Jacent L. Winston v. Eric K. Shinseki, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
JACENT L. WINSTON,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7024
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 09-1073, Judge Lawrence B.
Hagel
______________________________
Decided: July 25, 2011
______________________________
JACENT L. WINSTON , of Little Rock, Arkansas, pro se.
COURTNEY S. M CNAMARA, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With her on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. D AVIDSON , Director,
and D EBORAH A. BYNUM, Assistant Director. Of counsel

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WINSTON v. DVA 2
on the brief were MICHAEL J. T IMINSKI, Deputy Assistant
General Counsel, United States Department of Veterans
Affairs, of Washington, DC. Of counsel was DAVID M.
H IBEY, Trial Attorney, Commercial Litigation Branch,
Civil Division, United States Department of Justice, of
Washington, DC.
__________________________
Before RADER, Chief Judge, FRIEDMAN*, and LINN , Circuit
Judges.
PER C URIAM.
Jacent L. Winston, pro se, appeals the judgment of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”). The appeal, however, was filed out-
side of the time constraints which dictate this court’s
review of Veterans Court decisions. This court dismisses
the appeal for lack of jurisdiction.
I
Mr. Winston began active duty service in the United
States Marine Corp in June of 1999. In March of 2000,
Mr. Winston was discharged from the Marine Corp due to
a psychiatrist’s diagnosis that he suffered from a person-
ality disorder. Specifically, eight months into his service
Mr. Winston was hospitalized and evaluated for homicidal
ideation, or thoughts of homicide. Mr. Winston reported
to a psychiatrist that he had a history of such thoughts,
and that there were no “specific stressors” which triggered
his most recent episode. Mr. Winston subsequently
sought entitlement to disability benefits for his personal-
ity disorder.
* Judge Friedman, who passed away July 6, 2011,
did not participate in this decision.

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WINSTON v. DVA 3
The Board of Veterans’ Appeals denied Mr. Winston’s
claim. The Board concluded that Mr. Winston’s personal-
ity disorder had not been aggravated by military service,
and that military service had not caused any additional
disorders. The Veterans Court affirmed, finding that the
Board properly applied all applicable regulations.
The Veterans Court entered its judgment on August
5, 2010. On October 28, 2010, the Veterans Court re-
ceived Mr. Winston’s notice that he intended to appeal the
decision to this court.
II
This court has jurisdiction to review decisions of the
United States Court of Appeals for Veterans Claims
pursuant to 38 U.S.C. § 7292(a). The statute states that
“[s]uch a review shall be obtained by filing a notice of
appeal with the Court of Appeals for Veterans Claims
within the time and in the manner prescribed for appeal
to United States courts of appeals from United States
district courts.” Id. Where “the United States or an
officer or agency thereof is a party,” an appeal from the
district court must be filed within sixty days of the entry
of the judgment. 28 U.S.C. § 2107(b). Therefore, appeals
from the Veterans Court challenging the Secretary’s
determination must be filed within sixty days of entry of
judgment.
The Secretary contends that the time limit contained
in § 7292 is jurisdictional, meaning a timely appeal is
required for this court to hear a veteran’s case. If so, this
court lacks jurisdiction to hear Mr. Winston’s appeal and
must dismiss the case, as it was filed 84 days after the
entry of judgment.
The Supreme Court has in recent years often been re-
quired to “decide whether a procedural rule is ‘jurisdic-

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WINSTON v. DVA 4
tional.’” Henderson v. Shinseki, 131 S. Ct. 1197, 1202
(2011). The Court has distinguished “claim-processing
rules”—those “that seek to promote the orderly progress
of litigation by requiring that the parties take certain
procedural steps at certain specified times”—from juris-
dictional rules which “govern[] a court’s adjudicatory
capacity.” Id. To determine if a rule is jurisdictional, the
Court has “look[ed] to see if there is any ‘clear’ indication
that Congress wanted the rule to be ‘jurisdictional.’” Id.
at 1203 (citing Arbaugh v. Y&H Corp., 546 U.S. 500, 515-
16 (2006)). Congress is not required to “use magic words
to speak clearly on this point” and “[c]ontext, including
[the Supreme Court’s] interpretation of similar provisions
in many years past, is relevant.” Id. (citations omitted).
The Supreme Court has long held that the “timely no-
tice of appeal is ‘mandatory and jurisdictional.’” Griggs v.
Provident Consumer Discount Co., 459 U.S. 56, 61 (1982);
see also Bowles v. Russell, 551 U.S. 205, 209-10 (2007).
The Court has made clear that in civil cases, appeals from
district courts must be filed within the time limits con-
tained in § 2107 in order for the courts of appeals to have
jurisdiction. Bowles, 551 U.S. at 213. Section 7292(a),
governing here, is a jurisdictional requirement as well.
Section 7292 was enacted in 1988 as a part of the Vet-
erans’ Judicial Review Act, 102 Stat. 4105. At that time,
Supreme Court precedent was “well settled” that a timely
appeal from a district court was a jurisdictional require-
ment. Griggs, 459 U.S. at 61. Congress in turn required
that appeals from the Veterans Court be “within the time
and in the manner prescribed for appeal to United States
courts of appeals from United States district courts.” 38
U.S.C. § 7292(a). Given the context, we believe this is a
“‘clear’ indication that Congress wanted the rule to be
‘jurisdictional.’” Henderson, 131 S. Ct. at 1203.

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WINSTON v. DVA 5
Indeed, a unanimous Supreme Court recently applied
this reasoning in Henderson, albeit in dicta. In constru-
ing another provision of the Veterans’ Judicial Review
Act, the Court noted that “[i]f Congress had wanted” to
make the provision jurisdictional, “it could have cast that
provision in language like that in the provision of the
VJRA that governs Federal Circuit review of decisions of
the Veterans Court.” Id. at 1204-05. Because time limits
for civil appeals are jurisdictional, the Court reasoned
that the language of § 7292(a) “clearly signals an intent to
impose the same restrictions on appeals from the Veter-
ans Court to the Federal Circuit.” Id. at 1205.
The Veterans Court entered its judgment in Mr.
Winston’s case on August 5, 2010. The Veterans Court
received Mr. Winston’s notice of appeal on October 28,
2010, and subsequently forwarded the notice to this court.
An appeal from the Veterans Court challenging the Secre-
tary’s determination must be filed within 60 days of the
entry of judgment in order for this court to have jurisdic-
tion to consider the merits of the case. 38 U.S.C. §
7292(a); 28 U.S.C. § 2107(b). Because Mr. Winston’s
appeal was filed more than 60 days after the entry of
judgment, this court lacks jurisdiction and must dismiss
the case.
III
The appeal is DISMISSED.

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