[00:00:00] Speaker 06:
The United States Court of Appeals for the Federal Circuit is now open and in session.

[00:00:05] Speaker 06:
God save the United States and this honorable court.

[00:00:09] Speaker 10:
Good morning, all.

[00:00:11] Speaker 10:
I now call up docket number 20-1073, Arolano versus Tran.

[00:00:18] Speaker 10:
You may note we've changed the caption to reflect the change in the secretary's status.

[00:00:27] Speaker 10:
To just review as a preliminary matter briefly, appellant will have 51 minutes for the main argument and 8 minutes for rebuttal.

[00:00:37] Speaker 10:
We will begin with 3 minutes uninterrupted non-questioning by the council, followed by a first round of questioning, 3 minutes per judge, going by order of seniority, which will consist of both the question and the answer, if we can handle that, followed by a second round of 1 minute.

[00:00:57] Speaker 10:
Same process will be followed with Ms.

[00:01:00] Speaker 10:
Thomas on the other side.

[00:01:03] Speaker 10:
So I think we're ready to begin, Mr. Barney.

[00:01:06] Speaker 10:
Three minutes uninterrupted time, then followed by questions.

[00:01:09] Speaker 10:
Please proceed.

[00:01:11] Speaker 07:
Thank you, Your Honor.

[00:01:13] Speaker 07:
May it please the Court?

[00:01:14] Speaker 07:
The question in this appeal is simple.

[00:01:16] Speaker 07:
Is 38 USC 5110B1 amenable to equitable tolling?

[00:01:21] Speaker 07:
Now, figuring out the answer to that question is not exactly simple.

[00:01:24] Speaker 07:
But the Supreme Court has set forth a clear roadmap, which consists of two basic inquiries.

[00:01:29] Speaker 07:
Does the Irwin presumption apply?

[00:01:31] Speaker 07:
And if so, can the government rebut it?

[00:01:34] Speaker 07:
On the first question, we believe 5110B1 meets all the criteria necessary to warrant the Irwin presumption.

[00:01:40] Speaker 07:
It's a statutory time limit set forth in a statute for which Congress has waived sovereign immunity.

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And unlike the statutory provision in Sebelius v. Auburn,

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5110B1 is not aimed at sophisticated institutional litigants represented by council.

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It's aimed at military veterans who have just been discharged from service, who are unrepresented by council, and who may be suffering from the very physical or mental disabilities that 5110B1 was intended to address.

[00:02:09] Speaker 07:
So we believe the urban presumption clearly applies.

[00:02:12] Speaker 07:
The government disagrees, and its primary argument is that Irwin only applies to statutes of limitations, and according to the government, 5110B1 is not a statute of limitations.

[00:02:22] Speaker 07:
But the Supreme Court has never held that the Irwin presumption only applies to statutes of limitations.

[00:02:28] Speaker 07:
For instance, the court in Zeitz found equitable tolling was available for an administrative filing deadline that the court described as being like a statute of limitations.

[00:02:37] Speaker 07:
The word like implies that equitable tolling is available for provisions that may fall outside a strict definition of a statute of limitations.

[00:02:47] Speaker 07:
Moreover, the concept of a statute of limitations is not as clear cut as the government suggests.

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In Young, for example, the Supreme Court held that a statute that imposed a three-year look back period on the IRS's ability to prioritize tax debts in a bankruptcy proceeding was a statute of limitations and was amenable to equitable tolling.

[00:03:06] Speaker 07:
The one-year filing deadline in 5110B1 operates as a statute of limitations every bit as much as the three-year look-back period in Young.

[00:03:16] Speaker 07:
In fact, it would be an odd result if the IRS, a powerful government agency, could benefit from equitable tolling of a look-back period, but a disabled veteran could not.

[00:03:27] Speaker 07:
Now, moving to the second inquiry, we don't believe the government can rebut the Irwin presumption.

[00:03:31] Speaker 07:
Its main argument is that 5110B1 is a deception with a false rule.

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and therefore cannot be equitably told for the reasons set forth in TRW.

[00:03:42] Speaker 07:
But the provision in TRW involved a two-year limitations period with a built-in tolling provision that automatically stopped the clock under certain circumstances.

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The court found that applying a discovery accrual rule on top of this would render the built-in tolling provision wholly superfluous.

[00:03:58] Speaker 07:
That's not the case here.

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There's nothing in section 5110 that can stop the one-year clock of subsection B1 for any reason.

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So nothing in the statute would be rendered superfluous if this court held that 5110B1 is amenable to equitable tolling.

[00:04:14] Speaker 07:
In closing, I'd like to thank the court for its careful consideration of this important issue, and I am ready to answer your questions.

[00:04:21] Speaker 10:
Thank you, Mr. Barney.

[00:04:23] Speaker 10:
This is Chief Judge Prost.

[00:04:24] Speaker 10:
Let me begin by asking you about Irwin's relationship to a court's inherent power to equitably tolled deadlines.

[00:04:33] Speaker 10:
Unlike courts, however,

[00:04:35] Speaker 10:
Agencies such as the VA do not have any inherent inequitable powers, much less the equitable powers of a court.

[00:04:44] Speaker 10:
Rather, agencies have only post powers granted to them by Congress.

[00:04:50] Speaker 10:
His VA, let me ask you, been granted a court's power to equitably toll deadlines.

[00:04:55] Speaker 10:
And if so, what is the source of that authority?

[00:04:58] Speaker 10:
And finally, how is that supposed to work?

[00:05:02] Speaker 10:
We've got 50 or so regional offices with hundreds of individual adjudicators.

[00:05:10] Speaker 10:
And I guess under your view of how this case should be resolved, each of them would have the authority to decide the equitable tolling question.

[00:05:21] Speaker 10:
And as I'm sure you know, under the recent Veterans Modernization Act, 5104A speaks to the binding nature of favorable ruling.

[00:05:32] Speaker 10:
In other words, if an individual adjudicator finds equitable that the individual claimant's case claims should be equitably told, the government, the VA, and no one else can ever call it to question except in the extraordinary circumstances possibly of a CUE.

[00:05:51] Speaker 07:
Thank you, Your Honor.

[00:05:52] Speaker 07:
I'll attempt to address that as best I can in the time limit that I have.

[00:05:57] Speaker 07:
Regarding your question as to whether the agency itself has the power to equitably, to apply equitable tolling, I believe the answer to that is yes.

[00:06:05] Speaker 07:
There have been cases such as the Fisher case from the Court of International Trade that recognized the Department of Labor's ability and power to equitably atoll certain deadlines.

[00:06:18] Speaker 07:
But more importantly, I don't think this court actually needs to answer that question because the legal question that we're asking the court to decide here

[00:06:26] Speaker 07:
is whether the Court of Appeals for Veterans Claims has the power to, or should have equitably told, or excuse me, should have considered Mr. Arellano's equitable tolling argument.

[00:06:38] Speaker 07:
And I don't think there's any question that the CAVC has the equitable power to toll a deadline.

[00:06:43] Speaker 07:
This Court has already helped.

[00:06:44] Speaker 10:
We're not going to try to push every claim up to the CAVC until we get to the equitable tolling question.

[00:06:51] Speaker 10:
As I mentioned,

[00:06:52] Speaker 10:
if an adjudicator gets to make that determination and the veteran prevails, that would be the end of it and it would never get to the CAVC.

[00:07:01] Speaker 07:
I understand your point, Your Honor.

[00:07:03] Speaker 07:
My point is that whether the VA can promulgate rules to allow the RO and the BVA to adjudicate equitable tolling claims, I think is solely within the province of the VA.

[00:07:17] Speaker 07:
And if you look at the footnote 6 in the government's brief,

[00:07:21] Speaker 07:
They acknowledge that there is a statute that would allow them to promulgate such rules.

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So whether or not the rules currently exist to allow them to do it, I believe they have the power to do it if they want.

[00:07:35] Speaker 07:
Thank you.

[00:07:36] Speaker 07:
Judge Newman.

[00:07:38] Speaker 01:
Okay.

[00:07:38] Speaker 01:
I'd like us to put this, if we can, in the context of what we're talking about in this case.

[00:07:46] Speaker 01:
because of the significant differences in precedent and factual situations and the fact that on this appeal we are being asked to come up with a general rule of law that would always apply.

[00:08:03] Speaker 01:
For instance, you suggest that we should overrule our decision of some years ago in the Andrews case.

[00:08:16] Speaker 01:
where the veteran was three months late after the initial one-year period and asked that that initial one-year period statement should be told so that her entitlement came from the date of discharge, not the 15 months later.

[00:08:37] Speaker 01:
Now, here we have a veteran who waited 30 years and in your brief,

[00:08:44] Speaker 01:
You say right up front that you're looking at the first year period, that that's the period that you want to be sure is open to equitable tolling.

[00:08:59] Speaker 01:
Are you therefore, is your position that

[00:09:03] Speaker 01:
If we agree and we, certainly the role of courts is to do justice and equity, whatever that takes, that then this veteran will be entitled to 30 years of retroactive benefits.

[00:09:20] Speaker 01:
So that's my first question.

[00:09:23] Speaker 07:
Thank you, Judge Newman.

[00:09:25] Speaker 07:
Our position is that the veteran should be entitled to make out his case and have his case considered for equitable tolling.

[00:09:33] Speaker 01:
As you know, equitable tolling... What are you tolling the entire 30 years?

[00:09:38] Speaker 01:
That's what I want to understand because you were not clear.

[00:09:43] Speaker 07:
Okay.

[00:09:43] Speaker 07:
So if the veteran were able to prevail on equitable tolling,

[00:09:49] Speaker 07:
then yes, he would potentially be entitled to 30 years of benefits.

[00:09:55] Speaker 07:
But the point I wanted to make is that we know that... Is that your position?

[00:09:59] Speaker 01:
I mean, is this the concrete position that brought this case before us, that he would be entitled to 30 years of benefits if we hold

[00:10:13] Speaker 01:
And it's not an untenable argument that because he was injured in service, he was not capable of focusing on the availability of benefits for 30 years.

[00:10:29] Speaker 01:
They're saying that 30 years of tolling is what this case is all about.

[00:10:38] Speaker 07:
Your Honor, yes, but as I was saying, in order to make out his equitable tolling case, he would need to show that there was no more than one year of time during that 30 years where he was capable of filing his claim, because equitable tolling stops the clock, but the clock restarts when the conditions that cause... Stopped what clock?

[00:11:04] Speaker 07:
It stops, in this case it would stop the one year clock of 5110B1.

[00:11:09] Speaker 07:
But when the condition.

[00:11:10] Speaker 01:
It's entirely a matter of retroactivity of, it has nothing to do with disability or service connection.

[00:11:17] Speaker 01:
It's a matter of how far back as a matter of organization the claimant can go in the administration of the statute, isn't that right?

[00:11:32] Speaker 07:
It does control the effective award date, that's correct, but I would disagree that it's merely a retroactivity clause.

[00:11:42] Speaker 07:
It's there to encourage the claimants to file ripe claims in a timely manner.

[00:11:49] Speaker 07:
And so a veteran who has a disability, a severe disability after leaving service, who files that claim within that one year,

[00:11:56] Speaker 07:
even if that claim doesn't end up being adjudicated for 10 years, will be entitled to the full length of time.

[00:12:05] Speaker 01:
Okay, so here we have a veteran who filed after 30 years, made no attempt to file earlier, says that he wasn't capable of filing earlier.

[00:12:17] Speaker 01:
That's an important point that, of course, we shouldn't ignore.

[00:12:22] Speaker 01:
But what you're asking for, I want to be clear,

[00:12:26] Speaker 01:
if this is what you're asking for, is tolling for 30 years?

[00:12:34] Speaker 07:
What we're asking for is that... Is that an afternoon?

[00:12:38] Speaker 07:
The short answer is yes, Your Honor, yes.

[00:12:41] Speaker 07:
Judge Lori.

[00:12:44] Speaker 02:
Thank you, Chief.

[00:12:46] Speaker 02:
Mr. Barney, Erwin states that the same rebuttable presumption of equitable tolling applicable to suits against private parties

[00:12:55] Speaker 02:
should apply to suits against the federal government.

[00:12:58] Speaker 02:
But how does that apply when there was no private suit analog?

[00:13:04] Speaker 07:
Well, Your Honor, I think the Supreme Court addressed that in the Scarborough case and found that it's not necessary to find an exact private analog, especially when you're looking at a government benefits program.

[00:13:18] Speaker 07:
And as this Court has recognized in Bailey and other cases, the veterans

[00:13:23] Speaker 07:
benefits program in the statute is very unique.

[00:13:27] Speaker 07:
Even among other benefits programs, it's unique.

[00:13:30] Speaker 07:
And therefore, it's not surprising that you won't find an exact private analog.

[00:13:35] Speaker 07:
But again, the Supreme Court in Scarborough put the rest, the notion that it's necessary to find a precise private analog.

[00:13:44] Speaker 02:
Well, let me ask you further.

[00:13:45] Speaker 02:
5110A1 provides that the effective date for benefits will not be earlier

[00:13:52] Speaker 02:
than the date of receipt of the application.

[00:13:55] Speaker 02:
So B1 providing for one year grace period is an exception.

[00:14:01] Speaker 02:
You're asking exception to that, an exception to an exception.

[00:14:05] Speaker 02:
Isn't that legislating, rewriting the statute which we're not entitled to do?

[00:14:13] Speaker 07:
No, Your Honor, I disagree.

[00:14:14] Speaker 07:
I agree that it's an exception to the default rule, but all statutes of limitations are exceptions to a default rule.

[00:14:21] Speaker 07:
So the Federal Tort Claims Act, for instance, says that a claim against the government shall be forever barred.

[00:14:27] Speaker 07:
That's the default rule based on sovereign immunity, unless the claimant files their claim within two years of the cause of action.

