Veteranclaims’s Blog

March 15, 2016

Dixon v. McDonald, 2015-7051(Decided: March 9, 2016); Sua Sponte Authority of Veterans Court

Excerpt from decision below:

“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 nonjurisdictional 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.


United States Court of Appeals for the Federal Circuit
Appeal from the United States Court of Appeals for
Veterans Claims in No. 08-1475, Chief Judge Bruce E.
Decided: March 9, 2016
Denver, CO, argued for claimant-appellant. Also represented 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.
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 nonjurisdictional 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.
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 connected
to his service. Id.
A VA regional office denied Mr. Dixon’s claim, and the
Board of Veterans Appeals affirmed this
denial. 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
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 Veterans
Court informed Mr. Dixon that he could move to
recall the mandate based on an equitable-tolling argument.
Dixon I, 741 F.3d at 1371. He made this motion.
The Veterans Court denied Mr. Dixon equitable tolling.
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 evidence
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 waiving1 his objection
1 The Secretary’s briefing before the Veterans Court
stated that “it appears the criteria [for equitable tolling]
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 dismissed
Mrs. Dixon’s appeal, granting the Secretary relief
he had explicitly declined to seek on a defense he had
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 nature.
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 decisions
to the Federal Circuit. Id. at 438 (citing 38 U.S.C.
§ 7292(a)). It found the time bar on appeals to the Federal
Circuit to directly incorporate language from the jurisdictional
time bars ordinarily applicable to appellate
review of district courts, but § 7266 to use different language
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 objection.
We therefore engage the Veterans Court’s alternative
reasoning that it can dismiss this case even in the
face of a waiver.
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 comment
to the Veterans Court. On that remand, the Veterans
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 Henderson
holding that the statutory time bar was nonjurisdictional.
It first held that, because the time bar is
non-jurisdictional, equitable tolling may excuse a veteran’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 whether
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 authority
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 considering
a habeas petition may, under some circumstances,
raise a non-jurisdictional timeliness defense sua
sponte even after the state had failed to raise that defense.
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
raising the time bar and the court’s own interest in managing
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 forfeiture
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 screening
that the veteran’s appeal might have been timebarred.
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 Secretary.
Id. The veteran submitted briefing arguing that
equitable tolling excused her filing delay, and the government
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
rule, however, was incorrect for three primary reasons:
(1) it failed to account for statutory limits to its jurisdiction,
(2) it misread the Supreme Court precedent creating
an exception to the general rule, and (3) it misapprehended
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 Secretary.
See Bove, 25 Vet. App. at 143.
First, the Veterans Court failed to consider the statutory
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 jurisdiction
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 corresponding
limit for a type of case in Article III courts
further suggests that Congress did not intend to grant the
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 cases.
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] equitabletolling
test necessarily applies outside the habeas context.”).
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
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. Additionally,
the Day exception does not extend to the procedural
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 exceptional
because the Secretary is always the defendant
before it and because it has an interest in enforcing nonjurisdictional
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 dockets.
And the Veterans Court cannot reasonably claim its
interest in controlling its own docket sets it apart from
any other tribunal: judges generally must respect parties’
waivers of statutes of limitations, laches, and other nonjurisdictional
timeliness defenses, even when these defenses
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 language.
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.
The Veterans Court correctly recognized that, as a
general rule, a court does not have the sua sponte authority
to grant a party relief on a non-jurisdictional timeliness
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.
No costs.

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