Dixon v. McDonald

United States Court of Appeals

for the Federal Circuit

______________________

KAREN DIXON,

Claimant-Appellant

v.

ROBERT A. MCDONALD, SECRETARY OF

VETERANS AFFAIRS,

Respondent-Appellee

______________________

2015-7051

______________________

Appeal from the United States Court of Appeals for

Veterans Claims in No. 08-1475, Chief Judge Bruce E.

Kasold.

______________________

Decided: March 9, 2016

______________________

HOLLY ELIZABETH STERRETT, Arnold & Porter, LLP,

Denver, CO, argued for claimant-appellant. Also repre-

sented 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.

2 DIXON v. MCDONALD

______________________

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 connect-

ed to his service. Id.

A VA regional office denied Mr. Dixon’s claim, and the

Board of Veterans Appeals affirmed this

al. 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

DIXON v. MCDONALD 3

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 (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 (2011). After determining

that the Henderson holding would alter the reasoning

underlying its dismissal of Mr. Dixon’s appeal, the Veter-

ans Court informed Mr. Dixon that he could move to

recall the mandate based on an equitable-tolling argu-

ment. Dixon I, 741 F.3d at 1371. He made this motion.

Id.

The Veterans Court denied Mr. Dixon equitable toll-

ing. 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 evi-

dence 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 waiving 1 his objection

1 The Secretary’s briefing before the Veterans Court

stated that “it appears the criteria [for equitable tolling]

4 DIXON v. MCDONALD

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 dis-

missed 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 na-

ture. Henderson, 562 U.S. at 434. It contrasted the

language of § 7266 with that of the statute setting out an

analogous time limit for appeals of Veterans Court deci-

sions to the Federal Circuit. Id. at 438 (citing 38 U.S.C.

§ 7292(a)). It found the time bar on appeals to the Feder-

al Circuit to directly incorporate language from the juris-

dictional time bars ordinarily applicable to appellate

review of district courts, but § 7266 to use different lan-

guage to describe its bar. Id. at 438–39. It found the

placement of § 7266 in the enacting legislation—in a

have been satisfied,” and that “the Secretary is unopposed

to the application of equitable tolling.” J.A. 239–40. The

Veterans Court took these statements not to be a waiver.

The Veterans Court’s interpretation of these statements

as anything but a waiver is incorrect, and both parties

before us acknowledged during oral argument that the

Secretary unambiguously waived his timeliness objec-

tion. We therefore engage the Veterans Court’s alterna-

tive reasoning that it can dismiss this case even in the

face of a waiver.

DIXON v. MCDONALD 5

subchapter entitled “procedure”—to similarly provide no

indication that Congress intended the time bar to be

jurisdictional. Id. at 439. 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 (internal quotation and

citation omitted).

After the Supreme Court remanded Henderson to us,

we in turn remanded the case without additional com-

ment to the Veterans Court. On that remand, the Veter-

ans 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 Hender-

son 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 veter-

an’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 wheth-

er 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 au-

thority 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 (2008)). It

also noted that the Supreme Court has recognized an

exception to this general rule where a district court con-

sidering a habeas petition may, under some circumstanc-

es, raise a non-jurisdictional timeliness defense sua

sponte even after the state had failed to raise that de-

fense. Id. (citing Day v. McDonough, 547 U.S. 198, 202

(2006)). Noting policy concerns—the need to prevent the

Secretary from controlling the court’s docket by selectively

6 DIXON v. MCDONALD

raising the time bar and the court’s own interest in man-

aging 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 forfei-

ture 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 screen-

ing 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 Secre-

tary. Id. The veteran submitted briefing arguing that

equitable tolling excused her filing delay, and the gov-

ernment 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

DIXON v. MCDONALD 7

rule, however, was incorrect for three primary reasons:

(1) it failed to account for statutory limits to its jurisdic-

tion, (2) it misread the Supreme Court precedent creating

an exception to the general rule, and (3) it misapprehend-

ed 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 Secre-

tary. See Bove, 25 Vet. App. at 143.

First, the Veterans Court failed to consider the statu-

tory limits to its jurisdiction. “Courts created by statute

can have no jurisdiction but such as the statute confers.”

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800,

818 (1988) (quoting Sheldon v. Sill, 49 U.S. 441, 449

(1850)). The Veterans Court was created by statute, so

we look first to that statute to determine the scope of its

authority. In doing so, we apply the interpretive canon

that statutes benefitting veterans are to be construed in

the veterans’ favor. Henderson, 562 U.S. at 441; King v.

St. Vincent’s Hosp., 502 U.S. 215, 220–21 n.9 (1991); Coffy

v. Republic Steel Corp., 447 U.S. 191, 196 (1980). When

Congress granted the Veterans Court jurisdiction, it

included an explicit limit: the court may decide issues

only “when presented.” 38 U.S.C. § 7261(a); see also 38

U.S.C. § 7252(b) (limiting the Veterans Court’s jurisdic-

tion to the scope of review set out in § 7261). The plain

language of this limit suggests that the Veterans Court

cannot consider a non-jurisdictional time bar that the

government, through a waiver, has declined to “present[].”

