Saturday, December 04, 2010

Supreme Court to hear veterans' disability case

By Joan Biskupic, USA TODAY

WASHINGTON — The wars in Iraq and Afghanistan
have left nearly 40,000 U.S. troops wounded,
caused veterans' disability claims to spiral and now
brought new urgency to a legal fight over deadlines
for claims.

The Supreme Court on Monday will hear a case
testing whether a veteran — in this situation, from
the Korean War with severe mental illness — should
be prevented from appealing a Department of
Veterans Affairs denial of benefits if he missed a
120-day time limit for judicial review of the

Advocacy groups that have joined the case say the
dilemma for vets navigating the claims system is
especially compelling today and the need for
flexibility in filing deadlines even more important.

"We've seen, as you would expect, a spike in
disability claims during wartime," says lawyer
Gregory Garre, representing the National
Organization of Veterans' Advocates. "In these
conflicts we've also seen a rise in traumatic stress
injuries, psychological injuries and other problems
that would cause a veteran to miss a deadline for

"Disabled veterans are sometimes hospitalized for
extended periods of time, beyond 120 days," adds
William Mailander, general counsel for the Paralyzed
Veterans of America. "They may not be getting their
mail and may not even know that a decision has
been made."

Department of Veterans Affairs lawyers counter that
the 120-day deadline is set by federal statute and
that it is up to Congress, not judges, to add any

Secretary of Veterans Affairs Eric Shinseki, a former
Army chief of staff, has asked Congress to extend
the 120-day time limit for appeals by another 120
days in certain cases meriting exception. The
extension would not apply to past appeals, such as
the one before the justices.

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Monday's dispute arises against a larger backdrop.

It also will test a 2007 Roberts Court ruling — by a
5-4 vote along ideological lines — that curtailed
judges' ability to bend deadlines set by Congress.
That case, involving a prisoner who missed an
appeal deadline by days because of a judge's
erroneous instruction, prompted dissenting liberals
to say, "It is intolerable for the judicial system to
treat people this way."

120 days a firm limit

In the veteran's dispute, a U.S. appeals court relied
on the 2007 case, Bowles v. Russell, and declared
the 120-day time limit a firm rule barring any
judicial exceptions. It rejected an appeal from
Korean War veteran David Henderson, who was
found 100% disabled with paranoid schizophrenia
after his service in the early 1950s.

The current case began in 2001 when Henderson,
living in North Carolina, sought monthly benefits
for in-home care related to his condition.

Henderson's lawyers say he missed the 120-day
deadline for appealing the VA's denial by 15 days
because he was bedridden from the very disability
for which he needed benefits.

The Veterans Court, a special court that hears
appeals from the VA's administrative process, said it
could not grant a deadline extension for any
reason. The U.S. Court of Appeals for the Federal
Circuit affirmed, based on the high court's 2007
decision, saying federal time limits are not subject
to judges' discretion unless Congress has written
such flexibility into the law. Some of the judges in
the Federal Circuit majority noted, however, that "the
rigid deadline of the existing statute can and does
lead to unfairness."

Henderson died on Oct. 24 this year at age 81, and
his wife, Doretha, has taken over the appeal.

Washington lawyer Lisa Blatt, representing
Henderson at the high court, argues that Congress
wrote the 120-day time limit in a way that allows the
Veterans Court judges to make exceptions when
they deem it necessary.

"The overarching thrust of the veterans' disability
scheme," she tells the justices in her brief, "is
decisively pro-veteran. It defies credulity that
Congress intended to impose an anti-veteran
jurisdictional rule in an otherwise pro-veteran
scheme." She says the 2007 high court case,
involving a different federal law and different

context, should not control the veterans' situation.

In an interview, Blatt added, "This case is important
to a significant number of veterans."

The VA and advocacy groups, such as the Paralyzed
Veterans of America, estimate that the Veterans Court
handles about 5,000 appeals each year of
administrative decisions denying vets' benefit
requests. Overall, disability claims continue to rise,
according to the VA. Last year, 1 million claims were
submitted, up from 888,000 in 2008 and 838,000
in 2007.

Kagan to sit out case

Justice Department lawyers, representing the VA, say
Congress in setting the appeal deadline precluded
judges from amending it — a point they say was
reinforced by the Supreme Court's 2007 ruling.
Acting U.S. Solicitor General Neal Katyal describes
the 120 days as "unusually lengthy" and stresses
that the VA system ensures that veterans are told of
their appeal rights.

Katyal says judges should not take the matter into
their own hands and tells the high court, "The
potential for unfair results is a consideration for
Congress to take into account in deciding whether
to amend the statute."

Newest justice Elena Kagan, who was U.S. solicitor
general before her appointment last summer, will be
sitting out the case of Henderson v. Shinseki, so
only eight justices will hear Henderson's appeal.
That raises the possibility of a 4-4 split vote.

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