Arellano v. McDonough ( 2021 )

Case: 20-1073 Document: 96 Page: 1 Filed: 06/17/2021
United States Court of Appeals
for the Federal Circuit
______________________
ADOLFO R. ARELLANO,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2020-1073
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-3908, Judge Michael P. Allen.
______________________
Decided: June 17, 2021
______________________
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, ar-
gued 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, United States Department
of Veterans Affairs, Washington, DC.
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2 ARELLANO v. MCDONOUGH
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 Vet-
erans 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' Advo-cates, 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.
Opinion for the court filed PER CURIAM.
* 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.
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ARELLANO v. MCDONOUGH 3
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 deci-
sion, Andrews v. Principi, 351 F.3d 1134 (Fed. Cir. 2003),
which held that principles of equitable tolling are not ap-
plicable 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.
Case: 20-1073 Document: 96 Page: 4 Filed: 06/17/2021
United States Court of Appeals
for the Federal Circuit
______________________
ADOLFO R. ARELLANO,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2020-1073
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-3908, Judge Michael P. Allen.
______________________
Decided: June 17, 2021
______________________
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, pro-
vides an exception that permits an earlier effective date if
the VA receives the application within one year of the vet-
eran’s discharge from military service: under such
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2 ARELLANO v. MCDONOUGH
circumstances, the effective date of the award shall date
back to “the day following the date of the veteran’s dis-
charge or release.” Id. § 5110(b)(1). This case poses the
question of whether, under an equitable-tolling theory, an
award on an application received more than one year after
the veteran’s discharge date may still be accorded an effec-
tive date of the day after discharge. Specifically, we con-
sider whether the rebuttable presumption of equitable
tolling for statutes of limitations established in Irwin v. De-
partment of Veterans Affairs, 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 equi-
tably tolled in his case to afford his award an earlier effec-
tive date (and his compensation an earlier starting date)
reaching back to the day after his discharge from service.
Mr. Arellano also urges us to overrule our prior deci-
sion in Andrews v. Principi, which held that § 5110(b)(1) is
not a statute of limitations amenable to equitable tolling
but merely establishes an effective date for the payment of
benefits, thereby categorically foreclosing equitable tolling
under this provision. 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 prece-
dent that § 5110(b)(1) is not a statute of limitations to
which Irwin’s presumption of equitable tolling applies. Ac-
cordingly, the Veterans Court’s decision, which relies on
Andrews to deny Mr. Arellano an earlier effective date un-
der § 5110(b)(1), is affirmed.
Judge Dyk and five of our colleagues, however, would
overturn Andrews and conclude that § 5110(b)(1) is a
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ARELLANO v. MCDONOUGH 3
statute of limitations entitled to Irwin’s presumption. But
their basis for affirming the Veterans Court’s decision rests
on deciding, in the first instance, that the facts of Mr. Arel-
lano’s case do not warrant equitable tolling. We disagree
with this approach both in substance and process. Even if
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 fac-
tual circumstances warrant equitable tolling where no
prior tribunal has considered the issue and no party has
argued for such an outcome.
BACKGROUND
A
Congress has provided by statute for the payment of
monetary benefits to veterans with disabilities arising
from service. 38 U.S.C. § 1110. To obtain disability com-
pensation, veterans must first file a claim with the VA.
38 U.S.C. § 5101(a)(1). With certain limited exceptions not
relevant here, no compensation may be paid before such a
claim is filed. Id. (with exceptions not applicable here, a
“claim . . . must be filed in order for benefits to be paid or
furnished to any individual under the laws administered
by the Secretary”). The size of a veteran’s disability com-
pensation award is determined, in part, by the effective
date assigned to his award—i.e., the date on which benefits
begin to accrue. An earlier effective date means a greater
accrual of benefits.
Section 5110 of Title 38 governs the effective date of VA
benefits awards. Two of its provisions are at issue in this
appeal. First, § 5110(a)(1) sets forth the default rule that
the effective date of an award cannot be earlier than the
date the VA receives the veteran’s application submitting
a claim for that award:
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4 ARELLANO v. MCDONOUGH
Unless specifically provided otherwise in this chap-
ter, the effective date of an award based on an ini-
tial claim, or a supplemental claim, of
compensation, dependency and indemnity compen-
sation, or pension, shall be fixed in accordance with
the facts found, but shall not be earlier than the
date of receipt of application therefor.
§ 5110(a)(1). 1 Accordingly, the natural consequence of
§ 5110(a)(1)’s default rule is that no disability compensa-
tion is payable for periods predating the VA’s receipt of the
application for benefits, “[u]nless specifically provided oth-
erwise” by statute.
Section 5110 sets forth several exceptions to
§ 5110(a)(1)’s default rule, each providing for a retroactive
effective date—that is, an effective date earlier than the
date VA received the application—which, in turn, leads to
a greater benefits award than under the default rule. See
§ 5110(b)–(n). Many of § 5110’s exceptions pertain to spe-
cific circumstances that may delay the filing of an applica-
tion for benefits. These include: discharge from the
military, § 5110(b)(1); increase in the severity of a disabil-
ity, § 5110(b)(3); the “permanent[] and total[] disab[ility]”
of a veteran, § 5110(b)(4); death of a spouse, § 5110(d); and
correction of military records, § 5110(i). Each of § 5110’s
enumerated exceptions, however, expressly limits the ret-
roactivity of the effective date to one year. See, e.g.,
1 No party has identified a material difference, for
present purposes, between “claim” and “application,” and
the VA’s regulations appear to use these terms inter-
changeably. See, e.g., 38 C.F.R. § 3.1(p) (defining “claim”
as “a written or electronic communication requesting a de-
termination of entitlement or evidencing a belief in entitle-
ment, to a specific benefit under the laws administered by
the [VA] submitted on an application form prescribed by
the Secretary”).
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ARELLANO v. MCDONOUGH 5
§ 5110(g) (“In no event shall [an] award or increase [under
this paragraph] be retroactive for more than one year from
the date of application therefor . . . .”).
As relevant here, one of those enumerated exceptions—
§ 5110(b)(1)—provides that a disability compensation
award’s effective date may date back to the day after a vet-
eran’s discharge if the application for such benefits is re-
ceived within one year after discharge:
The effective date of an award of disability compen-
sation to a veteran shall be the day following the
date of the veteran’s discharge or release if appli-
cation therefor is received within one year from
such date of discharge or release.
§ 5110(b)(1).
On the face of the statute, then, the effective date for
awards based on applications received more than one year
after discharge (that do not otherwise fall within any of
§ 5110’s other enumerated exceptions) “shall not be earlier
than the date of receipt of application therefor.”
§ 5110(a)(1). This appeal considers whether equitable toll-
ing may apply to § 5110(b)(1)’s one-year period to permit
an effective date reaching back to the day after the vet-
eran’s discharge from service, even though the application
for that award was received more than one year after dis-
charge.
The equitable-tolling doctrine, as traditionally under-
stood, “permits a court to pause a statutory time limit
‘when a litigant has pursued his rights diligently but some
extraordinary circumstance prevents him from bringing a
timely action.’” See Cal. Pub. Emps.’ Ret. Sys. v. ANZ Sec.,
Inc., 137 S. Ct. 2042, 2050 (2017) (quoting Lozano v. Mon-
toya 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
Case: 20-1073 Document: 96 Page: 9 Filed: 06/17/2021
6 ARELLANO v. MCDONOUGH
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 equita-
ble tolling, a court must first determine whether the statu-
tory 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 approxi-
mately fourteen months after her discharge from service.
351 F.3d at 1135. As a result, she was awarded compensa-
tion 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 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 limita-
tions, but merely indicates when benefits may begin and
provides for an earlier date under certain limited circum-
stances.” 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 one-year
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.
B
We now turn to the facts of Mr. Arellano’s appeal.
Mr. Arellano served honorably in the Navy from November
1977 to October 1981. Nearly 30 years later, on June 3,
2011, the VA regional office (RO) received Mr. Arellano’s
Case: 20-1073 Document: 96 Page: 10 Filed: 06/17/2021
ARELLANO v. MCDONOUGH 7
claim for service-connected disability benefits for his psy-
chiatric disorders. The RO granted service connection with
a 100 percent disability rating for “schizoaffective disorder
bipolar type with PTSD [post-traumatic stress disorder].”
J.A. 506. The granted effective date of Mr. Arellano’s
award was the date his claim was received—i.e., June 3,
2011.
Mr. Arellano appealed his effective-date determination
to the Board of Veterans’ Appeals (Board), arguing that his
mental illness had prevented him from filing his claim ear-
lier. Mr. Arellano submitted, as support, a medical opinion
by his psychiatrist indicating that he had been “100% dis-
abled since 1980,” when he was “almost crushed and swept
overboard while working on the flight deck of [an] aircraft
carrier.” J.A. 529. Given his disability, Mr. Arellano ar-
gued that § 5110(b)(1)’s one-year period should be equita-
bly tolled to qualify him for an effective date retroactive to
the day after his discharge from the Navy. The Board re-
jected his equitable-tolling argument, and the Veterans
Court affirmed that decision, concluding that Mr. Arel-
lano’s claim was “squarely foreclosed by binding precedent”
in Andrews. 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 Au-
gust 5, 2020, we took the case en banc and entered a sua
sponte order directing the parties to brief the following is-
sues:
A. Does the rebuttable presumption of the availa-
bility of equitable tolling articulated in Irwin v. De-
partment of Veterans Affairs, 498 U.S. 89 (1990),
apply to 38 U.S.C. § 5110(b)(1), and if so, is it nec-
essary for the court to overrule Andrews v. Principi,
351 F.3d 1134 (Fed. Cir. 2003)?
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8 ARELLANO v. MCDONOUGH
B. Assuming Irwin’s rebuttable presumption ap-
plies to § 5110(b)(1), has that presumption been re-
butted?
C. Assuming this court holds that Irwin’s rebutta-
ble presumption applies to § 5110(b)(1), would such
a holding extend to any additional provisions of
§ 5110, including but not limited to § 5110(a)(1)?
D. To what extent have courts ruled on the avail-
ability of equitable tolling under statutes in other
benefits programs that include timing provisions
similar to § 5110?
Order Granting En Banc Review, No. 20-1073 (Aug. 5,
2020), ECF No. 45, at 2–3.
DISCUSSION
A
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. See 38 U.S.C. § 7292. “The
Court of Appeals for the Federal Circuit shall decide all rel-
evant questions of law, including interpreting constitu-
tional and statutory provisions.” § 7292(d)(1). Because our
review of this decision involves a question of statutory in-
terpretation—namely, the availability of equitable tolling
for a particular statutory provision—we have jurisdiction
over this matter. We review questions of law, such as this
one, de novo. Prenzler v. Derwinski, 928 F.2d 392, 393
(Fed. Cir. 1991).
Irwin sets forth the analytical framework that guides
our decision. At issue there was whether a statute of limi-
tations in a suit against the government was subject to eq-
uitable tolling. Specifically, the Irwin petitioner sought
equitable tolling of 42 U.S.C. § 2000e-16(c)’s 30-day dead-
line for filing a Title VII civil action against the federal gov-
ernment in district court after receiving a right-to-sue
notice from the Equal Employment Opportunity
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ARELLANO v. MCDONOUGH 9
Commission (EEOC). While statutes of limitations in suits
between private litigants are “customarily” subject to equi-
table tolling, an analogous presumption had not yet been
established for suits against the government. See Irwin,
498 U.S. at 95. Irwin held that “the same rebuttable pre-
sumption 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 equitable tolling of statutes
of limitations in suits against the government, with the ca-
veat 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 de-
termine whether that presumption has been rebutted—or
in other words, whether there is “good reason to believe
that Congress did not want the equitable tolling doctrine to
apply” to the statute. See United States v. Brockamp, 519
U.S. 347, 349–50 (1997). We address each step of the anal-
ysis in turn.
B
Before determining whether Irwin’s presumption of eq-
uitable tolling applies to § 5110(b)(1), we first elucidate our
understanding of the presumption’s origins and limits.
“Congress is understood to legislate against a back-
ground of common-law adjudicatory principles.” Astoria
Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108
(1991). One such background principle is that “federal
statutes of limitations are generally subject to equitable
principles of tolling,” see Rotella v. Wood, 528 U.S. 549,
560–61 (2000), which is “a long-established feature of
American jurisprudence derived from ‘the old chancery
rule,’” Lozano, 572 U.S. at 10–11 (quoting Holmberg v.
Armbrecht, 327 U.S. 392, 397 (1946)). Justification for this
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10 ARELLANO v. MCDONOUGH
principle comes from recognizing that tolling can be con-
sistent with the purpose of a statute of limitations under
certain circumstances. In other words, because a statute
of limitations is designed “to encourage the plaintiff to pur-
sue his rights diligently” after a cause of action has ac-
crued, 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 limi-
tations 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 ap-
plies 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 pre-
sumption 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 fa-
vorable tolling doctrine may be employed against the
[g]overnment than is employed in suits between private lit-
igants.”).
Because the presumption serves as a proxy for the
background legal principles that Congress is understood to
legislate against, it follows that Irwin’s presumption is lim-
ited to only those statutory provisions that are established
in common law as subject to equitable tolling—namely,
statutes of limitations. See John R. Sand & Gravel Co. v.
United States, 552 U.S. 130, 137 (2008) (“[Irwin’s] pre-
sumption seeks to produce a set of statutory interpreta-
tions that will more accurately reflect Congress’ likely
meaning in the mine run of instances where it enacted a
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ARELLANO v. MCDONOUGH 11
[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 ef-
fect, a rule of interpretation tied to that limit.” Petrella v.
Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 681 (2014) (em-
phasis 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 Su-
preme 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 back-
ground 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 be-
cause the Supreme Court had “never applied the Irwin pre-
sumption to [such a provision]”). As these cases reflect,
determining that Congress would have viewed a provision
as a statute of limitations is a necessary first step in infer-
ring 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 ap-
plies only to those statutory provisions that Congress
clearly would have viewed as statutes of limitations.
