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Speaker 1: This is Bloombird Law with June Brusso from Bloombird Radio.

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Speaker 1: The first ruling of the Supreme Court's term was a

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Speaker 1: blow to veterans, and it was unanimous. The Justice Is

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Speaker 1: ruled that disabled veterans who missed the one year filing

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Speaker 1: deadline can't file for retroactive disability benefits, even if the

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Speaker 1: delay was caused by their service related injuries. A Navy veteran,

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Speaker 1: Adolf Huariano, had asked the Court to suspend the filing

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Speaker 1: deadline because schizophrenia and post traumatic stress disorder prevented him

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Speaker 1: from filing in time. His attorney, James Barney, asked, the

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Speaker 1: Justice Is to apply that principle of equitable tolling, and

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Speaker 1: so we expect this to be something that's applied sparingly.

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Speaker 1: But in the cases where it's truly deserving, and for

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Speaker 1: veterans who truly do deserve consideration of an equitable tolling claim,

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Speaker 1: it ought to be available. James Barney joins me. Now

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Speaker 1: he's a partner at Finnegan and a former Naval officer. James,

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Speaker 1: tell us about your client and what he went through.

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Speaker 1: Mr Ariano as a Navy veteran, he served in the

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Speaker 1: Navy in the late nineteen seventies. He was on an

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Speaker 1: aircraft carrier when it had a collision with a freighter

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Speaker 1: with another ship, and he witnessed several of his shipmates

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Speaker 1: being injured and swept overboard. And after that event, he

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Speaker 1: developed some severe mental disabilities. They went undiagnosed for some

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Speaker 1: time and untreated, and then eventually his family was able

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Speaker 1: to get him psychiatric treatment, and eventually he was able,

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Speaker 1: with the help of his brother, to make a claim

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Speaker 1: for disability benefit due to his mental disability. But by

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Speaker 1: the time he did that, approximately thirty years had elapsed

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Speaker 1: from when he was discharged from the Navy, and so

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Speaker 1: he wasn't able to get the retroactive benefit dating all

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Speaker 1: the way back to his discharge from the Navy. And

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Speaker 1: that's what this case was about. Your argument was based

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Speaker 1: on equitable tolling. Explain that for us, so for my client.

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Speaker 1: His allegation was that he was not able to timely

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Speaker 1: file his disability application within one year, which is what

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Speaker 1: the deadline requires, and because of that, he was asking

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Speaker 1: that that deadline be told under this doctrine of equitable

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Speaker 1: tolling and the doctrine of equitable tolling requires a person

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Speaker 1: seeking that type of tolling to show good cause, to show, well,

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Speaker 1: why was it that you were not able to meet

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Speaker 1: that deadline? And he felt that he would be able

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Speaker 1: to show that it's given an opportunity, but because of

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Speaker 1: the way the law had been interpreted by the Veterans administration,

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Speaker 1: he was never given that opportunity because they said equitable

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Speaker 1: tolling was not available to him. During the oral arguments,

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Speaker 1: it seemed to me at least that several of the

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Speaker 1: justices were sympathetic to your argument. Were you surprised by

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Speaker 1: this unanimous decision against your client? I was a bit

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Speaker 1: surprised that it was unanimous, and I did also sense

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Speaker 1: that some of the justices were sympathetic not just to

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Speaker 1: Mr Ariana in particular, but but to the broader argument

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Speaker 1: that this particular provision in the veteran's statute that is

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Speaker 1: supposed to be construed in the veteran's favor. Um. There's

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Speaker 1: a lot of pro veteran case law going back decades

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Speaker 1: saying that veteran statutes are somewhat special and they're supposed

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Speaker 1: to be interpreted as much as possible onto the benefit

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Speaker 1: of veterans. And there was a number of questions from

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Speaker 1: several of the justices that seemed to be getting at

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Speaker 1: that point. So I was a bit surprised that it

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Speaker 1: was unanimous, but you know, I'm never surprised that anything,

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Speaker 1: to be honest, and I understand, you know, how the

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Speaker 1: court got to where it got, Well, explain to us

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Speaker 1: how the court got to where it got. So there

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Speaker 1: was a threshold issue that the government had placed a

