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

> Court of Appeals for the Federal Circuit · November 9, 1998 · 160 F.3d 1360

URL: https://www.frixlaw.com/law-library/cases/9843190

## Case

- **Full name:** Harold E. BAILEY, Claimant-Appellant, v. Togo D. WEST, Jr., Secretary of Veterans Affairs, Respondent-Appellee
- **Court:** Court of Appeals for the Federal Circuit
- **Decided:** November 9, 1998
- **Citations:** 160 F.3d 1360; 1998 U.S. App. LEXIS 28230
- **Precedential status:** Published
- **Opinion:** Dissent by Bryson
- **Judges:** Mayer, Rich, Newman, Michel, Plager, Lourie, Clevenger, Rader, Schall, Bryson, Gajarsa
- **Cited by:** 175 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Henderson v. Shinseki, 589 F.3d 1201 (2009).
- Negative treatments: 1
- Distinguished by: 3
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9843190

## How later opinions describe it (automated extraction)

- holding that “equitable tolling” under Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), could be applied to 38 U.S.C. § 7266(a) judicial-review filing period when Department of Veterans Affairs (VA) conduct misled a claimant “into allowin…
- finding that equitable tolling of statute of limitations was appropriate where veteran’s notice of appeal was untimely due to administrative failure in Department of Veterans Affairs’ Regional Office despite veteran’s timely filing of the proper form in that office
- recognizing that the system for awarding veterans benefits is “imbued with special beneficence” from a sovereign grateful to a “special class of citizens, those who risked harm to serve and defend their country”
- holding that equitable tolling was available because Congress did not draft the statute in a “highly detailed, technical, or repetitive manner,” and it did not provide exceptions to its limitations period
- holding that “equitable tolling” under Irwin, supra, could be applied to 38 U.S.C. § 7266(a) judicial-review filing period when VA’s conduct mislead a claimant into “allowing the filing deadline to pass”

