Veteranclaims’s Blog

August 6, 2020

Arellano v. Wilkie, No. 2020-1073 ; Does the rebuttable presumption of the availability of equitable tolling articulated in Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990), apply to 38 U.S.C. § 5110(b)(1); availability of equitable tolling in benefits programs that include timing provisions similar to § 5110;

United States Court of Appeals for the Federal Circuit


ADOLFO R. ARELLANO, Claimant-Appellant v. ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee


2020-1073


Appeal from the United States Court of Appeals for Veterans Claims in No. 18-3908.


SUA SPONTE HEARING EN BANC


JAMES R. BARNEY, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, DC, for claimant-ap-pellant. Also represented by ALEXANDER EDISON HARDING, KELLY HORN.
ANDREW JAMES HUNTER, Commercial Litigation Branch, Civil Division, United States Department of Jus-tice, Washington, DC, for respondent-appellee. Also repre-sented by ETHAN P. DAVIS, MARTIN F. HOCKEY, JR., ROBERT EDWARD KIRSCHMAN, JR.; CHRISTINA LYNN GREGG, Y. KEN LEE, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC. Case: 20-1073 Document: 45 Page: 1 Filed: 08/05/2020
2 ARELLANO v. WILKIE


Before PROST, Chief Judge, NEWMAN, LOURIE, DYK,
MOORE, O’MALLEY, REYNA, WALLACH, TARANTO, CHEN,
HUGHES, and STOLL, Circuit Judges.
PER CURIAM. O R D E R
This case was argued before a panel of three judges on
July 6, 2020. A sua sponte request for a poll on whether to
consider this case en banc in the first instance was made.
A poll was conducted and a majority of the judges who are
in regular active service voted for sua sponte en banc consideration.
Accordingly,
IT IS ORDERED THAT:
(1) This case will be heard en banc under 28 U.S.C.
§ 46 and Federal Rule of Appellate Procedure 35(a).
The court en banc shall consist of all circuit judges
in regular active service who are not recused or disqualified.
(2) The parties are requested to file new briefs addressing
the following four issues:
A. Does the rebuttable presumption of the availability
of equitable tolling articulated in Irwin
v. Department of Veterans Affairs, 498
U.S. 89 (1990), apply to 38 U.S.C.
§ 5110(b)(1)
, and if so, is it necessary for the
court to overrule Andrews v. Principi, 351
F.3d 1134 (Fed. Cir. 2003)?
B. Assuming Irwin’s rebuttable presumption
applies to § 5110(b)(1), has that presumption
been rebutted?
Case: 20-1073 Document: 45 Page: 2 Filed: 08/05/2020
ARELLANO v. WILKIE 3
C. Assuming this court holds that Irwin’s rebuttable
presumption applies to § 5110(b)(1),
would such a holding extend to any additional
provisions of § 5110, including but not
limited to § 5110(a)(1)?
D. To what extent have courts ruled on the
availability of equitable tolling under statutes
in other benefits programs that include
timing provisions similar to § 5110
?
(3) The opening brief of Appellant Adolfo R. Arellano
must be filed within 45 days from the date of this
order. The brief of Appellee Secretary of Veterans
Affairs is due within 45 days after service of Mr.
Arellano’s opening brief. Mr. Arellano’s reply brief
must be filed within 30 days after service of the
Secretary’s brief. The parties’ briefs must comply
with Fed. Cir. R. 32(b)(1).
(4) The court invites the views of amici curiae. Any
amicus brief may be filed without consent and
leave of court. Any amicus brief supporting Mr.
Arellano’s position or supporting neither position
must be filed within 20 days after service of Mr.
Arellano’s opening brief. Any amicus brief supporting
the Secretary’s position must be filed within 20
days after service of the Secretary’s brief. Amicus
briefs must comply with Fed. Cir. R. 29(b).
(5) The court requires 26 paper copies of all briefs and
appendices provided by the filer within 5 business
days from the date of electronic filing of the document.
Administrative Order No. 20-01 does not exempt
the filing of these paper copies.
(6) This case will be heard en banc on the basis of the
briefing ordered herein and oral argument.
Case: 20-1073 Document: 45 Page: 3 Filed: 08/05/2020
4 ARELLANO v. WILKIE
(7) Oral argument will be scheduled at a later date.
August 5, 2020
Date
FOR THE COURT
/s/ Peter R. Marksteiner
Peter R. Marksteiner
Clerk of Court
Case: 20-1073 Document: 45 Page: 4 Filed: 08/05/2020

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