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Speaker 1: lot of emphasis on, and that had to do with

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Speaker 1: whether or not this particular provision was a statute of limitations,

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Speaker 1: and that really was the government's main argument, that the

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Speaker 1: presumption of equitable polling doesn't even apply here because out

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Speaker 1: of statute of limitations. The Court, in its unanimous decision,

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Speaker 1: actually sidesteps that question altogether, did not even address it,

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Speaker 1: and moves right to the second issue, which was whether

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Speaker 1: if the presumption of equitable tolling is applicable here, can

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Speaker 1: it be rebutted? And the Court concluded that because of

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Speaker 1: the structure of this statute of the way it's written,

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Speaker 1: they concluded that any presumption that would apply for equitable

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Speaker 1: tolling would be rebutted, and therefore was able to reach

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Speaker 1: that decision without really determining whether or not the presumption

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Speaker 1: actually applies. Justice Amy Coney Barrett wrote the opinion and

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Speaker 1: at one point said that hard and fast limits on

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Speaker 1: retroactive benefits can create harsh results, and it seems like

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Speaker 1: they did in this case. How did your client react

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Speaker 1: to the decision. He's very disappointed, not just in his

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Speaker 1: own case, but because he understands that other veterans are

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Speaker 1: in the same situation as him, and he's hopeful that

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Speaker 1: Congress might be able to addressed food legislation. It is true,

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Speaker 1: I mean Justice part is absolutely correct that the effect

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Speaker 1: of this ruling is going to work a hardship on

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Speaker 1: some veterans. There are veterans that have very compelling reasons

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Speaker 1: why they're not able to timely file their disability claims.

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Speaker 1: They sometimes they are suffering from very severe injuries, physical injuries,

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Speaker 1: sometimes suffering from very severe mental incapacity. There are instances, unfortunately,

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Speaker 1: of people suffering from the trauma caused by military sexual abuse.

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Speaker 1: So it will absolutely work a hardship on some of

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Speaker 1: those veterans who missed their deadlines, and that's unfortunate. Congress

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Speaker 1: can fix that, obviously, but short of that, with this decision,

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Speaker 1: many of those veterans are going to be unfortunately adversely affected.

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Speaker 1: I will add that the Court did add a footnote

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Speaker 1: at the end, which might be one glimmer of hope.

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Speaker 1: The last footnote on the last page notes that the

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Speaker 1: Court resolved only the applicability of equitable pulling to this

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Speaker 1: particular statutory provision, and the Court does not address the

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Speaker 1: applicability of other equitable doctrines such as waiver forfeiture and

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Speaker 1: a stoppel. So those are still avenues that are available

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Speaker 1: to veterans who may feel that their particular circumstances warrant

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Speaker 1: some sort of equitable consideration. During the oral arguments, Justice

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Speaker 1: Alito asked about the Edgewood Veterans. Brief is that another

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Speaker 1: case involving equitable tolling and disability benefits. There is another

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Speaker 1: group of veterans that have cases pending at the Lower Court.

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Speaker 1: These are sometimes called the Edgewood Veterans. The Edgewood Veterans

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Speaker 1: are a group of veterans who participated in testing conducted

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Speaker 1: by the military that involved very costic substances such as

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Speaker 1: nerve gas. Some of them were subjected to other chemical agents,

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Speaker 1: and they were sworn to secrecy and because they were

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Speaker 1: sworn to secrecy, they were not able to apply for

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Speaker 1: benefit without violating their secrecy oath, which could have subjected

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Speaker 1: them to Court our soul or other criminal proceedings. When

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Speaker 1: Congress finally did lift that secrecy ban, many of these

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Speaker 1: veterans promptly applied for benefits, only to be told that

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Speaker 1: they did not qualify for retroactive benefits because they filed

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Speaker 1: too late. And those veterans have argued for a different

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Speaker 1: equitable doctrine called equitable stopple, essentially arguing that the v

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Speaker 1: A is equitably a stop from enforcing that deadline against them.

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Speaker 1: And those cases are all currently stayed at the Federal

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Speaker 1: Circuit pending the decision in this Ariano case. And so

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Speaker 1: there's still some there's still some work to be done

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Speaker 1: by the courts to figure out whether those veterans can

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Speaker 1: be given any relief. Does your client have any other

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Speaker 1: legal avenues open to him? No, this is the end.

