Tuesday, January 24, 2023

SCOTUS’s First Decision of the Term Is a Unanimous Blow to Disabled Veterans: Why did the liberals co-sign Justice Amy Coney Barrett’s harsh opinion?


After an unusual delay, the Supreme Court finally issued its first opinion of the term on Monday: a unanimous decision in Arellano v. McDonough siding against disabled veterans who seek compensation for disabilities related to their service. Justice Amy Coney Barrett’s opinion for the court denied these veterans (and their survivors) the ability to obtain benefits retroactively if they filed a late claim—even if the delay occurred because of their disability, or some other factor beyond their control.

It’s a painful blow to military members who were injured while serving their country, and a puzzling one: At oral arguments, the justices sounded divided, yet all three liberals lined up behind Barrett’s harsh opinion. Maybe they genuinely believed that Congress intended to impose an exceedingly stringent deadline on disabled veterans. Or perhaps the three-justice minority is so outnumbered that it has decided to pick its battles, and Arellano was not worth the fight.

The facts of the case deserve more attention than Barrett gave them. Adolfo Arellano served in the Navy from 1977 until he was honorably discharged in 1981. During his service, he worked on an aircraft carrier that collided with a freighter in the Persian Gulf. Arellano was nearly swept overboard, and he saw his shipmates get crushed to death. After this incident, he began showing symptoms of post-traumatic stress disorder, bipolar disorder, schizophrenia, and tardive dyskinesia. These conditions rendered him severely disabled and incapacitated, and ever since, his brother has served as his legal guardian and caregiver.

Because of his incapacitation, Arellano did not understand that he qualified for disability compensation. His brother did not find out until 2011, at which point he filed a claim on Arellano’s behalf, asking for retroactive benefits for the previous 30 years. The Department of Veterans Affairs granted compensation moving forward, but denied compensation for the past three decades. It said that federal law allows retroactive compensation only if service members file “within one year of discharge,” which Arellano did not.

But that law wasn’t the end of the story. The Supreme Court has long held that statutes of limitation are subject to a presumption of “equitable tolling.” That just means a deadline can be suspended when some “extraordinary circumstance” prevented a party from raising their claim on time. The doctrine reaches back to the founding era and has always served as a “background principle” whenever Congress drafts statutes of limitations. It does not apply, however, when ignoring a deadline would be “inconsistent with statutory text.”

There are several very good reasons why equitable tolling should apply here. First, the Supreme Court has said that “interpretive doubt” must be read in favor of veterans; as Justice Antonin Scalia once noted, this rule is “more like a fist than a thumb” on the scale, “as it should be.” Second, the broader statute expresses special solicitude toward veterans as they navigate a bureaucratic maze in search of their rightful benefits—precisely the context in which equitable tolling would normally apply.

Third, there are practical reasons to suspend the deadline here. Many service members were subject to excruciating and unethical chemical testing, most notoriously at the Edgewood Arsenal from 1955 to 1975, then threatened with criminal charges if they disclosed their experience. Victims of this military-administered torture did not file claims for compensation within a year for fear of prosecution. In 2006, the government declared it would not prosecute Edgewood victims for acknowledging their abuse. But by that time, the one-year deadline for retroactive compensation claims had long since passed.

Finally, even outside these devastating cases, there are plenty of reasons why veterans and their survivors are prevented from filing within a year of discharge. Some, like Arellano, have psychiatric disorders that prevent them from pursuing a claim. Others suffer disabilities that do not present themselves until more than one year after service. And still more get shafted by bureaucratic blunders: One survivor, for instance, filed a claim on time but was falsely told by the VA that she was too young to qualify. Years later, she realized the VA was wrong and filed a claim for retroactive compensation. The VA rejected it because the one-year deadline had passed.

This stringent interpretation of the law has tragic consequences. Service members and their survivors are denied years’ or decades’ worth of compensation because problems outside their control prevented them from filing promptly. For that reason, multiple veterans’ groups urged the Supreme Court to suspend the one-year deadline when fairness requires it—a coalition that included Disabled American Veterans, National Organization of Veterans’ Advocates, and Paralyzed Veterans of America.

But SCOTUS refused, siding against Arellano’s request for equitable tolling. Why? Barrett, a former civil procedure professor, ignored the principle of solicitude toward veterans in favor of a wooden analysis of the “statutory scheme.” She focused on the fact that federal law includes 16 explicit exceptions to the general rule that veterans can’t get retroactive compensation—and equitable tolling isn’t one of them. “The presence of this detailed, lengthy list,” Barrett wrote, “raises the inference that the enumerated exceptions are exclusive.” Put differently, it is “difficult to see” why Congress “spelled out a long list” if it did not want the list to be comprehensive.

As Chief Justice John Roberts noted at oral arguments, though, this list of exceptions could cut both ways. It might suggest “that the insistence upon strict enforcement is really not that important.” Rather, Roberts said, “the plethora of exceptions seems to me to make it more likely that you ought to stick with the normal rule” of equitable tolling. When Congress creates so many other exceptions to the deadline, Roberts continued, how does it “make any sense” to say the “one area” where equitable principles won’t apply “is service-connected disabilities?”

This argument carried great weight given that, as deputy solicitor general, Roberts argued and won the foundational case on this topic. As a matter of common sense, it’s also a strong counterpoint to Barrett’s logic: Shouldn’t the presence of so many exceptions indicate that Congress did not want rigid enforcement of the one-year deadline?

Yet Roberts signed onto Barrett’s opinion in favor of the VA. So did every other justice—including Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, all of whom sounded skeptical of the VA’s position during oral arguments. For all we know, they ultimately decided that Barrett got it right, and that Congress intended to subject veterans like Arellano to its harsh deadline.                                                

It’s also possible that the term is filled with so many contentious cases already that no justice wanted to eat up her time writing a dissent in a relatively minor case when the outcome was inevitable anyway. After all, the ongoing backlog of opinions indicates that the justices are taking an unusually long time to write—possibly because of extensive disagreements and bad blood behind the scenes.

If that’s the reason for the unanimity in Arellano, it’s a shame. A seemingly small case like this one can make a huge difference in the lives of real people. Disabled veterans deserved a fairer shake than they received from this court.

-Mark Joseph Stern, Slate


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