Case Information
*2 Before M OORE , Chief Judge [*] , N EWMAN , L OURIE , D YK , P ROST [**] , O’M ALLEY , R EYNA , W ALLACH [***] , T ARANTO , C HEN ,
H UGHES , and S TOLL , Circuit Judges . Opinion for the court filed P ER C URIAM . Concurring opinion filed by C HEN , Circuit Judge , in which
M OORE , Chief Judge , and L OURIE , P ROST , T ARANTO , and
H UGHES , Circuit Judges , join.
Concurring opinion filed by D YK , Circuit Judge , in which N EWMAN , O’M ALLEY , R EYNA , W ALLACH , and S TOLL , Circuit
Judges , join.
P ER C URIAM .
Upon consideration en banc, a unanimous court holds that equitable tolling is not available to afford Mr. Arellano an effective date earlier than the date his application for benefits was received.
The court is equally divided as to the reasons for its
decision and as to the availability of equitable tolling with
respect to 38 U.S.C. § 5110(b)(1) in other circumstances.
The effect of our decision is to leave in place our prior deci-
sion,
Andrews v. Principi
,
Accordingly, the judgment of the United States Court of Appeals for Veterans Claims is affirmed.
AFFIRMED C OSTS No costs.
United States Court of Appeals for the Federal Circuit ______________________ ADOLFO R. ARELLANO, Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________ 2020-1073 ______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 18-3908, Judge Michael P. Allen.
______________________ Decided: June 17, 2021 ______________________ C HEN , Circuit Judge , with whom M OORE , Chief Judge , and L OURIE , P ROST , T ARANTO , and H UGHES , Circuit Judges , join, concurring in the judgment.
By statute, the “effective date of an award” of disability
compensation to a veteran “shall not be earlier than the
date” the veteran’s “application” for such compensation is
received by the Department of Veterans Affairs (VA).
38 U.S.C. § 5110(a)(1). Section 5110(b)(1), however, pro-
vides an exception that permits an earlier effective date if
the VA receives the application within one year of the vet-
eran’s discharge from military service: under such
circumstances, the effective date of the award shall date
back to “the day following the date of the veteran’s dis-
charge or release.”
Id
. § 5110(b)(1). This case poses the
question of whether, under an equitable-tolling theory, an
award on an application received more than one year after
the veteran’s discharge date may still be accorded an effec-
tive date of the day after discharge. Specifically, we con-
sider whether the rebuttable presumption of equitable
tolling for statutes of limitations established in
Irwin v. De-
partment of Veterans Affairs
,
This question arises from Adolfo R. Arellano’s appeal from a decision of the Court of Appeals for Veterans Claims (Veterans Court) denying him an effective date earlier than the date his disability benefits application was received by the VA. Though Mr. Arellano filed his application more than 30 years after he was discharged from the Navy, he argues that § 5110(b)(1)’s one-year period should be equi- tably tolled in his case to afford his award an earlier effec- tive date (and his compensation an earlier starting date) reaching back to the day after his discharge from service.
Mr. Arellano also urges us to overrule our prior deci-
sion in
Andrews v. Principi
, which held that § 5110(b)(1) is
not a statute of limitations amenable to equitable tolling
but merely establishes an effective date for the payment of
benefits, thereby categorically foreclosing equitable tolling
under this provision.
Judge Dyk and five of our colleagues, however, would overturn Andrews and conclude that § 5110(b)(1) is a statute of limitations entitled to Irwin ’s presumption. But their basis for affirming the Veterans Court’s decision rests on deciding, in the first instance, that the facts of Mr. Arel- lano’s case do not warrant equitable tolling. We disagree with this approach both in substance and process. Even if ’s presumption were to somehow apply here, it would be rebutted by the statutory text of § 5110, which evinces clear intent from Congress to foreclose equitable tolling of § 5110(b)(1)’s one-year period. Moreover, it is not our role as an appellate court to decide whether Mr. Arellano’s fac- tual circumstances warrant equitable tolling where no prior tribunal has considered the issue and no party has argued for such an outcome.
B ACKGROUND A
Congress has provided by statute for the payment of monetary benefits to veterans with disabilities arising from service. 38 U.S.C. § 1110. To obtain disability com- pensation, veterans must first file a claim with the VA. 38 U.S.C. § 5101(a)(1). With certain limited exceptions not relevant here, no compensation may be paid before such a claim is filed. Id . (with exceptions not applicable here, a “claim . . . must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary”). The size of a veteran’s disability com- pensation award is determined, in part, by the effective date assigned to his award—i.e., the date on which benefits begin to accrue. An earlier effective date means a greater accrual of benefits.
Section 5110 of Title 38 governs the effective date of VA benefits awards. Two of its provisions are at issue in this appeal. First, § 5110(a)(1) sets forth the default rule that the effective date of an award cannot be earlier than the date the VA receives the veteran’s application submitting a claim for that award:
Unless specifically provided otherwise in this chap- ter, the effective date of an award based on an ini- tial claim, or a supplemental claim, of compensation, dependency and indemnity compen- sation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.
§ 5110(a)(1). [1] Accordingly, the natural consequence of § 5110(a)(1)’s default rule is that no disability compensa- tion is payable for periods predating the VA’s receipt of the application for benefits, “[u]nless specifically provided oth- erwise” by statute.
Section 5110 sets forth several exceptions to § 5110(a)(1)’s default rule, each providing for a retroactive effective date—that is, an effective date earlier than the date VA received the application—which, in turn, leads to a greater benefits award than under the default rule. See § 5110(b)–(n). Many of § 5110’s exceptions pertain to spe- cific circumstances that may delay the filing of an applica- tion for benefits. These include: discharge from the military, § 5110(b)(1); increase in the severity of a disabil- ity, § 5110(b)(3); the “permanent[] and total[] disab[ility]” of a veteran, § 5110(b)(4); death of a spouse, § 5110(d); and correction of military records, § 5110(i). Each of § 5110’s enumerated exceptions, however, expressly limits the ret- roactivity of the effective date to one year. See , e.g. , § 5110(g) (“In no event shall [an] award or increase [under this paragraph] be retroactive for more than one year from the date of application therefor . . . .”).
As relevant here, one of those enumerated exceptions— § 5110(b)(1)—provides that a disability compensation award’s effective date may date back to the day after a vet- eran’s discharge if the application for such benefits is re- ceived within one year after discharge:
The effective date of an award of disability compen- sation to a veteran shall be the day following the date of the veteran’s discharge or release if appli- cation therefor is received within one year from such date of discharge or release.
§ 5110(b)(1).
On the face of the statute, then, the effective date for awards based on applications received more than one year after discharge (that do not otherwise fall within any of § 5110’s other enumerated exceptions) “shall not be earlier than the date of receipt of application therefor.” § 5110(a)(1). This appeal considers whether equitable toll- ing may apply to § 5110(b)(1)’s one-year period to permit an effective date reaching back to the day after the vet- eran’s discharge from service, even though the application for that award was received more than one year after dis- charge.
The equitable-tolling doctrine, as traditionally under-
stood, “permits a court to pause a statutory time limit
‘when a litigant has pursued his rights diligently but some
extraordinary circumstance prevents him from bringing a
timely action.’”
See Cal. Pub. Emps.’ Ret. Sys. v. ANZ Sec.,
Inc.
,
This court has previously addressed whether
§ 5110(b)(1)’s one-year period is subject to equitable tolling
in
Andrews
. There, the claimant-appellant, Ms. Andrews,
submitted a claim for disability compensation approxi-
mately fourteen months after her discharge from service.
B
We now turn to the facts of Mr. Arellano’s appeal. Mr. Arellano served honorably in the Navy from November 1977 to October 1981. Nearly 30 years later, on June 3, 2011, the VA regional office (RO) received Mr. Arellano’s claim for service-connected disability benefits for his psy- chiatric disorders. The RO granted service connection with a 100 percent disability rating for “schizoaffective disorder bipolar type with PTSD [post-traumatic stress disorder].” J.A. 506. The granted effective date of Mr. Arellano’s award was the date his claim was received—i.e., June 3, 2011.
Mr. Arellano appealed his effective-date determination to the Board of Veterans’ Appeals (Board), arguing that his mental illness had prevented him from filing his claim ear- lier. Mr. Arellano submitted, as support, a medical opinion by his psychiatrist indicating that he had been “100% dis- abled since 1980,” when he was “almost crushed and swept overboard while working on the flight deck of [an] aircraft carrier.” J.A. 529. Given his disability, Mr. Arellano ar- gued that § 5110(b)(1)’s one-year period should be equita- bly tolled to qualify him for an effective date retroactive to the day after his discharge from the Navy. The Board re- jected his equitable-tolling argument, and the Veterans Court affirmed that decision, concluding that Mr. Arel- lano’s claim was “squarely foreclosed by binding precedent” in Andrews . Arellano v. Wilkie , No. 18-3908, 2019 WL 3294899, at *2 (Vet. App. July 23, 2019).
Mr. Arellano then timely appealed to this court, and the case was heard before a panel on July 6, 2020. On Au- gust 5, 2020, we took the case en banc and entered a sua sponte order directing the parties to brief the following is- sues:
A. Does the rebuttable presumption of the availa- bility of equitable tolling articulated in Irwin v. De- partment of Veterans Affairs , 498 U.S. 89 (1990), apply to 38 U.S.C. § 5110(b)(1), and if so, is it nec- essary for the court to overrule Andrews v. Principi ,351 F.3d 1134 (Fed. Cir. 2003)?
B. Assuming Irwin ’s rebuttable presumption ap- plies to § 5110(b)(1), has that presumption been re- butted?
C. Assuming this court holds that Irwin ’s rebutta- ble presumption applies to § 5110(b)(1), would such a holding extend to any additional provisions of § 5110, including but not limited to § 5110(a)(1)? D. To what extent have courts ruled on the avail- ability of equitable tolling under statutes in other benefits programs that include timing provisions similar to § 5110?
Order Granting En Banc Review, No. 20-1073 (Aug. 5, 2020), ECF No. 45, at 2–3.
D ISCUSSION A
Our jurisdiction to review decisions of the Veterans Court is limited by statute. See 38 U.S.C. § 7292. “The Court of Appeals for the Federal Circuit shall decide all rel- evant questions of law, including interpreting constitu- tional and statutory provisions.” § 7292(d)(1). Because our review of this decision involves a question of statutory in- terpretation—namely, the availability of equitable tolling for a particular statutory provision—we have jurisdiction over this matter. We review questions of law, such as this one, de novo. Prenzler v. Derwinski , 928 F.2d 392, 393 (Fed. Cir. 1991).
Irwin
sets forth the analytical framework that guides
our decision. At issue there was whether a statute of limi-
tations in a suit against the government was subject to eq-
uitable tolling. Specifically, the petitioner sought
equitable tolling of 42 U.S.C. § 2000e-16(c)’s 30-day dead-
line for filing a Title VII civil action against the federal gov-
ernment in district court after receiving a right-to-sue
notice
from the Equal Employment Opportunity
Commission (EEOC). While statutes of limitations in suits
between private litigants are “customarily” subject to equi-
table tolling, an analogous presumption had not yet been
established for suits against the government.
