will have fifty one minutes for the main argument and eight minutes rebuttal we will begin with three minutes uninterrupted non questioning by the counsel followed by a st round of questioning three minutes going by order of seniority which will consist of both the question and the answer if we can handle that followed by a nd round of one that same process will be followed with miss thomas on the other  eleven amenable to equitable polling figuring out the answer to that question is not exactly simple but the supreme court has the four the clear roadmap which consists of two basic inquiries does the irwin presumption apply and if so can the government  rebut it on the st question we believe five thousand one hundred and ten b one meets all the criteria necessary to warrant the irwin presumption it's a statutory time limit set forth in a statute for which congress has waived sovereign immunity and unlike the statutory provision you want to be one is not aimed at sophisticated institutional litigants represented by counsel it's aimed at military veterans who have just been discharged from service who are under represented by counsel and who may be suffering from the very physical or mental disability that fifty one percent of the one was intended to address but we believe the urban presumption clearly implies the government disagrees and its primary argument is that irwin only applies to statutes of limitations  according to the government five thousand one hundred and ten dollars b one is not a statute of limitations but the supreme court has never held that the urban presumption only applies a statute of limitations for instance the court insights found equitable tolling was available for an administrative filing deadline that the court described as being like a statute of limitations the word like implies equitable and whole equitable tolling is available for provisions that may fall outside a strict definition of a statute of limitations moreover the concept of a statute of limitations is not as clear cut as the government suggests and young for example the supreme court held that a statute that imposed a three year lookback period on the i r s is ability to prioritize tax debts in a bankruptcy proceeding odd result if the i r s a powerful government agency could benefit from equitable tolling of a look back period but a disabled veteran could not now moving to the nd inquiry we don't believe the government didn't but the irwin presumption its main argument is that if you and therefore cannot be equitably told for the reasons that forth in t r w but the provision in t r w involves a two year limitations period with a built in tolling provision that automatically stop the clock on a certain circumstances the court found that applying a discovery a court's power to at group be told deadlines and if so what is the source of that authority and finally how is that supposed to work we've got fifty or so regional offices with hundreds of individual adjudicators and i guess under your view of how this case should be resolved each of them would have the authority to decide the equitable tolling question and as i'm sure you honor all all attempt to address that as best i can and in the time limit that i have regarding your question as to whether the agency itself has the power to equitably to to apply equitable tolling i believe the answer to that is yes there have been cases such as the fisher case from the court of international trade that recognize the department of labor's ability and power to equitably at toll certain deadlines but more importantly i don't think this court actually needs to answer that question because the legal question that we're asking the court to decide here is whether the court of appeals for veterans claims has the power to act or should have equitably told me should have considered as i mentioned if adjudicated gets to make that determination and the veteran prevails that would be the end of that and it would never get to the sea a b c i understand your point your honor my point is that that's that whether the acknowledge that there is a statute that would allow them to promulgated such rules so whether or not the rules currently exist to allow them to do do it i believe they have the power to do it if they want thank you judge newman ok i'd like us to put this if we can and the context of what we're talking about and this case because of the significant  differences and precedent and factual situations and the fact that this is a deal where they have to come up with a general rule of law that would always apply for instance you suggest that we should overrule our decision some years ago in the andrew's case where the veteran was three months late after the initial one year period and asked if the national one year period statement should be told so that her entitlement came from the date of discharge not the fifteen months later now here we have a veteran who waited thirty years and in your briefs you say right up front that you're looking at the st year period that's a period that you want to be sure is open to equitable tolling are you therefore it's your position that  benefits so that's my st question thank you judge newman our position is that the veteran should be entitled to make out his case and have his case considered for equitable equitable tolling then yes he would potentially be entitled to thirty years of benefits but my the point i wanted to make is that we did notice that is that your position i mean is this the concrete telling is what this case is all about yes but as i was saying in order to make out his equitable tolling case he would need to show that there was no more than one year of time during that thirty years where he was capable of of filing his claim because equitable tolling stopped the clock but the clock restarts when the conditions claims in a timely manner and so a veteran who has a disability a severe disability after leaving service who files that claim within that one year even if that claim doesn't end up being adjudicated for pretend years will be presumption of equitable tolling applicable to suits against private parties should apply to suits against the federal government but how does that apply when there was no private suit an well your honor i think the supreme court addressed that in the scarborough case and found that it's not necessary to find an exact private analogue especially when you're looking at a government benefits program and as this court  recognized in bailey and other cases the veteran's benefits program in the statute is very unique even among other benefits programs it's unique and therefore it's not surprising that you won't find an an exception this is the legislative legislating rewriting the statute which we're not entitled to do no your honor i disagree i agree that it's an exception to the default rule but all statutes of limitations are exceptions to a default rule so the federal tort claims act for instance says that a claim against the government shall be forever barred that's the default rule based on sovereign immunity unless the unless  the claimant files their claim within two years of the cause of action that's the exception to the default rule and the supreme court