[00:00:00] Speaker 02:
I now call the final case for argument this morning, 20-1073, Arello versus Wilkie.

[00:00:07] Speaker 02:
Mr. Barney, whenever you're ready.

[00:00:10] Speaker 00:
Good morning, Your Honors.

[00:00:11] Speaker 00:
May it please the Court?

[00:00:12] Speaker 00:
The question in this appeal is whether the one-year filing provision in Section 5110B1 of the veteran statute is amenable to equitable tolling.

[00:00:21] Speaker 00:
We think the answer to this question largely depends on whether the Irwin presumption applies, because we don't believe the government can rebut the Irwin presumption if it applies.

[00:00:30] Speaker 00:
So I'd like to begin with that question.

[00:00:33] Speaker 02:
I appreciate that.

[00:00:34] Speaker 02:
But can I ask you to begin a little earlier than that, which is the question of whether or not our precedent in Andrews and maybe one or two other cases would require that even if we agree to you, with you on the substance,

[00:00:50] Speaker 02:
this court would have to take this issue on monk.

[00:00:54] Speaker 00:
Yes, Your Honor, I'd be happy to do that.

[00:00:56] Speaker 00:
I'll start with Andrews and then, of course, I'll address any other case that you would like me to.

[00:01:01] Speaker 00:
We do not believe Andrews needs to be reversed in order to reach the outcome that we are urging here.

[00:01:12] Speaker 00:
In Andrews, the court held only that principles of equitable tolling, quote, as claimed by Andrews, close quote,

[00:01:20] Speaker 00:
are not applicable to 5110B1.

[00:01:23] Speaker 00:
And Andrews' argument in that appeal was limited to the VA's failure to notify her about the one-year deadline.

[00:01:30] Speaker 00:
And this court held that that type of argument, which is based on the VA's duty to assist, is not available as a basis for equitable tolling.

[00:01:40] Speaker 02:
But that is not... I appreciate that one phrase that you picked out of that paragraph.

[00:01:46] Speaker 02:
But it's a long paragraph.

[00:01:48] Speaker 02:
that goes on to, I think, at least arguably suggest that the ruling was not, it was a ruling with regard to 5110 and equitable tolling, 5110B1, and not just as it would apply in this case.

[00:02:07] Speaker 02:
That's the way the Court of Veterans Claims has read it, correct?

[00:02:12] Speaker 02:
That's correct, Your Honor, and the Court of- That's the way in our court, notwithstanding

[00:02:18] Speaker 02:
our esteemed colleague Judge Newman, who's on the phone with us now, concurrent, calling out her reading that it was more limited.

[00:02:27] Speaker 02:
Nothing in that any court opinion has suggested that it would be cast, right?

[00:02:34] Speaker 00:
I think that's fair, Your Honor.

[00:02:37] Speaker 01:
Okay.

[00:02:37] Speaker 01:
So what I think that that's probably the biggest issue with it, even if we would agree with Judge Newman that that Andrews is not as

[00:02:48] Speaker 01:
shouldn't be interpreted as broadly as you think it should.

[00:02:52] Speaker 01:
How do we get around the, you know, categorical statement in Butler?

[00:02:57] Speaker 00:
Well, if I could, I'm going to try to answer your question by just referring back to Andrews, but if I missed the mark, please let me know, Your Honor.

[00:03:04] Speaker 00:
Okay.

[00:03:05] Speaker 00:
What the CABC really relied on here in Andrews was not the portion that Judge Post was just referring to.

[00:03:11] Speaker 00:
It was actually the discussion in the later part of the decision

[00:03:16] Speaker 00:
that distinguish 5110B from a true statute of limitations.

[00:03:21] Speaker 00:
And for that, that seemed to be the basis for, to the extent that Andrews has been read more broadly to be a more encompassing holding, that portion of the holding I think has been abrogated by Supreme Court precedent.

[00:03:38] Speaker 00:
I think that portion of the holding has now been abrogated

[00:03:43] Speaker 00:
by Henderson, which made clear that the distinction between a statute of limitations or some other type of timing provision is not the deciding factor under Irwin.

[00:03:54] Speaker 00:
Instead, you have to go back to the statute itself and determine congressional intent, which is the Irwin analysis.

[00:04:04] Speaker 02:
Here's my problem with what you're saying.

[00:04:06] Speaker 02:
I understand what you're saying.

[00:04:07] Speaker 02:
I appreciate and I respect what you're saying.

[00:04:09] Speaker 02:
But the question is really whether there's enough clarity on this particular point in Henderson.