## Opinion text

BRYSON, Circuit Judge,
dissenting, joined by Circuit Judges LOURIE, RADER and SCHALL.
No one can dispute that on the equities Mr. Bailey has a compelling case. He submitted his notice of appeal to an officer of the Department of Veterans Affairs who promised to file it for him with the Court of Veterans Appeals but failed to carry through on the promise. The court understandably seeks not to penalize Mr. Bailey for the default on the part of the DVA employee in whom he placed his trust. The problem, however, is that in order to rule in Mr. Bailey’s favor, the court has had to set aside several previous decisions of this court and to attempt to distinguish a Supreme Court decision construing a closely analogous statute. Even though the rule applied by the CVA has distasteful consequences in this ease, I believe that fealty to the applicable precedents and to the principles governing judicial review provisions compels us to affirm.
This court has previously characterized compliance with the 120-day appeal period in 38 U.S.C. § 7266 (a) as a “prerequisite for jurisdiction in the CVA.” Mayer v. Brown, 37 F.3d 618, 619 (Fed.Cir.1994). Consequently, we have held that the 120-day time limit cannot be waived, see id., that it is not subject to extension upon a showing of good cause, see Butler v. Derwinski, 960 F.2d 139 (Fed.Cir.1992), and that it is not subject to equitable tolling, see Cummings v. West, 136 F.3d 1468 , 1472 n. 2 (Fed.Cir.1998). The court today overrules those cases on the ground that they are inconsistent with the Supreme Court’s decision in Irwin v. Department of Veterans Affairs, 498 U.S. 89 , 111 S.Ct. 453 , 112 L.Ed.2d 435 (1990), which, according to the majority, requires that section 7266(a) be interpreted to permit equitable tolling.
I do not agree that Irwin controls this case. In Irwin , the Supreme Court dealt with a statute that required a government employee to file a Title VII action in district court within 30 days of receiving the EEOC’s “right to sue” letter. The statutory procedure in eases involving government employees is essentially the same as the procedure in cases involving private employees, and the Court had previously held in private sector cases that the statutory time limits in Title VII are nonjurisdictional and thus subject to equitable tolling. Finding no evidence that Congress intended a different rule to govern the directly analogous provisions for government employees, the Court held that equitable tolling applies to the 30-day filing period for government employees as well. The Court then articulated the principle that when Congress has waived sovereign immunity and has imposed a time limit on suits against the government, “the same rebutta-ble presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.” Irwin, 498 U.S. at 95-96 , 111 S.Ct. 453 .
If the period for filing a notice of appeal in section 7266(a) were considered a statute of limitations for filing suit, Irwin would require that the presumption of equitable tolling be applied. Periods for filing notices of appeal are not normally regarded as statutes of limitations, however. Instead, they are considered “timing of review” provisions, which are typically deemed “mandatory and jurisdictional” and not subject to equitable *1372 tolling. See Stone v. Immigration and Naturalization Serv., 514 U.S. 386, 405 , 115 S.Ct. 1537 , 131 L.Ed.2d 465 (1995).
For example, 28 U.S.C. § 2107 and Rule 4, Fed. R.App. P., which govern the timing of notices of appeal from federal district courts, have long been regarded as mandatory and jurisdictional, and thus not subject to equitable tolling. See Browder v. Director, Illinois Dep’t of Corrections, 434 U.S. 257, 264 , 98 S.Ct. 556 , 54 L.Ed.2d 521 (1978); see also Torres v. Oakland Scavenger Co., 487 U.S. 312, 317 , 108 S.Ct. 2405 , 101 L.Ed.2d 285 (1988). Likewise, the time limitation for cer-tiorari petitions in civil cases, 28 U.S.C. § 2101 , has always been considered mandatory and jurisdictional. See Federal Election Comm’n v. NRA Political Victory Fund, 513 U.S. 88, 90 , 115 S.Ct. 537 , 130 L.Ed.2d 439 (1994); Missouri v. Jenkins, 495 U.S. 33, 45 , 110 S.Ct. 1651 , 109 L.Ed.2d 31 (1990). In both instances, noncompliance with the timing provisions in the statute or rule is fatal to the appeal or petition for review, no matter how compelling the reason that the appellant or petitioner has failed to satisfy the applicable provisions.
In Stone v. Immigration & Naturalization Service, supra, the Supreme Court recently applied these principles to a statutory review scheme very similar to the one at issue in this case. The appeal in Stone was taken from the Board of Immigration Appeals, an adjudicative agency within the Department of Justice, to a federal court of appeals. Referring to the statute governing that appeal, the Court stated that “[jjudicial review provisions ... are jurisdictional in nature and must be construed with strict fidelity to them terms.... This is all the more true of statutory provisions specifying the timing of review, for those time limits are, as we have often stated, 'mandatory and jurisdictional,’ ... and are not subject to equitable tolling.” Stone, 514 U.S. at 405 , 115 S.Ct. 1537 .
The appeal in this case is taken from the Board of Veterans’ Appeals, an adjudicative agency within the Department of Veterans Affairs, to the Court of Veterans Appeals, an Article I federal court. The timing of review provision at issue in Stone , 8 U.S.C. § 1105a(a)(l), parallels the timing of review provision at issue in this case, 38 U.S.C. § 7266 (a)(1), in that both provide a fixed period of time within which an appeal may be taken to a reviewing court. The Supreme Court’s characterization of the statutory provision governing the timing of review in Stone is therefore directly applicable to the similar statutory provision governing the timing of review in this ease. By contrast, the 30-day limitations period at issue in Irwin is not a “timing of review” provision at all, because the action brought in district court is not a review of anything done by the EEOC, but an original discrimination action against the employer agency.