See Irwin
,
From this, we have understood the Irwin framework to consist of two steps. First, we must determine whether the rebuttable presumption of equitable tolling applies to the statutory provision at issue. And, if so, we must then de- termine whether that presumption has been rebutted—or in other words, whether there is “good reason to believe that Congress did not want the equitable tolling doctrine to apply” to the statute. United States v. Brockamp , 519 U.S. 347, 349–50 (1997). We address each step of the anal- ysis in turn.
B
Before determining whether ’s presumption of eq- uitable tolling applies to § 5110(b)(1), we first elucidate our understanding of the presumption’s origins and limits.
“Congress is understood to legislate against a back-
ground of common-law adjudicatory principles.”
Astoria
Fed. Sav. & Loan Ass’n v. Solimino
, 501 U.S. 104, 108
(1991). One such background principle is that “federal
statutes of limitations are generally subject to equitable
principles of tolling,”
see Rotella v. Wood
, 528 U.S. 549,
560–61 (2000), which is “a long-established feature of
American jurisprudence derived from ‘the old chancery
rule,’”
Lozano
, 572 U.S. at 10–11 (quoting
Holmberg v.
Armbrecht
,
Given that “Congress must be presumed to draft limi-
tations periods in light of this background principle,”
Young v. United States
,
Because the presumption serves as a proxy for the
background legal principles that Congress is understood to
legislate against, it follows that
Irwin
’s presumption is lim-
ited to only those statutory provisions that are established
in common law as subject to equitable tolling—namely,
statutes of limitations.
See John R. Sand & Gravel Co. v.
United States
, 552 U.S. 130, 137 (2008) (“[ ’s] pre-
sumption seeks to produce a set of statutory interpreta-
tions that will more accurately reflect Congress’ likely
meaning in the mine run of instances where it enacted a
[g]overnment-related statute of limitations.”). To that end,
the Supreme Court has so far applied the presumption of
equitable tolling
only
to statutory provisions that Congress
clearly would have viewed as statutes of limitations. ,
e.g., Lozano
, 572 U.S. at 13–14 (“[W]e have only applied
[the] presumption [in favor of equitable tolling] to statutes
of limitations.”);
Zipes v. Trans World Airlines, Inc.
, 455
U.S. 385, 393–95 (1982) (holding that a limited filing period
for EEOC charges is like a statute of limitations that is
subject to waiver, estoppel, and equitable tolling). This
comports with the understanding that equitable tolling
“applies when there is a statute of limitations; it is, in ef-
fect,
a rule of interpretation tied to that limit
.”
Petrella v.
Metro-Goldwyn-Mayer, Inc.
,
Our conclusion is supported not only by ’s logic
and the subsequent cases applying it, but also, by the lim-
itations of the Appropriations Clause of the Constitution,
art. I, § 9, cl. 7, on the payment of money from the public
fisc contrary to the express terms of a statute.
Off. of
Pers. Mgmt. v. Richmond
,
Our analysis therefore begins by asking whether § 5110(b)(1)’s effective date provision is such a provision. As discussed below, and consistent with our reasoning in Andrews , § 5110(b)(1) is not a statute of limitations.
C
To determine whether § 5110(b)(1) is a statute of limi- tations, we consider whether this provision satisfies the “functional characteristics” of such statutes. Lozano , 572 U.S. at 15 n.6 (“[T]he determination [of] whether [a statu- tory provision] is a statute of limitations depends on its functional characteristics . . . .”). As explained below, § 5110(b)(1) does not have the functional characteristics of a statute of limitations. We see two reasons why Congress would not have thought that the provision belongs to that category of laws.
First, § 5110(b)(1) does not operate to bar a veteran’s claim for benefits for a particular service-connected disa- bility after one year has passed. Instead, like the general rule of § 5110(a)(1), it determines one of many elements of a benefits claim that affects the amount of a veteran’s award but, unlike a statute of limitations, does not elimi- nate a veteran’s ability to collect benefits for that very dis- ability. Second, and relatedly, § 5110(b)(1) lacks features standard to the laws recognized as statutes of limitations with presumptive equitable tolling: its one-year period is not triggered by harm from the breach of a legal duty owed by the opposing party, and it does not start the clock on seeking a remedy for that breach from a separate remedial entity. 1 Calvin W. Corman, L IMITATION OF A CTIONS , § 6.1, at 370 (1991). The statutory scheme governing vet- erans’ benefits makes clear that the VA is not obligated to pay any benefits before a claim applying for such benefits is filed, so there is no duty, or breach of duty, at the onset of § 5110(b)(1)’s one-year period (i.e., the day after dis- charge). Moreover, no remedial authority separate from the VA is involved in an initial application for veterans’ benefits. [3] The effective-date provision in this case, then, is of a sufficiently different character from that of statutes of 15 limitations entitled to ’s presumption. These marked differences undermine any inference that Congress would have viewed § 5110(b)(1) as falling within that category of laws, so as to justify judicial override of Congress’ express statutory limits on benefits payments. Below, we address these differences in function and characteristics in detail.
A statute of limitations, simply put, is a “law that bars
claims after a specified period.”
Statute of Limitations
,
B LACK ’ S L AW D ICTIONARY (11th ed. 2019). “Statutes of lim-
itations are designed to encourage plaintiffs to pursue dili-
gent prosecution of known claims,”
Cal. Pub. Emps. Ret.
Sys.
,
To determine whether the functional characteristics of a statute of limitations are met, the Supreme Court has fo- cused the inquiry on whether the statute at issue encour- ages plaintiffs to promptly pursue their claims or risk losing remedies for those claims. In Young , for instance, the Court held that a statutory “three-year lookback pe- riod” for the IRS to collect overdue, unpaid taxes from a limits on monetary governmental benefits. And unlike an initial application for veterans’ benefits, these cases impli- cate a preexisting duty to pay owed by the government. Williams , Colvin , and Warren therefore fail to establish that a tribunal may override, through equitable tolling, an indisputably applicable statutory limit on governmental monetary benefits.
taxpayer in bankruptcy proceedings was a statute of limi-
tations because it “encourages the IRS to protect its rights”
by “collecting the debt or perfecting a tax lien—before three
years have elapsed.” 535 U.S. at 47 (citations omitted).
There, the relevant statute afforded the IRS certain “legal
remedies” for collecting a tax debt accrued within three
years before a debtor’s bankruptcy petition filing: the tax
debt is nondischargeable and the IRS’s claim enjoys eighth
priority
[4]
in bankruptcy.
Id.
at 47–48. But if the IRS
“sleeps on its rights” by failing to act within the three-year
lookback period, then the IRS loses those “legal remedies”
for collecting that debt. Specifically, “its claim loses prior-
ity and the debt becomes dischargeable” in bankruptcy, so
that a bankruptcy decree will release the debtor from any
obligation to pay and leave the IRS unable to collect on that
debt.
Id
. The Court concluded that such a provision—
which bars the IRS from recovering any tax debt accrued
more than three years before bankruptcy proceedings
begin—is a statute of limitations because it serves the
“same basic policies [furthered by] all limitations provi-
sions: repose, elimination of stale claims, and certainty
about a plaintiff’s opportunity for recovery and a defend-
ant’s potential liabilities.”
Id.
The Supreme Court also em-
ployed similar reasoning in
Zipes
, determining that the
period for filing a charge of employment discrimination
with the EEOC (a precondition to a federal-court action)
operates as a statute of limitations given “its purpose [of]
preventing the pressing of stale claims” and “giv[ing]
prompt notice to the [defendant] employer”—the very
“end[s] served by a statute of limitations.”
By contrast,
Lozano
considered a time limitation that
did not function as a statute of limitations and was there-
fore not subject to equitable-tolling principles. There, the
Supreme Court declined to apply the presumption of equi-
table tolling to a treaty provision that did not did not “es-
tablish[] any certainty about the respective rights of the
parties” and, instead, addressed policy concerns irrelevant
to the functioning of a statute of limitations. 572 U.S. at
14–15. At issue was a Hague Convention provision requir-
ing the return of a child abducted by a parent in a foreign
country, so long as the left-behind parent requests return
“within one year.”
Similarly, in
Hallstrom v. Tillamook County
, the Court
determined that a provision requiring plaintiffs to give no-
tice of alleged environmental violations to the relevant
agency 60 days prior to commencing a civil action was not
a statute of limitations subject to equitable modification.
Here, as in
Lozano
and
Hallstrom
, § 5110(b)(1)’s effec-
tive-date provision does not have the key “functional char-
acteristics” that define a statute of limitations. Because a
veteran seeking disability compensation “faces no time
limit for filing a claim,”
Henderson ex rel. Henderson v.
Shinseki
,
Radiation Survivors
,
The timing provision of § 5110(b)(1), in fact, does not function to bar stale claims or encourage the diligent pros- ecution of known claims. To the contrary, § 5110(b)(1) was adopted to “remove[] injustices where there is delay in fil- ing [a] claim due to no fault of the veteran and payment could otherwise be made only from [the filing] date of [the] claim.” 89 Cong. Rec. A4026 (1943) (statement of Rep. Rankin). Section 5110(b)(1)’s one-year grace period thus forgives a veteran’s temporary delay in filing a claim in the immediate aftermath of a veteran’s transition back to civil- ian life upon discharge from military service. This provi- sion is itself an equitable exception provided by Congress to address injustices that may arise from § 5110(a)(1)’s de- fault rule and, in that respect, speaks to policy concerns that are “not the sort of interest addressed by a statute of limitations.” See Lozano , 572 U.S. at 15. Given (1) the well-established understanding of what constitutes a stat- ute of limitations, and (2) the nature of § 5110(b)(1)’s effec- tive-date provision, § 5110(b)(1) does not satisfy the “functional characteristics” of a statute of limitations.
Mr. Arellano, in response, asserts that even if § 5110 preserves the possibility of prospective benefits for an on- going disability regardless of when the claim is filed, a veteran will nonetheless lose out on retroactive benefits da- ting back to the day after discharge if his claim is not filed within one year of discharge. Section 5110(b)(1)’s one-year period therefore encourages veterans to diligently file their disability claims after discharge to protect their rights to retroactive benefits. He argues that § 5110(b)(1) is “simi- lar” to the statutory-lookback periods for copyright and pa- tent damages in Petrella and SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC , 137 S. Ct. 954 (2017), respectively, insofar as these statutes all “limit [the amount of] claimants’ damages but not their ability to seek redress for an ongoing . . . injury.” Appellant’s Supp. Reply Br. 10. We disagree.
This argument overlooks the distinction that
§ 5110(b)(1) establishes the effective date of a
single
bene-
fits claim for an ongoing disability, whereas an ongoing
course of infringement in
Petrella
and
SCA Hygiene
com-
prises a “series of discrete infringing acts,”
each
of which is
a distinct harm giving rise to an independent claim for re-
lief that starts a new limitations period.