and common law has routinely found that those exceptions that a fault rules are subject to equitable tolling this really isn't the structure of limitations isn't it doesn't cut off benefits for a late filing only determines their effective date we'd argue that this is in the nature of a statute of limitations it's every bit of a statute of limitations as the provision in young was the supreme court acknowledged was substantive in nature and really only affected the amount that the i r s could recover against a bankrupt tax payer not whether the i r s could maintain a claim at all you describe that as being a limited statute of limitations but a statute of limitations nonetheless thank you judge does thank you mr barney  purposes of this question let's assume that one in applies because of the young case or whatever else but the questions i have is is whether the presumption is men rebut it and in that respect it seems to me that you and the government share an assumption that equitable tolling is an all or nothing proposition and it seems to me that perhaps that assumption is incorrect let's take for example in the disability area we have a guardian provision where a court appointed representative while on behalf of an incompetent veteran fifty one l one a to indy one and we   account of disabilities that prevent the veteran for filing and in the overall scheme and it seems to me that congress could not of intended a thirty year look back tolling for involving notification of entitlement to former spouse annuities so my question to you is why shouldn't we look at the statute more granular so that tolling is appropriate in some circumstances but others it's appropriate for situations where the v a is at fault but not for disability why isn't that an appropriate construction of the statute thank you your honor i don't think that would necessarily be an inappropriate way to look at it art the problem is in order to get into that granularity and or to in order to determine which set of facts are going to give rise to a viable claim for equitable two get a presumption eventual tone but what i'm asking you is why can't we distinguish between disability situations which were required thirty year look back and the situations where the v a is at fault has is the case in granularly and determining perhaps it's going to be available in certain circumstances but not available in other circumstances i think that's consistent with this court's existing jur ok thank you judge moore questions judge o'malley equitable tolling rebuts erland presumption with the language and young and holland and even our courts language and flow are saying that that the existence of equitable tolling exceptions sconnect perhaps but i think the case all suggest that the closer the equitable exception is to the time period at issue the more likely it's going to be perceived  centrally rebutting the presumption and so i think that would be the situation in baghdad beggarly for instance it was also the situation and in the t r w case the more attenuated it becomes so in other words if you have to jump to a different provision or a different part of the statute to find an exception the less the less the nexus is and the more it becomes more of a general proposition that congress clearly intended equity to apply generally to the statute and therefore it can serve to rebut the error when presumption i hope that answers your question but i'm not sure that yes i think so t that issue here which is a specific one year timing provision that applies to disability benefits for discharge veterans and also the exceptions him and brock camp it was a time period that included specific exceptions that would actually told the time period these so called except in the in the section but if you want ten are our polling any honor we certainly believe and agree that there is a longstanding canon that veteran statues are to be construed in the veteran's favor at every turn with respect to your similar to a statute of limitations that it should be the bench that it should be that it should receive the irwin presumption and to the extent this court sees that as being a so a close call the benefit of the doubt should should flow to the veteran and the same applies to if the irwin presumption applies and you get to some of the subsidiary questions about whether it can be rebutted perhaps going to for instance to judge them out of his question whether  there are exceptions here that make this statute more like the statute in inveterately as opposed to this that the statute in irwin or in young again we would say that any benefit of the against the backdrop of the appropriations clause of the u s constitution which as i understand it and reflected in o p m against richmond requires that courts be very protective of congress's control of the public purse and therefore broadly demands that here it's to textual preconditions for spending public money now or when recognizes an exception for a certain category of laws that are so widely known in the law to carry case by case equity discretion that we simply presume congress was implicitly authorizing use of that discretion to authorize payouts without satisfying textual preconditions my st question is this given the appropriations clause principle related aren't there at least the following bases for uncertainty irwin laws all appear to set times for going to tribunals to seek a remedy based on a pre existing legal duty but here there is richmond this particular provision is not anything like the provision of richmond and richmond the problem was that there was no statue torrie there is no statute anywhere on the books that would have authorized the payment time limit to the same extent that it applies in civil litigation i don't see uncertainty being a factor and if it was a factor i think that it would be outweighed by the by the general canon that any uncertainty should be resolved in the veterans favor and in the case had the better test seen have you seen any provision in the supreme court cases recognizing equitable tolling that uses the language of effect of date and retroactive which is the ordinary limitations and that typically statute of limitations assigns a date to when your ability to enforce your right and and what we have here in front of us is a statute that defines the date your award begins and and so i'm having trouble matching those two concepts up i understand you're focusing a lot on the young opinion and i'm trying to understand your interpretation of young and why in your view the statute there is similar to the statute here as i understand young the statutory provision window once the taxpayer filed the bankruptcy protection so i guess in that sense why wasn't that provision and young something of a situational time bar in that the i r s is barred if its claim for taxes is older than three years and in the situation where the tax payer goes into bankruptcy thank you your honor so just just your last point st i don't i think in young the the court did not use the word barred the court acknowledged that the provision did not preclude the i r s from pursuing all claims against the taxpayer it only affected certain aspects of the claim discharge ability of