Tyrues v. Dept. Of Veterans Affairs ( 2011 )

United States Court of Appeals
for the Federal Circuit
__________________________
LARRY G. TYRUES,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2010-7011
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 04-584, Judge William A.
Moorman.
___________________________
Decided: February 11, 2011
___________________________
KENNETH M. CARPENTER, Carpenter Charter, of
Topeka, Kansas, argued for claimant-appellant. On the
brief was MARK R. LIPPMAN, The Veterans Law Group, of
La Jolla, California,
MARTIN F. HOCKEY JR., Assistant Director Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for respon-
dent-appellee. With him on the brief were TONY WEST,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
TYRUES v. DVA 2
tor, and Todd M. Hughes, Deputy Director. Of counsel on
the brief were MICHAEL J. TIMINSKI, Deputy Assistant
General Counsel, and MARTIE S. ADELMAN, Attorney,
Office of the General Counsel, United States Department
of Veterans Affairs, of Washington, DC.
__________________________
Before RADER, Chief Judge, LINN and DYK, Circuit
Judges.
RADER, Chief Judge.
The United States Court of Appeals for Veterans
Claims (“Veterans Court”) dismissed Larry J. Tyrues’s
appeal from the Board of Veterans Appeals (“Board”) for
lack of jurisdiction. Tyrues v. Shinseki, 23 Vet. App. 166,
177 (2009). Because the Veterans Court correctly inter-
preted 38 U.S.C. § 7266 to require an appeal within 120
days, this court affirms.
I
Appellant, Mr. Tyrues, served on active duty in the
United States Army from September 1969 to April 1971,
and from September 1990 to May 1991, including service
in the Persian Gulf War. Mr. Tyrues was hospitalized
with tonsillitis and refractory pneumonia in March 1994.
Mr. Tyrues pursued disability compensation for the
same respiratory symptoms under two different statutes.
In March 1995, Mr. Tyrues filed his initial claim with the
United States Department of Veterans Affairs (“VA”)
seeking compensation for a direct service connection lung
disorder under 38 U.S.C. § 1110. In December 1996, Mr.
Tyrues added a second claim seeking compensation for
“Persian Gulf Syndrome,” arguing a presumptive service
connection theory, under 38 U.S.C. § 1117.
3 TYRUES v. DVA
In September 1998 (“September 1998 mixed deci-
sion”), the Board denied the § 1110 direct service claim
(“September 1998 denied claim”) and remanded the §
1117 claim for Persian Gulf Syndrome to a VA Regional
Office (“1998 remanded claim”). 1
The Board then mailed Mr. Tyrues a Notice of Appel-
late Rights. This notice stated, in relevant part:
NOTICE OF APPELLATE RIGHTS: Un-
der 38 U.S.C. § 7266 . . . a decision of the
Board of Veterans’ Appeals granting less
than the complete benefit, or benefits,
sought on appeal is appealable to [the
Veterans Court] within 120 days from the
date of mailing of notice of the decision . . .
The date that appears on the face of this
decision constitutes the date of mailing
and the copy of this decision that you have
received is your notice of the action taken
on your appeal by the Board of Veteran’s
Appeals. Appellate rights do not attach to
those issues addressed in the remand por-
tion of the Board’s decision, because a re-
mand is in the nature of a preliminary
order and does not constitute a decision of
the Board on the merits of your appeal. 38
C.F.R. § 20.1100(b) (1997).
1 A decision remanding one or more claims, while
denying at least one other, is known as a “mixed deci-
sion.”
TYRUES v. DVA 4
(emphases added). Mr. Tyrues did not file a Notice of
Appeal within 120 days from the date of mailing of notice
of the Board’s decision.
In April 2004, the Board again denied the remanded
September 1998 claim (“2004 denied claim”). Mr. Tyrues
thereafter appealed both the 2004 denied claim and the
September 1998 denied claim to the Veterans Court. In
October 2009, the Veterans Court affirmed the 2004
denied claim but dismissed the appeal of the September
1998 denied claim for lack of jurisdiction. This court
vacated the Veterans Court’s October 2009 judgment to
dismiss and remanded the matter for reconsideration.
