[00:00:00] Speaker 02:
This is the Secretary of Veterans Affairs of 2015, 7082.

[00:00:04] Speaker 02:
Ms.

[00:00:08] Speaker 02:
Drake.

[00:00:08] Speaker 03:
Yes, thank you, Your Honor.

[00:00:10] Speaker 03:
May it please the Court?

[00:00:12] Speaker 03:
This case today presents a narrow question for you involving extraordinary circumstances within the equitable tolling doctrine that this Court has written about before, most recently in the Chico case and the Tumor case.

[00:00:28] Speaker 03:
There are three well-known elements for equitable tolling that I want to talk about, but first I want to tell you about who we are applying these elements to.

[00:00:36] Speaker 03:
The appellant is Emilio Palomar.

[00:00:40] Speaker 03:
He lives in the Philippines.

[00:00:42] Speaker 03:
He's 92 years old.

[00:00:44] Speaker 03:
He served in World War II as a guerrilla.

[00:00:48] Speaker 03:
He seeks a reparation payment under the Filipino Veterans Equity Compensation Fund Act, which was enacted by Congress in 2009.

[00:00:58] Speaker 03:
He has bad eyesight.

[00:00:59] Speaker 03:
His hearing is bad.

[00:01:01] Speaker 03:
He relies on third parties to tell him about communications from the VA.

[00:01:08] Speaker 03:
When it comes to extraordinary circumstances, his mail comes a lot later than everybody else's mail because he lives in the Philippines.

[00:01:19] Speaker 03:
So as we know from Chico, which is a very recent case involving a homeless veteran, where the court found and the VA conceded

[00:01:28] Speaker 03:
Homelessness is an extraordinary circumstance.

[00:01:31] Speaker 03:
And when we talk about equitable tolling, there are three elements.

[00:01:35] Speaker 03:
Is there an extraordinary circumstance?

[00:01:39] Speaker 03:
Was the veteran diligent?

[00:01:41] Speaker 03:
And did that extraordinary circumstance cause the delay?

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Because here Mr. Palomar was out of time by 13 days.

[00:01:51] Speaker 03:
Well, we know from looking at the pattern of mailing

[00:01:55] Speaker 03:
in between the Philippines and the United States.

[00:01:57] Speaker 03:
In Mr. Palmer's case, in looking at the date stamp that the Court of Appeals receives a filing, or when the board receives a filing, they keep track of that.

[00:02:07] Speaker 03:
They have date stamps.

[00:02:08] Speaker 03:
They know when they get things.

[00:02:10] Speaker 03:
We know that there is a two to three week delay between the mail from the United States to the Philippines and back and forth.

[00:02:19] Speaker 03:
And the CAVC, whose decision we ask you to reverse, they recognize that there is a delay

[00:02:25] Speaker 03:
in international mailing.

[00:02:26] Speaker 02:
Two or three weeks is just a small part of 120 days.

[00:02:30] Speaker 03:
Well, I respectfully disagree when you're 92 years old and you rely on somebody to read very dense VA information to you and your eyesight isn't very good and your hearing is not very good.

[00:02:43] Speaker 03:
Two, three, two weeks is not very much time.

[00:02:46] Speaker 02:
Did Mr. Palomar meet the deadline in other filings?

[00:02:51] Speaker 03:
Your Honor, he did, and that is where the lower court error

[00:02:54] Speaker 03:
Because as this court instructed in Chico, when you talk about diligence, and it's clearly a factor, when you look at diligence, you look at diligence during the time period of the extraordinary circumstance.

[00:03:08] Speaker 03:
So we're talking about that two to three week time period where the mail's delayed.

[00:03:12] Speaker 03:
You don't talk about diligence for the remaining three months.

[00:03:18] Speaker 03:
That's exactly what this court held in Chico when it adopted the stop clock

[00:03:23] Speaker 03:
methodology in equitable tolling cases.

[00:03:26] Speaker 03:
And that's exactly where this court, the CABC, erred in this case, because just like in Chico, they didn't look at the right time period to measure the diligence.

[00:03:36] Speaker 06:
We have a threshold jurisdictional question in all of these veterans' cases.

[00:03:42] Speaker 06:
So we look to what the appellant's legal

[00:03:47] Speaker 06:
test is, what is the legal standard you are asking us to apply?

[00:03:51] Speaker 06:
The question of law.

[00:03:52] Speaker 06:
How would you phrase your position with respect to a legal question that we have to address?

[00:03:58] Speaker 06:
What is the standard you want us to apply?

[00:04:01] Speaker 03:
I would like the court to adopt a standard that equitable tolling does not reach the question of what a veteran could have done.

