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 Dec. 6 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 decision.
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 appeal."
"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 flexibility.
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.
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."
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.
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.
If that happens, the lower court decision against Henderson, and other vets, would stand.
Saturday, December 4, 2010
USA Today. In the picture, Vice President Biden and his wife, Dr. Jill Biden, deliver brief remarks before sitting down for Thanksgiving dinner with disabled veterans Nov. 22.
Posted by BA Haller at 6:45 PM