Amicus Curiae Brief — Adolfo R. Arellano, Petitioner v. Denis R. McDonough, Secretary of Veterans Affairs
Supreme Court briefMay 20, 2022
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No. 21-432
In the Supreme Court of the United States
ADOLFO R. ARELLANO,
v.
PETITIONER,
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS,
RESPONDENT.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE FEDERAL CIRCUIT
BRIEF OF EDGEWOOD VETERANS, NATIONAL VETERANS ORGANIZATIONS, PARALYZED VETERANS OF
AMERICA, AARP, AND AARP FOUNDATION AS AMICI
CURIAE IN SUPPORT OF PETITIONER
RENÉE A. BURBANK
NATIONAL VETERANS
LEGAL SERVICES PROGRAM
1600 K Street N.W., Ste 500
Washington DC 20006
Renee.Burbank@nvlsp.org
LIAM J. MONTGOMERY
Counsel of Record
CHARLES L. MCCLOUD
D. SHAYON GHOSH
ANNA JOHNS HROM
TIMOTHY PELLEGRINO
WILLIAMS & CONNOLLY LLP
680 Maine Avenue, S.W.
Washington, DC 20024
(202) 434-5000
LMontgomery@wc.com
Counsel for Amici Curiae
(additional counsel listed on inside cover)
DIANE BOYD RAUBER
NATIONAL ORGANIZATION
OF VETERANS’ ADVOCATES
1775 Eye Street, N.W.
Ste. 1150
Washington, DC 20006
DRauber@vetadvocates.org
WILLIAM A. RIVERA
DEAN C. GRAYBILL
AARP FOUNDATION
601 E Street, N.W.
Washington, DC 20049
WARivera@aarp.org
LEONARD J. SELFON
LINDA E. BLAUHUT
PARALYZED VETERANS OF
AMERICA
801 18th Street, N.W.
Washington, DC 20006
LenS@pva.org
TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE ..................................... 1
SUMMARY OF THE ARGUMENT ................................. 3
ARGUMENT ......................................................................... 5
I.
Without equitable tolling, veterans suffer. ............ 5
A. Andrews prevents courts from remedying
even the most egregious circumstances. ........ 6
1.
“The place God forgot.” ................... 6
2.
Mr. Taylor. ......................................... 8
3.
Mr. Raybine. .................................... 11
B. Many factors can prevent veterans from
seeking benefits within a year of their
discharges. ........................................................ 13
II.
1.
The very mental and physical
injuries that necessitate benefits
may cause veterans to miss
the one-year time limit. .................. 14
2.
Andrews compounds veterans’
suffering from military sexual
trauma. ............................................. 17
3.
The VA itself can cause veterans
to miss the presumptive cutoff...... 20
4.
Without equitable tolling,
veterans’ families and caregivers
also needlessly suffer. .................... 21
Depriving veterans of equitable tolling
contravenes the veterans’ disability benefits
scheme. ..................................................................... 22
(I)
II
A. Andrews flouts law favoring veterans. ......... 22
B. Permitting equitable tolling dovetails with
the doctrines that favor veterans. ................. 24
C. Andrews treats veterans worse than other
litigants. ............................................................. 25
CONCLUSION ................................................................... 26
III
TABLE OF AUTHORITIES
Page
Cases:
Andrews v. Principi,
351 F.3d 1134 (Fed. Cir. 2003) ............................ passim
Apgar v. McDonald,
No. 14-2212, 2015 WL 4953050
(Vet. App. Aug. 20, 2015) .................................. 16, 20, 21
Boone v. Lightner, 319 U.S. 561 (1943) ............................ 23
Butler v. Shinseki, 603 F.3d 922 (Fed. Cir. 2010) ..... 20, 21
Cloer v. Sec’y of Health & Hum. Servs.,
654 F.3d 1322 (Fed. Cir. 2011) ..................................... 26
Ford v. McDonald,
No. 15-3306, 2016 WL 4137532
(Vet. App. Aug. 3, 2016) .......................................... 16, 21
Henderson ex rel. Henderson v. Shinseki,
562 U.S. 428 (2011) .................................................... 5, 23
Irwin v. Dep’t of Veterans Affs.,
498 U.S. 89 (1990) .......................................................... 25
Johnson v. Robison, 415 U.S. 361 (1974) ......................... 23
Kappen v. Wilkie,
No. 18-3484, 2019 WL 3949462
(Vet. App. Aug. 22, 2019) .............................................. 16
Martin v. O’Rourke,
891 F.3d 1338 (Fed. Cir. 2018) ..................................... 10
Raybine v. Wilkie, 31 Vet. App. 419 (2019) ..................... 21
Ross v. Wilkie,
No. 18-2845, 2019 WL 2291486
(Vet. App. May 30, 2019) .............................................. 16
Savage v. Wilkie,
No. 18-6687, 2020 WL 1846012
(Vet. App. Apr. 13, 2020) ........................................ 16, 21
Sebelius v. Auburn Reg’l Med. Ctr.,
568 U.S. 145 (2013) ........................................................ 24
IV
Page
Cases—continued:
Shinseki v. Sanders, 556 U.S. 396 (2009) ......................... 23
Smith v. McDonald,
No. 14-1400, 2015 WL 402632
(Vet. App. Jan. 30, 2015) ............................................... 17
Taylor v. Wilkie (Taylor I),
31 Vet. App. 147 (2019) ................................................. 10
Taylor v. McDonough (Taylor II),
3 F.4th 1351 (Fed. Cir. 2021) .............................. passim
Taylor v. McDonough (Taylor III),
4 F.4th 1381 (Fed. Cir. 2021) ................................... 8, 11
Tilton v. Mo. Pac. R.R. Co., 376 U.S. 169 (1964)....... 23, 26
United States v. Oregon, 366 U.S. 643 (1961) .................. 23
Viet. Veterans v. CIA (Viet. Veterans I),
288 F.R.D. 192 (N.D. Cal. 2012) .............................. 7, 10
Viet. Veterans v. CIA (Viet. Veterans II),
811 F.3d 1068 (9th Cir. 2016) ..................................... 7, 8
Walters v. Nat’l Ass’n of Radiation Survivors,
473 U.S. 305 (1985) .................................................... 5, 23
Wise v. Shinseki, 26 Vet. App. 517 (2014) ........................ 24
Statutes:
38 U.S.C.
§ 1720D............................................................................ 17
§ 5103A ............................................................................ 24
§ 5107 ............................................................................... 24
§ 5110 ...................................................................... passim
§ 6303 ......................................................................... 20, 26
National Childhood Vaccine Injury Act of 1986,
Pub. L. No. 99-660, 100 Stat. 3756
(codified as amended at 42 U.S.C. § 300aa-16) .......... 25
V
Page
Other Authorities:
AARP & National Alliance for Caregiving,
Caregiving in the U.S. 2020: A Focused Look
at Family Caregivers of Adults Age 18 to 49
(2020) ............................................................................... 22
Kathryn K. Carroll et al., Negative Posttraumatic
Cognitions Among Military Sexual Trauma
Survivors, J. Affective Disorders, Oct. 1, 2018 ......... 20
Kaitlin A. Chivers-Wilson, Sexual Assault and
Posttraumatic Stress Disorder: A Review of
the Biological, Psychological and Sociological
Factors and Treatments,
9 McGill J. Med. 111 (2006) .......................................... 18
Comm. to Evaluate the Dep’t of Veterans Affs.
