Washington lawyer Lisa Blatt, representing Henderson at the high court, argues that Congress wrote the 120-day time limit in a way that allows the Veterans Court judges to make exceptions when they deem it necessary.
"The overarching thrust of the veterans' disability scheme," she tells the justices in her brief, "is decisively pro-veteran. It defies credulity that Congress intended to impose an anti-veteran jurisdictional rule in an otherwise pro-veteran scheme." She says the 2007 high court case, involving a different federal law and different context, should not control the veterans' situation.
In an interview, Blatt added, "This case is important to a significant number of veterans."
The VA and advocacy groups, such as the Paralyzed Veterans of America, estimate that the Veterans Court handles about 5,000 appeals each year of administrative decisions denying vets' benefit requests. Overall, disability claims continue to rise, according to the VA. Last year, 1 million claims were submitted, up from 888,000 in 2008 and 838,000 in 2007.
Justice Department lawyers, representing the VA, say Congress in setting the appeal deadline precluded judges from amending it -- a point they say was reinforced by the Supreme Court's 2007 ruling. Acting U.S. Solicitor General Neal Katyal describes the 120 days as "unusually lengthy" and stresses that the VA system ensures that veterans are told of their appeal rights.
Katyal says judges should not take the matter into their own hands and tells the high court, "The potential for unfair results is a consideration for Congress to take into account in deciding whether to amend the statute."
Newest justice Elena Kagan, who was U.S. solicitor general before her appointment last summer, will be sitting out the case of Henderson v. Shinseki, so only eight justices will hear Henderson's appeal. That raises the possibility of a 4-4 split vote.
If that happens, the lower court decision against Henderson, and other vets, would stand.