Petrella
, 572
U.S. at 671–72. The copyright damages statute states: “No
civil action shall be maintained under the provisions of this
title unless it is commenced within three years after the
claim accrued.” 17 U.S.C. § 507(b). As
Petrella
explains,
this statute is subject to the “separate accrual rule”—that
is, “when a defendant commits successive violations, the
statute of limitations runs separately from each violation,”
such that each violation “gives rise to a
discrete ‘claim’
that
‘accrue[s]’ at the time the wrong occurs.”
By contrast, § 5110(b)(1)’s one-year grace period never
bars a veteran’s benefits claim regardless of when it was
filed and, instead, establishes an element of the claim itself
(i.e., the effective date of the award).
Cf. Arbaugh v. Y&H
Corp.
,
Mr. Arellano next analogizes to
Young
’s three-year
lookback period, arguing that § 5110(b)(1)—which bars
only
retroactive
benefits predating the date the VA received
his claim, but not
prospective
benefits beginning from the
date the VA received his claim—is no less a statute of lim-
itations than the lookback period in
Young
. We disagree.
Young
’s lookback period is a “limited statute of limitations”
in the sense that it arises only in the situation when a tax
debtor files a bankruptcy petition and bars certain “legal
remedies” (i.e., priority and nondischargeability in bank-
ruptcy) outside of the lookback period.
See
Mr. Arellano, however, offers the following variation on
Young
: instead of having only one tax year at issue, sup-
pose that the Youngs owed tax debt from multiple years.
The IRS would then be barred from recovering tax debt
from the years outside the three-year lookback period but
could still recover any of the debt from within that period.
See
Oral Arg. at 30:32–32:52. Under this hypothetical,
Mr. Arellano contends, the lookback period merely affects
the
amount
of relief the IRS would be entitled to recover
but does not entirely bar the IRS from such relief, meaning
that it is a “more limited statute of limitations, but a stat-
ute of limitations nonetheless.”
Young
,
But this hypothetical is no different from the lookback
periods in
Petrella
and
SCA Hygiene
and is distinguishable
for the same reason: § 5110(b)(1) establishes the effective
date of a
single
application for disability benefits, whereas
each year of tax debt in Mr. Arellano’s hypothetical corre-
sponds to a
separate
IRS claim involving different facts and
liabilities. ,
e.g.
,
Young
,
Section 5110(b)(1) also differs from statutes of limita- tions in additional ways—namely, with respect to the onset of its one-year period and the remedial authority involved. These differences further undermine any inference that Congress must have viewed § 5110(b)(1) as a statute of lim- itations that would presumptively allow judicial override of express statutory limits on benefits payments under .
The “standard rule” is that a statute of limitations be-
gins to run when the cause of action “accrues,” i.e., when
“the plaintiff has a ‘complete and present cause of action.’”
Bay Area Laundry & Dry Cleaning Pension Trust Fund v.
Ferbar Corp. of Cal.
, 522 U.S. 192, 201 (1997) (quoting
Rawlings v. Ray
,
As applied to the veterans’ benefits context, the earliest
point at which a veteran could have a “complete and pre-
sent cause of action” is when the VA has failed to satisfy a
legal duty owed to the veteran, such as when his claim for
benefits has been wrongfully adjudicated or denied. In this
vein, we have recognized that the 120-day time limit for a
veteran to appeal an unsatisfactory Board decision to the
Veterans Court is a statute of limitations to which
Irwin
’s
presumption applies.
Jaquay v. Principi
, 304 F.3d
1276, 1283 (Fed. Cir. 2002) (en banc) (citing
Bailey v. West
,
Indeed, in an initial application for disability compen-
sation where § 5110 governs the effective-date determina-
tion, the VA has not yet violated any legal duty owed to the
claimant that would trigger a statute of limitations to run.
The statutory scheme governing veterans’ benefits makes
clear that the VA is not obligated to pay any benefits before
a claim applying for such benefits is filed. In particular,
§ 5101(a)(1)(A) states that “a specific claim in the form pre-
scribed by the Secretary . . .
must
be filed in order for ben-
efits to be paid or furnished to any individual under the
laws administered by the Secretary.” § 5101(a)(1)(A) (em-
phasis added). This provision explains that the filing of a
benefits claim must first occur for any benefits to accrue or
be paid by the VA. The VA thus has no preexisting duty to
award benefits, and a veteran has no corresponding right
to receive such benefits, until after a claim applying for
benefits is filed by the veteran with the VA.
See Jones v.
West
, 136 F.3d 1296, 1299 (Fed. Cir. 1998) (“Section
5101(a) is a clause of general applicability and mandates
that a claim must be filed in order for any type of benefit to
accrue or be paid.”),
cert. denied
, 525 U.S. 834 (1998);
McCay v. Brown
,
Logic also supports our conclusion that there is no
cause of action, and therefore no statute of limitations that
could be equitably tolled, until after a claimant files an in-
itial claim for benefits and receives an unsatisfactory VA
decision on that claim. A claimant seeking an increased
benefits award, as Mr. Arellano does here, has no basis to
maintain a suit against the VA until at least two events
have transpired. He must first file an initial claim seeking
benefits from the VA. And second, he must receive the VA’s
initial decision determining the amount of his award. Only
then could that claimant have a cause of action against the
VA if he disagrees with the amount of benefits awarded.
Cf. Bay Area Laundry
,
Judge Dyk responds that this reasoning is inconsistent with “cases holding that a provision barring benefits for failure to file [a claim] within a prescribed period consti- tutes a statute of limitations, regardless of any alleged breach of duty by the government.” Dyk Op. at 5. He cites our decision in Cloer v. Sec’y of Health & Hum. Servs. , where we held that the Vaccine Act’s 36-month deadline for filing a petition for compensation for a “vaccine-related in- jury” is a statute of limitations that begins to run on the date the first symptom or manifestation of onset of the in- jury claimed occurs. 654 F.3d 1322, 1340–44 (Fed. Cir. 2011) (en banc). The Vaccine Act’s 36-month filing dead- line, however, is easily distinguishable from § 5110(b)(1)’s effective date provision.
Unlike § 5110(b)(1), the Vaccine Act’s filing deadline is phrased and functions as a traditional statute of limita- tions that bars a plaintiff from seeking relief from a tribu- nal once the specified time limit has passed. Specifically, 42 U.S.C. § 300aa-16(a)(2) recites: “if a vaccine-related in- jury occurred as a result of the administration of such vac- cine, no petition may be filed for compensation under the Program for such injury after the expiration of 36 months after the date of the occurrence of the first symptom or manifestation of onset or of the significant aggravation of such injury.” Nothing in this provision purports to affect the amount of compensation awarded on a successful peti- tion. In contrast to § 5110(b)(1)’s effective date provision, which does not bar a claimant from filing an application for benefits more than one year after discharge, § 300aa- 16(a)(2) bars the filing of a petition for compensation after 36 months have passed since the “first symptom or manifestation of onset or of the significant aggravation” of claimant’s vaccine-related injury. Section 300aa-16(a)(2) thus exhibits the functional characteristics germane to all statutes of limitations by encouraging claimants to promptly file a petition or risk losing remedies available under the Vaccine Act.
Moreover, in contrast to an initial application seeking
veterans’ benefits from the VA, the Vaccine Act’s filing
deadline arises in a context in which a plaintiff seeks re-
dress in federal court for a
preexisting
duty owed by the
defendant. Prior to the Act, a plaintiff injured by a vaccine
could directly sue the vaccine’s manufacturer in civil court,
alleging harm caused by that manufacturer’s breach of
duty. But due to concerns that civil actions against vaccine
manufacturers were unsustainably raising vaccine prices
and driving manufacturers out of the market, Congress en-
acted the Vaccine Act to create a streamlined process to
“stabilize the vaccine market and expedite compensation to
injured parties.”
Sebelius v. Cloer
,
While the Vaccine Act eases certain evidentiary bur- dens by not requiring claimants to prove “wrongdoing by the manufacturer” or causation for on-Table injuries, see H.R. Rep. 99-908, at 12 (1986), initiating a Vaccine Act pro- ceeding bears substantial similarities to initiating a civil action governed by a statute of limitations. Both require an injured party to seek—within a statutory time period— a remedy before a federal court predicated on a legal duty owed by another. Just as a plaintiff initiates a civil action by serving the defendant and timely filing a complaint in court, “[a] proceeding for compensation under [the Vaccine Act] shall be initiated by service upon the Secretary and the filing of a petition . . . with the United States Court of Federal Claims” within 36 months of the first symptom or manifestation of vaccine-related injury. See 42 U.S.C. § 300aa–11(a)(1). Nothing in this initiation process speaks to the administrative context in which § 5110(b)(1) oper- ates, wherein a claimant files an initial application with the VA seeking an award of monetary benefits from that agency, such that the application’s date of receipt deter- mines (in part) the total amount of benefits awarded.
Our understanding of the functional distinction be-
tween § 5110(b)(1)’s effective-date provision and a statute
of limitations is further confirmed by observing that “the
creation of a right
is distinct from the provision of
remedies
for violations
of that right.”
eBay Inc. v. MercExchange,
L.L.C.
,
the [36-month] statute of limitations”). Accordingly, § 5110(b)(1), which establishes the effective date of a claim whose filing is necessary “for benefits to be paid or fur- nished” by the VA, is not a statute of limitations because it pertains only to the creation of the right to be paid benefits, and not to the provision of remedies for violations of that right. For this reason, too, Congress would not have viewed § 5110(b)(1) as a statute of limitations.
D
Having determined that Congress would not have viewed § 5110(b)(1) as a statute of limitations, we are left to consider whether some other background principle of law supports applying Irwin ’s presumption of equitable tolling to § 5110(b)(1)’s effective-date provision. We see nothing in the cases identified by Mr. Arellano and Judge Dyk that would establish any such principle of law.
We are unaware of any case that applies
Irwin
’s pre-
sumption to a statutory provision functionally similar to
§ 5110(b)(1)—namely, one that does not encourage the dil-
igent prosecution of a claim by barring a claimant from
seeking relief after the statutory period elapses and, in-
stead, establishes an element of the claim itself. Instead,
cases applying ’s presumption have all involved a
time limit that functions as a statute of limitations by fore-
closing a plaintiff from seeking relief once that time has
passed. ,
e.g.
,
United States v. Kwai Fun Wong
, 135 S.
Ct. 1625 (2015) (two-year time limit for bringing a tort
claim against the government);
Holland v. Florida
, 560
U.S. 631 (2010) (one-year period for filing a petition for fed-
eral habeas relief);
Scarborough v. Principi
,
Mr. Arellano and Judge Dyk point to a statute govern-
ing Social Security disability insurance benefits, 42 U.S.C.
