Several years ago, I wrote a legal brief with a retired Navy officer who was a private attorney in a small law firm in Pennsylvania. As an active retired officer, this particular attorney frequently accepted pro bono U.S. Navy cases representing veterans in Federal District Court against the Bureau of Veteran’s Affairs (BVA).
One summer day, the attorney admitted that he was frustrated with a new case in which a Korean War veteran had been denied retroactive health benefits by the BVA. The veteran had evidently failed to understand the legal forms that the BVA had provided him and so his request for an appeal of the BVA’s decision denying those retroactive benefits had been deemed untimely; the appeal period had passed. I was deeply interested in this case, and I offered to help him with the research and writing the brief to be submitted in federal court.
In researching the law, I realized that the legal administrative tests, cases, and terminology all took a back seat to one particularly glaring issue which I noticed on the forms. Just how was a veteran, who at this point was over 65 years of age, supposed to understand the legal difference between “shall” and “may?” In other words, how was he expected to understand that “shall” was not a word signifying that something was optional, but was actually one which signified something mandatory?
In this instance, if he did not read, understand, or respond to the “notice of right to appeal” section of the benefits form (which, by the way, was at the very bottom of the form), then his rights to appeal the BVA’s decision “shall” expire, which meant that his non-response ultimately closed out his case. But in other portions of the form, the permissive word “may” had been used in various paragraphs. So, he had interpreted the notice section to also mean the optional “may” and his request to appeal was therefore untimely, according to the BVA. Thus began my entry into the world of obscure government forms with conflicting language and even more obscure government personnel.
Times have changed since then, and I am now a library student learning about the current changes in government documents as I prepare to enter the world of document librarianship. Government agencies are moving towards the “e-government” trend, whereby, among other things, the online accessibility to forms and assistance are, ostensibly, much greater. But I am left to wonder whether the agencies’ forms, in these times of “googling” and “tweeting” and “friending” and mobile, on-the-go information access, have changed in substance.
Even if the delivery method has changed, will the user, many of whom are also library patrons, be able to navigate these forms and their implications? Or will the “plain English” movement, which permeated some aspects of the real estate (including various state broker contract forms), bankruptcy (see here and here), and securities industries, finally cause changes in more and more of the various government agencies’ forms as well?
Incidentally, we won the BVA case, whereby the BVA opted to settle in lieu of changing their forms, and our client received his retroactive benefits – in full.
Johanna Blakely-Bourgeois, Pratt SILS
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