[00:14:37] Speaker 07:
That's the exception to the default rule.

[00:14:39] Speaker 07:
And the Supreme Court and common law has routinely found that those exceptions to default rules are subject to equitable tolling.

[00:14:48] Speaker 02:
Well, this really isn't a statute of limitations.

[00:14:51] Speaker 02:
It doesn't cut off benefits for late filing.

[00:14:55] Speaker 02:
It only determines their effective date.

[00:14:58] Speaker 07:
We'd argue that this is in the nature of a statute of limitations.

[00:15:02] Speaker 07:
It's every bit of a statute of limitations as the provision in Young, which the Supreme Court acknowledged was substantive in nature and really only affected the amount that the IRS could recover against a bankrupt taxpayer, not whether the IRS could maintain a claim at all.

[00:15:21] Speaker 07:
And they describe that as being a limited statute of limitations, but a statute of limitations nonetheless.

[00:15:27] Speaker 10:
Thank you.

[00:15:29] Speaker 10:
Judge Dyke.

[00:15:30] Speaker 12:
Thank you.

[00:15:31] Speaker 12:
Mr. Barney, for purpose of this question, let's assume that the fair one presumption applies because of the young case or whatever else.

[00:15:41] Speaker 12:
But the question that I have is whether the presumption has been rebutted.

[00:15:46] Speaker 12:
And in that respect, it seems to me that you and the government share an assumption that equitable tolling is an all or nothing proposition.

[00:15:54] Speaker 12:
And it seems to me that perhaps that assumption is incorrect.

[00:16:00] Speaker 12:
Let's take, for example, in the disability area.

[00:16:03] Speaker 12:
We have a guardian provision where a court-appointed representative can file on behalf of an incompetent veteran, 5101A2 and D1.

[00:16:15] Speaker 12:
And we have the tolling provision with respect to pension and disability situations.

[00:16:23] Speaker 12:
And we have legislative history of the discharge provision itself suggesting that the one-year look back provision is designed to take account of disabilities that prevent the veteran from filing.

[00:16:36] Speaker 12:
And in the overall scheme, it seems to me that Congress could not have intended a 30-year look back tolling for disability.

[00:16:47] Speaker 12:
On the other hand, with respect to a claim for equitable tolling based

[00:16:52] Speaker 12:
Actions by the VA that prevent the veteran for filing as shown by the Wood, the Rabin case, the statute provides for a duty to assist and some of our cases suggest that if the violation of a statutory obligation like that, there is tolling.

[00:17:13] Speaker 12:
The Wood case, the Simpson case involving notification of entitlement to former spouse annuities.

[00:17:21] Speaker 12:
So my question to you is why shouldn't we look at this statute more granularly so that tolling is appropriate in some circumstances, but not others.

[00:17:31] Speaker 12:
It's appropriate for situations where the VA is at fault, but not for disability.

[00:17:38] Speaker 12:
Why isn't that an appropriate construction of the statute?

[00:17:42] Speaker 07:
Thank you, Your Honor.

[00:17:43] Speaker 07:
I don't think that would necessarily be an inappropriate way to look at it.

[00:17:49] Speaker 07:
The problem is,

[00:17:51] Speaker 07:
In order to get into that granularity, in order to determine which set of facts are going to give rise to a viable claim for equitable tolling, you first have to get rid of the Andrews bar.

[00:18:07] Speaker 07:
Because right now, the VA is not looking at any facts.

[00:18:11] Speaker 12:
There's zero steps.

[00:18:12] Speaker 12:
I'm assuming that we do that, that we say that you get a presumption of equitable tolling.

[00:18:18] Speaker 12:
But what I'm asking you is why can't we distinguish

[00:18:21] Speaker 12:
between disability situations, which would require a 30-year look back, and situations where the VA is at fault, as is the case in the rabine situation?

[00:18:33] Speaker 07:
Your Honor, I don't disagree with that.

[00:18:36] Speaker 07:
If equitable tolling is generally permitted, then there's nothing wrong with, in my opinion, of looking more granularly and determining, perhaps,

[00:18:50] Speaker 07:
It's going to be available in certain circumstances, but not available in other circumstances.

[00:18:55] Speaker 07:
I think that's consistent with this court's existing jurisprudence.

[00:19:01] Speaker 10:
OK.

[00:19:01] Speaker 10:
Thank you.

[00:19:02] Speaker 10:
Judge Moore.

[00:19:06] Speaker 09:
I have no questions.

[00:19:08] Speaker 10:
Judge O'Malley.

[00:19:12] Speaker 09:
Yes, Mr. Barney.

[00:19:14] Speaker 09:
I have a couple things.

[00:19:16] Speaker 09:
and we'll see if we can get through them.

[00:19:17] Speaker 09:
But first, is it possible to reconcile that court's language in Begerley that expressed statutory language effectively allowing for equitable tolling rebuts the Irwin presumption with the language in Young and Holland and even our court's language in Cloer saying that the existence of equitable

[00:19:41] Speaker 09:
tolling exceptions may actually indicate a beneficence throughout the entire statute.

[00:19:49] Speaker 07:
Your Honor, I think that it's a matter of nexus.

[00:19:53] Speaker 07:
I mean, you've put your finger on an interesting disconnect, perhaps.

[00:20:00] Speaker 07:
But I think the case law suggests that the closer the equitable exception is to the time period at issue,

[00:20:09] Speaker 07:
the more likely it's going to be perceived as essentially rebutting the presumption.

[00:20:15] Speaker 07:
And so I think that would be the situation in Begerly, for instance.

[00:20:20] Speaker 07:
It was also the situation in the TRW case.

[00:20:23] Speaker 07:
The more attenuated it becomes, so in other words, if you have to jump to a different provision or a different part of the statute to find an exception, the less the nexus is and the more it becomes more of a general

[00:20:39] Speaker 07:
proposition that Congress clearly intended equity to apply generally to the statute, and therefore it can't serve to rebut the Irwin presumption.

[00:20:50] Speaker 07:
I hope that answers your question, but I'm not sure it did.

[00:20:54] Speaker 09:
Yes, I think so.

[00:20:56] Speaker 09:
Thank you.

[00:20:59] Speaker 10:
Do you have anything further, Judge O'Malley?

[00:21:03] Speaker 09:
And I have one other question, and that is, what makes the exceptions in 5110E through N different from the explicit listing of exceptions in Brockcamp?

[00:21:17] Speaker 07:
Your Honor, first, those exceptions, each one of them applies to a different type of benefit.

[00:21:28] Speaker 07:
So those aren't exceptions to the timing provision that's at issue here, which is a specific one-year timing provision that applies to disability benefits for discharged veterans.

[00:21:44] Speaker 07:
And also the exceptions in bra camp, it was a time period that included specific exceptions that would actually toll the time period.

[00:21:56] Speaker 07:
These so-called exceptions in Section 5110 aren't tolling any time period.

[00:22:02] Speaker 07:
For instance, there's nothing in Section 5110 that will ever stop the clock, the one-year clock set forth in 5110B1.

[00:22:10] Speaker 07:
So I think that's the difference.

[00:22:15] Speaker 10:
Thank you.

[00:22:16] Speaker 10:
Judge Raina.

[00:22:18] Speaker 04:
Yes, Mr. Barney.

[00:22:19] Speaker 04:
Good morning.

[00:22:20] Speaker 04:
My question relates to the pro-veteran's canon, which is the statutory interpretation principle that provisions for benefits to members, and I want to emphasize provisions for benefits to members, the armed forces are to be construed in the beneficiary's favor.

[00:22:39] Speaker 04:
What's your position with respect to how the pro-veteran's canon applies in this case?

[00:22:45] Speaker 04:
And perhaps you can explain

[00:22:47] Speaker 04:
What if any ambiguity exists in Section 5110B1 that might invoke the canon?

[00:22:54] Speaker 04:
And also, how exactly would the pro-veteran's canon apply to that ambiguity if, in fact, one exists?

[00:23:02] Speaker 07:
Thank you, Your Honor.

[00:23:04] Speaker 07:
We certainly believe and agree that there is a longstanding canon that veteran statutes are to be construed in the veteran's favor at every turn.

[00:23:17] Speaker 07:
With respect to your question of ambiguity, you know, as one example, the parties here, the government, Mr. Arellano, are having a bit of a dispute about whether 5110B1 is sufficiently similar to a statute of limitations that it should be, that it should receive the Irwin presumption.

[00:23:42] Speaker 07:
And to the extent this court sees that as being a close call,

[00:23:46] Speaker 07:
the benefit of the doubt should flow to the veteran.

[00:23:50] Speaker 07:
And the same applies to if the Irwin presumption applies and you get to some of these subsidiary questions about whether it can be rebutted, perhaps going for instance to Judge O'Malley's question, whether there are exceptions here that make this statute more like the statute in

[00:24:11] Speaker 07:
in Beverly as opposed to the statute in Irwin or in Young, again, we would say that any benefit of the doubt should flow in the veteran's favor.

[00:24:23] Speaker 10:
Thank you.

[00:24:24] Speaker 03:
Judge Wallach.

[00:24:26] Speaker 03:
I pass.

[00:24:27] Speaker 03:
Thank you.

[00:24:28] Speaker 06:
Judge Taranto.

[00:24:30] Speaker 06:
Thanks.

[00:24:30] Speaker 06:
Mr. Barney, I have two questions, both against the backdrop of the appropriations clause of the U.S.

[00:24:37] Speaker 06:
Constitution.

[00:24:38] Speaker 06:
which as I understand it and reflected in OPM against Richmond requires that courts be very protective of Congress's control of the public purse and therefore broadly demands adherence to textual preconditions for spending public money.

[00:24:53] Speaker 06:
Now, Irwin recognizes an exception for a certain category of laws that are so widely known in the law to carry case by case equity discretion that we simply presume Congress was implicitly authorizing

[00:25:06] Speaker 06:
use of that discretion to authorize payouts without satisfying textual preconditions.

[00:25:13] Speaker 06:
My first question is this.

[00:25:15] Speaker 06:
Given the appropriations clause principle, isn't even significant uncertainty about whether 5110B is an Irwin type law enough to mean that we should not conclude that Congress was implicitly authorizing non-textual payouts?

[00:25:31] Speaker 06:
And then second and related,

[00:25:33] Speaker 06:
aren't there at least the following basis for uncertainty?

[00:25:37] Speaker 06:
Erwin laws all appear to set times for going to tribunals to seek a remedy based on a pre-existing legal duty.

[00:25:46] Speaker 06:
But here there is no pre-existing, that is pre-claimed VA duty to pay benefits, because at a minimum 5101 forbids the VA to pay benefits before a claim is filed.

[00:25:58] Speaker 06:
And the language of effective date and retroactive

[00:26:03] Speaker 06:
is the language of establishing the legal duty itself, not statute of limitations language.

[00:26:10] Speaker 06:
That'll be enough if you can address both of those things.

[00:26:14] Speaker 07:
Sure.

[00:26:15] Speaker 07:
Well, first of all, with respect to Richmond, this particular provision is not anything like the provision of Richmond.

[00:26:22] Speaker 07:
In Richmond, the problem was that there was no statutory, there was no statute anywhere

[00:26:28] Speaker 07:
on the books that would have authorized the payment.

[00:26:31] Speaker 06:
I agree with that.

[00:26:32] Speaker 06:
Could you shift to why the principle at stake doesn't mean what I asked you to address?

[00:26:37] Speaker 07:
Sure.

[00:26:39] Speaker 07:
So with respect to whether uncertainty itself should essentially augur against applying the Irwin presumption, I don't see that in Irwin.

[00:26:50] Speaker 07:
I think that

[00:26:53] Speaker 07:
The Erwin presumption is fairly straightforward.

[00:26:56] Speaker 07:
It is that the Erwin presumption shall apply to any statutory time limit to the same extent that it applies in civil litigation.

[00:27:04] Speaker 07:
I don't see uncertainty being a factor.

[00:27:08] Speaker 07:
And if it was a factor, I think that it would be outweighed by the general canon that

[00:27:14] Speaker 07:
any uncertainty should be resolved in the veteran's favor in the case of the veteran.

[00:27:19] Speaker 06:
Have you seen any provision in the Supreme Court cases recognizing equitable tolling that uses the language of effective date and retroactive, which is the ordinary language for prescribing duties, not for setting times for seeking of remedies that pre-exist?

[00:27:40] Speaker 06:
I wasn't able to find any.

[00:27:43] Speaker 07:
Well, the closest I would... The closest I'm aware of would be the Young case, but I don't think I can pinpoint one that fits exactly what you just described, Your Honor.

[00:27:56] Speaker 07:
Okay, thank you.

[00:27:57] Speaker 10:
Judge Chan.

[00:27:59] Speaker 11:
Yes, thank you.

[00:28:00] Speaker 11:
Hello, Mr. Barney.

[00:28:01] Speaker 11:
I'm still trying to think about how to understand if 5110B1

[00:28:11] Speaker 11:
is a statute of limitations or is akin to a statute of limitations in that typically a statute of limitations assigns a date to when your ability to enforce your rights ends.

[00:28:27] Speaker 11:
And what we have here in front of us is a statute that defines the date your award begins.

[00:28:35] Speaker 11:
And so I'm having trouble matching those two concepts up.

[00:28:40] Speaker 11:
I understand your

[00:28:42] Speaker 11:
focusing a lot on the Young opinion.

[00:28:45] Speaker 11:
And I'm trying to understand your interpretation of Young and why in your view the statute there is similar to the statute here.

[00:28:55] Speaker 11:
As I understand Young, the statutory provision there ended up barring the IRS from being able to assert that claim.

[00:29:10] Speaker 11:
and it lost its rights to do so because it was outside of the three-year window once the taxpayer filed the bankruptcy petition.