Mental Health Servs., Nat’l Acads. of Scis.,
Eng’g, & Med., Evaluation of the Department
of Veterans Affairs Mental Health Services
(2018) ............................................................................... 19
Hector A. Garcia et al., A Survey of Perceived
Barriers and Attitudes Toward Mental
Health Care Among OEF/OIF Veterans at VA
Outpatient Mental Health Clinics,
179 Mil. Med. 273 (2014) ............................................... 20
Amanda K. Gilmore et al., Military Sexual
Trauma and Co-Occurring Posttraumatic
Stress Disorder, Depressive Disorders, and
Substance Use Disorders Among Returning
Afghanistan and Iraq Veterans, Women’s
Health Issues, Sept.–Oct. 2016 .................................... 19
VI
Page
Other Authorities—continued:
Kaylee R. Gum, Military Sexual Trauma and
Department of Veterans Affairs Disability
Compensation for PTSD: Barriers,
Evidentiary Burdens and Potential
Remedies,
22 Wm. & Mary J. Women & L. 689 (2016) ......... 18, 19
H.R. Rep. No. 100-963 (1988),
reprinted in 1988 U.S.C.C.A.N. 5782 .......................... 23
Roland Hart & Steven L. Lancaster,
Identity Fusion in U.S. Military Members,
45 Armed Forces & Soc’y 45 (2019) ............................ 14
Justice Scalia Headlines the Twelfth CAVC
Judicial Conference, Veterans L.J. 1
(Summer 2013) ............................................................... 24
Rachel Kimerling et al., Military Sexual Trauma
and Patient Perceptions of Veteran Health
Administration Health Care Quality,
Women’s Health Issues S145 (2011) ..................... 18, 19
Letter from Virginia S. Penrod, Acting Under
Secretary of Defense, to Hon. Adam Smith,
Chairman, Comm. on Armed Servs., U.S.
House of Representatives (May 6, 2021) ................... 18
Lisa K. Lindquist et al., Traumatic Brain Injury
in Iraq and Afghanistan Veterans: New
Results from a National Random Sample
Study, 29 J. Neuropsychiatry & Clin.
Neuroscience 254 (2017) ............................................... 15
Meaghan C. Mobbs & George A. Bonanno,
Beyond War and PTSD: The Crucial Role of
Transition Stress in the Lives of Military
Veterans, 59 Clin. Psych. Rev. 137 (2018) .................. 14
VII
Page
Other Authorities—continued:
News Desk, Secrets of Edgewood, New Yorker
(Dec. 21, 2012) .................................................................. 6
S. Rep. No. 94-755, bk. I (1976) ........................................... 7
Ranak B. Trivedi et al., Prevalence, Comorbidity,
and Prognosis of Mental Health Among US
Veterans, 105 Am. J. Pub. Health 2564 (2015) .......... 15
U.S. Dep’t of Defense, Annual Report on Sexual
Assault in the Military (2019) .................................... 18
U.S. Dep’t of Veterans Affs., 2022 Veterans
Disability Compensation Rates,
https://tinyurl.com/ybfa9bb5........................................ 16
U.S. Dep’t of Veterans Affs. Board of Veterans’
Appeals, Annual Report Fiscal Year 2021 .......... 21, 24
U.S. Dep’t of Veterans Affs., Military Sexual
Trauma (MST), https://tinyurl.com/uxl7929 ............ 17
U.S. Dep’t of Veterans Affs., Public Health:
Edgewood/Aberdeen Experiments,
https://tinyurl.com/ya67e8wr ......................................... 6
Veterans Health Admin., Dep’t of Veterans Affs.,
VHA Directive 1115(1): Military Sexual
Trauma (MST) Program (2021) .................................. 19
Kayla Williams, Ctr. for a New Am. Sec.,
Supporting Survivors of Military Sexual
Trauma: VA Must Redouble Efforts to
Improve (2020) ............................................................... 19
INTEREST OF AMICI CURIAE1
Amici curiae are veterans and advocates for veterans
and older adults who are all too familiar with the injustices
disabled veterans can encounter when applying for congressionally mandated veterans’ disability benefits. Federal Circuit precedent—specifically, Andrews v. Principi,
351 F.3d 1134 (Fed. Cir. 2003)—exacerbates these injustices by precluding equitable tolling of 38 U.S.C. § 5110(b)
in even the most egregious of circumstances. This precedent and the injustices it generates require correction.
Messrs. Bruce R. Taylor and Charles J. Raybine are
two Vietnam-era U.S. Army veterans who merit equitable
tolling. Each sacrificed their minds and their bodies for
their country when they were subjected to cruel, inhumane, and unethical chemical testing at Edgewood Arsenal, Maryland. While at Edgewood, the Army required
both Messrs. Taylor and Raybine to sign secrecy oaths
that threatened each with criminal prosecution if they discussed Edgewood with anyone, including their doctors.
Both were subjected to a battery of chemical tests and
were severely injured as a result.
Despite their injuries, both were prevented from applying for veterans’ benefits until the government lifted
its threat of criminal prosecution in 2006. Messrs. Taylor
and Raybine have since applied for veterans’ benefits but
Appellant and Appellee have both consented to the filing of this
brief. Pursuant to Rule 37.6, amici affirm that no counsel for a party
authored this brief in whole or in part and that no person other than
amici or their counsel have made any monetary contributions intended to fund the preparation or submission of this brief.
1
(1)
2
have been unable to receive the benefits Congress intended them to receive—benefits from their respective
dates of discharge—because Andrews precludes equitable tolling.2
Messrs. Taylor’s and Raybine’s cases represent just
two particular examples of an injustice that potentially affects many of the hundreds of thousands of veterans that
the National Veterans Legal Services Program
(“NVLSP”), the National Organization of Veterans’ Advocates (“NOVA”), the Paralyzed Veterans of America
(“PVA”), AARP, and AARP Foundation serve and represent.
Founded in 1981, NVLSP has worked to ensure that
the government delivers to our nation’s veterans the benefits to which they are entitled based on injuries incurred
during their military service. NVLSP also publishes the
Veterans Benefits Manual, the authoritative guide for
veterans advocates, and provides pro bono representation
to veterans across the country.
NOVA is a not-for-profit educational membership organization that was incorporated in 1993. It includes
nearly 750 accredited attorneys and agents that represent
veterans before the VA and federal courts. NOVA’s bylaws include as its purpose the development of veterans’
law and procedure through participation as amicus curiae. NOVA works to develop high standards of service
and representation for all people seeking veterans’ benefits.