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12 ARELLANO v. MCDONOUGH
Our conclusion is supported not only by Irwin’s logic
and the subsequent cases applying it, but also, by the lim-
itations of the Appropriations Clause of the Constitution,
art. I, § 9, cl. 7, on the payment of money from the public
fisc contrary to the express terms of a statute. 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 Appropri-
ations 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 Con-
gress intended to authorize payment of those additional
benefits via equitable tolling. This, in turn, necessarily im-
plicates the question of whether Congress would have
viewed the benefits provision at issue as a statute of limi-
tations 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.
2 That is not to say, however, that the Appropria-
tions Clause bars all equitable tolling against the govern-
ment for monetary claims. Instead, if “application of the
doctrine [of equitable tolling] is consistent with Congress’
intent in enacting a particular statutory scheme, [then]
there is no justification for limiting the doctrine to cases
that do not involve monetary relief.” See Bowen v. City of
New York, 476 U.S. 467, 479 (1986).
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ARELLANO v. MCDONOUGH 13
C
To determine whether § 5110(b)(1) is a statute of limi-
tations, we consider whether this provision satisfies the
“functional characteristics” of such statutes. Lozano, 572
U.S. at 15 n.6 (“[T]he determination [of] whether [a statu-
tory provision] is a statute of limitations depends on its
functional characteristics . . . .”). As explained below,
§ 5110(b)(1) does not have the functional characteristics of
a statute of limitations. We see two reasons why Congress
would not have thought that the provision belongs to that
category of laws.
First, § 5110(b)(1) does not operate to bar a veteran’s
claim for benefits for a particular service-connected disa-
bility after one year has passed. Instead, like the general
rule of § 5110(a)(1), it determines one of many elements of
a benefits claim that affects the amount of a veteran’s
award but, unlike a statute of limitations, does not elimi-
nate a veteran’s ability to collect benefits for that very dis-
ability. Second, and relatedly, § 5110(b)(1) lacks features
standard to the laws recognized as statutes of limitations
with presumptive equitable tolling: its one-year period is
not triggered by harm from the breach of a legal duty owed
by the opposing party, and it does not start the clock on
seeking a remedy for that breach from a separate remedial
entity. See 1 Calvin W. Corman, LIMITATION OF ACTIONS,
§ 6.1, at 370 (1991). The statutory scheme governing vet-
erans’ benefits makes clear that the VA is not obligated to
pay any benefits before a claim applying for such benefits
is filed, so there is no duty, or breach of duty, at the onset
of § 5110(b)(1)’s one-year period (i.e., the day after dis-
charge). Moreover, no remedial authority separate from
the VA is involved in an initial application for veterans’
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14 ARELLANO v. MCDONOUGH
benefits. 3 The effective-date provision in this case, then, is
of a sufficiently different character from that of statutes of
3 Judge Dyk contends that the need for a separate
remedial authority is inconsistent with three cases pur-
portedly establishing that “a statute governing the timeli-
ness of a claim to an agency for payment from that agency
is a statute of limitations.” Dyk Op. 7 (citing United States
v. Williams, 514 U.S. 527, 534 & n.7 (1995); Colvin v. Sul-
livan, 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 ex-
pression 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 none-
theless concluded that Congress did not intend for equita-
ble tolling to apply to § 6511’s time limit. Brockamp, 519
U.S. at 350–54.
These cases, moreover, do not involve statutory provi-
sion functionally similar to § 5110(b)(1), or otherwise es-
tablish a background principle of law that would authorize
a tribunal to override § 5110(b)(1)’s express statutory
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ARELLANO v. MCDONOUGH 15
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.
1
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 lim-
itations are designed to encourage plaintiffs to pursue dili-
gent 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 defend-
ants” 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).
To determine whether the functional characteristics of
a statute of limitations are met, the Supreme Court has fo-
cused the inquiry on whether the statute at issue encour-
ages plaintiffs to promptly pursue their claims or risk
losing remedies for those claims. In Young, for instance,
the Court held that a statutory “three-year lookback pe-
riod” for the IRS to collect overdue, unpaid taxes from a
limits on monetary governmental benefits. And unlike an
initial application for veterans’ benefits, these cases impli-
cate a preexisting duty to pay owed by the government.
Williams, Colvin, and Warren therefore fail to establish
that a tribunal may override, through equitable tolling, an
indisputably applicable statutory limit on governmental
monetary benefits.
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16 ARELLANO v. MCDONOUGH
taxpayer in bankruptcy proceedings was a statute of limi-
tations because it “encourages the IRS to protect its rights”
by “collecting the debt or perfecting a tax lien—before three
years have elapsed.” 535 U.S. at 47 (citations omitted).
There, the relevant statute afforded the IRS certain “legal
remedies” for collecting a tax debt accrued within three
years before a debtor’s bankruptcy petition filing: the tax
debt is nondischargeable and the IRS’s claim enjoys eighth
priority 4 in bankruptcy. Id. at 47–48. But if the IRS
“sleeps on its rights” by failing to act within the three-year
lookback period, then the IRS loses those “legal remedies”
for collecting that debt. Specifically, “its claim loses prior-
ity and the debt becomes dischargeable” in bankruptcy, so
that a bankruptcy decree will release the debtor from any
obligation to pay and leave the IRS unable to collect on that
debt. Id. The Court concluded that such a provision—
which bars the IRS from recovering any tax debt accrued
more than three years before bankruptcy proceedings
begin—is a statute of limitations because it serves the
“same basic policies [furthered by] all limitations provi-
sions: repose, elimination of stale claims, and certainty
about a plaintiff’s opportunity for recovery and a defend-
ant’s potential liabilities.” Id. The Supreme Court also em-
ployed similar reasoning in Zipes, determining that the
period for filing a charge of employment discrimination
with the EEOC (a precondition to a federal-court action)
operates as a statute of limitations given “its purpose [of]
preventing the pressing of stale claims” and “giv[ing]
prompt notice to the [defendant] employer”—the very
4 The bankruptcy priority scheme determines the or-
der in which claims are paid. Claims with higher priority
are entitled to payment in full before anything can be dis-
tributed to claims of lower rank. See 1 Richard I. Aaron,
Bankruptcy Law Fundamentals § 8:10 (2020 ed.).
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ARELLANO v. MCDONOUGH 17
“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 there-
fore not subject to equitable-tolling principles. There, the
Supreme Court declined to apply the presumption of equi-
table tolling to a treaty provision that did not did not “es-
tablish[] any certainty about the respective rights of the
parties” and, instead, addressed policy concerns irrelevant
to the functioning of a statute of limitations. 572 U.S. at
14–15. At issue was a Hague Convention provision requir-
ing the return of a child abducted by a parent in a foreign
country, so long as the left-behind parent requests return
“within one year.” 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 (em-
phasis 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 left-behind parent
and prevents repose for the abducting parent.” Id. Moreo-
ver, the additional consideration of the child’s interest is
“not the sort of interest addressed by a statute of limita-
tions.” Id.; see also In re Neff, 824 F.3d 1181, 1186–87 (9th
Cir. 2016) (holding that a statutory provision is not a stat-
ute of limitations because it does not serve the purposes of
“repose, elimination of stale claims, and certainty” and, in-
stead, addressed unrelated policy concerns). 5 The Court
5 In Neff, the statutory provision at issue foreclosed
discharge in bankruptcy for debtors who improperly
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18 ARELLANO v. MCDONOUGH
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 no-
tice of alleged environmental violations to the relevant
agency 60 days prior to commencing a civil action was not
a statute of limitations subject to equitable modification.
493 U.S. at 27. The Court explained: “Unlike a statute of
limitations, [the] 60-day notice provision is not triggered by
the violation giving rise to the action.” Id. (emphasis
added). Instead, plaintiffs “have full control over the tim-
ing of their suit,” as “they need only give notice to the ap-
propriate [agency] and refrain from commencing their
action for at least 60 days. Id. The 60-day notice period,
therefore, did not encourage plaintiffs to diligently file
claims or risk losing remedies for a violation.
Here, as in Lozano and Hallstrom, § 5110(b)(1)’s effec-
tive-date provision does not have the key “functional char-
acteristics” that define a statute of limitations. Because a
veteran seeking disability compensation “faces no time
limit for filing a claim,” Henderson ex rel. Henderson v.
Shinseki, 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
transferred property “within one year” of filing a bank-
ruptcy petition. 824 F.3d at 1183. The Ninth Circuit con-
cluded 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 pol-
icy matters unrelated to “the sort of interest addressed by
a statute of limitations.” Id. at 1187 (citing Lozano, 572
U.S. at 15).
Case: 20-1073 Document: 96 Page: 22 Filed: 06/17/2021
ARELLANO v. MCDONOUGH 19
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 vet-
eran is entitled to benefits at all. See Collaro v. West, 136
F.3d 1304, 1308 (Fed. Cir. 1998) (explaining that “the ef-
fective 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 disa-
bility 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 provi-
sion 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 pros-
ecution of known claims. To the contrary, § 5110(b)(1) was
adopted to “remove[] injustices where there is delay in fil-
ing [a] claim due to no fault of the veteran and payment
could otherwise be made only from [the filing] date of [the]
claim.” 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
immediate aftermath of a veteran’s transition back to civil-
ian life upon discharge from military service. This provi-
sion is itself an equitable exception provided by Congress
to address injustices that may arise from § 5110(a)(1)’s de-
fault rule and, in that respect, speaks to policy concerns
that are “not the sort of interest addressed by a statute of
limitations.” See Lozano, 572 U.S. at 15. Given (1) the
well-established understanding of what constitutes a stat-
ute of limitations, and (2) the nature of § 5110(b)(1)’s effec-
tive-date provision, § 5110(b)(1) does not satisfy the
“functional characteristics” of a statute of limitations.
Mr. Arellano, in response, asserts that even if § 5110
preserves the possibility of prospective benefits for an on-
going disability regardless of when the claim is filed, a
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20 ARELLANO v. MCDONOUGH
veteran will nonetheless lose out on retroactive benefits da-
ting back to the day after discharge if his claim is not filed
within one year of discharge. Section 5110(b)(1)’s one-year
period therefore encourages veterans to diligently file their
disability claims after discharge to protect their rights to
retroactive benefits. He argues that § 5110(b)(1) is “simi-
lar” to the statutory-lookback periods for copyright and pa-
tent damages in Petrella and SCA Hygiene Products
Aktiebolag v. First Quality Baby Products, LLC, 137 S. Ct.
954 (2017), respectively, insofar as these statutes all “limit
[the amount of] claimants’ damages but not their ability to
seek redress for an ongoing . . . injury.” Appellant’s Supp.
Reply Br. 10. We disagree.
This argument overlooks the distinction that
§ 5110(b)(1) establishes the effective date of a single bene-
fits claim for an ongoing disability, whereas an ongoing
course of infringement in Petrella and SCA Hygiene com-
prises a “series of discrete infringing acts,” each of which is
a distinct harm giving rise to an independent claim for re-
lief that starts a new limitations period. 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. (empha-
sis 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 dam-
ages statute, 35 U.S.C. § 286. As with copyright infringe-
ment, each individual act of patent infringement gives rise
to a discrete claim that starts its own six-year limitations
Case: 20-1073 Document: 96 Page: 24 Filed: 06/17/2021
ARELLANO v. MCDONOUGH 21
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] in-
fringement”). The lookback periods for copyright and pa-
tent 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 “essen-
tial element of a claim for relief” from a jurisdictional stat-
utory limitation). Mr. Arellano, moreover, has not
demonstrated that a single claim seeking benefits for a spe-
cific disability can comprise two discrete claims for retro-
spective 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 con-
nection between the veteran’s service and the disability, [4]
the degree of disability, and [5] the effective date of the dis-
ability.” 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) func-
tions as a statute of limitations amenable to equitable toll-
ing.
Mr. Arellano next analogizes to Young’s three-year
lookback period, arguing that § 5110(b)(1)—which bars
only retroactive benefits predating the date the VA received
his claim, but not prospective benefits beginning from the
date the VA received his claim—is no less a statute of lim-
itations than the lookback period in Young. We disagree.
Young’s lookback period is a “limited statute of limitations”
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22 ARELLANO v. MCDONOUGH
in the sense that it arises only in the situation when a tax
debtor files a bankruptcy petition and bars certain “legal
remedies” (i.e., priority and nondischargeability in bank-
ruptcy) outside of the lookback period. See 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 “elimi-
nation 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 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 one-year 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, sup-
pose that the Youngs owed tax debt from multiple years.
The IRS would then be barred from recovering tax debt
from the years outside the three-year lookback period but
could still recover any of the debt from within that period.
See Oral Arg. at 30:32–32:52. Under this hypothetical,
Mr. Arellano contends, the lookback period merely affects
the amount of relief the IRS would be entitled to recover
but does not entirely bar the IRS from such relief, meaning
that it is a “more limited statute of limitations, but a stat-
ute of limitations nonetheless.” 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
Case: 20-1073 Document: 96 Page: 26 Filed: 06/17/2021
ARELLANO v. MCDONOUGH 23
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 in Mr. Arellano’s hypothetical corre-
sponds 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 tax-
able 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.
2
Section 5110(b)(1) also differs from statutes of limita-
tions in additional ways—namely, with respect to the onset
of its one-year period and the remedial authority involved.
These differences further undermine any inference that
Congress must have viewed § 5110(b)(1) as a statute of lim-
itations that would presumptively allow judicial override of
express statutory limits on benefits payments under Irwin.
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24 ARELLANO v. MCDONOUGH
The “standard rule” is that a statute of limitations be-
gins to run when the cause of action “accrues,” i.e., when
“the plaintiff has a ‘complete and present cause of action.’”
Bay Area Laundry & Dry Cleaning Pension Trust Fund v.
Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997) (quoting
Rawlings v. Ray, 312 U.S. 96, 98 (1941)); see also Wallace
v. Kato, 549 U.S. 384, 388 (2007). Unless Congress indi-
cates otherwise, “a cause of action does not become ‘com-
plete 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 con-
tractual obligations or a duty of care. See 1 Calvin W. Cor-
man, LIMITATION OF ACTIONS, § 6.1, at 370 (1991) (“The
earliest opportunity for a complete and present cause of ac-
tion is that moment when the plaintiff has suffered a le-
gally 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 pre-
sent cause of action” is when the VA has failed to satisfy a
legal duty owed to the veteran, such as when his claim for
benefits has been wrongfully adjudicated or denied. In this
vein, we have recognized that the 120-day time limit for a
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ARELLANO v. MCDONOUGH 25
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 ad-
dress 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 compen-
sation where § 5110 governs the effective-date determina-
tion, the VA has not yet violated any legal duty owed to the
claimant that would trigger a statute of limitations to run.
