Statements On Introduced Bills And Joint Resolutions

Floor Speech

By Mr. SPECTER:

S. 3192. A bill to amend title 38, United States Code, to provide for the tolling of the timing of review for appeals of final decisions of the Board of Veterans' Appeals, and for other purposes; to the Committee on Veterans' Affairs.

Mr. SPECTER. Mr. President, I have sought recognition to urge passage of the bill I have just introduced, the Fair Access to Veterans Benefits Act of 2010. Its main provision would require the United States Court of Appeals for Veterans Claims, known as the Veterans Court, to hear appeals by veterans of administrative decisions denying them benefits when circumstances beyond their control--sometimes the very service-related disabilities that entitle them to benefits--render them unable to meet the deadline for filing an appeal. Let me briefly explain why this legislation is so urgently needed.

Until 1988, veterans denied benefits by the administrative Board of Veterans' Appeals had no right to appeal their cases to any court. Congress responded that year with legislation establishing the Veterans Court. The legislation's purpose was to ``ensure that all veterans are served with compassion, fairness, and efficiency and that each individual veteran receives . . . every benefit and service to which he or she is entitled under law'', S. Rep. 100-418, 110th Cong., 2d Sess. 30-31. Proceedings of the Veterans Court were to be ``informal, efficient, and fair'' rather than ``formalized'', H.R. Rep. No. 100-963, 110th Cong., 2d Sess. 26, 1988. This was important because most veterans handle their own appeals without a lawyer.

Veterans Court has, by and large, served its intended function well. It regularly corrects many erroneous denials of benefits. The court's last-published annual report notes that, in 2008, veterans prevailed in about eighty percent of the appeals.

A recent court decision, however, will close the Veterans Court to too many deserving veterans. I refer to last year's decision of the United States Court of Appeals for the Federal Circuit, which hears appeals from Veterans Court, in Henderson v. Shinseki, 589 F.3d 1201. Mr. Henderson suffered from paranoid schizophrenia as a result of his active-duty service in the Korean War. His appeal of an administrative denial of benefits to the Veterans Court was filed just 15 days late. He asked the Veterans Court to excuse his late filing--in legal parlance, to ``equitably toll'' the filing period--because it was caused by his service-related disability. The Veterans Court refused to do so, and a divided Federal Circuit affirmed its decision. Like the Veterans Court, the Federal Circuit held that this unjust result was compelled by a controversial 2007 decision of the Supreme Court, Bowles v. Russell, 551 U.S. 205, which held that the deadline for filing a notice of appeal from a district court's order is ``jurisdictional'' and hence not waivable. Three judges dissented in Henderson on the ground that Bowles was distinguishable.

Whether or not correctly decided in the wake of Bowles, Henderson cannot stand. It creates, in the words of the three dissenting judges, a ``Kafkaesqe adjudicatory process in which those veterans who are most deserving of service-connected benefits will frequently be those least likely to obtain benefits. It is the veteran who incurs the most devastating service-related injury who will often be least able to comply with rigidly enforced deadlines.'' Even two of the judges in the majority felt constrained to note, in a concurring opinion, ``that the deadline of the existing statute can and does lead to unfairness. This is particularly so in many cases where the veteran is not represented by counsel ..... and/or is suffering from a mental disability. These circumstances can make it extremely difficult for a veteran to navigate the system and meet the statutory deadlines.'' Mr. Henderson's situation is not unique. Already a disturbing number of veterans just like him have been denied their day in court.

The two concurring judges in Henderson called upon Congress to ``amend the statute to provide for a good cause exception. My bill would do just that. It would require the Veterans Court to excuse late filings upon a showing by the veteran of ``good cause.'' This simple amendment will ensure that each year upwards of a hundred of veterans will receive the benefits to which they are so justly entitled.

My bill will also require the Veterans Court to reinstate untimely appeals already dismissed as a result of that court's failure to equitably toll the filing period. The veterans who filed those appeals should also have their day in court.

There are no countervailing policy considerations. As the dissenting judges in Henderson persuasively noted, ``because it takes many years--in some cases several decades--to obtain service-connected benefits, the government is hardly in a position to complain that equitable tolling will result in inordinate delays.''

I urge my colleagues on both sides of the aisle, whatever their views on the issue addressed in Bowles, to support our veterans by passing my bill without delay.

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