Time Limit to Appeal to Special Court of Appeals for Veterans Claims is Not Jurisdictional

Henderson v. Shinseki, 131 S. Ct. 1197 (2011).  In 1988, in the Veterans Judicial Review Act (“VJRA”), Congress created the Court of Appeals for Veterans Claims, an Article I court that reviews decisions of the Board of Veterans Appeals that are adverse to veterans who seek benefits for service-related disabilities.  Veterans have 120 days to appeal to the special Court of Appeals.  Plaintiff David Henderson sought to appeal, but he missed the deadline by fifteen days.  The issue in this case was whether that appeal period is jurisdictional.  If it were, Mr. Henderson would have been out of luck.  A unanimous Court, in an opinion by Justice Alito, found that the appeal period was not jurisdictional.  The Court remanded the case for further consideration of whether any exception to the time limit applied.

In Bowles v. Russell, 551 U.S. 205 (2007), the Court had held that the statutory limitation on the length of an extension of time to file a notice of appeal in an “ordinary civil case” was jurisdictional and could not be extended based on equitable factors.  The Henderson Court distinguished Bowles as having “concered an appeal from one court to another,” with the reviewing courts having been Article III courts.  In contrast, the Court of Appeals for Veterans Claims was an Article I court.  Thus, the Supreme Court looked to “Congress’ intent regarding the particular type of review at issue in this case.”

The language of the VJRA that created the 120-day appeal period “provides no clear indication that Congress wanted that provision to be treated as having jurisdictional attributes.”  The placement of that statutory section in the “Procedure” section of the VJRA suggested that Congress saw the appeal period as a mere non-jurisdictional “claim-processing rule.”  Finally, “[r]igid jurisdictional treatment of the 120-day period for filing an appeal in the Veterans Court would clash sharply with” the general solicitude of Congress for veterans, as reflected in the VJRA and other statutes.

Justice Alito concluded by stating that “[t]he 120-day limit is nevertheless an important procedural rule.  Whether this case falls within any exception to the rule is a question to be considered on remand.”

The Court’s solicitude for veterans’ claims is admirable.  Its distinctions of cases such as Bowles, however, seem less than persuasive.  The dissenters in Bowles appeared to have the better of the argument then.  The decision in Henderson is narrowly tailored, seemingly so as not to apply beyond the VJRA.  It is too bad that the Court did not take the opportunity to retreat more broadly from Bowles.