Petition for Writ of Certiorari — Adolfo R. Arellano, Petitioner v. Denis R. McDonough, Secretary of Veterans Affairs

Supreme Court briefSep 17, 2021

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No. 21-___

IN THE

Supreme Court of the United States

————

ADOLFO R. ARELLANO,

Petitioner,

DENIS MCDONOUGH, SECRETARY OF

VETERANS AFFAIRS,

Respondent.

————

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Federal Circuit

————

PETITION FOR A WRIT OF CERTIORARI

————

JAMES R. BARNEY

Counsel of Record

KELLY S. HORN

ALEXANDER E. HARDING

FINNEGAN, HENDERSON,

FARABOW, GARRETT &

DUNNER, LLP

901 New York Avenue, NW

Washington, DC 20001-4413

(202) 408-4000

James.Barney@finnegan.com

Counsel for Petitioner

September 17, 2021

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

QUESTIONS PRESENTED

Under 38 U.S.C. § 5110(b)(1), “[t]he effective date

of an award of disability compensation to a veteran

shall be the day following the date of the veteran’s

discharge or release if application therefor is received

within one year from such date of discharge or

release.” (emphasis added.) Veterans who miss this

one-year statutory deadline—even if because of a

service-connected physical or mental impairment—

are barred from recovering retroactive disability

benefits reaching back to their date of discharge. In

Irwin, this Court held that “the same rebuttable presumption of equitable tolling applicable to suits

against private defendants should also apply to suits

against the United States.” Irwin v. Dep’t of Veterans

Affairs, 498 U.S. 89, 95-96 (1990). Despite this, an

“equally divided” Federal Circuit held 6-6 that military veterans are categorically precluded from pursuing equitable tolling of § 5110(b)(1)’s one-year deadline, regardless of the facts and circumstances of

their individual cases.

The questions presented are:



(1) Does Irwin’s rebuttable presumption of

equitable tolling apply to the one-year statutory

deadline in 38 U.S.C. § 5110(b)(1) for seeking

retroactive disability benefits, and, if so, has the

Government rebutted that presumption?



(2) If 38 U.S.C. § 5110(b)(1) is amenable to

equitable tolling, should this case be remanded

so the agency can consider the particular facts

and circumstances in the first instance?

(i)

PARTIES TO THE PROCEEDINGS

AND RULE 29.6 STATEMENT

Petitioner Adolfo R. Arellano was Claimant-Appellant

in No. 20-1073.

Respondent Denis McDonough, Secretary of Veterans Affairs, was Respondent-Appellee in No. 20-1073.

There are no publicly held corporations involved in

this proceeding.

iii

RELATED PROCEEDINGS

The following proceedings are directly related to this

case within the meaning of Rule 14.1(b)(iii):



Arellano v. McDonough, United States Court of

Appeals for the Federal Circuit, No. 20-1073



Arellano v. Wilkie, United States Court of

Appeals for Veterans Claims, No. 18-3908

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............................

PARTIES TO THE PROCEEDINGS AND

RULE 29.6 STATEMENT ...............................

RELATED PROCEEDINGS ...............................

iii

TABLE OF AUTHORITIES ................................

viii

OPINIONS BELOW ............................................

STATEMENT OF JURISDICTION ....................

STATUTORY PROVISIONS INVOLVED ..........

INTRODUCTION ................................................

STATEMENT OF THE CASE ............................

Background ...............................................

B. Proceedings Before the VA and the

Veterans Court ..........................................

The Federal Circuit’s En Banc Decision ..

REASONS FOR GRANTING THE PETITION..

I. THE FEDERAL CIRCUIT IS DEADLOCKED 6-6 ON AN ISSUE FOR

WHICH IT HAS EXCLUSIVE APPELLATE JURISDICTION .............................

II. WHETHER 38 U.S.C. § 5110(b)(1) IS

AMENABLE TO EQUITABLE TOLLING

IS AN ISSUE OF GREAT IMPORTANCE TO MILITARY VETERANS AND

THEIR FAMILIES ....................................

(v)

TABLE OF CONTENTS—Continued

Page

III. THIS CASE IS A GOOD VEHICLE TO

RESOLVE THE FEDERAL CIRCUIT’S

SPLIT ........................................................

IV. THE FEDERAL CIRCUIT’S DECISION

BELOW SHOULD BE OVERTURNED

BECAUSE IT IS INCONSISTENT

WITH IRWIN AND ITS PROGENY ........

A. The Irwin Presumption Applies to the

One-Year Filing Deadline of 38 U.S.C.

§ 5110(b)(1) ..........................................

B. The Irwin Presumption Has Not Been

Rebutted for 38 U.S.C. § 5110(b)(1) ....

C. If 38 U.S.C. § 5110(b)(1) Is Amenable

to Equitable Tolling, Mr. Arellano’s

Case Must Be Remanded for Further

Factual Development ..........................

CONCLUSION ....................................................

APPENDIX

APPENDIX A: JUDGMENT, U.S. Court of

Appeals for Veterans Claims (August 14,

2019) ...............................................................

APPENDIX B: MEMORANDUM

DECISION, U.S. Court of Appeals for Veterans

Claims (July 23, 2019) ...................................

APPENDIX C: SUA SPONTE HEARING

EN BANC, U.S. Court of Appeals for the

Federal Circuit (August 5, 2020) ...................

vii

TABLE OF CONTENTS—Continued

Page

APPENDIX D: ORDER, U.S. Court of

Appeals for the Federal Circuit (September

24, 2020) .........................................................

12a

APPENDIX E: OPINION, U.S. Court of

Appeals for the Federal Circuit (June 17,

2021) ...............................................................

14a

APPENDIX F: JUDGMENT, U.S. Court of

Appeals for the Federal Circuit (June 17,

2021) ...............................................................

98a

APPENDIX G: MANDATE, U.S. Court of

Appeals for the Federal Circuit (August 9,

2021) ...............................................................

99a

APPENDIX H: GENERAL DOCKET APPENDIX ............................................................ 100a

viii

TABLE OF AUTHORITIES

CASES

Page(s)

Andrews v. Principi,

351 F.3d 1134 (Fed. Cir. 2003) ................passim

Aspen Tech., Inc. v. M3 Tech., Inc.,

569 F. App’x 259 (5th Cir. 2014) ..............

Butler v. Peake,

No. 07-1985, 2008 WL 5101007,

(Vet. App. Nov. 26, 2008), aff’d,

603 F.3d 922 (Fed. Cir. 2010). ..................

Carnegie-Mellon Univ. v. Cohill,

484 U.S. 343 (1988) ...................................

Camp v. Pitts,

411 U.S. 138 (1973) ...................................

Connick v. Thompson,

563 U.S. 51 (2011) .....................................

CTS Corp. v. Waldburger,

573 U.S. 1 (2014) .......................................

Ford v. McDonald,

No. 15-3306, 2016 WL 4137532

(Vet. App. Aug. 3, 2016) ............................

Goonsuwan v. Ashcroft,

252 F.3d 383 (5th Cir. 2001) .....................

Hardaway v. Hartford Pub. Works Dep’t,

879 F.3d 486 (2d Cir. 2018) ......................

Henderson v. Shinseki,

562 U.S. 428 (2011) ................................... 9, 24

INS v. Ventura,

537 U.S. 12 (2002) ........................................... 16

TABLE OF AUTHORITIES—Continued

Page(s)

Irwin v. Dep’t of Veterans Affairs,

498 U.S. 89 (1990) ....................................passim

John R. Sand & Gravel Co. v.

United States,

552 U.S. 130 (2008) ................................... 19, 23

Kappen v. Wilkie,

No. 18-3484, 2019 WL 3949462

(Vet. App. Aug. 22, 2019) ..........................

K. G. v. Sec’y of Health & Hum. Servs.,

951 F.3d 1374 (Fed. Cir. 2020) ................

Lozano v. Montoya Alvarez,

572 U.S. 1 (2014) .......................................

Lucia v. SEC,

138 S. Ct. 2044 (2018) ...............................

In re Neff,

824 F.3d 1181 (9th Cir. 2016) ...................

Petrella v. Metro-Goldwyn-Mayer, Inc.,

572 U.S. 663 (2014) ...................................

Prather v. Neva Paperbacks, Inc.,

446 F.2d 338 (5th Cir. 1971) .....................

Rhoa Zamora v. INS,

971 F.2d 26 (7th Cir. 1992), as modified

on denial of reh’g (Nov. 4, 1992 ................

Rotella v. Wood,

528 U.S. 549 (2000) ...................................

Savage v. Wilkie,

No. 18-6687, 2020 WL 1846012

(Vet. App. Apr. 13, 2020) .......................... 10, 11

TABLE OF AUTHORITIES—Continued

Page(s)

SCA Hygiene Prods. Aktiebolag v.

First Quality Baby Prods., LLC,

137 S. Ct. 954 (2017) .................................

Scarborough v. Principi,

541 U.S. 401 (2004) ................................... 17, 18

Sebelius v. Auburn Reg’l Med. Ctr.,

568 U.S. 145 (2013) ...................................

SEC v. Chenery Corp.,

332 U.S. 194 (1947) ............................. 15, 28, 29

Shinseki v. Sanders,

556 U.S. 396 (2009) ...................................

Taylor v. McDonough,

3 F.4th 1351 (Fed. Cir.),

reh’g en banc granted and op. vacated,

4 F.4th 1381 (Fed. Cir. 2021) ................... 12, 13

Taylor v. Wilkie,

31 Vet. App. 147 (2019) ............................

Tejeda Mata v. INS,

626 F.2d 721 (9th Cir. 1980) .....................

Tinker v. Des Moines Indep.

Cmty. Sch. Dist.,

393 U.S. 503 (1969) ...................................

TRW Inc. v. Andrews,

534 U.S. 19 (2001) ..................................... 24, 25

Uanreroro v. Gonzales,

443 F.3d 1197 (2006) ................................

United States v. Kwai Fun Wong,

575 U.S. 402 (2015) ................................... 23, 24

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Oregon,

366 U.S. 643 (1961) ...................................

Walters v. Nat’l Ass’n of Radiation

Survivors,

473 U.S. 305 (1985) ...................................

Young v. United States,

535 U.S. 43 (2002) ......................... 18, 19, 20, 22

Zipes v. Trans World Airlines, Inc.,

455 U.S. 385 (1982) ................................... 17, 18

Zuni Pub. Sch. Dist. No. 89 v.

Dep’t of Educ.,

550 U.S. 81 (2007) .....................................

FEDERAL STATUTES

11 U.S.C. § 507(a)(8)(A)(i) ............................

28 U.S.C. § 1254(1) .......................................

28 U.S.C. § 2401(b) ....................................... 23, 24

38 U.S.C. § 301(b) .........................................

38 U.S.C. § 1114 ...........................................

38 U.S.C. § 5110 ..........................................passim

38 U.S.C. § 5110(a)(1)..................................passim

38 U.S.C. § 5110(b)(1)..................................passim

38 U.S.C. § 5110(b)-(n) ................................. 24, 25

38 U.S.C. § 5110(d) .......................................

38 U.S.C. § 7252(a) .......................................

xii

TABLE OF AUTHORITIES—Continued

Page(s)

38 U.S.C. § 7292(c) .......................................

3, 7

Civil Rights Act Title VII, 42 U.S.C.

§ 2000e-5(e) ...............................................

Equal Access to Justice Act, 28 U.S.C.

§ 2412(d)(1)(B) ...........................................

Federal Tort Claims Act, 28 U.S.C.

§ 2401(b) ....................................................

National Childhood Vaccine Injury Act of

1986, 42 U.S.C. § 300aa-16(a)(2) ..............

OTHER AUTHORITIES

1 Calvin W. Corman, Limitation of Actions

(1991) .........................................................

DEP’T OF VETERANS AFFAIRS OFFICE OF

INSPECTOR GENERAL, REP. NO. 17-05248241, DENIED POSTTRAUMATIC STRESS

DISORDER CLAIMS RELATED TO MILITARY

SEXUAL TRAUMA (Aug. 21, 2018), available at https://www.va.gov/oig/pubs/VAO

IG-17-05248-241.pdf .................................

NATIONAL SURVEY OF VETERANS (Oct. 18,

2010), available at https://www.va.gov/

SURVIVORS/docs/NVSSurveyFinalWeig

htedReport.pdf ...........................................

U.S. DEP’T OF VETERANS AFFAIRS, THE MILITARY TO CIVILIAN TRANSITION 2018,

available at https://www.benefits.va.gov/

TRANSITION/docs/mct-report-2018.pdf ....

xiii

TABLE OF AUTHORITIES—Continued

Page(s)

U.S. DEP’T OF VETERANS AFFAIRS, SUICIDE

RISK AND RISK OF DEATH AMONG RECENT

VETERANS, www.publichealth.va.gov/epid

emiology/studies/suicide-risk-death-riskrecent-veterans.asp (last visited Sept. 8,

2021) ..........................................................

U.S. DEP’T OF VETERANS AFFAIRS, WHAT IS

PTSD, AVOIDANCE, https://www.ptsd.va.

gov/understand/what/avoidance.asp (last

visited Sept. 6, 2021) ................................

PETITION FOR A WRIT OF CERTIORARI

U.S. Navy veteran Adolfo R. Arellano respectfully

petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Federal

Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Federal Circuit is reported at Arellano v.

McDonough, 1 F.4th 1059 (Fed. Cir. 2021) (en banc).

The opinion of the United States Court of Appeals

for Veterans Claims is reported at Arellano v. Wilkie,

No. 18-3908, 2019 WL 3294899 (Vet. App. July 23,

2019).

STATEMENT OF JURISDICTION

The jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1). The petition is timely filed per the

Court’s March 19, 2020, order extending the time to

file any petition to 150 days after the lower court

judgment.

STATUTORY PROVISIONS INVOLVED

Section 5110 of title 38 is titled “Effective dates of

awards.” Section 5110(a)(1) states:

Unless specifically provided otherwise in this

chapter, the effective date of an award based

on an initial claim, or a supplemental claim,

of compensation, dependency and indemnity

compensation, or pension, shall be fixed in

accordance with the facts found, but shall

not be earlier than the date of receipt of

application therefor.

38 U.S.C. § 5110(a)(1).

Section 5110(b)(1) states:

The effective date of an award of disability

compensation to a veteran shall be the day

following the date of the veteran’s discharge

or release if application therefor is received

within one year from such date of discharge

or release.

38 U.S.C. § 5110(b)(1).

INTRODUCTION

When service-disabled veterans are discharged

from military service, they have one year to file an

application for disability benefits retroactive to their

date of discharge. 38 U.S.C. § 5110(b)(1). If they fail

to do so within one year, the effective date of any

subsequent award “shall not be earlier than the date

of receipt of application therefor.” 38 U.S.C. § 5110(a)(1).

