Henderson v. Shinseki - Oral Argument - December 06, 2010 Page 16

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:

--And certainly--

Stephen G. Breyer:

That's good.

Eric D. Miller:

--And certainly one would hope that the VA ideally would get those notices, figure out what they are, and send them to the court.

The problem that the VA encounters is that it receives a tremendous volume of mail, which is not generally opened by attorneys, and it's often not clear when it gets something in the mail that just says, I don't like the decision in my case, whether that's a notice of appeal to the court or a motion for reconsideration or a motion to file.

Stephen G. Breyer:

These people in footnote 3, did they get their appeal or didn't they?

Eric D. Miller:

They did not.

Stephen G. Breyer:

They did not?


There's a problem.

Eric D. Miller:

And we -- we do not deny, and in fact, it's true by definition that to say that there is no equitable tolling is to say that the rule would be cases in which the result is not equitable.

But I think if you were to look at just the cases like the ones Your Honor has identified, some of the others in the Petitioner brief and amicus brief, if you could identify with no transaction costs what those cases are, and were to ask as a policy matter, should the late filing be excused in those cases, I think just about everyone would say yes.

Stephen G. Breyer:

So if we are in a void and the language doesn't have the exceptions -- and I think you can distinguish it from these other cases, and you have older cases that says unless Congress is clear, read it as non-jurisdictional, and nobody could say it was inequitable -- or rather to the contrary, nobody could say it was equitable to follow your position here, why isn't there a simple remedy?

We take the opposite position?

Eric D. Miller:

Well, I think there are two answers to that.

The first is in whatever you think of, the rule in Bowles -- and we obviously believe that it was correctly decided, but understand that not everyone takes that view--

Stephen G. Breyer:

Except that for purposes of this, it governs.

I'm just looking at the parts of it that did, in fact, make clear a special nature of the particular provision at issue in that case.

Eric D. Miller:

--But the question of whether a particular time limit is or is not jurisdictional would seem to be a quintessential example of the sort of issue where it is more important that the law be settled then that it be settled any particular way.

And the great virtue of the rule in Bowles is that it provides clear guidance that appeal deadlines are going to be presumed to be jurisdictional, and if Congress doesn't want them to be--

Ruth Bader Ginsburg:

That's really the only thing that counsels your result, because in Reed you took -- the Government took the position that a statutory provision is non-jurisdictional if it does not speak in jurisdictional terms and doesn't address the power of the court.

I understand that was the Government's position in Reed.

Today you are saying that the only thing that counsels your result is the fact that Congress used the words "notice of appeal".

Is that correct?

Eric D. Miller:

--Our position is consistent with what we said in Reed, because Reed, of course, did not involve a time limit.

Reed involved a requirement that copyrights be registered before an infringement action was brought.

And what the Court said in Reed is that the presence or absence of a jurisdictional label on the statute does not determinative.

What matters is whether the type of limitation that the statute imposes is one that's properly ranked as jurisdictional, absent a label--

Ruth Bader Ginsburg:

Is there any statute on the time to appeal -- has any statute been held, quote, 2107, that extensions are possible?

Is there a 121 days or whatever, and that's it?

No extension, no matter what the circumstances are?