Recently, the Supreme Court granted a writ of certiorari for Henderson v. Shinseki, which means that it has agreed to hear the Veteran’s appeal of the denial of his claim by the U.S. Court of Appeals for the Federal Circuit (“Fed Circuit”). It is not expected for the Supreme Court to issue a decision until at least early next year.
The issue that the Supreme Court will consider is whether the statutory 120-day time limit for filing a notice of appeal (“NOA”) (found at 38 U.S.C. § 7266(a)) to the Court of Appeals for Veterans’ Claims (“CAVC”) constitutes a statute of limitations subject to the doctrine of equitable tolling (meaning, exceptions to the filing deadline can be made) or whether the time limit is jurisdictional and does not allow any exceptions.
While this is a very technical issue, it is extremely important. It has been estimated that approximately 2 appeals a week are denied because they are too late. If the time deadline is deemed jurisdictional, it does not matter why the appeal is late. It could be – as in Mr. Henderson’s case – that the service-connected condition itself prevented a timely appeal. Or, it could be that the Veteran sent the appeal within 120 days to the BVA or RO rather than to CAVC, and VA held onto the NOA until after the deadline expired. Regardless of the Supreme Court’s decision, it is highly recommended that if you wish to appeal to CAVC, you submit your appeal within 120 days, if at all possible.
To review the general VA disability claims process, claims are typically decided originally by a Regional Office. If denied, the claimant (a Veteran or eligible dependent) can appeal to the BVA in Washington, DC. If denied by the BVA, then the claimant can appeal to the CAVC. In limited circumstances, a denial by the CAVC can be appealed to the Fed Circuit. If denied by the Fed Circuit, the claimant can ask the Supreme Court to consider the case. All of these appeals have time limits and other requirements.
In Mr. Henderson’s case, the BVA denied entitlement to special monthly compensation in August 2004. More than 120 days after the BVA decision was mailed to him, his NOA was received in January 2005. He was ordered to show cause why his appeal should not be dismissed as untimely. He asked for an extension to file his NOA because his service-connected disability had prevented him from filing it on time. He provided a letter from a psychiatrist to support this assertion. In a single-judge decision, the Court dismissed his appeal for lack of jurisdiction.
Mr. Henderson requested that the CAVC’s dismissal be reconsidered, and his request was granted and submitted to a panel of 3 judges. Meanwhile, the Supreme Court decided Bowles v. Russell which addressed the nature of NOA’s in the Federal appellate courts. In Bowles, the Supreme Court held that in Federal appellate courts, the filing of a NOA is a jurisdictional requirement – with the effect that the filing deadline is a hard and fast rule – rather than statute a limitations. If the filing deadline were viewed as a statute of limitations, it would be subject to “equitable tolling” – meaning that exceptions could be made to the filing deadline in certain circumstances. Mr. Henderson argued to the CAVC that Bowles did not apply to his claim at the CAVC and that a previous Fed Circuit case, Bailey v. West, establishing that equitable tolling was allowed in his situation, was still the precedent to follow. VA argued that CAVC should follow Bowles and find that the 120-day deadline was now a bright-line rule that could not be excused for any reason.
In 2008, the CAVC found that Bowles applied, that Mr. Henderson’s NOA was untimely, and that his appeal must be dismissed for a lack of jurisdiction. Notably, one of the 3 judges dissented.
In 2009, the Fed Circuit, in a panel decision by 12 judges, affirmed the CAVC’s dismissal of Mr. Henderson’s claim for lack of jurisdiction. The majority of the Fed Circuit panel agreed with CAVC that the time deadline for filing the NOA was a jurisdictional requirement and not subject to equitable tolling. It overruled its previous decision in Bailey and another similar decision in light of Bowles. Three judges dissented, noting that Bowles did not discuss much less overrule the Supreme Court’s long line of case affirming equitable tolling and that other circuit courts of appeals had found that equitable tolling survived Bowles in the context of filing deadlines.