[00:29:23] Speaker 11:
So I guess in that sense, why wasn't that provision in Young something of a situational time bar in that the IRS is barred if its claim for taxes is older than three years and

[00:29:41] Speaker 11:
in the situation where the taxpayer goes into bankruptcy.

[00:29:47] Speaker 07:
Thank you, your honor.

[00:29:49] Speaker 07:
So just adjust your last point first.

[00:29:52] Speaker 07:
I think in Young, the court did not use the word barred.

[00:29:58] Speaker 07:
The court acknowledged that the

[00:30:00] Speaker 07:
provision did not preclude the IRS from pursuing all claims against the taxpayer.

[00:30:07] Speaker 07:
It only affected certain aspects of the claim, dischargability of the debt and priority of the debt.

[00:30:15] Speaker 07:
And that's why the Supreme Court said it's not, the Supreme Court acknowledged that this is not

[00:30:21] Speaker 07:
not exactly the same as a traditional statute of limitations for that reason, but it was nevertheless a limited statute of limitations and therefore amenable to equitable polling.

[00:30:33] Speaker 11:
If I could get to your other point, your first point that... Well, can we just stay on Young for a second?

[00:30:39] Speaker 11:
Sure.

[00:30:40] Speaker 11:
Just so I make sure I understand what you understand the dischargability, what

[00:30:50] Speaker 11:
What is your understanding of that?

[00:30:53] Speaker 11:
My understanding is that the IRS can't, the taxpayer no longer has to pay the debt on the tax claim.

[00:31:03] Speaker 07:
Is that right?

[00:31:04] Speaker 07:
That's correct, Your Honor.

[00:31:06] Speaker 07:
The debt would be discharged, so the IRS would not be able to.

[00:31:09] Speaker 11:
So it's the loss of a right that the IRS initially had to enforce, right?

[00:31:19] Speaker 07:
It didn't technically remove the right, like a statute of limitations would.

[00:31:26] Speaker 07:
It affected the amount that the IRS could recover.

[00:31:30] Speaker 07:
So the IRS could have multiple tax liens against the taxpayer over multiple years.

[00:31:36] Speaker 07:
And they would be able to recover any of the debts that were within the three-year look-back period, but they would not be able to recover the debts outside the three-year look-back period.

[00:31:48] Speaker 07:
So it doesn't.

[00:31:50] Speaker 11:
The debts are attached to claims.

[00:31:52] Speaker 11:
This is what I'm trying to understand.

[00:31:54] Speaker 11:
I mean, to me, it looks like there was a claim for back taxes.

[00:32:01] Speaker 11:
The IRS delayed in pursuing that claim.

[00:32:07] Speaker 11:
And then the taxpayer eventually went into bankruptcy.

[00:32:10] Speaker 11:
And then the debt on that tax claim ended up getting discharged.

[00:32:16] Speaker 11:
So why isn't that?

[00:32:18] Speaker 11:
as a functional matter very much the same thing as a bar on the IRS's tax claim, which therefore is basically a statute of limitations and through that the presumption applies.

[00:32:36] Speaker 07:
Well, I think it is.

[00:32:38] Speaker 07:
I think that's what the Supreme Court ultimately decided, but also acknowledged that

[00:32:45] Speaker 07:
It doesn't operate exactly like a statute of limitations.

[00:32:48] Speaker 07:
It affected the amount that the government could recover.

[00:32:52] Speaker 07:
Because the government could recover other, it could recover other claims and other tax years, but there was a cutoff as to how far back it could go.

[00:33:01] Speaker 11:
So collectively- So are you saying then, I'm sorry, I just, I want to make sure I completely understand.

[00:33:06] Speaker 11:
So for tax years that the taxpayer did not pay tax for,

[00:33:14] Speaker 11:
each of those tax years is an individual claim.

[00:33:18] Speaker 11:
And if for those claims were back taxes that arose inside the three years, those were not barred.

[00:33:26] Speaker 11:
But for those claims of tax years that were older than the three-year look-back period, then those ended up getting barred through being discharged.

[00:33:37] Speaker 11:
Am I understanding it correctly?

[00:33:39] Speaker 07:
I think that's correct.

[00:33:42] Speaker 07:
Again, I apologize.

[00:33:43] Speaker 11:
My familiarity with IRS tax code is not real strong, but I just wanted to point out that... No, we're talking about Young, though, and that's why I'm trying to understand why is it that you are analogizing the Young case, at least factually, to the present case when what I see going on in Young is a question of individual tax

[00:34:07] Speaker 11:
potential claims for different tax years.

[00:34:10] Speaker 11:
Some tax years are too old, so they get discharged in the bankruptcy proceeding, but some are still relatively new, and they don't get discharged.

[00:34:20] Speaker 11:
And now when we go to your facts here, what we're doing here is assigning an effective date for the amount of compensation.

[00:34:30] Speaker 11:
And it's all a single claim.

[00:34:37] Speaker 11:
the desire for retroactive compensation a year back or perhaps more for equitable tolling as being a separate individual claim from the claim for ongoing future monthly compensation payments.

[00:34:58] Speaker 11:
So this is the trouble I'm having with your analogy with Young and I'm hoping you could clarify that.

[00:35:05] Speaker 07:
I'll do my best, Your Honor, and I know we're past the three minutes, but I'll do my best.

[00:35:09] Speaker 07:
Why don't you take about 30 seconds to try to respond?

[00:35:12] Speaker 07:
Thank you.

[00:35:13] Speaker 07:
I will, Your Honor.

[00:35:13] Speaker 07:
Thank you.

[00:35:14] Speaker 07:
Young specifically noted that unlike most facets of limitations, the look-back period bars only some but not all legal remedies.

[00:35:23] Speaker 07:
And it was pointing to the fact that the IRS still has additional remedies against a bankrupt taxpayers, including equitable remedies.

[00:35:31] Speaker 07:
So that's what I was getting at.

[00:35:33] Speaker 07:
They didn't use the word barred.

[00:35:34] Speaker 07:
It didn't operate exactly like a statute of limitations.

[00:35:37] Speaker 07:
The IRS was actually not barred from pursuing those claims.

[00:35:41] Speaker 07:
But it did affect some aspects of it that could affect the amount that the IRS could recover.

[00:35:47] Speaker 07:
And the young court made the point that,

[00:35:50] Speaker 07:
even though this is a substantive part of the IRS's claim and not purely procedural, that doesn't matter.

[00:35:57] Speaker 07:
So the young court did away with this idea that so-called substantive aspects of the claim can never be pollable.

[00:36:05] Speaker 07:
Thank you.

[00:36:06] Speaker 10:
Thank you.

[00:36:07] Speaker 10:
Let's turn to Judge Hughes, please.

[00:36:10] Speaker 10:
Hi, Pap.

[00:36:13] Speaker 10:
Judge Stowe.

[00:36:15] Speaker 08:
Good morning, Mr. Barney.

[00:36:17] Speaker 08:
In Sebelius, the Supreme Court majority stated that this court has never applied Irwin's presumption to an agency's internal appeal deadline.

[00:36:26] Speaker 08:
The same could probably be said for an agency's internal filing deadline.

[00:36:31] Speaker 08:
Are you aware of any cases where the Supreme Court or Regional Circuit Court applied the Irwin presumption to an agency filing deadline?

[00:36:41] Speaker 08:
I know you mentioned the Fisher case earlier.

[00:36:43] Speaker 08:
And that was the Court of International Trade.

[00:36:46] Speaker 08:
But do you know of any Supreme Court or regional circuit cases?

[00:36:51] Speaker 07:
Yes, Your Honor.

[00:36:52] Speaker 07:
I would actually point, in addition to the Fisher case, I would point to Zipes.

[00:36:56] Speaker 07:
Because Zipes, the deadline at issue in Zipes was the deadline for filing a charge with the EEOC, which is an agency.

[00:37:04] Speaker 07:
That was the specific deadline that required tolling in order for the civil lawsuit under Title VII to move forward because the exhaustion of administrative remedies was an element or a condition precedent for a federal lawsuit under Title VII.

[00:37:23] Speaker 07:
So I think that's an example of, yeah.

[00:37:27] Speaker 08:
I thought that Zipes was perhaps decided before Irwin.

[00:37:30] Speaker 08:
Is that right?

[00:37:31] Speaker 07:
It was, but it was cited in Irwin.

[00:37:33] Speaker 07:
So in other words, Irwin essentially favorably cited advice for this principle that equitable tolling can apply to those types of deadlines.

[00:37:45] Speaker 07:
Thank you.

[00:37:47] Speaker 10:
Thank you.

[00:37:47] Speaker 10:
We'll now enter our second round, which is a one minute round.

[00:37:51] Speaker 10:
I will pass.

[00:37:54] Speaker 10:
Judge Newman.

[00:37:55] Speaker 01:
Well, I'll try and be very brief because I keep bringing us back to reality.

[00:38:01] Speaker 01:
And the question is now from what I've heard, what we're trying to achieve for this veteran is that the provision in the statute which says that your benefits run from the date of filing can be told, presumably one would come forward with reasons, which I take it would mean that every veteran

[00:38:28] Speaker 01:
whenever a request for benefits is filed would then be entitled to say that that veteran, the benefits would run from whatever date the veteran can establish might have been a filing date or might be available or is available in justice, in equity.

[00:38:52] Speaker 01:
Is that where we're,

[00:38:55] Speaker 01:
supposed to be going, is that the purpose of the equitable tolling position that we're being presented with?

[00:39:06] Speaker 07:
Your Honor, I will attempt to address that, but if I'm going the wrong direction, please let me know.

[00:39:12] Speaker 07:
The only tolling period, the only period we're asking to be told here is the one year period that applies for the first year after service.

[00:39:21] Speaker 07:
So the only veterans who would be affected or would be available to take advantage of what we're arguing here would be veterans who actually had a disability entitled to benefits during that first year.

[00:39:37] Speaker 07:
So we're talking about veterans who get out of the service and already have a disability

[00:39:41] Speaker 07:
or they develop a disability during that first year.

[00:39:44] Speaker 01:
You're asking for 30 years of tolling.

[00:39:48] Speaker 01:
That's where I get stuck.

[00:39:51] Speaker 07:
Well, we're not asking for 30 years of tolling, Your Honor.

[00:39:53] Speaker 07:
We're only asking for one year of tolling because it's a stopwatch.

[00:39:57] Speaker 07:
So that was what I was trying to explain earlier.

[00:39:59] Speaker 07:
In order for a veteran to actually prove that they're entitled to have 5110

[00:40:04] Speaker 07:
B1 equitably told, they would have to show that they had a disability that was so severe that they were unable to file.

[00:40:12] Speaker 01:
And that disability, it never abated, because if it abates for, let's say, two years, and let's say they're taking medication and they're... Let me interrupt you to make sure that you're now saying that what Mr. Arlano is asking for is his filing date plus one year, not his filing date

[00:40:33] Speaker 01:
plus 30 years.

[00:40:35] Speaker 07:
Your honor, Mr. Arellano, if he has the opportunity to present facts, which he has never had the opportunity to, nobody's ever considered his actual facts yet, he would try to make out a case that he has been severely disabled during that entire time.

[00:40:49] Speaker 07:
And so there was never, so the clock stopped, you know, the clock, the one year clock stopped 30 years ago and has never restarted because, or it didn't restart until he filed.

[00:41:00] Speaker 01:
All the one year did.

[00:41:02] Speaker 01:
was to say that within the first year, your benefits run from the date of discharge.

[00:41:11] Speaker 01:
If you file any time within the year, isn't any limitations period other than giving you the benefit of a few months after discharge to adjust.

[00:41:24] Speaker 01:
And that, it seems to me, is quite a different concept from

[00:41:29] Speaker 01:
Again, saying he'd be entitled now to demonstrate that for 30 years he was incompetent and incapable of filing.

[00:41:40] Speaker 01:
And therefore, the filing date provision of the statute should be told or waived.

[00:41:52] Speaker 07:
Your Honor, again, the period that we're asking to be told is only one year long.

[00:41:59] Speaker 01:
But what is that period?

[00:42:01] Speaker 01:
That's a look back date.

[00:42:05] Speaker 01:
It doesn't affect the rights.

[00:42:07] Speaker 01:
It affects the retroactivity.

[00:42:12] Speaker 07:
It affects the effective date.

[00:42:15] Speaker 07:
And so it does have a retroactive aspect to it.

[00:42:20] Speaker 07:
But you keep referring to 30 years of tolling.

[00:42:23] Speaker 07:
And I just wanted to be clear.

[00:42:24] Speaker 07:
We're not asking for thirty years of tolling, per se.

[00:42:28] Speaker 07:
It's a one-year period.

[00:42:29] Speaker 01:
What are you asking?

[00:42:31] Speaker 01:
What are you asking?

[00:42:33] Speaker 07:
Your Honor, if Mr. Ariano is able to present the facts that he believes supports his equitable tolling case, he would argue that he was mentally incompetent during the entire period of time from his discharge from service until his brother, acting as guardian ad litem, filed his actual claim for benefits.

[00:42:53] Speaker 07:
And that period was

[00:42:55] Speaker 07:
I believe in the order of 30 years.

[00:42:57] Speaker 07:
Now whether he'll actually be able to prove that up or not, we don't know because no court has actually addressed the merits of his claim.

[00:43:07] Speaker 07:
And so he may not be able to prove that up and he may ultimately not prevail.

[00:43:13] Speaker 02:
Thank you.

[00:43:13] Speaker 07:
Judge Laurie.

[00:43:15] Speaker 02:
Mr. Barney, just to make clear what we're dealing with with respect to an analogy to a statute of limitations, under our present

[00:43:24] Speaker 02:
precedent, Mr. Arellano isn't deprived of a benefit.