The Federal Circuit heard Mr. Taylor’s case en banc in February
2022. It stayed his case pending the outcome of this case. See Taylor
v. McDonough, No. 19-2211 (Fed. Cir.), ECF No. 91. Mr. Raybine’s
case is pending before a panel of the Federal Circuit. See Raybine v.
McDonough, No. 20-1218 (Fed. Cir.).
2
3
PVA is a national, congressionally chartered veterans
service organization headquartered in Washington, D.C.
PVA’s mission is to employ its expertise, developed since
its founding in 1946, on behalf of veterans of the armed
forces who have experienced a spinal cord injury or disorder (“SCI/D”). PVA seeks to improve the quality of life
for veterans and all people with SCI/D through its medical
services, benefits, legal services, advocacy, sports and recreation, architecture, and other programs. PVA advocates for quality health care, research and education addressing SCI/D, benefits based on its members’ military
service, and for civil rights, accessibility, and opportunities that maximize independence for its members and all
veterans and citizens with disabilities. PVA has nearly
16,000 members, all of whom are military veterans living
with catastrophic disabilities, and it provides representation to its members and other veterans throughout the VA
claims process and in the federal courts, including the
United States Supreme Court.
AARP is the nation’s largest nonprofit, nonpartisan
organization dedicated to empowering Americans 50 and
older to choose how they live as they age. Among its members are hundreds of thousands of American retirees that
previously served in the U.S. military. AARP’s charitable
affiliate, AARP Foundation, works to end senior poverty
by helping vulnerable older adults build economic opportunity and social connectedness. AARP and the Foundation regularly serve as amici curiae in the courts of the
United States on matters that impact older adults, including veterans.
SUMMARY OF THE ARGUMENT
Particularly during times of armed conflict, many veterans sacrifice their minds and bodies for this country.
These veterans and their families depend on the disability
4
benefits that they earned—and that can be a matter of life
or death. But unfortunately, for some veterans, the same
disabilities that earned them those benefits can prevent
them from pursuing them. Of course, one would assume
that the veterans’ benefits scheme would account for such
circumstances—that courts, for instance, would exercise
their equitable powers in such circumstances to toll filing
deadlines to ensure veterans receive what Congress intended. But that assumption is incorrect under Andrews.
The experiences of Messrs. Bruce R. Taylor and
Charles J. Raybine acutely illustrate Andrews’ harsh effect. Both of these Vietnam-era veterans survived the
Army’s dangerous, unethical, and inhumane chemical
testing on unsuspecting volunteers at Edgewood Arsenal,
Maryland. The Army required Messrs. Taylor and
Raybine and thousands of others to sign secrecy oaths at
Edgewood before subjecting them to some of the most
toxic chemicals in the U.S. military’s inventory. These
horrific experiments inflicted mental and physical injuries
on them, but neither could seek disability benefits for decades: Their secrecy oaths threatened criminal prosecution if they discussed their experiences with anyone, including their doctors. Even today, long after the government’s threat has abated, these veterans remain unable to
receive the benefits Congress appropriated for them because the Federal Circuit precludes equitable tolling for
veterans.
Unfortunately, Messrs. Taylor and Raybine do not
stand alone. Traumatic brain injuries, severe psychological damage, and feelings of alienation as a result of military sexual trauma are some of the many obstacles that
can prevent veterans from timely filing for benefits. And
importantly, as Mr. Arellano’s case makes plain, depriving these veterans of the benefits they earned impacts not
5
merely those who sacrificed their minds and their bodies
for their country. It also affects their families and caregivers, who must step up in the government’s absence.
These circumstances would be troubling in any context. What is especially jarring here, however, is that Andrews treats veterans worse than other similarly situated
litigants. By doing so, the Federal Circuit has turned this
Court’s caselaw on its head. Congress’s desire to “provide[] for him who has borne the battle” is readily apparent. Walters v. Nat’l Ass’n of Radiation Survivors, 473
U.S. 305, 309 (1985) (citation omitted). This Court has
been clear that Congress designed the veterans’ benefits
scheme to be friendly and deferential to veterans. Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 431,
440–41 (2011).
The law demands that veterans like Messrs. Taylor,
Raybine, and Arellano be able to at least make a case for
equitable tolling. This Court should right this wrong by
reversing the judgment below.
ARGUMENT
I.
Without equitable tolling, veterans suffer.
Section 5110(b)(1) dates a service-disabled veteran’s
benefits to her discharge or release if the VA receives her
application for benefits “within one year from such date of
discharge or release.” If the veteran files after this oneyear period, the effective date of any benefits awarded
“shall not be earlier than the date of receipt of application
therefor.” 38 U.S.C. § 5110(a)(1).
In Andrews, a panel of the Federal Circuit held that
“principles of equitable tolling . . . are not applicable to the
time period in § 5110(b)(1).” 351 F.3d at 1137–38. Relying
on that precedent, which the Federal Circuit left intact in
6
its en banc decision in this case, the Board of Veterans’
Appeals and the Veterans Court for decades have denied
equitable tolling to every service-disabled veteran without
exception. That blanket policy has had disastrous effects
for veterans.
A.
Andrews prevents courts from remedying even
the most egregious circumstances.
1.
“The place God forgot.”
Nicknamed “the place God forgot,”3 the U.S. Army
Laboratories at Edgewood, Maryland, represent an atrocious chapter in American history. As the VA’s own website recounts, “[f]rom 1955 to 1975, the U.S. Army Chemical Corps conducted classified medical studies at Edgewood Arsenal, Maryland.” U.S. Dep’t of Veterans Affs.,
Public Health: Edgewood/Aberdeen Experiments,
https://tinyurl.com/ya67e8wr (last visited May 17, 2022).
The chemicals the Army used on 7,000 unwitting volunteers included sarin nerve gas, mustard agents, nerve
agent antidotes, psychoactive agents like LSD or PCP,
and riot control agents. Id.
The VA now admits that some “volunteers exhibited
certain symptoms at the time of exposure” to these toxins.
Id. And it invites veterans subjected to these tests to “file
a claim for disability compensation for health problems
they believe are related to exposures during Edgewood . . . chemical tests,” in part because “[l]ong-term
psychological effects are possible from the trauma associated with being a human test subject.” Id.
News Desk, Secrets of Edgewood, New Yorker (Dec. 21, 2012),
https://tinyurl.com/2p88k6n2.
