Henderson v. Shinseki


Does equitable tolling apply to Section 7266(a) of the Veterans Judicial Review Act, which sets a 120-day time limit for veterans to file a notice of appeal with the Court of Appeals for Veterans Claims?

Oral argument: 
December 6, 2010

David Henderson, a veteran of the Korean War, was discharged after being diagnosed with paranoid schizophrenia. After receiving a final decision from the Department of Veterans Affairs denying his request for home care, Henderson had 120 days to file notice of his intent to appeal. Henderson failed to file until 15 days after the deadline had passed and claimed that his illness prevented him from filing on time. Appearing pro se, Henderson requested the Veterans Court apply equitable tolling to permit his appeal. The court denied Henderson’s request but then requested pro bono counsel to assist Henderson in filing for rehearing. While the request for rehearing was in process, the Supreme Court of the United States decided Bowles v. Russell. The lower courts interpreted Bowles to mean that all statutory deadlines for filing appeals are jurisdictional, and therefore Henderson’s request for equitable tolling was rejected because the court could not hear the case. The Supreme Court’s decision will clarify how lower courts should evaluate statutory time limits and will help determine which procedural limits are jurisdictional and thus not subject to equitable tolling.

Questions as Framed for the Court by the Parties 

Section 7266(a) of Title 38, U.S.C., establishes a 120-day time limit for a veteran to seek judicial review of a final agency decision denying the veteran's claim for disability benefits. Before the decision below, the Federal Circuit in two en banc decisions held that Section 7266(a) constitutes a statute of limitations subject to the doctrine of equitable tolling under this Court's decision in Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990). In the divided en banc decision below, however, the Federal Circuit held that this Court's decision in Bowles v. Russell, 551 U.S. 205 (2007), superseded Irwin and rendered Section 7266(a) jurisdictional and not subject to equitable tolling.

The question presented is whether the time limit in Section 7266(a) constitutes a statute of limitations subject to the doctrine of equitable tolling, or whether the time limit is jurisdictional and therefore bars application of that doctrine.


Petitioner David Henderson is a Korean War veteran who was discharged from active duty in 1952 due to paranoid schizophrenia. In 2001, Henderson applied pro se to the Department of Veterans Affairs for monthly compensation for his in-home care. Henderson's application was denied, and Henderson appealed to the Board of Veterans' Appeals ("Board"). The Board denied Henderson's request, and Henderson subsequently filed his notice of appeal under 38 U.S.C. § 7266(a) with the United States Court of Appeals for Veterans Claims (“CAVC”). However, Henderson filed his notice of appeal 15 days after the expiration of the 120-day time limit set out by Section 7266(a).

The CAVC asked Henderson to explain why his case should not be dismissed for being untimely filed, and Henderson stated that the delay in filing was directly due to his mental illness. Henderson also requested that the judge extend the 120-day time limit under the doctrine of equitable tolling. The CAVC at first dismissed the appeal but then revoked its decision, assigned the appeal to a panel, and appointed pro bono counsel for Henderson.

While Henderson's appeal was pending, the Supreme Court decided Bowles v. Russell and held that statutory time limits for notices of appeal define an appeals court's jurisdiction, and therefore, an appeals court cannot equitably toll time limits for notices of appeal. Because of the Bowles decision, the CAVC panel dismissed Henderson's case for lack of jurisdiction.

Henderson then appealed the CAVC's decision to the United States Court of Appeals to the Federal Circuit. In his appeal, Henderson argued that Section 7266(a) is a statute of limitations as opposed to a time limitation on notice of review. Henderson reasoned that although his case had been considered in several administrative hearings, the Section 7266(a) motion in fact commenced litigation in a court of law and thus could not be considered as an appeal from a lower court. Henderson further argued that because the Veterans Court has traditionally been pro-veteran and non-adversarial, jurisdictional requirements should not be applied to Veterans Court proceedings. In response, Erik K. Shinseki of the Department of Veterans Affairs ("VA") contended that the Court in Bowles specifically stated that notice of appeals in civil actions are jurisdictional, and case precedent established Veterans Court hearings as civil actions. The VA further maintained that even though the Veterans Court is pro-veteran, the courts do not have the power to create special rules applicable to only the veterans' appeal process. The Federal Circuit agreed with the VA and held that the time limit in Section 7266(a) is a time limitation on notice of review and thus a jurisdictional limit on courts of appeal.

Henderson subsequently appealed his case to the Supreme Court, which granted certiorari to determine if courts may equitably toll Section 7266(a)'s 120-day time limit for appeal.