the debt and priority of the debt and that's why the supreme court said it's not the reported knowledge that this is not not exactly the same as a as a traditional statute of limitations for that reason but it was nevertheless a limited s initially had to enforce it didn't technically remove the rights as like a statue of limitations would it affected the amount that  the i r s could recover so the i rescued have multiple tax liens against a tax payer over multiple years and they would be able to recover any of the they would be able to recover any of the debts that were within the three year look period but they would not be able to recover the debts outside the three or look bacteria and so the debts are patched to claims that this is what i'm trying to understand i mean to me it looks like there was a claim for back taxes the i r s delayed in in pursuing that claim and then the taxpayer eventually went into bankruptcy and then that the debt on that tax claim ended up getting discharged why isn't that as a functional matter very much the same thing as a bar on the i r s this tax plan which there or is basically a statute of limitations and through that the present irwin the presumption applied i think it is i think that's what the supreme court ultimately decided  acknowledge that it doesn't operate exactly like a statute of limitations that affected the amount that the government could recover because of recall the government could recover other it could recover other claims and other tax years but there was a cutoff as to how far back and go so are you saying then i'm sorry i just i want to make sure i completely understand for tax years that the taxpayer did not pay tax for each each of those tax years as an individual claim and then for those claims were back taxes that arose inside the three years those were not barred but those for those claims of tax years that were older than the three year lookback period and those ended up getting through being discharged my understanding it correctly i think that's correct again  at least factually to the present case when what i see going on young is a question of individual tax potential claims for different tax years some tax years are too old so they get discharged in the bankruptcy proceedings but some are still relatively new and they don't get to strike and now when we go to your facts here what we're doing here is assigning an effective date for the amount of compensation and it's all a single claim and i don't i don't see that in the desire for retroactive  compensation a year back or perhaps more and for equitable totaling as being a separate individual claim from the claim for ongoing future monthly try to respond thank you i will your honor thank you young specifically noted that unlike most of its limitations the look factory or bars only some but not all legal remedies and it was pointing to the fact that the iris still has additional remedies against a bankrupt tax payers including equitable remedies so that's what i was getting at it i didn't use the word bars it didn't operate exactly like assassin limitations the i r s was actually not barred from pursuing those claims but it in the supreme court majority stated that this court has never applied irwin's presumption to an agency's internal appeal does mine the same could probably be said for an agency's internal filing deadline are you enter our nd round which is a one minute round i will pass well i'll try my very brief because i keep rehearse back to reality and the question is  available or is available in justice and equity is that where we are supposed to be going is that the purpose of the equitable to position that we are being presented with your honor i will attempt to address that but if i'm going the wrong direction please please let me know the only tolling theory of the only period we're asking to be told here is the one year period that applies for the st year after service so the only veterans who would be affected or would be would be available to take advantage of what we're arguing here would be veterans who actually had a disability that entitled to benefits during that st year so we're talking about veterans who get out of the service and already have a disability or they develop a disability during that st year though you're asking for thirty not his filing date there's a use your honor mr ariano if he has the opportunity to present facts which he has never had the opportunity to do nobody's ever considered his actual facts yet he would try to make out a case the one you did was to say that within first here your benefits run from the date of discharge if you file any time within the year isn't any limitations period other than giving you the benefit of few months after this judge to adjust and that it seems to me is quite a different concept for him again would be entitled how to demonstrate that for thirty years he was incompetent and incapable of filing and therefore the filing date provision is the years of polling i just want to be clear we're not asking for thirty years of tolling for say it's a one year what are you asking what are you asking your honor if mr ariano is is able to present the fact that he believes supports his equitable tolling case he would argue that he was mentally incompetent during the entire period of time from his discharge from service and still his brother acting as guardian ad litum filed his actual claim for benefits and that period was i believe in and the order of thirty years now whether he'll actually be able to prove that up or not we don't know because no because no court has actually addressed the merits of his of his  disabled because of an event that occurred during service and he was disabled from the time he was discharged from service and so under mr ariano those of you he missed out on benefits to which he wasn't present in the present but basically there was a long period of time where mr ariano was was mentally incompetent and then at some point his brother intervened and got the process started by filing a claim on his brother's  half at the at the regional office i apologize i don't have the exact da yes i'm sorry i was on you i just want to clarify something about a response to judge dyke and round one to the extent that you agree that things like factors like whether or not  increase which is assuming equitable tolling applies should it apply in this particular case is that right yes your honor that was my understanding of the question that was being presented so assuming equitable tolling applies that's correct your honor the question of whether thirty years is is achievable in this case is completely dependent on the facts and you don't even get to those facts until you you apply that you would recognize that the statute itself is at least a different circumstances and before when you on top of what before is already addressing you look at the legislative history and seventy three and eighty four you see  concrete way and i'm just wondering could you respond to the government's arguments about before and then also those legislative history statements if you're aware of them from the house report and seventy three in the house conference report in eighty four so with respect to