The statutory scheme governing veterans’ benefits makes
clear that the VA is not obligated to pay any benefits before
a claim applying for such benefits is filed. In particular,
§ 5101(a)(1)(A) states that “a specific claim in the form pre-
scribed by the Secretary . . . must be filed in order for ben-
efits to be paid or furnished to any individual under the
laws administered by the Secretary.” § 5101(a)(1)(A) (em-
phasis added). This provision explains that the filing of a
benefits claim must first occur for any benefits to accrue or
be paid by the VA. The VA thus has no preexisting duty to
award benefits, and a veteran has no corresponding right
to receive such benefits, until after a claim applying for
benefits is filed by the veteran with the VA. See Jones v.
West, 136 F.3d 1296, 1299 (Fed. Cir. 1998) (“Section
5101(a) is a clause of general applicability and mandates
that a claim must be filed in order for any type of benefit to
accrue or be paid.”), cert. denied, 525 U.S. 834 (1998);
McCay v. Brown, 106 F.3d 1577, 1580 (Fed. Cir. 1997) (stat-
ing § 5101(a) requires that “a claim must be on file before
benefits may be obtained”). Without a preexisting right,
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26 ARELLANO v. MCDONOUGH
there can be no violation of that right for which a veteran
would seek redress, which could then be barred if not pur-
sued 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 be-
tween a primary claim to a performance and a remedial ca-
pacity 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 pre-
viously due, but wrongfully unpaid, benefits. See Hall-
strom, 493 U.S. at 27 (holding that a statutory time limit is
“[u]nlike a statute of limitations” because it is not “trig-
gered by the violation giving rise to the action” and is there-
fore 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 in-
itial claim for benefits and receives an unsatisfactory VA
decision on that claim. A claimant seeking an increased
benefits award, as Mr. Arellano does here, has no basis to
maintain a suit against the VA until at least two events
have transpired. He must first file an initial claim seeking
benefits from the VA. And second, he must receive the VA’s
initial decision determining the amount of his award. Only
then could that claimant have a cause of action against the
VA if he disagrees with the amount of benefits awarded.
Cf. Bay Area Laundry, 522 U.S. at 202 (“Absent a demand,
even a willing employer cannot satisfy its payment obliga-
tion, 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 limita-
tions as Mr. Arellano and Judge Dyk contend, a claimant
would have a cause of action on the day after his discharge
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ARELLANO v. MCDONOUGH 27
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 re-
sult 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 consti-
tutes a statute of limitations, regardless of any alleged
breach of duty by the government.” Dyk Op. at 5. He cites
our decision in Cloer v. Sec’y of Health & Hum. Servs.,
where we held that the Vaccine Act’s 36-month deadline for
filing a petition for compensation for a “vaccine-related in-
jury” is a statute of limitations that begins to run on the
date the first symptom or manifestation of onset of the in-
jury claimed occurs. 654 F.3d 1322, 1340–44 (Fed. Cir.
2011) (en banc). The Vaccine Act’s 36-month filing dead-
line, however, is easily distinguishable from § 5110(b)(1)’s
effective date provision.
Unlike § 5110(b)(1), the Vaccine Act’s filing deadline is
phrased and functions as a traditional statute of limita-
tions that bars a plaintiff from seeking relief from a tribu-
nal once the specified time limit has passed. Specifically,
42 U.S.C. § 300aa-16(a)(2) recites: “if a vaccine-related in-
jury occurred as a result of the administration of such vac-
cine, no petition may be filed for compensation under the
Program for such injury after the expiration of 36 months
after the date of the occurrence of the first symptom or
manifestation of onset or of the significant aggravation of
such injury.” Nothing in this provision purports to affect
the amount of compensation awarded on a successful peti-
tion. In contrast to § 5110(b)(1)’s effective date provision,
which does not bar a claimant from filing an application for
benefits more than one year after discharge, § 300aa-
16(a)(2) bars the filing of a petition for compensation after
36 months have passed since the “first symptom or
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28 ARELLANO v. MCDONOUGH
manifestation of onset or of the significant aggravation” of
claimant’s vaccine-related injury. Section 300aa-16(a)(2)
thus exhibits the functional characteristics germane to all
statutes of limitations by encouraging claimants to
promptly file a petition or risk losing remedies available
under the Vaccine Act.
Moreover, in contrast to an initial application seeking
veterans’ benefits from the VA, the Vaccine Act’s filing
deadline arises in a context in which a plaintiff seeks re-
dress in federal court for a preexisting duty owed by the
defendant. Prior to the Act, a plaintiff injured by a vaccine
could directly sue the vaccine’s manufacturer in civil court,
alleging harm caused by that manufacturer’s breach of
duty. But due to concerns that civil actions against vaccine
manufacturers were unsustainably raising vaccine prices
and driving manufacturers out of the market, Congress en-
acted the Vaccine Act to create a streamlined process to
“stabilize the vaccine market and expedite compensation to
injured parties.” Sebelius v. Cloer, 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 manufac-
turers 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 suffi-
cient annual income for the Fund to cover all costs of com-
pensation”). 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 bur-
dens by not requiring claimants to prove “wrongdoing by
the manufacturer” or causation for on-Table injuries, see
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ARELLANO v. MCDONOUGH 29
H.R. Rep. 99-908, at 12 (1986), initiating a Vaccine Act pro-
ceeding bears substantial similarities to initiating a civil
action governed by a statute of limitations. Both require
an injured party to seek—within a statutory time period—
a remedy before a federal court predicated on a legal duty
owed by another. Just as a plaintiff initiates a civil action
by serving the defendant and timely filing a complaint in
court, “[a] proceeding for compensation under [the Vaccine
Act] shall be initiated by service upon the Secretary and
the filing of a petition . . . with the United States Court of
Federal Claims” within 36 months of the first symptom or
manifestation of vaccine-related injury. See 42 U.S.C.
§ 300aa–11(a)(1). Nothing in this initiation process speaks
to the administrative context in which § 5110(b)(1) oper-
ates, wherein a claimant files an initial application with
the VA seeking an award of monetary benefits from that
agency, such that the application’s date of receipt deter-
mines (in part) the total amount of benefits awarded.
Our understanding of the functional distinction be-
tween § 5110(b)(1)’s effective-date provision and a statute
of limitations is further confirmed by observing that “the
creation of a right is distinct from the provision of remedies
for violations of that right.” See eBay Inc. v. MercExchange,
L.L.C., 547 U.S. 388, 392 (2006) (emphasis added). A stat-
ute 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 ef-
fective-date 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 (ex-
plaining that § 300aa-11(c)(1)(D)(i)’s requirement a claim-
ant 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
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30 ARELLANO v. MCDONOUGH
the [36-month] statute of limitations”). Accordingly,
§ 5110(b)(1), which establishes the effective date of a claim
whose filing is necessary “for benefits to be paid or fur-
nished” by the VA, is not a statute of limitations because it
pertains only to the creation of the right to be paid benefits,
and not to the provision of remedies for violations of that
right. For this reason, too, Congress would not have viewed
§ 5110(b)(1) as a statute of limitations.
D
Having determined that Congress would not have
viewed § 5110(b)(1) as a statute of limitations, we are left
to consider whether some other background principle of
law supports applying Irwin’s presumption of equitable
tolling to § 5110(b)(1)’s effective-date provision. We see
nothing in the cases identified by Mr. Arellano and Judge
Dyk that would establish any such principle of law.
1
We are unaware of any case that applies Irwin’s pre-
sumption to a statutory provision functionally similar to
§ 5110(b)(1)—namely, one that does not encourage the dil-
igent prosecution of a claim by barring a claimant from
seeking relief after the statutory period elapses and, in-
stead, establishes an element of the claim itself. Instead,
cases applying Irwin’s presumption have all involved a
time limit that functions as a statute of limitations by fore-
closing a plaintiff from seeking relief once that time has
passed. 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 fed-
eral habeas relief); Scarborough v. Principi, 541 U.S. 401(2004) (30-day deadline for filing an application for attor-
ney’s fees under the Equal Access to Justice Act); Bailey,
160 F.3d at 1363–64 (120-day time limit to file notice of ap-
peal with the Veterans Court); Cloer, 654 F.3d at 1341–42
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ARELLANO v. MCDONOUGH 31
(36-month deadline to file a petition under the Vaccine
Act).
Mr. Arellano and Judge Dyk point to a statute govern-
ing Social Security disability insurance benefits, 42 U.S.C.
§ 423(b), which states: “An individual who would have
been entitled to a disability insurance benefit for any
month had he filed application therefor before the end of
such month shall be entitled to such benefit if such appli-
cation is filed before the end of the 12th month immediately
succeeding such month.” In other words, this provision
provides that qualifying claimants may receive retroactive
benefits up to a year prior to the date of application. But
as Mr. Arellano and amici concede, courts have so far de-
clined to find equitable exceptions available for this statu-
tory period. See Appellant’s Suppl. Br. 45–49; Military-
Veterans Advocates Amicus Br. 8; see also Shepherd ex rel.
Shepherd v. Chater, 932 F. Supp. 1314, 1318 (D. Utah
1996) (“Courts have uniformly refused to find equitable ex-
ceptions to the statutory limit on retroactive benefits.”).
Moreover, several cases explain that “filing [an application
within § 423(b)’s one year period] is a substantive condition
of eligibility” for retroactive Social Security benefits, rather
than a statute of limitations that may be equitable tolled.
See Yeiter v. Sec’y of Health & Hum. Servs., 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 prece-
dent to payment of benefits”). While courts have yet to an-
alyze 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
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32 ARELLANO v. MCDONOUGH
reasoning of these courts 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 establish-
ing a statute of limitations for past benefits. See Dyk Op.
at 8. He cites a single district court case for this proposi-
tion, 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 insur-
ance 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 proposi-
tion 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 princi-
ple of equitable tolling applicable to § 5110(b)(1). 6
6 If § 423(b) were deemed a statute of limitations, as
Judge Dyk contends, such a determination would be a trail-
blazing event, making equitable tolling potentially availa-
ble (absent congressional intent otherwise) in large swaths
of Social Security cases involving retroactive benefits, con-
trary to what courts had uniformly held pre-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
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ARELLANO v. MCDONOUGH 33
Mr. Arellano responds that a background principle of
law applying equitable tolling to functionally similar stat-
utes 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 pre-
cise 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 re-
lief against the United States or its agencies apply only to
Government defendants, Irwin’s reasoning would be di-
minished were it instructive only in situations with a read-
ily 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 ap-
plication for attorneys’ fees under the Equal Access to Jus-
tice 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 re-
jected an argument that the relation back doctrine is lim-
ited 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] ana-
logue,” the Court observed that (1) it had previously ap-
plied the relation back doctrine in “analogous settings” to
fee applications; and (2) the doctrine itself predated the
(assuming Irwin’s presumption has not been rebutted),
thereby opening the door for retroactive benefits in numer-
ous different statutory schemes.
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34 ARELLANO v. MCDONOUGH
Federal Rules and had “its roots in [the] former federal eq-
uity practice” of the courts. Id. at 417–18. Rather than
rejecting the requirement for a background principle of
law, the Court’s application of the relation back doctrine in
the context of an EAJA fee application was premised on
just such a principle—namely, the historical practice of the
relation back doctrine outside the limited context of district
court pleadings. Here, however, courts have applied the
presumption of equitable tolling only to statutes of limita-
tions that run once a cause of action accrues, and Mr. Arel-
lano has not identified a case or background principle of
law demonstrating otherwise.
2
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-of-limitations language es-
tablishing when a plaintiff must file an action against a de-
fendant in a tribunal or else lose the claim—the setting
addressed by all statutory provisions treated as statutes of
limitation in the Irwin line.
Section 5110(b)(1) instead addresses a structurally dis-
tinct setting—i.e., filing an initial claim with a federal
agency to obtain monetary benefits from that agency,
wherein the claim’s receipt date determines the amount of
awardable benefits but not whether the claim is barred.
Unlike the traditional context in which a statute of limita-
tions operates, the relevant “defendant” and “tribunal” for
§ 5110(b)(1) are one and the same (the VA), and the “de-
fendant” has yet to violate any legal duty owed to the claim-
ant that would give rise to a cause of action. While Judge
Dyk asserts that the Supreme Court and several circuits
have found equitable tolling applicable to “time require-
ments in administrative agency proceedings,” see Dyk Op.
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ARELLANO v. MCDONOUGH 35
at 3, none of the cases he cites address the type of agency
proceedings relevant here. These cases instead involve fil-
ing deadlines for administrative complaints, which address
the same structural setting as any statute of limitations,
wherein a complainant seeking redress for a respondent’s
breach of duty before an independent tribunal. Cloer, as
previously explained, involved a deadline for filing a peti-
tion before a federal court and not an agency. 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 defend-
ant in federal court. Similarly, Zipes, Kratville v. Runyon,
90 F.3d 195, 198 (7th Cir. 1996), and Farris v. Shinseki,
660 F.3d 557, 563 (1st Cir. 2011), which all relate to the
deadline for filing a charge of discrimination with the
EEOC, address a setting in which an injured complainant
seeks redress before a separate entity (the EEOC) with the
authority to address the asserted breach of duty by the em-
ployer, whether through adjudication, enforcement, or
lesser measures. Thus, none of these cases speak to filing
an initial claim with a federal agency to obtain monetary
benefits from that agency, and we are unaware of any case
holding that a provision with language or operational con-
text similar to § 5110(b)(1) is a statute of limitations.
Section 5110(b)(1), for these additional reasons, would
not have looked like a statute of limitations to Congress,
meaning we cannot presume that Congress intended for
this provision to carry the default feature of equitable toll-
ing. The effective-date provision is therefore not a statute
of limitations but merely determines the starting date for
the right to payment on a veteran’s benefits claim. Because
no background principle of law establishes that we may eq-
uitably toll such a statutory provision, Irwin’s presumption
is inapplicable to § 5110(b)(1)’s effective date provision.