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Speaker 1: Spreme Court is the end. But like I say, the

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Speaker 1: only recourse now, at least on this particular issue, would

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Speaker 1: be some sort of fixed by Congress. And do you

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Speaker 1: know if there are any veterans advocacy groups asking for

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Speaker 1: that fix. There's forly advocacy groups broadly advocating Congress to

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Speaker 1: improve the laws in favor of disabled veterans. That's always

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Speaker 1: an ongoing effort. I don't know of any that are

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Speaker 1: specifically lobbying on this particular issue. It's possible, but I'm

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Speaker 1: just not aware of any. James, You're a veteran and

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Speaker 1: you represent veterans, and I'm wondering if the Supreme Court

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Speaker 1: is not showing enough deference to veterans. In November, they

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Speaker 1: declined to take up an appeal from an Air Force

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Speaker 1: veteran who had challenged the authority of the Department of

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Speaker 1: Veterans Affairs to deny him certain disability benefits and justice.

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Speaker 1: Neil Gorst's dissented, writing that the VA's misguided rules harm

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Speaker 1: a wide swath of disabled veterans who serve this nation. Well,

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Speaker 1: I mean, is there enough intervention by the Supreme Court

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Speaker 1: in these cases? In my opinion, no, I think that

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Speaker 1: pro veteran canon, as it's called, should be more mostly

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Speaker 1: adhered to. I think in years past, certainly after World

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Speaker 1: War Two and in the Vietnam era, that cannon was

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Speaker 1: more often relied upon and cited by the Court as

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Speaker 1: a reason to decide close cases in favor of the veteran.

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Speaker 1: You know, when when there's a reasonable interpretation of a

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Speaker 1: statute that in close cases the doubts should go to

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Speaker 1: the veteran. And what I've seen from the ARIANA decision

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Speaker 1: as well as other decisions in recent years, is that

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Speaker 1: pro veteran canon is getting a little more than lip service.

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Speaker 1: Your firm works with veterans. Tell me a little about it.

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Speaker 1: My firm, fitting in is A, is really an intellectual

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Speaker 1: property boutique. UM. What we do as our day job,

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Speaker 1: so to speak, is UM litigation and other work involving

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Speaker 1: patents and trademarks and copyrights, trade cheek secrets and so forth.

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Speaker 1: But we have a very robust pro bono program and

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Speaker 1: many years ago, probably about twenty years ago, we decided

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Speaker 1: to expand that pro bono program into veterans of work.

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Speaker 1: We do a lot of work with veterans at the

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Speaker 1: agency level, so we represent them when they take their

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Speaker 1: appeals to the c ABC at the Court of Appeals

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Speaker 1: for Veterans claims, and we represent them at that level,

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Speaker 1: and we have a lot of success representing veterans at

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Speaker 1: that level, and many times their claims are able to

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Speaker 1: be resolved at that level. But for those that don't

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Speaker 1: and they have meritorious appeals, we also represent them at

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Speaker 1: the next phase, which is the Court of Appeals for

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Speaker 1: the Federal Circuit, and we handle dozens of appeals for

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Speaker 1: veterans to the Federal Circuit. And this is the first

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Speaker 1: that actually made it all the way up to the

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Speaker 1: Supreme Court, but there may be others. Thanks so much

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Speaker 1: for joining me on the show, and thank you for

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Speaker 1: your service to the veterans community. That's James Barney, a

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Speaker 1: partner at Finnigan. I'm wondering if you would just comment on,

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Speaker 1: you know, the ancient legal principle of if if it

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Speaker 1: ain't broke, don't fix it. And the justices did follow

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Speaker 1: that ancient legal principle by throwing out a case that

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Speaker 1: was closely watched by in house Council about the scope

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Speaker 1: of the attorney client privilege. During oral arguments, many of

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Speaker 1: the justice has suggested there was no need to change

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Speaker 1: the scope of the attorney client privilege when communications between

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Speaker 1: an attorney and a client have both a legal and

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Speaker 1: a business purpose. Here's Justice Amy Coney Barrett. Because we

