Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes an opinion issued on February 24, 2022 (Part I); and cases granted review on February 7, 18, and 22, 2022 (Part II).
Opinion: Arellano v. McDonough, 21-432
Arellano v. McDonough, 21-432. The Court will determine whether the doctrine of equitable tolling applies to the one-year post-discharge time period for a service-disabled veteran to obtain retroactive disability benefits. By statute, service-disabled veterans are entitled to disability benefits retroactive to their discharge date only if they apply for benefits within one year of discharge. 38 U.S.C. §5110(b)(1). A veteran who applies more than a year after discharge loses the right to retroactive benefits and is entitled to benefits only from the date the Department of Veterans Affairs (VA) receives the application. 38 U.S.C. §5110(a)(1). More than 30 years ago, the Court held that the “rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.” Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95–96 (1990). The issue here is whether the Irwin presumption applies to the one-year time limit in §5110(b)(1).
This case involves a disability claim filed by a service-disabled U.S. Navy veteran roughly 30 years after his discharge. Petitioner Adolfo Arellano, who served in the Navy from 1977 to 1981, suffers from several “psychiatric problems,” including “prolonged schizoaffective disorder and bipolar disorder with PTSD” (post-traumatic stress disorder). The VA has determined “that symptoms of these disorders were causally linked to trauma [petitioner] suffered while in service when he was working on an aircraft carrier during a collision that killed and injured several of his shipmates and nearly swept him overboard.” In 2011, petitioner filed “for disability benefits and was awarded a 100% disability rating for his psychiatric disorders with an effective date of June 3, 2011, the date of his application.” The VA and the Board of Veterans’ Appeals ruled that petitioner’s benefits were limited to the date of his application, rejecting petitioner’s plea to apply equitable tolling so that he could obtain benefits retroactive to his 1981 discharge date. Following oral argument before a panel of the Federal Circuit, the Federal Circuit sua sponte ordered that the case be heard en banc to consider whether it should overrule its prior decision in Andrews v. Principi, 351 F.3d 1134 (2003), “which held that equitable tolling is categorically unavailable for the one-year period in §5110(b)(1).” The en banc court deadlocked 6–6 on that question. 1 F.4th 1059.
The six judges who voted to follow Andrews concluded that the Irwin presumption does not apply because §5110(b)(1) is not a statute of limitations and that, even if the presumption applied, “it would be rebutted by the statutory text of §5110, which evinces a clear intent from Congress to foreclose equitable tolling of §5110(b)(1)’s one-year period.” The six judges who voted to overrule Andrews concluded that §5110(b)(1) is a statute of limitations subject to the Irwin presumption and that “the presumption has not been rebutted.” But they concurred in the judgment because they determined that petitioner’s “‘specific circumstances’ did not justify equitable tolling in this case.”
Stressing that veterans may delay applying for benefits for myriad reasons that might be subject to equitable tolling—including the effects of the disability for which they are seeking benefits—petitioner urges the Court to hold that the one-year period in §5110(b)(1) is subject to equitable tolling and to remand the case to the agency to determine whether his circumstances warrant applying that doctrine. Petitioner argues that Irwin “used broad language to describe the timing provisions to which” its presumption of equitable tolling applied and “gave no indication that the presumption could not apply to administrative deadlines or to deadlines set forth in federal disability benefits programs.” Rather than being limited “to traditional or rigidly defined statutes of limitations,” petitioner says, the Irwin presumption applies to “timing provisions that function as statutes of limitations, or that operate as ‘limited’ statutes of limitations.” In petitioner’s view, the one-year period in §5110(b)(1) “functions as a statute of limitations” because (1) it sets a period within which a veteran can claim retroactive benefits, (2) “encourages disabled veterans to protect their rights by filing any ripe disability claims within one year of discharge,” and (3) results in a loss of the right to retroactive benefits “if disabled veterans ‘sleep on [their] rights.’” Petitioner also rejects the idea that the statute rebuts the Irwin presumption. Although the statute says that benefits start on the day of the application “unless specifically provided otherwise,” petitioner contends that the Court has previously “rejected the idea that an ‘unless’ clause to an otherwise general prohibition such as §5110(a)(1) creates a jurisdictional bar to equitable tolling.” Moreover, petitioner continues, the statute does not contain an “explicit exception” to “§5110(b)(1)’s one-year deadline,” so the rule that the inclusion of statutory exceptions signals an intent not to include other exceptions does not apply.
Emphasizing that the application of equitable tolling “is fundamentally a question of statutory intent,” the government contends that §5110(b)(1) is not functionally a statute of limitations because it “does not establish a time within which a veteran must bring a claim, and it does not bar claims after the one-year period expires.” Nor does the statute “embody a policy of repose, eliminate stale claims, or provide certainty about the plaintiff’s recovery or the defendant’s liability.” Indeed, the government says, “at no point in the thirty years between petitioner’s discharge and the filing of his application for disability benefits did petitioner’s claim expire or otherwise become time-barred.” The government further argues that, even if the Irwin presumption applied, “the text and structure” of the statute signal “a ‘highly detailed statutory scheme dictating specific legislative choices for when a veteran’s claim may enjoy an effective date earlier than the date it was received by the VA.’” Because the statute “lists thirteen specific exceptions under which an award of benefits would have an effective date earlier than the application date,” allowing equitable tolling “would contravene the text and structure of Section 5110 by effectively adding a fourteenth exception to the list.” The government also argues that, under petitioner’s reading, the VA itself would be tasked with applying equitable tolling, yet “Congress has not granted the VA a general power of equity akin to the power that the Judiciary Act confers on federal courts.”
[Editor’s note: Some of the language in the background section of the summary above was taken from the petition for writ of certiorari and brief in opposition.]