The dispute in this case stems from the Supreme Court’s decision in Bowles v. Russell, in which the Court held that “the timely filing of a notice of appeal in a civil case is a jurisdictional requirement [and] this Court has no authority to create equitable exceptions to jurisdictional requirements.” Because federal courts have limited jurisdiction, if a statutory deadline for filing is jurisdictional, federal courts do not have the authority to hear an appeal filed after the deadline. The parties here disagree on the applicability of Bowles to 38 U.S.C. § 7266(a), which describes how veterans should file notices of appeal with the United States Court of Appeals for Veterans Claims (“CAVC”). Erik K. Shinseki for the Department of Veterans Affairs (“VA”) argues that Bowles broadly held that time limits for filing notice of appeal actions are jurisdictional requirements beyond the equitable power of the courts. David Henderson contends that Bowles is distinguishable, that Congress did not intend Section 7266(a) to be jurisdictional, and that time limits for filing notice of appeal in other disability contexts are not jurisdictional.

Can Bowles be distinguished?

The issue in this case arose in the wake of the Supreme Court's decision in Bowles, which the CAVC and the Court of Appeals for the Federal Circuit, sitting en banc, relied on to deny Henderson’s request for equitable tolling (a doctrine allowing courts to prevent the application of statutory time limits when the result would be unjust). In Bowles, the Supreme Court considered the application of equitable tolling to time limits on filing notices of appeal of a federal habeas corpus proceeding.

The VA argues that the Court phrased its holding in broad terms to apply to all civil appeals, with the result that all statutory non-criminal time limits on filing for appeal are jurisdictional. Moreover, the VA notes that Section 7266(a) expressly uses the phrase “notice of appeal,” which the VA argues brings Section 7266(a) firmly within the holding in Bowles.

Henderson argues that the holding in Bowles was not so broad and that Section 7266(a) is distinguishable from the statute at issue in Bowles, 28 U.S.C. § 2107, which governs the filing of appeals from civil cases in federal district court. First, Henderson argues that the 120-day limit in Section 7266(a) is a claim-processing rule because it describes what actions a veteran must take to appeal a final decision by the VA. 28 Section 2107 describes what courts of appeals may do regarding time limits for appeals and explicitly uses a passive sentence to avoid mentioning the conduct of an appellant. Henderson also points out that benefits claims in the VA proceed in a non-adversarial setting, usually without counsel, where the government is obligated to provide assistance to veterans in developing their claims. Henderson argues that because of these differences, the appeal to the CAVC is really the first opportunity veterans have with the courts and thus not the same as an appeal in a typical civil action. In addition, Henderson argues that unlike other appeals, only veterans may initiate an appeal in the CAVC and that the CAVC, in character and outcomes is more like a district court than a court of appeals.

Equitable tolling under the Veterans' Judicial Review Act

The Veterans Judicial Review Act ("VJRA"), passed in 1988, established the United States Court of Appeals for Veterans Claims to hear appeals from final decisions by the VA. The VA argues that the plain language of the VJRA shows Congress intended Section 7266(a) as a jurisdictional limit to which the Court may not create exceptions. Moreover, the VA points to legislative history that explicitly removed a “good cause” exception as evidence of that Congress intended for the time limit to be strictly applied. Finally, the VA asserts that if Congress intended time limits for appeals to be different for veterans, Congress could easily have written the exception into the statute, but chose not to do so.

Henderson argues that Congress, in creating a clearly pro-veteran system, did not intend the appeals process for veterans to be as onerous as it is in other civil actions. Furthermore, Henderson contends that in light of the special characteristics of the VA claims process—it is non-adversarial, veterans rarely retain counsel, and the VA actually has an affirmative duty to assist veterans in developing their claim—Congress could not have intended veterans to face such a stringent barrier to judicial review.

Finally, Henderson contends that when Congress amended Section 7266(a) in 2001, Congress had the opportunity to overturn older cases permitting the application of equitable tolling to Section 7266(a); because Congress did not do so, Henderson claims that it must have intended to allow the case precedent to stand. The VA points out that this argument is essentially the doctrine of “implied ratification” and argues that the doctrine does not apply because the precedents supporting equitable tolling were too minor for Congress to have been aware of them. Moreover, the VA argues that the same line of reasoning would support its argument because when Congress amended the statute in 1994, Congress refused to overturn case precedents that refused to apply equitable tolling.

Does a pro-veteran canon of construction apply?