Thus, service-disabled veterans who fail to file a

claim within one year of discharge lose the retroactive disability compensation to which they would

otherwise be entitled. This case presents a simple

but important question: can the one-year filing deadline of § 5110(b)(1) be equitably tolled for good cause?

Sitting en banc, the Federal Circuit split evenly

on this question. App. 16a (“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) . . . .”). Six judges concluded

that the Federal Circuit’s earlier decision in Andrews

v. Principi, 351 F.3d 1134 (Fed. Cir. 2003), which

held that equitable tolling is categorically unavailable

for the one-year period in § 5110(b)(1), was correctly

decided and should remain in effect. App. 69a. The

other six judges concluded that, under this Court’s

Irwin decision, a rebuttable presumption of equitable

tolling applies to § 5110(b)(1) and the Government

failed to rebut this presumption. App. 97a.

Because the Federal Circuit has exclusive jurisdiction to review veterans’ benefits statutes, see 38

U.S.C. § 7292(c), this 6-6 split at the Federal Circuit is

unlikely to be addressed or resolved by any other circuit courts. Accordingly, this appeal is ripe for

Supreme Court review.

The issue presented here is important to tens of

thousands of current and future military veterans. It

is an unfortunate reality that many members of the

armed forces face a difficult path once discharged from

service. Some suffer from severe physical and mental

impairments such as brain injuries, post-traumatic

stress disorder (“PTSD”), and depression,1 which can

impair their ability to timely file a disability claim

within one year of discharge. Indeed, the sad irony is

that the very illnesses the veterans’ benefits system is

designed to address, such as PTSD, are often the ones

that cause veterans to miss the one-year deadline of

§ 5110(b)(1), forfeiting retroactive benefits to which

they would otherwise be entitled.

STATEMENT OF THE CASE

A. Background

Mr. Arellano served honorably in the U.S. Navy

from November 1977 to October 1981. App. 23a. Mr.

Arellano’s psychiatric problems include prolonged

schizoaffective disorder and bipolar disorder with

Research shows the rate of suicide among veterans is greatest within three years of leaving service. U.S. DEP’T OF VETERANS

AFFAIRS, SUICIDE RISK AND RISK OF DEATH AMONG RECENT

VETERANS, www.publichealth.va.gov/epidemiology/studies/suiciderisk-death-risk-recent-veterans.asp (last visited Sept. 8, 2021).

PTSD. Id. The Department of Veterans Affairs (“VA”)

found that symptoms of these disorders were causally

linked to trauma he suffered while in service when

he was working on an aircraft carrier during a collision that killed and injured several of his shipmates

and nearly swept him overboard. App. 23a-24a, 155a156a.

B. Proceedings Before

Veterans Court

the

and

the

Mr. Arellano first applied for disability benefits in

2011 and was awarded a 100% disability rating for

his psychiatric disorders with an effective date of June

3, 2011, the date of his application. App. 153a, 156a.

Mr. Arellano, through his brother as his representative, appealed the decision to the Board of Veterans’

Appeals (“Board”), arguing that the one-year filing

deadline in § 5110(b)(1) should be equitably tolled to

allow Mr. Arellano to claim retroactive benefits back

to the date of his discharge from service. App. 123a139a.

The Board acknowledged that “the assertion has

been raised that the Veteran’s mental illness prevented him from filing a claim earlier than June 3,

2011.” App. 116a. Nevertheless, the Board declined to

consider a claim for equitable tolling because it construed Federal Circuit precedent as categorically barring equitable tolling of the one-year filing period of

§ 5110(b)(1) under any circumstances. App. 116a-117a.

Mr. Arellano timely appealed to the Court of Appeals

for Veterans Claims (“Veterans Court”) and again

argued that the facts of his case warrant equitably

tolling the one-year filing deadline of § 5110(b)(1).

App. 2a-3a. The Veterans Court dismissed that argument and held that the Federal Circuit’s decision in

Andrews categorically precludes equitable tolling of

any of the deadlines in 38 U.S.C. § 5110. App. 4a5a (“Appellant’s argument is squarely foreclosed by

binding precedent. In Andrews . . . [,] the Federal

Circuit addressed whether section 5110 was subject

to equitable tolling. It rejected that argument.”

(citations omitted)). Yet despite finding that Andrews

“binds the Court today,” the Veterans Court stated

that, “[i]f we were writing on a blank slate, appellant’s

arguments would be worth exploring.” App. 6a.

Thus, the Veterans Court did not reach the merits

of Mr. Arellano’s equitable tolling argument because

it held that equitable tolling is inapplicable to § 5110

under any circumstances. Id. Mr. Arellano timely

appealed the Veterans Court’s decision to the Federal

Circuit.

C. The Federal Circuit’s En Banc Decision

Following oral argument before the assigned threejudge panel, the Federal Circuit sua sponte ordered

the case to be reheard en banc. App. 9a. The court

requested supplemental briefing on several questions,

including:

A. Does the rebuttable presumption of the

availability of equitable tolling articulated in

Irwin . . . apply to 38 U.S.C. § 5110(b)(1), and

if so, is it necessary for the court to overrule

Andrews . . . ?

B. Assuming Irwin’s rebuttable presumption applies to § 5110(b)(1), has that presumption been rebutted?

App. 9a-10a.

On June 17, 2021, the Federal Circuit issued a per

curiam decision affirming the Veterans Court’s decision based on two evenly divided and contradictory

grounds. App. 14a-97a. In a concurring opinion by

Circuit Judge Chen, six judges concluded that, consistent with the Federal Circuit’s earlier ruling in

Andrews, “§ 5110(b)(1) is not a statute of limitations

subject to Irwin’s presumption of equitable tolling.”

App. 69a. They further concluded that, “even if Irwin’s

presumption were to apply, 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.” Id.

The other six judges, in a concurring opinion by

Circuit Judge Dyk, reached the opposite conclusion

regarding the Irwin presumption and the availability

of equitable tolling. They concluded that “§ 5110(b)(1)

is a statute of limitations that is subject to the

rebuttable presumption of equitable tolling under

Irwin,” and that “the presumption has not been rebutted.” App. 97a. On the other hand, they found that Mr.

Arellano’s “specific circumstances” did not justify equitable tolling in this case, and they therefore concurred in the judgment affirming the Veterans

Court’s decision with respect to Mr. Arellano. Id.

The judges joining Judge Chen’s concurrence disagreed with those who joined Judge Dyk’s concurrence

as to whether, if equitable tolling is available, this

appeal can be decided without a remand based on

the facts of Mr. Arellano’s particular case. As they

explained, if equitable tolling were deemed to apply to

§ 5110(b)(1), “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.” App. 68a-69a.

Thus, although the judgment below is a per curiam

affirmance, there is no single majority opinion

supporting this outcome. As the Federal Circuit itself

observed:

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 decision, Andrews . . . , which held

that principles of equitable tolling are not

applicable to the time period in 38 U.S.C.

§ 5110(b)(1).

App. 16a.

REASONS FOR GRANTING THE PETITION

I. THE FEDERAL CIRCUIT IS DEADLOCKED 6-6 ON AN ISSUE FOR

WHICH IT HAS EXCLUSIVE APPELLATE

JURISDICTION

This case is ripe for Supreme Court review because

it involves a clear intra-circuit conflict regarding a

federal statute for which the Federal Circuit has

exclusive appellate jurisdiction. Specifically, 38 U.S.C.

§ 7292(c) gives the Federal Circuit “exclusive jurisdiction to review and decide any challenge to the

validity of any statute or regulation or any interpretation thereof” raised in an appeal from the Veterans

Court. The Veterans Court, in turn, has exclusive

jurisdiction to review decisions of the Board, which

is part of the VA. See 38 U.S.C. § 7252(a). Because the

VA is the sole agency charged with administering

veterans’ benefits statutes, see 38 U.S.C. § 301(b), this

means the Federal Circuit has exclusive jurisdiction

for reviewing any challenge to the interpretation

of such statutes, including 38 U.S.C. § 5110(b)(1).

Given the Federal Circuit’s unique subject matter

jurisdiction, no other circuit is likely to address or

critique the Federal Circuit’s 6-6 decision in this case

regarding the availability of equitable tolling for

§ 5110(b)(1). In other words, this is not a situation

where a majority view will eventually emerge among

the circuits given enough time. The only circuit with

jurisdiction to address this issue has spoken, and it is

deadlocked.

Moreover, this is not a situation where the intracircuit conflict exists only in the form of contradictory

panel decisions. In such cases, this Court may prefer

to allow the circuit to try to resolve the conflict on

its own. Here, however, the Federal Circuit has

already attempted to resolve its internal conflict by

sua sponte ordering this case to be reheard en banc.

App. 9a. Even then, the conflict persisted, resulting

in the Federal Circuit being “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.” App. 16a.

Because there is no majority opinion in the decision

below, the effect is to leave in place the Federal

Circuit’s earlier panel decision in Andrews, which held

that § 5110(b)(1) is not amenable to equitable tolling

under any circumstances. Id. Yet fully half of the

en banc court believes Andrews was wrongly decided

in light of Irwin and should be overturned. App. 19a

(“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.”).

In similar situations where a circuit court has been

evenly divided on an issue after thoroughly considering it en banc, this Court has granted certiorari to

resolve the conflict. See, e.g., Lucia v. SEC, 138 S. Ct.

2044, 2050-51 (2018); Connick v. Thompson, 563 U.S.

51, 54 (2011); Zuni Pub. Sch. Dist. No. 89 v. Dep’t of

Educ., 550 U.S. 81, 89 (2007); Carnegie-Mellon Univ.

v. Cohill, 484 U.S. 343, 348 (1988); Tinker v. Des

Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 505-06

(1969). The Court should likewise do so here.

II. WHETHER 38 U.S.C. § 5110(b)(1) IS AMENABLE TO EQUITABLE TOLLING IS

AN ISSUE OF GREAT IMPORTANCE TO

MILITARY VETERANS AND THEIR

FAMILIES

Congress created the veterans’ benefits system to

compensate veterans for the sacrifices they make in

service to our country. The system “is designed to

function throughout with a high degree of informality

and solicitude for the claimant.” Henderson v. Shinseki,

562 U.S. 428, 431 (2011) (quoting Walters v. Nat’l Ass’n

of Radiation Survivors, 473 U.S. 305, 311 (1985)); see

also United States v. Oregon, 366 U.S. 643, 647 (1961)

(“The solicitude of Congress for veterans is of long

standing.”).

A unique aspect of the veterans’ benefits system is

that “the veteran is often unrepresented during the

claims proceedings.” Shinseki v. Sanders, 556 U.S.

396, 412 (2009) (citation omitted). This is especially

true at the beginning of the process when the veteran

first separates from the military and transitions to

civilian life. It is during this tumultuous transition2

“The transition from military to civilian life is widely recognized as a sometimes challenging and stressful process for

that the one-year clock of 38 U.S.C. § 5110(b)(1) begins

winding down.

Mr. Arellano, suffering from severe serviceconnected cognitive impairments and unrepresented

by counsel, missed his one-year deadline for filing a

claim for retroactive disability benefits. But he is

hardly alone in doing so. Other veterans have likewise argued that they lacked the mental or physical

capacity during this one-year period to file a disability claim, yet the Veterans Court has consistently

dismissed such arguments as being “foreclosed” by

binding Federal Circuit precedent. See, e.g., Kappen v.

Wilkie, No. 18-3484, 2019 WL 3949462, at *3 (Vet.

App. Aug. 22, 2019); Savage v. Wilkie, No. 18-6687,

2020 WL 1846012, at *2 (Vet. App. Apr. 13, 2020);

Ford v. McDonald, No. 15-3306, 2016 WL 4137532, at

*3-4 (Vet. App. Aug. 3, 2016).

At times, the Veterans Court has acknowledged

the harshness of Andrews, which categorically precludes all veterans from seeking equitable tolling of

§ 5110(b)(1) no matter how compelling their individual circumstances. For instance, the veteran in Savage

began experiencing severe psychological symptoms

while on active duty in the Navy and was later diagnosed with service-connected “bipolar disorder and

panic disorder with agoraphobia.” 2020 WL 1846012,

at *1. However, because he missed the deadline to

apply for retroactive benefits under § 5110(b)(1), he

lost eight years of payments to which he otherwise

would have been entitled. While sympathizing with

Service members, Veterans, their families, caregivers, and survivors.” U.S. DEP’T OF VETERANS AFFAIRS, THE MILITARY TO CIVILIAN TRANSITION 2018, at 1, available at https://www.benefits.

va.gov/TRANSITION/ docs/mct-report-2018.pdf.

Mr. Savage’s predicament, the Veterans Court

explained that its hands were tied by Andrews and its

progeny.

We have profound sympathy for appellant

and his family and their collective struggles

with mental illness. We do not question that

appellant suffered from a severe mental

illness during the period after his separation

from service and when he filed a claim for VA

benefits. However, we cannot provide the

relief sought in this appeal under the law that

binds us.

Id. at *2 (citation omitted). In Mr. Arellano’s case, the

Veterans Court expressed a similar sentiment. App.

6a (“If we were writing on a blank slate, appellant’s

arguments would be worth exploring. But our slate is

far from blank.” (citation omitted)).

Aside from psychological impairments such as those

at issue here and in Savage, there are other extenuating reasons why service-disabled veterans sometimes miss the one-year deadline of § 5110(b)(1). Some

veterans are simply unaware of their eligibility for

disability compensation.3 Others are misled or confused by contradictory—and sometimes incorrect—

information provided by VA personnel.

For instance, in Butler, the veteran alleged that VA

personnel actively “discouraged” him from filing a

timely claim within one year of his discharge from

service, resulting in him losing retroactive benefits.

See NATIONAL SURVEY OF VETERANS, at xiii (Oct. 18, 2010),

available at https://www.va.gov/SURVIVORS/docs/NVSSurvey

FinalWeightedReport.pdf (reporting 17.1% of veterans who failed

to apply for disability benefits were not aware of the VA’s

disability benefits program).

Butler v. Peake, No. 07-1985, 2008 WL 5101007, at *3

(Vet. App. Nov. 26, 2008), aff’d, 603 F.3d 922 (Fed. Cir.

2010). Relying on Andrews, the Veterans Court held

that, “[e]ven if it is assumed that VA personnel discouraged [Mr. Butler] from filing a claim and that

such an action was unlawful,” § 5110 is not subject

to equitable tolling under those circumstances. Id.

(emphasis added) (citing Andrews, 351 F.3d at 113738). Thus, under Andrews, even unlawful efforts by

the VA to discourage a veteran from filing a timely

disability claim are not enough to warrant equitable

tolling.

Another reason some service-disabled veterans fail

to meet the one-year deadline of § 5110(b)(1) is that

they are under secrecy orders not to disclose the

very facts and circumstances that gave rise to their

injuries. For instance, in Taylor, the veteran voluntarily participated in military experiments involving

chemical warfare agents and was required to sign

a secrecy oath preventing him from divulging “any

information” about these experiments. Taylor v.