[00:04:17] Speaker 02:
I mean, you can call, you're calling our stuff, Dicta.

[00:04:19] Speaker 02:
Well, I mean, Henderson dealt with, I mean, they say we decide whether the procedural rule is jurisdictional.

[00:04:26] Speaker 02:
They're talking about Article III courts versus Article I tribunals and the adjudication and judicial review scheme.

[00:04:35] Speaker 02:
I don't think you're previously pointing out that subsequent Supreme Court precedent might affect or influence our analysis of this question.

[00:04:47] Speaker 02:
The question is, what do you have that's most directly on point, that would directly advocate, in other words, Judge O'Malley's question, whether or not the court at a minimum would have to take this question on board?

[00:05:01] Speaker 00:
Your honor, I probably won't be able to improve on what I've already said, other than I believe that under Irwin, in order for this court to actually reach a conclusion that a timing provision in the veteran statute is per se or categorically not amenable to equitable tolling, I believe the court would have had to gone through the Irwin analysis.

[00:05:27] Speaker 00:
And the court in Andrews simply did not do that analysis.

[00:05:31] Speaker 02:
It seemed to be looking more... The case is different than every other case, other than the ones where Lozano and Brockham.

[00:05:39] Speaker 02:
Every other case that I could find that's inside a Supreme Court precedent, that is, deals with either whether it's a procedural rule or a jurisdictional.

[00:05:48] Speaker 02:
It deals with the filing deadline in connection with a judicial or administrative review.

[00:05:56] Speaker 02:
So I don't know of a case that really directly answers that point, this point, in the context of what we're talking about now, which is not an adjudicatory or a judicial review scheme, but rather what is this section called?

[00:06:12] Speaker 02:
Effective Dates of Rewards.

[00:06:15] Speaker 02:
It's not dispositive necessarily of the argument you're making, but it really does go in my mind to the heart

[00:06:24] Speaker 02:
of whether or not this is a different issue that has not been absolutely dispositively ruled on by the Supreme Court.

[00:06:34] Speaker 00:
Your Honor, thank you for the question, and I think your point is well taken.

[00:06:39] Speaker 00:
I would point you to the Young decision.

[00:06:41] Speaker 00:
And that case gets a little closer to the type of situation we have here, because the

[00:06:48] Speaker 00:
The limitation at issue in Young was a three-year look back period that controlled how far back in time the IRS could go to recover past due taxes from a bankruptcy estate.

[00:07:00] Speaker 00:
So that is what the government would now call a substantive limitation on the amount of recovery.

[00:07:05] Speaker 02:
I don't just agree with you.

[00:07:07] Speaker 02:
It's just that it gets closer.

[00:07:08] Speaker 02:
It just, the question is whether it's close enough.

[00:07:11] Speaker 02:
Can I just, I'm sorry, I cut you off with this threshold issue, but I have a question now that goes to the mayor.

[00:07:16] Speaker 02:
or a little side question, which is, what are the limits of the proposition you're espousing for us to accept?

[00:07:25] Speaker 02:
5110 has not a million, that's an exaggeration, but a whole lot of provisions in it.

[00:07:32] Speaker 02:
And leaving A aside, I have a question about A, but there are quite a number, maybe a dozen provisions that have the same language involving other types of claims.

[00:07:43] Speaker 02:
supplemental claim and all kinds of other claims.

[00:07:47] Speaker 02:
Is it your view that all of those provisions that say the date is one year after the date, et cetera, all of those would equitable tolling will apply to?

[00:07:58] Speaker 02:
I assume you have the statute in front of you there.

[00:08:02] Speaker 02:
Am I misstating it?

[00:08:03] Speaker 02:
There are a lot of provisions.

[00:08:05] Speaker 00:
You are correct, Your Honor.

[00:08:06] Speaker 00:
It goes up to section N as in Nancy.

[00:08:09] Speaker 00:
So there's at least a dozen different provisions

[00:08:11] Speaker 00:
And you're also correct that the one-year deadline is a theme that runs throughout several of them.

[00:08:17] Speaker 00:
Not all of them, but several of them have a one-year cutoff.

[00:08:21] Speaker 02:
Yeah, I'm not disagreeing with what you're saying, Your Honor.

[00:08:28] Speaker 00:
To answer your question, I think that under Irwin, the presumption would apply the same to all of those provisions.

[00:08:36] Speaker 00:
Irwin says that

[00:08:38] Speaker 00:
When Congress passes a statute that includes a waiver of sovereign immunity for claims against the government, the presumption is that Congress does so with an implicit equitable tolling provision applied to that.