Our reasoning here is consistent with Andrews’ longstand-
ing holding that principles of equitable tolling are inappli-
cable to the one-year period in § 5110(b)(1), see 351 F.3d at
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36 ARELLANO v. MCDONOUGH
1137–38, our equally divided court today leaves that hold-
ing undisturbed.
E
Although § 5110(b)(1) is not a statute of limitations
amenable to equitable tolling, even if Irwin’s presumption
were to apply, equitable tolling would nonetheless be una-
vailable because it is “inconsistent with the text of the rel-
evant statute.” Young, 535 U.S. at 49 (quoting United
States v. Beggerly, 524 U.S. 38, 48 (1998)). “[T]he word ‘re-
buttable’ 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 re-
butted by Congress’ highly detailed statutory scheme dic-
tating specific legislative choices for when a veteran’s claim
may enjoy an effective date earlier than the date it was re-
ceived by the VA.
There are several ways to rebut the presumption of eq-
uitable tolling, all of which seek to answer Irwin’s “nega-
tively phrased question: “Is there good reason to believe
that Congress did not want the equitable tolling doctrine to
apply?” See Brockamp, 519 U.S. at 350. One way “is to
show that Congress made the time bar at issue jurisdic-
tional.” Kwai Fun Wong, 135 S. Ct. at 1631. Another way
is to demonstrate that the statutory text precludes equita-
ble tolling. See Brockamp, 519 U.S. at 352; Beggerly, 524
U.S. at 48. Additionally, the statutory history and admin-
istrative context can demonstrate that Congress did not in-
tend 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 effective-
date 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 jurisdic-
tion, and the filing of a benefits claim more than one year
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ARELLANO v. MCDONOUGH 37
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 120-day filing deadline for Veterans Court ap-
peals to be jurisdictional where the statute “does not speak
in jurisdictional terms or refer in any way to the jurisdic-
tion of the Veterans Court” (cleaned up)). Filing a claim
more than a year after discharge merely means that a pro-
vision of § 5110 other than § 5110(b)(1) governs the claim’s
effective date.
But concluding that § 5110(b)(1)’s effective date provi-
sion is nonjurisdictional does not end our inquiry because
“Congress may preclude equitable tolling of even a nonju-
risdictional statute of limitations.” See Kwai Fun Wong,
135 S. Ct. at 1631 n.2; see also Auburn, 568 U.S. at 149(holding that “the presumption in favor of equitable tolling
does not apply” to a nonjurisdictional agency appeal dead-
line given the statutory history and administrative con-
text); Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 714
(2019) (the mere fact that a statutory provision “lacks ju-
risdictional force . . . does not render it malleable in every
respect,” for such provisions may nonetheless be “manda-
tory” 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 availa-
bility of equitable tolling with its own preferred regime of
concrete deadlines.
Section 5110 begins with the default rule: “Unless spe-
cifically provided otherwise in this chapter, the effective
date of an award . . . shall not be earlier than the date of
receipt of application therefor.” § 5110(a)(1) (emphasis
added). Section 5110(a)(1), together with § 5101(a)’s re-
quirement that a claim “must be filed in order for benefits
to be paid or furnished,” establishes the baseline rule that
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38 ARELLANO v. MCDONOUGH
no benefits may accrue or be awarded before a claim assert-
ing the right to such benefits is filed, “unless specifically
provided” for by statute. Section 5110 then proceeds to list
more than a dozen detailed exceptions to the default rule
that permit an earlier effective date and, as a result, addi-
tional benefits accruing up to one year before the VA re-
ceives the claim. Section 5110(b)(1)’s day-after-discharge
provision is one such enumerated exception. By mandating
that any exception to the default rule must be provided for
“specifically” and “in this chapter,” the most natural read-
ing of § 5110 is that Congress implicitly intended to pre-
clude the general availability of equitable tolling by
explicitly including a more limited, specific selection of eq-
uitable circumstances under which a veteran is entitled to
an earlier effective date and specifying the temporal extent
of the exceptions for those circumstances. 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. Be-
cause none of § 5110’s specifically enumerated exceptions,
nor any other provision “of this chapter,” provide for equi-
table 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. Specifi-
cally, they rely on Kwai Fun Wong’s analysis of the Federal
Tort Claims Act, which states that “[a] tort claim against
the United States shall be forever barred unless it is pre-
sented [to the agency] within two years . . . or unless action
is begun within six months.” 28 U.S.C. § 2401(b) (emphasis
added). There, the Supreme Court held that the phrase
“shall be forever barred,” though “mandatory” and “em-
phatic,” did not render the filing deadline at issue jurisdic-
tional and foreclosed from equitable tolling. Kwai Fun
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ARELLANO v. MCDONOUGH 39
Wong, 135 S. Ct. at 1632–33. But this argument misses the
mark. Kwai Fun Wong stands for the unremarkable prop-
osition that Irwin’s presumption is not rebutted merely be-
cause 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 be-
cause, as the Court explained, most statutes of limitations
are framed in that manner. Id. at 1632. The Court clari-
fied that “Congress must do something special, beyond set-
ting 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 ex-
ception 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 recogniz-
ing any additional, unwritten exceptions.
Indeed, § 5110’s enumeration of a wide range of specific
exceptions to the default rule hews closer to the “highly de-
tailed” and “technical” exceptions that foreclosed equitable
tolling in Brockamp than to Kwai Fun Wong’s “fairly sim-
ple language [that] can often [be] plausibly read as contain-
ing an implied ‘equitable tolling’ exception.” Brockamp,
519 U.S. at 350. At issue in Brockamp was a statute recit-
ing 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 circum-
stances (“operating losses, credit carrybacks, foreign taxes,
self-employment taxes, worthless securities, and bad
debts”). Id. at 351–52. The Court concluded that the stat-
ute’s “detail, its technical language, the iteration of the lim-
itations in both procedural and substantive forms, and the
explicit listing of exceptions, taken together, indicate . . .
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40 ARELLANO v. MCDONOUGH
that Congress did not intend courts to read other unmen-
tioned, open-ended, ‘equitable’ exceptions into the statute
that it wrote,” thereby rebutting the presumption of equi-
table 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 prohibit-
ing an effective date earlier than 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 prin-
ciple of statutory interpretation that absent provisions can-
not 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 ex-
ceptions preclude the judicial recognition of additional eq-
uitable exceptions can, of course, be overcome by “contrary
legislative intent.” See TRW, 534 U.S. at 28 (quoting An-
drus, 446 U.S. at 616–17). But we see nothing in the stat-
utory text, structure, or history that persuades us that
7 Mr. Arellano also argues that the principle of stat-
utory construction quoted from TRW applies only where it
would render one of those exceptions insignificant or super-
fluous. E.g., Appellant’s Supp. Reply Br. 21–22. But while
that principle may be strongest in such a case, it is clearly
instructive even where no exception would be effectively
read out of the statute. See Andrus, 446 U.S. at 616–17
(declining to recognize an additional exception where stat-
ute recites explicitly enumerated exceptions to a general
prohibition, even where no other exception would be ren-
dered superfluous by the addition); United States v. Smith,
499 U.S. 160, 166 (1991) (same).
Case: 20-1073 Document: 96 Page: 44 Filed: 06/17/2021
ARELLANO v. MCDONOUGH 41
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 cir-
cumstances beyond the veteran’s control that may delay
the filing of 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 cor-
rection of military records, § 5110(i). 8
More importantly, § 5110(b)(4) addresses the precise
circumstances that prevented Mr. Arellano—a “veteran
8 Though several of § 5110’s enumerated exceptions
address equitable circumstances in which the filing of a
claim may be delayed, Judge Dyk nonetheless contends
that no provision of § 5110 other than § 5110(b)(4)
“speak[s] to equitable tolling,” and § 5110(b)(4) alone “can
hardly be read as evincing a desire by Congress to elimi-
nate equitable tolling” generally as to disability compensa-
tion. Dyk Op. at 16. He does not explain why, if retroactive
effective date provisions are statutes of limitations (as he
insists), provisions analogous to § 5110(b)(4) that permit an
earlier effective date when a claimant delays filing a claim
due to the death of a spouse or parent, an increase in disa-
bility severity, or even discharge from military service do
not likewise “speak to equitable tolling.” Judge Dyk ap-
pears to argue that Irwin’s presumption may not be rebut-
ted unless a statute explicitly references more than one
circumstance for which courts have traditionally permitted
equitable tolling (e.g., defective pleadings, deception
through defendant’s misconduct, severe disability) but
cites no support for such a proposition. Nor would the enu-
merated exceptions in Brockamp satisfy his heightened
standard for rebutting Irwin’s presumption.
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42 ARELLANO v. MCDONOUGH
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 dis-
ability from applying for disability pension for a period of
at least 30 days beginning on the date on which the veteran
became permanently and totally disabled.” This provision
demonstrates that Congress considered the very circum-
stances that delayed Mr. Arellano from filing a claim and
nonetheless declined to afford equitable relief beyond what
was already provided in § 5110(b)(1). It is not our role as a
court to second-guess Congress’ judgment as to when such
equitable exceptions are warranted. To decide otherwise
would amount to “[a]textual judicial supplementation,”
which “is particularly inappropriate when, as here, Con-
gress has shown that it knows how to adopt the omitted
language or provision” that would equitably toll
§ 5110(b)(1) for permanently and totally disabled veterans.
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 excep-
tions into the statute.
Though we need not look beyond the unambiguous
statutory text, the statutory history of § 5110 reinforces
our conclusion that Congress did not intend for equitable
tolling to apply to § 5110(b)(1)’s effective date provision. In
the seventeen years since our court decided Andrews in
2003, we have repeatedly followed its holding, each time
reiterating that equitable tolling is inapplicable to § 5110’s
effective date rules. See Titone v. McDonald, 637 F. App’x
592, 593 (Fed. Cir. 2016) (per curiam); Butler v. Shinseki,
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ARELLANO v. MCDONOUGH 43
603 F.3d 922, 926 (Fed. Cir. 2010) (per curiam); AF v. Ni-
cholson, 168 F. App’x 406, 408–09 (Fed. Cir. 2006); Ash-
baugh v. Nicholson, 129 F. App’x 607, 609 (Fed. Cir. 2005)
(per curiam). Congress has amended § 5110 four times
since Andrews, and at no point has it expressed disap-
proval of Andrews and its progeny or otherwise indicated
that equitable tolling is available under this statute. See
Auburn, 568 U.S. at 159 (no legislative intent of equitable
tolling where Congress had amended the relevant statute
“six times since 1974, each time leaving [the provision at
issue] untouched” and had never “express[ed] disapproval”
of the agency’s longstanding regulation setting deadlines).
To the contrary, Congress’ amendments adding provisions
§ 5110(a)(2)–(3) under the Veterans Appeals Improvement
and Modernization Act of 2017 (AMA), Pub. L. No. 115–55,
§ 2(l), 131 Stat. 1105, 1110, underscore an intent to con-
tinue limiting retroactivity to one year. See § 5110(a)(2) (a
claim receiving an adverse decision retains “the date of the
filing of the initial application for a benefit” as the effective
date on appeal if the claim is “continuously pursued”
within “one year after the date” of the adverse decision);
§ 5110(a)(3) (the effective date of “supplemental claims re-
ceived more than one year” after the RO or Board decision
“shall not be earlier than the date of receipt of the supple-
mental claim” (emphasis added)).
The statutory history of § 5110(b)(4) also confirms that
Congress did not intend to provide more equitable relief
than what was specifically enumerated in the statute.
When § 5110(b)(4) was proposed in 1973, Congress ex-
plained that “[t]he 1-year period prescribed by the proposal
. . . is considered reasonable” to address the filing “delays”
of “permanently and totally disabled” veterans whose “very
condition upon which entitlement may depend may also
prevent prompt application for benefit.” See H.R. Rep. No.
93-398), at 14 (1973) (emphases added). Congress, moreo-
ver, remarked that the proposed one-year grace period
would bring the effective-date rules governing disability
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44 ARELLANO v. MCDONOUGH
pension into conformity with those already governing disa-
bility compensation in § 5110(b)(1) and death benefits in
§ 5110(d). See id. Because § 5110(b)(4)’s one-year grace
period was considered a “reasonable” equitable remedy for
filing delays by permanently and totally disabled veterans,
this statutory history supports our conclusion that Con-
gress did not intend for equitable tolling of § 5110(b)(1)’s
analogous one-year grace period.
While acknowledging that § 5110(b)(4) speaks to equi-
table tolling and indicates “Congressional willingness to
delay veterans’ filing obligations where a disability makes
meeting them difficult or impossible,” see Dyk Op. at 26,
Judge Dyk nonetheless argues that this provision merely
signals “a beneficent Congressional act, [and] not a rebut-
tal of the Irwin presumption,” id. at 16 (citing Cloer, 654
F.3d at 1343). 9 But this ignores Cloer’s precise reasoning.
Cloer explains that enumerated statutory exceptions do not
necessarily rebut Irwin’s presumption where those excep-
tions address a “special need” that is unrelated to equitable
tolling concerns. See id. Unlike § 5110(b)(4) and other ex-
ceptions addressing specific equitable circumstances war-
ranting a delayed claim filing, Cloer concluded that the two
exceptions to the Vaccine Act’s 36-month filing deadline
are driven by “specific concern[s] unrelated to equitable
tolling considerations,” such as minimizing “confusion” and
addressing “scientific advances in medicine,” and thus do
not “show a desire by Congress to bar equitable tolling.” Id.
at 1343–44; see also, id. at 1343 (“Individual factual
9 Despite maintaining that § 5110(b)(4) does not sig-
nal congressional intent to preclude equitable tolling be-
yond the statutory limits, Judge Dyk nonetheless claims
this provision demonstrates congressional intent to deny
Mr. Arellano and other disabled claimants with a caregiver
or other representative equitable relief beyond what is ex-
pressly provided by statute. See Dyk Op. at 22–24.
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ARELLANO v. MCDONOUGH 45
circumstances, the first of equitable tolling claims, played
no role in enactment of this provision.”).