§ 423(b), which states: “An individual who would have
been entitled to a disability insurance benefit for any
month had he filed application therefor before the end of
such month shall be entitled to such benefit if such appli-
cation is filed before the end of the 12th month immediately
succeeding such month.” In other words, this provision
provides that qualifying claimants may receive retroactive
benefits up to a year prior to the date of application. But
as Mr. Arellano and amici concede, courts have so far
de-
clined
to find equitable exceptions available for this statu-
tory period.
See
Appellant’s Suppl. Br. 45–49; Military-
Veterans Advocates Amicus Br. 8;
see also Shepherd ex rel.
Shepherd v. Chater
, 932 F. Supp. 1314, 1318 (D. Utah
1996) (“Courts have uniformly refused to find equitable ex-
ceptions to the statutory limit on retroactive benefits.”).
Moreover, several cases explain that “filing [an application
within § 423(b)’s one year period] is a substantive condition
of eligibility” for retroactive Social Security benefits, rather
than a statute of limitations that may be equitable tolled.
See Yeiter v. Sec’y of Health & Hum. Servs.
,
Judge Dyk nonetheless contends that § 423(b) is not
only a “statute of limitations,” but that its approach to
claims involving retroactive benefits is “not unusual” in
government benefit programs, which purportedly “often”
permit claimants to recover future benefits while establish-
ing a statute of limitations for past benefits. Dyk Op.
at 8. He cites a single district court case for this proposi-
tion,
see Begley v. Weinberger
,
34
Federal Rules and had “its roots in [the] former federal eq- uity practice” of the courts. Id. at 417–18. Rather than rejecting the requirement for a background principle of law, the Court’s application of the relation back doctrine in the context of an EAJA fee application was premised on just such a principle—namely, the historical practice of the relation back doctrine outside the limited context of district court pleadings. Here, however, courts have applied the presumption of equitable tolling only to statutes of limita- tions that run once a cause of action accrues, and Mr. Arel- lano has not identified a case or background principle of law demonstrating otherwise.
The language and administrative context of § 5110(b)(1), moreover, are unlike that of any statute of limitations we have seen. Neither , nor any of the cases in this line, considered a statute of limitations having “effective date” language. At the same time, § 5110(b)(1) does not use the typical statute-of-limitations language es- tablishing when a plaintiff must file an action against a de- fendant in a tribunal or else lose the claim—the setting addressed by all statutory provisions treated as statutes of limitation in the Irwin line.
Section 5110(b)(1) instead addresses a structurally dis- tinct setting—i.e., filing an initial claim with a federal agency to obtain monetary benefits from that agency, wherein the claim’s receipt date determines the amount of awardable benefits but not whether the claim is barred. Unlike the traditional context in which a statute of limita- tions operates, the relevant “defendant” and “tribunal” for § 5110(b)(1) are one and the same (the VA), and the “de- fendant” has yet to violate any legal duty owed to the claim- ant that would give rise to a cause of action. While Judge Dyk asserts that the Supreme Court and several circuits have found equitable tolling applicable to “time require- ments in administrative agency proceedings,” see Dyk Op. at 3, none of the cases he cites address the type of agency proceedings relevant here. These cases instead involve fil- ing deadlines for administrative complaints, which address the same structural setting as any statute of limitations, wherein a complainant seeking redress for a respondent’s breach of duty before an independent tribunal. Cloer , as previously explained, involved a deadline for filing a peti- tion before a federal court and not an agency. 42 U.S.C. § 300aa–11(a)(1). This deadline is effectively no different than a traditional statute of limitations that establishes a period in which a plaintiff may sue a government defend- ant in federal court. Similarly, Zipes , Kratville v. Runyon , 90 F.3d 195, 198 (7th Cir. 1996), and Farris v. Shinseki , 660 F.3d 557, 563 (1st Cir. 2011), which all relate to the deadline for filing a charge of discrimination with the EEOC, address a setting in which an injured complainant seeks redress before a separate entity (the EEOC) with the authority to address the asserted breach of duty by the em- ployer, whether through adjudication, enforcement, or lesser measures. Thus, none of these cases speak to filing an initial claim with a federal agency to obtain monetary benefits from that agency, and we are unaware of any case holding that a provision with language or operational con- text similar to § 5110(b)(1) is a statute of limitations.
Section 5110(b)(1), for these additional reasons, would not have looked like a statute of limitations to Congress, meaning we cannot presume that Congress intended for this provision to carry the default feature of equitable toll- ing. The effective-date provision is therefore not a statute of limitations but merely determines the starting date for the right to payment on a veteran’s benefits claim. Because no background principle of law establishes that we may eq- uitably toll such a statutory provision, ’s presumption is inapplicable to § 5110(b)(1)’s effective date provision. Our reasoning here is consistent with Andrews ’ longstand- ing holding that principles of equitable tolling are inappli- cable to the one-year period in § 5110(b)(1), see 351 F.3d at 1137–38, our equally divided court today leaves that hold- ing undisturbed.
E
Although § 5110(b)(1) is not a statute of limitations
amenable to equitable tolling, even if
Irwin
’s presumption
were to apply, equitable tolling would nonetheless be una-
vailable because it is “inconsistent with the text of the rel-
evant statute.”
Young
, 535 U.S. at 49 (quoting
United
States v. Beggerly
,
There are several ways to rebut the presumption of eq-
uitable tolling, all of which seek to answer ’s “nega-
tively phrased question: “Is there good reason to believe
that Congress did
not
want the equitable tolling doctrine to
apply?”
See Brockamp
, 519 U.S. at 350. One way “is to
show that Congress made the time bar at issue jurisdic-
tional.”
Kwai Fun Wong
,
Neither party here argues that § 5110(b)(1)’s effective-
date provision is jurisdictional. Appellant’s Supp. Br.
24–28; Appellee’s Supp. Br. 57–60. And for good reason.
Nothing in § 5110 purports to define a tribunal’s jurisdic-
tion, and the filing of a benefits claim more than one year
after discharge does not deprive any tribunal of jurisdiction
to adjudicate that claim.
Cf. Henderson
,
But concluding that § 5110(b)(1)’s effective date provi-
sion is nonjurisdictional does not end our inquiry because
“Congress may preclude equitable tolling of even a nonju-
risdictional statute of limitations.”
See Kwai Fun Wong
,
135 S. Ct. at 1631 n.2;
see also Auburn
, 568 U.S. at 149
(holding that “the presumption in favor of equitable tolling
does not apply” to a nonjurisdictional agency appeal dead-
line given the statutory history and administrative con-
text);
Nutraceutical Corp. v. Lambert
,
Section 5110 begins with the default rule: “
Unless spe-
cifically provided otherwise in this chapter
, the effective
date of an award . . . shall not be earlier than the date of
receipt of application therefor.” § 5110(a)(1) (emphasis
added). Section 5110(a)(1), together with § 5101(a)’s re-
quirement that a claim “must be filed in order for benefits
to be paid or furnished,” establishes the baseline rule that
no benefits may accrue or be awarded before a claim assert-
ing the right to such benefits is filed, “unless specifically
provided” for by statute. Section 5110 then proceeds to list
more than a dozen detailed exceptions to the default rule
that permit an earlier effective date and, as a result, addi-
tional benefits accruing up to one year before the VA re-
ceives the claim. Section 5110(b)(1)’s day-after-discharge
provision is one such enumerated exception. By mandating
that any exception to the default rule must be provided for
“specifically” and “in this chapter,” the most natural read-
ing of § 5110 is that Congress implicitly intended to pre-
clude the general availability of equitable tolling by
explicitly including a more limited, specific selection of eq-
uitable circumstances under which a veteran is entitled to
an earlier effective date and specifying the temporal extent
of the exceptions for those circumstances.
TRW Inc. v.
Andrews
,
Mr. Arellano and Judge Dyk respond that courts have
construed statutory language far more imperative than
that of § 5110(a)(1) to permit equitable tolling. Specifi-
cally, they rely on
Kwai Fun Wong
’s analysis of the Federal
Tort Claims Act, which states that “[a] tort claim against
the United States
shall be forever barred
unless it is pre-
sented [to the agency] within two years . . . or unless action
is begun within six months.” 28 U.S.C. § 2401(b) (emphasis
added). There, the Supreme Court held that the phrase
“shall be forever barred,” though “mandatory” and “em-
phatic,” did not render the filing deadline at issue jurisdic-
tional and foreclosed from equitable tolling.
Kwai Fun
Wong
,
Indeed, § 5110’s enumeration of a wide range of specific
exceptions to the default rule hews closer to the “highly de-
tailed” and “technical” exceptions that foreclosed equitable
tolling in
Brockamp
than to
Kwai Fun Wong
’s “fairly sim-
ple language [that] can often [be] plausibly read as contain-
ing an implied ‘equitable tolling’ exception.”
Brockamp
,
The implication that § 5110’s explicitly enumerated ex-
ceptions preclude the judicial recognition of additional eq-
uitable exceptions can, of course, be overcome by “contrary
legislative intent.”
See TRW
,
More importantly, § 5110(b)(4) addresses the precise circumstances that prevented Mr. Arellano—a “veteran 42
who is permanently and totally disabled”—from filing his
claim earlier, but in the context of disability
pension
,
see
U.S.C. ch. 15, and not the disability compensation at issue
here,
id.
, ch. 11. Section 5110(b)(4) provides a one-year
grace period for disability pension filings by a permanently
and totally disabled veteran who was “prevented by a dis-
ability from applying for disability pension for a period of
at least 30 days beginning on the date on which the veteran
became permanently and totally disabled.” This provision
demonstrates that Congress considered the very circum-
stances that delayed Mr. Arellano from filing a claim and
nonetheless declined to afford equitable relief beyond what
was already provided in § 5110(b)(1). It is not our role as a
court to second-guess Congress’ judgment as to when such
equitable exceptions are warranted. To decide otherwise
would amount to “[a]textual judicial supplementation,”
which “is particularly inappropriate when, as here, Con-
gress has shown that it knows how to adopt the omitted
language or provision” that would equitably toll
§ 5110(b)(1) for permanently and totally disabled veterans.
Rotkiske
, 140 S. Ct. at 361;
cf. Hamdan v. Rumsfeld
,
Though we need not look beyond the unambiguous
statutory text, the statutory history of § 5110 reinforces
our conclusion that Congress did not intend for equitable
tolling to apply to § 5110(b)(1)’s effective date provision. In
the seventeen years since our court decided
Andrews
in
2003, we have repeatedly followed its holding, each time
reiterating that equitable tolling is inapplicable to § 5110’s
effective date rules.