3
7
But many Edgewood veterans who suffered from
these symptoms did not seek benefits immediately following their discharge because the Army enforced their silence. As a 2011 Department of Defense memorandum
acknowledges, “non-disclosure restrictions, including secrecy oaths,” associated with the Edgewood Program “inhibited” these “chemical or biological agent research volunteers” from seeking VA disability benefits. Viet. Veterans v. CIA (Viet. Veterans I), 288 F.R.D. 192, 199–200
(N.D. Cal. 2012); see also S. Rep. No. 94-755, bk. I, at 418
(1976). Each participant agreed to “not divulge or make
available any information related to U.S. Army Intelligence Center interest or participation in the . . . Army
Medical Research Volunteer Program to any individual,
nation, organization, business, association, or other group
or entity, not officially authorized to receive such information.” S. Rep. No. 94-755, supra, at 418. The inhibition
to which the Defense Department memorandum referred
included criminal prosecution, dishonorable discharge,
and jail time. See id.
Edgewood has been condemned at all levels. As early
as 1976, a committee of the U.S. Senate rebuked the
Edgewood program, noting that the “disregard for the
well-being of subjects during drug testing is inexcusable”
and “the absence of any comprehensive long-term medical
assistance for the subjects of these experiments is not
only unscientific; it is unprofessional.” Id. In 1979, the
Army’s General Counsel recognized “mounting public
concern about the long-term effects” of experiments like
those at Edgewood and “concluded that, as a policy matter, some type of notification program is necessary.” Viet.
Veterans v. CIA (Viet. Veterans II), 811 F.3d 1068, 1073
(9th Cir. 2016). She wrote that the Government could “be
held to have a legal duty to notify those . . . drug-testing
8
subjects whose health [it] has reason to believe may still
be adversely affected by their prior involvement in [the]
drug-testing program.” Id. (alterations in original).
But it took nearly three decades for the government
to fulfill that “legal duty,” long after many Edgewood survivors had passed away. In 2006, the VA finally sent letters to Edgewood veterans informing them that the Department of Defense had partially released them from
their secrecy oaths. Taylor v. McDonough (Taylor II), 3
F.4th 1351, 1358 (Fed. Cir.), vacated, reh’g en banc
granted, 4 F.4th 1381 (Fed. Cir. 2021) (Taylor III). But
that only went so far: Andrews effectively rewarded the
government’s misconduct by ensuring that those benefits
could start only as of the date a veteran applied for benefits once the veteran had received the VA’s belated notification.
2.
Mr. Taylor.
Mr. Taylor was at his mother’s side when, in the summer of 1968, she learned that her older son had been killed
in action in Vietnam. Claimant-Appellant’s En Banc Br.
8, Taylor v. McDonough, No. 19-2211 (Fed. Cir. Sept. 20,
2021), ECF No. 41. Although his brother’s death exempted Mr. Taylor from service in Vietnam, he felt dutybound to enlist. Id. at 9. He joined the Army in January
1969, at the age of 17. Id.
While Mr. Taylor was assigned to the 608th Ordnance
Company in Fort Benning, Georgia, the Army requested
volunteers for the testing program at Edgewood Arsenal.
Id. He volunteered because he thought that was where
the Army needed him most. Id.
After undergoing a psychological evaluation, Mr. Taylor reported to Edgewood in August 1969. Id. Upon Mr.
Taylor’s arrival at Edgewood, the Army subjected him to
9
a separate series of psychological tests and required him
to sign a secrecy oath. Id. The Army then exposed him
to some of the deadliest chemicals in the government’s
stockpile. Id. These compounds included, among others,
EA-3580, a nerve agent similar to sarin and VX gas, and
EA-3547, a tear gas agent. Id. at 9–10. According to the
Army’s own records, these human experiments caused
Mr. Taylor to suffer “hallucinations, nausea, jumpiness,
irritability, sleepiness, dizziness, impaired coordination,
and difficulty concentrating.” Taylor II, 3 F.4th at 1357–
58 (citation omitted).
As if this were not enough, however, upon returning to
his unit, the Army deployed Mr. Taylor to Vietnam, where
he served two combat tours. Id. at 1358. While in service,
Mr. Taylor suffered continuing symptoms from the Edgewood experiments. Id. When he sought treatment for
those symptoms, medical personnel treated him as a liar
and a malingerer because the secrecy oath prevented him
from discussing the experiments that had caused them.
Claimant-Appellant’s En Banc Br. 12, Taylor v.
McDonough, No. 19-2211 (Fed. Cir. Sept. 20, 2021), ECF
No. 41. The Army honorably discharged Mr. Taylor in
1971. Id.
For decades afterwards, Mr. Taylor battled PTSD and
major depressive disorder. Taylor II, 3 F.4th at 1358–59.
But he suffered in silence because the Army had forced
him to sign “an oath vowing not to disclose his participation in or any information about the study, under penalty
of court martial or prosecution.” Id. at 1373 (citation omitted). Mr. Taylor reasonably believed that oath to bar him
from seeking disability benefits from the VA. Id. Even if
he had sought benefits, the continued secrecy of the Edgewood Program would have prevented him from providing
10
evidence of his participation. Id. at 1359; see also Viet.
Veterans I, 288 F.R.D. at 199–200.
This went on for 35 years until the VA finally informed
Mr. Taylor in June 2006 that the Department of Defense
had granted Edgewood veterans permission to apply for
benefits. Taylor II, 3 F.4th at 1358. Mr. Taylor filed a pro
se claim for service-connected PTSD in February 2007.
Id. The VA’s own examiner acknowledged in June 2007
that Mr. Taylor’s symptoms were “a cumulative response
to his participation as a human subject in the Edgewood
Arsenal experiments and subsequent re-traumatization in
Vietnam”—symptoms he had experienced since discharge. Id. at 1358–59. But the VA awarded benefits only
as of February 2007, the date of his initial application. Id.
at 1359.
The delays endemic to the veterans’ benefits system
then imposed another decade of suffering and delay on
Mr. Taylor. See Martin v. O’Rourke, 891 F.3d 1338, 1341–
42 (Fed. Cir. 2018). When the Veterans Court finally decided his appeal in 2019, it recognized that Mr. Taylor
“‘felt constrained from filing for VA benefits by secrecy
agreements’ until he received VA’s letter” and that he felt
he was “precluded from obtaining disability benefits because the U.S. Government withheld necessary supporting evidence due to secrecy issues” for more than three
decades. Taylor v. Wilkie (Taylor I), 31 Vet. App. 147,
150 (2019) (citation omitted). According to the Veterans
Court, however, this egregious wrong had no remedy:
Citing Andrews, the court held that it could not equitably
toll the effective date of Mr. Taylor’s benefits award. Id.
at 154–55. The Federal Circuit panel, bound by Andrews,
agreed. Taylor II, 3 F.4th at 1372 n.13.
11
The Federal Circuit panel did, however, grant Mr.
Taylor the benefits he sought under the doctrine of equitable estoppel, because “the Government has affirmatively and intentionally prevented veterans such as Mr.
Taylor from seeking medical care and applying for disability benefits to which they are otherwise entitled under
threat of criminal prosecution and loss of the very benefits
sought.” Id. at 1371. But the en banc Federal Circuit vacated the panel opinion and ordered the parties to brief
and argue the issue of whether equitable estoppel or constitutional right of access to the courts could apply. Taylor III, 4 F.4th at 1381–82. These questions remain unresolved: After the Federal Circuit heard oral argument in
Mr. Taylor’s case, this Court granted certiorari in Mr.