McDonough, 3 F.4th 1351, 1356 (Fed. Cir.) (citation

omitted), reh’g en banc granted and op. vacated,

4 F.4th 1381 (Fed. Cir. 2021). During these experiments, “Mr. Taylor was exposed to EA-3580 (a nerve

agent akin to VX and sarin), EA-3547 (also called CR,

a tear gas agent), and other chemical agents.” Id. at

1357 (citations omitted).

In 2006, the Department of Defense declassified

the names of the military members who had volunteered for these experiments. Id. at 1358 (citation

omitted). The following year, in 2007, Mr. Taylor filed

a claim for a service-connected disability relating to

his involvement in the previously classified program.

Id. The VA granted his 2007 claim for prospective

benefits but denied his request for retroactive benefits

dating back to his discharge from service, notwithstanding that he potentially faced disciplinary action

had he disclosed the existence of the military’s secret

chemical/biological human testing program earlier

than he did. Id. at 1359. The Veterans Court affirmed

the VA’s ruling, citing Andrews for the proposition

that § 5110 is not subject to equitable tolling under

any circumstances, no matter how compelling the

facts. Id. at 1360 (citing Taylor v. Wilkie, 31 Vet. App.

147, 154 (2019)). The Taylor case is currently pending

en banc review at the Federal Circuit.4

Still another reason some service-disabled veterans

fail to file a claim for disability benefits within the

one-year deadline of § 5110(b)(1) is the nature of

PTSD itself. A common symptom of PTSD is

avoidance. See U.S. Dep’t of Veterans Affairs, What Is

PTSD, Avoidance, https://www.ptsd.va.gov/understan

d/what/avoidance.asp (last visited Sept. 6, 2021).

Avoidance occurs “when a person avoids thoughts or

feelings about a traumatic event.” Id. Avoidance

causes the veteran to shun reminders of the trauma.

Id.

This avoidance phenomenon is particularly prevalent among veterans suffering from PTSD caused by

On June 30, 2021, a panel of the Federal Circuit held that,

although Andrews precludes equitably tolling the one-year deadline of § 5110(b)(1), principles of equitable estoppel precluded the

VA from asserting § 5110(a)(1)’s default rule against Mr. Taylor

to deprive him of retroactive benefits dating back to his discharge

from service. Taylor, 3 F.4th at 1372 n.13, 1374. On July 22, 2021,

the Federal Circuit sua sponte vacated the panel decision and

ordered the case to be reheard en banc, but only as to the issue

of equitable estoppel, not equitable tolling. Taylor, 4 F.4th at

1381-82.

military sexual trauma (“MST”), an unfortunately

growing problem. Evidence shows MST victims are

reluctant to file for VA disability compensation due

to avoidance, stigma, or concerns the VA will erroneously deny their claims. See Dep’t of Veterans Affairs

Office of Inspector General, Rep. No. 17-05248-241,

Denied Posttraumatic Stress Disorder Claims Related

to Military Sexual Trauma, at i-ii, 1-4, 8-9 (Aug. 21,

2018), available at https://www.va.gov/oig/pubs/VA

OIG-17-05248-241.pdf. As the VA’s own Office of

Inspector General report found, “the trauma of

restating or reliving stressful events could cause

psychological harm to MST victims and prevent them

from pursuing their claims.” Id. at 9.

III. THIS CASE IS A GOOD VEHICLE TO

RESOLVE THE FEDERAL CIRCUIT’S

SPLIT

This case is an ideal vehicle for resolving the 6-6

split at the Federal Circuit as to whether the Irwin

presumption applies to 38 U.S.C. § 5110(b)(1) and

whether the Government can rebut it. First and foremost, the 6-6 split occurred in this case, making it

the most logical vehicle for resolving the dispute.

In addition, the issue of equitable tolling of

§ 5110(b)(1) was specifically and carefully preserved

at every level of the adjudicatory process in this case,

from the agency level through Mr. Arellano’s appeal

to the Federal Circuit. Thus, there are no concerns

about waiver, nor are there any concerns that the

lower tribunals did not have a clear opportunity to

consider and address this issue. In fact, equitable

tolling of § 5110(b)(1) was the only issue raised before

the Veterans Court and the Federal Circuit, making

this a highly focused appeal with just one determinative legal issue. See App. 3a (“Appellant’s sole

argument on appeal is that the Board erred when it

did not ‘toll’ the operation of 38 U.S.C. § 5110 concerning the ‘effective dates of awards.’”).

This Court has jurisdiction over this appeal, the

petitioner has standing, and the issue of equitable

tolling of § 5110(b)(1) is clearly ripe for review. Thus,

there are no procedural hurdles or jurisdictional

pitfalls associated with this case.

Finally, there are no disputed factual issues precluding this Court from reaching and resolving the

legal question presented—whether § 5110(b)(1) is

amenable to equitable tolling. Although the Dyk concurrence concluded that equitable tolling is not available in Mr. Arellano’s “specific circumstances,” App.

97a, the Chen concurrence disagreed that this case

can be resolved without a remand if § 5110(b)(1) is

deemed amenable to equitable tolling. App. 68a-69a.

Thus, even on this issue, the Federal Circuit is equally

divided.

In any event, the question of whether a remand is

necessary if this Court concludes that § 5110(b)(1) is

amenable to equitable tolling is not a question that

turns on disputed facts. Rather, it turns on a disputed

principle of jurisprudence, namely whether it is appropriate for an appellate court reviewing an agency’s

decision to apply the law to the facts of a particular

case when the agency itself specifically declined to

address those facts and made no factual findings. On

this point, the Dyk concurrence represents not only a

split from the six judges of the Chen concurrence, but

also from all other circuits and this Court’s longstanding guidance. See SEC v. Chenery Corp., 332 U.S. 194,

196 (1947) (“[A] reviewing court, in dealing with a

determination or judgment which an administrative

agency alone is authorized to make, must judge the

propriety of such action solely by the grounds invoked

by the agency. If those grounds are inadequate or

improper, the court is powerless to affirm the administrative action by substituting what it considers to be

a more adequate or proper basis.”); accord INS v.

Orlando Ventura, 537 U.S. 12, 16-17 (2002) (“Generally speaking, a court of appeals should remand a case

to an agency for decision of a matter that statutes

place primarily in agency hands.”). This Court can

resolve this intra- and inter-circuit jurisprudential split

without having to wade into any disputed facts.

IV. THE FEDERAL CIRCUIT’S DECISION

BELOW SHOULD BE OVERTURNED

BECAUSE IT IS INCONSISTENT WITH

IRWIN AND ITS PROGENY

A. The Irwin Presumption Applies to the

One-Year Filing Deadline of 38 U.S.C.

§ 5110(b)(1)

In Irwin, this Court announced a new, “more

general rule” to determine when equitable tolling is

available in suits against the Government. 498 U.S. at

95-96. The Court held that “the same rebuttable

presumption of equitable tolling applicable to suits

against private defendants should also apply to suits

against the United States.” Id. The Court used broad

language to describe the timing provisions to which

this new rule would apply, including “statutory time

limit[s],” “statutory filing deadline[s],” “time limits in

suits against the Government,” and “[t]ime requirements.” Id. at 94-95. The Court gave no indication that

the presumption could not apply to administrative

deadlines or to deadlines set forth in federal disability benefits programs. Cf. Sebelius v. Auburn Reg’l

Med. Ctr., 568 U.S. 145, 162 (2013) (Sotomayor, J.,

concurring) (“[W]e have never suggested that the

presumption in favor of equitable tolling is generally

inapplicable to administrative deadlines.”); Scarborough

v. Principi, 541 U.S. 401, 422 (2004) (noting that

Irwin’s presumption could extend to “the administration of benefit programs”).

In his concurring opinion below, Judge Chen concludes that Irwin’s presumption of equitable tolling

is categorically inapplicable to the one-year deadline

in 38 U.S.C. § 5110(b)(1) because this provision does

not meet the traditional definition of a statute of

limitations. App. 27a-29a, 54a-55a. In contrast, Judge

Dyk concludes just the opposite—that “§ 5110(b)(1)

is a statute of limitations that is subject to the rebuttable presumption of equitable tolling under Irwin.”

App. 97a. This Court should resolve this 6-6 split in

favor of Judge Dyk’s view because it more clearly

aligns with Irwin and other decisions of this Court.

To begin with, contrary to the assumption at the

heart of Judge Chen’s concurrence, nowhere does

Irwin state that its new, “more general rule” regarding

equitable tolling was intended to apply only to traditional or rigidly defined statutes of limitations. For

instance, Irwin itself cites Zipes as informative on

the issue of equitable tolling. See 498 U.S. at 95 & n.2

(citing Zipes v. Trans World Airlines, Inc., 455 U.S.

385, 394 (1982)). Zipes involved an administrative

filing deadline that was “like” a statute of limitations,

albeit not necessarily one in the definitional sense.

455 U.S. at 393.

Zipes involved a 180-day administrative requirement for lodging a charge of workplace discrimination

under Title VII of the Civil Rights Act. Id. at 388-89

(citing 42 U.S.C. § 2000e-5(e)). In deciding whether

failure to satisfy this provision constituted a nonwaivable impediment to maintaining a federal lawsuit,

this Court applied the traditional distinction between

jurisdictional and nonjurisdictional timing requirements. Id. at 392 (formulating the question as

“whether the timely filing of an EEOC [Equal

Employment Opportunity Commission] charge is a

jurisdictional prerequisite to bringing a Title VII

suit in federal court or whether the requirement is

subject to waiver and estoppel”). The Court concluded

that “filing a timely charge of discrimination with the

EEOC is not a jurisdictional prerequisite to suit in

federal court, but a requirement that, like a statute

of limitations, is subject to waiver, estoppel, and

equitable tolling.” Id. at 393 (emphases added). The

word “like” indicates that this Court considered the

EEOC deadline to be similar to a statute of limitations, in the sense that it is nonjurisdictional and

waivable, but nevertheless distinct. Other courts

have described the EEOC filing deadline as an “exhaustion of remedies” requirement rather than a statute

of limitations. See, e.g., Hardaway v. Hartford Pub.

Works Dep’t, 879 F.3d 486, 489-90 (2d Cir. 2018)

(holding that “the failure to exhaust administrative

remedies is a precondition to bringing a Title VII

claim in federal court, rather than a jurisdictional

requirement” (citation omitted)).

Consistent with Zipes, this Court has held that

timing provisions that function as statutes of limitations, or that operate as “limited” statutes of limitations, are subject to the Irwin presumption. See,

e.g., Scarborough, 541 U.S. at 420-23 (applying the

Irwin presumption to a thirty-day deadline for

applying for fees under the Equal Access to Justice

Act, 28 U.S.C. § 2412(d)(1)(B)); Young v. United States,

535 U.S. 43, 47-48 (2002) (applying the presumption

to a three-year lookback provision in the bankruptcy

statute). In determining whether a timing provision

functions as a statute of limitations, this Court

considers the provision’s “functional characteristics,”

i.e., whether it serves the policies of a statute of

limitations. Lozano v. Montoya Alvarez, 572 U.S. 1, 1415 & n.6 (2014). Statutes of limitations encourage

“plaintiffs to pursue ‘diligent prosecution of known

claims,’” CTS Corp. v. Waldburger, 573 U.S. 1, 8 (2014)

(citation omitted), and thereby “protect defendants

against stale or unduly delayed claims,” John R. Sand

& Gravel Co. v. United States, 552 U.S. 130, 133 (2008).

Thus, in determining whether a timing provision

functions as a statute of limitations, courts focus on

whether the provision serves “the main goal of a

statute of limitations: encouraging plaintiffs to

prosecute their actions promptly or risk losing rights.”

In re Neff, 824 F.3d 1181, 1185 (9th Cir. 2016).

In Young, this Court considered whether equitable

tolling was available for the three-year “lookback”

period in 11 U.S.C. § 507(a)(8)(A)(i), which provides

that a claim by the Internal Revenue Service (“IRS”)

for tax liabilities owed by a bankrupt taxpayer is

nondischargeable if the tax return was due within

three years before the bankruptcy petition was filed.

535 U.S. at 46-47. This Court agreed with the IRS

that “[t]he three-year lookback period is a limitations

period subject to traditional principles of equitable

tolling.” Id. at 47. The Court acknowledged that,

“unlike most statutes of limitations, the lookback

period bars only some, and not all, legal remedies

for enforcing the claim (viz., priority and nondischargeability in bankruptcy).” Id. at 47-48 (footnote

omitted). But it nevertheless serves the same “basic

policies [furthered by] all limitations provisions:

repose, elimination of stale claims, and certainty

about a plaintiff’s opportunity for recovery and a

defendant’s potential liabilities.” Id. (alteration in

original) (quoting Rotella v. Wood, 528 U.S. 549, 555

(2000)). The Court reasoned that this “makes it a

more limited statute of limitations, but a statute of

limitations nonetheless.” Id.

Section 5110(b)(1) of title 38 functions as a statute

of limitations every bit as much as the three-year

lookback period in Young, if not more. Like the

lookback period in Young, § 5110(b)(1) “prescribes a

period within which certain rights”—namely a disabled veteran’s right to claim retroactive disability

benefits—“may be enforced.” Id. at 47. Like the lookback period in Young, § 5110(b)(1) encourages disabled veterans to protect their rights by filing any

ripe disability claims within one year of discharge.

And, as in Young, if disabled veterans “sleep[] on

[their] rights,” they lose entitlement to any retroactive

benefits they otherwise could have been awarded. Id.

This, in turn, serves the “basic policies of . . . repose,

elimination of stale claims, and certainty about a

plaintiff’s opportunity for recovery and a defendant’s

potential liabilities.” Rotella, 528 U.S. at 555.

In his concurring opinion, Judge Chen reasons that

§ 5110(b)(1) is not a statute of limitations because

it “does not operate to bar a veteran’s claim for benefits

for a particular service-connected disability after one

year has passed.” App. 30a. But as Judge Dyk correctly

recognizes in his concurrence, § 5110(b)(1) controls

whether service-disabled veterans are entitled to retroactive disability benefits dating back to their discharge from service. App. 77a. As Judge Dyk explains,

“[t]he claim for benefits here has two components: (1)

a retrospective claim for benefits for past disability,

and (2) a prospective claim for future benefits.” Id.

“[Section] 5110(b)(1) does impose what is clearly a

one-year statute of limitations for retrospective

claims—making retrospective benefits unavailable

unless the claim is filed within one year after

discharge.” Id.

Judge Chen also opines that § 5110(b)(1) “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 eliminate a veteran’s

ability to collect benefits for that very disability.” App.

