for statutory limits to its jurisdiction, (2) it misread the Supreme Court precedent creating an exception to the general rule, and (3) it misapprehended the relevant policy considerations. For these reasons, we overrule the Veterans Court's holding in Bove that timeliness is not a matter subject to waiver by the Secretary. See Bove, 25 Vet.App. at...