WEBVTT - Voting Rights and Veterans Benefits at High Court 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Bresso from Bloomberg Radio. 0:00:10.640 --> 0:00:13.399 I don't think we can assume that just because race 0:00:13.520 --> 0:00:17.080 is taken into account, that that necessarily creates an equal 0:00:17.079 --> 0:00:21.640 protection problem. At issue is whether Alabama violated the Voting 0:00:21.720 --> 0:00:24.919 Rights Act by drawing its congressional map in a way 0:00:24.960 --> 0:00:28.600 that ensures the state will have just one black representative 0:00:28.800 --> 0:00:32.640 for the next decade. And Justice Katangi Brown Jackson pushed 0:00:32.680 --> 0:00:36.200 back on the suggestion that redistricting needs to be done 0:00:36.200 --> 0:00:39.360 in a race neutral way, pointing out that the Framers 0:00:39.400 --> 0:00:43.239 adopted the post Civil War amendments to the Constitution in 0:00:43.280 --> 0:00:48.159 a race conscious way. They were, in fact, trying to 0:00:48.400 --> 0:00:53.440 ensure that people who had been discriminated against the freedmen 0:00:54.080 --> 0:01:00.680 um in during the reconstructed construction period were actually uh 0:01:00.840 --> 0:01:04.040 brought equal to everyone else in the society. Joining me 0:01:04.160 --> 0:01:07.200 is elections law expert Richard Hassan, a professor at u 0:01:07.240 --> 0:01:11.520 c l A Law School. So, Rick, Alabama is black, 0:01:11.600 --> 0:01:15.880 but the Republican legislature drew only one majority black voting 0:01:15.920 --> 0:01:19.280 district out of seven, and a three judge panel said 0:01:19.319 --> 0:01:23.360 Alabama was probably violating the Voting Rights Act. So what's 0:01:23.400 --> 0:01:26.720 the issue here. So the Voting Rights Act requires that 0:01:26.840 --> 0:01:30.840 under certain conditions. Basically, when there are large populations of 0:01:30.920 --> 0:01:34.600 minority voters and white voters, minority voters tend to vote 0:01:34.640 --> 0:01:37.480 for different candidates, it's possible that the Voting Rights Act 0:01:37.560 --> 0:01:41.040 requires the drawing of a district to give those minority 0:01:41.080 --> 0:01:44.000 voters a chance to get representation. In the Alabama case, 0:01:44.160 --> 0:01:47.520 a three judge court held that although Alabama had one 0:01:47.840 --> 0:01:51.400 congressional district where minority voters could elect a candidate of choice, 0:01:51.520 --> 0:01:53.880 they were entitled to a second one given the size 0:01:53.880 --> 0:01:57.200 of their population. Where the population was and the continued 0:01:57.520 --> 0:02:00.440 racially polarized voting in the state of Alabama. The fact 0:02:00.480 --> 0:02:04.800 that the Supreme Court stepped in and a lot Alabama 0:02:04.800 --> 0:02:08.239 to keep its map for the primaries, Justice Kagan called 0:02:08.240 --> 0:02:10.720 it clear vote delution. Do you see that as the 0:02:10.760 --> 0:02:14.200 Court tipping its hand here? Well, back when the Court 0:02:14.240 --> 0:02:16.519 decided to put this ruling on hold, that was a 0:02:16.520 --> 0:02:19.840 pretty good indication that a majority of the Court's justices 0:02:20.080 --> 0:02:23.360 thought that Alabama was likely to win. In fact, Chief 0:02:23.400 --> 0:02:26.959 Justice Roberts, who is not always the most friendly to 0:02:27.040 --> 0:02:30.560 voting rights plaintiffs, dissented from that order. Back last spring 0:02:30.639 --> 0:02:33.119 because he said it under existing lot looks like Alabama 0:02:33.120 --> 0:02:35.520 should win. So the question really is whether or not 0:02:35.880 --> 0:02:39.720 the Court is ready to tweak or more radically change 0:02:40.080 --> 0:02:42.680 understanding of how the Voting Rights Act works if it 0:02:42.720 --> 0:02:44.840 does so in this case. Depending on how it does so, 0:02:44.960 --> 0:02:48.400 we could have small implications or very large applications for 0:02:48.560 --> 0:02:52.000 minority representation in the Congress as well as in state 0:02:52.080 --> 0:02:57.519 local legislatures. What was the main