Tyrues v. Peake, 273 Fed.Appx. 921 (Fed. Cir. 2008).
An en banc Veterans Court, in a split decision, again
dismissed Mr. Tyrues’s September 1998 denied claim for
lack of jurisdiction. The Veterans Court held that the
September 1998 denied claim was “finally decided” and
not appealed within 120 days from the date of mailing of
the Board’s decision, as required by 38 U.S.C. § 7266(a).
This court has jurisdiction under 38 U.S.C. § 7292(a).
II
In appeals from the Veterans Court, this court re-
views questions of law, including interpretation of statu-
tory and constitutional provisions, without deference. 38
U.S.C. § 7292(d)(1). Absent a constitutional issue, this
court may not review a challenge to the Veterans Court’s
factual findings or the application of law to facts. Id.Under 38 U.S.C. § 7266, the Veterans Court has ap-
pellate jurisdiction:
In order to obtain review by the Court of
Appeals for Veterans Claims of a final de-
cision of the Board of Veterans' Appeals, a
person adversely affected by such decision
5 TYRUES v. DVA
shall file a notice of appeal with the Court
within 120 days after the date on which
notice of the decision is mailed pursuant
to section 7104(e) of this title.
(emphases added).
Section 7266(a) is “mandatory and jurisdictional.”
Henderson v. Shinseki, 589 F.3d 1201, 1220 (Fed. Cir.
2009) (en banc). Final decisions are not subject to equita-
ble tolling because § 7266(a) is jurisdictional. Id. at 1220.
Therefore, all final decisions must be appealed within the
120 days prescribed by § 7266(a).
Mr. Tyrues maintains that an appeal under § 7266(a)
is discretionary, and not fully final, until all claims have
been finally decided. Mr. Tyrues further asserts that
denied claims from a mixed decision are only sometimes
treated as final for purposes of immediate judicial review.
Mr. Tyrues elaborates that appealing the “sometimes
final” decisions is discretionary. The question addressed
herein is whether the non-remanded portion of a mixed
decision from the Board is final for the purposes of
§ 7622(a) and must be appealed within 120 days from the
date of judgment.
Administrative proceedings can have different under-
lying policy objectives than district court proceedings. As
a result, there is not always “a precise congruence be-
tween the classical jurisdictional requirements applied to
appeals from district courts and the jurisdictional stan-
dards applicable to review of administrative proceedings .
. . .” Dewey Elecs. Corp. v. United States, 803 F.3d 650,
654 (Fed. Cir. 1986) (holding that non-remanded portions
of a mixed decision from the Armed Services Board of
Contract Appeals were final for the purposes of appeal to
this court under 28 U.S.C. § 1295(a)(10)); see also Elkins
v. Gober, 229 F.3d 1369, 1376 (Fed. Cir. 2000) (“Our
TYRUES v. DVA 6
methodology in Dewey for contract cases applies with even
greater force to veterans cases.” (citations omitted)). As
such, the Board’s jurisdiction does not mirror jurisdiction
in district courts.
A decision from the Board is “sufficiently final” when
“the process of the administrative decision-making has
reached a stage where judicial review will not disrupt the
orderly process of adjudication and whether rights or
obligations have been determined or legal consequences
will flow from the agency action.’” Elkins, 229 F.3d at
1373 (quoting Port of Boston Marine Terminal Ass’n v.
Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)).
Separate claims are separately appealable. Each particu-
lar claim for benefits may be treated as distinct for juris-
dictional purposes. Id. at 1376. This approach is
“consistent with the approach adopted by the Veterans
Court in treating a veteran’s different claims as sepa-
rately appealable matters.” Id. at 1375 (citations omitted).
Mr. Tyrues interprets Elkins as espousing a condi-
tional allowance for veterans who wish to appeal before
all claims become final decisions. This court concluded
that “we may treat [the veteran’s] individual claims as
separable on appeal.” Id. at 1373, 1376. Mr. Tyrues
insists that usage of “may” in Elkins suggests a discre-
tionary element.