Arellano’s case, which prompted the Federal Circuit to
stay Mr. Taylor’s appeal.
As a result, fifty years after his discharge, and fifteen
years after applying for benefits, Mr. Taylor still awaits
the benefits to which he was entitled. None of this would
be necessary if not for Andrews; as even the VA admitted
at oral argument before the Federal Circuit, “Mr. Taylor
would have a very colorable case for equitable tolling.”
Oral Argument at 57:18-41, Taylor v. McDonough, No.
19-2211 (Fed. Cir. Feb. 10, 2022), ECF No. 89, available
at https://tinyurl.com/ycksfmkk. Mr. Taylor’s loss of
more than thirty years of disability benefits—benefits he
could not have sought earlier because the Army had
sworn him to secrecy—traces back to one source: Andrews.
3.
Mr. Raybine.
Mr. Raybine’s story is tragically similar. He served
honorably in the Army from February 1961 to September
1963. Appellant’s Br. 5, Raybine v. Wilkie, No. 20-1218
12
(Fed. Cir. Mar. 9, 2020), ECF No. 12. Mr. Raybine then
served as a civilian in the Navy for over 20 years. Id.
In late 1962, he too was one of the Army’s test subjects
at Edgewood Arsenal. Id. at 7. And the Army also forced
him to sign a secrecy oath that prevented him from discussing his experiences with anyone—including those in
the military. Id.
Having guaranteed his silence, the Army exposed Mr.
Raybine to VX gas, “as well as antidotes atropine and
PAM chloride.” Id. Not only did these experiments make
Mr. Raybine violently ill, but he also learned afterwards
that they had nearly killed him. Id. at 8. He is still
“haunted by the memories of the gas” and “relives the experience” to this day. Id. (citation omitted).
At the time he left the Army in 1963 (before medicine
and the law had formalized diagnoses like PTSD), Mr.
Raybine’s military discharge medical evaluation noted
“depression and worry.” Id. Bound by the secrecy oath,
however, he could not tell his discharge interviewer why
he was feeling that way. Id. Over the following decades,
he experienced heart-related issues and anxiety, for
which he obtained treatment starting in the 1970s. Id.
But the secrecy oath prevented him from discussing the
root of the issues—his PTSD from the Edgewood experiments—with medical professionals and even his family.
Id. at 9–10. As one medical professional noted, Mr.
Raybine “could not tell anyone what it was that he was
most afraid of.” Id. at 10.
Finally, after 40 years of waiting in silence, Mr.
Raybine learned from the VA’s letter in 2006 that he could
tell his medical providers about the cause of his symptoms. Id. When he sought treatment, however, the VA’s
doctors had never heard of the Edgewood experiments
13
and had no idea where to find the records of what chemical
agents the Army had used on Mr. Raybine. Id. at 12. For
years, Mr. Raybine told his doctors that he had been subjected to chemical experiments, but the VA failed to adequately treat him. Id. at 12–15.
Only in 2013 did the VA first schedule Mr. Raybine for
a comprehensive “medical examination to determine the
nature and etiology” of his symptoms. See id. at 18. In
that evaluation, for the first time, the VA diagnosed Mr.
Raybine with PTSD related to the Edgewood experiments. Id. The VA therefore granted Mr. Raybine disability benefits for his PTSD and the associated psychological symptoms. Id. But it set the effective date for these
benefits at July 9, 2010—three years after he first sought
the VA’s help, and after almost 45 years of governmentenforced silence. Id. at 7, 12, 18.
Mr. Raybine appealed, first to the Board of Veterans’
Appeals, and then to the Veterans Court. Id. at 18–27.
His appeal is now before the Federal Circuit. Andrews
precluded these courts from considering whether the section 5110(b) deadline should have been equitably tolled for
the decades during which the Army prevented Mr.
Raybine from applying for benefits.
B.
Many factors can prevent veterans from seeking benefits within a year of their discharges.
The Edgewood Arsenal program exemplifies how callous our government can be at times towards those who
devoted their lives to this country. The Federal Circuit’s
inflexible interpretation of section 5110, in turn, exemplifies the legal system’s unthinking cruelty toward those it
is meant to help. Although Edgewood veterans embody
an extreme example of this cruelty, they are by no means
14
the only victims of it; Andrews has denied numerous veterans in a variety of contexts even an opportunity to try
to show that section 5110(b)’s one-year time period should
be tolled. This means that the very individuals that deserve the most solicitude under the veterans’ benefits system receive its harshest treatment.
1.
The very mental and physical injuries
that necessitate benefits may cause
veterans to miss the one-year time
limit.
Section 5110’s one-year clock starts ticking on the day
the military discharges a veteran. This comes at a time of
great upheaval in a veteran’s life. For most, the military
is not just a job. It is a way of life. It is a combination of
work, family, friendship, and service, all rolled into one.
For many veterans, the military becomes integral to their
very identity. See generally Roland Hart & Steven L.
Lancaster, Identity Fusion in U.S. Military Members, 45
Armed Forces & Soc’y 45 (2019).
Discharge abruptly severs veterans from the structure that had become part of their identity.4 This sudden
separation is particularly harsh for veterans who suffer
from service-connected disabilities. Often these veterans
must leave the military because of the same injuries for
which they need benefits.
For example, in the post-9/11 world, traumatic brain
injury (“TBI”) is distressingly common. Researchers
note that there have been close to 350,000 instances of diagnosed TBI in the military since 2000. Between 11% and
See generally Meaghan C. Mobbs & George A. Bonanno, Beyond
War and PTSD: The Crucial Role of Transition Stress in the Lives
of Military Veterans, 59 Clin. Psych. Rev. 137 (2018).
4
15
23% of veterans that deployed to Iraq or Afghanistan suffered a TBI. This “has been called a ‘signature injury’ of
the Iraq and Afghanistan conflicts.”5 TBIs can have lasting effects on our country’s veterans and can prevent
them from timely filing for benefits.
Mental illness is not unusual among veterans, either.
A quarter of the nearly 4.5 million veterans who received
primary care treatment through the VA between 2010 and
2011—more than 1.1 million veterans—were diagnosed
with at least one of anxiety, depression, substance-use disorder, PTSD, bipolar disorder, and schizophrenia.6 For
some veterans, their mental illness means leaving the service long before they intended. For others, it means leaving the service on profoundly alienating terms, feeling betrayed by the institution that was duty-bound to protect
them. And yet many of these veterans cannot avail themselves of equitable tolling when they need it.
To be sure, many veterans overcome all of these obstacles and still apply within the one-year period. And
some apply after the period has elapsed, even though they
knew the clock was ticking. But other veterans do not apply for disability benefits within the one-year period because of some inequity, like lack of capacity or knowledge
that benefits are even an option.