focus of the oral arguments, Well, 0:02:57.560 --> 0:03:01.120 Alabama advanced a number of different arguments. Their most radical 0:03:01.240 --> 0:03:05.519 argument would essentially rework section to the Voting Rights Act, 0:03:05.680 --> 0:03:08.280 and there was little appetite on the Court for issuing 0:03:08.280 --> 0:03:11.480 an opinion that would overturn decades of precedent and have 0:03:11.600 --> 0:03:13.800 a whole new approach to the Voting Rights Act. But 0:03:13.840 --> 0:03:16.400 there was much more interest, at least among some of 0:03:16.400 --> 0:03:21.040 the conservative justices, especially Justice Alito, in tweaking the existing 0:03:21.080 --> 0:03:23.680 standards in a way that would make it look like 0:03:24.240 --> 0:03:27.480 the Court is continuing with its application of existing law, 0:03:27.520 --> 0:03:30.680 but actually changes the standards enough to make it easier 0:03:30.680 --> 0:03:33.240 for states to win and harder for minority voters to win. 0:03:33.440 --> 0:03:36.520 The real question is whether or not the other justices 0:03:36.520 --> 0:03:39.560 would be willing to go along with Justice Alito, Justice 0:03:39.680 --> 0:03:45.119 Jackson seemed to dominate the arguments well. Justice Jackson, even 0:03:45.160 --> 0:03:47.760 though this was only her second day of oral arguments 0:03:47.760 --> 0:03:51.520 of the Supreme Court, came out of the box very 0:03:51.560 --> 0:03:56.400 well prepared and extremely aggressive encountering with Justice Alito was 0:03:56.440 --> 0:03:58.680 trying to do so. Justice Dealto was trying to find 0:03:58.720 --> 0:04:02.640 a way to re interpret the standards that apply to 0:04:02.720 --> 0:04:06.360 Section two, and Justice Jackson's main point was that Justice 0:04:06.360 --> 0:04:09.680 the Leader's approach is inconsistent with the text of Section two, 0:04:09.680 --> 0:04:12.600 it's inconsistent with the precedent that's applied section two, and 0:04:12.680 --> 0:04:15.880 there's no constitutional reasons. I thought it was particularly notable 0:04:16.040 --> 0:04:19.400 that on the constitutional point, Justice Jackson went back to 0:04:19.520 --> 0:04:23.719 the original understanding of the Reconstruction Amendments, the thirteen sporteen, 0:04:23.720 --> 0:04:26.240 the fifteen Monuments, which provide the basis for Congress to 0:04:26.279 --> 0:04:28.599 act to pass the Voting Rights Accident. I saw that 0:04:28.680 --> 0:04:30.839 as an appeal to some of the justices who are 0:04:30.920 --> 0:04:33.839 originalists on the Court care about the original meaning, and 0:04:33.839 --> 0:04:35.840 what she was trying to argue is that the Voting 0:04:35.920 --> 0:04:38.880 Rights Act as it's been understood, it's very much in 0:04:38.960 --> 0:04:42.799 line with what those who passed the Fourteenth Amendment thought 0:04:43.080 --> 0:04:45.799 could happen, which is that there could be race conscious 0:04:45.880 --> 0:04:50.200 laws that could be passed to provide protection for members 0:04:50.240 --> 0:04:53.720 of our society who faced past discrimination. What about some 0:04:53.800 --> 0:04:56.880 of the conservatives that might be closer to the middle 0:04:56.920 --> 0:05:01.720 of the court. Did they propose anything afferent a different solution? 0:05:01.839 --> 0:05:06.839 Did they seem to agree with Justice Alito or Justice Jackson. So, 0:05:07.960 --> 0:05:12.960 both Justice Kavanaugh and Justice Barrett mostly asked clarifying questions 0:05:13.480 --> 0:05:16.320 in order to understand what it was exactly that Alabama 0:05:16.400 --> 0:05:19.080 was arguing. What was the plaintiffs were contending has to 0:05:19.120 --> 0:05:23.120 be done under the existing law. They didn't really tip 0:05:23.200 --> 0:05:26.839 their hand very much. But I'm reminded of the oral 0:05:26.960 --> 0:05:30.280 argument in a case called Bernovich, which the Supreme Court 0:05:30.279 --> 0:05:33.520 decided a year ago last July. During ther arguments of 0:05:33.560 --> 0:05:36.160 that case, which also involved the same statute section to 0:05:36.200 --> 0:05:38.919 the Voting Rights Act, but not in the redictioning context 0:05:39.480 --> 0:05:42.120 at our argument, both of those justices seem kind of 0:05:42.160 --> 0:05:45.400 open to arguments on both sides, but in the end 0:05:45.600 --> 0:05:48.839 they colalesced behind Justice Alito's opinion, which was a very 0:05:48.920 --> 0:05:52.400 hostile opinions to voting rights litis. And so if that 0:05:52.520 --> 0:05:57.040 pattern holes. This time, we're likely to see a significant 0:05:57.080 --> 0:05:59.320 weakening of the Voting Rights Act. Now nothing is set 0:05:59.320 --> 0:06:04.680 in stone. You really can't predict anything from oral argument 0:06:04.760 --> 0:06:08.120 questions with any kind of certainty. They seem to open minded, 0:06:08.279 --> 0:06:11.000 but it's not clear that that open mindness will prevail 0:06:11.080 --> 0:06:14.960 by the time the case gets decided sometime later this 0:06:15.040 --> 0:06:20.240 year or more likely next year. Did Justice Thomas say 0:06:20.279 --> 0:06:24.520 anything of noteworthy? Justice Thomas asked a few questions. Justice course, 0:06:24.560 --> 0:06:27.120 that didn't. They've both taken the point of view that 0:06:27.920 --> 0:06:29.960 the Voting Rights Act Section two, as a matter of 0:06:29.960 --> 0:06:34.080 statutory interpretations, does not even apply to redistricting, and so 0:06:34.320 --> 0:06:38.320 they are not likely to be vote to uh side 0:06:38.320 --> 0:06:40.279 with the plaintiffs, and saying that this a voting rights 0:06:40.520 --> 0:06:45.000 relations here and the chief the fact that he joined 0:06:45.000 --> 0:06:48.920 the liberals in dissent on the shadow docket case, does 0:06:48.960 --> 0:06:53.120 that indicate he might side with the liberals again here? Well, 0:06:53.160 --> 0:06:57.520 what he said was I think that under existing law 0:06:57.600 --> 0:07:01.240 the plaintiffs should win, but I'm open to rethinking existing law. 0:07:01.400 --> 0:07:03.200 So I don't think we can read all that much 0:07:03.240 --> 0:07:08.039 into it from his vote in the stay question earlier 0:07:08.240 --> 0:07:12.080 this year. You refer to it over the last decade, 0:07:12.480 --> 0:07:16.119 the Supreme Court has already weakened the Voting Rights Act. 0:07:16.680 --> 0:07:19.200 So is there any chance that this case will be 0:07:19.240 --> 0:07:22.840 different or will they just continue on the road they've 0:07:22.840 --> 0:07:26.120 been on. So there is certainly a history of the 0:07:26.200 --> 0:07:28.680 Court being hostile to the Voting Rights Act. There was 0:07:28.680 --> 0:07:31.760 the two thousand and thirteen case Shelby County versus Holder 0:07:31.800 --> 0:07:34.440 that essentially killed off a major provision of Voting Rights 0:07:34.440 --> 0:07:37.120 Act known as Section five. There was the Burnovitch case 0:07:37.360 --> 0:07:40.200 that held the Section two doesn't have a lot of 0:07:40.240 --> 0:07:43.800 teeth outside of the resisting context. Also some other decisions, 0:07:43.840 --> 0:07:47.000 including the decision a few years ago written by Justice 0:07:47.040 --> 0:07:51.680 Alito called Abbott first Paris Case out of Texas, which 0:07:51.760 --> 0:07:54.800 also weakened the understanding the Voting Rights Act. So if 0:07:54.840 --> 0:07:57.320 that pattern holds up, I don't think it's going to 0:07:57.360 --> 0:08:00.800 be good news for minority voters. I think the real 0:08:00.880 --> 0:08:04.119 question is not there's a good chance that planeiffs lose. 0:08:04.440 --> 0:08:07.440 We already know from them taking the case and issuing 0:08:07.440 --> 0:08:10.040 a stay that that's likely to happen. It's how they 0:08:10.080 --> 0:08:12.520 lose and how bad it's going to be. The three 0:08:12.600 --> 0:08:17.200 judge District Court ruling that agreed that Alabama's mapped likely 0:08:17.320 --> 0:08:21.400 violated the Voting Rights Act? Did that court follow precedent? 0:08:21.640 --> 0:08:25.520 And you know, was its decision in line with prior cases? 