Harold E. Bailey, Claimant-Appellant v. Togo D. West, Jr., Secretary of Veterans Affairs

MICHEL, Circuit Judge,

concurring in the result.

I write separately for two reasons. First, I wish to emphasize the limited scope of this decision as I would construe it. Second, while I agree with the result reached by the majority, that the Court of Veterans Appeals may toll its filing deadline and should consider whether the facts here justify tolling, I would like to explain why I nevertheless do not join in its opinion.

This decision simply upholds the authority of the Court of Veterans Appeals to toll its 120-day deadline for the filing of appeals from the Board of Veterans’ Appeals. This decision does not decide, nor even purport to address, whether other tribunals may toll them particular filing deadlines. However, because certain statements of our court about certain comments in Irwin could be read to suggest a broader application of Irwin to other tribunals, I am unable to join the majority opinion.

The Court of Veterans Appeals operates in a unique, paternalistic administrative environment. Indeed, when Congress established the Court of Veterans Appeals it explained that:

Congress has designed and fully intends to maintain a beneficial non-adversarial system of veterans benefits. This is particularly true of service-connected disability compensation where the element of cause and effect has been totally bypassed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty.

*1369 I[m]plicit in such a beneficial system has been an evolution of a completely ex-parte system of adjudication in which Congress expects [the DVA] to fully and sympathetically develop the veteran’s claim to its optimum before deciding it on its merits. Even then, [the DVA] is expected to resolve all issues by giving the claimant the benefit of any reasonable doubt.

H.R.Rep. No. 100-963, at 13 (1988), reprinted in, 1988 U.S.C.C.A.N. 5782, 5795. Thus, the Court of Veterans Appeals is an adjudicatory body that was created in 1988 with the legislative intent that it reflect the pre-existing, benevolent nature of the veterans’ benefits system which Congress wished to continue. Both the Supreme Court and this court have long recognized that the disputes that arise in this system are subject to procedural and other rules that are distinctly advantageous to the veteran claimant. See, e.g., Brown v. Gardner, 513 U.S. 115, 117-18 , 115 S.Ct. 552 , 130 L.Ed.2d 462 (1994) (explaining that any interpretive doubt should be resolved in the veteran’s favor); Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305, 323, 333-34 , 105 S.Ct. 3180 , 87 L.Ed.2d 220 (1985) (upholding the constitutionality of the then-existing fee limitation on veterans’ attorneys or agents on the grounds that the veteran would receive less of the award, “the system should be as informal and nonadversarial as possible,” and because the veteran “is provided with substitute safeguards such as a competent representative, a decisionmaker whose duty it is to aid the claimant, and significant concessions with respect to the claimant’s burden of proof’); Coffy v. Republic Steel Corp., 447 U.S. 191, 196 , 100 S.Ct. 2100 , 65 L.Ed.2d 53 (1980) (stating that veterans’ statutes must be liberally construed for the benefit of the returning veteran (citing Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 278 , 66 S.Ct. 1105 , 90 L.Ed. 1230 (1946)); Hodge v. West, 155 F.3d 1356, 1363 (Fed.Cir.1998) (concluding that “in the context of veterans’ benefits where the system of awarding compensation is so uniquely pro-claimant, the importance of systematic fairness and the appearance of fairness carries great weight”); Collaro v. West, 136 F.3d 1304, 1309-10 (Fed.Cir.1998) (describing “a nonadversarial, ex parte, paternalistic system for adjudicating veterans’ claims”).

The decision today to permit the tolling of the Court of Veterans Appeals’s 120-day filing deadline should be understood as derived from this uniquely benevolent statutory framework. Thus, it should not be read to overrule our precedent holding that filing deadlines for appeals to this court are not tollable. See. e.g., Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed.Cir.1991); Monzo v. FAA, 735 F.2d 1335 (Fed.Cir.1984); Sofarelli Assocs., Inc. v. United States, 716 F.2d 1395 (Fed.Cir.1983); Reeves v. Department of the Army, 228 Ct.Cl. 811 (1981); Jenkins v. United States, 228 Ct.Cl. 794 (1981). Nor, moreover, should it be viewed as having any applicability or relevance to the tolling of filing deadlines by other tribunals, trial or appellate.

The majority’s discussion of the applicability of Irwin creates the potential that future readers might view this court’s holding as broader than I believe it is. As today’s decision is limited to the 120-day statutory filing deadline at the Court of Veterans Appeals, any attempt to apply a presumption of tolling to other tribunals or deadlines could only be based upon dicta. The applicability of Irwin to other situations, then, can only be decided, if it has not been already, in future cases and predominantly by other Courts of Appeals. Certainly, our decision not only does not, but also cannot overrule any decisions of those courts on equitable tolling of appeals filed with them. Nor can our decision properly be seen as controlling the tolla-bility of filings in trial courts, including the Court of Federal Claims and the Court of International Trade, both of whose decisions are subject to review in our court.

