Finkelstein & Partners, L.L.P., was asked to prepare an Amicus Brief for the U.S. Supreme Court by N.O.V.A. www.vetadvocates.com, Veterans for Common Sense, www.veteransforcommonsense.com and by the Federal Bar Association, Veterans Law Section, www.fedbar.org. Finkelstein & Partners attorneys, Andrew G. Finkelstein, George A. Kohl, 2nd, Nancy Y. Morgan & Duncan W. Clark prepared the first draft, and then, through a collaboration with the other organizations, submitted a final product that clearly included the interests of our nation’s veterans. The brief argues that the deadlines in the application and appeal process for Veterans should be subject to equitable tolling.
The brief was prompted after a Veteran filed a petition for certiorari with the U.S. Supreme Court on February 24, 2010, after the dismissal of his appeal was upheld by the US Court of Appeals for the Federal Circuit. In the case of Henderson v. Shinseki, 589 F.3d 1201, the Veteran had appealed the denial of his claim from the Board of Veteran’s Appeals (B.V.A.) to the Court of Appeals for Veteran’s Claims. (C.A.V.C.). 38 U.S.C.S. sec. 7266 provides that a notice of appeal from a denial by the B.V.A. must be filed with the C.A.V.C. within 120 days of the denial. In Henderson, the Veteran filed his notice of appeal fifteen (15) days after the 120 day deadline had passed. Mr. Henderson suffers from a service connected mental illness which has rendered him 100% disabled. The C.A.V.C. dismissed the appeal asserting that it did not have jurisdiction to hear the matter because the dictates of 38 U.S.C.S. sec. 7266 were not adhered to. Mr. Henderson appealed to the U.S. Court of Appeals for the Federal Circuit which upheld the decision. The Court followed recent precedent set forth by the U.S. Supreme Court in Bowles v. Russell, 551 U.S. 205, which held that a time of review statute in a civil case is mandatory and jurisdictional unless Congress provides otherwise and, as such, cannot be subject to equitable tolling. In so doing, the court reversed its prior decisions in Bailey v. West, 160 F3d 1360 and Jaquay v. Principi 304 F2d 1276, in which equitable tolling was applied. The court acknowledged that although Congress has expressed special solicitude for the Veteran’s cause, courts do not have free reign to establish special procedural schemes governing the Veteran’s system alone.
It is argued in the Amicus Brief that the denial of equitable tolling will result in the denial of VA benefits to thousands of our nation’s most deserving an most impaired veterans, many of whom are suffering from symptoms that prevent them from filing timely appeals. In addition, it is argued that the decision is legally incorrect and conflicts with decisions in other circuits which have permitted equitable tolling in similar circumstances.
We await the decision as to whether the U.S. Supreme Court will hear the Henderson case.
To view a copy of the amicus brief written by Finkelstein & Partners, click here: 23180 pdf Kohl