In sum, this case is controlled not by Irwin , but by Stone . Of course, the general principle in Stone regarding timing-of-review provisions would be inapplicable if there were anything in section 7266(a)(1) or its legislative history indicating that the timing provision governing appeals to the Court of Veterans Appeals was meant to be subject to equitable tolling. But there is not. The text of the statute follows the model of other jurisdictional review provisions, and the legislative history supports that interpretation of the statute.
The bill that was ultimately enacted as the Veterans Judicial Review Act in 1988 was a compromise measure between two very different bills in the House and Senate. The Senate bill would have allowed direct review of BVA decisions by the regional courts of appeals. The timing-of-review provision of that bill was clearly jurisdictional in nature. The bill provided that “[n]o action [for judicial review] may be brought” unless the request for review was filed within 180 days of the BVA decision, S. 11, 100th Cong., 2d Sess. § 4025(g)(1), and the report of the Senate committee made clear that the bill would “preclude judicial review ... unless ... the appeal to a United States Court of Appeals is filed within 180 days of the first BVA decision adverse to the claimant.” S.Rep. No. 100-418, 100th Cong., 2d Sess. 53 (1988). The House bill would have eliminated the BVA altogether and replaced it with the CVA, a 65-judge court responsible for reviewing decisions of the Department’s regional offices. The timing provision for appeals from the regional offices to the CVA under the House bill would have required a *1373 formal appeal to be filed in the CVA within 90 days of the mailing of the statement of the case to the veteran, but the House bill further provided that the 90-day time period could be extended by the court for good cause shown. H.R. 5288, 100th Cong., 2d Sess. § 4015(d)(1).
The compromise bill, which was ultimately enacted, preserved the BVA and provided for review of BVA decisions by the CVA. The provision governing the timing of review in the CVA allowed the veteran 120 days to file a notice of appeal to the CVA. Significantly, the “good cause” provision in the House bill was omitted from the compromise bill. Had that provision remained in the bill, the review timing statute would have been properly construed as non-jurisdictional in nature. See Bowen v. City of New York, 476 U.S. 467, 478 , 106 S.Ct. 2022 , 90 L.Ed.2d 462 (1986) (statute permitting agency to extend filing time for “good cause” held to be non-jurisdictional). Instead, the compromise bill provided that the notice of appeal “must be filed” within 120 days after the date on which the notice of the BVA decision is mailed, language that at least suggests that the provision was intended to be mandatory and jurisdictional. Finally, the compromise bill required the appellant to supply a copy of the notice of appeal to the Administrator, but it provided that a failure to do so would not constitute a failure of timely compliance with the notice of appeal requirement, a proviso that suggests that a failure to file a timely notice of appeal would be regarded as fatal to the appeal.
Although Congress amended section 7266 in 1994, the amendment did not affect the jurisdictional nature of the timing requirement. In fact, both the sponsor of the amendment and the Senate Committee that reported it acknowledged that the CVA treated notices of appeal as jurisdictional, but did not question that principle. See S.Rep. No. 103-232,103d Cong., 2d Sess. 5-7 (1994); 138 Cong. Rec. 18023 (1992) (statement of Sen. Cranston). The 1994 amendment simply altered the requirement of actual delivery by providing that notices of appeal would be deemed timely filed if they were mailed within the 120-day appeal period. The 1994 amendment thus made the timely filing requirement more lenient by establishing a “postmark rule,” but it did not alter the jurisdictional nature of that requirement. The Committee acknowledged that the consequence of mailing a notice of appeal outside of the 120-day appeal period would still be dismissal. S.Rep. No. 103-232, supra, at 6.
Although the legislative history is not conclusive, it suggests that section 7266(a) was meant to be a jurisdictional timing provision and thus not subject to equitable tolling. In any event, nothing in the text or legislative history of section 7266(a) is inconsistent with what the Supreme Court identified in Stone as the general rule that “[j judicial review provisions ... are jurisdictional and must be construed with strict fidelity to their terms.” Construing the judicial review provision in section 7266(a) in strict fidelity to its terms, we are required to affirm the Court of Veterans Appeals’ decision dismissing Mr. Bailey’s appeal for lack of jurisdiction.
The compelling facts of this case do not justify disregarding the dictates of the governing procedural rule. As Justice Scalia pointed out when writing for the court of appeals, lack of jurisdiction means “an inability to act, not merely in unappealing cases, but in compelling cases as well.” National Black Media Coalition v. Federal Communications Comm’n, 760 F.2d 1297 , 1300 (D.C.Cir.1985). I therefore respectfully dissent.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9843190. Public record. Not legal advice.