equitable tolling

Arellano v. McDonough

Issues

Does the rebuttable presumption of equitable tolling, which would allow a veteran to apply for disability benefits past the normal deadline, apply to 38 U.S.C. § 5110(b)(1), and if so, has the Government rebutted that presumption?

38 U.S.C. § 5110(b)(1) allows veterans who apply for disability compensation benefits within one year of discharge from the military to have retroactive disability compensation benefits counted from the date of discharge instead of the date of application for benefits. In this case, the Supreme Court will determine whether equitable tolling, an exemption to statutes of limitations under which plaintiffs who could not discover the basis to bring their lawsuits until after the expiration of the limitations period may bring a claim, applies to this one-year deadline. Although 38 U.S.C. § 5110(b)(1) does not have an explicit statute of limitation, Arellano argues that the statute functionally serves as a statute of limitations and that the Court has held that equitable tolling applies by default to functional statutes of limitations, including those applicable to suits against the government. McDonough counters that § 5110(b)(1) is not a statute of limitations, and that if Congress intended to allow equitable tolling to apply to the statute, it would have explicitly stated so in the law. The Court’s decision in this case will impact veterans’ welfare and the speed and procedure of disability claims administration.

Questions as Framed for the Court by the Parties

(1) Whether the rebuttable presumption of equitable tolling from Irwin v. Department of Veterans Affairs applies to the one-year statutory deadline in 38 U.S.C. § 5110(b)(1) for seeking retroactive disability benefits, and, if so, whether the government has rebutted that presumption; and (2) whether, if 38 U.S.C. § 5110(b)(1) is amenable to equitable tolling, this case should be remanded so the agency can consider the particular facts and circumstances in the first instance.

Congress has authorized disability benefits under 38 U.S.C. § 1110 for veterans who suffered disabilities during their service. Arellano v. McDonough at 1061. The size of the benefits is partly determined by the effective date of the award.

Acknowledgments

The authors would like to thank Professor Kevin M. Clermont for his guidance and insights into this case.

Additional Resources

Submit for publication
0

Boechler, P.C. v. Commissioner of Internal Revenue

Issues

Is the 30-day deadline to file a petition for the Tax Court to review its prior determination classified as a jurisdictional requirement that adheres to the exact amount of days prescribed and is not subject to certain fair exceptions or as a claim-processing rule subject to pausing the running time period for just considerations?

This case asks the Supreme Court to determine whether a 30-day filing deadline serves as a flexible procedural rule or a limitation on the Tax Court’s jurisdiction. Petitioner Boechler argues that the filing deadline is a procedural rule that is subject to the remedy of equitable tolling to effectively grant extensions in appropriate circumstances. Respondent Commissioner of Internal Revenue counters that the 30-day filing deadline proscribes a jurisdictional prerequisite, limiting the Tax Court’s jurisdiction to only those petitions that were timely filed within the 30-day period. The outcome of this case has important implications for the treatment of tax law, interpretation of filing deadlines within interconnected statutory schemes, and disparate outcomes for low-income taxpayers.

Questions as Framed for the Court by the Parties

Whether the deadline established by 26 U.S.C. 6330(d)(1) for seeking Tax Court review of a determination of the Internal Revenue Service Independent Office of Appeals following a collection due process hearing is a jurisdictional requirement or a claim-processing rule subject to equitable tolling.

In June 2015, the Internal Revenue Service (IRS) notified a small North Dakota law firm, Boechler, P.C. (“Boechler”), about missing tax document submissions. Boechler, P.C. v. Commissioner of Internal Revenue, at 762.

Additional Resources

Submit for publication
0

China Agritech, Inc. v. Resh

Issues

Does the rule announced in American Pipe, tolling the statute of limitations for individual actions filed after a failed class action, also apply to subsequent class actions?

In American Pipe, the Court held that the statute of limitations is tolled for an individual that files an action after a related class action fails. This case asks the Court to decide whether American Pipe tolling also applies to subsequent class actions. China Agritech, Inc. argues that American Pipe tolling should not apply to subsequent class actions, because such an extension would be inequitable and would conflict with the rationale surrounding current law on class action procedures. Michael Resh counters that American Pipe tolling should apply to subsequent class actions because such an extension would be both equitable and consistent with current law and precedent. The Supreme Court’s ruling could potentially relax the urgency and attentiveness required of class action members, or emphasize the importance of awareness and involvement individuals must display to share in the judgment won by the asserted members of their class. The decision could also implicate burdens on the courts, separation of powers issues, and practical considerations for class action plaintiffs and defendants.

