On Tuesday, the Supreme Court will hear oral arguments in Arellano v. McDonough, a case raising questions about equitable tolling of a one-year filing deadline for retroactive veterans benefits. Under 38 U.S.C. § 5110(b)(1), “[t]he 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.” Although the Supreme Court held in Irwin v. Dep’t of Veterans Affairs that “the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States,” in this case the Federal Circuit held 6-6 that veterans are precluded from pursuing equitable tolling of § 5110(b)(1)’s one-year deadline. The Supreme Court granted review to consider the following questions:
- “Does Irwin’s rebuttable presumption of equitable tolling apply to the one-year statutory deadline in 38 U.S.C. § 5110(b)(1) for seeking retroactive disability benefits, and, if so, has the Government rebutted that presumption?”
- “If 38 U.S.C. § 5110(b)(1) is amenable to equitable tolling, should this case be remanded so the agency can consider the particular facts and circumstances in the first instance?”
This is our argument preview.
In its opening merits brief, Arellano makes three arguments. First, he argues why the one-year deadline of § 5110(b)(1) is presumptively amenable to equitable tolling. Second, he argues why the Government bears the burden of rebutting the Irwin presumption. Third, he argues why depriving veterans of equitable tolling of § 5110(b)(1) is inconsistent with the pro-veterans nature of the veteran’s benefit system.
Arellano’s first argument centers on the assertion that, because § 5110(b)(1) functions as a statute of limitations, it is amenable to equitable tolling. Arellano contends that “the appropriate inquiry under Irwin” is “whether the provision is sufficiently similar to other claim-processing rules, such as statutes of limitations, . . . that have traditionally been deemed amenable to equitable tolling in ‘private suits.’” He argues that § 5110(b)(1) functions as a statute of limitations because it “‘prescribes a period within which certain rights’—namely, a service-disabled veteran’s right to claim retroactive disability benefits—’may be enforced.’” Arellano, however, maintains that, “to the extent any doubt exists, it should be resolved in favor of veterans.”
Arellano then transitions to argue that the Government cannot rebut the Irwin presumption of equitable tolling. To support this argument, Arellano addresses why none of the avenues the Government could take to overcome the Irwin presumption is applicable. First, Arellano maintains that “the nonjurisdictional nature of § 5110(b)(1) . . . place[s] a burden on the Government to show that Congress clearly intended to preclude equitable tolling from applying.” Next, Arellano argues that the text of § 5110(b)(1) does not rebut the presumption. He maintains that, “[a]s this Court has held, many limitations periods are framed in language far more emphatic and mandatory than § 5110(a)(1), yet they have nevertheless been found to be nonjurisdictional and subject to equitable tolling.” Arellano then turns to the legislative history. He maintains that “Congress’s silence and inaction . . . should not be taken as an imprimatur of approval for any particular interpretation.”
Finally, Arellano argues that preventing veterans from seeking equitable tolling of § 5110(b)(1) is inconsistent with the pro-veteran benefits system. According to Arellano:
The effect of the Federal Circuit’s deadlocked decision below is to leave in place [a] rigid rule barring all disabled veterans under all circumstances from seeking to equitably toll the one-year deadline of § 5110(b)(1). Unless this outcome is overturned, [that rigid rule] will continue to tie the hands of the Veterans Court, preventing it from even considering extenuating circumstances that, if presented in a private litigation, might have the power to persuade a court to equitably toll deadlines similar to § 5110(b)(1) in order to prevent manifest injustice.
In its response on the merits, the Government argues two main points—equitable tolling does not apply to the one-year period in § 5110(b)(1) and even if it did in some circumstances, Arellano is not entitled to tolling here. Directly contrary to Arellano’s assertions, the Government claims that
[t]he one-year grace period in Section 5110(b)(1) is not a statute of limitations to which the presumption would apply. It performs none of the traditional functions of a limitations period, such as fixing the period of time within which a claimant must bring an action or embodying a policy of repose. Indeed, there is no statute of limitations for bringing a claim for service-connected disability compensation. Instead, the one-year grace period in Section 5110(b)(1) is one factor the VA considers in determining the amount of benefits the veteran may receive. Traditional statutes of limitations do not operate in that manner.
In support, the Government cites to the Supreme Court case Lozano v. Montoya Alvarez. The Government asserts that “Lozano could not have been clearer” that this Court “only applied [the equitable tolling] presumption to statutes of limitations.” Additionally, the Government argues, if equitable tolling were applicable, it would “require the VA itself to apply tolling . . . but the statutory scheme indicates that Congress did not intend to grant the agency that authority.”
The Government then transitions to one of its alternative arguments—that even if the one-year period were viewed as a statute of limitations, the statutory text and context would rebut any presumption of equitable tolling. According to the Government, the “language [of Section 5110] indicates that Congress’s authority to fashion exceptions to the default rule is exclusive” and the “written exceptions, including the one in Subsection (b)(1), must be applied according to their specific terms.” It contends that “[t]hose feature are incompatible with equitable tolling.” The Government also maintains that “[t]he VA has long construed Section 5110 to preclude equitable tolling, and the Federal Circuit likewise has repeatedly adhered to that view.” It argues, moreover, that Arellano’s reliance on the pro-veteran canon is “misplaced.” It asserts that the canon is “only to resolve interpretive doubt created by ambiguous statutory text.” And, says the Governement, “Section 5110(b)(1) creates no interpretive doubt.”
