Henderson v. Shinseki - Oral Argument - December 06, 2010 Page 20

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.:

It doesn't matter how far away they are if he gets notice.

Lisa S. Blatt:

--I understand, and I'm just -- my understanding is that they -- either they don't get notice, and even if they have notice, they have -- feel no obligation, because they are not in a representative capacity at that point, that they would process his appeal or advise him.

Antonin Scalia:

Well, why give them notice?

I mean, isn't the very giving of -- of notice--

Lisa S. Blatt:

Right.

And I--

Antonin Scalia:

--an indication that they are expected to do something?

Lisa S. Blatt:

--And I understand the government representing that there is notice, and I am telling you that is not my understanding; that when he said authorized representative, I don't think that that meant veterans service organizations.

I may be wrong.

It sounds like we have a different understanding.

But if I can get back on to what is really before this Court, is that when there's no indication, all we have is the three words -- "notice of appeal" -- when we know that those three words are non-jurisdictional in the criminal context.

There is nothing jurisdictional about the words "notice of appeal".

It accurately describes that an appeal is going on.

It doesn't say anything about whether the deadline is jurisdiction.

And the question is: Was Congress thinking about the type of people who appeal district courts to courts of appeals?

Yes, they were, but they made separate provisions for that.

Or were they thinking about the Hobbs Act, which deals with licensing of the nuclear power plants and orders by the FCC, and has an express statement in the text that it is jurisdictional?

I doubt that -- I think it is safe to say that Congress was not thinking about any of those contexts.

They were trying to give veterans their day in court.

And this decision would say no matter what the circumstances were, they are deprived.

Now there was some discussion on the 120-day deadline.

I think another thing that is very safe to say is that time is not of the essence in the veterans system.

It never has been.

120 days is a blink of an eye.

It is true that Social Security are given 60 days and other appellants are given 30.

Anthony M. Kennedy:

Are you helped or hurt in making that argument when this is not de novo review?

I think you are helped.

If it's not de novo review that helps--

Lisa S. Blatt:

Yes, there is no prejudice.

They don't even -- the government doesn't even contest these because it has to be based on the record before, and all we are talking about is an extra 30 days or 60 days.