Questions as Framed for the Court by the Parties

Whether the rule of American Pipe and Construction Co. v. Utah tolls statutes of limitations to permit a previously absent class member to bring a subsequent class action outside the applicable limitations period.

China Agritech, Inc. (“China Agritech”) is a Delaware-incorporated holding company with its principal place of business located in Beijing, China. Resh v. China Agritech, Inc., 857 F.3d 994, 996. China Agritech claims to sell organic fertilizers and related products to farmers throughout China. Id.

Written by

Edited by

Additional Resources

Submit for publication
0

Guerrero-Lasprilla v. Barr, Att’y Gen.

Issues

Can courts of appeal judicially review, as a “question of law,” statutory motions to reopen deportation proceedings to determine if equitable tolling should apply?

This case asks the Supreme Court to determine whether the issue of a petitioner’s request for equitable tolling in filing motions to reopen his deportation proceedings is a purely legal question or a mixed question of law and fact. Petitioners Pedro Pablo Guerrero-Lasprilla and Ruben Ovalles contend that the term “question of law” in 8 U.S.C. § 1252(a)(D) encompasses mixed questions of law and fact, thereby permitting appellate courts to review whether immigration judges or the Board of Immigration Appeals correctly applied the law to settled historical facts. They contend that even if the Court finds that “question of law” does not encompass mixed questions of law and fact, Guerrero and Ovalles assert that the issue of equitable tolling is closer to a legal rather than factual inquiry, therefore also allowing the appellate courts to review the decision. Attorney General William P. Barr counters that “question of law” does not extend to mixed questions of law and fact, and that even if it did, equitable tolling is a primarily factual determination that cannot be subject to judicial review. This case will affect whether courts experience an increase in the amount of litigation and expended resources, and the effectiveness and meaningfulness of judicial review of immigration proceedings.

Questions as Framed for the Court by the Parties

Whether a request for equitable tolling as it applies to statutory motions to reopen, is judicially reviewable as a “question of law.”

Petitioner Pedro Pablo Guerrero-Lasprilla (“Guerrero”) is a native and citizen of Colombia. Guerrero-Lasprilla v. Sessions at 1. Guerrero was admitted to the United States in 1986. Id.

Written by

Edited by

Additional Resources

Submit for publication
0

Harrow v. Department of Defense

Issues

Does 5 U.S.C. § 7703(b)(1)(A), which sets a 60-day limit for a federal employee to appeal to the  U.S. Court of Appeals for the Federal Circuit for a final decision rendered by the Merit Systems Protection Board, set a jurisdictional limit for the Federal Circuit?

This case asks the court to interpret whether the 60-day time limit for a federal employee to appeal to the U.S. Court of Appeals for the Federal Circuit imposed by U.S.C. § 7703(b)(1)(A) amounts to a jurisdictional requirement that strictly bars claims brought after 60 days. Stuart Harrow maintains that the language in 28 U.S.C. § 1295, which grants jurisdiction to claims “pursuant to” § 7703(b)(1)(A), is simply a cross-reference and not conditional. Harrow further argues that Congress likely did not intend to create such a harsh bar when enacting § 7703(b)(1)(A), considering that many federal employee claims are brought without a lawyer. The Department of Defense counters that “pursuant to” should mean “conforming to,” which sets a conditional requirement, not a reference. The Department of Defense further notes that the Court’s precedents have already decided that § 7703(b)(1)(A) is a jurisdictional requirement; and, Harrow is attempting to artificially parse the statute to reach a favorable result. The case’s outcome will significantly impact methods of Congressional intent interpretations and federal appeal procedures.

Questions as Framed for the Court by the Parties

Whether the 60-day deadline in 5 U.S.C. § 7703(b)(1)(A) for a federal employee to petition the U.S. Court of Appeals for the Federal Circuit to review a final decision of the Merit Systems Protection Board is jurisdictional.

