Henderson v. Shinseki - Oral Argument - December 06, 2010 Page 15

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

Eric D. Miller:


The question I was trying to address was whether Congress could amend the statute so as to retroactively reopen Petitioner's claim.

And my answer was yes, it could do that, if it were to choose to do so.

Now, the VA, of course, has submitted a proposal to Congress for an extension of the period I'm showing of good cause up to 120 days.

The VA's proposal would not apply retroactively, but Congress in its discretion could choose.

Ruth Bader Ginsburg:

On the length of time, which is, you said, 120 days -- that's a long time, but isn't it on cert?

It's 90 days plus 60, right?

So it's even more?

Eric D. Miller:


Although if you -- somebody who misses the 90 days, my understanding of the operation of this Court's rule 13 is that the clerk will not accept your filing, a petition filed on day 91.

Ruth Bader Ginsburg:

But the total number of days would exceed 120, assuming the application is made--

Eric D. Miller:



Ruth Bader Ginsburg:

--Application to extend this time.

Eric D. Miller:

--Although of course filing a cert petition is a much greater undertaking than filing a notice of appeal.

You have to -- it is much more than a simple one-line document.

Stephen G. Breyer:

What is supposed to happen -- and I've probably seen this on page 16 of the Federal circuit bar's amicus brief.

They list about 30 or 40 cases where the veteran perhaps was not represented, and maybe had some stress syndrome, whatever it is.

He just filed the paper in the wrong court or the wrong agency, and that agency didn't get around to returning it to him in time so he could have met this deadline.

What, in your opinion, is supposed to happen in those circumstances?

Just say, too bad, you are out of luck; here we are, you got the wrong address; no recovery?

Eric D. Miller:

I think it's significant that Congress did address the question of mailing of notices of appeal.

In 1994, it amended section 7266 and added a subsection (c), which unfortunately is not reproduced in the briefs, but the effect of that is to give the benefit of a mailbox tool: That a petition is deemed filed on the day it is mailed, but only

"if the notice is properly addressed to the court. "


Stephen G. Breyer:

All these cases, actually, that they have raised in the brief, the veteran does get his appeal.

Eric D. Miller:


In those cases, the notice would not have been properly addressed to the court.

It would have been--

Stephen G. Breyer:

So they could do it again.