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Speaker 1: can't really say tigers to the runner right when the

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Speaker 1: burden is on the person invoking the privilege. We can't

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Speaker 1: get into this whole quote of percentage on it for

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Speaker 1: the reasons that we've already talked about, So maybe it's

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Speaker 1: best to say nothing. And the gentice is said next

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Speaker 1: to nothing, issuing one line saying quote the rit of

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Speaker 1: searchiari is dismissed as improvidently granted. Joining me is mc

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Speaker 1: sung Gila, a partner at the Complex of Pellet Litigation

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Speaker 1: Group MC. This is referred to as a dig dismissal

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Speaker 1: as improvidently granted. Explain what that means well to some degree,

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Speaker 1: given that the order just is one line like that,

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Speaker 1: describing why it happened is somewhat reading t leaves. But

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Speaker 1: there are various reasons that the court, you know, does this.

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Speaker 1: So it agrees to hear the case based on the

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Speaker 1: issue presented in the third petition, and then something happens

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Speaker 1: along the way as they're diving into the case that

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Speaker 1: causes them to say, we should never granted it in

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Speaker 1: the first instance, and so we're going to dismiss it

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Speaker 1: and not decide it on the map. But it is

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Speaker 1: rare because it only cars in about two of cases

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Speaker 1: before the court. Is it surprising that it happened within

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Speaker 1: two weeks or when they know they know I've actually

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Speaker 1: studied this previously, and um both studies for terms prior

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Speaker 1: to the ones I studied. I studied to the two thousands,

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Speaker 1: and the average time after argument when they would dismiss

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Speaker 1: of them providently granted or dig a case is sixty

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Speaker 1: two days. So generally they tend to go a little

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Speaker 1: bit longer in working through the opinion, so it is

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Speaker 1: relatively quick. So one of the reasons that the Supreme

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Speaker 1: the case is not a good vehicle for resolving the issue.

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Speaker 1: And I'm wondering if that might be true in this

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Speaker 1: case because the case was shrouded in secrecy, it involved

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Speaker 1: a grand jury subpoena records related to the preparation of

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Speaker 1: tax returns and the ownership of cryptocurrency, so it might

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Speaker 1: not be the best case to resolve these issues of

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Speaker 1: attorney client privilege. Yeah, I mean, I think there are

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Speaker 1: a couple of different things that could have caused this,

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Speaker 1: and and maybe all of them together, you know, resulted

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Speaker 1: in the order. And one of what you mentioned but

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Speaker 1: it's true that from the legal standpoint, there's a whole

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Speaker 1: separate body of law dealing with tax advice and tax

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Speaker 1: related items that are treated somewhat differently from other types

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Speaker 1: don't want to wait into it with this particular tax context.

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Speaker 1: But they did know that basically at the time the

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Speaker 1: third petition was presented, so that could be part of it.

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Speaker 1: But I also wonder whether there are a few other

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Speaker 1: things that play. One of them would be at arguments.

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Speaker 1: There seemed to be somewhat some shifting approaches, shifting positions

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Speaker 1: wait a minute, you know now that you're saying this

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Speaker 1: about whether this is a good case to decide these issues,

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Speaker 1: and what you want us to decide seems maybe slightly

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Speaker 1: different from what we thought when we had desert petition

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Speaker 1: to begin with. It's also possible based on Justice barris

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Speaker 1: comments of argument where she said, hey, is there some

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Speaker 1: sort of middle ground we could do? We could affirm

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Speaker 1: the night look at ruling in this case and kind

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Speaker 1: of let the existing case while around the country stand

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Speaker 1: and speak for itself without further elaboration or explanation from

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Speaker 1: the court. That kind of results if that's where people

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Speaker 1: landed at conference after argument, could be accomplished just as

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Speaker 1: well through through a dig. If we're not going to

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Speaker 1: explain how this standard, whatever standard we announced, should be applied,

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Speaker 1: maybe we just let it percolate for more, wait for

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Speaker 1: a case that has, you know, a different context and

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Speaker 1: one that's public that people can analyze to see how

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Speaker 1: we're applying things, and give us more time to think

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Speaker 1: about what what we would say and what we would

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Speaker 1: want the standard to be, and maybe let the lower

