Yesterday, the Federal Circuit decided Arellano v. McDonough, a case we have been following since the court scheduled an en banc hearing. Split on reasoning but united in outcome, the court issued a short, unanimous, per curiam opinion affirming the Court of Appeals for Veterans Claims. In addition to the per curiam opinion, however, the court issued two concurrences, each representing the opposing views of six judges. Here is our summary of the court’s opinions.
As mentioned, the court issued a short per curiam opinion. It explains that “a unanimous court holds that equitable tolling is not available to afford Mr. Arellano an effective date earlier than the date his application for benefits was received.” In particular, the full court left “in place [its] prior decision, Andrews v. Principi, . . . which held that principles of equitable tolling are not applicable to the time period in 38 U.S.C. § 5110(b)(1).” That statutory provision governs the effective date of an award of disability compensation.
Judge Chen, joined by Chief Judge Moore and Judges Lourie, Prost, Taranto, and Hughes, wrote the first concurrence. The concurrence addressed the applicability of equitable tolling to 38 U.S.C. § 5110(b)(1), which as mentioned governs the effective date of an award of disability compensation. Judge Chen explained that, while the statute generally states that “the ‘effective date of an award’ of disability compensation to a veteran ‘shall not be earlier than the date’ the veteran’s ‘application’ for such compensation is received by the Department of Veterans Affairs (VA),” the provision allows “the effective date of the award [to] date back to ‘the day following the date of the veteran’s discharge or release” if “the VA receives the application within one year of the veteran’s discharge from military service.” Arellano argued that even though he submitted his application for compensation approximately thirty years after he became eligible to receive them, the doctrine of equitable tolling should apply given that he was unable to make the claim due to mental illness.
In his discussion, Judge Chen began by recognizing that the analysis in this case is controlled by Irwin v. Department of Veterans Affairs, a case in which the Supreme Court determined that there was a “rebuttable presumption of equitable tolling for statutes of limitations.” As such, Judge Chen recognized that,
[f]irst, [the Court] must determine whether the rebuttable presumption of equitable tolling applies to the statutory provision at issue. And, if so, [the court] must then determine whether that presumption has been rebutted—or in other words, whether there is ‘good reason to believe that Congress did not want the equitable tolling doctrine to apply’ to the statute.
Judge Chen noted that “Irwin’s presumption applies only to those statutory provisions that Congress clearly would have viewed as statutes of limitations.” As a result, he explained, the “analysis . . . begins by asking whether § 5110(b)(1)’s effective date provision is [a statute of limitations].” Ultimately, Judge Chen determined that the effective date provision is not a statute of limitations.
The judge recognized “two reasons why Congress would not have thought that the provision belongs to that category of laws.”
First, § 5110(b)(1) does not operate to bar a veteran’s claim for benefits for a particular service-connected disability after one year has passed. Instead, like the general rule of § 5110(a)(1), it determined one of many elements of a benefits claim that affects the amount of a veteran’s award but, unlike a statute of limitations, does not eliminate a veteran’s ability to collect benefits for the that very disability. Second, and relatedly, § 5110(b)(1) lacks features standard to the laws recognized as statutes of limitations with presumptive equitable tolling: its one-year period is not triggered by harm from the breach of a legal duty owed by the opposing party, and it does not start the clock on seeking a remedy for that breach from a separate remedial entity. . . . These marked differences undermine any inference that Congress would have viewed § 5110(b)(1) as falling within that category of laws, so as to justify judicial override of Congress’ express statutory limits on benefits payments.
Judge Chen then dismissed the proposition that “some other background principle of law supports applying Irwin’s presumption of equitable tolling to § 5110(b)(1)’s effective-date provision.” Judge Chen reasoned that, “even if Irwin’s presumption were to apply, equitable tolling would nonetheless be unavailable because it is ‘inconsistent with the text of the relevant statute.’” Specifically, Judge Chen stated, “the most natural reading of § 5110 is that Congress implicitly intended to preclude the general availability of equitable tolling by explicitly including a more limited, specific section of equitable circumstances under which a veteran is entitled to an earlier effective date and specifying the temporal extent of the exceptions for those circumstances.”
Lastly, Judge Chen rebutted Judge Dyk’s proposition that “[the Court] may determine the application of equitable tolling in the first instance ‘[w]here the facts are undisputed, [and] all that remains is a legal question, even if that legal question requires the application of the appropriate standard to the facts of a particular case.’”
Judge Dyk, joined by Judges Newman, O’Malley, Reyna, Wallach, and Stoll, issued a separate concurrence ultimately concluding that, although “§ 5110(b)(1) is a statue of limitations subject to equitable tolling [and] that the Irwin presumption of equitable tolling applies,” the provision “cannot be equitably tolled for mental disability in the circumstances of this case.”
Justice Dyk began by recognizing that “[t]he first step [of the Irwin framework] is determining whether the statute is a statute of limitations, in which case the Irwin presumption will apply.” Unlike Judge Chen’s concurrence, however, Judge Dyk concluded that § 5110(b)(1) is a statute of limitations because (1) the definition of a statute of limitation is broad and includes “provision[s] barring benefits for failure to file within a prescribed period . . . regardless of any alleged breach of duty by the government.” Utilizing this definition, Judge Dyk further opined that “[t]he claim for benefits here has two components: (1) a retrospective claim for benefits for past disability, and (2) a prospective claim for future benefits.” As such, he concluded that “§ 5110(b)(1) does impose what is clearly a one-year statute of limitations for retrospective claims—making retrospective benefits unavailable unless the claim is filed within one year after discharge.”
After establishing that § 5110(b)(1) is a statue of limitations, Judge Dyk continued with the Irwin analysis, discussing whether any action from Congress had rebutted Arellano’s right to equitable tolling in this case. Judge Dyk determined that, while “Irwin’s presumption is rebuttable,” here “almost all of the factors [identified by the Supreme Court as determining whether the equitable tolling presumption has been rebutted] signal that there is no general prohibition against equitable tolling.”
Finally, after determining that § 5110(b)(1) is a statute of limitations and that Congress has not rebutted the presumption of equitable tolling, Judge Dyk addressed the relevant facts and determined that Arellano still would not have been entitled to an equitable tolling in this case. In particular, Judge Dyk determined that, even though Arellano was mentally disabled, “[t]here is nothing in the record that justifies the inordinate thirty-year delay in filing the application at issue,” as Arellano had a caretaker who eventually did submit paperwork for benefits.