0:08:26.400 --> 0:08:29.040 I think that decision very much followed precedent. In fact, 0:08:29.600 --> 0:08:33.360 Chief Justice Roberts, in dissenting from the courts issuing of 0:08:33.400 --> 0:08:37.360 a stay less spring, said that much. I think it's 0:08:37.400 --> 0:08:40.480 notable that the panel, the three judge courts. Two of 0:08:40.480 --> 0:08:43.920 the judges on that court were appointed by President Trump. 0:08:44.559 --> 0:08:46.280 So this is not, you know, a panel made up 0:08:46.440 --> 0:08:50.040 of Democratic appointed judges who might have a different viewpoint 0:08:50.080 --> 0:08:52.560 on the reading of the Act than say, the conservaive 0:08:52.600 --> 0:08:55.840 justices on the Supreme Court. Really, the question is not 0:08:56.040 --> 0:08:59.160 whether or not the planeffs win under existing precedent. I 0:08:59.200 --> 0:09:01.680 think that's an easy that they do. The question is 0:09:01.679 --> 0:09:04.880 whether the Court's going to change the standard. I want 0:09:04.880 --> 0:09:09.480 to get your take on another redistricting case the Court 0:09:09.600 --> 0:09:12.360 is going to be hearing later in the term. It 0:09:12.440 --> 0:09:16.800 involves the North Carolina map, and it will test the 0:09:16.840 --> 0:09:21.160 power of state courts to invalidate congressional maps as two 0:09:21.240 --> 0:09:27.479 partisan with this controversial doctrine called the independent state legislature doctrine, 0:09:28.280 --> 0:09:32.400 and some elections law experts say that if the Court 0:09:32.440 --> 0:09:37.800 adopts that doctrine, it could rerea havoc on elections across 0:09:37.800 --> 0:09:41.160 the country. I'm actually filing an AMIKS brief in the case, 0:09:41.320 --> 0:09:44.480 so I think that if the Court adopts the kind 0:09:44.520 --> 0:09:48.640 of expansive arguments that the planeffs have made in that case, 0:09:49.440 --> 0:09:53.360 it is going to vastly increase the amount of election 0:09:53.400 --> 0:09:58.720 litigation in courts. It's going to give every state court 0:09:58.760 --> 0:10:03.199 decision interpreting a state election law that supplies in the 0:10:03.240 --> 0:10:08.080 federal election, and every state and local agency decision applied 0:10:08.080 --> 0:10:10.680 to a federal election a chance to become a federal 0:10:10.720 --> 0:10:14.839 lawsuit that could potentially pitch federal courts against state courts. 0:10:15.080 --> 0:10:17.600 And I think ultimately, if the Court rules the way 0:10:17.640 --> 0:10:23.760 that the Republican legislators want in the North Carolina case, 0:10:24.720 --> 0:10:28.960 that it's going to undermine voter confidence in both the 0:10:29.000 --> 0:10:32.360 electoral process and in the courts. Thanks so much for 0:10:32.360 --> 0:10:36.040 your insights, Rick, that's Professor Richard Hassan of u c 0:10:36.200 --> 0:10:40.480 l A Law School. Will your argument next in case 0:10:42.920 --> 0:10:47.720 Oriyano versus McDonough, Mr Barney, Thank you, missr Chief Justice, 0:10:47.720 --> 0:10:50.240 and man it please the Court. And with that James 0:10:50.240 --> 0:10:53.480 Barney made his debut at the Supreme Court, a former 0:10:53.640 --> 0:10:58.359 Naval officer, arguing on behalf of fellow veteran Adolpho Ariano, 0:10:58.640 --> 0:11:03.880 who suffers from severe mental health conditions, including PTSD, following 0:11:03.920 --> 0:11:08.160 an aircraft carrier collision. They're challenging an appellate court ruling 0:11:08.440 --> 0:11:11.160 that said the veteran can't get around the one year 0:11:11.240 --> 0:11:17.160 deadline for filing for retroactive benefits, and James Barney joins me, Now, James, 0:11:17.160 --> 0:11:21.840 tell us about your client. Sure, My client is Adolfo Ariano. 