Veterans benefits

A Cert Grant on Veterans Benefits and Fair Toll | Morrison & Foerster LLP – Federal Circuits

As readers of Federal Circuitry know, the Supreme Court in recent years has granted review in many Federal Circuit patent cases, such as the last term’s big decision in Arthrex. But the Supreme Court also picks up cases from the non-patent role of the Federal Circuit. Yesterday the Supreme Court granted certiorari to Arellano vs. McDonough, a veterans benefits case about when statutory filing deadlines can be “fairly imposed,” that is, extended due to unusual circumstances that prevented a litigant from making a timely filing . Questions about the availability of a fair toll arise in a wide variety of legislative contexts. The Supreme Court’s final decision in Arellano may therefore have broader implications beyond the realm of veterans benefits.

Under the law governing disability awards granted by the Department of Veterans Affairs (VA), the effective date of an award generally cannot be earlier than the date the VA receives the application. veteran’s benefits. 38 USC § 5110(a)(1). The law provides several exceptions to this default rule. As relevant here, if the VA receives an application within one year of the veteran’s release, the award will be retroactive to the day after the veteran’s release. Identifier. § 5110(b)(1).

In Arellano, a veteran filed for disability benefits nearly 30 years after his release from the Navy. He argued that his sentence should be retroactive to the day after his release under section 5110(b)(1). Although he did not file his application within the one-year time limit provided by this provision, he argued that the period should be fairly imposed because his mental illness had prevented him from filing his application sooner. The Veterans Appeals Board and the Veterans Claims Court of Appeal rejected the veteran’s equitable entitlement argument based on Andrews vs Principia 2003 decision in which the Federal Circuit ruled that the one-year delay provided for in Section 5110(b)(1) is not subject to an equitable toll.

After a Federal Circuit panel heard oral argument in Arellano (but before the panel rendered a decision), the Federal Circuit sua sponte granted an en banc hearing. The court order only stated that “[a] sua sponte request” for bench sounding “has been made” and was successful. As usual, the order did not identify which judge requested an en banc poll. But it may be an original panel member, as some panel members expressed doubts about andrew to pleading. Among other issues, the tribunal en banc asked the parties to inform whether andrew should be cancelled.

In its en banc decision, however, the Federal Circuit was equally divided on this issue, leaving andrew in place – although the tribunal en banc unanimously determined that the fair toll was not available to the veteran in question. (As we observed earlier, the Court en banc is rarely evenly divided; although the Court was split 6-6 on whether to grant a rehearing en banc in the American axle case of patent eligibility, most often the Court is unanimous or only a few judges have noted dissent.)

Six judges (Chief Justice Moore and Justices Chen, Lourie, Prost, Taranto and Hughes) agreed with andrewThe finding of Section 5110(b)(1) does not lend itself to a fair toll because it is not a statute of limitations that has the effect of completely barring the claim for benefits. a veteran. Rather, it establishes “one of the many elements” of an award of benefits, namely its effective date.

Six other judges (Judges Dyk, Newman, O’Malley, Reyna, Wallach and Stoll) would have quashed andrew and held that Section 5110(b)(1) is a statute of limitations subject to an equitable toll. Yet those judges would have dismissed a fair toll on the facts of the veteran’s case because the veteran had a caregiver who could have filed a claim for benefits on the veteran’s behalf earlier in the day. the 30-year period after his release.

The Supreme Court granted the veteran’s petition for certiorari, which asked the court to decide whether the one-year limitation in section 5110(b)(1) lent itself to a fair toll. The case will likely be heard in the fall around the start of the Supreme Court’s October 2022 term.

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