[00:04:10] Speaker 03:
It's what the veteran did do given his circumstances.

[00:04:15] Speaker 03:
That's the legal question.

[00:04:16] Speaker 03:
There's also a legal question as to whether, given the Filipino Veteran Equity Compensation Fund Act itself, where veterans are literally dying, there were very few Filipino veterans alive when the Act was passed, does that have implications when we're talking about equitable tolling?

[00:04:34] Speaker 00:
Well, I thought your contention was that male play ought to result in equitable tolling if it's outside the United States.

[00:04:43] Speaker 03:
Right, correct.

[00:04:44] Speaker 03:
And that's the third legal question, Your Honor, where the statute itself only, when it comes to mailing, only talks about domestic mailing.

[00:04:54] Speaker 03:
Can equitable tolling still provide relief?

[00:04:57] Speaker 03:
And should it, we submit it should, where the question is international mailing, which was never addressed in the mailing statute.

[00:05:04] Speaker 06:
What would be the way you would advocate that we treat the international mail?

[00:05:09] Speaker 06:
Add X number of days or

[00:05:12] Speaker 06:
count only from the date of receipt?

[00:05:14] Speaker 03:
Just as this Court has said in Matthew and other cases, you've got to look at it on a case-by-case basis.

[00:05:19] Speaker 06:
Well, but I'm looking for a legal standard that will give us jurisdiction to address this equitable tolling question.

[00:05:28] Speaker 06:
What is the legal test you want us to say?

[00:05:30] Speaker 06:
Here's where the CAVC went wrong, because they didn't apply the following legal standard.

[00:05:37] Speaker 06:
You want us to say, they should have said the day's start

[00:05:41] Speaker 06:
upon receipt should have added the average number of days that it takes to get to the Philippines.

[00:05:48] Speaker 06:
Which is the test you want us to apply?

[00:05:50] Speaker 03:
I believe that the court should start the period two to three weeks, an average.

[00:05:59] Speaker 03:
Two weeks is what we say in the brief after the extraordinary circumstance has expired.

[00:06:04] Speaker 02:
Wouldn't that be legislating?

[00:06:06] Speaker 03:
I don't believe so because equitable tolling

[00:06:09] Speaker 03:
is always designed to get around a statutory limitation.

[00:06:13] Speaker 02:
That's the nature of the doctrine.

[00:06:14] Speaker 02:
But you're asking us to determine a couple of weeks and to set that as being part of the rule?

[00:06:19] Speaker 03:
Well, it's equitable towing.

[00:06:22] Speaker 03:
It's equity.

[00:06:23] Speaker 03:
You don't have to have the sharp pencil.

[00:06:25] Speaker 03:
And unfortunately, veterans don't have date stamps like courts do to stamp when they get a communication from the VA.

[00:06:31] Speaker 03:
The best we can do is look at the pattern of mailing.

[00:06:35] Speaker 03:
And in this case, the pattern of mailing shows that there is a delay

[00:06:38] Speaker 03:
between the mail from the United States to the Philippines, which the CIDC did recognize, it just found that it wasn't extraordinary.

[00:06:46] Speaker 03:
But it is extraordinary because it's out of Mr. Palomar's control.

[00:06:49] Speaker 02:
You know, of course, that we have no jurisdiction over fact questions.

[00:06:53] Speaker 03:
Your Honor, I understand that.

[00:06:55] Speaker 03:
And as this court found in Bailey v. Principe, where there are undisputed facts and legal standards that need to be applied, you do have jurisdiction.

[00:07:04] Speaker 03:
And here there are legal standards that need to be addressed.

[00:07:07] Speaker 03:
Specifically, does equitable tolling apply in this situation?

[00:07:12] Speaker 03:
The court below air, because it found that Mr. Palomar could have filed, that is not the legal standard and should not be the legal standard.

[00:07:19] Speaker 02:
That's a fact.

[00:07:20] Speaker 02:
That's a fact.

[00:07:21] Speaker 03:
Well, but the court used a standard that because he could, that is why they found he was not entitled to any relief.

[00:07:32] Speaker 02:
If that's a finding of fact, it's something we can't review, isn't that correct?

[00:07:36] Speaker 03:
this court does not get into factual questions.

[00:07:40] Speaker 03:
But this court has gotten into a lot of equitable tolling situations.

[00:07:44] Speaker 03:
And when it comes to equitable tolling in Bailey v. Princeby, the court has said, when there are undisputed facts and the issue is the appropriate legal standard, we decide equitable tolling as a matter of law.

