Oral argument was held before the Supreme Court on December 6, 2010, in the case of Henderson v. Shinseki. This case involves the issue of whether the deadline to appeal to the U.S. Court of Appeals for Veterans Claims may be equitably tolled. That is, whether a Veteran can still file an appeal to the Court of an unfavorable Board of Veterans’ Appeals decision, even if they fail to do so within the 120 day statute of limitations, because circumstances made it impossible for the Veteran to meet this deadline. Mr. Henderson originally argued that he was unable to file an appeal within the 120 day appeals period due to the mental illness that he was seeking VA disability benefits for. The Veteran was bedridden during a portion of the 120 day appeals period, and as a result, filed his Notice of Appeal to the Court late.
Amicus (or friendly) briefs to the Supreme Court argue that, when in certain situations a Veteran is unable to meet the 120 day appeals period, for instance when a Veteran is hospitalized during the expiration of the appeals period and didn’t have access to mail, that the statute of limitations should be equitably tolled and the appeal should be allowed. However, the Secretary of the VA, has countered that the appeals period found at 38 U.S.C. § 7266(a) was crafted by Congress and that it is not up to the Courts to legislate from the bench and therefore does not have jurisdiction to make such a decision. The government argues that it would be up to Congress to enact special provisions extending the time limit. Lawyers for the Veteran are arguing that Congress wrote the law in a way so that judges could make exceptions to the deadline if they deem it necessary and in the interests of fairness.
Justice Kagan recused (or disqualified) herself from participating in this specific case due to her previous involvement with the matter when she was U.S. solicitor general which causes a conflict of interest. With only eight justices participating in the case, there is a possibility of a 4-4 split, in which case the lower court decision against making an exception to the time limit would stand.
For more information visit: http://www.scotusblog.com/case-files/cases/henderson-v-shinseki/