[00:08:52] Speaker 00:
So I can't think of a reason why it would apply to B and perhaps not some of the other ones.

[00:08:58] Speaker 02:
Okay.

[00:08:58] Speaker 02:
Well, let me then ask you, the elephant in the room is A, because that's the vast proportion of claims that we're dealing with.

[00:09:06] Speaker 02:
And that doesn't have the exact language, but it does have kind of language that says the effective date of the original claim is the later of the date DBAVC sees the claim and the date that the veteran's entitlement to a benefit arose.

[00:09:22] Speaker 02:
Would you construe therefore that kind of provision that says that would deprive the veteran, your client, for example, in the same circumstance, forget dating back to when he was in service?

[00:09:35] Speaker 02:
But you and me file a claim the same day.

[00:09:38] Speaker 02:
You file a claim today.

[00:09:39] Speaker 02:
We have the exact same ailment.

[00:09:41] Speaker 02:
But I am incapable of filing that claim today.

[00:09:45] Speaker 02:
So I file it two years from now.

[00:09:47] Speaker 02:
So your award is going to be two years more worth of money than mine.

[00:09:52] Speaker 02:
Would equitable tolling apply under a best circumstance?

[00:09:57] Speaker 00:
Your Honor, I'm a little hesitant to go beyond sort of what I've prepared here.

[00:10:05] Speaker 00:
So I apologize in advance if my argument, my answer is a little vague.

[00:10:10] Speaker 00:
I think it certainly could apply based on Irwin.

[00:10:15] Speaker 00:
But I do see that that language is worded a little differently.

[00:10:19] Speaker 00:
It doesn't jump out as a clear time bar in the way that Section B does.

[00:10:27] Speaker 00:
So I guess I have to be a little equivocal and I apologize that I can't answer your question more directly.

[00:10:32] Speaker 02:
And just one more, and then I'll leave it to my colleagues.

[00:10:35] Speaker 02:
I apologize for consuming much of your time.

[00:10:37] Speaker 02:
But are you aware of, I mean, there are lots, there are an enormous number of federal statutes that deal with benefits such as this.

[00:10:44] Speaker 02:
The most apparent would be Social Security.

[00:10:46] Speaker 02:
And obviously, there have been equitable tolling, high claims, but all of those that I'm aware of have dealt with district court review of Social Security benefits.

[00:10:56] Speaker 02:
But I mean, I assume there are a vast number of federal statutes

[00:11:00] Speaker 02:
that might have similar provisions.

[00:11:02] Speaker 02:
Are you aware of any body of law, any other circuits or districts that have construed the language that you have in B, in one going your way or going the other way under Irwin?

[00:11:17] Speaker 00:
I'm not aware of any that are exactly like the language in B, but again, I would point, Your Honor, to the young decision, which I don't think that the court should overlook the young decision, because it is an important decision.

[00:11:30] Speaker 00:
I think it gets fairly close to the situation we have here because it is, I don't think the government would dispute that the issue, the timing provision in Young was what the government would call a substantive limitation on the amount of recovery.

[00:11:41] Speaker 00:
And nevertheless, the Supreme Court held that it was amenable to equitable tolling.

[00:11:46] Speaker 00:
And it would just be an odd result, in my opinion, if the outcome is that the government, the Internal Revenue Service, can benefit from equitable tolling when it's going against

[00:11:57] Speaker 00:
a taxpayer's state and yet a veteran can't benefit from equitable tolling during a period of time after service when they're not represented by council.

[00:12:07] Speaker 00:
And I just think that that is to me is a very stark, that would be a very unusual outcome.

[00:12:13] Speaker 02:
Unfortunately, and I understand why, but young was, I don't think young was, there are two young cases, but I think the one you're referring to now was not cited in blue.

[00:12:22] Speaker 02:
And I understand why, because it was in rebuttal to red.

[00:12:25] Speaker 02:
But we haven't heard yet the government take on that.

[00:12:28] Speaker 02:
So we may ask the government for that.

[00:12:32] Speaker 00:
Okay, Your Honor, I see that I'm into my revival time.

[00:12:36] Speaker 02:
I've consumed all of your time, so I want to hand it over to my colleagues if they have anything more that they'd like to ask.

[00:12:42] Speaker 01:
The only thing I would like to ask is what is your response to what we said in Ferris about

[00:12:52] Speaker 01:
the Veterans Court not having broad, equitable powers.

