concurring.
While I agree with the outcome of this case, I write separately to address two issues: first, the majority opinion’s discussion of equitable tolling with respect to the Contract Disputes Act (CDA), 41 U.S.C. § 601 et seq. (1994), in light of our recent in banc opinion in Bailey v. West, 160 F.3d 1360 (Fed.Cir.1998) (in banc), and, second, what I perceive to be an incomplete analysis of the Board’s rules in effect at the time and their relationship to the jurisdiction conferred on the Board by the CDA.
Equitable Tolling
The majority’s Part III discussion of equitable tolling of the CDA in light of Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), distinguishes our recent in banc decision in Bailey on the basis that Bailey involved the pater*1367nalistic statutory provisions governing veterans benefits, in contrast to the statute of limitations provision of the CDA at issue here.
The majority opinion states that “[tjhis court has not decided whether equitable tolling applies to the time limitations in the Contract Disputes Act for challenging a contracting officer’s decision. We find it unnecessary to decide that issue, here, however, for even if the doctrine applies, equitable tolling of the 90-day time limitation is unwarranted.” Slip op. at 1365 (internal citations omitted). The opinion then goes on to discuss equitable tolling under Irwin as if the presumption applied to the CDA, holding that Bonneville’s situation is nothing more than a “garden variety claim of excusable neglect” and is thus “insufficient to justify equitable tolling.” Slip op. at 1366 (citing Irwin, 498 U.S. at 96, 111 S.Ct. 453).
However, any discussion by the majority of Irwin and the applicability of equitable tolling to the CDA must be viewed as dicta. Although that issue was squarely presented to us, the majority opinion does not hold that the presumption in favor of equitable tolling outlined in Irwin and refined by us in Bailey does not apply to the CDA.1 That issue remains to be decided in the future. In addition, the majority opinion’s basis for distinguishing Bailey, ie., a paternalistic veterans scheme, should not be read to imply that any statutory scheme not involving veterans is precluded from the possibility of equitable tolling. That the discussion of Irwin in Bailey was in the context of veterans does not diminish the precedential and controlling nature of the in banc court’s discussion. Thus, I do not criticize the majority’s ultimate conclusion as to equitable tolling given the particular facts of this case. Rather, I write separately to emphasize what has not been decided, namely, whether the presumption of equitable tolling announced by the Supreme Court in Irwin, as refined by the in banc court in Bailey, applies to the CDA.
Board’s Rules and the CDA
In Part II, the majority opinion correctly determined that Bonneville’s dismissal without prejudice pursuant to Rule 28(a)(1) prevented it from reopening its appeal with the Board pursuant to the three-year reinstatement provision of Rule 28(a)(2). The majority states that Rule 28(a)(2) “merely places an outer limit on the time within which a litigant may seek to reinstate an appeal that was dismissed without prejudice.” Slip op. at 1364-65. In addition, the majority states that a dismissal without prejudice pursuant to Rule 27(c) “cover[s] situations where the suspension was likely to continue for a lengthy but indefinite time, such as the conduct of settlement negotiations.” Slip op. at 1364. In concluding that Bonneville cannot resort to Rule 28(a)(2) to reinstate its appeal with the Board, the majority opinion relies on the deference we give to the Board’s interpretation of its own rules and procedures. While I do not dispute that point, I am troubled by the lack of discussion of the necessary corollary to that proposition, namely, the Board’s inability to construe its own rules pursuant to the CDA to enlarge its own jurisdiction. This issue was addressed in the Board’s opinion and in the parties’ briefs to this court on appeal.
We have stated repeatedly that “waiver of sovereign immunity by the United States is jurisdictional.” RHI Holdings, Inc. v. United States, 142 F.3d 1459, 1461 (Fed.Cir.1998) (citing United States v. Sherwood, 312 U.S. 584, 589-90, 61 S.Ct. 767, 85 L.Ed. 1058 (1941)). A sovereign’s consent to be sued pursuant to the CDA must be strictly construed. See Cosmic Constr. Co. v. United States, 697 F.2d 1389, 1390 (Fed.Cir.1982) (citing Soriano v. United States, 352 U.S. 270, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957)). However, “authority conferred upon a court to make rules of procedure for the exercise of its jurisdiction is not an authority to enlarge its jurisdiction.” Widdoss v. Secretary of the Dep’t of Health and Human Servs., 989 F.2d 1170, 1177 (Fed.Cir.1993) (quoting Sherwood, 312 U.S. at 589-90, 61 S.Ct. 767). *1368Given this clear line of precedent, I do not understand why the majority preferred to rely only on the deference we give the Board in interpreting its own rules to support its holding, without taking the next step, i.e., that the Board cannot construe the statute of limitations provision of the CDA (41 U.S.C. § 606) to enlarge its jurisdiction, as that would impermissibly violate principles of sovereign immunity.
Additionally, I do not understand the majority opinion’s lack of discussion of Rule 27(e)’s explicit reference to “reinstatement” and its directive that dismissals pursuant to this rule are “subject to the provisions of [Rule 28(a) ],” and the corresponding lack of a similar reference and directive in Rule 28(a)(1). While it is true that the dismissal in this ease was granted pursuant to Rule 28(a)(1) and not Rule 27(c), the marked difference in language of the two rules is certainly relevant to the present case and reinforces our ultimate conclusion of not permitting reinstatement after dismissal pursuant to Rule 28(a)(1).
For the reasons stated above, I cannot join the majority opinion and must concur only in the judgment.
. I note in passing that as a "timing for review” provision, the CDA statute of limitations provision at issue here would be precluded from any application of equitable tolling under the view espoused by Judge Bryson in his dissent in Bailey.