Dissent Calls Majority Opinion “Indefensible”, Creating A “Kafkaeque Adjudicatory Process” Preventing Disabled Veterans From Getting Benefits

David L. Henderson joined the military in 1950, and was discharged while on active duty in 1952 after being diagnosed with paranoid schizophrenia. He was awarded service-connected compensation with a 100% disability rating.

In 2001, Henderson applied to a Department of Veterans Affairs (VA) regional office for special monthly compensation for in-home care related to his service-connected mental health disability. After the VA regional office denied Henderson’s claim, he sought review by the Board of Veterans Appeals (the “Board”). In 2004, the Board issued a final decision, denying Henderson’s claim. 135 days after the Board mailed its decision, Henderson commenced a pro se action in the Court of Appeals for Veterans Claims “Veterans Court”). The Veterans Court ordered Henderson to show cause why his case should not be dismissed for failure to comply with the 120-day time limit set forth in federal law. Henderson asked the Veterans Court to excuse his late filing because it resulted from the very disability for which he sought benefits—his paranoid schizophrenia which rendered him incapable of rational thought.

In 2006, the Veterans Court dismissed Henderson’s case. Although it found that Henderson’s “mental illness and medical impairments rendered him incapable of rational thought or deliberate decision making and unable to handle his own affairs or function in society,” the court nonetheless refused to equitably toll the 120-day time limit on the ground that Henderson did not show that his medical condition directly caused the delay. The Veterans Court granted Henderson’s motion for reconsideration.

In 2008, a divided panel of the Veterans Court dismissed Henderson’s case for lack of jurisdiction, concluding that under that the 120-day time limit was a jurisdictional deadline and thus not subject to equitable tolling. Thereafter, the Court of Appeals for the Federal Circuit (“Federal Circuit”) ordered a rehearing by the entire court. Unfortunately, in 2009, a divided court affirmed the dismissal of Henderson’s Veterans Court action for lack of jurisdiction.

The dissenting opinion was particularly vigorous. The dissent explained that:

[T]he majority’s eradication of equitable tolling creates a Kafkaesque adjudicatory process in which those veterans who are most deserving of service-connected benefits will frequently be those least likely to obtain them. [In other words,] the veteran who incurs the most devastating service-connected injury . . . will be both ‘out of luck and out of court,’ since failure to comply with the 120-day deadline prescribed in [the federal law] means that he forfeits all right to judicial review of his claim.

On Feb. 25, 2010, Henderson  filed a petition to have the U.S. Supreme Court review the Federal Circuit’s decision.

The Federal Circuit’s decision can be found here – Henderson v. Shinseki

Henderson’s Petition to the Supreme Court can be found here – Henderson Supreme Court Petition

Recently, an article was published in the NY Times commenting on the effect which the Henderson decision was having on pending VA compensation claims: “These days, [the Federal Circuit court] … is dismissing about two cases a week under the new, rigid deadline” … even though “[t]he government is hardly in a position to complain that equitable tolling will result in inordinate delays” since “[i]t often takes many years — in some cases several decades — to obtain service-connected benefits.”

UPDATED ON MARCH 1, 2011: This morning, the Supreme Court ruled 8-0 in favor of plaintiff , David L. Henderson in Henderson v. Shinseki. The Supreme Court’s opinion is attached here: Henderson v. Shinseki, US Supreme Court Opinion

The Court held that, in the context of the Veterans’ Judicial Review Act, the 120-day deadline is not a “jurisdictional” rule. As a result, the deadline is subject to equitable tolling in the interests of justice.