Finkelstein & Partners, LLP, prepares Amicus Brief to U.S. Supreme Court, on issue of Equitable Tolling and the Veteran’s Claim

Finkelstein & Partners, L.L.P.,  was asked to prepare an Amicus Brief for the U.S. Supreme Court by N.O.V.A.,  Veterans for Common Sense,  and by the Federal Bar Association, Veterans Law Section,   Finkelstein & Partners attorneys, Andrew G. Finkelstein, George A. Kohl, 2nd, Nancy Y. Morgan & Duncan W. Clark prepared the first draft, and then, through a collaboration with the other organizations, submitted a final product that clearly included the interests of our nation’s veterans.  The brief argues that the deadlines in the application and appeal process for Veterans should be subject to equitable tolling. The brief was prompted after a Veteran filed a petition for certiorari with the U.S. Supreme Court on February 24, 2010, after the dismissal of his appeal was upheld by the US Court of Appeals for the Federal Circuit.  In the case of Henderson v. Shinseki, 589 F.3d 1201, the Veteran had appealed the denial of his claim from the Board of Veteran’s Appeals (B.V.A.) to the Court of Appeals for Veteran’s Claims. (C.A.V.C.).  38 U.S.C.S. sec. 7266 provides that a notice of appeal from a denial by the B.V.A. must be filed with the C.A.V.C. within 120 days of the denial.  In Henderson, the Veteran filed his notice of appeal fifteen (15) days after the 120 day deadline had passed. Mr. Henderson suffers from a service connected mental illness which has rendered him 100% disabled.  The C.A.V.C. dismissed the appeal asserting that it did not have jurisdiction to hear the matter because the dictates of 38 U.S.C.S. sec. 7266 were not adhered to.  Mr. Henderson appealed to the U.S. Court of Appeals for the Federal Circuit which upheld the decision.  The Court followed recent precedent set forth by the U.S. Supreme Court in Bowles v. Russell, 551 U.S. 205,  which held that a time of review statute in a civil case is mandatory and jurisdictional unless Congress provides otherwise and, as such, cannot be subject to equitable tolling.  In so doing, the court reversed its prior decisions in Bailey v. West, 160 F3d 1360 and Jaquay v. Principi 304 F2d 1276, in which equitable tolling was applied. The court acknowledged that although Congress has expressed special solicitude for the Veteran’s cause, courts do not have free reign to establish special procedural schemes  governing the Veteran’s system alone. It is argued in the Amicus Brief that the denial of equitable tolling will result in the denial of VA benefits to thousands of our nation’s most deserving an most impaired veterans, many of whom are suffering from symptoms that prevent them from filing timely appeals.  In addition, it is argued that the decision is legally incorrect and conflicts with decisions in other circuits which have permitted equitable tolling in similar circumstances.   We await the decision as to whether the U.S. Supreme Court will hear the Henderson case. To view a copy of the amicus brief written by Finkelstein & Partners, click here:  23180 pdf Kohl

Dear Friends and Clients,

In furtherance of our firm’s culture of commitment to always act with compassion, concern and commitment to our clients, community and colleagues, we have been taking precautions to ensure that we are still fulfilling our ethical and moral obligations while prioritizing health, wellness and safety of all we can.

As you know, the COVID-19 pandemic has introduced changes to many lives and businesses in our communities, and around the world. We, much like our neighbors and friends, have been taking precautions to ensure that we are still fulfilling our ethical and moral obligation to our clients, while also prioritizing the health, wellness and safety of our employees.

Until further notice, our offices will be closed to the public to encourage social distancing and to help prevent the spread of COVID-19. Our team is still hard at work, many from home, and you may still call, email, live chat or video conference us if you or a loved one is seeking legal assistance. As the first law firm to offer our clients secure online access to their case file more than a decade ago, we have always been believers in using technology to make life easier and information more accessible. In these present times it has been a smooth transition for us to continue to offer our clients the same seamless and thorough service that you deserve and are accustomed to.

This pandemic is unlike anything any of us have faced in our lifetimes, and while we can continue to emotionally support one another through it all, staying home and keeping your distance is vital to the health and wellness of our communities. It does not feel good to break routines, cancel events and retreat from our normal, day-to-day socializing, but let us remember that, in times of strife, prior generations were asked to go to war and we are simply being asked to stay home. Your isolation equals more lives saved, and more time for medical providers to prepare for the treatment of patients battling COVID-19.

When the dust settles, we will join together with a greater appreciation for our lives, local businesses, loved ones and health. Until then, we will continue to offer guidance from a safe distance.

Very truly yours,

Andrew G. Finkelstein and the staff of Finkelstein & Partners, LLP