CAVC CANNOT DISMISS UNTIMELY APPEAL WHEN SECRETARY WAIVES TIMELINESS DEFENSE

Dixon v. McDonald, 815 F.3d 799 (Fed. Circ. 2016)

HELD: The CAVC does not have the sua sponte authority to dismiss an untimely appeal when the Secretary has waived a timeliness defense. 

The veteran filed his Notice of Appeal to the CAVC late – sixty days beyond the 120-day filing deadline. The Court dismissed the appeal, based on lack of jurisdiction. After the Court’s dismissal, the U.S. Supreme Court issued Henderson v. Shinseki, 562 U.S. 428, 431 (2011), holding that the 120-day deadline was a procedural rule that was subject to equitable tolling. Following Henderson, the CAVC informed Mr. Dixon that he could ask the court to recall mandate based on an equitable tolling argument. He filed this motion, which the CAVC then denied. He appealed to the Federal Circuit, but passed away while the appeal was pending. The Federal Circuit reversed the CAVC’s decision, finding that the denial had prevented the veteran’s new pro bono counsel access to evidence he would need to prove the claim.

On remand back at the CAVC, Mr. Dixon’s wife substituted in the appeal. She submitted evidence and argument in support of the equitable tolling argument to excuse her husband’s late filing. The Secretary responded by waiving his objection to the late filing, stating that “it appears the criteria [for equitable tolling] has been satisfied” and that “the Secretary is unopposed to the application of equitable tolling.” Despite this waiver, the CAVC nevertheless rejected Mrs. Dixon’s equitable tolling arguments and again dismissed the appeal – essentially “granting the Secretary relief he had explicitly declined to seek on a defense he had waived.”

Mrs. Dixon appealed to the Federal Circuit again. The Federal Circuit discussed Henderson, stating that the Supreme Court “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.’” The Federal Circuit noted that after Henderson, the CAVC issued Bove v. Shinseki, 25 Vet.App. 136 (2011), in which it discussed how to implement the Supreme Court’s decision. In Bove, the CAVC had held that because the 120-day deadline was “non-jurisdictional, equitable tolling may excuse a veteran’s failure to comply with it.” The CAVC also considered whether it had two types of sua sponte authority – first, the authority to raise the time bar at the start of proceedings and second, the authority to resolve the issue even if it is waived by the Secretary. The CAVC “recognized that, as a general rule, courts lack the authority to raise or resolve non-jurisdictional timeliness defenses sua sponte.” However, the CAVC noted that there was an exception to this rule for habeas cases – and that policy concerns, specifically “the court’s own interest in managing its docket,” allowed it to benefit from an exception to the general rule.

The Federal Circuit had previously determined that the CAVC did have the authority to raise the timeliness issue early on in proceedings. Checo v. Shinseki, 748 F.3d 1373 (Fed. Cir. 2014). In this present case, however, the Federal Circuit determined that the CAVC did not have the sua sponte “authority to resolve timeliness in the face of the Secretary’s waiver by granting him relief that he explicitly declined to seek.” In deeming itself an “exception” to the general rule, the Federal Circuit found that the CAVC failed to account for statutory limits to its jurisdiction, misread the precedent that created the exception to the general rule, and misapprehended the relevant policy considerations. The Court stated: “We are aware of no other court that has the sua sponte authority to resolve a deliberately waived non-jurisdictional timeliness defense.”

The Secretary added an argument to support the CAVC’s authority to resolve the timeliness issue – by pointing to the Court’s “broad discretion to prescribe, interpret, and apply its own rules.” The Federal Circuit rejected this argument, stating that the rules do not suggest that the CAVC “has a special power to enforce their time bar” and that “the rules merely rephrase the statutory time bar in nearly identical language.” The Federal Circuit thus reversed the CAVC’s “determination that it had the authority to dismiss this appeal as time-barred” in the face of the Secretary’s waiver of the timeliness defense. 

FULL DECISION