Not only is the majority’s application of Irwin broad, but it also appears to me at odds with the actual language used by the Supreme Court. The Irwin Court reasoned:

Once Congress has made such a waiver [of sovereign immunity], we think that making the rule of equitable tolling applicable to suits against the Government, in the same way that it is applicable to private suits, amounts to little, if any, broadening of the congressional waiver.... We therefore hold that the same rebuttable presumption of equitable tolling applicable to suits *1370 against private defendants should also apply to suits against the United States.

Irwin, 498 U.S. at 95-96 , 111 S.Ct. 453 (emphasis added). The majority acknowledges this rule, stating that “[t]he rule we draw from Irwin is that the doctrine of equitable tolling, when available in comparable suits of private parties, is available in suits against the United States, unless the Congress has expressed its intent to the contrary” (emphasis added). There is, of course, no comparable civil action in which a party can litigate against another private party to obtain entitlement to veterans’ benefits. Thus, the very premise of Irwin’s rebuttable presumption of equitable tolling is absent here.

Nevertheless, despite this seemingly intractable roadblock to applying Irwin, the majority poses the question “would equitable tolling be available between private litigant’s in Bailey’s situation?” and then answers in the affirmative because “a veteran’s inducement by an adversary’s conduct is akin to grounds sufficient to toll a limitations period in a private suit.” However, in Irwin equitable tolling was permitted against the government in Title VII suits because equitable tolling was also permitted in Title VII private suits. Thus, the Supreme Court was examining whether equitable tolling was available in a comparable suit against a private party based upon the same statute. Here, however, the majority is examining whether equitable tolling is available for private parties offering a similar factual excuse in an unspecified, generic “private suit.” This is not the test set forth in Irwin. Indeed, if that were the test, then the Supreme Court would not have examined whether tolling was permitted for Title VII civil actions, but rather would have analyzed whether Shirley Irwin’s alleged failure to receive the letter explaining her right to file a civil action was the type of excuse that would permit tolling in a generic, private suit. By framing the issue as whether the factual excuse by the party in a suit against the government is comparable to factual excuses deemed worthy of equitable tolling in unrelated civil actions, rather than whether tolling is permitted in a comparable civil action, the majority misapplies and broadens the narrow rule of Irwin.

Finally, I cannot join the majority’s reason for rejecting the distinction that might be drawn between deadlines for filing suit and deadlines for filing appeals, that is, that “no real distinction in terms of jurisdiction or sovereign immunity could be drawn.” There is, I think, an additional consideration involved with regard to appeals that is not present with regard to filings initiating lawsuits. This consideration arises from the primacy of trial courts and the presumption that their judgments are correct and final, except only for such review and revision as are specified in the statute authorizing and establishing the pre-conditions for appeal. One of these pre-conditions is the limited period of time within which the appeal must be filed. Parties and other affected persons need to be able to rely on the finality of a judgment that has not been appealed within the statutory time limit for appeals.

Appellate courts occupy a position in the hierarchy of courts that may suggest that their power to decide — their jurisdiction — is broader than that of trial courts. In my view, however, a proper understanding of their respective roles leads to the opposite conclusion: appellate courts’ power of review is sharply limited, for judgments are reviewable only if both final and adverse to the party appealing and, I think, if filed within the time required by statute.

The Board of Veterans’ Appeals, of course, is not a trial court and the Court of Veterans Appeals, while surely an appellate court, is an Article I court set in a sui generis adjudicative scheme for awarding benefit entitlements to a special class of citizens, those who risked harm to serve and defend their country. This entire scheme is imbued with special beneficence from a grateful sovereign. On this basis alone, I would allow tolling by the Court of Veterans Appeals. The court today, however, pronounces that “Irwin commands that tolling should be presumed absent a clear contrary intent of Congress to limit jurisdiction created by a particular statute.” I certainly would resist finding a boundless mandate in the language of Irwin about a general presumption of tollability, not least because the Court there expressly limited its purpose to equalizing the condi *1371 tions of Title VII plaintiffs suing federal agency employers with those suing private employers under the same statute. Perhaps that (as well as the fact that there is no comparable, private lawsuit to a motion to reconsider the affirmance of a deportation order) explains the absence in Stone of any discussion, much less distinction, of Irwin.

There is yet another, practical reason to hesitate to find appellate deadlines subject to equitable tolling. Unlike trial courts, we as a Court of Appeals lack adequate mechanisms to find contested or complex facts. Nor, as we do in other circumstances, can we remand to the trial court to find such facts, for they are not relevant to any issue before that court. Further, as we already struggle to decide appeals properly before us in a timely fashion, we should avoid assuming a new and time-consuming burden of adjudicating equities for tolling purposes. I therefore hope that today’s decision will not haunt us tomorrow and I write to reduce that risk.

Accordingly, I concur in the judgment but do not join the opinion.