A veteran whose claim for federal benefits is denied by the Board of Veterans’ Appeals may appeal to the U.S. Court of Appeals for Veterans Claims (“Veterans Courtâ€), an independent Article I court. To do so, the veteran must file a “notice of appeal†with the Veterans Court within 120 days, as prescribed by the applicable statute. Today, the Court issued its decision in Henderson v. Shinseki (No. 09-1036), holding that the 120-day deadline does not have jurisdictional consequences.
Whether a limitation is jurisdictional or not has troubled the Court repeatedly in recent Terms. In Bowles v. Russell (2007), the Court held that the statutory deadline for filing a notice of appeal in a civil case under 28 U.S.C. § 2107 was jurisdictional. Other recent cases, however, have tended to find different deadlines and limitations to be nonjurisdictional.
During oral argument, the Justices seemed inclined to deem the 120-day deadline nonjurisdictional and focused on how to distinguish Bowles. When pressed to distinguish Bowles, Henderson’s lawyer responded that Bowles spoke only to the general appellate deadline, and that other deadlines should involve a new inquiry into congressional intent and context. Justice Alito, at the time, expressed concern that such a case-by-case approach would erode clarity.
Nevertheless, in a unanimous opinion by Justice Alito, the Court largely adopted Henderson’s approach. The Court began with the presumption from the statutory-coverage case Arbaugh v. Y&H Corp. (2006) that a requirement is nonjurisdictional unless Congress clearly expresses a contrary intent. The Court acknowledged that context, such as the Court’s longstanding treatment of similar provisions, is relevant in determining congressional intent.
Applying that standard, the Court concluded that Arbaugh’s presumption applies to the 120-day deadline. The deadline provision does not speak in jurisdictional terms or refer to jurisdictional consequences. Further, the provision is located in the subchapter titled “Procedure,†rather than the subchapter titled “Organization and Jurisdiction.â€Â Thus, the Court found no textual indication of congressional intent to characterize the deadline as jurisdictional.
The Court also found that such a characterization would be odd for Congress, which has a special solicitude for veterans’ claims. The overall adjudication of veterans’ claims could hardly be more different from the adjudication of ordinary civil claims. Veterans generally have no limitations period for filing an initial claim. Proceedings before the VA are informal and non-adversarial. Indeed, the VA must assist veterans in developing evidence that supports their claims. If veterans are unsuccessful at any administrative stage, they can seek de novo review; the VA, however, is bound by an adverse determination. The Court reasoned that this special solicitude for veterans’ claims made it unlikely that Congress intended to impose harsh jurisdictional consequences on the 120-day deadline.
Finally, the Court explained that Bowles was not controlling because it applies only to the deadline to appeal from one court to another. Its holding does not extend to deadlines for judicial review of agency decisions, particularly not Article I judicial review of an agency decision in an administrative scheme that, unlike ordinarily civil litigation, is so solicitous of claimants. Without controlling precedent, the Arbaugh presumption applied and rendered the deadline nonjurisdictional.
Acknowledging that the 120-day limit is an important procedural rule, however, the Court remanded the case for a determination of whether Henderson nevertheless was entitled to an exception to the deadline.
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