[Congressional Record Volume 156, Number 50 (Monday, April 12, 2010)]
[Senate]
[Pages S2209-S2210]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      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

[[Page S2210]]

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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