Tuesday, March 1, 2011
We covered earlier the Supreme Court’s grant of certiorari in Henderson v. Shinseki, the latest case in the Court’s ongoing struggle to distinguish “jurisdictional” requirements from “nonjurisdictional” ones. In an 8-0 decision (Justice Kagan took no part in the case), the Court holds that the 120-day deadline for challenging a denial of veteran’s benefits [38 U.S.C. § 7266(a)] is not jurisdictional.
In reaching this conclusion, Justice Alito’s opinion had to distinguish the Court’s decision in Bowles v. Russell, 551 U.S. 205 (2007), which had “held that the statutory limitation on the length of an extension of the time to file a notice of appeal in an ordinary civil case, 28 U.S.C. § 2107(c), is ‘jurisdictional.’” [Slip Op. at 4.] Justice Alito writes: “Bowles did not hold categorically that every deadline for seeking judicial review in civil litigation is jurisdictional. Instead, Bowles concerned an appeal from one court to another court. The ‘century’s worth of precedent and practice in American courts’ on which Bowles relied involved appeals of that type.”
According to Justice Alito, Bowles and other cases cited by the parties “involved review by Article III courts. This case, by contrast, involves review by an Article I tribunal as part of a unique administrative scheme. Instead of applying a categorical rule regarding review of administrative decisions, we attempt to ascertain Congress’ intent regarding the particular type of review at issue in this case.” Turning to the statute at issue in Henderson, Justice Alito writes:
The terms of the provision setting that deadline, 38 U.S.C. § 7266(a), do not suggest, much less provide clear evidence, that the provision was meant to carry jurisdictional consequences. . . . It is true that § 7266 is cast in mandatory language, but we have rejected the notion that “all mandatory prescriptions, however emphatic, are properly typed jurisdictional.” Thus, the language of § 7266 provides no clear indication that Congress wanted that provision to be treated as having jurisdictional attributes.
[W]hat is most telling here are the singular characteristics of the review scheme that Congress created for the adjudication of veterans’ benefits claims. “The solicitude of Congress for veterans is of longstanding.” And that solicitude is plainly reflected in the VJRA, as well as in subsequent laws that “place a thumb on the scale in the veteran’s favor in the course of administrative and judicial review of VA decisions.” The contrast between ordinary civil litigation — which provided the context of our decision in Bowles — and the system that Congress created for the adjudication of veterans’ benefits claims could hardly be more dramatic. In ordinary civil litigation, plaintiffs must generally commence their suits within the time specified in a statute of limitations, and the litigation is adversarial. Plaintiffs must gather the evidence that supports their claims and generally bear the burden of production and persuasion. Both parties may appeal an adverse trial-court decision, see § 1291, and a final judgment may be reopened only in narrow circumstances. See Fed. Rule Civ. Proc. 60.
By contrast, a veteran seeking benefits need not file an initial claim within any fixed period after the alleged onset of disability or separation from service. When a claim is filed, proceedings before the VA are informal and nonadversarial. The VA is charged with the responsibility of assisting veterans in developing evidence that supports their claims, and in evaluating that evidence, the VA must give the veteran the benefit of any doubt. If a veteran is unsuccessful before a regional office, the veteran may obtain de novo review before the Board, and if the veteran loses before the Board, the veteran can obtain further review in the Veterans Court. A Board decision in the veteran’s favor, on the other hand, is final. And even if a veteran is denied benefits after exhausting all avenues of administrative and judicial review, a veteran may reopen a claim simply by presenting “new and material evidence.” Rigid jurisdictional treatment of the 120-day period for filing a notice of appeal in the Veterans Court would clash sharply with this scheme.