[00:43:29] Speaker 02:
He would have a benefit only as of what is a 2011 when, when he, he made his filing, isn't that correct?

[00:43:40] Speaker 07:
Um, he is deprived.

[00:43:44] Speaker 07:
He, well, he would have been entitled to a, so he, there is the medical evidence shows that he was

[00:43:50] Speaker 07:
disabled because of an event that occurred during service, and he was disabled from the time he was discharged from service.

[00:43:57] Speaker 07:
And so under Mr. Ariano's view, he missed out on benefits to which he was entitled to.

[00:44:04] Speaker 02:
Under present law, he didn't file within a year of discharge.

[00:44:10] Speaker 02:
Therefore, he's limited to when he actually filed, which was 2011.

[00:44:16] Speaker 02:
Isn't that right?

[00:44:17] Speaker 02:
In other words, he doesn't lose his claim.

[00:44:19] Speaker 02:
It's just a question of timing.

[00:44:22] Speaker 07:
If equitable tolling does not apply, then you are correct.

[00:44:25] Speaker 07:
In other words, if he's unable to equitably toll the deadline of 5110B1, then the rule of 5110A1 applies, and there's no exception to it, because he can't toll anything.

[00:44:36] Speaker 07:
And therefore, what you said is correct.

[00:44:39] Speaker 10:
Thank you.

[00:44:39] Speaker 10:
Judge Dyke.

[00:44:41] Speaker 12:
Just a quick question.

[00:44:42] Speaker 12:
What does the record show about the date at which the brother was appointed to be the guardian ad litem?

[00:44:49] Speaker 07:
Your Honor, I don't want to, I don't think, I don't know the date, Your Honor.

[00:44:56] Speaker 07:
It was some point prior to his application for actual benefits.

[00:45:02] Speaker 07:
I apologize, I don't have the specific date, but basically there was a long period of time where Mr. Arellano was mentally incompetent and then at some point his brother intervened and got the process started by filing

[00:45:18] Speaker 07:
a claim on his brother's behalf at the regional office.

[00:45:21] Speaker 07:
I apologize, I don't have the exact date.

[00:45:25] Speaker 10:
Judge Moore?

[00:45:27] Speaker 10:
Pass.

[00:45:29] Speaker 10:
Judge O'Malley?

[00:45:34] Speaker 10:
Judge O'Malley?

[00:45:38] Speaker 09:
Yes, I'm sorry.

[00:45:39] Speaker 09:
I was on mute.

[00:45:40] Speaker 09:
I just want to clarify something about your response to Judge Dyke in round one.

[00:45:47] Speaker 09:
to the extent that you agree that factors like whether or not the VA was at fault for purposes of the inability to file within one year or the failure to file within one year, and that you agree that that's relevant, that would be relevant at the final stage of the inquiry, which is assuming equitable tolling applies should it apply in this particular case.

[00:46:15] Speaker 09:
Is that right?

[00:46:16] Speaker 07:
Yes, your honor.

[00:46:17] Speaker 07:
That was my understanding of the question that was being presented.

[00:46:20] Speaker 07:
So assuming equitable tolling applies, then of course this court, the VA as well, would look at the particular facts.

[00:46:27] Speaker 07:
And there's a well-developed body of case law they could draw upon to say, well, this particular set of facts doesn't fall into a category that we recognize as being amenable for equitable tolling.

[00:46:38] Speaker 09:
Right.

[00:46:38] Speaker 09:
But that wouldn't go to the question of whether equitable tolling should apply in the first place.

[00:46:43] Speaker 07:
That's correct, your honor.

[00:46:45] Speaker 09:
And that would be true with respect to your response to Judge Newman, that to the extent that 30 years is part of it, right?

[00:46:55] Speaker 07:
That's correct, Your Honor.

[00:46:56] Speaker 07:
The question of whether 30 years is achievable in this case is completely dependent on the facts.

[00:47:02] Speaker 07:
And you don't even get to those facts until you apply, that you recognize that the statute itself is at least amenable to equitable tolling.

[00:47:13] Speaker 10:
OK.

[00:47:13] Speaker 10:
Thank you.

[00:47:18] Speaker 04:
I'll pass.

[00:47:20] Speaker 10:
Judge Wallach.

[00:47:22] Speaker 10:
I pass.

[00:47:23] Speaker 10:
Judge Taranto.

[00:47:25] Speaker 10:
I pass.

[00:47:27] Speaker 10:
Judge Chen.

[00:47:30] Speaker 11:
Hello again, Mr. Barney.

[00:47:32] Speaker 11:
Could we talk about 5110B4?

[00:47:37] Speaker 11:
As you know, that's a provision that contemplates in the context of disability pensions what the

[00:47:46] Speaker 11:
how to assign the effective date for that pension when the veteran claimant is totally disabled.

[00:47:55] Speaker 11:
And the government made an argument about how when you look at all of these exceptions in 5110B, they look like a very specific technical, highly reticulated statutory regime of Congress specifying how to

[00:48:17] Speaker 11:
assign effective dates in a lot of different circumstances.

[00:48:21] Speaker 11:
And B4, when you, on top of what B4 is already addressing, you look at the legislative history in 73 and 84, you see clear enough statements where Congress seemed to be clearly thriving at how to think about their expectations on when these effective dates would

[00:48:47] Speaker 11:
get assigned in a concrete way.

[00:48:51] Speaker 11:
And I'm just wondering, could you respond to the government's arguments about B-4 and then also those legislative history statements, if you're aware of them, from the House report in 73 and the House conference report in 84?

[00:49:09] Speaker 07:
With respect to B4, Your Honor, of course, that's a different type of benefit.

[00:49:16] Speaker 07:
So it's not the same disability benefit that B1 is addressed to.

[00:49:22] Speaker 07:
I understand that.

[00:49:24] Speaker 11:
This is more about the fact pattern of the fact that a veteran is totally disabled.

[00:49:30] Speaker 11:
Congress understood that that was going to make it particularly hard for the veteran to come forward

[00:49:39] Speaker 11:
immediately after that total disability and chose to give a one-year grace period for that circumstance.

[00:49:49] Speaker 07:
Right.

[00:49:49] Speaker 07:
So I think that this fact pattern fits into the observation that the Supreme Court made in Young, as well as in other cases, which is where you find arguably an equitable provision elsewhere in a statute.

[00:50:08] Speaker 07:
Far from actually leading you to the conclusion that Congress didn't intend equity to apply to any other provision of the statute, it actually has the opposite effect.

[00:50:18] Speaker 07:
So the court said in Young, under a very similar fact pattern, that if anything, that other equitable provision demonstrates that the bankruptcy code incorporates traditional equitable principles.

[00:50:31] Speaker 07:
And it goes back to a question I believe, I forget which judge it was, but somebody had asked me a question earlier about how to reconcile those two lines of cases.

[00:50:43] Speaker 07:
I believe that

[00:50:44] Speaker 07:
To the extent that B4 is construed as an equitable exception, it's not an equitable exception that would apply to that 5110B1.

[00:50:56] Speaker 07:
So it's not a situation like in Begerley or the TRW case.

[00:51:02] Speaker 07:
It's another section.

[00:51:03] Speaker 07:
And that would bring you to a case like Young that says, if anything, that shows that Congress intended equity to apply generally to the statute.

[00:51:14] Speaker 10:
Judge Hughes?

[00:51:17] Speaker 10:
I pass.

[00:51:18] Speaker 10:
Judge Stowe?

[00:51:20] Speaker 08:
I pass.

[00:51:23] Speaker 10:
All right.

[00:51:23] Speaker 10:
By my count, Mr. Barney, to retain your rebuttal, you've got about 46 seconds left to wrap it up on this round.

[00:51:34] Speaker 07:
Thank you, Your Honor.

[00:51:38] Speaker 07:
Do I need to say anything, or is that it?

[00:51:40] Speaker 10:
No.

[00:51:41] Speaker 10:
Perfectly.

[00:51:42] Speaker 10:
You never, as Judge Laurie, I think, always says, you never get penalized for giving up time.

[00:51:47] Speaker 10:
So we will just retain your eight minutes and 27 seconds for rebuttal.

[00:51:51] Speaker 10:
And let's turn to Ms.

[00:51:52] Speaker 10:
Thomas.

[00:51:53] Speaker 10:
Thank you, Your Honor.

[00:51:54] Speaker 10:
Thank you.

[00:51:56] Speaker 10:
Ms.

[00:51:56] Speaker 10:
Thomas, you can begin with your three minutes of interrupted speaking.

[00:52:01] Speaker 00:
Thank you, Your Honor.

[00:52:03] Speaker 00:
And may I please the court?

[00:52:05] Speaker 00:
The availability of equitable tolling to alter a statutorily prescribed time period is determined solely by congressional intent.

[00:52:15] Speaker 00:
In appropriate contexts where Congress has provided no affirmative evidence of its intent as to tolling, the presumption discussed in Erwin may be deployed to fill that gap.

[00:52:26] Speaker 00:
for the reasons set forth in our brief that Erwin presumption can't be properly applied to Section 5110B1, and then I'm happy to answer the court's questions on that point today.

[00:52:37] Speaker 00:
That being said, there is actually no need to determine the applicability of that presumption in this matter because Congress has provided unmistakable evidence of its intent regarding the prospect of tolling the time period set forth in Section 5110.

[00:52:51] Speaker 00:
That evidence is the text of the statute itself.

[00:52:55] Speaker 00:
And that text clearly indicates that Congress did not intend to allow equitable tolling.

[00:53:01] Speaker 00:
Contrary to what Mr. Arellano appears to argue in his brief and tolling the one-year period described in section B1 would not involve implying an exception to the rule set forth in that particular section, B1 itself.

[00:53:17] Speaker 00:
That rule only controls what the effective date will be for a claim submitted within one year after discharge.

[00:53:23] Speaker 00:
It does not specify what the effective date will be for claims that are submitted after the end of that one-year period.

[00:53:30] Speaker 00:
Instead, Section 5110A establishes the rule for that scenario, generally speaking, for the scenario in which an initial disability compensation claim like Mr. Ariana's is submitted more than one year after discharge.

[00:53:45] Speaker 00:
That is the rule whose plain language would be contravened if Mr. Ariano's claim were assigned an effective date earlier than the date of receipt of his claim, and that is the rule to which an exception would have to exist to allow Mr. Ariano to receive an earlier effective date.

[00:54:01] Speaker 00:
But there is no express statutory exception to that rule, and that is why Mr. Ariano asked this court to create an unwritten exception to that rule by invoking the doctrine of equitable tolling.

[00:54:14] Speaker 00:
Congress

[00:54:15] Speaker 00:
precluded that result in the text of the statute.

[00:54:19] Speaker 00:
The rule set forth in subsection A must apply according to the statute itself, quote, unless specifically provided otherwise in this chapter, end quote.

[00:54:29] Speaker 00:
That is in the chapter of the United States Code that governs veterans' claims and effective dates.

[00:54:34] Speaker 00:
No provision of that chapter specifically provides for exceptions created through equitable tolling.

[00:54:40] Speaker 00:
Instead, Congress explicitly accounted for equitable concerns by adopting the numerous express exceptions contained within the statute itself.

[00:54:50] Speaker 00:
That statutory framework makes clear that Congress did not intend to allow for open-ended judge equitable tolling subject to the discretion of judges.

[00:55:02] Speaker 00:
As a result, the judgment of the Veterans Court in this matter should be affirmed.

[00:55:06] Speaker 00:
Thank you.

[00:55:08] Speaker 00:
Thank you.

[00:55:09] Speaker 10:
This is Chief Judge Prost, Ms.

[00:55:12] Speaker 10:
Thomas.

[00:55:13] Speaker 10:
Let me start you off by directing your attention to the Young case and also to the copyright cases.

[00:55:19] Speaker 10:
Those seem to me to be the cases that your friend most relies on for the conclusion that this is a type of statute of limitations.

[00:55:29] Speaker 10:
So you've got a couple minutes, I'll give you a couple minutes to address one or all of those cases if you have time.

[00:55:36] Speaker 00:
Certainly, Your Honor.

[00:55:37] Speaker 00:
So with respect to Young, there are two key facts about that case that explain why Mr. Areola's reliance is unwarranted.

[00:55:49] Speaker 00:
First of all, the court did say in Young that a statute of limitations may only abolish some remedies, not all remedies for a claim.

[00:56:02] Speaker 00:
That doesn't make the statute at issue in Young similar to 5110B1 because that statute doesn't abolish any remedies for a claim.

[00:56:16] Speaker 00:
The remedy that's available within the one-year period after discharge, which is an award of disability compensation, is the same remedy that's available after that period.

[00:56:26] Speaker 00:
Second, even though the

[00:56:29] Speaker 00:
statutory limitations period at issue in Young only specifically addressed two particular remedies and their availability based upon timing.

[00:56:40] Speaker 00:
In practical effect, there was no remedy for the IRS outside of those two specific remedies outside of the three-year limitations period that was at issue there.

[00:56:53] Speaker 00:
When the court said in Young that, oh, it may be possible that there could be

[00:56:59] Speaker 00:
other remedies aside from being here the court in a footnote said it was alluding to equitable remedies such as the possibility of recruitment uh... if the taxpayer presumably should ever happen to see the government years later maybe i rest would be able to set off uh... any recovery against the unpaid tax claims obviously that's not a claim that uh... a remedy that would have much value to the iraq prospectively because there's no reason to believe it would ever materialize

[00:57:28] Speaker 00:
In practical effect, the only remedies for the IRS to collect on the stale tax claims once the taxpayer had entered into bankruptcy were the two that were specified by the bankruptcy code, either priority, which requires the claims to be paid during the bankruptcy proceedings, or non-dischargeability, which means the claims survive

[00:57:53] Speaker 00:
after the proceedings conclude.