Lisa K. Lindquist et al., Traumatic Brain Injury in Iraq and Afghanistan Veterans: New Results from a National Random Sample
Study, 29 J. Neuropsychiatry & Clinical Neuroscience 254, 254
(2017).
6
See Ranak B. Trivedi et al., Prevalence, Comorbidity, and Prognosis of Mental Health Among US Veterans, 105 Am. J. Pub. Health
2564, 2565 (2015).
5
16
Suppose that a servicemember suffered a traumatic
brain injury in service and was discharged. Suppose further that just one day after her discharge, the veteran endured repeated TBI-induced seizures that put her in a
coma. If the veteran remained in the coma for 365 days
and had no family members or caregivers who could apply
for her benefits, Andrews would deprive her of benefits
for that entire year. That is true even if she awoke on the
366th day and applied for disability benefits that day.
Even assuming the veteran had no dependents, she still
would lose nearly $40,000 in benefits at current VA 100%
disability rates. U.S. Dep’t of Veterans Affs., 2022 Veterans Disability Compensation Rates, https://tinyurl.com/ybfa9bb5 (last visited May 18, 2022).
This is not a hypothetical concern.7 For all practical
purposes, this scenario is no different from what befell
See, e.g., Savage v. Wilkie, No. 18-6687, 2020 WL 1846012, at *1–2
(Vet. App. Apr. 13, 2020) (refusing to consider equitable tolling for
veteran with service-connected “bipolar disorder and panic disorder
with agoraphobia” that “rendered [him] incapable of the ability to
function in society, have rational thought patterns, or [engage in] deliberate decision making” (citation omitted)); Kappen v. Wilkie, No.
18-3484, 2019 WL 3949462, at *1, *3 (Vet. App. Aug. 22, 2019) (refusing to consider equitable tolling of section 5110(b) for a twenty-year
Air Force veteran who explained that “he lacked competence” for several months of the one-year period); Ross v. Wilkie, No. 18-2845, 2019
WL 2291486, at *1–2 (Vet. App. May 30, 2019) (refusing to consider
equitable tolling of section 5110(b) for a Marine Corps veteran who
was led to believe that he could not apply for benefits for his skin condition that ultimately led to a disability rating); Ford v. McDonald,
No. 15-3306, 2016 WL 4137532, at *1–4 (Vet. App. Aug. 3, 2016) (refusing to consider equitable tolling for veteran whose “mental condition rendered him unable to file a claim in the years immediately following his discharge from service”); Apgar v. McDonald, No. 14-2212,
2015 WL 4953050, at *1 (Vet. App. Aug. 20, 2015) (refusing to consider
7
17
Mr. Arellano, whose mental illness prevented him from
applying for benefits, or Messrs. Taylor and Raybine,
whose secrecy oaths had the same effect. The result is a
perverse windfall for the government: the more severe a
veteran’s service-related disability, the less likely the VA
will be required to pay full benefits for it, all because Andrews deprives veterans of even the chance to argue for
equitable relief.
2.
Andrews compounds veterans’ suffering from military sexual trauma.
A related but distinct issue further underscores the
need for equitable tolling: military sexual trauma
(“MST”). See Appellant Br. 47. MST “refers to sexual
assault or sexual harassment experienced during military
service.” U.S. Dep’t of Veterans Affs., Military Sexual
Trauma (MST), https://tinyurl.com/uxl7929 (last visited
May 18, 2022); see also 38 U.S.C. § 1720D(a)(1). MST is
not itself a service-connectable condition, but veterans
who suffer from PTSD or other disabilities following MST
are entitled to benefits. See Military Sexual Trauma, supra.
Sexual assault is an epidemic in the military. A 2007
study indicated that “approximately 22% of female veterans and 1% of male veterans who” rely on the VA for
equitable tolling for veteran who was led to believe “he was not entitled to any benefits . . . because he had served less than 24 months”);
Smith v. McDonald, No. 14-1400, 2015 WL 402632, at *2 (Vet. App.
Jan. 30, 2015) (refusing to consider equitable tolling for a Marine
Corps veteran who had received a medical board decision prior to his
discharge telling him that his disability was not “incurred in []or aggravated by active military service” (alteration in original) (citation
omitted)).
18
healthcare services experienced MST.8 And the problem
is getting worse. In 2018 (the last year for which full statistical data is available),9 the Department of Defense estimated that “20,500 Service members, representing
about 13,000 women and 7,500 men, experienced some
kind of contact or penetrative sexual assault in 2018, up
from approximately 14,900 in 2016,” a more than 35% increase in just two years.10 About “65% of male victims and
45.9% of female victims of sexual assault experience a lifetime struggle with PTSD.”11
Critically for present purposes, MST-related PTSD
may not surface immediately after the underlying trauma,
which makes it harder for veterans to recognize, understand, and then seek help for their symptoms.12 Once a
Rachel Kimerling et al., Military Sexual Trauma and Patient Perceptions of Veteran Health Administration Health Care Quality, 21
Women’s Health Issues S145, S145 (2011).
9
The Department of Defense did not conduct a Workplace and Gender Relations Survey of the Active Duty Military in 2020 because,
given operational changes related to the COVID-19 pandemic, the
survey results “would [have] likely [been] skewed and difficult to interpret.” Letter from Virginia S. Penrod, Acting Under Secretary of
Defense, to Hon. Adam Smith, Chairman, Comm. on Armed Servs.,
U.S. House of Representatives (May 6, 2021), available at https://tinyurl.com/25mact6j.
10
U.S. Dep’t of Defense, Annual Report on Sexual Assault in the
Military 3 (2019), available at https://tinyurl.com/y88k7fbr.
11
Kaylee R. Gum, Military Sexual Trauma and Department of Veterans Affairs Disability Compensation for PTSD: Barriers, Evidentiary Burdens and Potential Remedies, 22 Wm. & Mary J. Women &
L. 689, 691 (2016).
12
See Kaitlin A. Chivers-Wilson, Sexual Assault and Posttraumatic
Stress Disorder: A Review of the Biological, Psychological and Sociological Factors and Treatments, 9 McGill J. Med. 111, 113–15 (2006).
8
19
veteran recognizes that she may be experiencing MST-related PTSD, it still may take some time before she receives an MST-based diagnosis and care, and thereby a
service-connectable diagnosis.13
Even as the VA claims to have made MST-related
treatment a priority in recent years,14 veterans face waiting lists for mental health providers at the VA.15 Until the
veteran understands she suffers from MST-related PTSD
and receives a diagnosis, she might not apply for disability
benefits—and, in that time, the one-year time period
likely would have expired.
Even after receiving a diagnosis, veterans face a host
of additional barriers to applying for MST-related PTSD
benefits. Gum, supra, at 704–07; Kimerling, supra, at
S148–49. For example, MST-related PTSD often coexists
with other mental-health and substance-use problems,
which also can prevent a veteran from seeking help.16 As
with other sexual-assault survivors, MST survivors often
feel deep shame and so blame themselves and hide their
See Kayla Williams, Ctr. for a New Am. Sec., Supporting Survivors
of Military Sexual Trauma: VA Must Redouble Efforts to Improve
2–4 (2020), https://tinyurl.com/yxpwgydh.
