Henderson Case Argued Before US Supreme Court

On Monday, December 6, 2010, the case of Henderson v. Shinseki, was argued before the United States Supreme Court. The case involves the late David Henderson, who appealed the denial of his claim for funds to pay for in-home care related to his “service connected” schizophrenia. Mr. Henderson, who had 120 days to file a notice of appeal to an appeals court, filed it 15 days too late. The issue before the Court of Appeals was whether the 120 day deadline to file a notice of appeal should be applicable to Veterans whose very disabilities for which they seek services, can prevent them from appreciating and observing a deadline. During the argument, Justice Scalia indicated that 120 days was “a lot of time”, however, fellow Justice Sotomayor asked Henderson’s counsel to suggest a separate rule for Veterans’ cases. Justice Breyer asked the government lawyer if he thought Congress would have intended to let big businesses extend their appeal because of excusable neglect, but not a wounded veteran with schizophrenia who has never had a day in court? In Henderson’s case, his claims had been denied at the Regional Office and Board of Veteran’s Appeals levels which are administrative agencies and not courts of law. Thus, Mr. Henderson’s late notice of appeal was being made to the CAVC, the first court of law to even consider his claim. Unfortunately, although the CAVC agreed to hear the case, its decision was overturned in the Federal Circuit after the Government appealed. The matter finally reached the US Supreme Court and was argued on December 6, 2010, woefully late for Mr. Henderson who passed away in October. Although, typically, a claim “dies with a veteran”, this claim continued because Mr. Henderson was survived by his spouse. Otherwise, upon the death of Mr. Henderson, the case would have been dismissed and these issues would not have been considered by the Court.

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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.

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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