washingtonpost.com
Justices juggle sympathy, past vote

By Robert Barnes
Washington Post Staff Writer
Tuesday, December 7, 2010; A03

The Supreme Court's sympathies collided with its precedent Monday.

The "poor fellow," in the words of Justice Antonin Scalia, at the center of Monday's case was the late David Henderson, who came back from the Korean War and was found 100 percent disabled with paranoid schizophrenia.

A special court set up to deal with the problems of veterans said it could not hear his appeal of a denial of benefits from the Department of Veterans Affairs because he filed 15 days too late. His widow, Doretha Henderson, has taken up his case, and his attorney at the Supreme Court said the problems for which he sought help caused him to miss the deadline.

To rule against Henderson, Washington lawyer Lisa S. Blatt told the court, would be to to say: "If your very disability prevents you from filing or you have been abused by the VA bureaucracy, you were out of luck and out of court."

But in order to help Henderson, the court might have to abandon a decision it made just three years ago about a less sympathetic character. In 2007, a slim majority said Keith Bowles, a convicted murderer, could not pursue his appeal because he had filed it two days late. Bowles had met a deadline set by the judge in the case, but the judge had misinterpreted the limit set by Congress for such appeals.

Five members of the court told Bowles there was nothing they could do, although the four liberal justices signed a dissent saying it was "intolerable for the judicial system to treat people this way."

Nonetheless, one of the dissenters, Justice Ruth Bader Ginsburg, told Blatt that she had "a substantial hurdle to contend with in this court's decision in Bowles v. Russell."

Blatt said one distinction the court could make - which Ginsburg seemed to embrace - is that her client was appealing a federal agency's decision to the courts, whereas Bowles was represented by counsel and was appealing one court's decision to a higher court.

Even attorneys for the federal government, who opposed reopening Henderson's appeal, agreed that the veterans court was established by Congress to help veterans making claims. It grants more than 80 percent of the appeals it hears from veterans seeking benefits. But Assistant Solicitor General Eric D. Miller said it was not the court's prerogative to create exceptions to the deadline.

Justice Stephen G. Breyer, another member of the Bowles minority, said Henderson's case was a perfect example of Congress expecting the court to find a way to carry out its intentions, even if poorly worded.

For instance, he said, judges have leeway to grant extensions in litigation between corporations when they find good reason.

"But if you have someone who served his country and was wounded and has post-traumatic stress syndrome or schizophrenia, to that person, you say - who has never had a day in court: 'If you don't meet the deadline, you're out, no matter how excusable it is,' Breyer said. "Who in Congress would have likely thought such a thing?"

Scalia said the justices' job was to read the statute as it is written, not to try to decide "whether Congress could have been so mean." He suggested that there was nothing that would keep Congress from changing the law, even retroactively.

The case is Henderson v. Shinseki.

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