Henderson raises a pro-veteran canon of statutory construction, which requires courts to resolve any ambiguity in veterans-benefits statutes in favor of veterans. Henderson argues that even if there is a presumption that the time limit for filing a notice of appeal is a jurisdictional limit, the pro-veteran canon requires courts to resolve that presumption in veterans’ favor. In addition, Henderson points out that the Veterans Judicial Review Act contains specific sections conferring and restricting CAVC’s jurisdiction, while Section 7266(a) describes what a veteran must do to appeal final VA decision rather than when CAVC may hear an appeal. Henderson contends that when filing time limits are separated from the sections of the statute that describe a court’s jurisdiction, those limits are ordinarily not construed as jurisdictional.

In response, the VA argues that there is no ambiguity in the statute to resolve and therefore the pro-veteran canon of interpretation does not apply. Furthermore, the VA argues that the location of the time limit is only one of the factors the Court should consider in interpreting Section 7266(a). Rather, the VA finds support in Supreme Court precedent for the proposition that time limits for filing appeals are jurisdictional and argues that Section 7266(a) is clearly such a time limit.


The case will determine whether 38 U.S.C. § 7266(a) is a jurisdictional limit on appellate courts and thus whether appellate courts may equitably toll the 120-day time limit established by Section 7266(a). Petitioner David Henderson argues that Congress intended the veterans' appeal process to be pro-veteran and thus denying relief for exceeding a time limit is too onerous to veterans. However, Erik K. Shinseki for the VA argues that Congress specifically intended that Section 7266(a) serve as a jurisdictional limitation on the appeals process.

The United Spinal Association claims that enforcing Section 7266(a) as a jurisdictional limit undermines Congressional intent to providing a pro-veteran process for claimants. The Association contends that CAVC’s position will harm the most severely disabled veterans because they might not be able to meet the 120-day deadline due to the nature of their disabilities.

The Federal Circuit Bar Association ("FCBA") also states that the veterans' benefits system was designed by Congress to assist veterans within a very pro-veteran statutory framework. According to the FCBA, Congress intended that the VA and the United States Court of Appeals for Veterans Claims (“CAVC”) actively ensure that veterans receive all the benefits that they are entitled to and that Congress would rather risk over-rewarding veterans rather than under-rewarding veterans. Furthermore, the FCBA notes that veterans can file appeals of adverse decisions, but the Secretary of Veterans Affairs cannot file an appeal, which underscores the pro-veteran nature of the veterans' benefits system. The FCBA also states that if Section 7266(a) could not be equitably tolled, this would be contrary to congressional intent because veteran’s appeals would be treated more harshly in the CAVC than regular claimants are treated in civil court.

The American Legion reports that Post Traumatic Stress Disorder (“PTSD") affects numerous veterans; some studies estimate the number suffering as one in six Iraq War veterans and a total of over 770,000 veterans. PTSD reduces the ability of veterans to operate due to the desire to avoid triggering psychic events and memories. The American Legion contends that PTSD is responsible for causing some veterans to fail to file in a timely manner and that it would be unjust to deny veterans disabled by PTSD medical benefits.

The VA argues that if the Supreme Court finds that the 120-day deadline is not jurisdictional, then the CAVC would not function as a traditional appeals court, which would be contrary to congressional intent.

The VA further maintains that even if the Court holds that Section 7266(a) is a jurisdictional limit, the possible adverse effects of this decision would be ameliorated by other aspects of the veterans’ benefits system. According to the VA, veterans may reopen a dismissed claim by submitting “new and material evidence,” and veterans may also seek review of the Board’s decisions for "clear and unmistakable error."

The VA also argues that if Henderson believes that it would be inequitable to apply strict time limitations on appeals in the veterans’ benefit system, this is an argument that should be addressed to Congress, as opposed to the Court, because Congress could then allow the courts to provide exceptions for the veterans’ system. Without permission from Congress, however, the VA contends that courts should not be free to arbitrarily create exceptions to time limits established by Congress.


The outcome of this case will decide whether Section 7266(a) is a jurisdictional limit and thus whether the Court of Appeals for Veterans Claims may equitable toll Section 7266(a)'s time limit when veterans fail to timely file notices of appeal. Petitioner David Henderson argues that Congress created the Court of Appeals for Veterans Claims as an important part of a pro-veteran system designed to ensure that all eligible veterans obtain their due benefits, and thus a strict jurisdictional limit should not be applicable to the CAVC. The Department of Veterans Affairs argues that time limits for civil appeals are jurisdictional limits that courts cannot simply adjust for any reason; rather, if Congress intended equitable tolling to apply, Congress would have written the statute differently. The Court’s decision in this case will clarify how courts should treat statutory time limits for filing notices of appeal and will affect the veterans’ ability to request and receive benefits.

Edited by