30a. But this Court has deemed similar timing

provisions to be statutes of limitations amenable to

equitable tolling, despite being primarily related to

the amount a claimant can recover. For instance, the

Court has described the copyright damages statute

as “a three-year look-back limitations period.” Petrella

v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 670

(2014). As the Court explained in Petrella, the copyright damages statute, “coupled to the separateaccrual rule,” means that a copyright owner can sue

anytime during an ongoing infringement. Id. at 68283. “She will miss out on damages for periods prior

to the three-year look-back, but her right to prospective injunctive relief should, in most cases, remain

unaltered.” Id. The six-year lookback period in the

patent damages statute operates similarly, and this

Court has likewise described it as a statute of limitations. See SCA Hygiene Prods. Aktiebolag v. First

Quality Baby Prods., LLC, 137 S. Ct. 954, 961-62

(2017).

The three-year copyright statute of limitations has

long been understood to be amenable to equitable

tolling for circumstances such as the legal disability

of an injured party. See, e.g., Aspen Tech., Inc. v. M3

Tech., Inc., 569 F. App’x 259, 264 (5th Cir. 2014);

Prather v. Neva Paperbacks, Inc., 446 F.2d 338, 33940 (5th Cir. 1971). In response, Judge Chen attempts

to distinguish copyright causes of action based on a

“series of discrete infringing acts” from a veteran’s

claim for disability benefits, which he describes as a

“single benefits claim for an ongoing disability.” App.

37a-38a (quoting Petrella, 572 U.S. at 671-72). But as

Judge Dyk correctly notes in his concurrence, a

veteran’s claim for disability benefits is, in reality, “not

a single benefits claim, but a claim for a series of

payments allegedly due.” App. 80a (citations omitted);

see also 38 U.S.C. § 1114 (providing monthly rates for

disability compensation).

Judge Chen further contends that § 5110(b)(1) is

not a statute of limitations because it “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.” App. 30a-31a (citing 1 Calvin W.

Corman, Limitation of Actions, § 6.1, at 370 (1991)).

But as Judge Dyk correctly notes in his concurrence,

many statutory time periods and deadlines that do not

fall within these rigid definitional constraints have

been found amenable to equitable tolling. App. 73a76a (citing the thirty-six-month filing deadline of the

National Childhood Vaccine Injury Act of 1986, 42

U.S.C. § 300aa-16(a)(2), as a “primary example of a nofault statute of limitations” found amenable to

equitable tolling).

B. The Irwin Presumption Has Not Been

Rebutted for 38 U.S.C. § 5110(b)(1)

Judge Chen opines in his concurrence that, “even if

Irwin’s presumption were to apply, equitable tolling

would nonetheless be unavailable because it is ‘inconsistent with the text of the relevant statute.’” App. 55a

(quoting Young, 535 U.S. at 49). This is incorrect.

Judge Chen’s concurrence first attempts to rebut

Irwin by arguing that § 5110(a)(1) is part of a “highly

detailed statutory scheme dictating specific legislative choices for when a veteran’s claim may enjoy an

effective date earlier than the date it was received

by the VA.” Id. Judge Chen points to § 5110(a)(1)’s

text, which instructs that a day-of-receipt effective

date applies “[u]nless specifically provided otherwise

in this chapter.” App. 57a (quoting 38 U.S.C.

§ 5110(a)(1)). Judge Chen opines that this “unless”

clause proves that Congress “implicitly intended to

preclude the general availability of equitable tolling

by explicitly including a more limited, specific selection of equitable circumstances under which a veteran

is entitled to an earlier effective date . . . .” App. 57a58a.

Although Judge Chen concedes that § 5110(b)(1) is

not jurisdictional, App. 56a, his “unless” reasoning

is fundamentally a jurisdictional argument—i.e., that

Congress intended to expressly forbid equitable

tolling. See John R. Sand, 552 U.S. at 134 (referring

to “jurisdictional” as a “convenient shorthand” for

absolute time limits that forbid equitable tolling (citation omitted)); see also United States v. Kwai Fun

Wong, 575 U.S. 402, 408 n.2 (2015) (resolving the

argument that 28 U.S.C. § 2401(b) “prohibits” equitable tolling under the same analysis used to determine whether § 2401(b) is jurisdictional). The VA

must therefore show that the language of § 5110(b)(1)

meets the “high bar” of showing that Congress made

a “clear statement” towards such a prohibition. Kwai

Fun Wong, 575 U.S. at 409-10 (citation omitted). It

cannot do so.

As Judge Dyk explains in his concurrence, many

limitations periods are framed in language far more

emphatic and mandatory than § 5110(a)(1), yet they

have nevertheless been found to be nonjurisdictional

and subject to the general rule in favor of equitable

tolling. See App. 83a-84a; see also Henderson, 562

U.S. at 439 (“[W]e have rejected the notion that ‘all

mandatory prescriptions, however emphatic, are . . .

properly typed jurisdictional.’” (citation omitted)).

This Court has also rejected the idea that an “unless”

clause to an otherwise general prohibition such as

§ 5110(a)(1) creates a jurisdictional bar to equitable

tolling. Kwai Fun Wong, 575 U.S. at 410-11. The

Federal Tort Claims Act, 28 U.S.C. § 2401(b) (“FTCA”)

is one such example. Like § 5110(a)(1), it employs an

“unless” clause to forbid a tort claim against the United

States “unless” certain criteria are met: “A tort claim

against the United States shall be forever barred unless

it is presented in writing to the appropriate Federal

agency within two years after such claim accrues . . . .”

28 U.S.C. § 2401(b) (emphasis added). Despite the

FTCA’s emphatic “forever barred” language, this Court

found it to be “of no consequence” to the Irwin

presumption. Kwai Fun Wong, 575 U.S. at 410-11.

In his concurring opinion, Judge Chen also attempts

to rebut Irwin by branding § 5110(a)(1) as the general rule that controls the effective dates for various

VA benefits and characterizing § 5110(b)-(n) as “exceptions” to that rule. App. 59a-60a. Judge Chen relies

on TRW to argue that, because Congress enumerated exceptions to § 5110(a)(1), it must have intended

to bar implied exceptions anywhere in § 5110 that

touches on effective dates, including § 5110(b)(1). Id.

(citing TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001)).

But this ignores the nexus element of TRW, i.e., that

the enumerated exceptions must relate to the specific

limitations period at issue.

This Court held in TRW that an implied general

discovery rule in the Fair Credit Reporting Act

(“FCRA”) was not applicable in calculating the FCRA’s

limitations period because the statute’s text and

structure established a two-year limitations period

and in the same sentence provided a limited exception

for cases of willful misrepresentation. See TRW, 534

U.S. at 28-31. The Court reasoned that a judicially

recognized general discovery rule under the FCRA

would render the narrower statutory misrepresentation exception “insignificant, if not wholly superfluous.” Id. at 31 (citation omitted); see also id. at 28

(“Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions

are not to be implied, in the absence of evidence of a

contrary legislative intent.” (citation omitted)).

Here, in contrast, no explicit exception exists for

§ 5110(b)(1)’s one-year deadline. Section 5110 generally lists additional limitations periods to receive

retroactive coverage for other types of VA benefits

such as disability pension or death compensation. See

38 U.S.C. § 5110(b)-(n). But these have no nexus with

§ 5110(b)(1) and can never stop or slow its one-year

clock. The provision for death compensation, for

example, would hardly be rendered “insignificant” or

“wholly superfluous” if equitable tolling were available for retroactive disability compensation under

§ 5110(b)(1). TRW, 534 U.S. at 31 (citation omitted);

compare 38 U.S.C. § 5110(d), with 38 U.S.C.

§ 5110(b)(1) (defining separate benefits).

C. If 38 U.S.C. § 5110(b)(1) Is Amenable to

Equitable Tolling, Mr. Arellano’s Case

Must Be Remanded for Further Factual

Development

The only issue raised before the Federal Circuit in

this case was whether 38 U.S.C. § 5110(b)(1) is amenable to equitable tolling as a matter of law. App.

18a. The Chen concurrence correctly explains that

“[b]ecause both the Board and the Veterans Court

concluded that equitable tolling was categorically

unavailable for § 5110(b)(1) as a matter of law, neither

had reason to consider whether the specific facts of

Mr. Arellano’s case justified equitable tolling.” App.

67a. Nevertheless, Judge Dyk would find in the first

instance that Mr. Arellano’s specific facts do not

warrant equitable tolling in this case. App. 96a-97a.

While Judge Dyk’s concurrence purports to be

merely applying the legal standard to undisputed

facts, it errs by relying on an undeveloped evidentiary

record in attempting to do so, going so far as to

construe the absence of certain facts in the undeveloped record as dispositive factual findings. See Florida

Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)

(“If the record before the agency does not support the

agency action, if the agency has not considered all

relevant factors, or if the reviewing court simply

cannot evaluate the challenged agency action on the

basis of the record before it, the proper course, except

in rare circumstances, is to remand to the agency for

additional investigation or explanation.”); Camp v.

Pitts, 411 U.S. 138, 142 (1973) (“[T]he focal point for

judicial review should be the administrative record

already in existence, not some new record made

initially in the reviewing court.”).

Judge Dyk’s analysis relies primarily on the absence

of an “allegation that Mr. Lamar [Mr. Arellano’s

brother] was somehow prevented from filing, or faced

obstacles in his attempt to file, Mr. Arellano’s request

for benefits sooner.” App. 96a. But Mr. Arellano had

no reason to present such an allegation, if it exists,

because he was instructed at every stage of his claim

that equitable tolling was categorically unavailable to

him as a matter of law. Moreover, it is far from clear

that Judge Dyk’s proposed caregiver rule applies so

rigidly. See App. 68a (“[I]t is unsurprising 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 having a

caregiver creates a default presumption against

equitable tolling in this context or in any other setting

where equitable tolling can arise.”).

As Judge Dyk acknowledges, “the mere fact that a

guardian has been appointed for a claimant is a factor

in the equitable tolling inquiry, but only one factor.”

App. 93a (emphasis added) (citing K. G. v. Sec’y of

Health & Hum. Servs., 951 F.3d 1374, 1381 (Fed. Cir.

2020)). Judge Dyk attempts to dispense with all the

other potential factors by alleging that “there is no

claim that Mr. Arellano was estranged from Mr.

Lamar or refused to interact with him,” a factual

scenario present in the K. G. case. App. 96a-97a (citing

K. G., 951 F.3d at 1377). Again, the Federal Circuit

has no way of knowing whether those (or other

compelling) facts might exist in this case because Mr.

Arellano was never given an opportunity to develop

the evidentiary record in support of equitable tolling.

It is undisputed that neither the Board nor the

Veterans Court made any factual findings relevant to

whether Mr. Arellano would be entitled to equitable

tolling if it was available for § 5110(b)(1). See App. 68a

(“The government, 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 equitable tolling is unavailable as a matter of law.”). As the Chen concurrence

correctly observes, the Veterans Court and the Board:

(1) did not address any of [Mr. Arellano’s]

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.

Id. Indeed, far from indicating that Mr. Arellano’s

facts could never support a claim for equitable tolling,

the Veterans Court stated that his allegations would

be “worth exploring” in the absence of Andrews. App.

6a (“If we were writing on a blank slate, appellant’s

argument would be worth exploring.”).

If Andrews is overturned, the six judges of the Chen

concurrence 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 Veteran Court’s

decision on factual grounds.” App. 68a-69a. This is the

correct result. Because Mr. Arellano has yet to be

afforded the opportunity to develop and argue his

facts, and because the agency specifically refrained

from making any factual findings relating to equitable

tolling, a remand is necessary if this Court holds that

38 U.S.C. § 5110(b)(1) is amenable to equitable tolling.

Chenery, 332 U.S. at 196; Florida Power, 470 U.S. at

744; see also Goonsuwan v. Ashcroft, 252 F.3d 383, 390

n. 15 (5th Cir. 2001) (“It is a bedrock principle of

judicial review that a court reviewing an agency decision should not go outside the administrative record.”);

Rhoa-Zamora v. INS, 971 F.2d 26, 34 (7th Cir. 1992),

as modified on denial of reh’g (Nov. 4, 1992) (“We will

not weigh evidence that the Board has not previously

considered; an appellate court is not the appropriate

forum to engage in fact-finding in the first instance.”);

Tejeda-Mata v. INS, 626 F.2d 721, 726 (9th Cir. 1980)

(“[T]his Court does not sit as an administrative agency

for the purpose of fact-finding in the first instance. . .”);

Uanreroro v. Gonzales, 443 F.3d 1197, 1208 (10th Cir.

2006) (“[W]e will not, as a reviewing court, step into

the agency’s role and engage in our own fact-finding.”).

CONCLUSION

For the reasons explained above, the Court should

grant the petition.

Respectfully submitted,

JAMES R. BARNEY

Counsel of Record

KELLY S. HORN

ALEXANDER E. HARDING

FINNEGAN, HENDERSON,

FARABOW, GARRETT &

DUNNER, LLP

901 New York Avenue, NW

Washington, DC 20001-4413

(202) 408-4000

James.Barney@finnegan.com

Counsel for Petitioner

September 17, 2021

APPENDIX

APPENDIX A

Not Published

UNITED STATES COURT OF APPEALS

FOR VETERANS CLAIMS

————

No: 18-3908

————

ADOLFO R. ARELLANO,

Appellant,

ROBERT L. WILKIE,

SECRETARY OF VETERANS AFFAIRS,

Appellee.

————

JUDGMENT

The Court has issued a decision in this case. The

time allowed for motions under Rule 35 of the Court's

Rules of Practice and Procedure has expired.

Under Rule 36, judgment is entered and effective

this date.

Dated: August 14, 2019

FOR THE COURT:

GREGORY O. BLOCK

Clerk of the Court

By: /s/ Abie M. Ngala

Deputy Clerk

Copies to:

James R. Bareny, Esq.

VA General Counsel (027)

APPENDIX B

Designated for electronic publication only

UNITED STATES COURT OF APPEALS

FOR VETERANS CLAIMS

————

No. 18-3908

————

ADOLFO R. ARELLANO,

Appellant,

ROBERT L. WILKIE,

SECRETARY OF VETERANS AFFAIRS,

Appellee.

————

Before ALLEN, Judge.

————

MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),

this action may not be cited as precedent.

ALLEN, Judge: Appellant Adolfo Arellano served

the Nation honorably in the United States Navy. In

this appeal, which is timely and over which the Court

has jurisdiction,1 he contests a July 28, 2017, decision

of the Board of Veterans’ Appeals that denied him

an effective date before June 3, 2011, for service connection for schizoaffective disorder type with PTSD

See 38 U.S.C. §§ 7252(a), 7266(a).

(what we will refer to as the “mental disorder”).2

Appellant’s sole argument on appeal is that the

Board erred when it did not “toll” the operation of 38

U.S.C. § 5110 concerning the “effective dates of

awards.” Because that argument is foreclosed by binding precedent from both this Court and the Federal

Circuit, we will affirm the Board’s decision.