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Speaker 1: courts kind of work out whatever conflict exists, and let's

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Speaker 1: just go back for a moment and remind us all

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Speaker 1: about the issue here. Sure, So the question here is

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Speaker 1: actually one that's very important to you, to lawyers and

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Speaker 1: their clients particularly, I would say in house council really

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Speaker 1: are focused on We're focused on the issues in this

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Speaker 1: case because the question is when you have sort of

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Speaker 1: dual purpose communications, you have both a business aspect of

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Speaker 1: advice and legal advice, which often get intertwined in the

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Speaker 1: corporate context, what is the test that you use to

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Speaker 1: decide whether the attorney client privilege applies to that. Is

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Speaker 1: it the primary purpose test, which is what the Ninth

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Speaker 1: Circuit announced in this case, or is it more of

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Speaker 1: a significant purpose test, and the question and depending on

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Speaker 1: how it's applied, could mean that you have more protection

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Speaker 1: for communications or less protection for communications, and having some

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Speaker 1: certainty about how that test is applied, what the test is,

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Speaker 1: and what people and clients can anticipate, you know, with

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Speaker 1: something that's particularly in how councle were really looking forward

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Speaker 1: to in this case, because there is there is in

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Speaker 1: the phrasing of the test a circuit split. Currently, depending

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Speaker 1: on where you are in the country, the test is

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Speaker 1: a little bit different in terms of whether these next communications,

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Speaker 1: the um the legal part of them is protected. The

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Speaker 1: dig means it's as if the case never happened, right right,

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Speaker 1: the Ninth Circuit opinion, you know, reappears and becomes the

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Speaker 1: governing results in the case, and yeah, everything now remains

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Speaker 1: as it was prior to the third petition being filed.

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Speaker 1: Does that mean that the circuit courts who use a

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Speaker 1: different standard than the Ninth Circuit they can just go

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Speaker 1: on applying that standard because the Ninth Circuit isn't presidential,

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Speaker 1: even though the Supreme Court has not a firm but

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Speaker 1: left alone the Ninth Circuits decision. I mean, do the

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Speaker 1: other circuits had any kind of you responsibility to follow it? Yeah? Yeah,

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Speaker 1: I see what you're saying, some kind of nudge, you know,

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Speaker 1: from from the court having done this. I don't think so,

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Speaker 1: because it's following from an argument, an oral argument where

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Speaker 1: there was a lot of um back and forth about

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Speaker 1: how much the standards were actually different in practice. So

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Speaker 1: Justice Havana talked about that. Justice course has talked about that, saying, well,

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Speaker 1: you know, maybe in practice they essentially are applied in

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Speaker 1: a significant purpose way and not really a primary purpose way,

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Speaker 1: and so they were suggesting that maybe there's a merging

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Speaker 1: of the standards. So it could be in this case

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Speaker 1: because of the way arguments happened and the various comments

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Speaker 1: that were made by the justices and then the dig um,

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Speaker 1: it's possible that courts could say, oh, we we have

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Speaker 1: a little more freedom maybe and how we apply these standards.

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Speaker 1: And I think that's ultimately, at least the short term

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Speaker 1: outcome is that a lot of the discretion and how

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Speaker 1: you're applying this test remains with the child judges remains

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Speaker 1: with the disrecport and they also have you know, if

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Speaker 1: there's be spoken or even if it has, it's possible

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Speaker 1: that um, a court that's adopted the primary purpose test

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Speaker 1: could say, h yes, but applying it to these circumstances,

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Speaker 1: I think it should be applied in this way, which

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Speaker 1: may be more of a significant purpose test. Would maybe

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Speaker 1: that by doing the dig and allowing the courts to

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Speaker 1: work it out themselves at the circuit level and the

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Speaker 1: district court level, that we might sort of reach that

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Speaker 1: consensus that Justice kab Not thought said, I really I

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Speaker 1: think you're saying two different things, but in practice you

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Speaker 1: really end up applying a similar test. So the question

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Speaker 1: would be in the ninth Circuit, is that true? Because

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Speaker 1: obviously there was a significant difference to the outcome of

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Speaker 1: this taste depending on how the test was applied, and

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Speaker 1: the test was applied pretty strictly both bide the districcord

