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Lawyers Argue Veteran’s|Case in Supreme Court

WASHINGTON (CN) - The Supreme Court heard arguments Monday in the case of a veteran who missed the 120-day deadline to appeal the denial of his benefits claim.

The case involves the late David Henderson, who appealed the denial of his claim for funds to pay for in-home care by the Board of Veterans Appeals, which affirmed the denial. Henderson had 120 days to file a notice of appeal with the appeals court, but filed 15 days late.

Henderson appealed to Federal Circuit, which affirmed the denial, saying the notice of appeal was jurisdictional under the Supreme Court's ruling in Bowles v. Russell, which held that the deadline for filing a notice of appeal in a civil case in a federal appeals court is a jurisdictional deadline not subject to equitable tolling.

Attorney Lisa Blatt, representing Henderson, argued that Bowles did not establish that limits on all appeals were jurisdictional.

"There is nothing inherently jurisdictional about the word 'appeal,'" Blatt said.

"I thought Bowles was a nice, clear case," Justice Antonin Scalia said, adding that he would have ruled the same way the Federal Circuit did.

Blatt argued that Bowles dealt with court-to-court appeals, while Henderson's case involves an agency's appeal of an agency action to a court of first review. This was the veteran's first day in court, Blatt argued.

Scalia said the 120-day appeal deadline was "a lot of time."

Blatt countered that 120 days were a "blink of an eye" in the veteran's context.

Justice Sonia Sotomayor asked Blatt to suggest a rule other than the jurisdictional one advanced by Scalia.

Blatt said she would rely on the Supreme Court's decision in Reed Elsevier v. Muchnick, which requires that a rule explicitly state whether it is jurisdictional.

Chief Justice John Roberts noted that although Reed Elsevier might be a bright-line rule, it wasn't meant for past cases, but as a means of urging Congress to be clear about which cases should be treated as jurisdictional in the future.

"It's kind of hard to apply a new bright-line rule retrospectively," Roberts said.

Justice Stephen Breyer asked government lawyer Eric Miller if he thought Congress would have intended to let big businesses extend their appeal because of excusable neglect, but not a wounded veteran with schizophrenia who has never had a day in court.

"Who in Congress would have likely thought such a thing?" Breyer asked.

Scalia asked Miller if, in his view, lawmakers had given much thought to "this rather narrow point, about whether if you file too late it's jurisdictional."

Miller said there was no indication they did.

"So don't we pretty much have to go on what they wrote?" Scalia asked.

Miller said yes and urged the court to rule that Henderson's delay fell under the notice-of-appeal provision.

Justice Elena Kagan recused herself from the case due to her work as solicitor general.

The case is Henderson v. Shinseki, case number 1036.

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