I. ANALYSIS

Congress has provided in section 5110 that the

effective date of an award based on an initial claim

generally is assigned based on the facts found, but

shall not be earlier than the date of receipt of an application for compensation.3 This foundational principle

is also set forth in VA regulations.4 The Court reviews

the Board’s assignment of an appropriate effective

date for clear error.5 We will reverse a factual finding

of the Board when, after reviewing the evidence of

Record (R.) at 2-13. The Board’s decision to award an effective date of August 29, 2011, for appellant’s service-connected

tardive dyskinesia is a favorable finding the Court may not

disturb. See Medrano v. Nicholson, 21 Vet.App. 165, 170 (2007).

Appellant does not contest this finding to the extent it is not

favorable, expressly limiting his argument to the mental disorder. See Appellant’s Brief (Br.) at 1. Therefore, the Court considers any arguments about the effective date for tardive dyskinesia

abandoned. See Pederson v. McDonald, 27 Vet.App. 276, 283

(2015) (en banc). But even if that were not the case (appellant’s

briefing is somewhat confusing on that score) the sole argument

for an earlier effective date for this condition would be the same

as the one advanced for the mental disorder. It is as legally defective here as it is there.

38 U.S.C. § 5110(a).

38 C.F.R. § 3.400(b).

Canady v. Nicholson, 20 Vet.App. 393, 398 (2006); see also 38

U.S.C. § 7261(a)(4); Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990).

record, the Court is left with ‘“a definite and firm

conviction that a mistake has been committed.”‘6 However, and importantly for this appeal, the Court

reviews legal questions de novo.7 Finally, for all its

findings on a material issue of fact and law, the Board

must support its decision with an adequate statement

of reasons or bases that enables a claimant to understand the precise bases for the Board’s decision and

facilitates review in this Court.8 If the Board failed to

do so, remand is appropriate.9

As noted above, appellant presents only a single

issue on appeal. He does not contest the Board’s finding that he filed his claim for service connection for

his mental disorder no earlier than June 3, 2011.10 The

Board used that date for the assignment of the

effective date for service connection for his mental

disorder.11 He claims that he is entitled to an earlier

effective date because his mental disorder was so

disabling from the moment he left service in 1981

that section 5110 should be tolled such that it would

be possible for him to obtain an effective date as early

as the date of his separation from service.

Appellant’s argument is squarely foreclosed by

binding precedent. In Andrews v. Principi the Federal

Circuit addressed whether section 5110 was subject to

Gilbert, 1 Vet.App. at 53 (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).

Butts v. Brown, 5 Vet.App. 532, 538 (1993) (en banc).

38 U.S.C. § 7104(d)(1); Gilbert, 1 Vet.App. at 57.

Tucker v. West, 11 Vet.App. 369, 374 (1998).

See Appellant’s Br. at 2.

R. at 10-11.

equitable tolling. It rejected that argument.13 Its core

reasoning is worth quoting at length:

[P]rinciples of equitable tolling . . . are not

applicable to the time period in § 5110(b)(1).

Equitable tolling may be applied to toll a

statute of limitations “where the claimant

has actively pursued his judicial remedies by

filing a defective pleading during the statutory period, or where the complainant has

been induced or tricked by his adversary’s

misconduct into allowing the filing deadline

to pass.” This is not such a case, as § 5110

does not contain a statute of limitations, but

merely indicates when benefits may begin

and provides for an earlier date under certain

limited circumstances. “Generally, the effective date of an award of disability benefits

can be no earlier than the date of application

for such benefits.” Section 5110 addresses

the question of when benefits begin to accrue,

not whether a veteran is entitled to benefits

at all. Passage of the one-year period in

§ 5110(b)(1) for filing a claim of disability

compensation therefore does not foreclose

payment for the veteran and thus cannot be

construed as establishing a statute of

limitations.[14]

Appellant attempts to avoid the clear holding in

Andrews by arguing that it did not establish a broad

351 F.3d 1134, 1137-38 (Fed. Cir. 2003).

Id.

Id. (citations omitted) (quoting, respectively, Irwin v. Dep’t

of Veterans Affairs, 498 U.S. 89, 96 (1990); McCay v. Brown, 106

F.3d 1577, 1579 (Fed. Cir. 1997)).

rule that equitable tolling can never apply to section

5110, but was limited only to the factual situation

before the court in that case.15 And he makes similar

arguments16 concerning this Court’s decision in Noah

v. McDonald, in which we interpreted Andrews to

foreclose the application of equitable toiling to section

5110.17 But these cases simply cannot be read in the

manner appellant argues. And even if we could somehow avoid Andrews and Noah as appellant suggests,

the Court’s recent decision in Taylor v. Wilkie would

alone foreclose his argument.18 There, we stated unequivocally that “[t]his Court and the Federal Circuit

have considered whether section 5110 is subject to

equitable tolling and have found that it is not.”19

If we were writing on a blank slate, appellant’s

arguments would be worth exploring.20 But our slate

is far from blank. Instead, it is filled with caselaw

that binds the Court today and dooms appellant’s sole

argument that the Board’s decision is erroneous. As

the law stands today, it is not because section 5110 is

not subject to equitable tolling.

See, e.g., Appellant’s Br. at 7-9.

See id. at 9-10.

28 Vet.App. 120, 128 (2016)).

31 Vet.App. 147 (2019).

Id. at 154.

See, e.g., Butler v. Shinseki, 603 F.3d 922, 926-28 (Fed. Cir.

2010) (Newman, J., concurring in the result) (developing an argument for equitable tolling to apply to section 5110 in certain

circumstances).

II. CONCLUSION

After consideration of the parties’ briefs, the governing law, and a review of the record, the Court

AFFIRMS the Board’s July 28, 2017, decision.

DATED: July 23, 2019

Copies to:

James R. Barney, Esq.

VA General Counsel (027)

APPENDIX C

United States Court of Appeals

for the Federal Circuit

[Filed August 5, 2020]

————

2020-1073

Appeal from the United States Court

of Appeals for Veterans Claims in

No. 18-3908.

————

ADOLFO R. ARELLANO,

Claimant-Appellant

ROBERT WILKIE,

SECRETARY OF VETERANS AFFAIRS,

Respondent-Appellee

————

SUA SPONTE HEARING EN BANC

JAMES R. BARNEY, Finnegan, Henderson, Farabow,

Garrett & Dunner, LLP, Washington, DC, for claimantappellant. Also represented by ALEXANDER EDISON

HARDING, KELLY HORN.

ANDREW JAMES HUNTER, Commercial Litigation

Branch, Civil Division, United States Department of

Justice, Washington, DC, for respondent-appellee.

Also represented by ETHAN P. DAVIS, MARTIN F.

HOCKEY, JR., ROBERT EDWARD KIRSCHMAN, JR.;

CHRISTINA LYNN GREGG, Y. KEN LEE, Office of General

Counsel, United States Department of Veterans

Affairs, Washington, DC.

————

Before PROST, Chief Judge, NEWMAN, LOURIE, DYK,

MOORE, O’MALLEY, REYNA, WALLACH, TARANTO,

CHEN, HUGHES, and STOLL, Circuit Judges.

PER CURIAM.

ORDER

This case was argued before a panel of three judges

on July 6, 2020. A sua sponte request for a poll on

whether to consider this case en banc in the first

instance was made. A poll was conducted and a majority of the judges who are in regular active service voted

for sua sponte en banc consideration.

Accordingly,

IT IS ORDERED THAT:

(1) This case will be heard en banc under 28 U.S.C.

§ 46 and Federal Rule of Appellate Procedure

35(a). The court en banc shall consist of all circuit judges in regular active service who are not

recused or disqualified.

(2) The parties are requested to file new briefs

addressing the following four issues:

A. Does the rebuttable presumption of the

availability of equitable tolling articulated

in Irwin v. Department of Veterans Affairs,

498 U.S. 89 (1990), apply to 38 U.S.C.

§ 5110(b)(1), and if so, is it necessary for the

court to overrule Andrews v. Principi, 351

F.3d 1134 (Fed. Cir. 2003)?

10a

B. Assuming Irwin’s rebuttable presumption

applies to § 5110(b)(1), has that presumption

been rebutted?

C. Assuming this court holds that Irwin’s rebuttable 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

availability of equitable tolling under

statutes in other benefits programs that

include timing provisions similar to § 5110?

(3) The opening brief of Appellant Adolfo R.

Arellano must be filed within 45 days from the

date of this order. The brief of Appellee Secretary of Veterans Affairs is due within 45 days

after service of Mr. Arellano’s opening brief.

Mr. Arellano’s reply brief must be filed within

30 days after service of the Secretary’s brief.

The parties’ briefs must comply with Fed. Cir.

R. 32(b)(1).

(4) The court invites the views of amici curiae. Any

amicus brief may be filed without consent and

leave of court. Any amicus brief supporting

Mr. Arellano’s position or supporting neither

position must be filed within 20 days after service of Mr. Arellano’s opening brief. Any amicus

brief supporting the Secretary’s position must

be filed within 20 days after service of the

Secretary’s brief. Amicus briefs must comply

with Fed. Cir. R. 29(b).

(5) The court requires 26 paper copies of all briefs

and appendices provided by the filer within 5

business days from the date of electronic filing

11a

of the document. Administrative Order No. 2001 does not exempt the filing of these paper

copies.

(6) This case will be heard en banc on the basis of

the briefing ordered herein and oral argument.

(7) Oral argument will be scheduled at a later date.

FOR THE COURT

August 5, 2020

Date

/s/ Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

12a

APPENDIX D

NOTE: This order is nonprecedential.

United States Court of Appeals

for the Federal Circuit

[Filed September 24, 2020]

————

2020-1073

Appeal from the United States

Court of Appeals for Veterans Claims in

No. 18-3908.

————

ADOLFO R. ARELLANO,

Claimant-Appellant

ROBERT WILKIE,

SECRETARY OF VETERANS AFFAIRS,

Respondent-Appellee

————

PER CURIAM.

ORDER

On September 22, 2020, Paul Wright, proceeding

pro se, submitted an “informal amicus brief.” Mr.

Wright also requests an exemption from the court’s

August 5, 2020 order, which directed the filing of 26

paper copies of all briefs.

Upon consideration thereof,

13a

IT IS ORDERED THAT:

Mr. Wright’s brief is accepted. The court will not require paper copies of this brief.

FOR THE COURT

September 24, 2020

Date

/s/ Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

14a

APPENDIX E

United States Court of Appeals

for the Federal Circuit

————

2020-1073

Appeal from the United States

Court of Appeals for Veterans Claims in

No. 18-3908, Judge Michael P. Allen.

————

ADOLFO R. ARELLANO,

Claimant-Appellant

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS,

Respondent-Appellee

————

Decided: June 17, 2021

————

JAMES R. BARNEY, Finnegan, Henderson, Farabow,

Garrett & Dunner, LLP, Washington, DC, argued for

claimant-appellant. Also represented by ALEXANDER

EDISON HARDING, KELLY HORN.

BARBARA E. THOMAS, Commercial Litigation Branch,

Civil Division, United States Department of Justice,

argued for respondent-appellee. Also represented by

BRIAN M. BOYNTON, CLAUDIA BURKE, MARTIN F.

HOCKEY, JR., ANDREW JAMES HUNTER; CHRISTINA

LYNN GREGG, Y. KEN LEE, Office of General Counsel,

15a

United States Department of Veterans Affairs,

Washington, DC.

MELANIE L. BOSTWICK, Orrick, Herrington &

Sutcliffe LLP, Washington, DC, for amicus curiae

Military-Veterans Advocacy Inc. Also represented by

ANNE SAVIN; JOHN B. WELLS, Law Office of John B.

Wells, Slidell, LA.

JILLIAN BERNER, UIC John Marshall Law School

Veterans Legal Clinic, Chicago, IL, for amicus curiae

National Law School Veterans Clinic Consortium.

LIAM JAMES MONTGOMERY, Williams & Connolly

LLP, Washington, DC, for amici curiae National

Organization of Veterans’ Advocates, Inc., National

Veterans Legal Services Program. Also represented by

DEBMALLO SHAYON GHOSH, ANNA JOHNS HROM; BRIAN

WOLFMAN, Georgetown Law Appellate Courts Immersion Clinic, Washington, DC.

HANNAH LAUREN BEDARD, Kirkland & Ellis LLP,

Washington, DC, for amicus curiae Charles J.

Raybine. Also represented by WILLIAM H. BURGESS.

PAUL WRIGHT, Marietta, SC, as amicus curiae, pro se.

————

Before MOORE, Chief Judge*, NEWMAN, LOURIE, DYK,

PROST**, O’MALLEY, REYNA, WALLACH***, TARANTO,

CHEN, HUGHES, and STOLL, Circuit Judges.

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.

16a

Opinion for the court filed PER CURIAM.

Concurring opinion filed by CHEN, Circuit Judge, in

which MOORE, Chief Judge, and LOURIE, PROST,

TARANTO, and HUGHES, Circuit Judges, join.

Concurring opinion filed by DYK, Circuit Judge, in

which NEWMAN, O’MALLEY, REYNA, WALLACH, and

STOLL, Circuit Judges, join.

PER CURIAM.

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 decision, Andrews v. Principi, 351 F.3d

1134 (Fed. Cir. 2003), which held that principles of

equitable tolling are not applicable to the time period

in 38 U.S.C. § 5110(b)(1).

Accordingly, the judgment of the United States

Court of Appeals for Veterans Claims is affirmed.

AFFIRMED

COSTS

No costs.

17a

United States Court of Appeals

for the Federal Circuit

————

2020-1073

Appeal from the United States

Court of Appeals for Veterans Claims in

No. 18-3908, Judge Michael P. Allen.

————

ADOLFO R. ARELLANO,

Claimant-Appellant

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS,

Respondent-Appellee

————

Decided: June 17, 2021

————

CHEN, Circuit Judge, with whom MOORE, Chief

Judge, and LOURIE, PROST, TARANTO, and HUGHES,

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, provides an exception that permits an earlier effective date if the VA receives the

application within one year of the veteran’s discharge

from military service: under such circumstances, the

effective date of the award shall date back to “the day

18a

following the date of the veteran’s discharge 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 effective date of the day after discharge.

Specifically, we consider whether the rebuttable presumption of equitable tolling for statutes of limitations

established in Irwin v. Department of Veterans Affairs,

498 U.S. 89 (1990), applies to the one-year period in

§ 5110(b)(1).

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

equitably tolled in his case to afford his award an

earlier effective 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

decision 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. 351

F.3d 1134, 1137–38 (Fed. Cir. 2003). Because this

court sitting en banc is equally divided on this issue,

our decision today does not alter our precedent that

§ 5110(b)(1) is not a statute of limitations to which

Irwin’s presumption of equitable tolling applies.

