VetsFirst and United Spinal Association have filed legal arguments in a lawsuit before the U.S. Court of Appeals for the Federal Circuit.
The question before the court is whether the strict time limit for veterans and other claimants to appeal a denial of U.S. Department of Veterans Affairs (VA) benefits to the U.S, Court of Appeals for Veterans Claims (CAVC) can be extended if the claimant has a physical or mental disability that prevents him or her from filing an appeal in a timely manner. The outcome of this lawsuit will have an impact on the thousands of veterans and their dependents and survivors who file appeals with the CAVC each year.
The lawsuit, Henderson v. Shinseki, involves the question of whether the legal doctrine of “equitable tolling” applies to the 120-day deadline for filing an appeal to the CAVC. Equitable tolling allows courts to suspend a jurisdictional deadline like this one if it would be fundamentally unfair or inequitable to enforce it.
Under the law, an appellant who receives an unfavorable VA Board of Veterans’ Appeals (BVA) decision has 120-days to file an appeal with the CAVC. Since the CAVC only has jurisdiction to decide timely filed appeals of unfavorable BVA decisions, CAVC appeals received after the 120-day deadline has expired must be dismissed for lack of jurisdiction before the appeal is even considered.
For almost 20 years, both the CAVC and the Federal Circuit have allowed equitable tolling of the 120-day deadline based on the uniquely informal and non-adversarial nature of the VA claims process. That changed when the CAVC dismissed Mr. Henderson’s appeal of denied VA benefits because his notice of appeal to the court was received after the 120-day deadline had passed. His appeal was late because the very disability that he was claiming VA benefits for prevented him from filing a timely appeal.
The CAVC based its decision in Henderson on a recent U.S. Supreme Court decision, Bowles v. Russell. In Bowles, the Supreme Court refused to apply the equitable tolling doctrine to an appeals deadline in a criminal matter.
Since its decision in Henderson¸ the CAVC has dismissed more than 130 veterans’ appeals for untimely filing. Most of these veterans either suffer from physical or mental disabilities that prevented them from filing their appeals before the deadline expired, or they filed on time, but misfiled the appeal with the VA instead of the court.
VetsFirst has joined Mr. Henderson’s appeal to the Federal Circuit as an amicus curiae (friend of the court). The essence of VetsFirst’s legal argument is that the Supreme Court’s decision in Bowles does not preclude equitable tolling of the CAVC appeals deadline because of the informal, non-adversarial nature of the veterans’ claims process and the special relationship between the U.S. and its military veterans.
The appeals deadline in Bowles involved the appeal of a criminal conviction. However, the criminal justice system is so compellingly different from the pro-claimant VA claims system that to treat America’s disabled veterans in the same manner as convicted criminals is fundamentally unfair and inequitable. In law after law, Congress has consistently expressed its intent that disabled veteran claimants should be entitled to special consideration when it comes to matters of fairness and equity.
If the Federal Circuit accepts this argument and overturns the CAVC’s decision, veterans who appeal denied VA claims will have greater access to review of denied benefits in federal court.
Oral argument in the Henderson appeal has been set for September 8, 2009.