This jurisdictional grant echoes—and uses the same

“when presented” language from—the Administrative

Procedures Act’s grant of jurisdiction to Article III courts

to review agency action. See Henderson, 562 U.S. at 432

n.2 (comparing 5 U.S.C. § 706 to the Veterans Court’s

scope of review under § 7261). The similarity between the

limit Congress set for the Veterans Court and the corre-

sponding limit for a type of case in Article III courts

further suggests that Congress did not intend to grant the

8 DIXON v. MCDONALD

Veterans Court sua sponte powers that would set it apart

from other courts. This statutory language does not

conclusively resolve the question before us, but it implies

that Congress intended the Veterans Court to abide by

the general rule that would proscribe the sua sponte

authority it asserted. 2

Second, the Veterans Court misread Supreme Court

precedent creating an exception to the general rule. It

correctly recognized that the Supreme Court created an

exception that applies in certain types of habeas cas-

es. See Bove, 25 Vet. App. at 141 (citing Day, 547 U.S. at

202). As an initial matter, habeas law may be of limited

applicability to other areas of law. See Menominee Indian

Tribe of Wis. v. United States, 136 S. Ct. 750, 756 n.2

(2016) (“[W]e have never held that [the habeas] equitable-

tolling test necessarily applies outside the habeas con-

text.”). For instance, habeas procedure is governed in

part by a special set of rules that grants courts some

additional sua sponte powers. See Day, 547 U.S. at 207

(quoting Rule 4 of the Rules Governing Section 2254

Cases in the United States District Courts and noting

district courts’ sua sponte authority to consider and

2 We note that the language of § 7261(a) does not

conflict with our Checo holding. The “when presented”

language only limits the Veterans Court’s authority to

decide an issue and grant relief, not to request early

briefing on it. 38 U.S.C. § 7261(a)(1)–(4). In Checo, after

the Veterans Court requested early briefing on timeliness,

the Secretary “presented” the issue for purposes of

§ 7621(a) by taking the position in that briefing that

equitable tolling did not excuse Ms. Checo’s violation of

the time bar. See Checo v. Shinseki, 26 Vet. App. 130, 132

(2013).

DIXON v. MCDONALD 9

dismiss petitions before the government has filed any

pleading). A holding that a court has enhanced sua

sponte powers when reviewing a habeas case therefore

may not imply the same for the Veterans Court. Addi-

tionally, the Day exception does not extend to the proce-

dural scenario we face here, where the government has

explicitly waived its defense. In Day, the Supreme Court

allowed a district court to reach a defense that the state

had accidentally forfeited by mistakenly failing to raise it

in its pleadings. 547 U.S. at 202. It noted in dictum that

the district court could not have reached this defense had

the state deliberately waived it. Id. When faced with a

deliberate waiver in a later habeas case, the Supreme

Court confirmed that a court cannot consider a knowingly

waived non-jurisdictional timeliness defense. Wood v.

Milyard, 132 S. Ct. 1826, 1834 (2012). Therefore, even if

the Day exception extends to veterans appeals, it does not

permit the Veterans Court to reach the issue when, as

here, the Secretary deliberately waived it.

Third, the Veterans Court based its extension of the

Day exception to veterans appeals on a misapprehension

of the relevant policy considerations. We are aware of no

other court that has the sua sponte authority to resolve a

deliberately waived non-jurisdictional timeliness defense.

Nonetheless, the Veterans Court determined itself excep-

tional because the Secretary is always the defendant

before it and because it has an interest in enforcing non-

jurisdictional time bars independent of the Secretary’s

interest. But neither of these considerations sets the

Veterans Court apart from other tribunals. For example,

in criminal law “the Executive Branch has exclusive

authority and absolute discretion to decide whether to

prosecute a [federal] case,” U.S. v. Nixon, 418 U.S. 683,

693 (1974), but courts claim no special powers springing

from the executive’s control over their criminal dock-

ets. And the Veterans Court cannot reasonably claim its

interest in controlling its own docket sets it apart from

10 DIXON v. MCDONALD

any other tribunal: judges generally must respect parties’

waivers of statutes of limitations, laches, and other non-

jurisdictional timeliness defenses, even when these de-

fenses would allow the court to avoid stale evidence,

missing witnesses, and additional caseload. The only

policy consideration relevant here that truly sets the

Veterans Court apart from other tribunals is Congress’s

intention in creating it to “place a thumb on the scale in

the veteran’s favor.” Henderson, 562 U.S. at 440 (internal

quotation and citation omitted). The policy considerations

therefore suggest that the Veterans Court should not

employ—at the expense of the veterans Congress created

it to serve—an extension of the Day exception.

The Secretary introduces an additional argument in

support of the Veterans Court’s sua sponte authority to

resolve this timeliness issue in the face of his waiver. We

have recognized “the Veterans Court[’s] broad discretion

to prescribe, interpret, and apply its own rules.” Checo,

748 F.3d at 1377. The Secretary argues that, even if

statute does not provide the Veterans Court the sua

sponte authority it exercised, its inclusion of an identical

time bar in its rules grants it this authority. See Veterans

Court’s Rules of Practice and Procedure, Rule 4. This

argument fails. The text of the rules contains nothing

suggesting that the Veterans Court has a special power to

enforce their time bar. Instead, the rules merely rephrase

the statutory time bar in nearly identical lan-

guage. Compare Veterans Court’s Rules of Practice and

Procedure, Rule 4, with 38 U.S.C. § 7266(a). A regulation

parroting a statute does not somehow grant an agency or

tribunal more expansive authority by rulemaking than it

has under the statutory language. Parker v. Office of

Pers. Mgmt., 974 F.3d 164, 167 (Fed. Cir. 1992) (citing

Felzien v. Office of Pers. Mgmt., 930 F.2d 898, 902 (Fed.

Cir. 1991)). We therefore find these rules not to create

any special sua sponte authority.

DIXON v. MCDONALD 11

CONCLUSION

The Veterans Court correctly recognized that, as a

general rule, a court does not have the sua sponte author-

ity to grant a party relief on a non-jurisdictional timeli-

ness defense that the party has waived. It erred,

however, in determining that it falls within an exception

to this rule. Therefore, we reverse the Veterans Court’s

determination that it had the authority to dismiss this

appeal as time-barred and remand so that it may proceed

with its consideration of the appeal on the merits.

REVERSED AND REMANDED

No costs.