[00:57:56] Speaker 00:
That's the only reason the court could conclude in Young that the limitations period there served the function of a statute of limitations by providing repose through eliminating stale claims.

[00:58:10] Speaker 00:
If there had been an effective remedy for the IRS still remaining after the bankruptcy process was over, there would have been no repose for the taxpayer.

[00:58:22] Speaker 10:
Oh, well, time has run out, so I'll leave it to my colleagues if they're interested in hearing from you on the copyright cases.

[00:58:29] Speaker 10:
But let me turn to Judge Newman.

[00:58:31] Speaker 10:
Thank you.

[00:58:33] Speaker 10:
Judge Newman.

[00:58:34] Speaker 01:
Okay, well, let me turn to another aspect.

[00:58:39] Speaker 01:
The court in Erwin, what they really said, as I understand it, was that equitable tolling should be as available against the government.

[00:58:52] Speaker 01:
as it is available against the private sector.

[00:58:55] Speaker 01:
And so let's just take an example.

[00:58:59] Speaker 01:
We really don't have all of the facts as to this veteran, but let's assume that he was in fact totally disabled for a prolonged period of time and that it is now established beyond debate that that was service connection.

[00:59:19] Speaker 01:
So here,

[00:59:20] Speaker 01:
If we were dealing with a private sector, my sense is that a court would be interested in and permitted even by the statute to consider the equities in a particular case.

[00:59:36] Speaker 01:
Of course, what troubles me, as I may have already made clear, is that if we remove the limitation that Congress has set by saying, well, you can argue the equities,

[00:59:51] Speaker 01:
as to how in the world the VA could handle this with all of the veterans in the nation.

[01:00:00] Speaker 01:
But as a matter of general principle, why shouldn't equity always be a factor when you eventually end up in court?

[01:00:11] Speaker 00:
Yes, Your Honor.

[01:00:14] Speaker 00:
Two pieces to my response.

[01:00:18] Speaker 00:
The court in Irwin was addressing the question of whether equitable tolling on any basis was available in the first instance, which is a sort of question precedent to determining whether once it's determined that equitable tolling is available, the circumstances of a particular case warrant that release.

[01:00:45] Speaker 00:
So it may be true that

[01:00:48] Speaker 00:
In for a statute of limitations where equitable towing is available as a general matter, a circumstance where a disability prevented the plaintiff from filing for a certain period of time, that might be grounds for towing.

[01:01:05] Speaker 00:
But that wouldn't answer the question of whether in the first instance the statute can be told at all, which is what, as I understand it, the court was addressing in Irwin.

[01:01:16] Speaker 00:
The second piece is in response to the court's question regarding why shouldn't the court always take into account equity.

[01:01:27] Speaker 00:
The problem is that the court's first obligation is to follow the law as embodied by the statutes that Congress has passed and the Constitution, of course, that governs our entire system of law.

[01:01:42] Speaker 00:
And if those sources

[01:01:45] Speaker 00:
provide for a particular result, then the court's feeling of equity must give way to the preferences of Congress.

[01:01:55] Speaker 00:
And equitable tolling as a doctrinal principle, as the Supreme Court makes clear, is available only if Congress wanted it to be.

[01:02:05] Speaker 00:
So the determinative factor is what Congress's intent was.

[01:02:10] Speaker 00:
not whether the court may feel in a given case that equity would require a certain result.

[01:02:18] Speaker 10:
Judge Lurie.

[01:02:20] Speaker 10:
No question.

[01:02:22] Speaker 10:
Judge Dyke.

[01:02:23] Speaker 12:
Thank you.

[01:02:24] Speaker 12:
Ms.

[01:02:24] Speaker 12:
Thomas, I'd like to ask you the same question that I first asked Mr. Borney, and that is, assuming that there is a presumption of equitable tolling and the question is whether the statute rebuts it,

[01:02:39] Speaker 12:
Isn't it incorrect to really look at this as an all or nothing proposition?

[01:02:45] Speaker 12:
And I'm not suggesting that it should be case by case.

[01:02:49] Speaker 12:
What I'm suggesting it ought to be category by category.

[01:02:53] Speaker 12:
And it seems to me that the statute is pretty clear that Congress has dealt in great detail with the question of disability, both by having a specific provision that the legal representative can file the claim on behalf of the veteran,

[01:03:10] Speaker 12:
5110B4, the tolling provision in the pension context and the history of the one-year discharge provision itself.

[01:03:23] Speaker 12:
So I could accept the idea that the statute rebuts a presumption of tolling for disability.

[01:03:30] Speaker 12:
But it seems to me when you get to situations like the Ravine situation where the government has prevented

[01:03:37] Speaker 12:
the individual for filing, from filing the disability claim, that there's a strong indication in the statute by the adoption of the duty to assist, that if it's the government's fault that you couldn't file on time, that you should be available to get equitable tolling in that situation.

[01:03:55] Speaker 12:
So what's the matter with looking at this situation in that more nuanced way?

[01:04:04] Speaker 00:
So I think the problem, Your Honor,

[01:04:06] Speaker 00:
Which is also, I would say, reflected in the fact that there are no cases that I'm aware of that take that sort of granular approach to the availability of equitable tolling.

[01:04:21] Speaker 12:
There are no cases the other way either, are there?

[01:04:24] Speaker 00:
Well, there are certainly cases in which the court could have taken that approach if it believed it warranted, for example, in any case where the court said that these specific exceptions indicate that Congress

[01:04:35] Speaker 00:
had decided when it wanted exceptions to be made and therefore implicitly foreclosed others, the court could have said instead, well, we think that obviously additional exceptions based on the reasons that embodying these exceptions can't be made, but others are available.

[01:04:54] Speaker 00:
And I think the reason that that result is one that would be difficult to reach is that

[01:05:02] Speaker 00:
Again, the basis of equitable polling, the availability of it, is determined by congressional intent.

[01:05:09] Speaker 00:
The presumption is a blunt tool.

[01:05:13] Speaker 00:
We can say that Congress can be assumed to have wanted to allow polling in circumstances where there's a very long pattern in the common law of polling a certain type of statute.

[01:05:30] Speaker 12:
But the... How could it be that in the rabine situation where the government prevented the veteran from filing the claim by classifying the information and prohibiting him from doing it?

[01:05:41] Speaker 12:
How could it be that Congress intended that there should be no ability for tolling in that situation?

[01:05:49] Speaker 00:
That situation, to be honest, your honor, sounds almost as like, almost as,

[01:05:56] Speaker 00:
as an argument for equitable tolling on sort of an equitable estoppel ground.

[01:06:01] Speaker 00:
And the Supreme Court has made clear that that's not permitted at all in cases where a petitioner is seeking money from the government because it would be a violation of the appropriations clause to allow the conduct of particular government agents to override congressional intent as to the availability of the remedy.

[01:06:26] Speaker 12:
You're not addressing the question of this statute and whether Congress in this statute indicated that in the Rabine situation there should be no equitable tolling.

[01:06:35] Speaker 12:
I find it difficult to find in this statute, put aside Richmond, any indication that somebody in the Rabine situation would not benefit from equitable tolling.

[01:06:44] Speaker 12:
Is there such an indication?

[01:06:48] Speaker 00:
Well, that sort of reverses the,

[01:06:52] Speaker 00:
the question, Your Honor.

[01:06:53] Speaker 00:
Typically, Congress has to specifically authorize the availability of a remedy, and there is no specific authorization for a remedy here.

[01:07:02] Speaker 00:
In fact, the fact that Congress gave the VA equitable discretion through 38 USC 503 to offer relief in a case where a veteran or other claimant was disadvantaged by a VA error suggests that

[01:07:20] Speaker 00:
Congress wanted those situations to be dealt with on a discretionary basis by VA, not by judges creating equitable exceptions.

[01:07:36] Speaker 00:
Yes.

[01:07:38] Speaker 10:
Okay.

[01:07:38] Speaker 10:
Thank you.

[01:07:40] Speaker 10:
Judge Moore?

[01:07:41] Speaker 00:
I cede my time to Judge Dyke in the event that he has any further questions you'd like to pursue in the same vein.

[01:07:47] Speaker 10:
Okay.

[01:07:48] Speaker 10:
Judge Dyke, the floor is yours.

[01:07:50] Speaker 12:
I don't think, honestly, Ms.

[01:07:54] Speaker 12:
Thomas, that you've answered my question as to where in this statute there's any indication that Congress wished to preclude equitable polling in the Ravine situation, whereas there's quite a lot of indication that it micromanaged, if you will, the disability situation and didn't leave to the courts the ability to shape

[01:08:17] Speaker 12:
a remedy which is different.

[01:08:19] Speaker 12:
I mean, isn't there a big difference in the statute between disability, the disability situation and the government fault situation?

[01:08:27] Speaker 00:
Well, here's a response, Your Honor.

[01:08:30] Speaker 00:
If Congress had intended that the courts could disregard the plain language of the statute in circumstances where they believed that the VA's conduct had been sufficiently egregious

[01:08:44] Speaker 00:
uh... in in failing to uh... render assistance or or even you know doing the opposite in being uh... uh... an obstruction to filing a claim and presumably congress would have provided a statutory time period that would have been you know we're here we're talking about the one-year period after discharge presumably congress would have provided a one-year period that would apply to all claimants but it didn't uh...

[01:09:14] Speaker 00:
There are, in many cases, there are claimants who don't have any service-connected disability within the one year after discharge.

[01:09:25] Speaker 00:
It doesn't show up until years later.

[01:09:27] Speaker 00:
And in fact, the statutory scheme explicitly contemplates that, providing for a presumption of service connection for, for example, veterans who contract tuberculosis within the three years after discharge.

[01:09:40] Speaker 00:
And in that case, the default rule applies.

[01:09:43] Speaker 00:
It's the effective date cannot be earlier than the date of receipt of claim.

[01:09:49] Speaker 00:
There's no period to toll there.

[01:09:52] Speaker 00:
If Congress had intended to allow equitable tolling as a means to remedy some failure to assist, it would be strange to write the statute in a way where some claimants would be able to take advantage of that remedy, but others would not.

[01:10:11] Speaker 12:
Okay, I think I'm out of time.

[01:10:13] Speaker 00:
Judge O'Malley.

[01:10:16] Speaker 09:
Yes.

[01:10:18] Speaker 09:
Counsel, you make two related arguments.

[01:10:20] Speaker 09:
One is that there shouldn't be any equitable tolling because that would be essentially writing into the statute something that wasn't there.

[01:10:31] Speaker 09:
And you argue that there also shouldn't be equitable tolling because those exceptions

[01:10:41] Speaker 09:
B through N are effectively equitable exceptions in any event, or akin to equitable exceptions.

[01:10:49] Speaker 09:
Now, as to the first, I don't understand how your argument wouldn't apply to every single equitable tolling case.

[01:10:57] Speaker 09:
By definition, there's always something else being written into the statute that allows for equitable tolling where there's no express provision.

[01:11:06] Speaker 09:
And then, as for the second part,

[01:11:08] Speaker 09:
how do you deal with the language in Holland and Young and even in our Cloer en banc where the Supreme Court and we have recognized that the fact that there's exceptions that would be akin to an equitable exception in the statute would also be indicative of the beneficence of Congress with respect to that statutory scheme and actually could support additional equitable provisions.

[01:11:39] Speaker 00:
So with respect to the first question, when a court applies equitable tolling, of course they're implying a term into a statute that isn't there.

[01:11:50] Speaker 00:
But the difference is that in the cases where tolling is permitted of a statute of limitations, it's always the same condition to which the court finds an exception, which is

[01:12:09] Speaker 00:
the claim must be brought within this period or the claim will be barred.

[01:12:13] Speaker 00:
And the court implies an exception by saying, well, also if the claim is not brought within that period, but there were extraordinary circumstances that prevented it, then it won't be barred.

[01:12:28] Speaker 00:
That's not the kind of language that Section 5110

[01:12:36] Speaker 00:
includes that indicates that Congress didn't want to allow tolling.

[01:12:40] Speaker 00:
5110 says this is the rule, and I'm specifically talking about 5110A, that provision says that this is the rule of decision for determining the effective date unless specifically provided otherwise in this chapter.

[01:12:55] Speaker 00:
The rule specifically addresses the role of exceptions to its own default rule.

[01:13:03] Speaker 00:
which means that it's addressing precisely the scenario that the doctrine of equitable tolling is supposed to act as a gap filler for because the statute itself addresses that scenario, there's no gap to fill.

[01:13:16] Speaker 00:
With respect to the second question, when the Supreme Court has looked at exceptions to a statute of limitations to decide whether those exceptions indicate that

[01:13:33] Speaker 00:
indicate that Congress wanted to take care of equitable considerations itself rather than leaving it to the court.

[01:13:41] Speaker 00:
The Supreme Court has looked at whether the exceptions included are the sort that would be encompassed by the doctrine of equitable tolling if it were applied.

[01:13:55] Speaker 00:
And if they are those sorts of exceptions, then the court has found

[01:14:00] Speaker 00:
that they indicate Congress's wish to displace the doctrine of equitable tolling.

[01:14:05] Speaker 00:
In this case, the exceptions that Congress has provided for the default rule in Section 5110 are precisely the types of exceptions that account for equitable considerations and would be, in many cases, the sorts of grounds that would be invoked to rely upon equitable tolling.

[01:14:27] Speaker 00:
entirely consistent if not dictated by the Supreme Court's approach to exceptions in its cases that where the exceptions Congress has provided are themselves addressing equitable considerations that they indicate a desire to displace the equitable tolling doctrine.

[01:14:46] Speaker 10:
Judge Raina.

[01:14:48] Speaker 04:
Okay, I want to take us back to the question about the pro-veteran's canon.

[01:14:54] Speaker 04:
Ms.