[00:12:57] Speaker 00:
Your Honor, I've read Burris, and I think that Burris largely falls in line with the Richmond decision in the sense that at least one of the claimants in Burris was very clearly asking for a freestanding, equitable damages award that had no basis in any statute, and that was also the situation in Richmond.

[00:13:19] Speaker 00:
And I think that's a very easy decision there because, as the court in Richmond said, you can't, the court just doesn't have the power to grant something where there's no statutory authority for it.

[00:13:31] Speaker 00:
I think our case is different than both Richmond and Burr's because what Mr. Aureano is seeking does have statutory support.

[00:13:39] Speaker 00:
The only thing standing in the way of his relief is the timing provision that he's asking to be told.

[00:13:46] Speaker 02:
Can I ask, I'm sorry, can I ask someone for the question?

[00:13:49] Speaker 02:
This came up in the Brocktown case, I think, where Justice Breyer talked about, you know, it was the IRS, and God knows how many times and days they have there and how confusing and disruptive to the administrative procedure it would be.

[00:14:03] Speaker 02:
What about the veteran space?

[00:14:05] Speaker 02:
I mean, you know, I've lost track, but there are probably, at one point, there were 700,000 cases backed up at the BBA.

[00:14:12] Speaker 02:
Are we allowed, would we consider, at least in the context of what Congress intended,

[00:14:18] Speaker 02:
Would we be able to, would that be a factor we would consider, whether opening this up to equitable tolling arguments, which involve their own set of facts and arguments, et cetera, would impact the filing deadlines and the ability of the Veterans Administration to timely, to the extent that they do and can, administer the statute.

[00:14:42] Speaker 00:
Your Honor, under Irwin, that particular consideration is not enumerated, but it's also not precluded.

[00:14:49] Speaker 00:
I think it would be reasonable to assume that that type of argument could be included in the government's attempt to rebut the Irwin presumption.

[00:14:58] Speaker 00:
Here, I don't think... Taking that argument at face value, I don't think that's enough to rebut the presumption, because

[00:15:07] Speaker 00:
There's a difference between saying that a statute of limitations or a limitation provision is amenable to equitable tolling.

[00:15:14] Speaker 00:
That is not saying that it's necessarily going to lead to equitable tolling in every case.

[00:15:19] Speaker 00:
It's still the veteran's burden to show entitlement to equitable tolling.

[00:15:23] Speaker 02:
So even in this case, I would... I'm not talking about the amount of money it would cost the government at the end of the day if equitable tolling applied.

[00:15:32] Speaker 02:
I'm talking about the procedural burden that would be supplied if this extra, I don't want to call it litigation, but if this extra issue were inserted into the proceeding.

[00:15:43] Speaker 00:
Right.

[00:15:44] Speaker 00:
Your Honor, I guess I would have to say that under Irwin, the arguments should be available, but it would still have to be, it would still have to be tied to some evidence that that was actually Congress's intent.

[00:15:56] Speaker 00:
I think if it's a freestanding policy argument that doesn't tie to a piece of legislative history or something that actually shows that that was part of Congress' intent, I don't think it would fit the bill under Irwin.

[00:16:09] Speaker 02:
Okay.

[00:16:09] Speaker 02:
Thank you very much.

[00:16:11] Speaker 00:
Thank you.

[00:16:11] Speaker 02:
I will restore your rebuttal time.

[00:16:14] Speaker 00:
Thank you, Your Honor.

[00:16:19] Speaker 00:
If there's any other questions, I don't know whether I should continue or... No, no, no.

[00:16:26] Speaker 02:
Well, do my colleagues have questions?

[00:16:29] Speaker 02:
No?

[00:16:29] Speaker 01:
No, we can wait.

[00:16:31] Speaker 01:
I can.

[00:16:33] Speaker 01:
Holly, okay.

[00:16:34] Speaker 04:
No?

[00:16:35] Speaker 02:
Okay.

[00:16:37] Speaker 02:
Let's hear from Mr. Hunter.

[00:16:39] Speaker 02:
Is that correct?

[00:16:40] Speaker 02:
I got the right name?

[00:16:43] Speaker 03:
Yes, Your Honor.

[00:16:44] Speaker 03:
May I please record?

[00:16:45] Speaker 03:
Of course, much of what I intended to discuss was already discussed and questioned, so I'm happy to proceed in discussing the Andrews decision and stuff, but I just wanted to note that much of what I will say may tread ground that the Court of the Courts is already well aware of.

[00:17:01] Speaker 03:
Well, can you... I'm sorry.

[00:17:03] Speaker 03:
Go ahead, Kate.

[00:17:04] Speaker 01:
I mean, so what is your response?