Mr. Arellano and Judge Dyk also argue that § 5110’s
listed exceptions are irrelevant because they are exceptions
to § 5110(a)(1)’s default effective-date rule, and not
§ 5110(b)(1)’s one-year grace period. In their view, the
question is whether § 5110(b)(1)’s one-year period can be
tolled, and because that period does not itself have any enu-
merated exceptions, precedent such as TRW and Brockamp
are not controlling. But this argument ignores that tolling
§ 5110(b)(1)’s one-year grace period would operate as an ex-
ception to not only § 5110(b)(1)’s one-year grace period but
also to § 5110(a)(1)’s default rule. This follows because, as
mentioned, § 5110(b)(1) is itself an equitable exception to
§ 5110(a)(1)’s default rule. Cf. Beggerly, 524 U.S. at 48 (de-
clining to further toll a statute “providing that the statute
of limitations will not begin to run until plaintiff ‘knew or
should have known of [the government’s] claim,’ [because
it] has already effectively allowed for equitable tolling”). It
would be odd to conclude that, because Congress chose to
soften the default effective-date rule by providing specific
enumerated equitable exceptions, it has somehow opened
the door for courts to create their own exceptions-to-the-
exception through equitable tolling.
Mr. Arellano further argues that the relevant adminis-
trative context and subject matter of § 5110(b)(1)—veter-
ans’ benefits—support equitable tolling. We acknowledge
that Congress is more likely to have intended equitable
tolling for statutes “designed to be ‘unusually protective’ of
claimants” where “laymen, unassisted by trained lawyers,
initiate the process.” See Auburn, 568 U.S. at 160 (citing
Bowen v. City of New York, 476 U.S. 467, 480 (1986) and
Zipes, 455 U.S. at 397). And it is undoubtedly true that the
statutory scheme for veterans’ benefits is “uniquely pro-
claimant [in] nature,” Hensley v. West, 212 F.3d 1255, 1262
(Fed. Cir. 2000), and imbued with “[t]he solicitude of
Case: 20-1073 Document: 96 Page: 49 Filed: 06/17/2021
46 ARELLANO v. MCDONOUGH
Congress for veterans,” United States v. Oregon, 366 U.S.
643, 647 (1961).
But these general background principles cannot over-
ride the unambiguous meaning of the statutory text. See
Kisor v. Wilkie, 139 S. Ct. 2400, 2415–16 (2019) (ambiguity
often resolved by full consideration of “text, structure, his-
tory, and purpose”); cf. Andrus, 446 U.S. at 618–19
(“[A]lthough the rule by which legal ambiguities are re-
solved to the benefit to the Indians is to be given the broad-
est possible scope, a canon of construction is not a license
to disregard clear expressions of . . . congressional intent.”
(cleaned up)); see also Conn. Nat’l Bank v. Germain,
503 U.S. 249, 253 (1992) (“canons of construction are no
more than rules of thumb,” and the text is the “one, cardi-
nal canon” a court must turn to “before all others”). Here,
for the reasons we have set forth, the comprehensiveness
of the congressionally enumerated exceptions to the
§ 5110(a)(1) default rule leave no room for additional judi-
cially recognized exceptions. Similarly, the language, con-
text, and characteristics of the § 5110(b)(1) time provision
leave no room for reasonably concluding that Congress
viewed it as a statute of limitations. Those conclusions
leave no ambiguity. Where, as here, “the words of a statute
are unambiguous, this first step of the interpretive inquiry
is our last.” Rotkiske, 140 S. Ct. at 360.
We recognize there are circumstances under which it
may seem unjust to preclude equitable tolling. But where
the statutory text demonstrates “a clear intent to preclude
tolling, courts are without authority to make exceptions
merely because a litigant appears to have been diligent,
reasonably mistaken, or otherwise deserving.” Nutraceuti-
cal, 139 S. Ct. at 714; see also California v. Sierra Club,
451 U.S. 287, 297 (1981) (“The federal judiciary will not en-
graft a remedy on a statute, no matter how salutary, that
Congress did not intend to provide.”). “Under the system
of government created by our Constitution, it is up to leg-
islatures, not courts, to decide on the wisdom and utility of
Case: 20-1073 Document: 96 Page: 50 Filed: 06/17/2021
ARELLANO v. MCDONOUGH 47
legislation.” Ferguson v. Skrupa, 372 U.S. 726, 729 (1963);
see also United States v. First Nat’l Bank of Detroit,
234 U.S. 245, 260 (1914) (“The responsibility for the justice
or wisdom of legislation rests with the Congress, and it is
the province of the courts to enforce, not to make, the
laws.”).
For these reasons, equitable tolling is inconsistent with
Congress’ intent in enacting § 5110(b)(1), and Irwin’s pre-
sumption—were it to apply in this instance—would have
been rebutted.
F
Lastly, we briefly address Judge Dyk’s conclusion that
equitable tolling is unavailable on the undisputed facts of
Mr. Arellano’s appeal. See Dyk Op. at 26 n.20. Because
both the Board and the Veterans Court concluded that eq-
uitable tolling was categorically unavailable for
§ 5110(b)(1) as a matter of law, neither had reason to con-
sider whether the specific facts of Mr. Arellano’s case justi-
fied equitable tolling. Nor did they consider whether
further factual development would be warranted if equita-
ble tolling were not categorically unavailable. In the event
of a reversal, Mr. Arellano has requested that we remand
this case for further proceedings so he can present why his
factual circumstances warrant equitable tolling. See Ap-
pellant’s Suppl. Br. 49; Appellant’s Br. 32. The govern-
ment, for its part, has never argued in this court that we
can—or should—affirm the denial of equitable tolling on
the facts of Mr. Arellano’s case; it has only argued that eq-
uitable tolling is unavailable as a matter of law.
However, Judge Dyk contends that we may determine
the application of equitable tolling in the first instance
“[w]here the facts are undisputed, [and] all that remains is
a legal question, even if that legal question requires the ap-
plication of the appropriate standard to the facts of a par-
ticular case.” Dyk Op. at 26 n.20 (quoting Former
Employees of Sonoco Prod. Co. v. Chao, 372 F.3d 1291,
Case: 20-1073 Document: 96 Page: 51 Filed: 06/17/2021
48 ARELLANO v. MCDONOUGH
1294–95 (Fed. Cir. 2004)). But neither Former Employees,
nor any case cited within, holds that we may apply a legal
standard to the facts where the Veterans Court (and the
Board): (1) did not address any of those facts in denying
equitable tolling; (2) made no factual findings on this issue;
(3) did not consider whether further factual development
may be warranted to adequately answer that question; and
(4) did not consider Judge Dyk’s rigid “caregiver rule” that
bars equitable tolling for totally and permanently disabled
veterans who have a caregiver. For that reason, it is un-
surprising that Mr. Arellano has not alleged “any special
circumstances” in relation to his caregiver, as Judge Dyk
observes, since no one until today had suggested that hav-
ing a caregiver creates a default presumption against equi-
table tolling in this context or in any other setting where
equitable tolling can arise. Thus, even if Irwin’s presump-
tion of equitable tolling were to apply to § 5110(b)(1), which
it does not, we would remand this case for further factual
development—which is all the more justified because Mr.
Arellano has expressly requested this outcome under such
circumstances and no party has argued that we may affirm
the Veterans Court’s decision on factual grounds.
CONCLUSION
For the aforementioned reasons, and consistent with
our longstanding holding in Andrews, § 5110(b)(1) is not a
statute of limitations subject to Irwin’s presumption of eq-
uitable tolling. But even if Irwin’s presumption were to ap-
ply, it would be rebutted by the statutory text of § 5110,
which evinces clear intent from Congress to foreclose equi-
table tolling of § 5110(b)(1)’s one-year period.
Case: 20-1073 Document: 96 Page: 52 Filed: 06/17/2021
United States Court of Appeals
for the Federal Circuit
______________________
ADOLFO R. ARELLANO,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2020-1073
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 18-3908, Judge Michael P. Allen.
______________________
Decided: June 17, 2021
______________________
DYK, Circuit Judge, with whom NEWMAN, O’MALLEY,
REYNA, WALLACH, and STOLL, Circuit Judges, join, concur-
ring in the judgment.
The court here agrees that Mr. Arellano’s claim for
benefits was untimely, but the court is equally divided on
the question whether 38 U.S.C. § 5110(b)(1) is subject to
equitable tolling. Judge Chen (joined by Chief Judge
Moore and Judges Lourie, Prost, Taranto, and Hughes)
would hold that the section is not a statute of limitations,
and, even if it were, the presumption of equitable tolling
under Irwin has been rebutted. An equal number of judges
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2 ARELLANO v. MCDONOUGH
(Judges Newman, O’Malley, Reyna, Wallach, Stoll, and
myself) join this opinion and would hold that § 5110(b)(1)
is a statute of limitations subject to equitable tolling, that
the Irwin presumption of equitable tolling applies, but that
§ 5110(b)(1) cannot be equitably tolled for mental disability
in the circumstances of this case.
I
The effective date of an award of service-connected ben-
efits is governed by 38 U.S.C. § 5110. “Unless specifically
provided otherwise in this chapter, the effective date of an
award . . . shall be fixed in accordance with the facts found,
but shall not be earlier than the date of receipt of applica-
tion therefor.” 38 U.S.C. § 5110(a)(1). An exception to
§ 5110(a)(1) is available under § 5110(b)(1), which pro-
vides:
The effective date of an award of disability compen-
sation to a veteran shall be the day following the
date of the veteran’s discharge or release if appli-
cation therefor is received within one year from
such date of discharge or release.
38 U.S.C. § 5110(b)(1); see also 38 C.F.R. § 3.400(b)(2)(i)
(2020) (“Day following separation from active service or
date entitlement arose if claim is received within 1 year af-
ter separation from service; otherwise, date of receipt of
claim, or date entitlement arose, whichever is later.”).
Here, the claim for benefits was filed on June 3, 2011,
thirty years after the veteran’s discharge, and benefits
were allowed as of the date the claim was filed, June 3,
2011. The question is whether § 5110(b)(1) may be equita-
bly tolled based on mental disability so that the veteran
can receive retroactive benefits to the date his entitlement
arose, which was within a year of his discharge, thirty
years earlier.
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ARELLANO v. MCDONOUGH 3
II
“Time requirements in lawsuits between private liti-
gants are customarily subject to ‘equitable tolling.’” Irwin
v. Dep’t of Veterans Affs., 498 U.S. 89, 95 (1990) (quoting
Hallstrom v. Tillamook Cnty., 493 U.S. 20, 27 (1989)). Ir-
win held that “the same rebuttable presumption of equita-
ble tolling applicable to suits against private defendants
should also apply to suits against the United States.” Id.at 95–96.
The Supreme Court and several circuits have found eq-
uitable tolling to be applicable to time requirements in ad-
ministrative agency proceedings. See Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 393 (1982) (“[F]iling a timely
charge of discrimination with the [Equal Employment Op-
portunity Commission] is . . . a requirement that, like a
statute of limitations, is subject to . . . equitable tolling.”);
Farris v. Shinseki, 660 F.3d 557, 563 (1st Cir. 2011) (cita-
tion omitted) (“[F]ailure to comply with an agency’s appli-
cable time limit may expose the plaintiff’s federal law suit
to dismissal . . . subject to narrowly applied equitable doc-
trines such as tolling . . . .”); Kratville v. Runyon, 90 F.3d
195, 198 (7th Cir. 1996) (“Because the deadlines for filing
administrative complaints operate as statutes of limita-
tions, the doctrines of equitable tolling and estoppel ap-
ply.”). The Supreme Court has “never suggested that the
presumption in favor of equitable tolling is generally inap-
plicable to administrative deadlines,” Sebelius v. Auburn
Reg’l Med. Ctr., 568 U.S. 145, 162 (2013) (Sotomayor, J.,
concurring), and has suggested that Irwin can apply to
“matters such as the administration of benefit programs,”
Scarborough v. Principi, 541 U.S. 401, 422 (2004).
III
The framework governing the Irwin presumption of eq-
uitable tolling has two steps.
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4 ARELLANO v. MCDONOUGH
The first step is determining whether the statute is a
statute of limitations, in which case the Irwin presumption
will apply. Courts “have only applied [the] presumption [of
equitable tolling] to statutes of limitations,” Lozano v. Mon-
toya Alvarez, 572 U.S. 1, 13–14 (2014), or a “filing period”
that “operate[s] as a statute of limitations,” Zipes, 455 U.S.
at 394. The second step is determining if the presumption
has been rebutted.
A
Judge Chen at the first step would hold that 38 U.S.C.
§ 5110(b)(1) is not a statute of limitations or otherwise sub-
ject to tolling, and he would reaffirm our Andrews panel
decision in this respect. I think this view is quite clearly
incorrect.
Judge Chen urges that the limitations period on past
benefits for disability compensation in § 5110(b)(1) is not a
statute of limitations because the one-year period “[1] is not
triggered by harm from the breach of a legal duty owed by
the opposing party, and [2] it does not start the clock on
seeking a remedy for that breach from a separate remedial
entity.” Chen Op. 13 (citing 1 Calvin W. Corman,
LIMITATION OF ACTIONS, § 6.1, at 370 (1991)). In Judge
Chen’s view, § 5110(b)(1) is not a statute of limitations be-
cause “there is no duty, or breach of duty, at the onset of
§ 5110(b)(1)’s one-year period (i.e., the day after discharge)”
and “no remedial authority separate from the [Department
of Veterans Affairs (“VA”)] is involved in an initial applica-
tion for veterans’ benefits.” Id. at 13–14.
Judge Chen’s opinion is bereft of support for these sup-
posed rules. The cited treatise contains only general lan-
guage describing general principles of statutes of
limitations. See Corman, supra, § 6.1, at 370 (“The earliest
opportunity for a complete and present cause of action is
that moment when the plaintiff has suffered a legally rec-
ognizable harm at the hands of the defendant, such as the
time of contract breach or the commission of a tortious
Case: 20-1073 Document: 96 Page: 56 Filed: 06/17/2021
ARELLANO v. MCDONOUGH 5
wrong.”). Judge Chen cites no case, and I am aware of
none, holding that statutes of limitations are limited as
Judge Chen suggests. 1
The cases establish that there are no such rules. The
notion that statutes of limitations are triggered only by a
breach of legal duty is quite inconsistent with cases holding
that a provision barring benefits for failure to file within a
prescribed period constitutes a statute of limitations, re-
gardless of any alleged breach of duty by the government.