Stuart R. Harrow (“Harrow”) was an employee of a sub-agency of the United States Department of Defense (“DOD”). Harrow v. Department of Defense, 2022 WL 1495611, 1 (Merit Systems Protection Bd.).

Additional Resources

Submit for publication
0

Henderson v. Shinseki

Issues

Does equitable tolling apply to Section 7266(a) of the Veterans Judicial Review Act, which sets a 120-day time limit for veterans to file a notice of appeal with the Court of Appeals for Veterans Claims?

 

David Henderson, a veteran of the Korean War, was discharged after being diagnosed with paranoid schizophrenia. After receiving a final decision from the Department of Veterans Affairs denying his request for home care, Henderson had 120 days to file notice of his intent to appeal. Henderson failed to file until 15 days after the deadline had passed and claimed that his illness prevented him from filing on time. Appearing pro se, Henderson requested the Veterans Court apply equitable tolling to permit his appeal. The court denied Henderson’s request but then requested pro bono counsel to assist Henderson in filing for rehearing. While the request for rehearing was in process, the Supreme Court of the United States decided Bowles v. Russell. The lower courts interpreted Bowles to mean that all statutory deadlines for filing appeals are jurisdictional, and therefore Henderson’s request for equitable tolling was rejected because the court could not hear the case. The Supreme Court’s decision will clarify how lower courts should evaluate statutory time limits and will help determine which procedural limits are jurisdictional and thus not subject to equitable tolling.

Questions as Framed for the Court by the Parties

Section 7266(a) of Title 38, U.S.C., establishes a 120-day time limit for a veteran to seek judicial review of a final agency decision denying the veteran's claim for disability benefits. Before the decision below, the Federal Circuit in two en banc decisions held that Section 7266(a) constitutes a statute of limitations subject to the doctrine of equitable tolling under this Court's decision in Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990). In the divided en banc decision below, however, the Federal Circuit held that this Court's decision in Bowles v. Russell, 551 U.S. 205 (2007), superseded Irwin and rendered Section 7266(a) jurisdictional and not subject to equitable tolling.

The question presented is whether the time limit in Section 7266(a) constitutes a statute of limitations subject to the doctrine of equitable tolling, or whether the time limit is jurisdictional and therefore bars application of that doctrine. 

Petitioner David Henderson is a Korean War veteran who was discharged from active duty in 1952 due to paranoid schizophrenia. See Henderson v. Shinseki, 589 F.3d 1201, 1203 (Fed. Cir.

Written by

Edited by

Submit for publication
0

Holland v. Florida

Issues

1. Does equitable tolling apply to the Anti-Terrorism and Effective Death Penalty Act’s one-year statute of limitations for federal habeas petitioners?

2. If so, does “gross negligence” of the habeas petitioner’s counsel fall under the “extraordinary circumstances” prerequisite to equitable tolling?

 

Albert Holland, a death row inmate, twice wrote letters to his attorney to inquire as to the status of his federal habeas petition. His attorney failed to reply to either letter. Holland eventually filed a pro se federal habeas petition in federal district court. However, with the delay in filing, the district court denied the habeas petition as untimely. After gaining new counsel, Holland argued that his attorney’s “egregious conduct” constituted “extraordinary circumstances” so as to trigger equitable tolling of the petition. The U.S. Court of Appeals for the Eleventh Circuit held that, even though  representation  of Holland was “grossly negligent,” only an attorney’s “bad faith, dishonesty, divided loyalty, mental impairment, or so forth” could be considered “extraordinary circumstances. The Supreme Court granted certiorari to determine whether “gross negligence” by an attorney constitutes “extraordinary circumstances” under the equitable tolling doctrine. The  decision in this case  will implicate the courts’ ability to timely resolve criminal cases and criminal defendants’ ability to file habeas petitions.

Questions as Framed for the Court by the Parties

In determining that Petitioner was not entitled to equitable tolling to excuse the late filing of his habeas petition, the Eleventh Circuit determined that the reason for the late filing was the “gross negligence” on part of Petitioner’s state-appointed collateral attorney’s failure to file the petition in a timely fashion despite repeated instructions from the Petitioner to do so. However, under the new test announced by the Eleventh Circuit in Petitioner’s case, no allegation of attorney negligence or failure to meet a lawyer’s standard of care, in the absence of bad faith, dishonesty, divided loyalty, or mental impairment, could ever qualify as an exceptional circumstance warranting equitable tolling.

