A Writ of Cirtiorari was filed with the Supreme Court on Oct. 17, 2008. This is a petition to the Supreme Court to review the ruling of the Court of Appeals for the Federal Circuit of May 8 in favor of the VA.
The filing was made by the lawfirm of Paul, Hastings, Janofsky & Walker LLP with assistance from NVLSP
The Supreme Court will review the Haas Case on January 16, 2009
The Statement of the Case reads as follows:
This case presents a question within the Federal
Circuit’s exclusive jurisdiction that has extraordinary
importance for Navy veterans. In the Agent Orange
Act of 1991, as amended, Congress required a finding
of service connection for specified diseases “manifest .
. . in a veteran who, during active military, naval, or
air service, served in the Republic of Vietnam during
the period beginning on January 9, 1962 and ending
on May 7, 1975.” 38 U.S.C. § 1116(a)(1)(A) (emphasis
added). The Federal Circuit, siding with the Department
of Veterans Affairs, has interpreted Section
1116 contrary to its plain language to apply not to all
naval service in the Republic of Vietnam, but only to
service on land or in the inland waterways. The
Federal Circuit has imputed to Congress an intent to
deny statutory protection to more than 800,000 “bluewater”
Navy veterans who served in the Republic’s
territorial seas and coastal waters, even though such
veterans had the highest incidence of the covered
disease non-Hodgkins lymphoma (NHL), and even
though the Act’s sponsors declared that it would
codify an existing NHL regulation that protected
such veterans. Finally, in conflict with Brown v.
Gardner, 513 U.S. 115, 118 (1994), the Federal Circuit
improperly awarded deference under Chevron,
U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984), to the
Department before applying the canon that interpretive
ambiguity in the statute must be resolved in the
veteran’s favor. This Court’s review is imperative.
What Can the Supreme Court Do?
Rule 13. Review on Certiorari: Time for Petitioning
1. Unless otherwise provided by law, a petition for a writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court of last resort or a United States court of appeals (including the United States Court of Appeals for the Armed Forces) is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment. A petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when it is filed with the Clerk within 90 days after entry of the order denying discretionary review.
2. The Clerk will not file any petition for a writ of certiorari that is jurisdictionally out of time. See, e. g., 28 U. S. C. § 2101(c).
3. The time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate (or its equivalent under local practice). But if a petition for rehearing is timely filed in the lower court by any party, or if the lower court appropriately entertains an untimely petition for rehearing or sua sponte considers rehearing, the time to file the petition for a writ of certiorari for all parties
(whether or not they requested rehearing or joined in the petition for rehearing) runs from the date of the denial of rehearing or, if rehearing is granted, the subsequent entry of judgment.
4. A cross-petition for a writ of certiorari is timely when it is filed with the Clerk as provided in paragraphs 1, 3, and
5 of this Rule, or in Rule 12.5. However, a conditional cross petition (which except for Rule 12.5 would be untimely) will not be granted unless another party’s timely petition for a writ of certiorari is granted.
5. For good cause, a Justice may extend the time to file a petition for a writ of certiorari for a period not exceeding 60 days. An application to extend the time to file shall set out the basis for jurisdiction in this Court, identify the judgment sought to be reviewed, include a copy of the opinion and any order respecting rehearing, and set out specific reasons why an extension of time is justified. The application must be filed with the Clerk at least 10 days before the date the petition is due, except in extraordinary circumstances. For the time and manner of presenting the application, see Rules 21, 22, 30, and 33.2. An application to extend the time to file a petition for a writ of certiorari is not favored.
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