See Titone v. McDonald
, 637 F. App’x
592, 593 (Fed. Cir. 2016) (per curiam);
Butler v. Shinseki
,
The statutory history of § 5110(b)(4) also confirms that Congress did not intend to provide more equitable relief than what was specifically enumerated in the statute. When § 5110(b)(4) was proposed in 1973, Congress ex- plained that “[t]he 1-year period prescribed by the proposal . . . is considered reasonable ” to address the filing “delays” of “permanently and totally disabled” veterans whose “very condition upon which entitlement may depend may also prevent prompt application for benefit.” H.R. Rep. No. 93-398), at 14 (1973) (emphases added). Congress, moreo- ver, remarked that the proposed one-year grace period would bring the effective-date rules governing disability pension into conformity with those already governing disa- bility compensation in § 5110(b)(1) and death benefits in § 5110(d). See id. Because § 5110(b)(4)’s one-year grace period was considered a “reasonable” equitable remedy for filing delays by permanently and totally disabled veterans, this statutory history supports our conclusion that Con- gress did not intend for equitable tolling of § 5110(b)(1)’s analogous one-year grace period.
While acknowledging that § 5110(b)(4) speaks to equi- table tolling and indicates “Congressional willingness to delay veterans’ filing obligations where a disability makes meeting them difficult or impossible,” see Dyk Op. at 26, Judge Dyk nonetheless argues that this provision merely signals “a beneficent Congressional act, [and] not a rebut- tal of the Irwin presumption,” id. at 16 (citing Cloer , 654 F.3d at 1343). [9] But this ignores Cloer ’s precise reasoning. Cloer explains that enumerated statutory exceptions do not necessarily rebut ’s presumption where those excep- tions address a “special need” that is unrelated to equitable tolling concerns. See id . Unlike § 5110(b)(4) and other ex- ceptions addressing specific equitable circumstances war- ranting a delayed claim filing, Cloer concluded that the two exceptions to the Vaccine Act’s 36-month filing deadline are driven by “specific concern[s] unrelated to equitable tolling considerations,” such as minimizing “confusion” and addressing “scientific advances in medicine,” and thus do not “show a desire by Congress to bar equitable tolling.” Id. at 1343–44; see also, id. at 1343 (“Individual factual circumstances, the first of equitable tolling claims, played no role in enactment of this provision.”).
Mr. Arellano and Judge Dyk also argue that § 5110’s
listed exceptions are irrelevant because they are exceptions
to § 5110(a)(1)’s default effective-date rule, and not
§ 5110(b)(1)’s one-year grace period. In their view, the
question is whether § 5110(b)(1)’s one-year period can be
tolled, and because that period does not itself have any enu-
merated exceptions, precedent such as
TRW
and
Brockamp
are not controlling. But this argument ignores that tolling
§ 5110(b)(1)’s one-year grace period would operate as an ex-
ception to not only § 5110(b)(1)’s one-year grace period but
also to § 5110(a)(1)’s default rule. This follows because, as
mentioned, § 5110(b)(1) is itself an equitable exception to
§ 5110(a)(1)’s default rule.
Cf. Beggerly
,
Mr. Arellano further argues that the relevant adminis-
trative context and subject matter of § 5110(b)(1)—veter-
ans’ benefits—support equitable tolling. We acknowledge
that Congress is more likely to have intended equitable
tolling for statutes “designed to be ‘unusually protective’ of
claimants” where “laymen, unassisted by trained lawyers,
initiate the process.”
Auburn
,
But these general background principles cannot over-
ride the unambiguous meaning of the statutory text.
Kisor v. Wilkie
,
We recognize there are circumstances under which it
may seem unjust to preclude equitable tolling. But where
the statutory text demonstrates “a clear intent to preclude
tolling, courts are without authority to make exceptions
merely because a litigant appears to have been diligent,
reasonably mistaken, or otherwise deserving.”
Nutraceuti-
cal
, 139 S. Ct. at 714;
see also California v. Sierra Club
,
For these reasons, equitable tolling is inconsistent with Congress’ intent in enacting § 5110(b)(1), and ’s pre- sumption—were it to apply in this instance—would have been rebutted.
F
Lastly, we briefly address Judge Dyk’s conclusion that equitable tolling is unavailable on the undisputed facts of Mr. Arellano’s appeal. See Dyk Op. at 26 n.20. Because both the Board and the Veterans Court concluded that eq- uitable tolling was categorically unavailable for § 5110(b)(1) as a matter of law, neither had reason to con- sider whether the specific facts of Mr. Arellano’s case justi- fied equitable tolling. Nor did they consider whether further factual development would be warranted if equita- ble tolling were not categorically unavailable. In the event of a reversal, Mr. Arellano has requested that we remand this case for further proceedings so he can present why his factual circumstances warrant equitable tolling. Ap- pellant’s Suppl. Br. 49; Appellant’s Br. 32. The govern- ment, for its part, has never argued in this court that we can—or should—affirm the denial of equitable tolling on the facts of Mr. Arellano’s case; it has only argued that eq- uitable tolling is unavailable as a matter of law.
However, Judge Dyk contends that we may determine the application of equitable tolling in the first instance “[w]here the facts are undisputed, [and] all that remains is a legal question, even if that legal question requires the ap- plication of the appropriate standard to the facts of a par- ticular case.” Dyk Op. at 26 n.20 (quoting Former Employees of Sonoco Prod. Co. v. Chao , 372 F.3d 1291, 1294–95 (Fed. Cir. 2004)). But neither Former Employees , nor any case cited within, holds that we may apply a legal standard to the facts where the Veterans Court (and the Board): (1) did not address any of those facts in denying equitable tolling; (2) made no factual findings on this issue; (3) did not consider whether further factual development may be warranted to adequately answer that question; and (4) did not consider Judge Dyk’s rigid “caregiver rule” that bars equitable tolling for totally and permanently disabled veterans who have a caregiver. For that reason, it is un- surprising that Mr. Arellano has not alleged “any special circumstances” in relation to his caregiver, as Judge Dyk observes, since no one until today had suggested that hav- ing a caregiver creates a default presumption against equi- table tolling in this context or in any other setting where equitable tolling can arise. Thus, even if Irwin ’s presump- tion of equitable tolling were to apply to § 5110(b)(1), which it does not, we would remand this case for further factual development—which is all the more justified because Mr. Arellano has expressly requested this outcome under such circumstances and no party has argued that we may affirm the Veterans Court’s decision on factual grounds.
C ONCLUSION
For the aforementioned reasons, and consistent with our longstanding holding in Andrews , § 5110(b)(1) is not a statute of limitations subject to Irwin ’s presumption of eq- uitable tolling. But even if ’s presumption were to ap- ply, it would be rebutted by the statutory text of § 5110, which evinces clear intent from Congress to foreclose equi- table tolling of § 5110(b)(1)’s one-year period.
United States Court of Appeals for the Federal Circuit ______________________ ADOLFO R. ARELLANO, Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee ______________________ 2020-1073 ______________________ Appeal from the United States Court of Appeals for Veterans Claims in No. 18-3908, Judge Michael P. Allen.
______________________ Decided: June 17, 2021 ______________________ D YK , Circuit Judge , with whom N EWMAN , O’M ALLEY , R EYNA , W ALLACH , and S TOLL , Circuit Judges , join, concur- ring in the judgment.
The court here agrees that Mr. Arellano’s claim for benefits was untimely, but the court is equally divided on the question whether 38 U.S.C. § 5110(b)(1) is subject to equitable tolling. Judge Chen (joined by Chief Judge Moore and Judges Lourie, Prost, Taranto, and Hughes) would hold that the section is not a statute of limitations, and, even if it were, the presumption of equitable tolling under has been rebutted. An equal number of judges (Judges Newman, O’Malley, Reyna, Wallach, Stoll, and myself) join this opinion and would hold that § 5110(b)(1) is a statute of limitations subject to equitable tolling, that the presumption of equitable tolling applies, but that § 5110(b)(1) cannot be equitably tolled for mental disability in the circumstances of this case.
I
The effective date of an award of service-connected ben- efits is governed by 38 U.S.C. § 5110. “Unless specifically provided otherwise in this chapter, the effective date of an award . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of applica- tion therefor.” 38 U.S.C. § 5110(a)(1). An exception to § 5110(a)(1) is available under § 5110(b)(1), which pro- vides:
The effective date of an award of disability compen- sation to a veteran shall be the day following the date of the veteran’s discharge or release if appli- cation therefor is received within one year from such date of discharge or release.
38 U.S.C. § 5110(b)(1); see also 38 C.F.R. § 3.400(b)(2)(i) (2020) (“Day following separation from active service or date entitlement arose if claim is received within 1 year af- ter separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later.”).
Here, the claim for benefits was filed on June 3, 2011, thirty years after the veteran’s discharge, and benefits were allowed as of the date the claim was filed, June 3, 2011. The question is whether § 5110(b)(1) may be equita- bly tolled based on mental disability so that the veteran can receive retroactive benefits to the date his entitlement arose, which was within a year of his discharge, thirty years earlier.
II
“Time requirements in lawsuits between private liti-
gants are customarily subject to ‘equitable tolling.’”
Irwin
v. Dep’t of Veterans Affs.
,
The Supreme Court and several circuits have found eq-
uitable tolling to be applicable to time requirements in ad-
ministrative agency proceedings.
See Zipes v. Trans World
Airlines, Inc.
,
III
The framework governing the presumption of eq- uitable tolling has two steps.
The first step is determining whether the statute is a
statute of limitations, in which case the presumption
will apply. Courts “have only applied [the] presumption [of
equitable tolling] to statutes of limitations,”
Lozano v. Mon-
toya Alvarez
,
A
Judge Chen at the first step would hold that 38 U.S.C. § 5110(b)(1) is not a statute of limitations or otherwise sub- ject to tolling, and he would reaffirm our Andrews panel decision in this respect. I think this view is quite clearly incorrect.
Judge Chen urges that the limitations period on past benefits for disability compensation in § 5110(b)(1) is not a statute of limitations because the one-year period “[1] is not triggered by harm from the breach of a legal duty owed by the opposing party, and [2] it does not start the clock on seeking a remedy for that breach from a separate remedial entity.” Chen Op. 13 (citing 1 Calvin W. Corman, L IMITATION OF A CTIONS , § 6.1, at 370 (1991)). In Judge Chen’s view, § 5110(b)(1) is not a statute of limitations be- cause “there is no duty, or breach of duty, at the onset of § 5110(b)(1)’s one-year period (i.e., the day after discharge)” and “no remedial authority separate from the [Department of Veterans Affairs (“VA”)] is involved in an initial applica- tion for veterans’ benefits.” Id. at 13–14.
Judge Chen’s opinion is bereft of support for these sup- posed rules. The cited treatise contains only general lan- guage describing general principles of statutes of limitations. Corman, supra , § 6.1, at 370 (“The earliest opportunity for a complete and present cause of action is that moment when the plaintiff has suffered a legally rec- ognizable harm at the hands of the defendant, such as the time of contract breach or the commission of a tortious wrong.”). Judge Chen cites no case, and I am aware of none, holding that statutes of limitations are limited as Judge Chen suggests. [1]
The cases establish that there are no such rules. The
notion that statutes of limitations are triggered only by a
breach of legal duty is quite inconsistent with cases holding
that a provision barring benefits for failure to file within a
prescribed period constitutes a statute of limitations, re-
gardless of any alleged breach of duty by the government.