0:11:22.040 --> 0:11:24.920 He was a Navy veteran who served aboard an aircraft 0:11:24.960 --> 0:11:28.920 carrier back in the late seventies and suffered very traumatic 0:11:29.000 --> 0:11:32.240 event when that aircraft carrier collided with a freighter. He 0:11:32.360 --> 0:11:35.280 was nearly swept overboard. He was working on the flight deck, 0:11:35.520 --> 0:11:39.080 observed several of his shipmates being injured and killed, and 0:11:39.200 --> 0:11:41.720 when he was discharged from the Navy a year or 0:11:41.760 --> 0:11:46.040 so later, he really had some traumatic disabilities because of that, 0:11:46.280 --> 0:11:49.559 and that really is the focus of our case. He 0:11:49.760 --> 0:11:52.640 was lucky in the sense that his brother was able 0:11:52.679 --> 0:11:56.480 to eventually take over his affairs, in other words, become 0:11:56.559 --> 0:11:59.160 his guardian, and it really was his brother that was 0:11:59.200 --> 0:12:02.560 able to get Mr. Ariana to file a claim for 0:12:02.679 --> 0:12:05.520 his disabilities with the v A. But unfortunately, by the 0:12:05.559 --> 0:12:08.600 time he did so, many years had passed and Mr. 0:12:08.640 --> 0:12:13.600 Ariana had already been suffering from these very severe mental disabilities. 0:12:13.920 --> 0:12:16.920 And does this happen often that a veteran, you know, 0:12:17.040 --> 0:12:20.160 misses the time when he or she can file. Don't 0:12:20.200 --> 0:12:22.599 the services tell you what you have to do is 0:12:22.640 --> 0:12:26.840 you leave? Yes, But unfortunately that doesn't always happen. When 0:12:26.960 --> 0:12:30.079 veterans leave the service, it's a very tumultuous time in 0:12:30.120 --> 0:12:33.560 their lives. Some of these veterans have really known nothing 0:12:33.600 --> 0:12:36.160 else in their adult lives other than the military, and 0:12:36.200 --> 0:12:39.120 so it becomes their community, it becomes their life, and 0:12:39.280 --> 0:12:42.720 leaving the military, even if you don't have disabilities, leaving 0:12:42.720 --> 0:12:46.680 the military is a very tumultuous and sometimes somewhat traumatic 0:12:46.920 --> 0:12:49.880 process as you're trying to make that transition to civilian life. 0:12:50.000 --> 0:12:53.160 If you add into that a veteran who's suffering from 0:12:53.320 --> 0:12:57.240 very significant injuries, so we're talking about traumatic brain injuries, 0:12:57.360 --> 0:13:01.400 we're talking about PTSD. Unfortunately, only there's a number of 0:13:01.480 --> 0:13:04.560 veterans who suffer from the effects of what they call 0:13:04.640 --> 0:13:08.200 military sexual trauma, and these can be debilitating and so 0:13:08.240 --> 0:13:11.520 on top of this tumultuous life change that's taking place, 0:13:11.640 --> 0:13:15.240 they're suffering from these disabilities. And does the v A 0:13:15.240 --> 0:13:17.719 always tell the veteran all of the things they need 0:13:17.760 --> 0:13:20.320 to do to file for benefits they're supposed to, But 0:13:20.400 --> 0:13:22.480 I don't think it happens all the time, or if 0:13:22.480 --> 0:13:25.040 it does happen, it happens in such a flurry of 0:13:25.120 --> 0:13:28.760 other activity that the veteran doesn't really understand what's happening. 0:13:29.000 --> 0:13:31.480 The veterans are not represented by counsel at this point, 0:13:31.559 --> 0:13:34.280 so they're religious on their own, and unfortunately many of 0:13:34.320 --> 0:13:36.840 them do miss this one year filing deadline. That's an 0:13:36.840 --> 0:13:40.640 issue in this case. The Circuit court ruled against your client. 0:13:41.320 --> 0:13:43.720 Why do you think the Supreme Court took your case? 0:13:43.960 --> 0:13:45.960 Is it a good sign that perhaps they want to 0:13:46.000 --> 0:13:49.880 reverse the Circuit Court? Well, I think so. I think 0:13:49.880 --> 0:13:52.400 they took the case because it's an important issue. It 0:13:52.480 --> 0:13:54.880 really has to do with fairness. There was a case 0:13:55.120 --> 0:13:57.920 about thirty years ago called Irwin, and what the Irwin 0:13:58.240 --> 0:14:00.959 case held, this is a Supreme Court case, was that 0:14:01.120 --> 0:14:04.600 people who have claims against the government, like benefits claims, 0:14:04.640 --> 0:14:07.920 should be treated the same way as litigants in private 0:14:07.960 --> 0:14:10.959 litigation with respect to this issue of whether you can 0:14:11.000 --> 0:14:14.160 equitably toll or, in other words, forgive a missed deadline. 