14
See Veterans Health Admin., Dep’t of Veterans Affs., VHA Directive 1115(1): Military Sexual Trauma (MST) Program (2021),
https://tinyurl.com/y49xjb4p.
15
Comm. to Evaluate the Dep’t of Veterans Affs. Mental Health
Servs., Nat’l Acads. of Scis., Eng’g, & Med., Evaluation of the Department of Veterans Affairs Mental Health Services 218 (2018),
available at https://tinyurl.com/y5byt32l.
16
Amanda K. Gilmore et al., Military Sexual Trauma and Co-Occurring Posttraumatic Stress Disorder, Depressive Disorders, and Substance Use Disorders Among Returning Afghanistan and Iraq Veterans, Women’s Health Issues, Sept.–Oct. 2016, at 546–54, available
at https://tinyurl.com/y49mdcwc.
13
20
trauma.17 This, too, can prevent them from seeking help
during the one-year application period.
The betrayal MST survivors endured in service can
prevent them from seeking within the required year the
benefits they most certainly deserve. Yet here again, Andrews bars them from any chance for equitable relief, exacerbating that betrayal.
3.
The VA itself can cause veterans to
miss the presumptive cutoff.
Even if a veteran’s mental illness or service-related
trauma does not prevent him from knowing and understanding the one-year time period, shortcomings in VA
mental-health care may prevent him from diagnosing a
mental-health disability in the first place.18 Without that
diagnosis, even as veterans struggle to define and understand their suffering, Andrews allows the one-year clock
to tick unabated and unrelieved.
In addition, the VA itself sometimes misleads a veteran into missing the one-year cutoff. By law, the Secretary must notify discharged veterans of their right to benefits. See 38 U.S.C. § 6303(b). But in some circumstances,
the Secretary does not, or worse, somehow prevents the
veteran from applying. It happened to Mr. Raybine, it occurred in Apgar, see 2015 WL 4953050, at *1, and it recurred in at least one other case, see Butler v. Shinseki,
Kathryn K. Carroll et al., Negative Posttraumatic Cognitions
Among Military Sexual Trauma Survivors, J. Affective Disorders,
Oct. 1, 2018, at 88, available at https://tinyurl.com/yxpdy4ys.
18
See, e.g., Hector A. Garcia et al., A Survey of Perceived Barriers
and Attitudes Toward Mental Health Care Among OEF/OIF Veterans at VA Outpatient Mental Health Clinics, 179 Mil. Med. 273, 274–
77 (2014) (examining attitudinal and logistical barriers to veterans’
mental health care).
17
21
603 F.3d 922, 924–26 (Fed. Cir. 2010) (per curiam) (accepting the pro se appellant’s contention that “the advice of
VA personnel had prevented him from filing [his] claim
within one year of his discharge” and “that such action
was ‘unlawful’” but nevertheless denying equitable tolling
under Andrews).
Veterans are particularly vulnerable when this happens, because they often must navigate the benefits system and the appeals process without the benefit of counsel. See U.S. Dep’t of Veterans Affs. Board of Veterans’
Appeals, Annual Report Fiscal Year 2021, at 39 (noting
that more than 75% of veterans are not represented by
counsel before the VA). Both Messrs. Taylor and
Raybine, as well as four of the other veterans discussed
above, appeared pro se at some stage while seeking benefits. See, e.g., Raybine v. Wilkie, 31 Vet. App. 419, 420
(2019); Savage, 2020 WL 1846012, at *1; Ford, 2016 WL
4137532, at *1; Apgar, 2015 WL 4953050, at *1; see also,
e.g., Butler, 603 F.3d at 923. This makes it all the more
unreasonable that a filing cutoff should be applied so rigidly, formally, and without regard for the circumstances
of the individual veteran whom the system should benefit.
4.
Without equitable tolling, veterans’
families and caregivers also needlessly
suffer.
Beyond the harms to veterans themselves, Andrews’
inflexible application of the one-year limit causes veterans’ families and caregivers to suffer, as well. This is true
22
of Mr. Arellano’s parents and brother.19 Other veterans’
family members have faced similar obstacles.20
While veterans suffer without benefits, their families
and caregivers have to invest untold dollars, time, and
heartache over years or even decades to ensure these veterans receive the help they need.21 But Andrews means
that when the veteran finally can pursue benefits, only a
small part of those burdens—her financial costs from the
date of application forward—may be redressed, regardless of the equities.
II.
Depriving veterans of equitable tolling contravenes
the veterans’ disability benefits scheme.
A.
Andrews flouts law favoring veterans.
That Andrews effectively singles out veterans among
all others for maltreatment is especially perverse. “The
solicitude of Congress for veterans is of long standing.”
See Joint Appendix at Appx507, Arellano v. Wilkie, No. 20-1073
(Fed. Cir. Mar. 20, 2020), ECF No. 22 (“[T]he Veteran’s representative, who is his brother, has candidly acknowledged that it was not
until after their father, who was the Veteran’s principal source of support, died in December 2010 that the Veteran, having no income, was
able to be convinced by his brother and his psychiatrists to file the
June 3, 2011 application . . . .”).
20
See, e.g., Appellant’s Informal Br. 14, Savage v. Wilkie, No. 18-6687
(Vet. App. Oct. 29, 2019) (noting that Mr. Savage’s mother could not
file an application for benefits before his formal diagnosis in 2009 because she did not have authorization to access his medical records).
21
Research shows that over 50% of unpaid caregivers of younger
adults (age 18 to 49) report financial strain in demanding care situations, with many caregivers using up savings, taking on debt, adjusting work hours, putting off retirement, or struggling to pay for basic
needs. AARP & National Alliance for Caregiving, Caregiving in the
U.S. 2020: A Focused Look at Family Caregivers of Adults Age 18 to
49 at 19–20 (2020), available at https://tinyurl.com/bdfd49fn.
19
23
United States v. Oregon, 366 U.S. 643, 647 (1961). “A veteran, after all, has performed an especially important service for the Nation, often at the risk of his or her own life.”
Shinseki v. Sanders, 556 U.S. 396, 412 (2009). Veterans
also incur “the economic and family detriments which are
peculiar to military service.” Johnson v. Robison, 415
U.S. 361, 380 (1974). In recognition of these sacrifices,
Congress has chosen to favor “those who have been
obliged to drop their own affairs to take up the burdens of
the nation.” Boone v. Lightner, 319 U.S. 561, 575 (1943).
