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.
Mr. Finkelstein is the Managing Partner of Finkelstein & Partners, LLP. He has become a noted consumer activist through his representation of injured individuals against corporate wrongdoers and irresponsible parties.
An accomplished litigator, Mr. Finkelstein has represented Plaintiffs in wrongful death and catastrophic personal injury cases. He has successfully handled dozens of multi-million dollar cases.