Wednesday, March 2, 2011
Commentary: Two Cheers for Henderson
From Professor Scott Dodson (William & Mary) comes the following commentary on yesterday’s SCOTUS decision in Henderson v. Shineski (covered earlier here)...
Yesterday, the Court handed down its decision in Henderson v. Shinseki (09-1036), holding that the statutory deadline for a veteran to file a “notice of appeal” with the Veterans Court, does not have jurisdictional consequences. My immediate analysis of the decision is available on SCOTUSblog.
As I predicted in my oral-argument recap, the decision is unsurprising and, in my view, clearly correct, but the opinion features several interesting issues and developments.
First, the Court phrased the question presented oddly, as whether the 120-day period has “jurisdictional consequences.” A more straightforward question presented would simply have asked if the deadline was “jurisdictional,” as the Court had phrased such characterization issues in the past. Perhaps the Court is finally coming around to the idea, one that I have advocated, that a rule can be nonjurisdictional yet have jurisdictional effects. But, if so, the Court is making a bit of a mess of it because the approach from Arbaugh v. Y&H Corp.(2006) that the Court embraces is focused on congressional intent, and that intent is presumed to be reflected wholesale as jurisdictional or nonjurisdictional. In other words, the determination is still focused on whether the deadline is jurisdictional or nonjurisdictional (resulting in the customary effects that normally flow from such characterizations), not on whether the deadline has jurisdictional consequences. The Court determined that the deadline is nonjurisdictional, and then concluded, somewhat cryptically, that the deadline “does not have jurisdictional attributes.” The Court appeared completely to elide the possibility that the rule was nonjurisdictional yet had jurisdictional effects.
Second, it is interesting that Alito wrote the opinion. In oral argument, Justice Ginsburg, who has been the Court’s leading proponent of reducing jurisdictional characterizations in the past, contrasted the court-to-court review in Bowles v. Russell (2007) with the agency-to-court review in Henderson and specifically identified the non-adversarial procedure as a distinguishing feature of veterans’ claims. The opinion relied heavily on these observations. Justice Alito, by contrast, seemed concerned that the case-by-case approach advocated by Henderson’s counsel would erode clarity in characterization issues. Nevertheless, Justice Alito’s opinion eschews a categorical rule and instead endorses the case-by-case approach, as guided by the generalized Arbaugh presumption. One might have expected Justice Ginsburg, not Justice Alito, to author the unanimous opinion. Perhaps assignment strategies in other cases are at play here.
Third, the Court validated Arbaugh’s presumption even for timing rules. Arbaugh, which considered the employee-numerosity requirement of Title VII (that Title VII applies to employers with at least 15 employees), determined whether a statutory-coverage requirement was a requirement of jurisdiction or an element of the substantive claim. Bowles, in fact, specifically distinguished Arbaugh on that basis, dismissing it as “not a time limit.” This is the first time the Court has applied the Arbaugh presumption to a statutory time limit. The vindication of Arbaugh over Bowles further narrows Bowles (an otherwise broadly worded opinion) to the particular statute (§ 2107) that it interpreted.
Fourth, the Court dismisses Stone v. INS (1995) without fanfare, but the Court probably should have explained more. Stone, like Henderson, involved an agency-to-court review. Stone characterized the deadline at issue there to be “mandatory and jurisdictional,” though, as the Court acknowledged, it did so “without elaboration.” It appears that the Court distinguished Stone on the ground that immigration adjudications are highly adversarial, in stark contrast to veteran adjudications, but the Court’s analysis was not particularly probing. The Court probably favored a less categorical approach that would leave Stone intact (at least for now) rather than a more categorical approach that would cause friction with Stone.
Overall, though, I thought the opinion does a good job navigating the precedent, staking out some clarity by embracing the Arbaugh presumption, and analyzing congressional intent. I think the decision is correct, and I find its narrowing of Bowles to be a welcome development.