before your honor of course that's a that's a different type of benefit so it's not the same disability benefit that b one b one is a dr understand that this is more about the the fact pattern of the fact that a veteran is totally disabled congress understood that that was going to make it particularly hard for the veterans to come forward mediately after that total disability and chose to give a one year grace period for that circumstance right so i think that this fact pattern fits into the observation that the supreme court made in young as well as in other cases which is where you find a arguably an equitable provision elsewhere in a statute far from actually leading you to the conclusion that congress didn't intend equity to apply to any other provisions of the statute it actually has the opposite effect so the court s young under a very similar fact pattern that if anything that other equitable so the provision demonstrates that the bankruptcy code incorporates traditional equitable principles and that goes back to a question i leave i forget which judge it was that somebody had asked the question earlier about how to how to reconcile those two lines of cases i believe that the to the extent that before is construed as an equitable then i'm happy to answer the court's questions on that point today that being said there is actually no need to determine the applicability of that presumption in this matter before because congress has provided unmistakable evidence of its intent regarding the prospect of controls what the effective date will be for a cup claim submitted within one year after discharge it does not specify what the effective date will be for claims that are submitted after the end of that one year period instead section fi a stab which is the rule for that scenario generally speaking for the scenario in which an initial disability compensation claim like mr ari on of is submitted more than one year after just charge is the rule whose plain language would be statute the rule set forth in subsection and must apply cording to the statute itself unless specifically provided otherwise in this chapter and quote that is in the chapter of the united states code that governs veterans claims and effective dates no provision of that chapter specifically provides for exceptions created through equitable tolling instead congress explicitly accounted for equitable concerns by adopting the numerous express as a result the judgment of the veterans court in this matter should be affirmed thank you thank you this is chief judge prose ms thomas let me start directing your attention to the young  and to the copyright cases those seem to me to be the cases that your friend most relies on for the conclusion that this is a type of statute of limitations so you've got a couple middle give you couple minutes to address is unwarranted first of all the court did say and young that for the statute of limitations may only abolish some remedies not all remedies for a c within the one year period after discharge which is an award of disability compensation is the same and a remedy that's available after that period seconds even though the statutory limitations period at issue and young only specifically addressed to particular remedies and their of a veil ability based upon timing in practical effect there was there is there was no remedy for the i outside of those to specific remedies outside of the three year limitations period that was that issue there when the court said any young that oh it may be possible that there could be other remedies aside from  the court in a footnote said it was alluding to equitable remedy such as the possibility of recoupment if the taxpayer presumably should ever happen to sue the government years later maybe the i r s would be able to set off any recovery against the unpaid tax claims obviously that's not a claim that a remedy that would have much value to the i r s prospectively because there's no reason to believe it would ever materialize in practical effect the only remed requires the claims to be paid during the bankruptcy proceedings or not on discharge ability which means the claim survived after the proceedings conclude that the old that's the reason and i only reason the court concluding young that the limitations period there serve the function of a statute of limitations by providing repose through eliminating stale claims if there had been an effective remedy for the i r s still remaining after the bankruptcy claims bankruptcy process was over there would have been no repose for the taxpayer with a speck a lot of time has run out so well to my colleagues if they're interested in hearing from you on the copyright case understand was that equitable totally should be as available against the government as is available against the private sector and so let's just take an example we really don't have all of the facts to this veteran but let's assume that he was in fact totally disabled for a prolonged period of time it is now  that was service connection so here if we were dealing with the private sector my sense is that a court would be interested in  is even by the sad truth to consider the equities in a particular case was what troubles me so i may have already made clear is that if we remove them it's a question president should determining whether once it's determined that equitable tolling is available the circumstances of a particular case warrant that release  so it may be true that for a statute of limitations where an equitable tolling is that available as a general matter a circumstance where a disability prevented the plaintiffs from filing for a certain period of time might be that might be grounds for tolling but it doesn't answer that wouldn't answer the question of whether in the st instance the statute can be told at all which is what the as i understand it the court w addressing or when the nd piece is in response to the court's question regarding why shouldn't the court always take into account equity the the problem is that the the court st obligation is to follow the law as an body by the statutes that congress has passed and the constitution of course that governs our entire system of law and if those sources provide for a particular result then the court's feeling of equity must give way to the preferences of congress and equitable tolling as  principle as the supreme court makes clear is available only if congress wanted it to be so the determinative factor is what congress is intent was not whether the court may feel in a given case that equity would require a certain result judge worry no question judge di i think you meant thomas i'd like to ask you the same questions i st asked mr barney and that is  assuming that there is a presumption of equable tolling and the question is whether the statute were but that isn't it incorrect to really look at this as an all or nothing proposition and i'm not suggesting that it should be case by case what i'm suggesting it ought to be category by category and it seems to me that the statute is pretty clear that congress has dealt in great detail with the question of be seems to me when you get to situations like the re bind situation where the government has prevented the