This has been made clear by Scarborough, where (as noted
above) the Supreme Court explained that Irwin’s reasoning
may extend to “the administration of benefit programs.”
541 U.S. at 422.
A primary example of a no-fault statute of limitations
is the National Childhood Vaccine Injury Act of 1986 (“Vac-
cine Act”), which requires that, for vaccines administered
after October 1, 1988, a “petition” for “compensation” for a
vaccine-related injury be filed within 36 months “after the
date of the occurrence of the first symptom or manifesta-
tion of onset . . . of such injury.” 42 U.S.C. § 300aa-16(a)(2).
Vaccine Act claims are not tied to fault by the govern-
ment. The system established by the Vaccine Act “was ‘in-
tended to be expeditious and fair’ and ‘to compensate
persons with recognized vaccine injuries . . . without a
1 Judge Chen relies on Hallstrom, which concerned
the citizen suit provision of the Resource Conservation and
Recovery Act of 1976 that required 60 days’ notice before
filing suit. See 493 U.S. at 22 (citing 42 U.S.C. § 6972(b)(1)
(1982)). Hallstrom noted in passing that, “[u]nlike a stat-
ute of limitations,” the “60-day notice provision is not trig-
gered by the violation giving rise to the action.” Id. at 27.
The Supreme Court’s characterization of the notice provi-
sion at issue in Hallstrom hardly suggests that a violation
is essential to the existence of statute of limitations.
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6 ARELLANO v. MCDONOUGH
demonstration that a manufacturer was negligent or that
a vaccine was defective.’” Zatuchni v. Sec’y of Health &
Hum. Servs., 516 F.3d 1312, 1316 (Fed. Cir. 2008) (quoting
H.R. Rep. 99-908, at 12, reprinted in 1986 U.S.C.C.A.N.
6344, 6353).
Under this compensation system, vaccine-injured
persons may obtain a full and fair award for their
injuries even if the manufacturer has made as safe
a vaccine as possible. Petitioners are compensated
because they suffered harm from the vaccine—even
a ‘safe’ one—not because they demonstrated
wrongdoing on the part of the manufacturer.
H.R. Rep. 99-908, at 26, reprinted in 1986 U.S.C.C.A.N. at
6367.
We have nonetheless held en banc that 42 U.S.C.
§ 300aa-16(a)(2) establishes a statute of limitations subject
to equitable tolling under Irwin. See Cloer v. Sec’y of
Health & Hum. Servs., 654 F.3d 1322, 1340–44 (Fed. Cir.
2011) (en banc); see also id. at 1341 n.9. We held that “[t]he
statute of limitations begins to run on a specific statutory
date: the date of occurrence of the first symptom or mani-
festation of onset of the vaccine-related injury recognized
as such by the medical profession at large.” Id. at 1340.
We reached this conclusion because “the plain words of the
statute trigger the statute of limitations on the date of the
first symptom or manifestation of onset of the injury
claimed,” and Congress did not intend for a discovery rule
to apply. See id. at 1336, 1340. The prescribed period is a
statute of limitations even though the underlying claim is
not based on a breach of duty, either by the government or
the manufacturer. See Zatuchni, 516 F.3d at 1316; H.R.
Rep. 99-908, at 12, reprinted in 1986 U.S.C.C.A.N. at 6353.
The second of Judge Chen’s factors—the involvement
of a “separate remedial entity,” Chen Op. 13—is also incon-
sistent with cases in the administrative context, in which
the Supreme Court and other courts have made clear that
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ARELLANO v. MCDONOUGH 7
a statute governing the timeliness of a claim to an agency
for payment from that agency is a statute of limitations.
See United States v. Williams, 514 U.S. 527, 534 & n.7
(1995) (26 U.S.C. § 6511(a) is a “statute of limitations” that
“bar[s] . . . tardy” tax refund claims filed with the Internal
Revenue Service); Colvin v. Sullivan, 939 F.2d 153, 156
(4th Cir. 1991) (referring to 42 U.S.C. § 1320b-2(a), which
provides for a two-year period during which states are per-
mitted to file claims with the federal government for ex-
penditures made in carrying out a state plan under specific
subchapters of the codification of the Social Security Act,
as a “statute of limitations”); cf. Warren v. Off. of Pers.
Mgmt., 407 F.3d 1309, 1316 (Fed. Cir. 2005) (referring to
the two-year period “after the date on which the marriage
of [a] former spouse . . . is dissolved” to make an election
with the Office of Personal Management to provide a sur-
vivor annuity for the former spouse, see 5 U.S.C.
§ 8339(j)(3), as a “statute of limitations”).
B
Judge Chen offers an alternative theory—that
§ 5110(b)(1) is not a statute of limitations because it “does
not eliminate a veteran’s ability to collect benefits for [a
service-connected] disability,” Chen Op. 13, but instead
“forgives a veteran’s temporary delay in filing a claim in
the immediate aftermath of a veteran’s transition back to
civilian life upon discharge from military service,” id. at 19
(emphasis omitted). In my view, this analysis blinks real-
ity.
The claim for benefits here has two components: (1) a
retrospective claim for benefits for past disability, and (2) a
prospective claim for future benefits. The statute imposes
no statute of limitations for prospective benefits, and a vet-
eran may be entitled to forward-looking benefits after the
one-year period prescribed by § 5110(b)(1) runs. See Hen-
derson v. Shinseki, 562 U.S. 428, 431 (2011) (“A veteran
faces no time limit for filing a claim . . . .”). But § 5110(b)(1)
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8 ARELLANO v. MCDONOUGH
does impose what is clearly a one-year statute of limita-
tions for retrospective claims—making retrospective bene-
fits unavailable unless the claim is filed within one year
after discharge. Section 5110(b)(1) is a “more limited stat-
ute of limitations,” see Young v. United States, 535 U.S. 43,
48 (2002), applicable only to retrospective benefit claims,
but it is a statute of limitations nonetheless. Sec-
tion 5110(b)(1) “is a limitations period because it prescribes
a period within which certain rights . . . may be enforced.”
See id. at 47. It bars retroactive benefits if the claim is filed
more than a year after discharge.
This approach to periods of limitations for claims for
benefits is not unusual. Government benefits programs of-
ten provide that an individual qualifying for benefits may
recover future benefits once an application is filed but is
limited in the recovery of past benefits to a set period before
the filing of the application. One example is the statute
providing for Social Security disability benefits, which pro-
vides no limit on the recovery of future benefits once an ap-
plication has been filed but imposes a twelve-month
limitations periods on the recovery of past benefits—in
other words, a statute of limitations. Begley v. Weinberger,
400 F. Supp. 901, 911 (S.D. Ohio 1975) (noting a “one-year
statute of limitations upon the availability of retroactive
disability insurance benefits” established by 42 U.S.C.
§ 423(b)). 2
2 The cases Judge Chen cites, both decided before Ir-
win, are not to the contrary. See Chen Op. 31 (citing Yeiter
v. Sec’y of Health & Hum. Servs., 818 F.2d 8, 10 (6th Cir.
1987); and then citing Sweeney v. Sec’y of Health, Ed. &
Welfare, 379 F. Supp. 1098, 1100 (E.D.N.Y. 1974)).
Yeiter rejected the argument that “Congress did not in-
tend the one-year limit on retroactive benefits [in 42 U.S.C.
§ 423(b)] to apply where the failure to file for benefits arises
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ARELLANO v. MCDONOUGH 9
Section 5110(b)(1) is nearly the same as the statutes of
limitation in copyright actions and patent infringement,
where the statutes bar recovery for past events if the claim
is not filed within a specified period, but permit recovery
for future acts. The copyright limitations period is gov-
erned by 17 U.S.C. § 507, 3 which the Supreme Court has
described as a “limitations period [that] allows plaintiffs
during [the copyright] term to gain retrospective relief run-
ning only three years back from the date the complaint was
filed.” Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S.
663, 672 (2014); see also id. at 670 (describing copyright
limitations period as a “a three-year look-back limitations
period”). 4 Thus, “the infringer is insulated from liability
for earlier infringements of the same work.” Id. at 671.
Likewise, § 5110(b)(1) is similar to the limitations pe-
riod in patent infringement actions, 35 U.S.C. § 286, 5
which “represents a judgment by Congress that a patentee
from the disability itself.” 818 F.2d at 9. Sweeney held that
“equitable considerations [were] irrelevant” to the applica-
tion of § 423 “to this case.” 379 F. Supp. at 1100–01. Nei-
ther held that § 423(b) is not a statute of limitations.
3 “No civil action shall be maintained under the pro-
visions of this title unless it is commenced within three
years after the claim accrued.” 17 U.S.C. § 507(b).
4 The copyright statute of limitations has been held
to be subject to equitable tolling. See Prather v. Neva Pa-
perbacks, Inc., 446 F.2d 338, 340 (5th Cir. 1971) (“[T]he in-
tent of the drafters [of the predecessor of § 507(b)] was that
the limitations period would affect the remedy only, not the
substantive right, and that equitable considerations would
therefore apply to suspend the running of the statute.”).
5 “Except as otherwise provided by law, no recovery
shall be had for any infringement committed more than six
years prior to the filing of the complaint or counterclaim for
infringement in the action.” 35 U.S.C. § 286.
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10 ARELLANO v. MCDONOUGH
may recover damages for any infringement committed
within six years of the filing of the claim.” SCA Hygiene
Prods. Aktiebolag v. First Quality Baby Prods., LLC, 137 S.
Ct. 954, 961 (2017). In so holding, the Supreme Court re-
jected the argument that § 286 was not a “true statute of
limitations” because it “runs backward from the time of
suit.” Id. at 961–62 (citing Petrella, 572 U.S. at 672). 6
Judge Chen attempts to distinguish these cases on the
ground that Ҥ 5110(b)(1) establishes the effective date of a
single benefits claim for an ongoing disability, whereas an
ongoing course of infringement in Petrella and SCA Hy-
giene comprises a ‘series of discrete infringing acts,’ each of
which is a distinct harm giving rise to an independent
claim for relief that starts a new limitations period.” Chen
Op. 20 (quoting Petrella, 572 U.S. at 671–72). The same is
true here. The claim is not a single benefits claim, but a
claim for a series of payments allegedly due. See 38 U.S.C.
§ 1110 (establishing basic entitlement for disability com-
pensation); id. § 1114 (providing monthly rates for disabil-
ity compensation); id. § 1115 (providing additional
compensation for dependents); see also Veterans’ Compen-
sation Cost-of-Living Adjustment Act of 2020, Pub. L. 116-
178, 134 Stat. 853 (providing cost-of-living adjustment).
The Supreme Court’s decision in Young, 535 U.S. 43,
also supports the view that § 5110(b)(1) is a statute of lim-
itations. In Young, the Supreme Court considered whether
a three-year lookback period provided by § 507 of the Bank-
ruptcy Code was a statute of limitations. See 11 U.S.C.
§ 507(a)(8)(A)(i). Under this lookback period, “[i]f the IRS
has a claim for taxes for which the return was due within
6 The holdings of Petrella and SCA Hygiene ad-
dressed whether the provisions were statutes of limitations
because that affected application of the doctrine of laches.
See Petrella, 572 U.S. at 686; SCA Hygiene, 137 S. Ct. at
967.
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ARELLANO v. MCDONOUGH 11
three years before the bankruptcy petition was filed, the
claim enjoys eighth priority . . . and is nondischargeable in
bankruptcy.” Young, 535 U.S. at 46. “The period thus en-
courages the IRS to protect its rights—by, say, collecting
the debt, or perfecting a tax lien—before three years have
elapsed.” Id. at 47 (citations omitted). “If the IRS sleeps
on its rights, its claim loses priority and the debt becomes
dischargeable.” Id. The Supreme Court acknowledged
that, “unlike most statutes of limitations, the lookback pe-
riod bars only some, and not all, legal remedies for enforc-
ing the claim,” id. (footnote omitted), and noted that
“[e]quitable remedies may still be available,” id. at 47 n.1.
That qualification “ma[de] it a more limited statute of lim-
itations, but a statute of limitations nonetheless” subject to
equitable tolling. Id. at 48.
In determining that the lookback period was a statute
of limitations, the Supreme Court found it significant that
“the lookback period serve[d] the same ‘basic policies [fur-
thered by] all limitations provisions: repose, elimination of
stale claims, and certainty about a plaintiff’s opportunity
for recovery and a defendant’s potential liabilities.’” Young,
535 U.S. at 47 (second alteration in original) (quoting
Rotella v. Wood, 528 U.S. 549, 555 (2000)).
Section 5110(b)(1), like the provision at issue in Young,
serves the same basic policies of limitations periods. It en-
courages veterans to file for disability compensation bene-
fits within a year of their discharge, or else lose retroactive
benefits that they would otherwise be entitled to. It limits
veterans’ “opportunity for recovery” and the government’s
“potential liabilities,” see Rotella, 528 U.S. at 555, to only
forward-looking benefits if the filing deadline is missed.
Judge Chen attempts to find support in the Supreme
Court’s Lozano decision. Lozano involved Article 12 of the
Hague Convention on the Civil Aspects of International
Child Abduction, which was held not to be a statute of lim-
itations. “When a parent abducts a child and flees to
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12 ARELLANO v. MCDONOUGH
another country,” the Hague Convention “generally re-
quires that country to return the child immediately if the
other parent requests return within one year.” Lozano, 572
U.S. at 4. After the one-year period has expired, under Ar-
ticle 12, the court “shall also order the return of the child,
unless it is demonstrated that the child is now settled.” Id.
at 15 (citation and quotation marks omitted). Lozano did
not involve a statute, but rather a treaty provision, which
“was not adopted against a shared background of equitable
tolling.” Id. at 11. Also, this treaty provision in Lozano did
not provide a cut-off for monetary recovery, unlike
§ 5110(b)(1), which provides “certainty about a plaintiff’s
opportunity for recovery and a defendant’s potential liabil-
ities” by providing a cut-off date for retroactive disability
benefits. See Rotella, 528 U.S. at 555. Lozano has no rele-
vance here.
