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Henderson v. Shinseki

2010-11 preview of the U.S. Supreme Court

589 F.3d 1201 (Fed. Cir. 2009), cert. granted, 78 U.S.L.W. 3762 (June 28, 2010) (No. 09-1036)

Does the 120-day time limit set forth in 38 U.S.C. § 7266(a) constitute a statute of limitations subject to the doctrine of equitable tolling, or is the time limit jurisdictional and, therefore, does it bar application of the doctrine?

In Henderson v. Shinseki, the Supreme Court will consider whether the 120-day time limit set forth in 38 U.S.C. § 7266(a) to file an appeal from an adverse decision of the Board of Veterans' Appeals is subject to the doctrine of equitable tolling or whether the time limit is jurisdictional and not subject to the doctrine.

David Henderson was on active military duty during the Korean War from 1950 to 1952. He was discharged on the basis of a service-connected mental disability. In an effort to obtain in-home care, Henderson filed for monthly aid at the Regional Office of the Department of Veterans Affairs in 2001. After the VA denied his claim, he appealed to the Board of Veterans' Appeals ("board"), which denied his appeal on Aug. 30, 2004. He then filed a notice of appeal with the Court of Appeals for Veterans Claims ("Veterans Court") on Jan. 12, 2005, 15 days following the expiration of the 120-day time limit set forth in Section 7266(a). Pursuant to Section 7266(a), a person adversely affected by a board decision must file a notice of appeal with the Veterans Court within 120 days after the date on which the notice of decision was mailed.

Henderson argued that his failure to file the appeal in a timely manner was a direct result of his disability. He asked the court to apply the doctrine of equitable tolling to § 7266(a), which would suspend the 120-day time limit, thus allowing the appeal to proceed. Instead, the Veterans Court relied heavily on the Supreme Court's decision in Bowles v. Russell, 551 U.S. 205 (2007), which declared that "the timely filing of a notice of appeal in a civil case is a jurisdictional requirement," and cannot be waived. In that case, the Supreme Court also determined that it had "no authority to create equitable exceptions to jurisdictional requirements." Id. On the basis of Bowles v. Russell, the Veterans Court refused to apply the doctrine of equitable tolling to § 7266(a) and dismissed Henderson's appeal for lack of jurisdiction. Henderson then appealed to the federal Circuit Court of Appeals, which affirmed the decision of the Veterans Court.

Despite the decision of the federal circuit, other circuits have recognized that equitable tolling applies to many different filing deadlines. See e.g., Rouse v. U.S. Dep't of State, 567 F.3d 408, 414-17 (9th Cir. 2009) (applying the equitable tolling doctrine to the limitations period for claims alleging violations of the Privacy Act).

AARP's amicus brief, filed jointly with the Paralyzed Veterans of America, will argue that the doctrine of equitable tolling applies to Section 7266(a). The brief will note that proceedings before the Veterans Court should be nonadversarial, pro-claimant and protective of veterans, so the Supreme Court should not import rigid jurisdictional rules into such a system. The brief will also highlight the unfairness that may result if equitable tolling is held inapplicable to § 7266(a). Over half of veterans who file claims with the VA are not represented by counsel. For veterans with a mental disability or without counsel, it is difficult to navigate the appeals process, and may be even more difficult to meet such a strict statutory filing deadline.

About 17 million veterans are 50 and older in the United States and more than half of veterans with service-related disabilities are 55 and older. Between 2004 and 2006, the VA issued 1,994,176 disability compensation decisions involving veterans ages 50 to 59, and 60 percent of those cases were denied. Apart from the large number of disabled veterans 50 and older who will be affected by this case, the outcome of this case could influence decisions regarding the application of equitable tolling in other benefit systems, where benefits are also critical for survival.

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