[01:14:54] Speaker 04:
Thomas, she said that the equitable doctrinal principle is initial congressional intent.

[01:15:01] Speaker 04:
And that may be true, but it's something that's arguable.

[01:15:05] Speaker 04:
And we've heard argument and questions on that this morning.

[01:15:10] Speaker 04:
But there's another congressional intent involved here, and that's with respect to the pro-veteran standard.

[01:15:18] Speaker 04:
There, it's clear, and I don't know of any argument that says that Congress does not intend

[01:15:24] Speaker 04:
for the pro-veteran canon to apply to veterans' benefits or the Veterans Act.

[01:15:33] Speaker 04:
In fact, it's the opposite.

[01:15:34] Speaker 04:
It's clear that Congress intends that the pro-veterans canon apply to provisions for benefits to members.

[01:15:43] Speaker 04:
And again, provisions for benefits to members, which is exactly what we have here.

[01:15:48] Speaker 04:
So I have a two-part question.

[01:15:52] Speaker 04:
Let's see.

[01:15:53] Speaker 04:
So first, is it your position that Section 5110B1 is crystal clear that it can never be equitably told under any circumstance, regardless of how extreme the facts are?

[01:16:05] Speaker 04:
Or instead, wouldn't you concede that there's at least some ambiguity in terms of whether Section 5110B1 may be equitably told in certain, let's say, extreme cases?

[01:16:21] Speaker 04:
And my second question is, assuming that it is at least somewhat ambiguous whether Section 5110B1 may be equitably told at all, why wouldn't the veterans' canon tip the skills in favor of the veterans, at least so that it applies in narrow, extreme circumstances?

[01:16:43] Speaker 04:
You know, the pro-veterans' canon

[01:16:47] Speaker 04:
has an impressive historical pedigree at the Supreme Court as well as this court's precedent.

[01:16:54] Speaker 04:
And in this case, the doctrine applies to the veterans for the service-connected disability, something that we know exists in this particular case.

[01:17:07] Speaker 04:
So we have a veteran who's paid the price on his part.

[01:17:12] Speaker 04:
Apparently, there's disability

[01:17:15] Speaker 04:
from the day he left the service until the day, well, until today?

[01:17:21] Speaker 04:
That's my question.

[01:17:23] Speaker 00:
Yes, Your Honor.

[01:17:25] Speaker 00:
To be clear, we do believe that the statute, the statutory scheme is clear that equitable tolling is not permitted.

[01:17:32] Speaker 00:
We don't believe that there's any degree of ambiguity that would warrant invocation of the veteran's canon.

[01:17:38] Speaker 04:
And further, under any circumstance, regardless of how extreme the facts are,

[01:17:45] Speaker 00:
Yes, Your Honor, because this suggestion that the availability of tolling as a general proposition depends upon how extreme the facts are suggests really attributes a degree of specificity to Irwin and to its presumption that is not realistic.

[01:18:10] Speaker 00:
It's a blunt instrument.

[01:18:13] Speaker 00:
Once the court moves past simply applying the presumption to reach the conclusion that the equitable tolling as that doctrine has long been understood under the common law is permissible, once the court begins to construct some narrower version of it or a new version for application only with respect to the statute, I think we've gone far beyond attempting to discern the intent of Congress into

[01:18:41] Speaker 00:
the court essentially rewriting the statutory scheme to reflect the court's sense of equity, which is, of course, not permissible.

[01:18:50] Speaker 00:
With respect to the veterans' canon in general, again, if we go back to the question of legislative intent, congressional intent, when subsection B1 was passed in 1943, there was no veterans' canon.

[01:19:08] Speaker 00:
The first

[01:19:10] Speaker 00:
sort of slight suggestion at it happened a few years later, but that was certainly not the strong form of it that was first articulated in the 90s.

[01:19:19] Speaker 00:
So Congress would have had no reason when it passed B-1 in 1943 to think that this statute, which itself is not a statute of limitations,

[01:19:33] Speaker 00:
would be transformed subject to a court sense of equity based upon a canon that was not yet known to the law yet the law was began to formulate with uh... brown versus gardener don't you agree in nineteen ninety four yes yes that that was the origin of the current uh... iteration or current uh... approach to the veterans canon yes

[01:20:00] Speaker 04:
And since that time, there hasn't been any court case or anything from Congress that indicates that the Gardner presumption as it was known at that time, which is a pro-veteran's canon as we call it today, that it was infirm or somehow did not apply in certain situations.

[01:20:20] Speaker 04:
Would you agree that it applies in all cases involving statutory interpretation?

[01:20:27] Speaker 00:
No, Your Honor, it only applies where there are two reasonable interpretations of the statute and the court is unable to decide which is the proper interpretation using other traditional tools of statutory interpretation.

[01:20:43] Speaker 00:
And I also kind of want to push back on the idea that the veterans' canon, like the Irwin presumption, is really a blunt instrument

[01:20:53] Speaker 00:
At the end of the day, it asks the court to decide what's in a veteran's favor, and that's really a position that a court is not institutionally best positioned to decide in many cases, including I would say this one where we're talking about where equitable tolling would involve trading off the administrative efficiency of the veteran's benefit system against the relief that may be afforded to a relatively small number of claimants.

[01:21:24] Speaker 00:
Well, of course the courts, okay.

[01:21:27] Speaker 10:
I'm sorry, Judge Raina, go ahead if you have something to follow up.

[01:21:31] Speaker 04:
Well, I was just going to make the, to respond that of course the courts are called upon to decide these type of issues.

[01:21:40] Speaker 04:
And we're being called upon to decide whether there's any ambiguity or the applicability of Section 5110B1.

[01:21:49] Speaker 04:
And staring at me in the face is the Gardner presumption.

[01:21:54] Speaker 04:
but you know now the pro-veterans can, and I asked you several questions, and you, I think you only referred or responded halfway, but anyway, I thank you for your response.

[01:22:09] Speaker 03:
Judge Wallach.

[01:22:11] Speaker 03:
Yes, thank you.

[01:22:15] Speaker 03:
Eileen, are you familiar with the facts of Taylor?

[01:22:19] Speaker 00:
I am not, Your Honor.

[01:22:22] Speaker 03:
Okay, I'll work through them with you then.

[01:22:25] Speaker 03:
Okay.

[01:22:25] Speaker 03:
We know that from 1955 to 1975, the Department of Defense undertook various human experiments and that those experiments involved soldier volunteers who were exposed to chemical warfare agents.

[01:22:42] Speaker 03:
And we know that those volunteers were assigned secrecy oaths

[01:22:50] Speaker 03:
that they could not divulge, quote, any information relating to their participation in the experiments, under penalty of a general court martial, which under the uniform code of military justice at that time, could result in a death penalty.

[01:23:07] Speaker 03:
In 1969, the DOD experimented on a soldier volunteer, exposing him to a nerve agent, like VX or sarin, to measure its effect on his performance.

[01:23:21] Speaker 03:
And we know that those nerve agents affect neural synapses and the ability of a soldier to effectively think.

[01:23:30] Speaker 03:
The soldiers deployed to Vietnam, and while on active duty, he tries to get medical care to deal with the consequences of his exposure.

[01:23:40] Speaker 03:
And he's turned away as, quote, a liar and malinger.

[01:23:45] Speaker 03:
He's discharged in 1971.

[01:23:49] Speaker 03:
the DOD finally declassifies its experiments in 2006.

[01:23:55] Speaker 03:
That same year, the soldier volunteer receives a letter from the VA saying the DOD has now given permission for him to disclose to healthcare providers information about his involvement in testing programs.

[01:24:11] Speaker 03:
And he can speak to a VA representative.

[01:24:16] Speaker 03:
Right after that,

[01:24:17] Speaker 03:
he files a claim for service-connected benefits or PTSD, the VA grants the volunteer's claim.

[01:24:26] Speaker 03:
Under our current law, what's the earliest effective date available for the soldier volunteer?

[01:24:35] Speaker 00:
I believe that would be... I'm sorry?

[01:24:38] Speaker 03:
It was 2006 when they declassified.

[01:24:42] Speaker 00:
Right.

[01:24:43] Speaker 00:
So the date of the receipt of claim.

[01:24:47] Speaker 03:
Is there any recourse available to him, any provision of law that might get him in an earlier effective date than when the DOD gave him permission to file his claim?

[01:25:04] Speaker 00:
Not that I'm aware of, Your Honor, and obviously the scenario you're describing or the facts that you're describing are deeply disturbing and

[01:25:14] Speaker 00:
would warrant as a policy matter some kind of relief.

[01:25:18] Speaker 00:
But those are the kind of circumstances that are appropriate, precisely appropriate for Congress to address.

[01:25:24] Speaker 00:
And Congress has actually addressed the situation of veterans whose situation is quite similar to what you've just described.

[01:25:32] Speaker 00:
On, now to be clear, not, but would not cover the situation you're describing there as of yet.

[01:25:40] Speaker 00:
On page 45 of our brief, in a footnote we cite to a statute that was passed by Congress in 2017 that addressed the situation of World War II veterans who were subjected to experimentation using mustard gas and who were also forbidden from discussing the details of those experiments.

[01:26:06] Speaker 00:
and who had difficulty ever even proving that they had been involved in the experiments because much of the documentation involved with them had been lost or destroyed.

[01:26:19] Speaker 00:
Congress provided, especially in that statutory scheme we cite on page 45, for a new adjudication of claims brought by those veterans and for the provision of certain

[01:26:36] Speaker 00:
special evidentiary rules or the application of certain special evidentiary rules to ensure that it was more likely the claims of those veterans would be granted.

[01:26:46] Speaker 00:
At the same time, Congress specified that there should be a special effective date assigned for those veterans, and the effective date was the date of the receipt of the prior claim that had been denied.

[01:27:00] Speaker 00:
So even in that case, which

[01:27:02] Speaker 00:
quite similar and very sympathetic, where also the veterans were by the government's action prevented from receiving benefits earlier, the Congress did not display an inclination to change the default effective date rules, which only serves to emphasize that it is Congress's intent and will that the rules as they are written be applied even in

[01:27:30] Speaker 00:
situations that are extremely sympathetic.

[01:27:34] Speaker 00:
And under a system of the rule of law, the best way of ensuring fairness in the system overall is to apply the rules of congressional statutes the way that they are written.

[01:27:50] Speaker 03:
Yeah, it's interesting that you refer to a system of the rule of law, given the circumstances.

[01:27:55] Speaker 03:
One other question.

[01:27:58] Speaker 03:
Given Ferris and the Ferris Doctrine,

[01:28:01] Speaker 03:
Could the soldier bring an action in tort?

[01:28:07] Speaker 00:
I don't know, Your Honor.

[01:28:08] Speaker 00:
That occurred to me as well, but I don't have enough of a background in the Tort Claims Act to say.

[01:28:17] Speaker 00:
I mean, I believe that typically injuries growing out of military service are precluded.

[01:28:24] Speaker 00:
However, I don't know whether there might be some exception to that rule where the injury

[01:28:29] Speaker 00:
You know, in this case sort of arises after service in the form of, you know, an inability to file a claim promptly, for example.

[01:28:41] Speaker 00:
I don't know whether there might be some way of prosecuting a tort claim on those facts.

[01:28:49] Speaker 03:
Yeah, unfortunately the injury arose immediately.

[01:28:55] Speaker 03:
Okay, thank you.

[01:28:56] Speaker 03:
I'll pass.

[01:28:58] Speaker 06:
Judge Toronto.

[01:28:59] Speaker 06:
Sure.

[01:29:01] Speaker 06:
Can I just return to a subject that the chief brought up with Mr. Barney right at the beginning and see if you can help illuminate it a little bit.

[01:29:10] Speaker 06:
If there's an equitable tolling doctrine, then how is that going to work in practice?

[01:29:16] Speaker 06:
Does each of the regional office adjudicators, I assume they, each one has to assign an effective date.

[01:29:23] Speaker 06:
And if that effective date is assigned in a way that's favorable to the veteran,

[01:29:28] Speaker 06:
under what circumstances, if any, can that be disturbed by the Secretary, the Board, the Veterans Court, and considering in particular the 2017 5104A provision about not disturbing Veterans favorable findings.

[01:29:52] Speaker 06:
It's not absolute, but it's

[01:29:54] Speaker 00:
Yes, Your Honor, I don't believe there probably would be a way of disturbing it once it was assigned.

[01:30:04] Speaker 00:
Of course, the only way to reverse a favorable finding is upon a finding of clear and unmistakable error, but that usually requires a legal error.

[01:30:16] Speaker 06:
Just to be clear, I think 51-04A, oddly enough, uses clear and convincing evidence.

[01:30:23] Speaker 00:
Okay.

[01:30:23] Speaker 00:
Okay, well, so that also would be a standard that would be nearly impossible to meet because the equitable tolling is sort of a judgment call and is not, I suppose if the evidence actually suggested

[01:30:45] Speaker 00:
You know, if the evidence actually indicated the opposite of whatever the basis for tolling was, maybe there might be a grounds for saying that clear and convincing evidence showed that it was wrong.

[01:30:58] Speaker 06:
Can I just follow that up?

[01:31:00] Speaker 06:
I think Mr. Barney referred to the possibility of regulations and you have a footnote, maybe footnote six or something in your brief.

[01:31:09] Speaker 06:
saying, you know, we do have some regulatory authority, but since, as I understand it, the last sentence says that we couldn't create a regulation about equitable tolling because it would be contrary to the statute.

[01:31:22] Speaker 06:
If this court were to disagree with the proposition that no equitable tolling is permitted under the statute or some categories of equitable tolling, if we were to say might be available under the statute,

[01:31:39] Speaker 06:
Would there be regulatory authority?

[01:31:43] Speaker 00:
Well, if the court held that some form of equitable towing were allowed by the statute, that the statute didn't in fact bar it and that holding stood, then obviously the VA would no longer be precluded.