Nor is this case similar to Hallstrom, on which Judge
Chen also relies. As noted above, Hallstrom concerned a
60-day notice provision of the Resource Conservation and
Recovery Act of 1976. 493 U.S. at 22 (citing 42 U.S.C.
§ 6972(b)(1) (1982)). The Supreme Court held that this
“60-day notice provision” was “[u]nlike a statute of limita-
tions” because “petitioners [had] full control over the tim-
ing of their suit: they need only give notice to the
appropriate parties and refrain from commencing their ac-
tion for at least 60 days.” Id. at 27. Section § 5110(b)(1) is
not a notice provision.
In sum, § 5110(b)(1) is a statute of limitations, and the
Irwin rebuttable presumption of equitable tolling applies.
As Judge Newman has noted, “[t]he time period of
§ 5110(b)(1) is not a jurisdictional restriction, and its blan-
ket immunization from equitable extension, whatever the
circumstances, appears to be directly contrary to the legis-
lative purpose.” Butler v. Shinseki, 603 F.3d 922, 928 (Fed.
Cir. 2010) (Newman, J., concurring in the result).
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ARELLANO v. MCDONOUGH 13
IV
“To be sure, Irwin’s presumption is rebuttable.” United
States v. Kwai Fun Wong, 575 U.S. 402, 419 (2015). Judge
Chen concludes that even if the presumption of equitable
tolling applies to § 5110(b)(1), the presumption has been
rebutted. I disagree. Congress has not clearly indicated a
general prohibition against equitable tolling as to
§ 5110(b)(1).
The Supreme Court has identified several factors that
determine whether the equitable tolling presumption has
been rebutted, and here, almost all of the factors signal
that there is no general prohibition against equitable toll-
ing. 7
The first factor is the language of the statute. The lan-
guage of a statute of limitations may indicate that it is ju-
risdictional, in which case a court must enforce the
limitation “even if equitable considerations would support
extending the prescribed time period.” Kwai Fun Wong,
575 U.S. at 408–09. In determining whether a statute is
jurisdictional, courts have often held that it does not mat-
ter if a statute’s language is “mandatory” or “emphatic” if
“text speaks only to a claim’s timeliness, not to a court’s
power.” Id. at 410–11.
Section 5110(b)(1) is not jurisdictional, as Judge Chen
concedes. Chen Op. 36–37. Nevertheless, Judge Chen re-
lies on the use of the phrase “[u]nless specifically provided
otherwise in this chapter” in § 5110(a)(1), concluding that
by using that term, Congress “implicitly intended to pre-
clude the general availability of equitable tolling by
7 Our decision in Cloer identified many of the same
factors. See 654 F.3d at 1342. The Supreme Court has
identified further factors since we decided Cloer that I dis-
cuss here. See generally Auburn, 568 U.S. 145; Kwai Fun
Wong, 575 U.S. 402.
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14 ARELLANO v. MCDONOUGH
explicitly including a more limited, specific selection of eq-
uitable circumstances under which a veteran is entitled to
an earlier effective date and specifying the temporal extent
of the exceptions for those circumstances.” Id. at 37–38.
In Kwai Fun Wong, the Supreme Court held that the
use of the phrase “shall be forever barred” in the Federal
Tort Claims Act limitations period, 28 U.S.C. § 2401(b),
though “mandatory” and “emphatic,” “[spoke] only to a
claim’s timeliness, not to a court’s power,” and did not des-
ignate § 2401(b) as a jurisdictional time bar not subject to
equitable tolling. 575 U.S. at 410–11. Here, too, the phrase
“[u]nless specifically provided otherwise in this chapter” in
§ 5110(a)(1), though mandatory and emphatic, does not
clearly foreclose equitable tolling of § 5110(b)(1).
Second, the detailed nature of a statute may suggest
that Congress did not intend for a statute of limitations to
be equitably tolled. “Ordinarily limitations statutes use
fairly simple language, which one can often plausibly read
as containing an implied ‘equitable tolling’ exception.”
United States v. Brockamp, 519 U.S. 347, 350 (1997). A
statute that “uses language that is not simple” and “sets
forth its limitations in a highly detailed technical manner,
that, linguistically speaking, cannot easily be read as con-
taining implicit exceptions” could indicate Congress’s in-
tent to preclude equitable tolling. Id.Judge Chen determines that the language and struc-
ture of § 5110’s subsections are “highly detailed” and “tech-
nical.” Chen Op. 39 (quoting Brockamp, 519 U.S. at 350).
While it is true that § 5110 is a detailed statute, it “use[s]
fairly simple language.” See Brockamp, 519 U.S. at 350.
For example, § 5110(b)(1) simply states that “[t]he effective
date of an award of disability compensation to a veteran
shall be the day following the date of the veteran’s dis-
charge or release if application therefor is received within
one year from such date of discharge or release.” 38 U.S.C.
§ 5110(b)(1). Section § 5110, even considered as a whole, is
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ARELLANO v. MCDONOUGH 15
not as detailed as the tax statute at issue in Brockamp, 26
U.S.C. § 6511, where equitable tolling was disallowed.
This factor does not weigh against equitable tolling of
§ 5110(b)(1).
Third, we consider if a statute of limitations has “ex-
plicit exceptions to its basic time limits,” which may pre-
clude equitable tolling. Brockamp, 519 U.S. at 351. Judge
Chen concludes that “§ 5110’s enumerated exceptions con-
firm that Congress has already considered which equitable
considerations may provide a retroactive effective date and
declined to provide the relief Mr. Arellano seeks.” Chen
Op. 41.
We noted in Cloer that “exceptions to statutes of limi-
tations do not necessarily rebut the bedrock Irwin pre-
sumption in favor of equitable tolling,” and that “an
exception may signal a beneficent Congressional act, not a
rebuttal of the Irwin presumption.” 654 F.3d at 1343. Alt-
hough § 5110(b)(1) is itself an exception to the general ef-
fective date rule of § 5110(a)(1), there are no explicit
exceptions to the one-year period in § 5110(b)(1). 8
Nor do the other provisions of § 5110 speak to equitable
tolling, with the exception of § 5110(b)(4), which provides a
retroactive period of disability pension benefits for a vet-
eran who is “prevented by a disability from applying for
disability pension.” 38 U.S.C. § 5110(b)(4)(B).
Apart from § 5110(b)(4), this is not a situation in which
the statute “has already effectively allowed for equitable
8 Under the VA’s regulation, “[t]ime limits within
which claimants or beneficiaries are required to act to per-
fect a claim or challenge an adverse VA decision may be
extended for good cause shown.” 38 C.F.R. § 3.109(b)
(2020). The government argues that this regulation does
not apply to § 5110(b)(1), and Mr. Arellano does not con-
tend otherwise.
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16 ARELLANO v. MCDONOUGH
tolling.” See United States v. Beggerly, 524 U.S. 38, 48
(1998). The other § 5110 provisions discuss situations—for
example, when a child turns 18, 38 U.S.C. § 5110(e)(2);
when there has been a report or finding of death of a service
member, id. § 5110(j); or when there has been an annul-
ment of marriage, id. § 5110(k)—which do not on their face
relate to equitable tolling or indicate Congress’s intent to
preclude equitable tolling of § 5110(b)(1).
With respect to § 5110(b)(4), it is true that § 5110(b)(4)
speaks to one limited aspect of equitable tolling (tolling for
disability), but only in the unique context of disability pen-
sion and not disability compensation. While this may indi-
cate a desire to limit equitable tolling for mental disability
in specific circumstances (as discussed below), this can
hardly be read as evincing a desire by Congress to elimi-
nate equitable tolling generally as to disability compensa-
tion. It is simply an example of “a beneficent Congressional
act, not a rebuttal of the Irwin presumption.” See Cloer,
654 F.3d at 1343.
Fourth, Congress is more likely to have intended a stat-
ute of limitations that governs a statutory scheme “in
which laymen, unassisted by trained lawyers, initiate the
process” to be subject to equitable tolling, Zipes, 455 U.S.
at 397 (quoting Love v. Pullman Co., 404 U.S. 522, 527
(1972)), in contrast to statutory schemes that govern so-
phisticated parties “assisted by legal counsel,” Auburn, 568
U.S. at 160.
The fact that “the veteran is often unrepresented dur-
ing the claims proceedings,” Shinseki v. Sanders, 556 U.S.
396, 412 (2009), especially, as here, “in the early stages of
the application process,” when “the veteran is almost al-
ways unassisted by legal counsel,” Hensley v. West, 212
F.3d 1255, 1262 (Fed. Cir. 2000), suggests that Congress
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ARELLANO v. MCDONOUGH 17
intended for equitable tolling to be available. 9 This is in
contrast to situations such as in Auburn, where the statu-
tory scheme at issue governed reimbursements to
healthcare providers. The statute “[was] not designed to
be unusually protective of claimants,” was not one “in
which laymen, unassisted by trained lawyers, initiate the
process,” and “applie[d] to sophisticated institutional pro-
viders assisted by legal counsel.” 568 U.S. at 160–61 (cita-
tions and internal quotation marks omitted) (holding that
equitable tolling did not apply to the 180-day statutory
deadline for health care providers to file appeals with the
Provider Reimbursement Review Board under 42 U.S.C.
§ 1395oo(a)(3)).
Fifth, we consider the subject matter of the statute. If
the statute of limitations “is contained in a statute that
Congress designed to be ‘unusually protective’ of claim-
ants,” that will suggest Congress intended for equitable
tolling to apply. Bowen v. City of New York, 476 U.S. 467,
480 (1986) (quoting Heckler v. Day, 467 U.S. 104, 106
(1984)).
“[T]he uniquely pro-claimant nature of the veterans
compensation system” suggests that Congress intended at
9 See also Department of Veterans Affairs Board of
Veterans’ Appeals, Annual Report Fiscal Year 2020, 36,
https://www.bva.va.gov/docs/Chairmans_An-
nual_Rpts/BVA2020AR.pdf (24.4% of legacy appeals before
the Board of Veterans’ Appeals (“Board”) in fiscal year 2020
had attorney representation); Connie Vogelmann, Admin.
Conf. of the United States, Self-Represented Parties in Ad-
ministrative Hearings 29 (Oct. 28, 2016),
https://www.acus.gov/sites/default/files/documents/Self-
Represented-Parties-Administrative-Hearings-Final-Re-
port-10-28-16.pdf (10.5% of claimants before the Board be-
tween fiscal years 2011–2015 had attorney
representation).
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18 ARELLANO v. MCDONOUGH
least some form of equitable tolling to be available. Hensley
v. West, 212 F.3d 1255, 1262 (Fed. Cir. 2000). The veterans’
claims process is “designed to be ‘unusually protective’ of
claimants,” see Bowen, 476 U.S. at 480, and “is designed to
function throughout with a high degree of informality and
solicitude for the claimant,” Henderson, 562 U.S. at 431(quoting Walters v. Nat’l Assn. of Radiation Survivors, 473
U.S. 305, 311 (1985)). 10
“Congress has expressed special solicitude for the vet-
erans’ cause.” Shinseki, 556 U.S. at 412. “A veteran, after
all, has performed an especially important service for the
Nation, often at the risk of his or her own life.” Id. “[T]he
veterans benefit system is designed to award ‘entitlements
to a special class of citizens, those who risked harm to serve
and defend their country. This entire scheme is imbued
with special beneficence from a grateful sovereign.’” Bar-
rett v. Principi, 363 F.3d 1316, 1320 (Fed. Cir. 2004) (quot-
ing Bailey v. West, 160 F.3d 1360, 1370 (Fed. Cir. 1998)
(Michel, J., concurring)). 11
10 Although Walters noted in passing that “[t]here is
no statute of limitations” in the veterans’ claims process
generally, 473 U.S. at 311, the court appears to have been
referring to the fact that “[a] veteran faces no time limit for
filing a claim,” Henderson, 562 U.S. at 431.
11 In Bailey, we held that the 120-day period for a
claimant to appeal an adverse decision of the Board to the
Court of Appeals for Veterans Claims (“Veterans Court”),
38 U.S.C. § 7266, is subject to equitable tolling. 160 F.3d
at 1368 (en banc). Bailey and its progeny, including
Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir. 2002) (en
banc), were overruled by our en banc decision in Hender-
son v. Shinseki, 589 F.3d 1201, 1203 (Fed. Cir. 2009) (en
banc), reversed in Henderson v. Shinseki, 562 U.S. 428,
441–42 & n.4 (2011). The effect of the Supreme Court’s
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ARELLANO v. MCDONOUGH 19
The veterans benefits system is unlike the tax collec-
tion system, which the Supreme Court held was not subject
to equitable tolling because “Congress decided to pay the
price of occasional unfairness in individual cases (penaliz-
ing a taxpayer whose claim is unavoidably delayed) in or-
der to maintain a more workable tax enforcement system.”
Brockamp, 519 U.S. at 352–53.
“[O]nce a claim is filed, the VA’s process for adjudicat-
ing it at the regional office and the Board is ex parte and
nonadversarial.” Henderson, 562 U.S. at 431; see 38 C.F.R.
§§ 3.103(a), § 20.700(c) (2020). “In the context of the non-
adversarial, paternalistic, uniquely pro-claimant veterans’
compensation system, and consistent with our decision in
Bailey, the availability of equitable tolling pursuant to Ir-
win should be interpreted liberally with respect to filings
during the non-adversarial stage of the veterans’ benefits
process.” Jaquay, 304 F.3d at 1286.
These factors, as well as “the canon that provisions for
benefits to members of the Armed Services are to be con-
strued in the beneficiaries’ favor,” King v. St. Vincent’s
Hosp., 502 U.S. 215, 221 n.9 (1991), lead to the conclusion
that there is no clear indication that Congress intended to
broadly foreclose equitable tolling in § 5110(b)(1), and that
equitable tolling should be available in appropriate cases.
Nor does the fact that Congress amended § 5110 four
times since Andrews indicate approval of Andrews. The
presumption that reenactment of a statute ratifies the set-
tled interpretation of that statute is strongest when there
is evidence that “Congress was indeed well aware of [the
prior interpretation].” Lindahl v. OPM, 470 U.S. 768, 782
decision was to reinstate our decision in Bailey, and we
have since reaffirmed that “[t]he filing deadline of § 7266
is not jurisdictional and may be tolled where appropriate.”