The court’s usage of “may” in Elkins does not mean
appeals are discretionary. Instead, this court explained
that some claims from a mixed decision may be appeal-
able, while others are not. In Elkins, this court explained
two important tenets: (1) that the nature of administra-
tive proceedings creates differences between how tradi-
tional jurisdictional rules should be applied—i.e., the final
judgment rule does not apply; and (2) that a “final” ad-
ministrative adjudication is determined when “adminis-
7 TYRUES v. DVA
trative decision-making has reached a stage where judi-
cial review will not disrupt the orderly process of adjudi-
cation and whether rights or obligations have been
determined or legal consequences will flow from the
agency action.” 229 F.3d at 1374. Summarizing these
two tenets, the Elkins court explains “that a litigant’s
individual claims for relief may, in certain circumstances,
be separable for purpose of appellate review.” Id. (em-
phasis added). The circumstance when a litigant’s indi-
vidual claims for relief may not be appealed is when they
are “intertwined with [the remanded claims].” Id. at 1376.
Without an exception to § 7266’s 120-day require-
ment, the Veterans Court’s opinion explains the practical
implications of intertwined claims. The court explained
that “the Court has jurisdiction over [non-remanded
portions of mixed decisions] on direct appeal, but may
decline to exercise its jurisdiction in such cases, as we
frequently do. (citations omitted).” Tyrues, 23 Vet. App. at
177.
The Veterans Court’s opinion in this case is not bind-
ing on this court, but the Veterans Court’s opinions “are
instructive of the manner in which a veteran’s separate
claims may be appealed sequentially.” Elkins, 229 F.3d at
1375. This court encourages the Veterans Court to exer-
cise its jurisdiction as needed to promote judicial effi-
ciency and fairness when handling mixed decisions. This
exercise of jurisdiction makes the most sense in light of
the policy concerns underlying veterans claims.
Public policy supports allowing veterans to appeal de-
nied claims as quickly as possible. Id. One particularly
important policy consideration is advancing “the goal of
timely providing benefits to disabled veterans.” Id. Given
the rigid jurisdictional nature of § 7266, this paramount
goal is best achieved by allowing appeals once the Board
TYRUES v. DVA 8
makes an individual claim final. Mr. Tyrues argues this
court’s precedent in Brownlee v. DynCorp, 349 F.3d 1343(Fed. Cir. 2003), supports allowing but not requiring
appeal once a Board decision makes an individual claim
final.
Brownlee holds that appeals to this court from the
Armed Services Board of Contract Appeals are discretion-
ary when there is a mixed decision. 349 F.3d at 1347(“Allowing the aggrieved party to wait . . . furthers the
purposes of both the Contract Disputes Act of 1978 . . .
and the doctrine of finality.”). The present case is legally
different from Brownlee in two important ways. First,
this case is before the Board of Veterans Appeals, not the
Board of Contract Appeals. The two boards pursue differ-
ent policy objectives and adjudicate different types of
cases. Veterans appeals, unlike contract appeals, do not
adjudicate entitlement separate from issues of quantum.
Second, and more importantly, § 7266 contains meaning-
fully different language from the statute interpreted by
the Brownlee court.
Brownlee’s holding was premised on the statutory
language of 28 U.S.C. § 1295(a)(10), the jurisdictional
provision for this court to hear appeals from the Board of
Contract Appeals. The court observed that § 1295(a)(10)
“does not address the consequences of a failure to appeal
from the ‘final’ judgment.” Brownlee, 349 F.3d at 1347-48.
In contrast, § 7266 plainly forewarns that:
[I]n order to obtain review by the Court of
Appeals for Veterans Claims of a final de-
cision of the Board of Veterans’ Appeals, a
person adversely affected by such a deci-
sion shall file a notice of appeal with the
Court within 120 days after the date on
9 TYRUES v. DVA
which the notice of the decision is
mailed[.]
In light of § 7266’s plain language, the policy consid-
erations, and this court’s precedent; all final decisions,
even those appearing as part of a mixed decision, must be
appealed within 120 days from the date of mailing of
notice of the decision.
III
Accordingly, this court affirms the Veterans Court’s
holding that the September 1998 denied claim was prop-
erly dismissed for lack of jurisdiction.
AFFIRMED