[01:32:02] Speaker 00:
The question would be then whether the

[01:32:06] Speaker 00:
VA would choose to promulgate a rule that adopted equitable tolling authority.

[01:32:13] Speaker 00:
This goes back to the point that the VA doesn't have inherent equitable power.

[01:32:20] Speaker 00:
This would depend on the form of the court's decision, obviously.

[01:32:24] Speaker 00:
If the court said that the VA has inherent equitable power, that would be different.

[01:32:30] Speaker 00:
But if the idea is just that the court says, well, the statute doesn't in fact prohibit it, so you could adopt a rule if you wanted to, then the VA would have the discretion to do that.

[01:32:43] Speaker 00:
But I don't believe that there would be authority for the court to, you know, direct the VA to do so.

[01:32:50] Speaker 00:
Okay.

[01:32:52] Speaker 10:
Thank you.

[01:32:54] Speaker 10:
Judge Chen?

[01:32:56] Speaker 11:
Yes, I'd like to just quickly first follow up on your response to a question by Judge O'Malley when it came to situations where a statute provides some equity-based exceptions to some kind of time provision, time limit.

[01:33:16] Speaker 11:
And I believe you said, well, what the Supreme Court does in those situations to figure out whether there's still a broad equitable tolling

[01:33:26] Speaker 11:
background principle available is to see whether those equity-based exceptions in the statute would be encompassed by equitable tolling or not.

[01:33:41] Speaker 11:
And if they were, then that's clear evidence that Congress displaced equitable tolling.

[01:33:50] Speaker 11:
Can you just quickly cite what are the cases in which

[01:33:55] Speaker 11:
That's what happened where the Supreme Court concluded that equitable tolling was displaced.

[01:34:02] Speaker 11:
And are there other cases that you're aware of where the court said, no, it wasn't displaced?

[01:34:09] Speaker 00:
Sure.

[01:34:10] Speaker 00:
So the court found that equitable tolling was displaced in Brockham, for example.

[01:34:18] Speaker 00:
It found that it wasn't displaced in

[01:34:23] Speaker 00:
Sorry, in Young, which was a case where the court looked at exceptions or at least one exception and said that that exception was actually a supplement to equitable tolling and therefore didn't suggest that Congress meant to replace it.

[01:34:44] Speaker 00:
There may be others, but I would probably need to take a little more time to marshal them all.

[01:34:53] Speaker 11:
Okay, thanks.

[01:34:55] Speaker 11:
And then following up on a response you gave to a question from Chief Judge Prost who was asking you about some of these look back provisions in cases like Petrella and maybe also SCA hygiene where the argument from the other side is that these are provisions that cut back

[01:35:21] Speaker 11:
on the amount of remedies available to a party through some kind of time period.

[01:35:29] Speaker 11:
And that's precisely what's happening here to Mr. Arellano because any chance for backward-looking compensation is getting cut off from him.

[01:35:44] Speaker 11:
So, yes, he's getting some remedies going forward, but he's losing all

[01:35:50] Speaker 11:
remedies looking backwards.

[01:35:52] Speaker 11:
And so therefore there's a link between this situation in front of us and situations in cases like Petrella and SCA hygiene.

[01:36:02] Speaker 11:
I was wondering if you could respond to that.

[01:36:06] Speaker 00:
Sure.

[01:36:07] Speaker 00:
The difference between the two situations is that the copyright statute of limitations and the Patent Act statute of limitations

[01:36:16] Speaker 00:
Even though they eliminate damages for particular claims.

[01:36:22] Speaker 00:
So if the act of infringement occurred outside of the limitations period, there's no damages for that act, which itself constitutes an independent claim.

[01:36:34] Speaker 00:
So that is a wholly conventional statute of limitations in that way, that after a certain period of time the claim is barred.

[01:36:44] Speaker 00:
In this case, the claim isn't barred.

[01:36:49] Speaker 00:
There is still a remedy, the same remedy, available for the claim after the passage of the one-year period.

[01:36:56] Speaker 00:
It's true that the amount may be somewhat less, but that doesn't change the nature or the availability of the fundamental remedy.

[01:37:03] Speaker 00:
And the court in Brockcamp, I think, made clear that the mere fact that

[01:37:08] Speaker 00:
recovery may be limited based upon some look back period doesn't mean that we're talking about a statute of limitations and the court in that case addressed a provision of the statutory scheme at issue that said that where the timeliness of the claim for tax refund was based upon the fact that the tax had been paid within two years of the filing of the complaint the only that portion of the tax that had been paid

[01:37:36] Speaker 00:
within the past two years could be recovered.

[01:37:39] Speaker 00:
The court classified that statutory provision as a substantive limit on the amount of recovery and said that it found no direct precedent for tolling that type of limitation, which indicates that the court did not view that as a statute of limitations.

[01:37:57] Speaker 11:
Right.

[01:37:57] Speaker 11:
So doesn't that make Brock Camp a stronger case for finding no tolling compared to this one?

[01:38:06] Speaker 00:
Yes, I mean, Brock Camp is strong support for the conclusion that there should be no tolling of the statute.

[01:38:13] Speaker 11:
Well, I guess what I'm saying is that's a more compelling case for reaching the conclusion of no tolling in Brock Camp compared to the statute that we have here.

[01:38:25] Speaker 00:
Oh, well, that statute wasn't the one... I'm not sure that I'm answering the question.

[01:38:31] Speaker 00:
I understand the question.

[01:38:34] Speaker 00:
That statute wasn't the one that the party in Brockcamp was seeking to toll as an initial matter.

[01:38:44] Speaker 00:
The statute they wanted to toll was a statute of limitations.

[01:38:49] Speaker 00:
It was the one that said that a claim must be brought within the two years after the tax is paid, either that or within three years after the return was due.

[01:38:59] Speaker 00:
That was the one that the

[01:39:01] Speaker 00:
party wanted to toll and the court found, among other reasons for finding that the presumption was rebutted, that doing that would require tolling also this other statutory provision that function as a substantive limit on the amount of recovery.

[01:39:14] Speaker 00:
And as we point out in our brief, this statute also is a limit upon the amount of recovery.

[01:39:19] Speaker 00:
It doesn't eliminate the remedy and it doesn't provide repose because the claim is still viable and it still has to be decided on all the same elements.

[01:39:29] Speaker 00:
The only thing that happens after the expiration of the time period in question is that the amount that can be recovered is limited in one parameter, which is analogous to the statute in Brockham.

[01:39:49] Speaker 10:
Okay, thank you.

[01:39:51] Speaker 10:
Judge Hughes?

[01:39:53] Speaker 10:
Pass.

[01:39:54] Speaker 10:
Judge Still?

[01:39:58] Speaker 08:
Good morning.

[01:40:01] Speaker 08:
Can you assume, for purposes of my question, assume that the Irwin presumption applies?

[01:40:07] Speaker 08:
When thinking about whether Congress intended for this statute to allow equitable tolling or not, how do we factor in that both veterans are pro se and the agency is supposed to help claim it?

[01:40:20] Speaker 08:
I was surprised that this was not addressed or

[01:40:24] Speaker 08:
in the government's brief, especially given some statements in cases like Sebelius and Zipes.

[01:40:30] Speaker 08:
And I'm thinking about Justice Sotomayor's concurrence where she said that with respect to remedial status, statutes designed to protect the rights of unsophisticated claimants, agencies and reviewing courts may best honor congressional intent by presuming that statutory deadlines for administrative appeals are subject to equitable tolling.

[01:40:52] Speaker 08:
What is the government's position?

[01:40:56] Speaker 00:
So that's a factor that may be considered as one among several in support for a conclusion that tolling is permitted, but not one that has ever been found in and of itself sufficient to show that tolling should be allowed.

[01:41:12] Speaker 00:
And I would say that the counterweight to that argument is twofold.

[01:41:20] Speaker 00:
While it's true that claimants in the VA system are unsophisticated, relatively speaking, much of the time, it's also the case that that system is designed to take account of that and to make it extremely easy to file a claim.

[01:41:35] Speaker 00:
In fact, under 38 CFR 3.155, it's not even necessary to file a claim to get an effective date.

[01:41:43] Speaker 00:
All you have to do is tell the VA that you intend to file a claim.

[01:41:47] Speaker 00:
And as long as you file one within the year after you give that notice of intent, you get that notice of intent is treated, the date of that is treated as the date of the filing of the claim.

[01:41:59] Speaker 00:
So the barrier and the notice of intent doesn't have to say, you know, what disability you're claiming or what the underlying basis of your claim is.

[01:42:08] Speaker 00:
It only has to say what kind of benefit you want.

[01:42:11] Speaker 00:
So while it's true that the claimants may be relatively

[01:42:15] Speaker 00:
unsophisticated compared to some administrative schemes.

[01:42:19] Speaker 00:
It's also true that it is extremely easy to file a claim in the VA system and therefore the interest in or the likelihood that a claimant is going to be prevented from filing in a reasonably prompt manner is less.

[01:42:39] Speaker 00:
It's also the case that for all the

[01:42:42] Speaker 00:
This goes to the proposition that this Court has said a number of times that for all the beneficence that's reflected in the Veterans Benefit Scheme, that general benevolence doesn't point to a specific result in a particular situation or on a particular issue.

[01:42:59] Speaker 00:
And in this case, I would say that the very specific deadlines set in Section 5110, which are repeated and are the same for every class of claimant and for every

[01:43:11] Speaker 00:
equitable consideration and limited to one year would suggest that a general benevolence is not sufficient to show that Congress wanted those deadlines to be flexible for equitable reasons.

[01:43:26] Speaker 08:
Yes, I understand, but my question to you was, it's a factor we should consider, right?

[01:43:31] Speaker 08:
It is a factor that we should consider, that this is intended to, you know, that most of the veterans are pro se, the agency is supposed to help the claimants

[01:43:41] Speaker 08:
and Congress has a particular, uh, uh, liking of, of veterans.

[01:43:46] Speaker 08:
Is that right?

[01:43:47] Speaker 00:
I mean, we should certainly, certainly, your honor, it's an appropriate factor to consider all aspects of the statutory scheme that may be relevant or appropriate to consider.

[01:43:56] Speaker 00:
Okay.

[01:43:57] Speaker 00:
Thank you.

[01:43:59] Speaker 10:
Um, Ms.

[01:44:00] Speaker 10:
Thomas, uh, let me just, this is Judge Pros.

[01:44:03] Speaker 10:
Let me bring you back briefly to Judge Wallach's concerns and I think

[01:44:08] Speaker 10:
They were paralleled by some of what Judge Dyke was asking about.

[01:44:11] Speaker 10:
In footnote six, you cite to the statutory provision 501A and you cite some of the regulations that have been promulgated for just cause by the secretary.

[01:44:23] Speaker 10:
Is it your view the secretary would not have the ability to issue a regulation that dealt maybe, as Judge Dyke suggested, with more with a duty to assist than anything else when the VA is precluded

[01:44:38] Speaker 10:
from assisting a veteran in pursuing his claim because of national security requirements, could the Secretary not issue a regulation creating an exception for that kind of circumstance?

[01:44:56] Speaker 00:
I think that the VA Secretary probably could create a regulation to address that circumstance by

[01:45:03] Speaker 00:
not framing it necessarily so much as a form of tolling or extending the deadlines in 5110, but perhaps by addressing the way, perhaps treating an earlier date as the date of claim submission for certain types of claimants or treating on the grounds that they had been prevented from filing earlier.

[01:45:27] Speaker 00:
Thank you.

[01:45:31] Speaker 10:
Judge Newman.

[01:45:32] Speaker 00:
No.

[01:45:34] Speaker 00:
I pass.

[01:45:35] Speaker 10:
Judge Laurie.

[01:45:37] Speaker 12:
No question.

[01:45:39] Speaker 12:
Judge Dyke.

[01:45:40] Speaker 12:
Yes, let me just try once more.

[01:45:42] Speaker 12:
Let's assume the Irwin presumption applies, and that we look at it in a categorical way, and we find the presumption's been rebutted with respect to disability.

[01:45:53] Speaker 12:
So there's no tolling there.

[01:45:55] Speaker 12:
What is it in this statute that suggests that the Irwin presumption has been rebutted in what might be called the rabine

[01:46:04] Speaker 12:
Taylor's situation where it is the government's fault that it wasn't filed earlier.

[01:46:09] Speaker 12:
What is it here in this statute that rebuts the Irwin presumption in that situation?

[01:46:19] Speaker 00:
I don't know if I can give you an answer that you would find more satisfying than the ones I've already provided.

[01:46:24] Speaker 12:
I take that as that you can't find anything.

[01:46:31] Speaker 12:
Thank you.

[01:46:32] Speaker 00:
Well, to be clear, Your Honor, I have provided reasons previously that I believe do indicate that it would not be consistent with Congressional intent to create a special tolling roll for the Ravine situation.

[01:46:46] Speaker 00:
Of course, it is the Court's prerogative not to find them persuasive.

[01:46:53] Speaker 10:
Judge Moore?

[01:46:53] Speaker 10:
I'm sorry.

[01:46:55] Speaker 10:
Did you have anything else, Judge Knight?

[01:46:57] Speaker 12:
No.

[01:46:58] Speaker 10:
Judge Moore?

[01:46:59] Speaker 10:
Pass.

[01:47:01] Speaker 10:
Judge O'Malley?

[01:47:03] Speaker 09:
I just want to go back for a second to Judge Stoll's question.

[01:47:07] Speaker 09:
I mean, clearly, it is a factor.

[01:47:09] Speaker 09:
I mean, it's not just the Sebelius case that talks about it being a factor, the nature of the benefit scheme, but they cite to a number of other cases as well in Sebelius that support that proposition.