This has been made clear by
Scarborough
, where (as noted
above) the Supreme Court explained that ’s reasoning
may extend to “the administration of benefit programs.”
A primary example of a no-fault statute of limitations is the National Childhood Vaccine Injury Act of 1986 (“Vac- cine Act”), which requires that, for vaccines administered after October 1, 1988, a “petition” for “compensation” for a vaccine-related injury be filed within 36 months “after the date of the occurrence of the first symptom or manifesta- tion of onset . . . of such injury.” 42 U.S.C. § 300aa-16(a)(2).
Vaccine Act claims are not tied to fault by the govern-
ment. The system established by the Vaccine Act “was ‘in-
tended to be expeditious and fair’ and ‘to compensate
persons with recognized vaccine injuries . . . without a
demonstration that a manufacturer was negligent or that
a vaccine was defective.’”
Zatuchni v. Sec’y of Health &
Hum. Servs.
,
Under this compensation system, vaccine-injured persons may obtain a full and fair award for their injuries even if the manufacturer has made as safe a vaccine as possible. Petitioners are compensated because they suffered harm from the vaccine—even a ‘safe’ one—not because they demonstrated wrongdoing on the part of the manufacturer.
H.R. Rep. 99-908, at 26, reprinted in 1986 U.S.C.C.A.N. at 6367.
We have nonetheless held en banc that 42 U.S.C.
§ 300aa-16(a)(2) establishes a statute of limitations subject
to equitable tolling under .
See Cloer v. Sec’y of
Health & Hum. Servs.
,
The second of Judge Chen’s factors—the involvement
of a “separate remedial entity,” Chen Op. 13—is also incon-
sistent with cases in the administrative context, in which
the Supreme Court and other courts have made clear that
a statute governing the timeliness of a claim to an agency
for payment from that agency is a statute of limitations.
United States v. Williams
, 514 U.S. 527, 534 & n.7
(1995) (26 U.S.C. § 6511(a) is a “statute of limitations” that
“bar[s] . . . tardy” tax refund claims filed with the Internal
Revenue Service);
Colvin v. Sullivan
, 939 F.2d 153, 156
(4th Cir. 1991) (referring to 42 U.S.C. § 1320b-2(a), which
provides for a two-year period during which states are per-
mitted to file claims with the federal government for ex-
penditures made in carrying out a state plan under specific
subchapters of the codification of the Social Security Act,
as a “statute of limitations”);
cf. Warren v. Off. of Pers.
Mgmt.
,
B
Judge Chen offers an alternative theory—that § 5110(b)(1) is not a statute of limitations because it “does not eliminate a veteran’s ability to collect benefits for [a service-connected] disability,” Chen Op. 13, but instead “forgives a veteran’s temporary delay in filing a claim in the immediate aftermath of a veteran’s transition back to civilian life upon discharge from military service,” id. at 19 (emphasis omitted). In my view, this analysis blinks real- ity.
The claim for benefits here has two components: (1) a
retrospective claim for benefits for past disability, and (2) a
prospective claim for future benefits. The statute imposes
no statute of limitations for prospective benefits, and a vet-
eran may be entitled to forward-looking benefits after the
one-year period prescribed by § 5110(b)(1) runs.
See Hen-
derson v. Shinseki
, 562 U.S. 428, 431 (2011) (“A veteran
faces no time limit for filing a claim . . . .”). But § 5110(b)(1)
does impose what is clearly a one-year statute of limita-
tions for retrospective claims—making retrospective bene-
fits unavailable unless the claim is filed within one year
after discharge. Section 5110(b)(1) is a “more limited stat-
ute of limitations,”
see Young v. United States
,
This approach to periods of limitations for claims for
benefits is not unusual. Government benefits programs of-
ten provide that an individual qualifying for benefits may
recover future benefits once an application is filed but is
limited in the recovery of past benefits to a set period before
the filing of the application. One example is the statute
providing for Social Security disability benefits, which pro-
vides no limit on the recovery of future benefits once an ap-
plication has been filed but imposes a twelve-month
limitations periods on the recovery of past benefits—in
other words, a statute of limitations.
Begley v. Weinberger
,
Section 5110(b)(1) is nearly the same as the statutes of limitation in copyright actions and patent infringement, where the statutes bar recovery for past events if the claim is not filed within a specified period, but permit recovery for future acts. The copyright limitations period is gov- erned by 17 U.S.C. § 507, [3] which the Supreme Court has described as a “limitations period [that] allows plaintiffs during [the copyright] term to gain retrospective relief run- ning only three years back from the date the complaint was filed.” Petrella v. Metro-Goldwyn-Mayer, Inc. , 572 U.S. 663, 672 (2014); see also id. at 670 (describing copyright limitations period as a “a three-year look-back limitations period”). [4] Thus, “the infringer is insulated from liability for earlier infringements of the same work.” Id. at 671.
Likewise, § 5110(b)(1) is similar to the limitations pe-
riod in patent infringement actions, 35 U.S.C. § 286,
[5]
which “represents a judgment by Congress that a patentee
from the disability itself.”
[3] “No civil action shall be maintained under the pro- visions of this title unless it is commenced within three years after the claim accrued.” 17 U.S.C. § 507(b).
[4] The copyright statute of limitations has been held
to be subject to equitable tolling.
See Prather v. Neva Pa-
perbacks, Inc.
,
[5] “Except as otherwise provided by law, no recovery shall be had for any infringement committed more than six years prior to the filing of the complaint or counterclaim for infringement in the action.” 35 U.S.C. § 286.
may recover damages for any infringement committed
within six years of the filing of the claim.”
SCA Hygiene
Prods. Aktiebolag v. First Quality Baby Prods.
, LLC, 137 S.
Ct. 954, 961 (2017). In so holding, the Supreme Court re-
jected the argument that § 286 was not a “true statute of
limitations” because it “runs backward from the time of
suit.”
Id.
at 961–62 (citing
Petrella
,
Judge Chen attempts to distinguish these cases on the
ground that Ҥ 5110(b)(1) establishes the effective date of a
single benefits claim for an ongoing disability, whereas an
ongoing course of infringement in
Petrella
and
SCA Hy-
giene
comprises a ‘series of discrete infringing acts,’ each of
which is a distinct harm giving rise to an independent
claim for relief that starts a new limitations period.” Chen
Op. 20 (quoting
Petrella
,
The Supreme Court’s decision in
Young
, 535 U.S. 43,
also supports the view that § 5110(b)(1) is a statute of lim-
itations. In
Young
, the Supreme Court considered whether
a three-year lookback period provided by § 507 of the Bank-
ruptcy Code was a statute of limitations.
See
11 U.S.C.
§ 507(a)(8)(A)(i). Under this lookback period, “[i]f the IRS
has a claim for taxes for which the return was due within
three years before the bankruptcy petition was filed, the
claim enjoys eighth priority . . . and is nondischargeable in
bankruptcy.”
Young
,
In determining that the lookback period was a statute
of limitations, the Supreme Court found it significant that
“the lookback period serve[d] the same ‘basic policies [fur-
thered by] all limitations provisions: repose, elimination of
stale claims, and certainty about a plaintiff’s opportunity
for recovery and a defendant’s potential liabilities.’”
Young
,
535 U.S. at 47 (second alteration in original) (quoting
Rotella v. Wood
,
Section 5110(b)(1), like the provision at issue in
Young
,
serves the same basic policies of limitations periods. It en-
courages veterans to file for disability compensation bene-
fits within a year of their discharge, or else lose retroactive
benefits that they would otherwise be entitled to. It limits
veterans’ “opportunity for recovery” and the government’s
“potential liabilities,”
see Rotella
,
Judge Chen attempts to find support in the Supreme
Court’s
Lozano
decision.
Lozano
involved Article 12 of the
Hague Convention on the Civil Aspects of International
Child Abduction, which was held not to be a statute of lim-
itations. “When a parent abducts a child and flees to
another country,” the Hague Convention “generally re-
quires that country to return the child immediately if the
other parent requests return within one year.”
Lozano
, 572
U.S. at 4. After the one-year period has expired, under Ar-
ticle 12, the court “shall also order the return of the child,
unless it is demonstrated that the child is now settled.”
Id.
at 15 (citation and quotation marks omitted).
Lozano
did
not involve a statute, but rather a treaty provision, which
“was not adopted against a shared background of equitable
tolling.”
Id.
at 11. Also, this treaty provision in
Lozano
did
not provide a cut-off for monetary recovery, unlike
§ 5110(b)(1), which provides “certainty about a plaintiff’s
opportunity for recovery and a defendant’s potential liabil-
ities” by providing a cut-off date for retroactive disability
benefits.
See Rotella
,
Nor is this case similar to Hallstrom , on which Judge Chen also relies. As noted above, Hallstrom concerned a 60-day notice provision of the Resource Conservation and Recovery Act of 1976. 493 U.S. at 22 (citing 42 U.S.C. § 6972(b)(1) (1982)). The Supreme Court held that this “60-day notice provision” was “[u]nlike a statute of limita- tions” because “petitioners [had] full control over the tim- ing of their suit: they need only give notice to the appropriate parties and refrain from commencing their ac- tion for at least 60 days.” Id. at 27. Section § 5110(b)(1) is not a notice provision.
In sum, § 5110(b)(1) is a statute of limitations, and the
rebuttable presumption of equitable tolling applies.
As Judge Newman has noted, “[t]he time period of
§ 5110(b)(1) is not a jurisdictional restriction, and its blan-
ket immunization from equitable extension, whatever the
circumstances, appears to be directly contrary to the legis-
lative purpose.”
Butler v. Shinseki
,
IV
“To be sure, ’s presumption is rebuttable.”
United
States v. Kwai Fun Wong
,
The Supreme Court has identified several factors that determine whether the equitable tolling presumption has been rebutted, and here, almost all of the factors signal that there is no general prohibition against equitable toll- ing. [7]
The first factor is the language of the statute. The lan-
guage of a statute of limitations may indicate that it is ju-
risdictional, in which case a court must enforce the
limitation “even if equitable considerations would support
extending the prescribed time period.”
Kwai Fun Wong
,
Section 5110(b)(1) is not jurisdictional, as Judge Chen concedes. Chen Op. 36–37. Nevertheless, Judge Chen re- lies on the use of the phrase “[u]nless specifically provided otherwise in this chapter” in § 5110(a)(1), concluding that by using that term, Congress “implicitly intended to pre- clude the general availability of equitable tolling by explicitly including a more limited, specific selection of eq- uitable circumstances under which a veteran is entitled to an earlier effective date and specifying the temporal extent of the exceptions for those circumstances.” Id. at 37–38.
In
Kwai Fun Wong
, the Supreme Court held that the
use of the phrase “shall be forever barred” in the Federal
Tort Claims Act limitations period, 28 U.S.C. § 2401(b),
though “mandatory” and “emphatic,” “[spoke] only to a
claim’s timeliness, not to a court’s power,” and did not des-
ignate § 2401(b) as a jurisdictional time bar not subject to
equitable tolling.