[00:17:06] Speaker 01:
If you say we disagree with you and we agree that Andrews was just

[00:17:14] Speaker 01:
to the extent Andrews has been read by the Veterans Court to say that this is a categorical limitation on the exercise of equitable discretion here.

[00:17:29] Speaker 01:
And that is how we think Andrews should be read.

[00:17:36] Speaker 01:
If we agree Andrews was wrong, can we, as a panel, say that Andrews was abrogated?

[00:17:44] Speaker 01:
and just move forward.

[00:17:50] Speaker 03:
Your Honor, I think I can give a clear answer on this.

[00:17:52] Speaker 03:
I think no.

[00:17:53] Speaker 03:
I think you have to take it up en banc.

[00:17:55] Speaker 03:
And the reason is not just the provision that was discussed by the court earlier.

[00:18:00] Speaker 03:
Of course, Andrew's decision discusses Irwin and considers Irwin.

[00:18:03] Speaker 03:
It says equitable tolling is, here's what equitable tolling is.

[00:18:06] Speaker 03:
It's generally available.

[00:18:07] Speaker 03:
Here's Irwin.

[00:18:08] Speaker 03:
And then it says, this is not such a case.

[00:18:10] Speaker 03:
That 5110 does not contain a statute of limitations that merely indicates some benefits may begin and provides for an earlier date under certain limited circumstance.

[00:18:17] Speaker 03:
Now, of course, you're familiar with that language.

[00:18:19] Speaker 03:
But does the court stating different than stating that equitable toll is not available in this case, that's a statement about the statute and its effect.

[00:18:27] Speaker 03:
And then that is further buttressed later in the opinion when discussing the K. In the case, as we held to the claim to not seek to toll statute of limitations in order to bring a claim that would otherwise be time barred,

[00:18:38] Speaker 03:
Instead, to obtain benefits expressly prohibited by the statute, he asked the court to apply equitable tolling to 5110G, which we declined to do.

[00:18:46] Speaker 03:
Likewise, Andrews.

[00:18:48] Speaker 01:
So the court in Andrews is pretty clear.

[00:18:50] Speaker 01:
Well, but wouldn't that be consistent with Bailey, which we have said now is reinstated as good law after Henderson?

[00:19:00] Speaker 03:
Well, that's a more complex question.

[00:19:02] Speaker 03:
I don't think so, Your Honor.

[00:19:05] Speaker 03:
there's a lot going on with the Bailey Henderson issue.

[00:19:08] Speaker 03:
First, there was a case, we cited in our response brief, but there's a case called Martinez, which was on the book at the time of Andrews just a few months before, which stated, which would be contrary to Bailey, that Irwin does not apply to every possible timing limitation.

[00:19:24] Speaker 03:
And so if that was the holding of Bailey, it wasn't even on the books at the time of Andrews.

[00:19:30] Speaker 03:
Now, with respect to

[00:19:32] Speaker 03:
Henderson and Bailey, the interaction of those decisions, I think it's perhaps a little stretched by Mr. Ariano's brief.

[00:19:41] Speaker 03:
Because, so Bailey says that the notice of appeal deadline to the Veterans Court can be told.

[00:19:46] Speaker 03:
Because Irwin says everything can be told unless you take a look, unless the presumptions are rebutted, we don't find it rebutted.

[00:19:52] Speaker 03:
Now Henderson in 2009 says, well, in the intervening time, you know, the same

[00:19:57] Speaker 03:
the same provision comes up.

[00:19:59] Speaker 03:
And in the intervening time, the Supreme Court has clarified a lot about jurisdictional provision.

[00:20:04] Speaker 03:
So with these, so we find that the provision is- That's right.

[00:20:10] Speaker 03:
Henderson gets reversed.

[00:20:11] Speaker 03:
But if you read the decision, the Supreme Court's decision in Henderson, they're not talking about Irwin.

[00:20:15] Speaker 03:
They're not talking about reinstating Bailey.

[00:20:17] Speaker 03:
They never, you can search the opinion for Irwin and it doesn't come up at all.

[00:20:21] Speaker 01:
What they're saying is no- We have said, didn't we say in James that

[00:20:26] Speaker 01:
Bailey was reinstated and is good law.

[00:20:32] Speaker 03:
I guess I would need to take a look at that.

[00:20:34] Speaker 03:
I may have missed that, but the at most what appears to be reinstated is the explicitly express holding of Bailey, which is that the notice of appeal deadline is total.

[00:20:48] Speaker 03:
Not this implicit general holding that Erwin applies to every time in limitation, which itself, of course, cannot be true.