0:14:14.440 --> 0:14:17.440 Most people in civil litigation who have a claim against 0:14:17.440 --> 0:14:19.960 the private party, if they miss a deadline, they can 0:14:20.000 --> 0:14:22.200 actually request it to be told. And what the Supreme 0:14:22.240 --> 0:14:24.760 Court said in Irwin was there should be no difference 0:14:24.800 --> 0:14:28.000 between that and when a person is suing the government 0:14:28.080 --> 0:14:31.200 or seeking a claim against the government. And yet despite that, 0:14:31.360 --> 0:14:35.680 the Federal Circuit had for many years ruled that veterans 0:14:35.720 --> 0:14:38.120 simply are not able to take advantage of that. They 0:14:38.160 --> 0:14:41.080 basically said, veterans are somehow different, and we did not 0:14:41.160 --> 0:14:44.440 think that was fair. At the Supreme Court Oral arguments, 0:14:44.480 --> 0:14:48.480 What was the toughest question you've got, uh, The one 0:14:48.560 --> 0:14:52.080 that I wasn't quite prepared for. Was Justice Jackson asked 0:14:52.080 --> 0:14:55.200 me a question about statutes of limitations and to use 0:14:55.240 --> 0:14:58.800 an analogy. In her view that status of limitations were 0:14:59.120 --> 0:15:01.600 sort of like funnel And I was struggling a little 0:15:01.600 --> 0:15:04.200 bit with that analogy, but I got through it, and 0:15:04.240 --> 0:15:06.400 I think I answered her question in a way that 0:15:06.560 --> 0:15:09.480 satisfied her. Other than that, most of the questions we 0:15:09.640 --> 0:15:13.440 expected there are difficult legal issues here, and so some 0:15:13.520 --> 0:15:17.320 of these questions got far into the weeds of doctrines 0:15:17.400 --> 0:15:20.120 like equitable tolling and so forth. But most of them 0:15:20.240 --> 0:15:23.000 I felt were expected, and I thought I was able 0:15:23.000 --> 0:15:27.280 to answer them satisfactorily. So the government isn't even conceding 0:15:27.320 --> 0:15:30.520 that this is a statute of limitations. Uh. The Solicitor 0:15:30.600 --> 0:15:34.400 General argued, this statute it doesn't walk or quack like 0:15:34.480 --> 0:15:37.600 a statute of limitations, and it doesn't function as one either. 0:15:38.120 --> 0:15:41.280 Is that the toughest part of your argument? Well, I 0:15:41.320 --> 0:15:43.760 don't think so. Um. I thought that was the easiest 0:15:43.800 --> 0:15:46.000 part of our argument. I think this is very clearly 0:15:46.040 --> 0:15:48.560 a statute of limitations. And I don't think that Justice 0:15:48.640 --> 0:15:52.600 Kagan really appreciated that particular answer, because she pushed back 0:15:52.600 --> 0:15:55.400 on the government on that point. The issue here is 0:15:55.840 --> 0:15:59.160 Congress has stepped forth a one year's time limit in 0:15:59.320 --> 0:16:03.239 order to qual A five for these retroactive disability benefits, 0:16:03.280 --> 0:16:06.160 and I don't think it's a stretch to say that 0:16:06.160 --> 0:16:10.120 that operates like a statued limitations. The Chief Justice pointed 0:16:10.120 --> 0:16:13.000 out that this is an agency, the v A, that 0:16:13.160 --> 0:16:17.560 supports disabled veterans and not an agency with rigid rules 0:16:17.600 --> 0:16:19.960 like the I R S. Does that give you hope? 0:16:20.200 --> 0:16:22.320 It does give me hope. And the Chief Justice was 0:16:22.360 --> 0:16:26.000 exactly correct there. This doctrine of equitable tolling, believe it 0:16:26.080 --> 0:16:29.800 or not, has actually been applied to allow the I 0:16:30.040 --> 0:16:33.520 R S to benefit from this doctrine of equitable tolling 0:16:33.520 --> 0:16:36.680 in order to extend or to forgive deadlines that they missed. 0:16:36.800 --> 0:16:38.840 And it would be an odd result to think that 0:16:38.880 --> 0:16:41.840 the I R S can benefit from this equitable principle, 0:16:41.920 --> 0:16:44.840 and yet service disabled veterans cannot. And I think that 0:16:45.080 --> 0:16:48.360 was the point that Justice Robertson was getting to. You've 0:16:48.400 --> 0:16:52.080 done many appellate arguments before, never before the Supreme Court. 