FED CIR–TYRUES V. SHINSEKI–GOING DOWN?


This is a wonderful thing. Larry G. Tyrues filed an Appeal with the Court back in 2009. Unfortunately he was a little bit late with the NOA. The Court, as is their wont on all matters tardy, declined to hear it. Larry appealed up to the Fed. Circus and was rewarded, indirectly, by a decision at the SCOTUS (Henderson v. Shinseki) that ruled VA was being too harsh in their interpretation.

Henderson–Fed Cir.

Henderson–SCOTUS

Actually, with the wall that separates the two, the Court has their own set of rules as to jurisdictional jurisprudence timelines. The VBA does too, but their authority extends from 38 USC.

The Court has always held that if you were late- more than 120 sunrises and sunsets- in getting your Notice of Appeal to them, then you were SOL. It’s been that way since the dawn of the Court. SCOTUS turned that notion on its head. Remember all the admonitions we are given about how we inhabit a “veteran friendly” judicial system whose aim is a “non-adversarial venue” to present claims where the benefit of the doubt and other valuable considerations are accorded us? The Supremes decided that meant a little more where we are consigned to sub par legal help (VSOs or pro se) until we lose.

We encounter these time constraints throughout our claims process. Following the inevitable denial, we are given a 12 month window in which to file a NOD. Similarly, when filing our substantive appeals to the BVA (Form 9) following the issuance of the SOC, we are constrained to perform within the 60 day window, submit new and material evidence for de novo review or risk watching the claim die. It follows that the onus of 120 days to accomplish this at the Court would be equally unequivocal.

Dave Henderson got the same treatment when he was 15 days late. He decided to take it up the ladder and got a sympathetic ear up at the Big House. They correctly reasoned that the CAVC is a Article I Court and not an Article III. In addition, they correctly interpreted Congress’ intent as creating what can be politely be described as a “closed system” that protects us as a privileged minority. As such, we are accorded  special dispensations that other citizens are not. The practice of laying  a punji pit in our path vis a vis the timeline constraints serves no purpose other than to punish and penalize Vets for their tardiness. It does nothing to contribute to the orderly progression of VA business. In short, it is an unreasonable obstacle to what is rightfully ours. A stiff, unbending doctrine that has no useful purpose is pointless. SCOTUS recognized that-finally. The DVA, in turn, was shocked to learn that Veterans would consider them to be adversarial or defriend them on Facebook.

Larry is going to be the next recipient of this new largesse after Dave Henderson. I find it interesting that this hasn’t been appealed successfully sooner. What’s even more exciting is the prospect that this may have  trickle-down implications at the BVA and the RO. Why not? Explain to a Vet that his claim is dead one day past a sixty day deadline because “that’s the way it is written”. Where, pray tell, is the non-adversarial, veteran friendly nature in that? What can be gained from it? Who wins and who loses? Is the VA in some way harmed or made to go to greater lengths to accommodate a Vet who files late? Is the Vet cheating the system and his fellow claimants somehow?

We are on the cusp, finally, of being given due process in a Colosseum-like environment. No more will the scoreboard read Lions-5, Christians-0. Without the perspicacity of the Hendersons and  Tyrues of the Veterans world, we’d be up Paddle creek without any bathroom tissue.

Larry does the 3rd Circus

About asknod

VA claims blogger
This entry was posted in Fed. Cir. & Supreme Ct., Veterans Law and tagged , , , , , , , . Bookmark the permalink.

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