Accordingly, the Veterans Court’s decision, which

19a

relies on Andrews to deny Mr. Arellano an earlier

effective date under § 5110(b)(1), is affirmed.

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. Arellano’s case do not warrant

equitable tolling. We disagree with this approach

both in substance and process. Even if Irwin’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 factual circumstances warrant equitable tolling where no prior tribunal has considered the

issue and no party has argued for such an outcome.

BACKGROUND

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 compensation, 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 compensation award is determined, in part, by the effective date assigned to his award—i.e., the date on

20a

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

chapter, the effective date of an award based

on an initial claim, or a supplemental claim,

of compensation, dependency and indemnity

compensation, 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 compensation is payable for periods predating the VA’s

receipt of the application for benefits, “[u]nless specifically provided otherwise” 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

No party has identified a material difference, for present

purposes, between “claim” and “application,” and the VA’s regulations appear to use these terms interchangeably. See, e.g., 38

C.F.R. § 3.1(p) (defining “claim” as “a written or electronic communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws

administered by the [VA] submitted on an application form prescribed by the Secretary”).

21a

default rule. See § 5110(b)–(n). Many of § 5110’s

exceptions pertain to specific circumstances that may

delay the filing of an application for benefits. These

include: discharge from the military, § 5110(b)(1);

increase in the severity of a disability, § 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

retroactivity 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 veteran’s discharge if the application for

such benefits is received within one year after

discharge:

The effective date of an award of disability

compensation to a veteran shall be the day

following the date of the veteran’s discharge

or release if application 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 tolling may apply to § 5110(b)(1)’s

one-year period to permit an effective date reaching

22a

back to the day after the veteran’s discharge from

service, even though the application for that award

was received more than one year after discharge.

The equitable-tolling doctrine, as traditionally

understood, “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., 137 S. Ct.

2042, 2050 (2017) (quoting Lozano v. Montoya Alvarez,

572 U.S. 1, 10 (2014)) . Such “extraordinary circumstances” include “where the claimant has actively

pursued his judicial remedies by filing a defective

pleading during the statutory period, or where the

complainant has been induced or tricked by his

adversary’s misconduct into allowing the filing deadline to pass,” but exclude “a garden variety claim of

excusable neglect.” Irwin, 498 U.S. at .96 (footnote

omitted). But before deciding whether the factual circumstances are extraordinary enough to justify equitable tolling, a court must first determine whether the

statutory time limit at issue is one amenable to

equitable tolling.

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 approximately fourteen months after her

discharge from service. 351 F.3d at 1135. As a result,

she was awarded compensation effective as of the

date the VA received her claim. Ms. Andrews appealed

that decision, arguing that § 5110(b)(1)’s one-year

period should be equitably tolled for at least two

months (on a failure-to-notify theory) to qualify her

for an earlier effective date dating back to the day

23a

after discharge. We disagreed, holding that the “principles of equitable tolling . . . are not applicable to

the time period in § 5110(b)(1).” Id. at 1137. This

follows, we explained, because § 5110(b)(1) “does not

contain a statute of limitations, but merely indicates

when benefits may begin and provides for an earlier

date under certain limited circumstances.” Id. at 1138.

Unlike how a statute of limitations operates, this

statutory provision “addresses the question of when

benefits begin to accrue, not whether a veteran is

entitled to benefits at all,” and “[p]assage of the oneyear period in § 5110(b)(1) . . . does not foreclose

payment for the veteran.” Id. On that basis, we

affirmed the denial of an earlier effective date for Ms.

Andrews’s claim.

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 psychiatric 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 earlier. Mr. Arellano submitted,

as support, a medical opinion by his psychiatrist

indicating that he had been “100% disabled since

1980,” when he was “almost crushed and swept overboard while working on the flight deck of [an] aircraft

24a

carrier.” J.A. 529. Given his disability, Mr. Arellano

argued that § 5110(b)(1)’s one-year period should be

equitably tolled to qualify him for an effective date

retroactive to the day after his discharge from the

Navy. The Board rejected his equitable-tolling argument, and the Veterans Court affirmed that decision,

concluding that Mr. Arellano’s claim was “squarely

foreclosed by binding precedent” in Andrews. See

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

August 5, 2020, we took the case en banc and entered

a sua sponte order directing the parties to brief the

following issues:

A. Does the rebuttable presumption of the

availability of equitable tolling articulated in

Irwin v. Department of Veterans Affairs, 498

U.S. 89 (1990), apply to 38 U.S.C. § 5110(b)(1),

and if so, is it necessary for the court to

overrule Andrews v. Principi, 351 F.3d 1134

(Fed. Cir. 2003)?

B. Assuming Irwin’s rebuttable presumption

applies to § 5110(b)(1), has that presumption

been rebutted?

C. Assuming this court holds that Irwin’s

rebuttable 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

availability of equitable tolling under statutes in other benefits programs that include

timing provisions similar to § 5110?

25a

Order Granting En Banc Review, No. 20-1073 (Aug.

5, 2020), ECF No. 45, at 2–3.

DISCUSSION

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 relevant questions of law, including interpreting

constitutional and statutory provisions.” § 7292(d)(1).

Because our review of this decision involves a question of statutory interpretation—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 limitations in a suit against the government

was subject to equitable tolling. Specifically, the

Irwin petitioner sought equitable tolling of 42 U.S.C.

§ 2000e-16(c)’s 30-day deadline for filing a Title VII

civil action against the federal government 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 equitable tolling,

an analogous presumption had not yet been established for suits against the government. See Irwin, 498

U.S. at 95. Irwin held that “the same rebuttable

presumption of equitable tolling applicable to suits

against private defendants should also apply to suits

against the United States.” Id. at 95–96. This case

thus established a rule of general applicability for

26a

equitable tolling of statutes of limitations in suits

against the government, with the caveat that “Congress,

of course, may provide otherwise if it wishes to do

so.” Id. at 96.

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 determine 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. See United States v. Brockamp,

519 U.S. 347, 349–50 (1997). We address each step of

the analysis in turn.

Before determining whether Irwin’s presumption of

equitable 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 background 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 longestablished feature of American jurisprudence derived

from ‘the old chancery rule,’” Lozano, 572 U.S. at 10–

11 (quoting Holmberg v. Armbrecht, 327 U.S. 392,

397 (1946)). Justification for this principle comes

from recognizing that tolling can be consistent with

the purpose of a statute of limitations under certain

circumstances. In other words, because a statute of

27a

limitations is designed “to encourage the plaintiff to

pursue his rights diligently” after a cause of action

has accrued, when an “extraordinary circumstance

prevents him from bringing a timely action” despite

his diligence, “the restriction imposed by the statute

of limitations [no longer] further[s] the statute’s

purpose” and can be equitably tolled. CTS Corp. v.

Waldburger, 573 U.S. 1, 10 (2014) (cleaned up).

Given that “Congress must be presumed to draft

limitations periods in light of this background

principle,” Young v. United States, 535 U.S. 43, 49–50

(2002), courts have customarily “presume[d] that equitable tolling applies if the period in question is a

statute of limitations and if tolling is consistent with

the statute,” Lozano, 572 U.S. at 11. And while this

practice began in lawsuits between private litigants,

Irwin subsequently extended the presumption to

suits against the government. 498 U.S. at 95– 96

(“[T]he same rebuttable presumption of equitable tolling applicable to suits against private defendants

should also apply to suits against the United States.”

(emphasis added)); see also id. at 96 (“[I]t is evident

that no more favorable tolling doctrine may be employed

against the [g]overnment than is employed in suits

between private litigants.”).

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 limited 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) (“[Irwin’s] presumption seeks to

produce a set of statutory interpretations that will

more accurately reflect Congress’ likely meaning in

28a

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. See, 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 effect, a rule of interpretation tied to that

limit.” Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S.

663, 681 (2014) (emphasis added); see also Equitable

Tolling, BLACK’S LAW DICTIONARY (11th ed. 2019)

(defining “equitable tolling” as “[t]he doctrine that the

statute of limitations will not bar a claim if . . .”

(emphasis added)); Holmberg v. Armbrecht, 327 U.S.

392, 397 (1946) (“[E]quitable [tolling] is read into

every federal statute of limitation.”). Conversely, the

Supreme Court has declined to presume that equitable

tolling applies where the time limit at issue functions

“[u]nlike a statute of limitations,” see Hallstrom v.

Tillamook County, 493 U.S. 20, 27 (1989) (emphasis

added), or lacks “a background principle of equitable

tolling,” see Lozano, 572 U.S. at 12. See also Sebelius

v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 158–59 (2013)

(declining to presume that “an agency’s internal

appeal deadline” is subject to equitable tolling because

the Supreme Court had “never applied the Irwin

presumption to [such a provision]”). As these cases

reflect, determining that Congress would have viewed

a provision as a statute of limitations is a necessary

29a

first step in inferring congressional intent to permit

equitable tolling of that provision. Accordingly, absent

some other established background principle of law

permitting equitable tolling for the statutory provision

at issue, Irwin’s presumption applies only to those

statutory provisions that Congress clearly would have

viewed as statutes of limitations.

Our conclusion is supported not only by Irwin’s

logic and the subsequent cases applying it, but also, by

the limitations 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. See Off. of Pers. Mgmt. v. Richmond, 496

U.S. 414, 424 (1990). The Appropriations Clause provides that “[n]o Money shall be drawn from the

Treasury, but in Consequence of Appropriations

made by Law.” As the Supreme Court explained in

Richmond: “For the particular type of claim at issue

here, a claim for money from the Federal Treasury, the

Clause provides an explicit rule of decision. Money

may be paid out only through an appropriation made

by law; in other words, the payment of money from the

Treasury must be authorized by a statute.” 496 U.S.

at 424.2 Thus, where a plaintiff seeks to enlarge the

monetary benefits awarded by the express terms of a

statute through equitable tolling (as Mr. Arellano does

here), we must decide whether Congress intended to

authorize payment of those additional benefits via

That is not to say, however, that the Appropriations Clause

bars all equitable tolling against the government 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, 476 U.S. 467, 479 (1986).

30a

equitable tolling. This, in turn, necessarily implicates

the question of whether Congress would have viewed

the benefits provision at issue as a statute of limitations carrying the usual feature of equitable tolling.

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.

To determine whether § 5110(b)(1) is a statute of

limitations, 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 statutory 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 serviceconnected disability 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 eliminate a

veteran’s ability to collect benefits for that very

disability. 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

31a

it does not start the clock on seeking a remedy for

that breach from a separate remedial entity. See 1

Calvin W. Corman, LIMITATION OF ACTIONS, § 6.1, at

370 (1991). 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, 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 discharge). Moreover, no remedial authority

separate from the VA is involved in an initial

application for veterans’ benefits.3 The effective-date

Judge Dyk contends that the need for a separate remedial

authority is inconsistent with three cases purportedly establishing that “a statute governing the timeliness of a claim to an

agency for payment from that agency is a statute of limitations.”

Dyk Op. 7 (citing United States v. Williams, 514 U.S. 527, 534 &

n.7 (1995); Colvin v. Sullivan, 939 F.2d 153, 156 (4th Cir. 1991);

and Warren v. Off. of Pers. Mgmt., 407 F.3d 1309, 1316 (Fed. Cir.

2005)). None of these cases, however, addresses equitable tolling

of such statutes, let alone holds that they are entitled to Irwin’s

presumption. Instead, these cases merely use the phrase “statute

of limitations” briefly in dicta as a colloquial expression for a

statutory time limit. But as Williams readily demonstrates, the

fleeting and casual use of this phrase in no way establishes that

Irwin’s presumption applies to those time limits or that they can

be equitably tolled.

Williams concerns the same statutory provision (26 U.S.C.

§ 6511) revisited two years later in Brockamp. While equitable

tolling was not at issue in Williams, Brockamp raised the

question of whether § 6511 may be equitably tolled under Irwin.

Rather than concluding that Irwin’s presumption applies, the

Supreme Court carefully “assume[d] . . . only for argument’s

sake” that § 6511’s time limit was an Irwin-covered statute of

limitations. See Brockamp, 519 U.S. at 349–50; see also Auburn,

568 U.S. at 159. And even under that assumption, the Court nonetheless concluded that Congress did not intend for equitable tolling to apply to § 6511’s time limit. Brockamp, 519 U.S. at 350–54.

32a

provision in this case, then, is of a sufficiently different

character from that of statutes of limitations entitled

to Irwin’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, BLACK’S LAW DICTIONARY (11th ed. 2019). “Statutes of limitations are designed to encourage plaintiffs

to pursue diligent prosecution of known claims,” Cal.

Pub. Emps. Ret. Sys., 137 S. Ct. at 2049 (internal

quotation marks omitted), by “prescrib[ing] a period

within which certain rights . . . may be enforced,”

Young, 535 U.S. at 47. By barring stale claims,

statutes of limitations “assure fairness to defendants”

and “promote justice by preventing surprises through

the revival of claims that have been allowed to slumber.” See Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424,

428 (1965) (internal quotation marks omitted).

These cases, moreover, do not involve statutory provision

functionally similar to § 5110(b)(1), or otherwise establish a

background principle of law that would authorize a tribunal to

override § 5110(b)(1)’s express statutory limits on monetary governmental benefits. And unlike an initial application for veterans’ benefits, these cases implicate 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.

33a

To determine whether the functional characteristics

of a statute of limitations are met, the Supreme Court

has focused the inquiry on whether the statute at

issue encourages 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 period” for the IRS to collect

overdue, unpaid taxes from a taxpayer in bankruptcy

proceedings was a statute of limitations 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 priority4 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 priority 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 provisions: repose, elimination of stale

The bankruptcy priority scheme determines the order in

which claims are paid. Claims with higher priority are entitled

to payment in full before anything can be distributed to claims of

lower rank. See 1 Richard I. Aaron, Bankruptcy Law Fundamentals § 8:10 (2020 ed.).

34a

claims, and certainty about a plaintiff’s opportunity

for recovery and a defendant’s potential liabilities.” Id.

The Supreme Court also employed 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.” 455 U.S. at 394, 398

(internal quotation marks omitted).

By contrast, Lozano considered a time limitation

that did not function as a statute of limitations and

was therefore not subject to equitable-tolling principles. There, the Supreme Court declined to apply the

presumption of equitable tolling to a treaty provision

that did not did not “establish[] 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 requiring 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.” 572 U.S. at 4. After one year,

the child must still be returned to the left-behind

parent “unless it is demonstrated that the child is now

settled.” Id. at 15 (emphasis added). Expiration of the

one-year period thus “does not eliminate the remedy

[for] the left-behind parent namely, the return of the

child” and, instead, merely “opens the door” to consider

“the child’s interest” as well as the parent’s interest.