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Speaker 1: and the then circuit. So it really depends on circuit

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Speaker 1: you're in about how they you know, how they take

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Speaker 1: what the Sprint Court said, yeah, and Justice Scores which

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Speaker 1: also said the tests sounded a lot alike, but you

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Speaker 1: don't think the tests are a lot alike. Yeah, I mean,

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Speaker 1: they're certainly different on their faith, and I think that

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Speaker 1: depending on who is applying them, maybe they merge in

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Speaker 1: some cases. But why have two tests? Then, I guess

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Speaker 1: I'll just be super practical, right, Why why have a

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Speaker 1: primary service and in a you know, sort of significant

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Speaker 1: or substantial purpose test? Why make that distinction if it

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Speaker 1: really means nothing? Um Ultimately, So, I think the courts

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Speaker 1: think there's some difference there. It's just what I think

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Speaker 1: what justice courts, which Kab and I we're saying, was

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Speaker 1: they may have announced two different standards, but at least

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Speaker 1: in a few cases and in certain contacts, as they

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Speaker 1: end up applying it, some of the courts seem uncomfortable

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Speaker 1: with a primary purpose standard and end up essentially applying

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Speaker 1: it as a as a you know, significant purpose. So

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Speaker 1: basically it's all left for the courts to work out

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Speaker 1: on their own at this point, with the various input

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Speaker 1: from from the justices that arguments about where they might

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Speaker 1: go with it. Do you think that this will lead

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Speaker 1: businesses to engage in more siloed communications or to get

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Speaker 1: more advice from outside council. Yeah, I mean I think

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Speaker 1: that both of those things were possible. Certainly that was

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Speaker 1: the advice given prior to competition being granted was Hey,

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Speaker 1: to minimize uncertainty and risk. The best thing to do

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Speaker 1: is to really carve out your pure legal advice and

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Speaker 1: your business advice and to suffer communications so we don't

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Speaker 1: have to, you know, get into those point of applying

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Speaker 1: this test and being subject to the discussion of the

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Speaker 1: particular child judge. So you submitted uh an amc is

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Speaker 1: brief on behalf of one of the organizations, and there

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Speaker 1: were several organizations that submitted a meek is brief. M

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Speaker 1: Are people very disappointed in this? Yeah? I mean I

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Speaker 1: think that, Um, the issue is one that's really at

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Speaker 1: the forefront or companies, and they're in Health Council in particular,

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Speaker 1: and so it's kind of a situation where you might

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Speaker 1: deal with this uncertainty, but then you have a hope

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Speaker 1: that that certainty will come right well some clear guidance

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Speaker 1: and then we'll know what to do, and then your

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Speaker 1: hopes will kind of dash. You're like, okay, not now,

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Speaker 1: we're going to have to wait for that. So there's

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Speaker 1: a certain level of disappointment and let down. UM after

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Speaker 1: the argument, but I also think that the argument was

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Speaker 1: sort of, you know, maybe a little disappointing than theory

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Speaker 1: in itself to all of the anamicus and all the

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Speaker 1: in house volts who were focused on having the substantial

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Speaker 1: um and not the primary standard be the test. There's

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Speaker 1: a little too many voices in the courts that suggested

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Speaker 1: that they might not be looking at the practical aspects

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Speaker 1: that the practicing lawyers and bar associations and in house

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Speaker 1: council would be looking at. There's there's uh. I said,

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Speaker 1: disappointment immediately, but also I think, honestly a little bit

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Speaker 1: of relief that, um, you know, we're not going in

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Speaker 1: a strong direction towards a really really tough test. Thanks

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Speaker 1: so much for being on the show. MC. That's MC

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Speaker 1: S and Diala a partner the Complex Ap Pellet Litigation Group.

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Speaker 1: And that's it for this edition of The Bloomberg Law Show.

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Speaker 1: Remember you can always get the latest legal news on

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Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

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Speaker 1: and at www dot Bloomberg dot com, slash podcast, Slash Law,

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Speaker 1: And remember to tune into The Bloomberg Law Show every

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Speaker 1: week night at ten pm Wall Street time. I'm June

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Speaker 1: Grosso and you're listening to Bloomberg