As Federal Circuitry readers know, the Supreme Court in recent years has granted review in many patent cases from the Federal Circuit—like last Term’s big decision in Arthrex. But the Supreme Court also takes up cases from the Federal Circuit’s non-patent docket. Yesterday the Supreme Court granted certiorari in Arellano v. McDonough, a veterans’ benefits case about when statutory filing deadlines can be “equitably tolled”—that is, extended due to some unusual circumstance that prevented a litigant from making a timely filing. Questions on the availability of equitable tolling arise in a wide variety of statutory contexts. The Supreme Court’s eventual decision in Arellano thus may have broader implications beyond the veterans’ benefits area.
Under the statute governing disability benefits awards by the Department of Veterans Affairs (VA), an award’s effective date generally cannot be earlier than the date the VA receives the veteran’s benefits application. 38 U.S.C. § 5110(a)(1). The statute provides several exceptions to that default rule. As relevant here, if the VA receives an application within one year after the veteran’s discharge from service, the award will be retroactive to the day after the veteran’s discharge. Id. § 5110(b)(1).
In Arellano, a veteran filed an application for disability benefits nearly 30 years after his discharge from the Navy. He argued that his award should be retroactive to the day after his discharge under Section 5110(b)(1). Although he did not file within that provision’s one-year period, he contended that the period should be equitably tolled because his mental illness prevented him from filing his claim earlier. The Board of Veterans’ Appeals and the Court of Appeals for Veterans Claims rejected the veteran’s equitable-tolling argument based on Andrews v. Principi, a 2003 decision in which the Federal Circuit held that Section 5110(b)(1)’s one-year deadline is not subject to equitable tolling.
After a Federal Circuit panel heard oral argument in Arellano (but before the panel issued a decision), the Federal Circuit sua sponte granted hearing en banc. The Court’s order indicated only that “[a] sua sponte request” for an en banc poll “was made” and succeeded. As usual, the order did not identify which judge requested an en banc poll. But it may have been a member of the original panel, as some panel members expressed doubts about Andrews at oral argument. Among other issues, the en banc Court asked the parties to brief whether Andrews should be overruled.
In its en banc decision, however, the Federal Circuit equally divided on that question, leaving Andrews in place—though the en banc Court unanimously determined that equitable tolling was not available to the veteran at issue. (As we’ve previously observed, the en banc Court is rarely evenly divided; although the Court split 6-6 on whether to grant rehearing en banc in the American Axle patent-eligibility case, more often the Court is unanimous or only a few judges have noted dissents.)
Six judges (Chief Judge Moore and Judges Chen, Lourie, Prost, Taranto, and Hughes) agreed with Andrews’s conclusion that Section 5110(b)(1) is not amenable to equitable tolling because it is not a statute of limitations that operates to bar a veteran’s benefits claim altogether. Rather, it establishes “one of many elements” of a benefits award—namely, its effective date.
Six other judges (Judges Dyk, Newman, O’Malley, Reyna, Wallach, and Stoll) would have overruled Andrews and held that Section 5110(b)(1) is a statute of limitations subject to equitable tolling. Yet those judges would have rejected equitable tolling on the facts of the veteran’s case, as the veteran had a caregiver who could have filed a benefits application on the veteran’s behalf sometime earlier in the 30-year period after his discharge.
The Supreme Court granted the veteran’s certiorari petition, which asked the Court to decide whether Section 5110(b)(1)’s one-year deadline is amenable to equitable tolling. The case likely will be heard in the fall toward the beginning of the Supreme Court’s October 2022 Term.