Id. at 14–15. Such a provision “is not a statute

of limitations,” the Court explained, because the

“continued availability of the return remedy after

one year preserves the possibility of relief for the leftbehind parent and prevents repose for the abducting

35a

parent.” Id. Moreover, the additional consideration of

the child’s interest is “not the sort of interest

addressed by a statute of limitations.” Id.; see also

In re Neff, 824 F.3d 1181, 1186–87 (9th Cir. 2016)

(holding that a statutory provision is not a statute of

limitations because it does not serve the purposes of

“repose, elimination of stale claims, and certainty”

and, instead, addressed unrelated policy concerns).5

The Court thus concluded that equitable tolling was

unavailable for the treaty provision at issue.

Similarly, in Hallstrom v. Tillamook County, the

Court determined that a provision requiring plaintiffs

to give notice 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. 493 U.S. at 27. The Court

explained: “Unlike a statute of limitations, [the] 60day notice provision is not triggered by the violation

giving rise to the action.” Id. (emphasis added).

Instead, plaintiffs “have full control over the timing

of their suit,” as “they need only give notice to the

appropriate [agency] and refrain from commencing

their action for at least 60 days. Id. The 60-day notice

period, therefore, did not encourage plaintiffs to

In Neff, the statutory provision at issue foreclosed discharge

in bankruptcy for debtors who improperly transferred property

“within one year” of filing a bankruptcy petition. 824 F.3d at

1183. The Ninth Circuit concluded that such a provision is not a

statute of limitations because it “is not designed to encourage a

specific creditor to prosecute its claim promptly to avoid losing

rights” and, in fact, “does not encourage (or require) a creditor

to take any action at all.” Id. at 1186. Moreover, the purpose of

the statute—to deter and penalize dishonest debtors from

“seeking to abuse the bankruptcy system”—concerned policy matters unrelated to “the sort of interest addressed by a statute of

limitations.” Id. at 1187 (citing Lozano, 572 U.S. at 15).

36a

diligently file claims or risk losing remedies for a

violation.

Here, as in Lozano and Hallstrom, § 5110(b)(1)’s

effective-date provision does not have the key “functional characteristics” 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, 562 U.S. 428, 431 (2011),

“[t]here is no statute of limitations” for filing such a

claim, Walters v. Nat’l Ass’n of Radiation Survivors,

473 U.S. 305, 311 (1985). The timing of when the

claim is filed affects only an element of the claim

itself—the effective date—and not whether the veteran is entitled to benefits at all. See Collaro v. West,

136 F.3d 1304, 1308 (Fed. Cir. 1998) (explaining that

“the effective date of the disability” is one of five

elements to a veteran’s application for benefits). A veteran is entitled to press the same claim for a specific

service-connected disability regardless of whether the

claim is filed within a year after discharge or 30

years after discharge, as was the case for Mr. Arellano.

Section 5110(b)(1), like the treaty provision in Lozano,

thus does not set forth any period after which a

veteran is foreclosed from pressing that claim and

receiving benefits if the claim is established.

The timing provision of § 5110(b)(1), in fact, does

not function to bar stale claims or encourage the diligent prosecution of known claims. To the contrary,

§ 5110(b)(1) was adopted to “remove[] injustices where

there is delay in filing [a] claim due to no fault of

the veteran and payment could otherwise be made

only from [the filing] date of [the] claim.” See 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

37a

immediate aftermath of a veteran’s transition back

to civilian life upon discharge from military service.

This provision is itself an equitable exception provided

by Congress to address injustices that may arise from

§ 5110(a)(1)’s default 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 statute of limitations, and (2)

the nature of § 5110(b)(1)’s effective-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 ongoing disability regardless of when the claim is

filed, a veteran will nonetheless lose out on retroactive

benefits dating 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 “similar” to the

statutory-lookback periods for copyright and patent

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

benefits claim for an ongoing disability, whereas an

ongoing course of infringement in Petrella and SCA

Hygiene comprises a “series of discrete infringing

acts,” each of which is a distinct harm giving rise to

38a

an independent claim for relief that starts a new

limitations period. See 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.” 572 U.S. at 671 (alteration in original)

(emphasis added). “In short, each infringing act starts

a new limitations period.” Id. (emphasis added). Subsequently, in SCA Hygiene, the Supreme Court

confirmed that the “same reasoning” from Petrella

applies to the six-year lookback period in the patent

damages statute, 35 U.S.C. § 286. As with copyright

infringement, each individual act of patent infringement gives rise to a discrete claim that starts its

own six-year limitations period for seeking a remedy

for that act. See 1 Robert A. Matthews, Jr., Annotated

Patent Digest § 9:2 (2021 ed.) (explaining that in a

series of discrete infringing acts, “each act . . . can

constitute its own separate act of [patent] infringement”). The lookback periods for copyright and patent

damages, therefore, function just as a traditional

statute of limitations would to foreclose pressing of

stale claims, while permitting timely claims to proceed.

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., 546 U.S. 500, 514 (2006)

(distinguishing an “essential element of a claim for

relief” from a jurisdictional statutory limitation). Mr.

39a

Arellano, moreover, has not demonstrated that a

single claim seeking benefits for a specific disability

can comprise two discrete claims for retrospective

and prospective benefits, each arising from a distinct

injury that starts its own limitations period. Nor is

there a basis for construing his claim in this manner,

given that retrospective and prospective benefits arise

from the same “five common elements” of a single

benefits claim: “[1] status as a veteran, [2] existence

of disability, [3] a connection between the veteran’s

service and the disability, [4] the degree of disability,

and [5] the effective date of the disability.” See Collaro,

136 F.3d at 1308. Thus, neither § 507(b)’s copyright

limitations period nor § 286’s patent limitations

period support finding that § 5110(b)(1) functions as a

statute of limitations amenable to equitable tolling.

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 limitations 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 bankruptcy) outside of the lookback period. See 535 U.S. at

47– 48. But the Supreme Court concluded it was “a

statute of limitations nonetheless” because any tax

debt accrued more than three years before the date of

the bankruptcy petition becomes fully dischargeable,

leading to the “elimination of stale claims.” Id. Expiration of the three-year lookback period therefore barred

the entirety of the IRS’s claim, just as a traditional

statute of limitations would. See id. at 47 (explaining

40a

that the lookback period functions as a statute of

limitations by barring “[o]ld tax claims” falling outside

the statutory period). Here, under § 5110(b)(1), disability compensation claims received within one year of

discharge are afforded an earlier effective date that

results in, at most, one year of retroactive benefits. But

unlike Young’s lookback period, passage of this oneyear period does not bar a veteran from attaining any

effective date at all and, instead, bars only an effective

date earlier than the date of receipt. The practical

effect of § 5110(b)(1), then, is not to foreclose a veteran

from all benefits but only from those retroactive from

the day his claim is received.

Mr. Arellano, however, offers the following variation

on Young: instead of having only one tax year at issue,

suppose 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 statute

of limitations nonetheless.” See Young, 535 U.S. at 48.

So too here, Mr. Arellano asserts, where filing a benefits claim after § 5110(b)(1)’s one-year grace period

merely affects the amount of benefits awarded without

barring the claim itself.

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

41a

in Mr. Arellano’s hypothetical corresponds to a separate IRS claim involving different facts and liabilities.

See, e.g., Young, 535 U.S. at 46 (three-year look-back

period applies to “claims” for unpaid taxes “for a

taxable year” (emphasis added)). In other words, “[i]f

the IRS has a claim for taxes for which the return was

due within three years before the bankruptcy petition

was filed,” then the IRS’s claim is protected and

“nondischargeable in bankruptcy.” Id. But if the claim

is for unpaid taxes from a return due more than three

years before the bankruptcy petition was filed, then

that individual claim is lost and dischargeable in

bankruptcy. Because the tax debt arising from each

tax year constitutes its own distinct claim against a

taxpayer, Young’s lookback period operates as any

other statute of limitations would to bar stale claims

arising from older tax years while providing remedies

for timely claims. See id. at 49 (the lookback period

“define[s] a subset of claims eligible for certain remedies” when a tax debtor is in bankruptcy (emphasis

added)). Accordingly, for the reasons discussed above,

Young’s lookback period fails to demonstrate that

§ 5110(b)(1) functions as a statute of limitations.

Section 5110(b)(1) also differs from statutes of

limitations 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 limitations that would

presumptively allow judicial override of express statutory limits on benefits payments under Irwin.

The “standard rule” is that a statute of limitations

begins to run when the cause of action “accrues,” i.e.,

when “the plaintiff has a ‘complete and present cause

42a

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, 312 U.S. 96, 98

(1941)); see also Wallace v. Kato, 549 U.S. 384, 388

(2007). Unless Congress indicates otherwise, “a cause

of action does not become ‘complete and present’ for

limitations purposes until the plaintiff can file suit

and obtain relief.” Bay Area Laundry, 522 U.S. at 201.

The earliest opportunity for a plaintiff to sue under

such circumstances is when the opposing party has

violated some duty owed to that plaintiff, such as

contractual obligations or a duty of care. See 1 Calvin

W. Corman, LIMITATION OF ACTIONS, § 6.1, at 370

(1991) (“The earliest opportunity for a complete and

present cause of action is that moment when the

plaintiff has suffered a legally recognizable harm at

the hands of the defendant, such as the time of

contract breach or the commission of a tortious

wrong.” (emphasis added)). In Bay Area Laundry, for

instance, the Supreme Court held that a cause of

action against an employer that withdraws from a

multiemployer pension plan is not complete, and

therefore the statute of limitations does not run, until

a demand for payment is made by the plan’s trustees

and rejected by that employer. 522 U.S. at 202. This

follows, the Court explained, because “the statute

makes clear that the withdrawing employer owes

nothing until its plan demands payment,” and absent

such a demand, the employer has no duty of payment

that could be violated to give rise to a cause of action.

See id. (emphasis added).

As applied to the veterans’ benefits context, the

earliest point at which a veteran could have a “complete and present 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

43a

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. See Jaquay v. Principi, 304 F.3d 1276, 1283

(Fed. Cir. 2002) (en banc) (citing Bailey v. West, 160

F.3d 1360 (Fed. Cir. 1998) (en banc)). But the one-year

period in § 5110(b)(1), beginning on the day after

discharge from service, does not measure the time

from harm caused by a breach of duty, or even from a

breach of duty, to the filing of the claim. This, together

with the fact that the claim is not made to a separate

entity with authority to address an asserted breach,

makes it unlikely that Congress conceived of this

timing rule as a statute of limitations for Irwin

purposes.

Indeed, in an initial application for disability

compensation where § 5110 governs the effective-date

determination, 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 prescribed by the Secretary . . . must be filed in

order for benefits to be paid or furnished to any individual under the laws administered by the Secretary.”

§ 5101(a)(1)(A) (emphasis 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

44a

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, 106 F.3d 1577, 1580

(Fed. Cir. 1997) (stating § 5101(a) requires that “a

claim must be on file before benefits may be obtained”).

Without a preexisting right, there can be no violation

of that right for which a veteran would seek redress,

which could then be barred if not pursued within a

specified limitations period. See Henry M. Hart, Jr. &

Albert M. Sacks, THE LEGAL PROCESS 136–37 (William

N. Eskridge, Jr. & Philip P. Frickey eds., 1994); id. at

137 (stating that it is wrong to “allow a primary right

to be confused with a remedial right of action, which

is a very different legal animal” and criticizing “confusion between a primary claim to a performance and

a remedial capacity to invoke a sanction for nonperformance”). Section 5110(b)(1)’s effective-date provision,

then, is of a different character than a statute of

limitations because the filing of a benefits claim is

not an action seeking a remedy for previously due, but

wrongfully unpaid, benefits. See Hallstrom, 493 U.S.

at 27 (holding that a statutory time limit is “[u]nlike a

statute of limitations” because it is not “triggered by

the violation giving rise to the action” and is therefore

not subject to equitable modification and cure).

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 initial 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

45a

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, 522 U.S. at 202 (“Absent a

demand, even a willing employer cannot satisfy its

payment obligation, for the withdrawing employer

cannot determine, or pay, the amount of its debt

until the plan has calculated that amount.”). Yet if

§ 5110(b)(1) were a statute of limitations as Mr.

Arellano and Judge Dyk contend, a claimant would

have a cause of action on the day after his discharge

from service—before any claim for benefits has been

filed and before the VA has made an initial determination on the claim with which the claimant could

disagree. “Such a result is inconsistent with basic limitations principles,” id. at 200, and we do not see how

a statute of limitations could begin to run on the day

after discharge.

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 constitutes 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 injury” is a statute of

limitations that begins to run on the date the first

symptom or manifestation of onset of the injury

claimed occurs. 654 F.3d 1322, 1340–44 (Fed. Cir.

2011) (en banc). The Vaccine Act’s 36-month filing

deadline, 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

46a

limitations that bars a plaintiff from seeking relief

from a tribunal once the specified time limit has

passed. Specifically, 42 U.S.C. § 300aa-16(a)(2) recites:

“if a vaccine-related injury occurred as a result of the

administration of such vaccine, 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

petition. 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, § 300aa16(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 redress 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 enacted the Vaccine Act to create a streamlined process to “stabilize the vaccine market and

47a

expedite compensation to injured parties.” Sebelius v.

Cloer, 569 U.S. 369, 372 (2013) (citing H.R. Rep. No.

99-908, at 4 (1986)). Payments awarded under the

Act are funded by the vaccine manufacturers themselves through an excise tax levied on each dose of

vaccine. See Bruesewitz v. Wyeth LLC, 562 U.S. 223,

239–40 (2011); H.R. Rep. No. 99-908, at 34 (excise tax

on vaccine manufacturers are intended to “generate

sufficient annual income for the Fund to cover all costs

of compensation”). However, the government (specifically, the Secretary of Health and Human Services)

administers the program and, in doing so, assumes

the preexisting legal duty owed to a claimant who

has suffered a vaccine-related injury. See 42 U.S.C.

§ 300aa-12(b)(1) (“In all proceedings brought by the

filing of a petition under [§] 300aa-11(b) of this title,

the Secretary shall be named as the respondent, shall

participate, and shall be represented.”).

While the Vaccine Act eases certain evidentiary

burdens 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 proceeding 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

48a

administrative context in which § 5110(b)(1) operates,

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

determines (in part) the total amount of benefits

awarded.

Our understanding of the functional distinction

between § 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.” See

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 392

(2006) (emphasis added). A statute of limitations pertains to the latter, but not the former, by establishing

a period for a veteran to seek a remedy for the violation

of a right to benefits. Section 5110(b)(1)’s effectivedate provision, on the other hand, is an element of the

veteran’s claim seeking benefits that pertains to the

creation of a right to benefits but not to the remedies

for violations of that right. Cf. Cloer, 654 F.3d at 1335

(explaining that § 300aa-11(c)(1)(D)(i)’s requirement a

claimant suffer the effects of a vaccine-related injury

for “more than 6 months after the administration of

the vaccine” is “a condition precedent to filing a petition for compensation” that “is intended to restrict

eligibility to the compensation program, not to act as

a statutory tolling mechanism for 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 furnished”

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.

