Before Mayer, Chief Judge, Rich, Newman, Michel, Plager, Lourie, Clevenger, Rader, Schall, Bryson, and Gajarsa, Circuit Judges.
The opinion of the court was delivered by: Mayer, Chief Judge.
Appealed from: United States Court of Veterans Appeals
United States Court of Appeals for the Federal Circuit
Opinion for the court filed by Chief Judge MAYER, in which Circuit Judges RICH, NEWMAN, PLAGER, CLEVENGER and GAJARSA join. Opinion Concurring in result filed by Circuit Judge MICHEL. Dissenting opinion filed by Circuit Judge BRYSON, in which Circuit Judges LOURIE, RADER and SCHALL join.
Harold E. Bailey appeals the judgment of the United States Court of Veterans Appeals dismissing his appeal for lack of jurisdiction. Bailey v. Gober, 10 Vet. App. 453, No. 97-232 (Aug. 5, 1997). We reverse and remand.
The parties do not dispute the facts underlying this case. Bailey sought a service connection to his chronic acquired pulmonary disorder. The Department of Veterans Affairs (DVA) denied his request. Bailey appealed this decision to the Board of Veterans' Appeals (BVA), which denied his request to reopen his previously denied claim for failure to submit new and material evidence. The board mailed copies of its denial to Bailey and to his representative, the American Legion, on August 8, 1996. This decision contains the following notice of appellate rights:
Under 38 U.S.C.A. § 7266, a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.
(Internal citations omitted). Along with this notice, the board also sent Bailey a general appeal notice, which states:
If the decision is not favorable to you: . . .
(2) You may have the right to appeal this decision to the United States Court of Veterans Appeals (the Court). You may appeal to the Court a final decision of the BVA that follows a notice of disagreement filed on or after November 18, 1988. A Notice of Appeal must be filed with the Court within 120 days from the date of mailing of the notice of the BVA decision. The date of mailing is the date that appears on the face of the BVA decision. The Court's address is: The United States Court of Veterans Appeals, 625 Indiana Avenue, N.W., Suite 900, Washington, DC 20004.
Bailey went to the Department of Veterans Affairs' Regional Office in Huntington, West Virginia, to inquire about his options. He claims he "was told there was nothing else [he] could do about [his] claim, unless [he] would talk to an Attorney, who was located in Fairmont, W. Va., which is about 200 miles from where [he] live[s]." Upon later learning that he could appeal his case without an attorney, Bailey returned to the Huntington Regional Office on December 3, 1996-117 days after having received the board's decision. He met with a Veterans Benefits Counselor, who filled out a Form 21-4138 so that he could appeal the board's decision. Bailey signed the form and says that he was told by the counselor that this form would get his appeal started and that she would take care of it.
On January 7, 1997, the department sent Bailey a letter, which states in relevant part:
This is in reference to the VA Form 21-4138 you submitted on December 3, 1996.
You had the right to appeal the decision, concerning your lung condition, to the United States Court of Veterans Appeals (the Court). You could have appealed to the Court a final decision of the BVA that follows a notice of disagreement filed on or after November 18, 1988. A Notice of Appeal must be filed with the Court within 120 days from the date of mailing of the notice of the BVA decision. The date of mailing is the date that appears on the face of the BVA decision.
You had 120 days from August 9, 1996 to appeal BVA's decision. Since that time has expired you must now submit new and material evidence to reopen your claim.
Bailey replied the next day with a letter stating:
In reply to the enclosed letter I received from you about an appeal of my case, the following is submitted. I understand I had 120 days for an appeal and the date was from 8 August 1996. I came to the Department of Veterans Affairs on 3 December 1996 and someone there filled out a Form 21-4138 for an appeal and I signed it that same day. From 8 August 1996 to 3 December 1996 is 118 days, that would be 2 days before the 120 days would expire.
Please advise, so I will know what action to take. Your own letter admits to the dates, and I have counted several times and come up with 118 days.
On January 23, 1997, the department responded in relevant part: "If you did not file an appeal with [CVA] within 120 days, the BVA decision is final. Filing of an appeal at the VA Regional Office does not protect your right of appeal."
Two days later, Bailey filed a Notice of Appeal from the board's August 8, 1996 decision. The Court of Veterans Appeals received this notice outside of the 120 day period set forth in section 7266. On February 7, 1997, the Regional Office sent Bailey a letter stating:
A review of the records of the Department of Veterans Affairs shows that you visited the Huntington VA Regional Office on December 3, 1996. Our Veterans Benefits Counselor assisted you in executing an appeal of your claim to the Court of Veterans Appeals, which had to be received by the Court by December 6, 1996. This document was mistakenly retained at the Huntington Regional Office and attached to your claims file for action.
On February 12, 1997, Bailey filed a Supplemental Notice of Appeal and attached to it the Regional Office's February 7, 1997, letter to explain the untimeliness of this new appeal. The Secretary moved to dismiss Bailey's appeal for lack of jurisdiction. The court granted the Secretary's motion on August 5, 1997, stating:
This Court has held that equitable considerations normally considered a sufficient basis for judicial extension of a filing deadline where private litigants are involved, see Irwin v. Veterans Admin., 498 U.S. 89, 96 (1990), reh'g denied sub nom. Irwin v. Dept. of Veterans Affairs, 498 U.S. 1075 (1991), are not available in this Court to provide any relief in the case of an untimely filed [Notice of Appeal].
Bailey v. Gober, 10 Vet. App. at 454. A Judge-requested en-banc consideration of the issues of equitable tolling and extraordinary relief was denied by order on the same day, over two Dissents. Bailey timely appealed the court's order on September 26, 1997, by filing a notice of appeal with the Office of the Clerk of the Court of Veterans Appeals. The sole question on appeal is whether the 120 day time limit set forth in 38 U.S.C. § 7266(a) (1994) is subject to the doctrine of equitable tolling.
Our jurisdiction to review decisions of the Court of Veterans Appeals is limited to consideration of "the validity of any statute or regulation . . . or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the Court in making the decision." 38 U.S.C. § 7292(c),(d) (1994). Because our review of this decision involves a question of statutory interpretation-namely the ability of the Court of Veterans Appeals to equitably toll a particular statutory time limit and thereby exercise jurisdiction over a late-filed notice of appeal-we have jurisdiction over this matter. See Mayer v. Brown, 37 F.3d 618, 619 (Fed. Cir. 1994) (Federal Circuit reviews Court of Veterans Appeals' interpretation of its jurisdictional statutes). Our review is limited to questions of law, see 38 U.S.C. § 7292(d)(2) (1994), and it is de novo, see, e.g., Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997); Weddel v. Secretary of the Dep't of Health & Human Servs., 23 F.3d 388, 391 (Fed. Cir. 1994); 38 U.S.C. § 7292(a), (c) (1994).
A claimant has the right to sue the United States only when it has consented to be sued, through a waiver of sovereign immunity. See, e.g., United States v. Sherwood, 312 U.S. 584, 586 (1941). In this case, the United States effected a waiver of its sovereign immunity through 38 U.S.C. § 7252, where it has vested jurisdiction to consider a claim in the Court of Veterans Appeals. See, e.g., In re Wick v. Brown, 40 F.3d 367, 370-73 (Fed. Cir. 1994). Congress entitled this ...