Finally, the Government argues that even if equitable tolling of § 5110(b)(1) were available in some circumstances, Arellano is not entitled to it here. The Government contends Arellano “does not allege that he diligently pursued any remedies” or that he “was tricked or misled into not filing an application within the year following his discharge.” In particular, the Government contends, Arellano’s “only allegation in support of equitable tolling is that his total disability prevented him from filing a claim before 2011,” but that possibility is specifically addressed in a different subsection of the statute.
In his reply brief on the merits, Arellano confronts the Government’s contention that the Supreme Court applies the presumption of equitable tolling only to statutes of limitations. Arellano argues that, in Lozano, “the Court was employing a functional understanding of what constitutes a statute of limitations, rather than a formulaic or dictionary definition.” Arellano further contends that § 5110(b)(1) functions as a statute of limitations, contrary to the Government’s assertion, because “a veteran who misses § 5110(b)(1)’s one-year deadline for seeking retroactive disability benefits forfeits the ability to do so later, and is left only with the prospective relief provided by § 5110(a)(1).”
Next, Arellano argues that the pro-veteran canon is applicable because there is a dispute over statutory interpretation in this case. He maintains that “Irwin’s equitable-tolling analysis turns on statutory interpretation because it was founded on a ‘realistic assessment of legislative intent.’” Arellano, moreover, notes that the Federal Circuit’s split decision indicates that § 5110(b)(1) could not have presented “no interpretive doubt.”
Arellano then turns to the Government’s rejection of equitable tolling based on the text of the statute and its context. Arellano argues there are “zero express exceptions to § 5110(b)(1)’s one-year clock,” which “alone is fatal to [the Government’s] argument.” Arellano further argues that equitable tolling would not be a “superfluous grant” of authority from Congress to the VA. Arellano contends that “the VA is authorized by regulation to forgive, for ‘good cause,’ a failure to comply with a ‘[t]ime limit within which claimants or beneficiaries are required to act to perfect a claim or challenge an adverse VA decision.’”
Interested parties have submitted numerous amicus briefs to present their perspectives and arguments on the issues in this case. Notably, all of the amici urge the Court to allow veterans to seek equitable tolling of the one-year limitation of § 5110(b)(1).
- Disabled American Veterans (DAV) and Lee Kirby jointly submitted an amicus brief arguing that “the Federal Circuit’s ruling is antithetical to Congress’s emphasis on fairness and the appearance of fairness in VA claims adjudication.” According to the brief, “the one-year limitation period in 38 U.S.C. § 5110(b)(1) [should] be subject to equitable tolling.” Thus, DAV and Kirby urge the Court to reverse the Federal Circuit holding, which foreclosed petitioner’s claim for retroactive veterans benefits.
- The Constitutional Accountability Center (CAC) filed an amicus brief arguing that the Federal Circuit’s decision to preclude equitable tolling was “wholly disconnected from the history of and traditional justifications for equitable tolling, as well as this Court’s precedents.” Thus, the CAC urges, “[c]onsistent with the long history of equitable tolling, and this Court’s decisions holding that tolling is presumptively available to all ‘statutory time limits’, . . . this Court should conclude that equitable tolling is available here.”
- In the amicus brief submitted by the Federal Circuit Bar Association (FCBA), an argument is made that the “rebuttable presumption of equitable tolling” should apply to the one-year deadline in 38 U.S.C. § 5110(b)(1). According to the brief, the provision “governs a veteran’s claims for statutory benefits for a service-connected disability that, by its very nature, may not present itself until well beyond the one-year period required for the filing of a claim, or may itself impair a veteran’s ability to file a claim within that timeframe.” In addition, the FCBA maintains that “applying for benefits unassisted by counsel may impede a veteran’s ability to file a timely claim.”
- An amicus brief was also filed jointly by six national interest groups: Edgewood Veterans, National Veterans Legal Services Program (NVLSP), National Organization of Veterans’ Advocates (NOVA), Paralyzed Veterans of America (PVA), AARP, and AARP Foundation. In submitting this amicus brief, the organizations contend that many disabled veterans “remain unable to receive the benefits Congress appropriated for them because the Federal Circuit precludes equitable tolling for veterans.” Moreover, the organizations argue, “[t]his Court has been clear that Congress designed the veterans’ benefits scheme to be friendly and deferential to veterans.” Accordingly, the organizations urge the Court to reverse the Federal Circuit’s holding.
- The Military-Veterans Advocacy Inc. (MVA) and Jewish War Veterans of the United States of America, Inc. (JWV) jointly submitted an amicus brief in support of the petitioner. Accordingly to the brief, when recognizing “Congress’s intent to make equitable tolling available, the vast benefits to vulnerable veterans, the absence of significant problems for VA’s operation, and the system’s pro-veteran disposition, there is no way to justify the Federal Circuit’s categorical bar on tolling § 5110(b)(1)’s time period.” The brief further urges that this “categorical prohibition is both unsupported as a legal matter and deeply harmful to the veteran community.”
- The National Law School Veterans Clinic Consortium filed an amicus brief arguing that “[f]oreclosing equitable tolling of a statutory time limitation in the veterans’ benefits system would be illogical.” According to the brief, courts “should be allowed to consider whether, given a particular veteran’s circumstances during that year, it would be unfair to apply the statutory time limitation.”
We will continue to follow this case. After Tuesdays’s argument, we will post an argument recap. As always, you can find all of the relevant documents and all of our coverage of the case on our “Supreme Court Cases” page.