individual for filing from filing the disability claim that there's a strong  indication of the statute by the adoption of the duty to assist that if it's the government's fault that you couldn't file on time that you should be available to get equitable holing in that situation so what's the matter with looking at the situation in that more nuanced way i think so and i think the problem your honor which is also i would say reflected in the fact that there are no cases that i'm aware of take that sort of granular approach to the availability of equitable tolling and all of the other way either or well there are certainly cases in which the court could have taken that approach if it believed it warranted for example in any case where the court said that these specific exceptions indicate that congress had decided when it wanted exceptions to be made and therefore implicitly for quote others the court could have said instead well we think that obviously exceptions can additional exceptions based on the reasons that embodying these exceptions can be made but others are available and i think the reason that but that result is one that would be difficult to reach is that again the basis of equitable tolling is the availability of a term and by congressional intent and the presumption is a blunt tool know we can say that congress can be to have wanted to allow tolling in circumstances where there is a very long pattern in the common law of tolling a certain type of statute but how could be then the re bind situation where the government prevented the veteran from flying the plane by classifying the information for hitting him from doing how could it be that congress intended that there should be no ability for tolling to that situation that situation to be honest or sounds almost almost as fast as an argument for equitable tolling on sort of an equitable stoppel grounds and the supreme court has made clear that that's not permitted at all and cases where a petitioner is seeking money from the government because it would be a violation of the appropriations clause to allow the conduct of particular government agents to override congressional intent as to the availability of the remedy you're not addressing the question of this statute and whether congress in this statute indicated that the re bind situation there should be no agreeable tolling i find it difficult to find in this statute but aside richmond any indication that somebody in the re bind situation would not benefit from equitable tone is there such an indication well that sort of reverses the the the question your honor typically congress has to specifically authorize availability of a remedy and there is no specific authorization program it here and fact the fact that congress gave the v a equitable discretion through thirty eight u s c five hundred and three to offer relief in a case where a veteran or other claimant was disadvantaged by a v a error suggests that congress wanted those situations that to be dealt with on situation and didn't leave to the courts the the ability to shape a remedy which is different i mean isn't there a big difference in statute between disability the disability situation and the government fault situation are if congress had intended that the courts could disregard the plain language of the statute in circumstances where they believed that the v a conduct had congress would have provided a statutory time period that would have been you know we're here we're talking about the one year period after discharge presumably congress would have provided a one year period that would apply to all claimants but  didn't there are many cases there are claimants who don't have any service connected disability within the one year after discharge it doesn't show up until years later and in fact the statutory scheme explicitly contemplates that providing for a presumption of service connection for for example veterans who contract a burka loss within the three years after discharge and in that case the default rule plies it's the effective date cannot be earlier than the date of receipt of claim there is no period total there if congress had intended to allow equitable tolling as a means to remedy some failure to assist it would be strange to write the statue in a way where some claimants would be able to take advantage of that remedy but others w mean by definition there's always something else being written into the statute that allows for equitable tolling where there's no express provision and then as the nd part how do you deal with the language and holland and young and even in our closer on by where the supreme court and we have recognized that the fact that there's exceptions that would be akin to an equitable exception respect to the st question you want to court applies equitable tolling of course they're implying a term into a statute that isn't there but the difference is that in the cases where tolling is permitted of a statute of limitations it's a it's a always the same condition that is to which the court finds an exception which is the claim must be brought within this period or the claim will be barred and the court implies an exception by saying well also if the claim is not brought within that period but there were otherwise in this chapter then the rule specifically addresses the role of exceptions to its own the fall rule which means that it's addressing precisely the scenario that the doctrine of equitable  supposed to as a gap filler for because the statute itself addresses that scenario there is no gap to fill with respect to the nd question when when the supreme court ha looked at exceptions to a statute of limitations to decide whether those exceptions indicate that indicates that congress wanted to take care of equitable  considerations itself rather than leaving it to the courts the supreme court has looked at whether the exceptions included are are the sort that would be encompassed by the doctrine of equitable tolling and if it were applied and if if it is if they are those sorts of exceptions then the court has found that they indicate congress wish to displace the doctrine of equitable tolling in this case t the exceptions that congress has provided for the default role in section five thousand one hundred and ten dollars are precisely the types of exceptions that account for equitable considerations and would be in many cases the sorts of grounds that would be invoked to to rely upon equitable tolling so it's entirely consistent if not dictated by the supreme court's approach to exceptions and it's cases that where the exceptions congress has provided are themselves addressing equitable considerations that they indicate as desire to this place that the equitable tolling doctrine the veterans can and tipped the scales in favor of the better at least so that it applies least so that it applies it narrow extreme circumstances you know the veteran pro better an and has an impressive historical pedigree at the supreme court as well as a scorched precedent and in this case the the the doctrine applies to the to the veterans  yes your honor because this this suggestion that the availability or that the the availability of of tolling as a general proposition depends upon