The Supreme Court heard oral argument last week in a veterans case, Arellano v. McDonough, 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?”
In other words, the parties argued for and against the application of equitable estoppel to the one-year filing deadline for retroactive veterans benefits. This is our argument recap.
James Barney argued on behalf of Arellano. He began by arguing that the one-year deadline to seek retroactive disability benefits “operates like a statute of limitations by encouraging service-disabled veterans to promptly apply for retroactive benefits or else lose that right forever.” He then argued that “[t]he Irwin presumption in favor of equitable tolling applies to this one-year deadline because it’s a non-jurisdictional claims-processing rule set forth in a statute for which Congress has waived sovereign immunity.” Barney ended his opening statement by addressing the government’s contention that Congress provided equitable exceptions elsewhere in Section 5110, arguing “that only strengthens the Irwin presumption for 5110(b)(1) because, unlike in those other subsections, Congress chose to remain silent for 5110(b)(1), which is exactly what we would expect Congress to do” if it intended to allow veterans to rely on equitable tolling.
As part of her line of questioning, Justice Jackson asked Barney why Section 5110(b)(1) operates as a statute of limitation. She explained that statutes of limitations usually have a “funneling effect,” limiting the plaintiff’s ability to pursue their remedies. The statue here, she stated, is “more like a pyramid” because “what (b) is doing is giving some veterans under some circumstances more rights than they otherwise had.” Barney responded by arguing that “many statutes of limitations are in the form of exceptions to a general rule.” He cited the Supreme Court decision in Young, holding that a particular provision of the bankruptcy code operated like a limited statute of limitations. Barney argued that “5110(b)(1) encourages service-disabled veterans . . . to file that claim promptly within one year,” which “serves the same sort of benefit as this Court pointed out in Young.”
Justice Kagan then pointed out that the statute contains sixteen specific exceptions, but no exception for equitable tolling. Accordingly, she asked, “doesn’t that language indicate that Congress didn’t want a 17th thing?” Barney responded that “the key here is that each one of these benefits is discrete.” He explained that, “for each one of these unique types of benefits, Congress has established a pathway for retroactive claiming that wouldn’t otherwise exist under the general rule, (a)(1).”
Justice Jackson then asked how equitable tolling works as a practical matter. Specifically, she questioned whether the agency is making the equitable decision, even though it is “ordinarily a judicial doctrine.” In response, Barney conceded “it would be decided in the first instance by the agency.” According to Barney, however, “that’s the point of Irwin.” Barney explained that, “when Congress passes non-jurisdictional claims-processing deadlines of the sort we have here . . . merely by the silence of Congress . . . those deadlines are presumed to come prepackaged with equitable power to toll the deadline for good cause.” Moreover, he explained, “the VA actually has a body of law that it’s already developed to make that determination at the agency level.”
Sopan Joshi argued for the government. Joshi began by arguing that “[t]he premise of Irwin is that tolling is justified when Congress speaks in the language of limitations periods because, when it does that, it’s invoking this deep common law tradition and pedigree.” According to Joshi, “if you look at 5110, it just doesn’t look like that’s the language Congress is speaking.”
Justice Alito asked Joshi to address the Edgewood veterans’ amicus brief. In particular, he asked whether equitable tolling would apply in the circumstance where veterans are “being forbidden from disclosing information that’s necessary to substantiate their claims.” Joshi answered in the negative, but contended that “the agency itself has taken a couple of steps to handle cases like that.” Joshi argued, moreover, that, “fundamentally, it’s going to be a question for Congress.”
Justice Sotomayor asked why the one-year deadline doesn’t act as a statute of limitation that may be equitably tolled. She explained that, “[i]f you don’t file within a year, you get no survivors’ benefit,” which, she said, sounds like a “typical statute of limitations drop-dead date.” In response, Joshi argued the “exceptions to the default effective date rule in 5110 simply operate as grace periods, but they don’t determine whether you’re entitled to benefits at all.”
Justices Sotomayor and Gorsuch then sought to summarize Joshi’s argument through a line of questioning. In response, Joshi argued that the Court does not have to reach the question of whether equitable tolling applies to agency deadlines because, here, “all the statutory indica” show that “Congress specifically made clear [that there is] no equitable tolling.” Furthermore, addressing the statutory exceptions, Joshi maintained that they deal “specifically with agency and agency time limits and toll . . . benefits determinations for them.” According to Joshi, the “point here is that Congress has provided for that,” and thus, “judicial tolling would be tolling on tolling.”
Chief Justice Roberts highlighted how the fact that there are 16 statutory exceptions “kind of suggests to me that the insistence upon strict enforcement is really not that important.” He expressed the view that “the plethora of exceptions” in the statute seems to make it “more likely that you ought to stick with the normal rule in the private sector and allow equitable tolling.” In response, Joshi argued “the notion that if Congress gives an inch, we should just assume it gave a mile doesn’t really apply as a sound principle of statutory interpretation here.” He argued that the “emphatic language” indicates that Congress is saying “look, we’re waiving sovereign immunity, but we are building a wall here, so, courts, don’t go beyond what this wall is.”
In wrapping up his argument, Joshi concluded that, “if you look at the structure of this statute, there is no statute of limitations.” He maintained that, “if Congress writes something that doesn’t, you know, walk and quack like a statute of limitations, then Congress is saying we are not implicitly authorizing the judiciary to toll the statute.”
In his rebuttal, Barney clarified that the agency itself can toll the one-year deadline, as opposed to a court reviewing the agency’s action. He maintained that “Congress clearly has the power to extend equitable powers to an agency.” And, he concluded, Irwin allows Congress to extend equitable powers to an agency “implicitly.”
We’ll report more when the Court decides the case.