[01:47:23] Speaker 09:
But you answered that, well, it's such a friendly scheme that

[01:47:29] Speaker 09:
they already get a lot of breaks, and it's already made easy, and so therefore it would be extremely unlikely that anyone would ever be really prevented from filing.

[01:47:42] Speaker 09:
First of all, doesn't the fact that there are lots of benefits for veterans just further support the proposition that that's what Congress intended this whole scheme to be?

[01:47:54] Speaker 09:
And isn't it true that if it's extremely unlikely that anyone would be able to satisfy the request for equitable tolling and receive equitable tolling, doesn't that undercut your argument that we're somehow going to open a floodgate of cases and drain the VA's coffers?

[01:48:18] Speaker 00:
Yes, Your Honor.

[01:48:19] Speaker 00:
So with respect to the court's first point,

[01:48:24] Speaker 00:
I think that the reliance, heavy reliance upon the general beneficence of the veterans scheme here threatens to go against the court's warning in Irwin that there should not be a presumption applied against the government that's more favorable to the claimant than would be in the case for a private party.

[01:48:49] Speaker 00:
that the veterans' canon as applied to veterans' benefits runs the risk of disregarding the fact that the still applicable rule that waivers upon the government's sovereign immunity are still to be strictly construed, the presumption provides a rebuttal to that, but still with the proviso,

[01:49:18] Speaker 00:
that we need to keep in mind that we shouldn't think that the government should be subjected to more generous tolling provisions than any other party would be.

[01:49:31] Speaker 00:
Second, with respect to the court's other question, the government's concern with the proposition of widespread availability of equitable tolling in this instance is not limited to just the question of whether

[01:49:49] Speaker 00:
there would be more benefits paid out.

[01:49:51] Speaker 00:
In fact, I would say even more concerning is the fact that, yes, though there might be few people who would benefit from, ultimately, substantively from the rule, there would be likely a large, very large influx of people who would claim the benefit of equitable tolling, even if they were going to ultimately lose.

[01:50:13] Speaker 00:
And that is

[01:50:14] Speaker 00:
In fact, I would say any claimant who didn't get an effective date of day after discharge would be tempted to argue entitlement to equitable tolling.

[01:50:23] Speaker 00:
And that would be a massively intensive factual inquiry that the VA at the RO level would have to engage in, that the board would have to engage in, and that the Veterans Court would then have to review, which would mean further administrative disruption of the system, which

[01:50:42] Speaker 00:
already involves a level of procedural complexity that threatens to point-grind it to a halt.

[01:50:52] Speaker 10:
Judge Raina.

[01:50:54] Speaker 04:
No questions.

[01:50:56] Speaker 10:
Judge Wallach.

[01:50:58] Speaker 10:
Nothing further.

[01:51:00] Speaker 10:
Judge Taranto.

[01:51:01] Speaker 10:
Nothing further.

[01:51:03] Speaker 10:
Judge Chen.

[01:51:06] Speaker 11:
Just a quick question.

[01:51:09] Speaker 11:
How would you sum up the right way to think about Sebelius

[01:51:12] Speaker 11:
in the sense that on the one hand, the opinion seems to say statutory internal agency timing provisions are not suitable for equitable tolling.

[01:51:26] Speaker 11:
On the other hand, it seems to suggest, well, those were sophisticated players making filings inside of an agency and thereby, therefore the inferences

[01:51:41] Speaker 11:
for unsophisticated claimants like the ones we have here, combined with the special form of solicitude we give veterans when they're seeking benefits to make them whole due to injuries during service, militate in favor of finding equitable tolling.

[01:52:06] Speaker 11:
So I was just wondering how would you

[01:52:09] Speaker 11:
And sum up, think about what's the right way to think about Sebelius for purposes of this case.

[01:52:14] Speaker 00:
Sure.

[01:52:14] Speaker 00:
I don't think Sebelius honestly is dispositive on the issue of whether equitable towing is available for administrative deadlines, as indicated by the fact

[01:52:30] Speaker 00:
that the court relied upon several factors, numerous factors in arriving at the conclusion that equitable towing was not available for the deadline there.

[01:52:42] Speaker 00:
And the court's job there was simplified as well in some part by the fact that the agency, HHS, had promulgated a regulation

[01:52:56] Speaker 00:
that addressed the question of timeliness and provided for some degree of tolling and therefore sort of indicated that the agency itself thought it had some regulatory authority to do that.

[01:53:13] Speaker 00:
So I don't think that the court in Sebelius established that there was any one factor that indicates whether an administrative deadline can be

[01:53:26] Speaker 00:
toll, but rather that it's appropriate to consider, you know, various relevant factors.

[01:53:35] Speaker 00:
Now, the court there didn't address the question of whether an administrative agency possesses equitable authority to toll a deadline.

[01:53:45] Speaker 00:
And it is still not clear where such authority would come from.

[01:53:49] Speaker 00:
And then I'd like to respond to a point on this issue made by

[01:53:55] Speaker 00:
Mr. Barney suggested that the Supreme Court found in Zipes that administrative deadline was subject to equitable tolling.

[01:54:05] Speaker 00:
That's not precisely true.

[01:54:07] Speaker 00:
The court found in Zipes that a district court could waive an untimely filing of an administrative claim because that timely filing is usually a conditioned precedent to the case being here on the merits in court.

[01:54:23] Speaker 00:
the Supreme Court in its life did not find that the EEOC had the authority to waive that deadline.

[01:54:32] Speaker 10:
Judge Hughes.

[01:54:34] Speaker 10:
Pass.

[01:54:35] Speaker 10:
Judge Doe.

[01:54:37] Speaker 10:
Pass.

[01:54:39] Speaker 10:
Well, we're about three and a half minutes beyond time, Ms.

[01:54:44] Speaker 10:
Thomas.

[01:54:44] Speaker 10:
If you want to take a minute to wrap up and then we'll even out the time with Mr. Barney.

[01:54:50] Speaker 00:
Sure, Your Honor.

[01:54:53] Speaker 00:
I'll just say that while we're aware that there may be pressing equitable considerations in certain cases that would suggest that as a policy matter that tolling might be desirable, it still remains the case that Congress and Congress alone under the appropriations clause has the authority to determine under what conditions

[01:55:15] Speaker 00:
The government is obliged to pay out money to claimants, and congressional intent, we believe, is clear that equitable tolling is not permitted under the statutory scheme.

[01:55:27] Speaker 00:
Thank you.

[01:55:29] Speaker 10:
Thank you.

[01:55:30] Speaker 10:
Mr. Barney.

[01:55:31] Speaker 07:
Thank you, Your Honor.

[01:55:34] Speaker 10:
Your rebuttal time, please proceed.

[01:55:37] Speaker 07:
Thank you, Your Honor.

[01:55:39] Speaker 07:
If the status quo is left in place and Andrews continues to be construed as a complete bar to equitable tolling of 5110B1, then, and this is following up on several questions, then situations such as Rabine, Taylor, and many other situations that you can imagine are truly, truly deserving of at least the opportunity to argue for equitable tolling would be completely barred.

[01:56:05] Speaker 07:
So I want to emphasize, I believe it's clear, but I just want to emphasize again, we are not asking the court to rule on or address or actually make any comments on the actual factual merits of this case and the fact that 30 years has elapsed, for instance.

[01:56:19] Speaker 07:
We're asking for a correction of what we believe to be an error in the law that affects all veterans, including Mr. Ariana, but also including the veteran in Rabine, Taylor, and many other cases.

[01:56:33] Speaker 07:
The government in response to one of the questions regarding, I believe it was the Taylor case, suggested that it would be best addressed by Congress.

[01:56:42] Speaker 07:
Our position is it already has been addressed by Congress because when Congress legislates, it's presumed to do so against the background principles of equitable tolling.

[01:56:52] Speaker 07:
And so it has already put a statutory time limit in place that is subject to equitable tolling, which if the equities show, in other words, if the merits of a claim show entitlement to equitable tolling, that would provide relief for veterans such as Ray Vine and Taylor, Mr. Arellano.

[01:57:12] Speaker 07:
Now, I do want to follow up on, I know that Judge Dike had asked several questions along this line and I want to make sure that our position is clear in response to his question.

[01:57:22] Speaker 07:
I do understand that what he is suggesting is to parse the degree of the applicability of the Irwin presumption and perhaps to pronounce that the Irwin presumption is rebutted for certain types of

[01:57:41] Speaker 07:
is rebutted for certain types of factual scenarios, but not for others.

[01:57:47] Speaker 07:
Our feeling is that that would not be the most efficient way to do this.

[01:57:53] Speaker 07:
The most efficient way to do it would simply be to overrule Andrews, make clear that equitable tolling is applicable to 5110B1, and let the lower court

[01:58:03] Speaker 07:
apply the existing jurisprudence on equitable tolling.

[01:58:07] Speaker 07:
There is a very well-developed body of law on equitable tolling, so we're not starting from a blank slate.

[01:58:13] Speaker 07:
And the lower court and this court as well will be able to, in time, parse out which categories are going to be viewed as good candidates or appropriate candidates for equitable tolling.

[01:58:26] Speaker 07:
Now, going back to the two basic inquiries that I started with in my opening argument,

[01:58:31] Speaker 07:
In terms of whether the presumption applies at all, I think the only real roadblock that the government has raised is whether or not the provision, 5110B1, is sufficiently like a statute of limitations to be entitled to the presumption.

[01:58:48] Speaker 07:
and we've gone through a number of cases young and sites and fisher and even scarborough which by the way was it was application for each of fees which the court analogize to a fee-shifting provision which really is nothing like a statute of limitations and yet all of those cases found

[01:59:03] Speaker 07:
that the statute, that the time limit in question was amenable to equitable tolling.

[01:59:07] Speaker 07:
We've also pointed to the damages statute in the patents field, which again, even this court didn't think it was a statute of limitations, but the Supreme Court disagreed.

[01:59:17] Speaker 07:
So there's a lot of ambiguity about what is or is not a statute of limitations.

[01:59:21] Speaker 07:
And going to Judge Raina's question, to the extent there's ambiguity here, it should be resolved in the veteran's favor.

[01:59:27] Speaker 07:
Now, the government several times pointed out that this is the same remedy.

[01:59:33] Speaker 07:
So unlike a situation like the copyright statute limitations where you're getting a continuous tort and you're getting a new remedy each time,

[01:59:40] Speaker 07:
The government argues this is the same remedy, whether you get it at the, whether your effective award date is your date of filing or an earlier date is the same remedy.

[01:59:49] Speaker 07:
That is simply not true.

[01:59:50] Speaker 07:
It is a different remedy.

[01:59:51] Speaker 07:
A veteran perceives, and correctly so, that getting an earlier date of award

[01:59:58] Speaker 07:
is a different remedy.

[01:59:59] Speaker 07:
It's a different remedy in the exact same way that getting more damages in a patent case or getting more damages in a copyright case is a different remedy.

[02:00:09] Speaker 07:
I don't think the court has said anything about equitable tolling in the patent context, but certainly in the copyright context that is subject to equitable tolling.

[02:00:19] Speaker 07:
Now going to the second prong, can the court rebut it?

[02:00:22] Speaker 07:
Again, there have been many arguments raised, but I think the one that we keep coming back to is whether the structure of the statute should be viewed in the nature of exceptions to a general rule, whether those exceptions should be deemed to be equitable in nature, and whether that puts this case into a category like the TRW case, where because Congress set forth a bunch of exceptions, that augurs towards not reading in a general equitable exception.

[02:00:51] Speaker 07:
We don't believe the government has the better part of that argument.

[02:00:54] Speaker 07:
These exceptions are not written in the way they were written in TRW and other cases of that nature, like Brockham.

[02:01:03] Speaker 07:
There's nothing that stops the clock.

[02:01:04] Speaker 07:
These are not exceptions that say, for instance, if you file in the wrong court, the period stops, or if you are in receipt of disinformation from the government, the clock stops.

[02:01:18] Speaker 07:
There are no exceptions like that that would stop the running of the clock in 5110B1.

[02:01:24] Speaker 07:
Now, that brings us to the B4, you know, the 5110B4, where there does appear to be some sort of an equitable consideration.

[02:01:36] Speaker 07:
But as several of the questions have pointed out, that cuts both ways.

[02:01:41] Speaker 07:
And we think it actually cuts more in our way than the government's way.

[02:01:44] Speaker 07:
The case law, the government would have Brockham on its side, and it would have the TRW case on its side.

[02:01:53] Speaker 07:
But we have Holland, Young, and Cloer on our side.

[02:01:58] Speaker 07:
And again, to the extent there's some tension or ambiguity between those cases and how they apply to this particular set of facts, we think the general rule that veteran statues are to be construed in favor of the veteran would apply here.

[02:02:14] Speaker 07:
That is all I have, Your Honors.

[02:02:17] Speaker 07:
If there's any time left and you have additional questions for me, I'd be happy to answer them.

[02:02:22] Speaker 10:
Well, we're close to the end.

[02:02:25] Speaker 10:
Hearing nothing, no shout outs from my colleagues.

[02:02:30] Speaker 10:
I will please to bring this to a close.

[02:02:34] Speaker 10:
I want to thank the parties.

[02:02:36] Speaker 10:
We understand these are difficult times and unusual circumstances, and you've been very cooperative and it's much appreciated.

[02:02:43] Speaker 10:
And of course, on behalf of my colleagues, I'd like to thank our terrific staff, which always steps up

[02:02:50] Speaker 10:
and does a great job for us as they did today.

[02:02:53] Speaker 10:
So with that, I will conclude the proceedings.

[02:02:58] Speaker 10:
The case is submitted.

[02:02:59] Speaker 10:
Thank you all.

[02:03:03] Speaker 10:
The honorable court is adjourned until tomorrow morning at 10 a.m.