Second, the detailed nature of a statute may suggest that Congress did not intend for a statute of limitations to be equitably tolled. “Ordinarily limitations statutes use fairly simple language, which one can often plausibly read as containing an implied ‘equitable tolling’ exception.” United States v. Brockamp , 519 U.S. 347, 350 (1997). A statute that “uses language that is not simple” and “sets forth its limitations in a highly detailed technical manner, that, linguistically speaking, cannot easily be read as con- taining implicit exceptions” could indicate Congress’s in- tent to preclude equitable tolling. Id.
Judge Chen determines that the language and struc-
ture of § 5110’s subsections are “highly detailed” and “tech-
nical.” Chen Op. 39 (quoting
Brockamp
,
Third, we consider if a statute of limitations has “ex-
plicit exceptions to its basic time limits,” which may pre-
clude equitable tolling.
Brockamp
,
We noted in
Cloer
that “exceptions to statutes of limi-
tations do not necessarily rebut the bedrock
Irwin
pre-
sumption in favor of equitable tolling,” and that “an
exception may signal a beneficent Congressional act, not a
rebuttal of the presumption.”
Nor do the other provisions of § 5110 speak to equitable tolling, with the exception of § 5110(b)(4), which provides a retroactive period of disability pension benefits for a vet- eran who is “prevented by a disability from applying for disability pension.” 38 U.S.C. § 5110(b)(4)(B).
Apart from § 5110(b)(4), this is not a situation in which the statute “has already effectively allowed for equitable tolling.” See United States v. Beggerly , 524 U.S. 38, 48 (1998). The other § 5110 provisions discuss situations—for example, when a child turns 18, 38 U.S.C. § 5110(e)(2); when there has been a report or finding of death of a service member, id. § 5110(j); or when there has been an annul- ment of marriage, id. § 5110(k)—which do not on their face relate to equitable tolling or indicate Congress’s intent to preclude equitable tolling of § 5110(b)(1).
With respect to § 5110(b)(4), it is true that § 5110(b)(4)
speaks to one limited aspect of equitable tolling (tolling for
disability), but only in the unique context of disability pen-
sion and not disability compensation. While this may indi-
cate a desire to limit equitable tolling for mental disability
in specific circumstances (as discussed below), this can
hardly be read as evincing a desire by Congress to elimi-
nate equitable tolling generally as to disability compensa-
tion. It is simply an example of “a beneficent Congressional
act, not a rebuttal of the presumption.”
Cloer
,
Fourth, Congress is more likely to have intended a stat- ute of limitations that governs a statutory scheme “in which laymen, unassisted by trained lawyers, initiate the process” to be subject to equitable tolling, Zipes , 455 U.S. at 397 (quoting Love v. Pullman Co. , 404 U.S. 522, 527 (1972)), in contrast to statutory schemes that govern so- phisticated parties “assisted by legal counsel,” Auburn , 568 U.S. at 160.
The fact that “the veteran is often unrepresented dur-
ing the claims proceedings,”
Shinseki v. Sanders
, 556 U.S.
396, 412 (2009), especially, as here, “in the early stages of
the application process,” when “the veteran is almost al-
ways unassisted by legal counsel,”
Hensley v. West
, 212
F.3d 1255, 1262 (Fed. Cir. 2000), suggests that Congress
17
intended for equitable tolling to be available.
[9]
This is in
contrast to situations such as in
Auburn
, where the statu-
tory scheme at issue governed reimbursements to
healthcare providers. The statute “[was] not designed to
be unusually protective of claimants,” was not one “in
which laymen, unassisted by trained lawyers, initiate the
process,” and “applie[d] to sophisticated institutional pro-
viders assisted by legal counsel.”
Fifth, we consider the subject matter of the statute. If
the statute of limitations “is contained in a statute that
Congress designed to be ‘unusually protective’ of claim-
ants,” that will suggest Congress intended for equitable
tolling to apply.
Bowen v. City of New York
,
“[T]he uniquely pro-claimant nature of the veterans
compensation system” suggests that Congress intended at
least some form of equitable tolling to be available.
Hensley
v. West
,
“Congress has expressed special solicitude for the vet-
erans’ cause.”
Shinseki
,
The veterans benefits system is unlike the tax collec-
tion system, which the Supreme Court held was not subject
to equitable tolling because “Congress decided to pay the
price of occasional unfairness in individual cases (penaliz-
ing a taxpayer whose claim is unavoidably delayed) in or-
der to maintain a more workable tax enforcement system.”
Brockamp
,
“[O]nce a claim is filed, the VA’s process for adjudicat-
ing it at the regional office and the Board is
ex parte
and
nonadversarial.”
Henderson
,
These factors, as well as “the canon that provisions for
benefits to members of the Armed Services are to be con-
strued in the beneficiaries’ favor,”
King v. St. Vincent’s
Hosp.
,
Nor does the fact that Congress amended § 5110 four
times since
Andrews
indicate approval of
Andrews
. The
presumption that reenactment of a statute ratifies the set-
tled interpretation of that statute is strongest when there
is evidence that “Congress was indeed well aware of [the
prior interpretation].”
Lindahl v. OPM
,
Judge Chen’s approach is particularly difficult to de- fend because it would bar equitable tolling in all cases, including cases where equitable tolling could be argued to be particularly important and appropriate. This approach forecloses the possibility of equitable tolling entirely, even in circumstances in which there is no indication that Con- gress intended strict enforcement of the one-year period of § 5110(b)(1).
V
The fact that the statute does not foreclose equitable
tolling in the case of § 5110(b)(1) does not suggest that eq-
uitable tolling is available in every circumstance. While
the statute does not indicate a general prohibition against
equitable tolling, “[f]ederal courts have typically extended
equitable relief only sparingly.”
Irwin
,
Equitable tolling analysis begins with the governing statutory scheme. Even where the presumption has not been rebutted, the statute and statutory scheme are in- structive as to the particular circumstances that will jus- tify equitable tolling. See Mapu v. Nicholson , 397 F.3d 1375, 1381 (Fed. Cir. 2005) (concluding that “Congress’s ex- plicit decision not to broaden the postmark rule by extend- ing it to delivery services other than the Postal Service must trump any extension of equitable tolling to this case”); Cloer , 654 F.3d at 1345 (no relief under equitable tolling because of “a policy calculation made by Congress not to afford a discovery rule to all Vaccine Act petitioners and Dr. Cloer’s failure to point to circumstances that could justify the application of equitable tolling to forgive her un- timely claim”). The statutory scheme here helps inform the scope of equitable tolling on the ground of mental disabil- ity.
First, an individual who lacks mental capacity may have a caregiver sign a form for benefits on his or her be- half. Under 38 U.S.C. § 5101, as amended in 2012, [13] if an “individual lacks the mental capacity . . . to provide sub- stantially accurate information needed to complete a form; or . . . to certify that the statements made on a form are true and complete,” 38 U.S.C. § 5101(e)(1), [14] then “a form filed . . . for the individual may be signed by a court-ap- pointed representative, a person who is responsible for the care of the individual, including a spouse or other relative, or . . . agent authorized to act on behalf of the individual under a durable power of attorney,” id. § 5101(a)(2).
In addition, 38 C.F.R. § 3.155 provides that “some per- son acting as next friend of claimant who is not of full age or capacity may indicate a claimant’s desire to file a claim for benefits by submitting an intent to file a claim to [the] VA.” 38 C.F.R. § 3.155(b) (2020). “Upon receipt of the in- tent to file a claim, [the] VA will furnish the claimant with the appropriate application form prescribed by the Secre- tary.” Id. Thus, § 3.155 “provide[s] a way for claimants who cannot engage in a legal contract due to age or disabil- ity to be represented by someone (or next friend) who can do so on their behalf.” Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,667 (Sept. 25, 2014) (Final Rule). [15]
In the context of the Vaccine Act, the provision that al-
lows
a
“legal
representative,”
42 U.S.C.
§ 300aa-11(b)(1)(A), to file a petition on the behalf of a per-
son who is disabled, “does not foreclose the availability of
equitable tolling for claimants with mental illness,” under
all circumstances.
K. G. v. Sec’y of Health & Hum. Servs.
,
Thus, absent special circumstances demonstrating an inability of the caregiver to at least indicate an intent to file a claim (which can trigger the claim filing process), [16] I believe it would be only the rare case where a mentally dis- abled veteran with a caregiver would be entitled to equita- bly toll § 5110(b)(1).
Second, 38 U.S.C. § 5110(b)(4) provides a one-year pe- riod for a retroactive effective date for disability pension (a form of compensation distinct from service-connected ben- efits). [17] That subsection provides:
(A) The effective date of an award of disability pen- sion to a veteran described in subparagraph (B) of this paragraph shall be the date of application or the date on which the veteran became permanently and totally disabled, if the veteran applies for a ret- roactive award within one year from such date, whichever is to the advantage of the veteran. (B) A veteran referred to in subparagraph (A) of this paragraph is a veteran who is permanently and totally disabled and who is prevented by a dis- ability from applying for disability pension for a pe- riod of at least 30 days beginning on the date on which the veteran became permanently and totally disabled.
38 U.S.C. § 5110(b)(4) (emphasis added).
The predecessor to subsection (A) of § 5110(b)(4) was adopted [18] based on a proposal from the VA to address “problems resulting from the veteran’s disability [that] de- lays [the veteran’s] application for the benefit,” whereby “the very condition upon which entitlement may depend may also prevent prompt application for the benefit.” H.R. Rep. 93-398, 1973 U.S.C.C.A.N. 2759, 2772 (July 25, 1973) (letter dated May 10, 1973, from Donald E. Johnson, Ad- ministrator of Veterans Affairs). The VA’s proposal “would alleviate this situation by affording the disabled veteran a year from onset of disability to apply for pension and, if he is otherwise eligible, authorize payment retroactively to the date on which he became permanently and totally dis- abled.” Id. “The 1-year period prescribed by the proposal within which to apply for disability pension [was] consid- ered reasonable . . . .” Id.
This provision was further amended in 1984 in part to add subsection (B), which specified that veterans who qual- ify for the one-year lookback period for disability pension are veterans “who [are] permanently and totally disabled and who [are] prevented by a disability from applying for disability pension for a period of at least 30 days beginning on the date on which the veteran became permanently and totally disabled.” Deficit Reduction Act of 1984, Pub. L. 98– 369, sec. 2501, 98 Stat. 494, 1116–17. [19] While pension benefits are different from disability benefits, this provision is instructive because it indicates Congressional willingness to delay veterans’ filing obliga- tions where a disability makes meeting them difficult or impossible, but not to do so indefinitely, or even for a sub- stantial period of time.
Against this backdrop, I now turn to the particular cir-
cumstances presented here.