how extreme the facts ar suggests really attributes a sort of degree of specificity to erwin and to its presumption that it's not realistic it's a blunt instrument once once the court moves past simply applying the presumption to reach the conclusion that the equitable tolling as that doctrine is has long been understood under the common law is permissible once the court begins to construct the court's sense of equity which is of course not permissible with respect to the veterans can and in general again if we go back to the question of legislative intent congressional inten when subsection b one was passed and nine hundred and forty three there was no veteran's canon the st sort of slight suggestion at it happened a few years later but that was certainly not the strong is not a statute of limitations would be transformed subject to a court sense of equity based upon a canon that was not yet known to the law yet the law was began since that time there hasn't been any any court case or anything from congress that indicates that the gardner presumption as it was known at that time which is approved providers can and as we call it today that it was inferred or somehow did not apply in certain situations would you agree that it applies in all cases involving such according to petition no your honor it only applies where there are two reasonable interpretations of the statute and the court is unable to decide which is the proper interpretation using other traditional traditional tools of statutory interpretation and i also kind of push back on the idea that the veterans can and the veterans can unlike the irwin presumption is that is really a blunt instrument the at the end of the day asks the court to decide what's in a veteran's favor and  really a position that a court is not the traditional a best position to decide in many cases including i would say this one where we're talking about where equitable tolling would involve trading off the administrative you i think you know when you referred or responded halfway but then you had thank you for your response judge well yes thank you i think are you familiar with the defense undertook various human experiments and that those experiments involve soldier volunteers who were exposed to chemical warfare agents and we know that those  use uniform code of military justice at that time could result in the death penalty in one thousand and sixty nine the d o d experimented on us on a soldier volunteer exposing him to a nerve agent like available for the soldier volunteer i believe that would be i'm sorry it was two thousand and six when they deflect right for the date of the receipt of claim is there any recourse available to him any provision of law that might get him and earlier effective date than when the d c d o d gave him permission to fil not that i'm aware of your honor and obviously the scenario you're describing or the facts that you're describing are deeply disturbing and would warrant as a policy matter some kind of release but those are the kind of circumstances that are appropriate precisely appropriate for congress to address and congress has actually address the situation of veterans whose situation is quite similar to what you've just described  situation of world war two veterans who were subjected to experimentation using mustard gas and who were also forbidd from discussing the details of those experiments and who were able to had difficulty ever even proving that they had been involved in the experiments because much of the documentation involved with them had been lost or destroyed and for the provision of certain special evidentiary rules or the application of certain special evidentiary rules to ensure that it was more likely the claims of those veterans would be granted at the same time congress specif that there should be a special effective date assigned for those veterans and the effective date was the date of the receipt of the prior claim that had been denied so even in that case which is quite similar and very sympathetic where also the veterans were were by the government's actions prevented from receiving benefits earlier the congress did not display an inclination to change the default effective date rules which only serves to emphasize that it is congress's intent and will that the the rules as they are written be applied even in situations that are extremely sympathetic and the under a system of the rule of law the best way of ensuring fairness in the system overall is to apply the rules of of congressional statutes  interesting that you refer to a system of the rule of law given the circumstances one other question given there as there is doctrine with a soldier bring an action in tort i don't know your honor that occurred to me as well but i don't have a enough of a background in the tort claims act to say i mean i believe that typically injuries growing out of military service are precluded however i don't know whether there might be some exceptions to that role where the injury you know in this case sort of arises after service in the form of you know and  ability to file a claim promptly for example i don't know whether there might be some way of prosecuting a tort claim on those facts yeah unfortunately  andrea arose immediately ok thank you i'll pass judge toronto short can i just return to a subject that the chief brought up with mr barney right at the beginning and see if you an effective date and if that effective date is assigned in a way that favorable to the veteran under what circumstances if any can that be disturbed by the secretary not it's not absolute but it's yes your honor i i don't believe there probably would be a way of disturbing it once once it was assigned and of course there's the only way to equitable tolling is sort of a judgement call it and it's not i suppose if if the evidence actually suggested you know if there were if the evidence actually indicated the opposite of what whatever the basis for footnote six or something in your brief saying you know we do have some regulatory authority but since i as i understand it the last sentence says that we couldn't create a regulation about equitable tolling because it would be contrary to the statute if this court were to disagree with the proposition that no equitable tolling is permitted under the statute or some categories of equitable this would depend on the form of the court's decision obviously so if the court said that the v a has inherent equitable equitable power that would be different but if the idea is just that the the court says well the statute doesn't in fact statute provides some equity based exceptions is some kind of time provision time limit and i believe you said well what the supreme court does in those situations to figure out whether there's still a broad equitable tolling background of principle available is to see whether those equity based exceptions in the statute would be just quickly cite what are the cases in which that's what happened where the supreme court concluded that equitable tolling was displaced and are there other cases that you're aware of where the court said no it wasn't d sorry young which was a case where the court looked at exceptions and or at least one exception