This Court should grant certiorari to the Eleventh Circuit to determine whether “gross negligence” by collateral counsel, which directly results in the late filing of a petition for a writ of habeas corpus, can qualify as an exceptional circumstance warranting equitable tolling, or whether, in conflict with other circuits, the Eleventh Circuit was proper in determining that factors beyond “gross negligence” must be established before an extraordinary circumstance can be found that would warrant equitable tolling.

In 1996, a Florida state court convicted Albert Holland of first-degree murder, attempted first-degree murder, attempted sexual battery, and armed robbery, and subsequently sentenced Holland to death. See Holland v. Florida, 539 F.3d 1334, 1336–37 (11th Cir.

Written by

Edited by

Additional Resources

· Congressional Research Services: Federal Habeas Corpus: A Brief Legal Overview

· Federation of American Scientists: Antiterrorism and Effective Death Penalty Act of 1996: A Summary

· Commission on Capital Cases: Inmate Details for Albert Holland

Submit for publication
0

Lozano v. Alvarez

Issues

Can a district court considering a petition under the Hague Convention for the return of an abducted child to the child’s home country toll the running of the one-year filing deadline when the abducting parent has concealed the whereabouts of the child from the other parent?

In July 2009, Diana Lucia Montoya Alvarez and her daughter fled the United Kingdom for the United States without the knowledge or consent of Manuel Jose Lozano, the child’s father. In August 2010, Manuel Jose Lozano discovered that the child was in New York and filed a petition in U.S. federal district court under the Hague Convention on the Civil Aspects of International Child Abduction, for the return of his daughter to England for a custody determination.  The United States Supreme Court must decide if equitable tolling is applicable to the one-year period where the petitioner has searched for the child but only found her after the deadline had passed. The Court’s ruling will implicate the rights of the abducted child and the left-behind parent.

Questions as Framed for the Court by the Parties

The primary purpose of The Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention" or the "Convention") is to protect children from international abduction by returning an abducted child to the nation of habitual residence for adjudication of custody rights under that nation's laws. To further that purpose, Article 12 of the Convention mandates that an abducted child must be returned if the left-behind parent's petition for the child's return is filed within one year of the abduction. In doing so, the Convention deters international child abductions by removing the benefit an abducting parent would otherwise obtain or perceive under the laws of the nation to which he or she has abducted the child. If the left-behind parent is unable, or otherwise fails, to determine the situs of the child and meet this one-year filing deadline, the court must still order the return of the child unless the abducting parent demonstrates one of four affirmative defenses, including that the child is "settled" in her new environment. 

The circuit courts of appeal are split over whether equitable tolling may apply to the one-year period. While the Fifth, Ninth, and Eleventh Circuits all hold the one-year period may be equitably tolled, the Second Circuit held in this case that the one-year period is not subject to equitable tolling and the settled defense is still available even where, as here, the abducting parent conceals the location of the child. The Second Circuit also held the fact that the child and abducting parent lack legal immigration status is not dispositive on the issue of whether a child is settled under Article 12, but, rather, is merely one of several factors to consider. The questions presented are: 

  1. Whether a district court considering a petition under the Hague Convention for the return of an abducted child may equitably toll the running of the one-year filing period when the abducting parent has concealed the whereabouts of the child from the left-behind parent. 
  2. Whether an abducted child can be "settled" in the United States, within the meaning of Article 12, where it is undisputed that both the abducting parent and the child are residing illegally in the United States, and the abducting parent presents no evidence of a legitimate pending application or basis under existing law for seeking a change in their immigration status.

Note: The Court granted certiorari to Question 1 presented by the petition.

top

Facts

Diana Alvarez (“Alvarez”) and Manuel Lozano (“Lozano”) met in London in 2004 and began dating. See Lozano v. Alvarez, 697 F.3d 41, 45. Although they never married, the couple had a child in October 2005. See id.at 46. Alvarez and Lozano have differing accounts of their relationship.