[20]
Mr. Arellano’s brother,
Pedro Arellano Lamar, has been Mr. Arellano’s “caregiver
since [Mr. Arellano] returned home mentally disabled in
November 1981.” J.A. 554;
see also id.
at 565. Yet, the VA
did not receive Mr. Arellano’s application until June 3,
2011. According to Mr. Arellano’s counsel, Mr. Arellano’s
brother, “acting as guardian ad litem,” filed the application
on Mr. Arellano’s behalf. Oral Arg. 41:25–42:06, 43:27–
44:10, http://oralarguments.cafc.uscourts.gov/default.
aspx?fl=20-1073_02042021.mp3. There is no allegation
that Mr. Lamar was somehow prevented from filing, or
faced obstacles in his attempt to file, Mr. Arellano’s request
for benefits sooner. Unlike in
K. G.
, there is no claim that
Mr. Arellano was estranged from Mr. Lamar or refused to
interact with him.
Because Mr. Arellano had a caregiver who could have filed (and indeed did later file) an application on Mr. Arel- lano’s behalf, and no special circumstances are alleged, eq- uitable tolling on the ground of Mr. Arellano’s mental disability is not warranted, especially for such an untimely filing. Equitable tolling for mental disability is not availa- ble in this case.
C ONCLUSION
I would hold that § 5110(b)(1) is a statute of limitations that is subject to the rebuttal presumption of equitable toll- ing under . I would also hold that the presumption has not been rebutted as to equitable tolling, but that eq- uitable tolling is not available to Mr. Arellano’s specific cir- cumstances. Thus, I concur in the judgment.
Notes
[*] Chief Judge Kimberly A. Moore assumed the position of Chief Judge on May 22, 2021.
[**] Circuit Judge Sharon Prost vacated the position of Chief Judge on May 21, 2021.
[***] Circuit Judge Evan J. Wallach assumed senior status on May 31, 2021.
[1] No party has identified a material difference, for present purposes, between “claim” and “application,” and the VA’s regulations appear to use these terms inter- changeably. , e.g. , 38 C.F.R. § 3.1(p) (defining “claim” as “a written or electronic communication requesting a de- termination of entitlement or evidencing a belief in entitle- ment, to a specific benefit under the laws administered by the [VA] submitted on an application form prescribed by the Secretary”).
[2] That is not to say, however, that the Appropria-
tions Clause bars all equitable tolling against the govern-
ment for monetary claims. Instead, if “application of the
doctrine [of equitable tolling] is consistent with Congress’
intent in enacting a particular statutory scheme, [then]
there is no justification for limiting the doctrine to cases
that do not involve monetary relief.”
See Bowen v. City of
New York
,
[3] Judge Dyk contends that the need for a separate
remedial authority is inconsistent with three cases pur-
portedly establishing that “a statute governing the timeli-
ness of a claim to an agency for payment from that agency
is a statute of limitations.” Dyk Op. 7 (citing
United States
v. Williams
,
[4] The bankruptcy priority scheme determines the or- der in which claims are paid. Claims with higher priority are entitled to payment in full before anything can be dis- tributed to claims of lower rank. 1 Richard I. Aaron, Bankruptcy Law Fundamentals § 8:10 (2020 ed.).
[5] In Neff , the statutory provision at issue foreclosed discharge in bankruptcy for debtors who improperly
[6] If § 423(b) were deemed a statute of limitations, as Judge Dyk contends, such a determination would be a trail- blazing event, making equitable tolling potentially availa- ble (absent congressional intent otherwise) in large swaths of Social Security cases involving retroactive benefits, con- trary to what courts had uniformly held pre- . Even more troubling is Judge Dyk’s assertion that government benefits programs “often” include “statutes of limitations” for retroactive benefits. If this too is accurate, then the ramification of his reasoning is that equitable tolling could potentially apply to many, if not all, of those statutes
[7] Mr. Arellano also argues that the principle of stat-
utory construction quoted from
TRW
applies only where it
would render one of those exceptions insignificant or super-
fluous.
E.g.
, Appellant’s Supp. Reply Br. 21–22. But while
that principle may be strongest in such a case, it is clearly
instructive even where no exception would be effectively
read out of the statute.
Andrus
, 446 U.S. at 616–17
(declining to recognize an additional exception where stat-
ute recites explicitly enumerated exceptions to a general
prohibition, even where no other exception would be ren-
dered superfluous by the addition);
United States v. Smith
,
[8] Though several of § 5110’s enumerated exceptions address equitable circumstances in which the filing of a claim may be delayed, Judge Dyk nonetheless contends that no provision of § 5110 other than § 5110(b)(4) “speak[s] to equitable tolling,” and § 5110(b)(4) alone “can hardly be read as evincing a desire by Congress to elimi- nate equitable tolling” generally as to disability compensa- tion. Dyk Op. at 16. He does not explain why, if retroactive effective date provisions are statutes of limitations (as he insists), provisions analogous to § 5110(b)(4) that permit an earlier effective date when a claimant delays filing a claim due to the death of a spouse or parent, an increase in disa- bility severity, or even discharge from military service do not likewise “speak to equitable tolling.” Judge Dyk ap- pears to argue that Irwin ’s presumption may not be rebut- ted unless a statute explicitly references more than one circumstance for which courts have traditionally permitted equitable tolling (e.g., defective pleadings, deception through defendant’s misconduct, severe disability) but cites no support for such a proposition. Nor would the enu- merated exceptions in Brockamp satisfy his heightened standard for rebutting ’s presumption.
[9] Despite maintaining that § 5110(b)(4) does not sig- nal congressional intent to preclude equitable tolling be- yond the statutory limits, Judge Dyk nonetheless claims this provision demonstrates congressional intent to deny Mr. Arellano and other disabled claimants with a caregiver or other representative equitable relief beyond what is ex- pressly provided by statute. Dyk Op. at 22–24.
[1] Judge Chen relies on
Hallstrom
, which concerned
the citizen suit provision of the Resource Conservation and
Recovery Act of 1976 that required 60 days’ notice before
filing suit.
[2] The cases Judge Chen cites, both decided before
Ir-
win
, are not to the contrary. Chen Op. 31 (citing
Yeiter
v. Sec’y of Health & Hum. Servs.
,
[6] The holdings of
Petrella
and
SCA Hygiene
ad-
dressed whether the provisions were statutes of limitations
because that affected application of the doctrine of laches.
Petrella
,
[7] Our decision in
Cloer
identified many of the same
factors. 654 F.3d at 1342. The Supreme Court has
identified further factors since we decided
Cloer
that I dis-
cuss here.
See generally Auburn
,
[8] Under the VA’s regulation, “[t]ime limits within which claimants or beneficiaries are required to act to per- fect a claim or challenge an adverse VA decision may be extended for good cause shown.” 38 C.F.R. § 3.109(b) (2020). The government argues that this regulation does not apply to § 5110(b)(1), and Mr. Arellano does not con- tend otherwise.
[9] See also Department of Veterans Affairs Board of Veterans’ Appeals, Annual Report Fiscal Year 2020, 36, https://www.bva.va.gov/docs/Chairmans_An- nual_Rpts/BVA2020AR.pdf (24.4% of legacy appeals before the Board of Veterans’ Appeals (“Board”) in fiscal year 2020 had attorney representation); Connie Vogelmann, Admin. Conf. of the United States, Self-Represented Parties in Ad- ministrative Hearings (Oct. 28, 2016), https://www.acus.gov/sites/default/files/documents/Self- Represented-Parties-Administrative-Hearings-Final-Re- port-10-28-16.pdf (10.5% of claimants before the Board be- tween fiscal years 2011–2015 had attorney representation).
[10] Although
Walters
noted in passing that “[t]here is
no statute of limitations” in the veterans’ claims process
generally,
[11] In Bailey , we held that the 120-day period for a claimant to appeal an adverse decision of the Board to the Court of Appeals for Veterans Claims (“Veterans Court”), 38 U.S.C. § 7266, is subject to equitable tolling. 160 F.3d at 1368 (en banc). Bailey and its progeny, including Jaquay v. Principi , 304 F.3d 1276 (Fed. Cir. 2002) (en banc), were overruled by our en banc decision in Hender- son v. Shinseki , 589 F.3d 1201, 1203 (Fed. Cir. 2009) (en banc), reversed in Henderson v. Shinseki , 562 U.S. 428, 441–42 & n.4 (2011). The effect of the Supreme Court’s
[12] This is especially true because, as Judge Newman
pointed out in her concurrence in
Butler
, it is unclear
whether the broad language in
Andrews
was even relevant
to its resolution of the precise issue for which it is now cited
to us.
[13] See Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. 112-154, Title V, § 502(a), 126 Stat. 1165, 1190.
[14] 38 U.S.C. § 5101(d) (2020) was renumbered as § 5101(e) in 2021. Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020, Pub. L. 116-315, § 2006(a), 134 Stat. 4932 (enacted Jan. 5, 2021).
[15] A similar provision existed under the informal claim system, which ended in 2015. Shea v. Wilkie , 926 F.3d 1362, 1366 n.3 (Fed. Cir. 2019). Under the informal claim system, “[a]ny communication or action, indicating an intent to apply for one or more benefits under the laws administered by [the VA], from a claimant . . . or some per- son acting as next friend of a claimant who is not sui juris” could be “considered an informal claim,” which was a longstanding practice of the VA. 26 Fed. Reg. 1561, 1570, (codified at 38 C.F.R. § 3.155(a)) (Feb. 24, 1961). Compare id. with 38 C.F.R. § 3.155(a) (2014).
[16] For claims of equitable tolling prior to 2015, as is the case here, the relevant inquiry would be whether there are special circumstances demonstrating an inability of the caregiver to submit an informal claim. 38 C.F.R. § 3.155(a) (2014).
[17] Disability pension is available for veterans who are “permanently and totally disabled from non-service-con- nected disability,” 38 U.S.C. § 1521(a), and pension is need- based, so veterans who exceed a maximum annual income or net worth set by regulation will not qualify. See id. § 1522; 38 C.F.R. §§ 3.274, 3.275 (2020); see also H.R. Rep. No. 79-2425 (June 28, 1946); Act of July 9, 1946, Pub. L. No. 79-494, 60 Stat. 524.
[18] The predecessor to § 5110(b)(4)(A) was enacted in 1973 as 38 U.S.C. § 3010(b)(2). Act of Dec. 6, 1973, Pub. L. 93-177, sec. 6, 87 Stat. 694, 696.
[19] The predecessor to § 5110(b)(4)(B) was enacted in
1984 as 38 U.S.C § 3010(b)(3)(B). Deficit Reduction Act of
1984, Pub. L. 98–369, sec. 2501(a)(1),
[20] We have recognized that in determining the appli- cation of equitable tolling, “[w]here the facts are undis- puted, all that remains is a legal question, even if that legal question requires the application of the appropriate stand- ard to the facts of a particular case.” Former Employees of Sonoco Prod. Co. v. Chao , 372 F.3d 1291, 1294–95 (Fed. Cir. 2004) (collecting cases). Because we assume the facts are as Mr. Arellano describes them, we address the availa- bility of tolling in the first instance.