49a

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

presumption to a statutory provision functionally

similar to § 5110(b)(1)—namely, one that does not

encourage the diligent prosecution of a claim by barring a claimant from seeking relief after the statutory

period elapses and, instead, establishes an element of

the claim itself. Instead, cases applying Irwin’s presumption have all involved a time limit that functions

as a statute of limitations by foreclosing a plaintiff

from seeking relief once that time has passed. See, 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

federal habeas relief); Scarborough v. Principi, 541

U.S. 401 (2004) (30-day deadline for filing an application for attorney’s fees under the Equal Access to

Justice Act); Bailey, 160 F.3d at 1363–64 (120-day

time limit to file notice of appeal with the Veterans

Court); Cloer, 654 F.3d at 1341–42 (36-month deadline

to file a petition under the Vaccine Act).

Mr. Arellano and Judge Dyk point to a statute

governing Social Security disability insurance benefits, 42 U.S.C. § 423(b), which states: “An individual

50a

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 application 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 declined to find

equitable exceptions available for this statutory

period. See Appellant’s Suppl. Br. 45–49; MilitaryVeterans 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 exceptions 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., 818 F.2d 8, 10

(6th Cir. 1987) (explaining that appellant was not

entitled to retroactive benefits from an earlier date

because she had not filed an application within 12

months of that date, and “filing is a substantive

condition of eligibility”); Sweeney v. Sec’y of Health,

Ed. & Welfare, 379 F. Supp. 1098, 1100 (E.D.N.Y.

1974) (declining to apply equitable exceptions based

on physical disability to award retroactive benefits

because “the filing of an application [is] a condition

precedent to payment of benefits”). While courts have

yet to analyze the availability of equitable tolling for

this statute under the Irwin framework, neither Mr.

Arellano nor amici argue that Irwin compels a different result. See Military-Veterans Advocates Amicus

Br. 10 (“Nonetheless, the reasoning of these courts

51a

points toward the conclusion that Irwin’s presumption

of equitable tolling would be rebutted in the context of

retroactive Social Security benefits under §§ 402(j) and

423.”).

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 establishing a statute of limitations for past

benefits. See Dyk Op. at 8. He cites a single district

court case for this proposition, see Begley v. Weinberger,

400 F. Supp. 901, 911 (S.D. Ohio 1975), which merely

opines in passing that § 423(b) is a “statute of limitations” for “retroactive disability insurance benefits.”

Begley, however, does not discuss equitable tolling,

and its holding does not rely on its characterization of

§ 423(b) as a statute of limitations. In the 46 years

since Begley was decided, no opinion has cited it for

the proposition that § 423(b) is a statute of limitations,

until Judge Dyk’s opinion in this appeal. Nor are we

aware of any other case characterizing § 423(b) as a

“statute of limitations.” Section 423(b) thus fails to

establish a background principle of equitable tolling

applicable to § 5110(b)(1).6

If § 423(b) were deemed a statute of limitations, as Judge

Dyk contends, such a determination would be a trailblazing

event, making equitable tolling potentially available (absent congressional intent otherwise) in large swaths of Social Security

cases involving retroactive benefits, contrary to what courts had

uniformly held pre-Irwin. 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

(assuming Irwin’s presumption has not been rebutted), thereby

52a

Mr. Arellano responds that a background principle

of law applying equitable tolling to functionally similar statutes is not necessary for Irwin’s presumption

to apply to § 5110(b)(1). Appellant’s Reply Br. 13–14.

He contends that Scarborough expressly rejected

any such requirement by explaining that “it is hardly

clear Irwin demands a precise private analogue,”

especially in “matters such as the administration of

benefits programs.” 541 U.S. at 422; see also id.

(“Because many statutes that create claims for relief

against the United States or its agencies apply only to

Government defendants, Irwin’s reasoning would be

diminished were it instructive only in situations with

a readily identifiable private-litigation equivalent.”

(emphasis added)). But seeking a background principle of law that demonstrates equitable tolling is not

exclusive to statutes of limitations is a far cry from

requiring a “precise private analogue.” Scarborough

itself is instructive on this point. There, the Supreme

Court considered whether a timely application for

attorneys’ fees under the Equal Access to Justice Act

(EAJA) may be amended after the 30-day filing deadline expired to cure a defect in the application. The

Court held that a curative amendment should be

allowed based on the “relation back” doctrine, which

permits a later amendment to relate back to the day of

the original filing under certain circumstances. In

doing so, the Court rejected an argument that the

relation back doctrine is limited to its codification in

the Federal Rules of Civil Procedure, which governs

only amended district court “pleadings” and not

EAJA fee applications. See id. at 417– 18. While not

requiring “a precise private [litigation] analogue,” the

opening the door for retroactive benefits in numerous different

statutory schemes.

53a

Court observed that (1) it had previously applied the

relation back doctrine in “analogous settings” to fee

applications; and (2) the doctrine itself predated the

Federal Rules and had “its roots in [the] former federal

equity 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 limitations that run

once a cause of action accrues, and Mr. Arellano 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 Irwin, 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-oflimitations language establishing when a plaintiff

must file an action against a defendant 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

distinct 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 limitations operates, the relevant

54a

“defendant” and “tribunal” for § 5110(b)(1) are one and

the same (the VA), and the “defendant” has yet to

violate any legal duty owed to the claimant 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 requirements 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 filing 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 petition before a federal

court and not an agency. See 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

defendant 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 employer,

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 context 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

55a

Congress, meaning we cannot presume that Congress

intended for this provision to carry the default feature

of equitable tolling. 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 equitably toll

such a statutory provision, Irwin’s presumption is

inapplicable to § 5110(b)(1)’s effective date provision.

Our reasoning here is consistent with Andrews’

longstanding holding that principles of equitable

tolling are inapplicable to the one-year period in

§ 5110(b)(1), see 351 F.3d at 1137–38, our equally

divided court today leaves that holding undisturbed.

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 unavailable because it is “inconsistent with the text

of the relevant statute.” Young, 535 U.S. at 49 (quoting

United States v. Beggerly, 524 U.S. 38, 48 (1998)).

“[T]he word ‘rebuttable’ means that the presumption

is not conclusive,” and “[s]pecific statutory language,

for example, could rebut the presumption by demonstrating Congress’ intent to the contrary.” John R.

Sand & Gravel Co., 552 U.S. at 137–38. Here, Irwin’s

presumption—were it to apply—would be rebutted by

Congress’ highly detailed statutory scheme dictating

specific legislative choices for when a veteran’s claim

may enjoy an effective date earlier than the date it

was received by the VA.

There are several ways to rebut the presumption

of equitable tolling, all of which seek to answer Irwin’s

“negatively phrased question: “Is there good reason to

believe that Congress did not want the equitable

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tolling doctrine to apply?” See Brockamp, 519 U.S. at

350. One way “is to show that Congress made the

time bar at issue jurisdictional.” Kwai Fun Wong, 135

S. Ct. at 1631. Another way is to demonstrate that

the statutory text precludes equitable tolling. See

Brockamp, 519 U.S. at 352; Beggerly, 524 U.S. at 48.

Additionally, the statutory history and administrative

context can demonstrate that Congress did not intend

for equitable tolling to apply. See Auburn, 568 U.S. at

159–60. We address each in turn.

Neither party here argues that § 5110(b)(1)’s effectivedate provision is jurisdictional. See 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 jurisdiction, 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, 562 U.S. at 438 (finding no clear

indication that Congress intended for § 7266(a)’s 120day filing deadline for Veterans Court appeals to be

jurisdictional where the statute “does not speak in

jurisdictional terms or refer in any way to the jurisdiction of the Veterans Court” (cleaned up)). Filing a

claim more than a year after discharge merely means

that a provision of § 5110 other than § 5110(b)(1)

governs the claim’s effective date.

But concluding that § 5110(b)(1)’s effective date

provision is nonjurisdictional does not end our inquiry

because “Congress may preclude equitable tolling

of even a nonjurisdictional 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 deadline given the

statutory history and administrative context); Nutraceu-

57a

tical Corp. v. Lambert, 139 S. Ct. 710, 714 (2019) (the

mere fact that a statutory provision “lacks jurisdictional force . . . does not render it malleable in every

respect,” for such provisions may nonetheless be “mandatory” and “not susceptible [to] equitable [tolling]”).

“Whether a rule precludes equitable tolling turns not

on its jurisdictional character but rather on whether

the text of the rule leaves room for such flexibility.” Id.

(emphasis added). We therefore look to the statutory

text to discern whether Congress intended to displace

the general availability of equitable tolling with its

own preferred regime of concrete deadlines.

Section 5110 begins with the default rule: “Unless

specifically 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 requirement 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

asserting 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, additional benefits accruing up

to one year before the VA receives 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 reading

of § 5110 is that Congress implicitly intended to

preclude the general availability of equitable tolling

by explicitly including a more limited, specific selection of equitable circumstances under which a veteran

is entitled to an earlier effective date and specifying

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the temporal extent of the exceptions for those circumstances. See TRW Inc. v. Andrews, 534 U.S. 19, 28

(2001). In other words, the text of § 5110 makes clear

that Congress did not intend for the VA or the courts

to create additional exceptions other than those choices

it “specifically provided” in the statute. Because none

of § 5110’s specifically enumerated exceptions, nor any

other provision “of this chapter,” provide for equitable

tolling of § 5110(b)(1)’s one-year period, such tolling is

unavailable as it is not “specifically provided” for “in

this chapter.”

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. Specifically, 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 presented [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

“emphatic,” did not render the filing deadline at issue

jurisdictional and foreclosed from equitable tolling.

Kwai Fun Wong, 135 S. Ct. at 1632–33. But this

argument misses the mark. Kwai Fun Wong stands for

the unremarkable proposition that Irwin’s presumption is not rebutted merely because the statutory

text “reads like an ordinary, run-of-the-mill statute of

limitations” to bar relief unless a claim is brought

within a specified amount of time. Id. at 1633 (quoting

Holland, 560 U.S. at 647). Holding otherwise would

have effectively eviscerated Irwin’s presumption

because, as the Court explained, most statutes of

limitations are framed in that manner. Id. at 1632.

The Court clarified that “Congress must do something

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special, beyond setting an exception-free deadline,” to

prohibit a court from equitably tolling the deadline. Id.

Congress did just that here: not only is § 5110(b)(1)’s

one-year period itself an exception to the default

effective-date rule, § 5110 further provides numerous

other detailed, technical exceptions to the default

effective-date rule, thereby creating a catalog of congressional choices that foreclose courts from recognizing any additional, unwritten exceptions.

Indeed, § 5110’s enumeration of a wide range of

specific exceptions to the default rule hews closer to

the “highly detailed” and “technical” exceptions that

foreclosed equitable tolling in Brockamp than to Kwai

Fun Wong’s “fairly simple language [that] can often

[be] plausibly read as containing an implied ‘equitable

tolling’ exception.” Brockamp, 519 U.S. at 350. At issue

in Brockamp was a statute reciting time limits for

taxpayers to file tax refund claims. Just as with

§ 5110, the Brockamp statute provided a default rule

with “basic time limits” for filing such claims, followed

by “very specific exceptions” establishing “special time

limit rules” for certain claims relating to precise

circumstances (“operating losses, credit carrybacks,

foreign taxes, self-employment taxes, worthless securities, and bad debts”). Id. at 351–52. The Court

concluded that the statute’s “detail, its technical

language, the iteration of the limitations in both

procedural and substantive forms, and the explicit

listing of exceptions, taken together, indicate . . . that

Congress did not intend courts to read other unmentioned, open-ended, ‘equitable’ exceptions into the statute that it wrote,” thereby rebutting the presumption

of equitable tolling. Id. at 352. The same reasoning

applies here, where Congress has explicitly provided

more than a dozen detailed exceptions to § 5110(a)(1)’s

default rule prohibiting an effective date earlier than

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the date of receipt. And “[w]here Congress explicitly

enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the

absence of a contrary legislative intent.” TRW, 534

U.S. at 28 (quoting Andrus v. Glover Constr. Co., 446

U.S. 608, 616–17 (1980))7; see also Rotkiske v. Klemm,

140 S. Ct. 355, 360–61 (2019) (“[i]t is a fundamental

principle of statutory interpretation that absent provisions cannot be supplied by the courts” because doing

so “is not a construction of a statute, but, in effect, an

enlargement of it by the court” (internal quotation

marks omitted)).

The implication that § 5110’s explicitly enumerated

exceptions preclude the judicial recognition of additional equitable exceptions can, of course, be overcome

by “contrary legislative intent.” See TRW, 534 U.S. at

28 (quoting Andrus, 446 U.S. at 616–17). But we see

nothing in the statutory text, structure, or history that

persuades us that such an intent exists for § 5110. To

the contrary, § 5110’s enumerated exceptions confirm

that Congress has already considered which equitable

considerations may provide a retroactive effective date

and declined to provide the relief Mr. Arellano seeks.

These exceptions cover specific circumstances beyond

the veteran’s control that may delay the filing of

Mr. Arellano also argues that the principle of statutory construction quoted from TRW applies only where it would render

one of those exceptions insignificant or superfluous. 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. See Andrus,

446 U.S. at 616–17 (declining to recognize an additional exception

where statute recites explicitly enumerated exceptions to a general prohibition, even where no other exception would be rendered superfluous by the addition); United States v. Smith, 499

U.S. 160, 166 (1991) (same).

61a

a claim, such as: discharge from the military,

§ 5110(b)(1); increase in the severity of a disability,

§ 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).8

More importantly, § 5110(b)(4) addresses the precise

circumstances that prevented Mr. Arellano—a “veteran who is permanently and totally disabled”—from

filing his claim earlier, but in the context of disability pension, see 38 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 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.”

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 eliminate equitable tolling” generally as to disability

compensation. 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 disability

severity, or even discharge from military service do not likewise

“speak to equitable tolling.” Judge Dyk appears to argue that

Irwin’s presumption may not be rebutted 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

enumerated exceptions in Brockamp satisfy his heightened

standard for rebutting Irwin’s presumption.

62a

This provision demonstrates that Congress considered

the very circumstances 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 secondguess 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,

Congress 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. See Rotkiske, 140 S. Ct. at 361; cf. Hamdan

v. Rumsfeld, 548 U.S. 557, 578 (2006) (“A familiar

principle of statutory construction . . . is that a

negative inference may be drawn from the exclusion

of language from one statutory provision that is

included in other provisions of the same statute.”).

We therefore decline, as the Supreme Court did in

Brockamp, to read additional, unwritten equitable

exceptions into the statute.

Though we need not loo

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