June 29, 2010
SCOTUS cert. grant in Henderson v. Shinseki: Once more into the jurisdictional-vs.-nonjurisdictional breach
The Supreme Court has been struggling in recent years to distinguish "jurisdictional" requirements from "nonjurisdictional" ones, in a line of cases that includes Arbaugh v. Y & H Corp., 546 U.S. 500 (2006), Bowles v. Russell, 551 U.S. 205 (2007), John R. Sand & Gravel Co. v. United States, 552 U. S. 130 (2008), and Reed Elsevier v. Muchnick, 130 S. Ct. 1237 (2010). As covered here, the topic came up again in last week’s decision in Morrison v. Australia National Bank. The Court looks to tackle the issue once more in a case for which it granted certiorari yesterday: Henderson v. Shinseki (No. 09-1036). The question presented is:
Section 7266(a) of Title 38, U.S.C., establishes a 120-day time limit for a veteran to seek judicial review of a final agency decision denying the veteran's claim for disability benefits. Before the decision below, the Federal Circuit in two en banc decisions held that Section 7266(a) constitutes a statute of limitations subject to the doctrine of equitable tolling under this Court's decision in Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990). In the divided en banc decision below, however, the Federal Circuit held that this Court's decision in Bowles v. Russell, 551 U.S. 205 (2007), superseded Irwin and rendered Section 7266(a) jurisdictional and not subject to equitable tolling.
The question presented is whether the time limit in Section 7266(a) constitutes a statute of limitations subject to the doctrine of equitable tolling, or whether the time limit is jurisdictional and therefore bars application of that doctrine.
The lower court decision is at 589 F.3d 1201, and the Supreme Court docket is here.