Bailey v. Gober

STEINBERG, Judge,

dissenting:

I join in part I of Judge Kramer’s thoughtful dissenting statement regarding equitable tolling, and voted for en banc consideration in order for the Court to reconsider its action in Dudley v. Derwinski 2 Vet.App. 602 (1992) (en banc order), an action from which Judge Kramer and I dissented at the time. Id. at 603-06 .

Although I would prefer to receive full briefing on the equitable-tolling question at this point, I am preliminarily of the view that the precedents of the United States Court of Appeals for the Federal Circuit (Federal Circuit) cited in Judge Kramer’s dissent lead to the conclusion that equitable tolling is applicable on the facts of this case as to the 120-day period for filing a Notice of Appeal (NOA) in this Court under 38 U.S.C. § 7266 (a). I think that it is most instructive that, in the most recent Federal Circuit case to discuss equitable tolling as applied to the Department of Veterans Affairs (VA), that court stated specifically that “equitable tolling may be applied against the United States in certain cases, such as where the claimant has ... been induced or tricked into missing the statutory deadline”. McCay v. Brown, 106 F.3d 1577, 1582 (Fed.Cir.1997). The Circuit there cited Irwin v. VA, 498 U.S. 89, 95-96 , 111 S.Ct. 453, 457-58 , 112 L.Ed.2d 435 (1990), but did not mention Butler v. Derwin *457 ski, 960 F.2d 139 (Fed.Cir.1992), the case on which Dudley relied, or Dudley itself. McCay, supra; see also Juice Farms, Inc. v. United States, 68 F.3d 1344, 1346 (Fed.Cir.1995) (quoting Irwin, supra, and recognizing equitable tolling under certain circumstances involving Government misconduct). The language from Irwin recognized in McCay and set forth above is, in Irwin , followed by a footnote that cites Glus v. Brooklyn Eastern Dist. Terminal, 359 U.S. 231 , 79 S.Ct. 760 , 3 L.Ed.2d 770 (1959), which the Supreme Court characterized parenthetically as standing for the proposition that “adversary’s misrepresentation caused plaintiff to let filing period lapse”. Irwin, 498 U.S. at 96 n. 4, 111 S.Ct. at 458 n. 4.

Moreover, the statutes involved in Weddel v. Secretary of HHS, 100 F.3d 929, 932 (Fed.Cir.1996), and Iacono v. OPM, 974 F.2d 1326, 1327-28 (Fed.Cir.1992), specifically provided for a fixed cutoff point for the filing of claims on a date certain — May 7,1989, in the case of the latter, and 24 months after the effective date of the enactment in the case of the former. The Federal Circuit characterized these statutes as having “defined and closed the class” of potential claimants and having set a deadline that “bore no relation to the date on which the vaccination occurred [in our situation, the date that the Board of Veterans’ Appeals (BVA) decision was issued] or on which the Weddels’ claim accrued [the date on which notice of the BVA decision was mailed].” Weddel, 100 F.3d at 932 . The Circuit also stated in Weddel that the 24-month limited-claims period “clearly sets out a date certain which cuts off entitlement to benefits under the Act” and went on to quote (indirectly) OPM v. Richmond, 496 U.S. 414, 428 , 110 S.Ct. 2465, 2473-74 , 110 L.Ed.2d 387 (1990), regarding the judicial responsibility to ensure that “public funds will be spent according to the letter of the difficult judgments reached by Congress as to the common good”. Ibid, (quoting Iacono, 974 F.2d at 1328 , quoting Richmond, supra). It is clear that there is no Richmond issue involved in our situation.

Accordingly, it seems to me that there is very persuasive Federal Circuit authority to support a conclusion that 38 U.S.C. § 7266 (a) is not a statute of repose, as was involved in Weddel and Iacono , both supra, but is rather a statute of limitations, as was involved in Juice Farms, Inc., supra, that is subject to equitable tolling, and that the VA regional office conduct here constituted “misconduct” or “misrepresentation” that “induced” or “caused” the appellant to miss the NOA “filing deadline”. This easelaw subsequent to Dudley and Butler provides more than ample grounds for this Court to revisit its ill-advised Dudley holding.