Henderson v. Shinseki - Oral Argument - December 06, 2010

Henderson v. Shinseki

Media for Henderson v. Shinseki

Audio Transcription for Opinion Announcement - March 01, 2011 in Henderson v. Shinseki

Audio Transcription for Oral Argument - December 06, 2010 in Henderson v. Shinseki

John G. Roberts, Jr.:

We'll hear argument first this morning in Case 09-1036, Henderson v. Shinseki.

Ms. Blatt.

Lisa S. Blatt:

Thank you, Mr. Chief Justice, and may it please the Court:

The Federal circuit's decision in this case forecloses judicial review when the very disability for which a veteran seeks benefits prevents the veteran from filing a timely appeal with the Veterans Court.

That decision is wrong, and for three reasons the court of appeals erred in holding that the deadline at issue in this case is jurisdictional.

First, the statute contains no clear indication that the deadline is jurisdictional.

Rather, the text and structure points away from a jurisdictional reading.

Second, the deadline that applies to disabled and largely uncounseled veterans seeking their first day in court is not the type of deadline that Congress would be expected to rank as jurisdictional.

And third, a jurisdictional reading would render some of the most disabled of veterans the least likely to obtain benefits and would treat veterans worse off than almost all litigants in our federal system.

Ruth Bader Ginsburg:

Ms. Blatt, you do have a substantial hurdle to contend with in this Court's decision in Bowles v. Russell, which seemed to say if you have a time limit and it's statutory, it is mandatory and jurisdictional.

So here, we have a time limit set by statute, not by rule, and why doesn't -- why isn't that dispositive?

Lisa S. Blatt:

Because neither this Court's decision in Bowles nor any other decision by this Court holds that this type of an appeal from a pro-claimant and non-adversarial proceeding to a court of first review clearly speaks in jurisdictional terms, notwithstanding the lack of a jurisdictional label.

Antonin Scalia:

Gee, I thought Bowles was a nice, clear case.

I mean, you could always find some distinction in the next case, and I thought the object of Bowles was to say if it's a limit on appeal, it's jurisdictional.

That would -- and that's, I gather, what the Federal circuit took it to mean.

And I would have done that if I was down there, probably.

Lisa S. Blatt:

I can understand why maybe the Federal circuit did it, because of the one statement that the Court, I think, took out of context.

But this Court's decision in Bowles didn't purport to extend to any statute, no matter what the statute said or what the context it arose in, and the most closely analogous context of an appeal of agency action to a court of first review is a Social Security context.

And even if you don't think that that context is directly on point, then the historical backdrop at most would be inconclusive, and that hardly would rise to the type of--

Antonin Scalia:

Doesn't the Social Security context -- it doesn't speak of an appeal, does it?

It talks of a civil action.

Lisa S. Blatt:

--That's right.

I mean, it--

Antonin Scalia:

I mean, you're right that there is -- you know, there is a parallel in what's going on, but the statute does not call it an appeal.

It calls it bringing a civil action to challenge the decision.

Lisa S. Blatt:

--Right, and there is nothing inherently jurisdictional about the word "appeal".

And Justice Scalia, if Congress that passed this statute wanted to pick up on the jurisdictional rule under 28 2107, presumably it would have written a statute that looks something like that statute with the safety valves.

Of course, when a -- all litigants, civil litigants who are appealing a district court judgment to a Court of Appeals, they have a jurisdictional deadline, but the district court can extend it for good cause or excusable neglect or when the party lacks notice of an adverse judgment or, importantly, the Federal rules of appellate procedure.

Here's a situation when a litigant timely files his appeal, but does so in the wrong form.

In this statute Congress knew how to incorporate the jurisdictional rule of Bowles.