0:16:52.160 --> 0:16:56.320 How different was it? Was it different? Well, it was 0:16:56.360 --> 0:16:59.920 certainly a new experience and humbling experience, I must say, 0:17:00.200 --> 0:17:03.560 to some extent, it's not different. I've done arguments in 0:17:03.600 --> 0:17:05.840 front of the Federal Circuit, which is also a very 0:17:05.880 --> 0:17:09.680 impressive group of judges who asked very tough questions. I've 0:17:09.720 --> 0:17:12.399 even done on bank arguments in front of the Federal Circuit, 0:17:12.720 --> 0:17:17.080 including the one that preceded this Supreme Court petition. And 0:17:17.320 --> 0:17:19.960 there you're dealing with twelve judges and so in one sense, 0:17:20.080 --> 0:17:22.520 going from twelve to nine is a little a little 0:17:22.560 --> 0:17:25.840 bit easier. But the Supreme Court is is really just special, 0:17:25.960 --> 0:17:29.160 and uh, it's just hard not to feel awed by 0:17:29.200 --> 0:17:32.960 the experience. Did you get a feel for how the 0:17:33.000 --> 0:17:36.920 court might rule? Which justices were clearly for you, which 0:17:36.960 --> 0:17:39.800 against I've learned over the years never to try to 0:17:39.840 --> 0:17:41.880 predict how the how a court is going to rule. 0:17:42.560 --> 0:17:45.480 I thought the questions that that I received were fair. 0:17:45.560 --> 0:17:47.600 They were the types of questions that I was expecting 0:17:47.640 --> 0:17:49.639 to get. Some of them were tough questions, but I 0:17:49.640 --> 0:17:52.439 think we had answers to all of them. I felt 0:17:52.480 --> 0:17:55.080 that they were also tough on the government, and I 0:17:55.119 --> 0:17:58.600 didn't think that all of the Secretary's answers to their 0:17:58.720 --> 0:18:01.720 questions were sat a factory. He didn't have a good 0:18:01.760 --> 0:18:06.399 answer for Justice Robert's question about why we should be 0:18:06.440 --> 0:18:08.760 so strict in interpreting these rules in a in a 0:18:08.840 --> 0:18:12.760 statute that is there to benefit disabled veterans, and also 0:18:12.840 --> 0:18:16.280 did not have a good answer when Justice Alito asked 0:18:16.320 --> 0:18:19.320 about this group called the Edgewood Veterans, and that's a 0:18:19.359 --> 0:18:22.720 group of veterans that has a very, very compelling claim 0:18:22.840 --> 0:18:26.160 that their misdeadlines should be forgiven. And I don't think 0:18:26.160 --> 0:18:29.600 the government's answer there was very satisfactory. Does it seem 0:18:29.640 --> 0:18:31.920 strange to you that the government, you know, in this 0:18:32.080 --> 0:18:35.919 age where veterans are so much at the forefront and 0:18:36.000 --> 0:18:39.240 concerns about veterans, that the government would take this stance, 0:18:39.320 --> 0:18:43.240 even I'm not surprised, you know, to be fair, the 0:18:43.280 --> 0:18:45.639 government and one of the things the government is looking 0:18:45.880 --> 0:18:49.719 out for is that there is not a floodgate problem. 0:18:49.720 --> 0:18:51.800 In other words, that if we if we allow this 0:18:51.920 --> 0:18:57.560 type of tolling of these deadlines, these statutes, limitations they 0:18:57.600 --> 0:19:00.400 have to be concerned with, are we going to create 0:19:00.400 --> 0:19:03.399 a situation where the amount of payments that we have 0:19:03.440 --> 0:19:05.840 to pay out to these veterans really exceeds the amount 0:19:05.840 --> 0:19:08.679 that Congress is authorized. And that actually did come up 0:19:08.720 --> 0:19:11.879 at the argument, and I was able to explain, I 0:19:11.920 --> 0:19:14.680 think to their satisfaction that we don't think this will 0:19:14.720 --> 0:19:17.720 cause a floodgate problem. The type of tolling that we're 0:19:17.760 --> 0:19:21.160 asking for here, which is called equitable tolling, is only 0:19:21.600 --> 0:19:24.560 used sparingly. It's not something that's going to apply to 0:19:24.680 --> 0:19:28.840 every single case. But when it does apply, in other words, 0:19:28.840 --> 0:19:31.320 when you have a