[00:20:55] Speaker 03:
because we know that it doesn't apply to the jurisdictional timing provisions.

[00:21:00] Speaker 03:
That's the entire premise of Henderson.

[00:21:02] Speaker 03:
So we know that the implicit holding that Erwin applies to every timing provision cannot be correct.

[00:21:08] Speaker 03:
Now those jurisdictional provisions are now present here.

[00:21:10] Speaker 03:
But if Bailey was reinstated, it was at least reinstated in some modified format from its original form.

[00:21:18] Speaker 02:
Can I ask you about Young?

[00:21:20] Speaker 02:
I know it was in gray.

[00:21:22] Speaker 02:
It wasn't raised in blue for obvious reasons.

[00:21:25] Speaker 02:
But we haven't heard Mr. Barney express this as being the closest case.

[00:21:32] Speaker 02:
Granted, it's pre-Henderson.

[00:21:33] Speaker 02:
I think it's a 2002 case.

[00:21:35] Speaker 02:
If you review that, can you tell us what, if any, impact you think that has on our analysis here?

[00:21:42] Speaker 03:
Yes, Your Honor.

[00:21:42] Speaker 03:
So I will say that in reviewing the reply brief and in preparing for this argument,

[00:21:50] Speaker 03:
I think that it's possible that our focus on the substantive limitation on recovery is raising to preclude the Irwin inquiry.

[00:21:58] Speaker 03:
I think that Mr. Ariana's brief probably has the right of it in that a substantive limitation on recovery would not preclude the Irwin inquiry, but rather would be a factor that the court would consider in whether the Irwin presumption was rebutted.

[00:22:12] Speaker 03:
Now, with regard to the effect of Young,

[00:22:17] Speaker 03:
I think that they at least stretch the holding a little bit that they're relying on.

[00:22:20] Speaker 03:
So in a brief you find it stated as the holding is all limitations periods are substantive.

[00:22:25] Speaker 03:
But that's only the second clause of the sentence.

[00:22:27] Speaker 03:
The first clause of the sentence is we'll have petitioners use the term.

[00:22:31] Speaker 03:
So there's a large limiting scope there as to whether the attempt to use successive bankruptcy filings to create a loophole in the statute is substantive

[00:22:46] Speaker 03:
in the same way that, you know, 5110 is substantive.

[00:22:50] Speaker 03:
I don't know that Young considers anything like a statute in 5110 where the entire umbrella provision states that no retrospective benefits except under certain limited circumstances.

[00:23:02] Speaker 03:
And in all cases, those certain limited circumstances are limited to one year look back from very specific originating events.

[00:23:10] Speaker 03:
So I'm not sure that Young has a lot to do with this.

[00:23:13] Speaker 03:
It may have something to do with that LSA.

[00:23:16] Speaker 02:
What about the question I asked your friend about the other provisions that might be affected by what we do here?

[00:23:24] Speaker 02:
I think his answer was kind of yes to the numerous provisions in 5110 that have the same language as B1.

[00:23:35] Speaker 02:
What about A1?

[00:23:39] Speaker 02:
Agree with your friend here.

[00:23:41] Speaker 02:
Would that have ramifications for our analysis of just the regular thing about the date of running the claim, recovery running from the date of receipt of the application?

[00:23:54] Speaker 03:
That even the date of receipt, I don't even understand how it could be told because there is no timing for it stated.

[00:24:01] Speaker 03:
It's simply stating that when the claim to allow polling against that rule would seem to vitiate the entire rule.

[00:24:11] Speaker 02:
Well, no, it's just like, if I had severe schizophrenia, and it came upon me five years ago, so for five years, the physician would say, I was incapable of filing a claim, and I file a claim five years later, equitable tolling would apply.

[00:24:31] Speaker 02:
I shouldn't be penalized by my disability,

[00:24:37] Speaker 02:
for the five years in which I wasn't able to file a claim, and since the amount of money I get runs from the time I file a claim, that's where equitable tolling might come in.

[00:24:48] Speaker 02:
I see, Your Honor.

[00:24:50] Speaker 03:
I think that then I would point the court to Brockham, where Justice Breyer is discussing the potential for finding an equitable exception here to do violence to the language present in the statute.

[00:25:02] Speaker 03:
In that same A1, it starts out with

[00:25:06] Speaker 03:
unless specifically provided otherwise in this chapter, the effective date of an award is based on an initial question.

[00:25:15] Speaker 04:
Judge Newman, please proceed.