and said that that exception was actually a supplement to equitable look back provisions in cases like the trial and maybe also as a hygiene where the argument from the other side is that these are provisions that cut back chance for backward looking compensation is getting cut off from him so yes he's getting some remedies going forward but he's losing all remedy looking backward so if if the act of infringement occurred outside of the limitations period there's no damages for that act which itself constitutes an independent claim  remedy available for the claim after the passage of the one year period it's true that the amount may be somewhat less but that doesn't change the nature or the availability of the fundamental remedy and the court  make clear that the mere fact that recovery may be limited based upon some lookback period doesn't mean that we're talking about a statute of limitations that the court in that case addressed a provision of the statutory scheme at issue but said that where the timeliness of the claim for tax refund was based upon the fact that the tax have been paid within two years of the filing of the complaint the only that portion of the tax that had been paid within the past two years could be recovered and the court class thought that statutory provision is a substantive limit on the amount of recovery and said that it found no direct precedent for tolling that type limitation which indicates that the court did not view that as a statute of limitation right there doesn't that make rock camp a stronger case for tolling compared to this  yes i mean broad campus is strong support for the conclusion that that there should be no tolling of the statute well i guess what i'm saying is that the more compelling case for reaching the conclusion of  the statute that we have here oh well that statute wasn't the one i'm not sure that i'm answering the question i understand the question so that statute wasn't the one that eliminate the remedy and it doesn't provide riposte because the claim is still viable and it still has to be decided on all the same elements that the only thing that happens after the experts ration of the time period in question factor in that most veterans are pro se and the agency is supposed to help claimants i was surprised that this was not addressed in the government's brief especially given some statements in cases like factor that may be considered as one among several in support for a conclusion that tolling is is permitted but not one that has ever been found in and of itself sufficient to show that tolling should be allowed and i would say that the counterweight to that to that argument is twofold st while it's true that claimants in the v a system are or unsophisticated relatively speaking  much of the time it's also the case that that system is designed to take account of that and to make it extremely easy to file a claim in fact under thirty eight dollars c f r three dollars it's not even necessary to file a claim to get an  day all you have to do is tell the v a that you intend to file a claim and as long as you file on within the year after you give that notice of intent you get that that notice of intent is treated the date of that is treated as the date of the filing of the claim so the barrier and the notice of intent doesn't have to say you know what disability you're claiming or what the underlying basis of your claim is it only has to say what kind of benefit you want so while it's true that the claimants may be relatively unsophisticated compared to some administrative schemes it's also true that it is extremely easy to file a claim in the v a system and therefore the interest  likelihood that a claimant is going to be prevented from filing in a reasonably prompt manner is less it's also the case that for all the situation or on a particular issue and in this case i would say that the very specific deadlines set in section five thousand one hundred and ten dollars which are repeated and are the same for every class of claimant and for every equitable consideration and limited to one year would suggest that the that a general benevolence is not sufficient to show that congress wanted those deadlines to be flexible for equitable reasons yes ok thank you miss thomas let me just this is judge prose let me bring you back briefly to judge wallach's concerns and i think they were paralleled by some of what judge di was asking about pursuing his claim because of national security requirements could the the secretary not issue a regulation creating an exception for that kind of circumstance i think  by addressing the way perhaps treating an earlier date as the date of claim submission for certain types of claimants or treating on the grounds that they had been prevented from once more but the presumption applies and then we look at it in a categorical way and we find the presumptions been rebutted with respect to disability so there's no telling there what is it in this that suggests that the that the irwin presumption has been rebutted in the what might be called the re bind taylor situation where it is the government's fault that it wasn't filed earlier what is it in  i don't know if i can give you an answer that you would find more satisfying than the ones i've already provided i think that it's that you can't find anything thank you well to be clear your honor i have provided reasons previously that i believe to indicate that it would not be consistent with congressional intent to create a special tolling role  as well instability that support that proposition but you answered that well it's such a friendly scheme that they already get a lot of breaks and it's already made it easy and so it's therefore it would be extremely unlikely that anyone would ever be really prevented from from filing first of all doesn't the fact that there are lots of benefits for veterans just further  support the proposition that that's what congress intended this whole scheme to be and isn't it true that if it's extremely unlikely that anyone would be able to satisfy  here threatens to go against the court's orning and erwin's that the prisoner that there should not be a presumption applied against the government that's more favorable to the claimant than would be in the case for a there's still applicable rule that waivers upon the government's sovereign immunity or still be constricted strictly construed the presumption provides some you know provides or a bottle to that but still with the proviso that we need to keep in mind that we shouldn't think that the government should be subjected to more generous tolling provisions than any other party would be nd with respect to the court's other question the v a s concern the government's concern with with the proposition of widespread availability of equitable tolling in this instance is not limited to just the question of whether there would be more benefits paid out in fact i would say even more concerning is the fact that yes there might be few people who would benefit from ultimately  the role there would be likely a large very large influx of people who would claim the benefit of equitable tolling even if they were going to ultimately lose that and that is in fact i would say any