James v. Wilkie, 917 F.3d 1368, 1372 (Fed. Cir. 2019).
Case: 20-1073 Document: 96 Page: 71 Filed: 06/17/2021
20 ARELLANO v. MCDONOUGH
(1985); see also Lorillard v. Pons, 434 U.S. 575, 580–81
(1978). However, “[r]e-enactment—particularly without
the slightest affirmative indication that Congress ever had
the [prior judicial interpretation] decision before it—is an
unreliable indicium at best.” C.I.R. v. Glenshaw Glass Co.,
348 U.S. 426, 431 (1955); see also Brown v. Gardner, 513
U.S. 115, 121 (1994) (declining to find that reenactment of
a statute ratified the VA’s interpretation of that statute in
part because “the record of congressional discussion pre-
ceding reenactment ma[de] no reference to the VA regula-
tion [interpreting the statute at issue], and there is no
other evidence to suggest that Congress was even aware of
the VA’s interpretive position.”); Micron Technology, Inc. v.
U.S., 243 F.3d 1301, 1310 (Fed. Cir. 2001). There is not the
slightest indication that Congress when it amended § 5110
was aware of our decision in Andrews, and there is no basis
for concluding that Congress intended to approve that de-
cision. 12 Nor is this a well-settled administrative interpre-
tation as in Auburn, 568 U.S. 145. Auburn concerned
Congress’s delegation of rulemaking authority relating to
a specific statutory provision to the Secretary of Health and
Human Services, and the Secretary’s implementation of
that authority. 568 U.S. at 159. Here, by contrast, we are
dealing with the decision of a single circuit court, which has
not been reviewed by the Supreme Court.
Judge Chen’s approach is particularly difficult to de-
fend because it would bar equitable tolling in all cases,
12 This is especially true because, as Judge Newman
pointed out in her concurrence in Butler, it is unclear
whether the broad language in Andrews was even relevant
to its resolution of the precise issue for which it is now cited
to us. 603 F.3d at 927 (“The Veterans Court enlarged An-
drews beyond its premises, in holding that tolling of the
one-year term of retroactivity under § 5110(b)(1) is never
available.”).
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ARELLANO v. MCDONOUGH 21
including cases where equitable tolling could be argued to
be particularly important and appropriate. This approach
forecloses the possibility of equitable tolling entirely, even
in circumstances in which there is no indication that Con-
gress intended strict enforcement of the one-year period of
§ 5110(b)(1).
V
The fact that the statute does not foreclose equitable
tolling in the case of § 5110(b)(1) does not suggest that eq-
uitable tolling is available in every circumstance. While
the statute does not indicate a general prohibition against
equitable tolling, “[f]ederal courts have typically extended
equitable relief only sparingly.” Irwin, 498 U.S. at 96. To
determine when equitable tolling is justified, we apply
well-established equitable tolling principles to the circum-
stances presented. Such analysis is done on a case-by-case
basis, though general principles will often guide the analy-
sis in a broad swath of cases.
Equitable tolling analysis begins with the governing
statutory scheme. Even where the Irwin presumption has
not been rebutted, the statute and statutory scheme are in-
structive as to the particular circumstances that will jus-
tify equitable tolling. See Mapu v. Nicholson, 397 F.3d
1375, 1381 (Fed. Cir. 2005) (concluding that “Congress’s ex-
plicit decision not to broaden the postmark rule by extend-
ing it to delivery services other than the Postal Service
must trump any extension of equitable tolling to this
case”); Cloer, 654 F.3d at 1345 (no relief under equitable
tolling because of “a policy calculation made by Congress
not to afford a discovery rule to all Vaccine Act petitioners
and Dr. Cloer’s failure to point to circumstances that could
justify the application of equitable tolling to forgive her un-
timely claim”). The statutory scheme here helps inform the
scope of equitable tolling on the ground of mental disabil-
ity.
Case: 20-1073 Document: 96 Page: 73 Filed: 06/17/2021
22 ARELLANO v. MCDONOUGH
First, an individual who lacks mental capacity may
have a caregiver sign a form for benefits on his or her be-
half. Under 38 U.S.C. § 5101, as amended in 2012, 13 if an
“individual lacks the mental capacity . . . to provide sub-
stantially accurate information needed to complete a form;
or . . . to certify that the statements made on a form are
true and complete,” 38 U.S.C. § 5101(e)(1), 14 then “a form
filed . . . for the individual may be signed by a court-ap-
pointed representative, a person who is responsible for the
care of the individual, including a spouse or other relative,
or . . . agent authorized to act on behalf of the individual
under a durable power of attorney,” id. § 5101(a)(2).
In addition, 38 C.F.R. § 3.155 provides that “some per-
son acting as next friend of claimant who is not of full age
or capacity may indicate a claimant’s desire to file a claim
for benefits by submitting an intent to file a claim to [the]
VA.” 38 C.F.R. § 3.155(b) (2020). “Upon receipt of the in-
tent to file a claim, [the] VA will furnish the claimant with
the appropriate application form prescribed by the Secre-
tary.” Id. Thus, § 3.155 “provide[s] a way for claimants
who cannot engage in a legal contract due to age or disabil-
ity to be represented by someone (or next friend) who can
do so on their behalf.” Standard Claims and Appeals
13 See Honoring America’s Veterans and Caring for
Camp Lejeune Families Act of 2012, Pub. L. 112-154, Title
V, § 502(a), 126 Stat. 1165, 1190.
14 38 U.S.C. § 5101(d) (2020) was renumbered as
§ 5101(e) in 2021. See Johnny Isakson and David P. Roe,
M.D. Veterans Health Care and Benefits Improvement Act
of 2020, Pub. L. 116-315, § 2006(a), 134 Stat. 4932 (enacted
Jan. 5, 2021).
Case: 20-1073 Document: 96 Page: 74 Filed: 06/17/2021
ARELLANO v. MCDONOUGH 23
Forms, 79 Fed. Reg. 57,660, 57,667 (Sept. 25, 2014) (Final
Rule). 15
In the context of the Vaccine Act, the provision that al-
lows a “legal representative,” 42 U.S.C.
§ 300aa-11(b)(1)(A), to file a petition on the behalf of a per-
son who is disabled, “does not foreclose the availability of
equitable tolling for claimants with mental illness,” under
all circumstances. K. G. v. Sec’y of Health & Hum. Servs.,
951 F.3d 1374, 1381 (Fed. Cir. 2020). K.G. makes clear that
the mere fact that a guardian has been appointed for a
claimant is a factor in the equitable tolling inquiry, but
only one factor. While that fact is true for veterans as well,
it is a more important factor in the veteran’s context than
in Vaccine Act cases. That is because Congress has gone
further in the veteran’s context, by allowing any person on
the claimant’s behalf to indicate an intent to file a claim,
and making a mere indication of a desire to file a claim suf-
ficient to start the claims process. See 38 C.F.R. § 3.155(b)
(2020).
Thus, absent special circumstances demonstrating an
inability of the caregiver to at least indicate an intent to
15 A similar provision existed under the informal
claim system, which ended in 2015. See Shea v. Wilkie, 926
F.3d 1362, 1366 n.3 (Fed. Cir. 2019). Under the informal
claim system, “[a]ny communication or action, indicating
an intent to apply for one or more benefits under the laws
administered by [the VA], from a claimant . . . or some per-
son acting as next friend of a claimant who is not sui juris”
could be “considered an informal claim,” which was a
longstanding practice of the VA. 26 Fed. Reg. 1561, 1570,
(codified at 38 C.F.R. § 3.155(a)) (Feb. 24, 1961). Compare
id. with 38 C.F.R. § 3.155(a) (2014).
Case: 20-1073 Document: 96 Page: 75 Filed: 06/17/2021
24 ARELLANO v. MCDONOUGH
file a claim (which can trigger the claim filing process), 16 I
believe it would be only the rare case where a mentally dis-
abled veteran with a caregiver would be entitled to equita-
bly toll § 5110(b)(1).
Second, 38 U.S.C. § 5110(b)(4) provides a one-year pe-
riod for a retroactive effective date for disability pension (a
form of compensation distinct from service-connected ben-
efits). 17 That subsection provides:
(A) The effective date of an award of disability pen-
sion to a veteran described in subparagraph (B) of
this paragraph shall be the date of application or
the date on which the veteran became permanently
and totally disabled, if the veteran applies for a ret-
roactive award within one year from such date,
whichever is to the advantage of the veteran.
(B) A veteran referred to in subparagraph (A) of
this paragraph is a veteran who is permanently
and totally disabled and who is prevented by a dis-
ability from applying for disability pension for a pe-
riod of at least 30 days beginning on the date on
16 For claims of equitable tolling prior to 2015, as is
the case here, the relevant inquiry would be whether there
are special circumstances demonstrating an inability of the
caregiver to submit an informal claim. See 38 C.F.R.
§ 3.155(a) (2014).
17 Disability pension is available for veterans who are
“permanently and totally disabled from non-service-con-
nected disability,” 38 U.S.C. § 1521(a), and pension is need-
based, so veterans who exceed a maximum annual income
or net worth set by regulation will not qualify. See id.§ 1522; 38 C.F.R. §§ 3.274, 3.275 (2020); see also H.R. Rep.
No. 79-2425 (June 28, 1946); Act of July 9, 1946, Pub. L.
No. 79-494, 60 Stat. 524.
Case: 20-1073 Document: 96 Page: 76 Filed: 06/17/2021
ARELLANO v. MCDONOUGH 25
which the veteran became permanently and totally
disabled.
38 U.S.C. § 5110(b)(4) (emphasis added).
The predecessor to subsection (A) of § 5110(b)(4) was
adopted 18 based on a proposal from the VA to address
“problems resulting from the veteran’s disability [that] de-
lays [the veteran’s] application for the benefit,” whereby
“the very condition upon which entitlement may depend
may also prevent prompt application for the benefit.” H.R.
Rep. 93-398, 1973 U.S.C.C.A.N. 2759, 2772 (July 25, 1973)
(letter dated May 10, 1973, from Donald E. Johnson, Ad-
ministrator of Veterans Affairs). The VA’s proposal “would
alleviate this situation by affording the disabled veteran a
year from onset of disability to apply for pension and, if he
is otherwise eligible, authorize payment retroactively to
the date on which he became permanently and totally dis-
abled.” Id. “The 1-year period prescribed by the proposal
within which to apply for disability pension [was] consid-
ered reasonable . . . .” Id.
This provision was further amended in 1984 in part to
add subsection (B), which specified that veterans who qual-
ify for the one-year lookback period for disability pension
are veterans “who [are] permanently and totally disabled
and who [are] prevented by a disability from applying for
disability pension for a period of at least 30 days beginning
on the date on which the veteran became permanently and
totally disabled.” Deficit Reduction Act of 1984, Pub. L. 98–
369, sec. 2501, 98 Stat. 494, 1116–17. 19
18 The predecessor to § 5110(b)(4)(A) was enacted in
1973 as 38 U.S.C. § 3010(b)(2). See Act of Dec. 6, 1973, Pub.
L. 93-177, sec. 6, 87 Stat. 694, 696.
19 The predecessor to § 5110(b)(4)(B) was enacted in
1984 as 38 U.S.C § 3010(b)(3)(B). Deficit Reduction Act of
1984, Pub. L. 98–369, sec. 2501(a)(1), 98 Stat. at 1116.
Case: 20-1073 Document: 96 Page: 77 Filed: 06/17/2021
26 ARELLANO v. MCDONOUGH
While pension benefits are different from disability
benefits, this provision is instructive because it indicates
Congressional willingness to delay veterans’ filing obliga-
tions where a disability makes meeting them difficult or
impossible, but not to do so indefinitely, or even for a sub-
stantial period of time.
Against this backdrop, I now turn to the particular cir-
cumstances presented here. 20 Mr. Arellano’s brother,
Pedro Arellano Lamar, has been Mr. Arellano’s “caregiver
since [Mr. Arellano] returned home mentally disabled in
November 1981.” J.A. 554; see also id. at 565. Yet, the VA
did not receive Mr. Arellano’s application until June 3,
2011. According to Mr. Arellano’s counsel, Mr. Arellano’s
brother, “acting as guardian ad litem,” filed the application
on Mr. Arellano’s behalf. Oral Arg. 41:25–42:06, 43:27–
44:10, http://oralarguments.cafc.uscourts.gov/default.
aspx?fl=20-1073_02042021.mp3. There is no allegation
that Mr. Lamar was somehow prevented from filing, or
faced obstacles in his attempt to file, Mr. Arellano’s request
for benefits sooner. Unlike in K. G., there is no claim that
Mr. Arellano was estranged from Mr. Lamar or refused to
interact with him. See 951 F.3d at 1377. Indeed, Mr. Arel-
lano signed the application himself at Mr. Lamar’s direc-
tion. There is nothing in the record that justifies the
inordinate thirty-year delay in filing the application at is-
sue.
20 We have recognized that in determining the appli-
cation of equitable tolling, “[w]here the facts are undis-
puted, all that remains is a legal question, even if that legal
question requires the application of the appropriate stand-
ard to the facts of a particular case.” Former Employees of
Sonoco Prod. Co. v. Chao, 372 F.3d 1291, 1294–95 (Fed.
Cir. 2004) (collecting cases). Because we assume the facts
are as Mr. Arellano describes them, we address the availa-
bility of tolling in the first instance.
Case: 20-1073 Document: 96 Page: 78 Filed: 06/17/2021
ARELLANO v. MCDONOUGH 27
Because Mr. Arellano had a caregiver who could have
filed (and indeed did later file) an application on Mr. Arel-
lano’s behalf, and no special circumstances are alleged, eq-
uitable tolling on the ground of Mr. Arellano’s mental
disability is not warranted, especially for such an untimely
filing. Equitable tolling for mental disability is not availa-
ble in this case.
CONCLUSION
I would hold that § 5110(b)(1) is a statute of limitations
that is subject to the rebuttal presumption of equitable toll-
ing under Irwin. I would also hold that the presumption
has not been rebutted as to equitable tolling, but that eq-
uitable tolling is not available to Mr. Arellano’s specific cir-
cumstances. Thus, I concur in the judgment.