veteran or really any individual who 0:19:31.400 --> 0:19:35.040 truly does have a good reason why they missed the deadline, well, 0:19:35.040 --> 0:19:36.800 then it ought to be available, and it should be 0:19:36.840 --> 0:19:39.560 available to veterans in exactly the same way that it's 0:19:39.560 --> 0:19:43.640 available to private litigans in private litigation. So basically, what 0:19:43.720 --> 0:19:47.359 you want is for veterans to have the same advantages 0:19:47.520 --> 0:19:52.280 that civil litigans have exactly. Let's say the Supreme Court 0:19:52.680 --> 0:19:57.120 turns you down, is going to Congress and alternative, Yes, 0:19:57.240 --> 0:20:02.119 that's always an alternative. Obviously that is a difficult path, um, 0:20:02.160 --> 0:20:05.520 but certainly, um, it would be an alternative to lobby 0:20:05.560 --> 0:20:08.399 Congress to make an explicit change in the law to 0:20:08.520 --> 0:20:11.879 reflect this equitable tolling doctrine. But we really don't think 0:20:11.920 --> 0:20:15.280 that should be necessary because the decision in Irwin again, 0:20:15.320 --> 0:20:18.600 which is going back to all the way back, really 0:20:18.640 --> 0:20:22.120 answers the question and the answer is that these sorts 0:20:22.160 --> 0:20:27.240 of ordinary claims processing deadlines should be deemed tollable in 0:20:27.320 --> 0:20:31.800 extenuating you know, in special circumstances. Are there implications for 0:20:31.960 --> 0:20:36.920 veterans beyond this issue if you win this case, well, 0:20:36.960 --> 0:20:39.640 certainly there's going to be a group of veterans who 0:20:39.720 --> 0:20:43.080 have current claims where they have asked for the equitable tolling. 0:20:43.080 --> 0:20:46.840 I mentioned the Edgewood Veterans are are one group of veterans, 0:20:46.920 --> 0:20:50.080 and so one immediate impact would be that they would 0:20:50.200 --> 0:20:53.080 now be able to go back and argue for equitable tolling, 0:20:53.119 --> 0:20:55.240 which right now they're not allowed to do because of 0:20:55.280 --> 0:20:58.400 these previous federal circuit rulings. The other effect that will 0:20:58.440 --> 0:21:00.880 have is for future of terans, you know, in other words, 0:21:00.960 --> 0:21:04.120 veterans who maybe are still in the military and we'll 0:21:04.160 --> 0:21:07.000 be getting out in the future, and those veterans will 0:21:07.000 --> 0:21:09.919 be able to benefit from equitable tolling if they have 0:21:10.600 --> 0:21:13.960 some of these extenuating circumstances and they have really good 0:21:13.960 --> 0:21:17.000 cause to extend that deadline. I just want to say 0:21:17.000 --> 0:21:18.680 that we had a lot of help along the way, 0:21:18.720 --> 0:21:21.840 and we were very grateful to receive amicist supports from 0:21:21.880 --> 0:21:24.440 a lot of veterans groups as well as a A 0:21:24.720 --> 0:21:28.840 r P and and many other organizations that really did 0:21:28.880 --> 0:21:32.440 a fantastic job supporting us as we moved this case 0:21:32.480 --> 0:21:35.280 along to the Supreme Court. Was your client at the 0:21:35.359 --> 0:21:38.080 oral arguments? He was not, but I had a call 0:21:38.160 --> 0:21:41.400 with his brother immediately afterwards, and his brother was very 0:21:41.400 --> 0:21:43.399 pleased with how it went and we all have our 0:21:43.440 --> 0:21:47.000 fingers crossed. Thanks so much for sharing your experience with us. 0:21:47.320 --> 0:21:50.560 That's James Barney, a partner at Fitnigain. And that's it 0:21:50.600 --> 0:21:53.199 for this edition of The Bloomberg Law Show. Remember you 0:21:53.200 --> 0:21:55.680 can always get the latest legal news on our Bloomberg 0:21:55.800 --> 0:21:59.360 Law Podcast. You can find them on Apple Podcasts, Spotify, 0:21:59.560 --> 0:22:04.600 and it www dot Bloomberg dot com, slash podcast slash Law, 0:22:05.000 --> 0:22:07.639 and remember to tune into The Bloomberg Law Show every 0:22:07.640 --> 0:22:11.080 week night at ten pm Wall Street Time. I'm June 0:22:11.119 --> 0:22:13.320 Grosso and you're listening to Bloomberg