That is, they have seen fit to “provide[] for him who has
borne the battle, and his widow and his orphan.” Walters,
473 U.S. at 309 (citation omitted).
From top to bottom, the scheme Congress constructed
demonstrates its—and this Nation’s—particular esteem
for veterans. The VA claims process “is designed to function throughout with a high degree of informality and solicitude for the claimant.” Id. at 311. When a veteran files
a claim, “the adjudicatory process is not truly adversarial.” Sanders, 556 U.S. at 412. “[T]he veteran is often unrepresented during the claims proceedings,” and “VA has
a statutory duty to help the veteran develop his or her
benefits claim.” Id. “[I]n evaluating [the] evidence” supporting the claim, “the VA must give the veteran the benefit of any doubt.” Henderson, 562 U.S. at 440.
In other words, Congress “has designed and fully intends to maintain a beneficial non-adversarial system of
veterans benefits,” particularly for “service-connected
disability compensation.” H.R. Rep. No. 100-963, at 13
(1988), reprinted in 1988 U.S.C.C.A.N. 5782, 5795. The
system was intended to slant in favor of those that had
been “called to the colors.” See Tilton v. Mo. Pac. R.R.
Co., 376 U.S. 169, 171 (1964) (citation omitted). The refusal in Andrews and its progeny to allow equitable tolling
24
of section 5110(b)’s one-year bar fundamentally undermines these principles.
B.
Permitting equitable tolling dovetails with
the doctrines that favor veterans.
As Justice Scalia once memorably noted, solicitude toward veterans is “more like a fist than a thumb” on the
scale, which, Justice Scalia commented, is “as it should
be.” Justice Scalia Headlines the Twelfth CAVC Judicial
Conference, Veterans L.J. 1 (Summer 2013), available at
https://tinyurl.com/y5lkblqx. But Andrews embodies the
very opposite of solicitude. It amounts, in fact, to a fist on
the scale in the government’s rather than the veteran’s favor.
This Court’s precedents on whether equitable tolling
applies to statutory time limits like those in section
5110(b) turn on factors that all should favor veterans. For
example, the Court instructs the lower courts to consider
whether the time limit resides within a benefits scheme
that is “‘unusually protective’ of claimants” or if the
scheme is “one ‘in which laymen, unassisted by trained
lawyers, initiate the process.’” Sebelius v. Auburn Reg’l
Med. Ctr., 568 U.S. 145, 160 (2013) (citations omitted).
Not only are veterans statutorily entitled to the VA’s assistance in filing their claims, they also are entitled to the
“benefit of the doubt” when their claim is finally adjudicated. See 38 U.S.C. §§ 5103A, 5107. This “‘unique’ standard of proof is lower than any other in contemporary
American jurisprudence.” Wise v. Shinseki, 26 Vet. App.
517, 531 (2014). It is a reflection of “the high esteem in
which our nation holds those who have served in the
Armed Services.” Id. (citation omitted). And the vast majority (over 75%) of veterans are not represented by counsel before the VA. See Annual Report Fiscal Year 2021,
supra, at 39. Given these realities, not allowing equitable
25
tolling metes out harsh justice in a system designed to be
anything but harsh.
Nor, for that matter, would equitable tolling impose
any great burden on the VA. The VA and its regional offices have substantial expertise in adjudicating individualized claims. They can efficiently consider veterans’ arguments as to whether equitable tolling should apply.
Courts likewise have substantial experience in applying
the doctrine, and “courts have typically extended equitable relief only sparingly.” Irwin v. Dep’t of Veterans Affs.,
498 U.S. 89, 96 (1990). That being the case, the primary
cost to the government will be to pay the benefits in select
cases where, as a matter of equity, it should have paid already.
C.
Andrews treats veterans worse than other litigants.
Under this Court’s precedents, equitable tolling is the
baseline, not the exception. No doubt for that reason, it is
available in other government benefits contexts. See Irwin, 495 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.”).
As Mr. Arellano notes, courts have permitted equitable tolling of benefits filing deadlines for Assistant United
States Attorneys, manufacturing workers, and privatesector retirees, among others. See Appellant Br. 40–42.
The Federal Circuit also permits equitable tolling in the
materially analogous National Childhood Vaccine Injury
Act of 1986, which requires a petition for relief to be filed
within thirty-six months of “the date of the occurrence of
the first symptom or manifestation of onset or of the significant aggravation of [an] injury.” 42 U.S.C. § 300aa-
26
16(a)(2); see Cloer v. Sec’y of Health & Hum. Servs., 654
F.3d 1322, 1340 (Fed. Cir. 2011) (en banc).
That veterans are treated worse than civil-service employees, manufacturing workers, and Vaccine Act petitioners is troubling. It also is a far cry from the system
Congress intended. Indeed, so rigid is Andrews’ unjust
rule that it persists even when the VA fails to fulfill its
statutory duty to inform a veteran that disability benefits
are available, see 38 U.S.C. § 6303(b), and even if veterans
are actively prevented from applying for benefits under
threat of criminal prosecution, see, e.g., Taylor II, 3 F.4th
at 1372 n.13. In short, veterans, for whom Congress has
expressed the most solicitude, get the worst treatment
under the law courtesy of Andrews. That cannot be right.
CONCLUSION
The same disabilities and circumstances that earned
veterans their disability benefits often prevent veterans
from timely seeking them. This is true for Mr. Arellano.
And it is true for Mr. Taylor, Mr. Raybine, and other veterans like them who were likewise “called to the colors,”
Tilton, 376 U.S. at 171 (citation omitted), but denied the
ability to seek recompense for a range of reasons. This
places veterans at a disadvantage to other classes of litigants, even as veterans are supposed to get the best treatment the law can afford. And it all stems from one source:
Andrews.
This precedent cannot be squared with the nature of
equitable tolling or with the purpose and structure of the
veterans’ benefits scheme. It is uniquely in this Court’s
province to right the wrong that Andrews has wrought.
Amici urge the Court to do so without delay.
27
MAY 20, 2022
Respectfully submitted,
RENÉE A. BURBANK
NATIONAL VETERANS
LEGAL SERVICES PRO-
LIAM J. MONTGOMERY
Counsel of Record
CHARLES L. MCCLOUD
D. SHAYON GHOSH
ANNA JOHNS HROM
TIMOTHY PELLEGRINO
WILLIAMS & CONNOLLY LLP
680 Maine Avenue, S.W.
Washington, DC 20024
(202) 434-5000
LMontgomery@wc.com
GRAM
1600 K Street N.W.,
Ste 500
Washington DC 20006
Renee.Burbank@nvlsp.org
DIANE BOYD RAUBER
NATIONAL ORGANIZATION OF VETERANS’ ADVOCATES
1775 Eye Street, N.W.
Ste. 1150
Washington, DC 20006
DRauber@vetadvocates.org
WILLIAM A. RIVERA
DEAN C. GRAYBILL
AARP FOUNDATION
601 E Street, N.W.
Washington, DC 20049
WARivera@aarp.org
LEONARD J. SELFON
LINDA E. BLAUHUT
PARALYZED VETERANS OF
AMERICA
801 18th Street, N.W.
Washington, DC 20006
LenS@pva.org
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.