[00:25:20] Speaker 04:
because I was thinking that it certainly would be helpful if we can to find a way of adding some specificity to accept the principle and to assure the principle that when we're dealing with veterans cases and a lot of the other aspects on which we have national policy to assure that when there's

[00:25:47] Speaker 04:
room in the law for interpretation that we apply it.

[00:25:51] Speaker 04:
So I was trying to figure out as I listened to the really cogent arguments on both sides as to what we might do in order to advance the stability of this law.

[00:26:04] Speaker 04:
And of course I was thinking that here we have a case where in principle equitable tolling because you have a psychological disorder is easy.

[00:26:15] Speaker 04:
But equitable tolling for 30 years based on that disorder gets to be

[00:26:22] Speaker 04:
more complicated and it would be without presenting a new issue that we haven't had a chance to explore to understand what might be done in this case to advance the stability and reliability of this law without turning it into a federal case whenever equities arise.

[00:26:46] Speaker 04:
So Council, when I was disconnected, were you in rebuttal at that time?

[00:26:52] Speaker 03:
Your Honor, this is Andrew Hunter for the government.

[00:26:58] Speaker 03:
I was speaking.

[00:26:59] Speaker 03:
I think your question may be better.

[00:27:01] Speaker 03:
I think your question may be directed to Mr. Barney.

[00:27:03] Speaker 04:
No, I'm very interested in the government's position on how we might enhance and clarify and make more useful and more effective the equitable building principles.

[00:27:16] Speaker 03:
I see, Your Honor.

[00:27:17] Speaker 03:
Well, of course, our position is that equitable tolling doesn't need, well, we believe it in accordance with the court's precedent that equitable tolling is not available after 2.10.

[00:27:25] Speaker 03:
And that the statute is very generous in giving prospective benefits to veterans from the time they file a claim.

[00:27:33] Speaker 04:
because it would have to be told for 30 years.

[00:27:37] Speaker 04:
I mean, it's your position based on the somewhat, I'll call them extreme, factual circumstances or on some general policy.

[00:27:51] Speaker 03:
We believe the policy is stated in a statute because unless specifically provided otherwise in this chapter, and that's the general prohibition, unless specifically stated otherwise,

[00:28:01] Speaker 03:
The effective date of the claim is the date the claim was received.

[00:28:05] Speaker 03:
And then there are a list of exceptions to that principle, each of them limited to one year.

[00:28:10] Speaker 03:
Of course, that limitation to one year does invoke the extremity of the claim on the other side.

[00:28:16] Speaker 03:
I'm not prepared to argue how far beyond a year it would make sense to go, but I don't think that the statute authorizes retrospective recovery

[00:28:29] Speaker 03:
beyond the exceptions that are listed and certainly not in the scope requested by Mr. Hariano.

[00:28:34] Speaker 04:
Some of the schizophrenia for more than one year, it doesn't seem as if the principles of fair dealing would somehow draw the line that would be almost arbitrary in those circumstances.

[00:28:55] Speaker 04:
Again, here we have 30 years, and I'm trying to understand how much the particular facts of the case that comes before us need to be considered as opposed to the bright line.

[00:29:11] Speaker 03:
I see, Your Honor.

[00:29:12] Speaker 03:
Well, obviously, our position is that we're holding at the bright line, and that's what we believe the statute states from the court press.

[00:29:18] Speaker 03:
If the court disagrees,

[00:29:20] Speaker 03:
then it would probably be incumbent to remain for factual findings.

[00:29:24] Speaker 03:
My understanding is that the record contains some lay statements indicating that Mr. Arellano was disabled at the time.

[00:29:32] Speaker 03:
And then a doctor's opinion, which is perhaps I think a bit conclusory, but is a physician's opinion that he was disabled from the time of, you know, from the time of the discharge.

[00:29:44] Speaker 03:
It may be, but I don't believe that the VA has yet made any determination as to his disability.

[00:29:49] Speaker 03:
in large part because there would be a mood determination because of the way the VA construes 5110.

[00:29:55] Speaker 02:
Can I just say, just to the other provisions, are there other statutes that you're aware of that govern social security claim processing, welfare benefit claim processing, unemployment benefit claim processing that have the language similar to V1?

[00:30:13] Speaker 03:
Your Honor, I lamented when I heard your question, Mr. Barney, in this regard because I also have

[00:30:17] Speaker 03:
preparation for you.

[00:30:19] Speaker 03:
I wish that I had.

[00:30:19] Speaker 03:
It's an obvious question.