claim engage and that the board would have to engage in and that the veterans court would then have to review which would me further administrative disruption of the system which already involves a level of procedural complexity nothing for the judge can just quick question in how would you sum up the right way to think about stability in the sense that on the one hand the opinion seems to say players making firing inside an agency and thereby therefore the inference is for unsophisticated claimants like the ones we have  several factors numerous factors in arriving at the conclusion that equitable tolling was not available for the deadline there and the courts the court job there was simplified as well in some part by the fact that the agency has just had promulgated a regulation that addressed the question of timeliness and provided for some degree of tolling  and therefore sort of indicated that the agency itself thought it had some regulatory authority to do that so i don't i don't think that the court  that there was any one factor that indicates whether that indicates whether an administrative deadline can be told but rather that's it's appropriate to consider you know various various relevant factors now the court there didn't address the question of whether administrative agency possesses equitable authority to toll a deadline and it is still not clear where such authority would come from and i like to respond to a point on this issue made by mr barney mr barney suggested that the supreme court found in zite that administr because that timely filing is usually a condition precedent precedent to the case being heard on the merits in court the supreme court and life did not find that the e e o c had the authority to waive that deadline hughes well we're about three and a half minutes beyond time this time as if you want to take a minute to wrap up and then we'll even up a time with mr barney sure you are just as well just say that while we're aware that there may be pressing equitable considerations in certain case  that would suggest that as a policy matter that tolling might be desirable it still remains the case that congress and congress alone under the appropriation clause has the authority to determine under what conditions  the the government is obliged to pay out money to claimants and congressional intent we believe is clear that equitable tolling is not permitted under the statutory scheme thank you thank you mr ten b one then and this is following up on several questions then situations such as re binah taylor and many other situations that you can imagine are truly truly deserving of at least the opportunity to argue for equitable tolling would be completely barred so i want to emphasize i believe it's clear but it does want to emphasize again we are not asking the court to rule on or address or actually make any comments on the actual factual merits of this case and the fact that thirty years has elapsed for instance we're asking for a correction of what we believe to be an error in the law that affects all veterans including mr honor ariano but also including the veteran and rebind taylor and many other cases now the government in response to one of the questions regarding i believe it was to the taylor case suggested that it's it would be best addressed by congress our position is it already has been addressed by congress because when congress legislates its priest presumed to do so against the background principles of equitable tolling and so it has already put a statutory time limit in place that is subject to equitable tolling which i equity show in other words if the merits of a claim show and title meant equitable tolling that would provide relief for veterans such as ray buying and taylor mr arianna now i do want to follow up on i know that judge scenarios but not for others our feeling is that that would not be the most efficient way to do this the most efficient way to do it would simply be to overrule andrews make clear that equitable tolling is a this court as well will be able to in time parse out which categories are going to be viewed as good candidates or appropriate candidates for equitable tolling now going back to the the two basic provision which really is nothing like a statute of limitations and yet all of those cases found that the statute that the time limit in question was amenable to equitable tolling we've also pointed to the the damages statute in that in the patent field which again even this court didn't think it was a statute of limitations but the supreme court disagreed so there's a lot of ambiguity about what is or is not a statute of limitations and going to judge reign as question to the extent there is ambiguity here it should be resolved in the veteran's favor now the government several times pointed out that this is the same remedy so unlike a situation like the copyrights that's it limitations where you're getting a continuous tore and you're getting a new remedy each time the government argues this is the same remedy whether award is a different remedy you get more is a different remedy in a sack same way that getting more damages in a patent case or getting more damage isn't a copyright case is a different remedy and those i don't think the court has said anything about equitable tolling in the patent context and certainly in the copyright context that is subject to equitable tolling not going to the nd prong can the court or but again there have been many arguments raised but i think the one that we keep coming back to is whether the structure of the statute should be viewed in the nature of exceptions to a general rule whether those exceptions should be deemed to be equitable in nature and whether that puts this this this case into a category like the t r w case where the expert because congress set forth a bunch of exceptions that augers to not reading in a general equitable exception we don't believe the government has the better part of that argument and these exceptions are not written in the way they were written into our w and other cases of that nature like broadcast there's nothing that stops the clock these are not exceptions that say for instance if you are if you file in the wrong court the  think it actually cuts more in our way than the government's way the case law the government would have brought camp on its side and it would it would have the t r w case on its side but we have holland  young and chlo are on our side and again to the extent there is some tension ambiguity between those cases and how they apply to this particular set of facts we think the general rule that veteran statues are to be construed in favor of the veteran would apply here that is all i have your honour's if there's any time left and you have additional questions for me i'll be happy to answer them with close to the end hearing nothing no shout outs from my colleagues i will please to bring this to a close i want to thank the parties we understand these are difficult times and then usual circumstances and you've been very cooperative and it's much appreciated and of course on behalf of my colleagues i'd like to thank our terrific staff which always steps up and does a great job for us as they did today so with that