Written by

Edited by

Additional Resources
  • Marshall Zolla, California Family Law Monthly, Lozano v. Alvarez (Nov. 2012)
  • Gabriella Khorasanee, FindLaw, Lozano v. Alvarez: Custody Dispute Raises Issues of 1st Impression (Oct. 9, 2013)

top

Submit for publication
0

Mata v. Holder

Issues

Does a circuit court have jurisdiction to review a  Board of Immigration Appeals’ rejection of a petitioner’s request to equitably toll the 90-day deadline on his motion to reopen removal proceedings on the basis of ineffective assistance of counsel?

The Supreme Court will determine whether the courts of appeals have jurisdiction to review a non-citizen’s request that the Board of Immigration Appeals (“BIA”) equitably toll the 90-day filing deadline on the non-citizen’s motion to reopen the non-citizen’s removal proceeding due to ineffective assistance of counsel. Peterson, arguing by Court appointment in support of the lower court’s judgment, argues that the Fifth Circuit properly characterized Mata’s request to reopen his removal proceeding as an invitation for the BIA to reopen the proceeding sua sponte, and that the Fifth Circuit lacks jurisdiction to review the BIA’s discretionary decision. However, Mata contends that the Fifth Circuit erred in construing his request for equitable tolling as a request for the BIA to reopen the proceeding sua sponte, and that Congress specifically grants courts of appeals the jurisdiction to review final orders of removal and BIA decisions on motions to reopen via statute. Holder agrees with Mata that the Fifth Circuit mischaracterized Mata’s request to reopen and that Congress provided courts of appeals a statutory basis upon which to review final orders of removal and BIA decisions on motions to reopen. Holder further contends that courts should apply a deferential abuse-of-discretion standard in reviewing agency determinations. The Supreme Court’s ruling implicates the due process rights of non-citizens and the fairness and substantive legality of the immigration system.

Questions as Framed for the Court by the Parties

Whether the court of appeals has jurisdiction to review the Board of Immigration Appeals’ decision denying a request for equitable tolling of the ninety-day statutory period for filing a motion to reopen removal proceedings as a result of ineffective assistance of counsel.

The United States ordered removal of Noel Reyes Mata, a native and citizen of Mexico, from the county in 2010. See Mata v. Holder, 558 F. App'x 366, 367 (5th Cir. 2014). Mata filed a timely petition for appeal of his order of removal with the Board of Immigration Appeals (“BIA”).

Written by

Edited by

Additional Resources

Submit for publication
0

McQuiggin v. Perkins

A Michigan court convicted Lloyd Perkins of murder and sentenced him to life in prison. Nearly twenty years later, Perkins is now challenging his conviction based on new evidence supporting his innocence. The lower courts rejected Perkins’ petition for a writ of habeas corpus because of his failure to meet the statute of limitations according to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Perkins maintains that Supreme Court precedent does not require petitioners to reasonably and diligently pursue their underlying constitutional claims to invoke an actual-innocence exception. Perkins also argues that, since traditional equitable principles dictate that courts have the authority to fashion equitable remedies to fill statutory gaps, tolling AEDPA’s one-year statute of limitations does not run contrary to express congressional intent. McQuiggin counters that AEDPA’s one-year statute of limitations cannot be equitably tolled for petitioners who have failed to reasonably and diligently pursue their constitutional claims. Furthermore, McQuiggin argues that courts cannot equitably toll AEDPA’s one-year statute of limitations in Perkins’ case because doing so would alter the express meaning of 28 U.S.C. § 2244(d)(1). This case will determine the responsibilities of federal courts in hearing habeas corpus petitions and define the avenues in which inmates can attempt to prove their innocence. 

Questions as Framed for the Court by the Parties

  1. Whether there is an actual-innocence exception to the requirement that a petitioner show an extraordinary circumstance that “prevented timely filing” of a habeas petition.
  2. If so, whether there is an additional actual-innocence exception to the requirement that a petitioner demonstrate that “he has been pursuing his rights diligently.”

top

Issue(s)

Does the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) implicitly contain an actual-innocence exception (1) to the requirement that petitioner

Edited by

Acknowledgments

The authors would like to thank Professor Keir Weyble for his insights into this case.

Additional Resources
Submit for publication
0
Subscribe to equitable tolling