Henderson v. Shinseki - Oral Argument - December 06, 2010 Page 2

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

Lisa S. Blatt:

It did so in a separate provision of the statute in 7292(a).

It said when a litigant wants to go from the Veterans Court and appeal that decision to the Federal circuit, the litigant has to follow the time and the manner prescribed for appealing district court judgments to Court of Appeals.

Ruth Bader Ginsburg:

And that is jurisdictional, 7292?

Lisa S. Blatt:

Yes.

And interestingly, it also goes on to say if you want to appeal to this Court, you have to apply for certiorari.

So Congress--

Sonia Sotomayor:

Counsel -- I'm sorry.

Antonin Scalia:

Go ahead.

Sonia Sotomayor:

I'm not sure why Congress would have actually known the difference that we established in Bowles, because when it passed this statute, it was before Bowles, wasn't it?

Lisa S. Blatt:

--Yes.

Sonia Sotomayor:

So what to read of its knowledge of Bowles, whether it meant jurisdiction or not, is a bit of a fiction, isn't it?

Lisa S. Blatt:

No.

I think what's important is that Bowles is relying on a series of decisions that had nothing to do with the word "notice of appeal", of course, because they were dealing with cases involving writs of error and petitions for a writ of certiorari.

It was all in the context of court-to-court appeals.

Bowles doesn't even mention agency appeal of agency action to a court of first review.

Sonia Sotomayor:

So what's the rule?

Justice Scalia said those seem to establish a sensible, clear rule, which is if Congress uses the word "notice of appeal", it intends a jurisdictional restriction.

That appears to be the rule that Justice Scalia articulated.

What would be your rule or test now to determine Congress's purpose?

What -- what of our cases would you point to that establishes different--

Lisa S. Blatt:

The rule of Reed Elsevier, which was a unanimous decision which says -- and it was written by the same author of Bowles -- that all the decisions are consistent.

You require a clear statement of jurisdictional intent, and in Bowles, this Court had read the type of limitation that was at issue in Bowles as to clearly speak in jurisdictional terms, notwithstanding a label.

Here, you have--

Sonia Sotomayor:

--I'm not sure what that distinction is.

I'm sorry.

Lisa S. Blatt:

--You had a century--

Sonia Sotomayor:

What we wrote on was the word "notice of appeal" in Bowles, within a historical context.

Lisa S. Blatt:

--I don't think this Court said the word "notice".

Notice of appeal is not jurisdictional in the criminal context and Congress used the word "appeal" throughout this particular statute in a non-jurisdictional meaning in all the proceedings that go in the agency.

It used the term "appellant" and "review on appeal".