Argument Preview / En Banc Activity

Next week, in an en banc session of the court, the Federal Circuit will hear arguments in Arellano v. Wilkie. In this veterans case, the court will consider the availability of equitable tolling in the context of disability benefits based on applications filed within one year from the date of the veteran’s discharge or release. In particular, the court will consider three related questions: (1) whether a presumption in favor of equitable tolling applies to 38 U.S.C. § 5110(b)(1), which relates to disability benefits; (2) if a presumption did apply, whether it would be rebutted by evidence that Congress did not intend an implicit exception for equitable tolling to be read into 38 U.S.C. § 5110; and (3) if the court were to hold that a presumption applies to section 5110(b)(1), whether that holding would result in the application of the same presumption to other provisions of 38 U.S.C. § 5110. This is our argument preview.

Arellano explains in his supplemental brief on rehearing en banc that this case boils down to “a simple but important question: can the one-year filing period of § 5110(b)(1) be equitably tolled for good cause?” According to Arellano, under § 5110(b)(1), “‘the effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release.‘” But Arellano argues that, “[o]n the other hand, if a disability claim is not filed within this one-year period, the effective date of any award ‘shall not be earlier than the date of receipt of application therefor.'”

Arellano explains that he suffers from “a severe schizoaffective disorder,” which VA found to be connected with an effective date of June 3, 2011. Arellano contends that he is entitled to an earlier effective date, though, and that his “mental disorder prevented him from timely filing an application for disability within one year of discharge from the U.S. Navy.” In this regard, Arellano argued below that these facts showed “that the one-year filing period of § 5110(b)(1) should be equitably tolled based on exceptional circumstances.” Arellano urges the court to reverse the “Veterans Court’s holding that equitable tolling is categorically unavailable for the filing deadline of § 5110(b)(1) under any circumstances.” Moreover, Arellano argues the court should take the opportunity, “while sitting en banc, to overrule or clarify Andrews [v. Principi] to make clear that it does not categorically preclude the application of equitable tolling to § 5110(b)(1).”

The government asserts in its supplemental response brief on rehearing en banc that “[n]o presumption in favor of equitable tolling applies to 38 U.S.C. § 5110(b)(1).” According to the government, “[p]ursuant to [Irwin v. Department of Veterans Affairs], courts are to presume, absent evidence of contrary congressional intent, that a Federal statute of limitations is amenable to equitable tolling, even if that limitations statute is invoked for the protection of the interests of the United States as a defendant.” The government explains that § 5110(b)(1), however, “does not function as a statute of limitations, and so does not fall within the ambit of that presumption.” Instead, according to the government, it “operates as a rule of decision on the merits of a successful claim for benefits.”

The government contends, moreover, that “[i]f this Court were to hold that a presumption in favor of equitable tolling applies to section 5110(b)(1), it would expand the reach of that presumption in an unprecedented manner.” According to the government, “[r]egardless of the applicability of the presumption in favor of equitable tolling, the result in this matter should be the same.” Therefore, the government argues the “decision of the Veterans Court in this matter should . . . be affirmed.”

In his supplemental reply brief on rehearing en banc, Arellano responds that the government “has failed to show why Irwin’s rebuttable presumption in favor of equitable tolling should not apply to the one-year filing deadline set forth in 38 U.S.C. § 5110(b)(1).” Arellano argues, however, even if the Irwin presumption is limited to statutes of limitations, “the Supreme Court has made clear that timing provisions like § 5110(b)(1) that function as statutes of limitations are subject to the Irwin presumption.” Finally, Arellano contends that the government cannot “rebut Irwin by arguing that the statutory language of § 5110(a)(1) ‘expressly prohibits’ the application of equitable tolling throughout § 5110.” In particular, Arellano asserts, the government cannot rebut Irwin because (1) the government “has already conceded that § 5110 is not jurisdictional” and (2) “nothing in § 5110 can be used to toll §5110(b)(1).”

Three amicus briefs were filed, all in support of Arellano. In the first amicus brief, Paul Wright, a disabled veteran who filed his amicus brief pro se, argues “[t]he standard in [38 U.S.C. §] 503(a) is very clear: veterans are entitled to equitable relief in the event of any ‘administrative error on the part of the Federal Government or any of its employees.’” In the second amicus brief, the National Veterans Legal Services Program and the National Organizations of Veterans’ Advocates urge the court “to revisit Andrews and prevent this ongoing injustice to veterans and their caregivers.” In the third amicus brief, the National Law School Veterans Clinic Consortium contends that, “in veterans’ benefits cases, the stringent standard for allowing equitable tolling . . . assuages any concerns that . . . authorizing equitable tolling of 38 U.S.C. § 5110 will open the floodgates to claimants.”

Oral arguments will be heard next week on Thursday, February 4. We will keep track of this case and report on any developments.