[00:30:20] Speaker 03:
Obviously, we both should have considered it, and I had not, so I can't answer that.

[00:30:26] Speaker 02:
Thank you.

[00:30:27] Speaker 02:
If my colleagues have nothing else, Mr. Hunter, for you, why don't we go back to Mr. Barney for his rebuttal time?

[00:30:36] Speaker 03:
If I may clarify one point?

[00:30:38] Speaker 02:
Yes, sure.

[00:30:40] Speaker 03:
It was simply that when I had retreated in terms of the substantive limitation on recovery, of course, did not mean to retreat of our overall opinion.

[00:30:47] Speaker 03:
overall view of the statute, which, as I've described probably several times on the call, our strongest point we believe is that Congress is not authorizing benefits requested here, and that therefore they're not a benefit.

[00:30:58] Speaker 03:
That's all.

[00:30:59] Speaker 02:
Thank you.

[00:31:00] Speaker 02:
Mr. Barney?

[00:31:02] Speaker 00:
Thank you, Your Honor.

[00:31:05] Speaker 00:
Of course, I'd like to answer Judge Newman's question about the 30 years.

[00:31:10] Speaker 00:
But before I did, I also wanted to point out that Bailey has been recognized as being reinstated, and I would

[00:31:16] Speaker 00:
refer the court to the Snead decision, which is cited in our reply brief.

[00:31:22] Speaker 00:
And I believe it's been recognized in other decisions as well.

[00:31:26] Speaker 02:
But of course, Bailey is a Henderson-like decision, right, of appealing whether an Article I court is different than an Article III court for purposes of processing a claim against the government in the administrative adjudication of that claim?

[00:31:43] Speaker 00:
Am I recalling that correctly?

[00:31:45] Speaker 00:
They certainly got into that in Henderson and Bailey, I don't recall that it was necessarily Article 1 versus Article 3.

[00:31:52] Speaker 00:
I think Bailey applied to Irwin and declined to draw any distinction between the fact that the provision at issue was a timing of review statute as opposed to a statute of limitations.

[00:32:04] Speaker 00:
And that's what ended up getting tripped up in the Henderson loop that went up to the Supreme Court and then back down.

[00:32:12] Speaker 00:
That's my recollection, Your Honor.

[00:32:15] Speaker 00:
With respect to Judge Newman's question, you know, there is some, there does seem to be some confusion about the two different parts of Irwin.

[00:32:27] Speaker 00:
Irwin has a part that discusses whether or not a statute is amenable to equitable tolling.

[00:32:34] Speaker 00:
And then of course it has another discussion after deciding that that statute was in fact amenable to equitable tolling about whether equitable tolling should apply based on the facts of that case.

[00:32:45] Speaker 00:
Your question, Judge Newman, really goes to that second prong.

[00:32:49] Speaker 00:
And what we're trying to get out here is we have what we consider to be an error being propagated by the CABC, a misinterpretation of Andrews.

[00:32:59] Speaker 00:
And we're trying to make sure that doesn't continue to propagate.

[00:33:02] Speaker 00:
I think that the CABC, I think there's a very well-developed body of law regarding whether equitable tolling can apply to a particular set of facts.

[00:33:13] Speaker 00:
And that body of law will continue to remain in place, regardless of what this court decides in terms of whether Irwin applies to 5110B1.

[00:33:22] Speaker 00:
And it serves as an effective gatekeeper for equitable tolling claims.

[00:33:28] Speaker 00:
As the Supreme Court has pointed out, most timing provisions are amenable to equitable tolling.

[00:33:33] Speaker 00:
It's the exceptions that aren't.

[00:33:36] Speaker 00:
And yet we don't have a flood problem in terms of equitable tolling, swallowing,

[00:33:43] Speaker 00:
civil litigation, swallowing, other benefits systems.

[00:33:49] Speaker 00:
So I don't know whether that fully answers Judge Newman's question, but that's the way we're viewing this, that it's important to fix the first part of the Irwin analysis before we even look at the second part.

[00:34:01] Speaker 04:
Thank you.

[00:34:02] Speaker 04:
That's helpful.

[00:34:03] Speaker 04:
It's really to understand what we can accomplish and contribute to stability and so that people who do have an authentic basis for tolling don't have to end up with five years worth of litigation in order to cross that bridge.

[00:34:26] Speaker 00:
Your Honours, unless you have any other questions, I don't have anything further.

[00:34:29] Speaker 02:
Thank you very much.

[00:34:31] Speaker 02:
We thank both sides.

[00:34:32] Speaker 02:
Sorry for the disruption and the cases that did it.