[00:08:00] Speaker 03:
So in Chico, when

[00:08:03] Speaker 03:
There was a homeless veteran.

[00:08:04] Speaker 03:
This court reviewed it and said that there was jurisdiction and got into the issues of whether or not the veteran was diligent and what the standard for diligence should be.

[00:08:13] Speaker 03:
Similarly here, we need to look at, and the court does not describe what diligence is required of Mr. Palmar, but I respectfully submit there is plenty of diligence here.

[00:08:25] Speaker 03:
There is nothing you can do in that two to three week time period to make the mail come any faster to him.

[00:08:34] Speaker 03:
So the diligence, we believe that extraordinary circumstances apply when there's international mailing because a statute only relates to domestic mail.

[00:08:44] Speaker 03:
He was diligent because as he writes in the letter to the court, Joint Appendix 39, I didn't know I had to file in 120 days.

[00:08:55] Speaker 03:
I always try very hard to answer each of the letters pertaining to my claim the soonest possible.

[00:09:03] Speaker 03:
So he expresses, and it's in the record, that he was in fact diligent.

[00:09:08] Speaker 06:
Well, the notice that was sent to him, I have to say, was pretty clear about the 120 days.

[00:09:14] Speaker 06:
I would think that maybe he didn't understand it, or maybe he was incapable of reading it.

[00:09:19] Speaker 06:
But to say that he was diligent because there was no way he could reasonably be expected to understand that he had 120 days, I don't know how the board,

[00:09:31] Speaker 06:
VA could have been any clearer about the 120-day period.

[00:09:34] Speaker 03:
Well, and we don't challenge the content of the notice on appeal here, Your Honor.

[00:09:40] Speaker 03:
But if you're sitting in the Philippines and you're older and somebody is reading it to you, I can understand his statement when he says, I have no idea that I have to file it within 120 days.

[00:09:50] Speaker 03:
He is hearing that orally.

[00:09:52] Speaker 03:
So I accept his statement.

[00:09:54] Speaker 03:
But that is not the basis of our appeal here, Your Honor.

[00:09:57] Speaker 03:
Our appeal is there is an extraordinary circumstance.

[00:09:59] Speaker 03:
It's international mailing.

[00:10:01] Speaker 03:
There's no question it's two to three weeks later.

[00:10:03] Speaker 03:
He was diligent.

[00:10:06] Speaker 03:
When you look at that two to three time, two week time period, and you look at what he told the court, I tried very hard.

[00:10:14] Speaker 03:
I'm not always able to respond because of my age.

[00:10:17] Speaker 03:
I'm already 91.

[00:10:18] Speaker 03:
My eyes and my sense of hearing have deteriorated.

[00:10:20] Speaker 03:
I'm reading from JA 39.

[00:10:23] Speaker 03:
I have to ask somebody to assist me to write my letter and file my appeal.

[00:10:27] Speaker 03:
He's as diligent as he can be, but he can't make the mail come to him any faster.

[00:10:31] Speaker 06:
But wouldn't you be making exactly the same argument if he had not gotten around to sending this letter for another month, the request for reconsideration?

[00:10:42] Speaker 03:
It would, I believe, be a tougher argument because we wouldn't have the extraordinary circumstance of the delayed mailing.

[00:10:48] Speaker 03:
That is the extraordinary circumstance that's completely out of his control.

[00:10:52] Speaker 03:
So if he was 200 days late, as opposed to 133 days late, that's a tough argument for us, Your Honor.

[00:10:59] Speaker 03:
I agree.

[00:11:01] Speaker 03:
So respectfully, and I'm happy to answer any questions or sit down early, we believe this court set the analysis out perfectly straight in Checo.

[00:11:11] Speaker 03:
Is there an extraordinary circumstance?

[00:11:13] Speaker 03:
Was the veteran diligent during that time period of the extraordinary circumstance?

[00:11:18] Speaker 03:
And is there causation?

[00:11:19] Speaker 03:
And respectfully, we believe

[00:11:21] Speaker 03:
that each of those elements has been met here.

[00:11:24] Speaker 03:
And accordingly, the Court of Appeals for Veterans Claims decision must be reversed.

[00:11:31] Speaker 02:
We will hold the rest of your time for rebuttal.

[00:11:33] Speaker 03:
Thank you, sir.

[00:11:35] Speaker 02:
Ms.

[00:11:36] Speaker 02:
Hogan.

[00:11:40] Speaker 04:
Good afternoon, Your Honor.

[00:11:41] Speaker 04:
Please, the court.

[00:11:43] Speaker 04:
The decision of the Veterans Court is legally correct and it should be affirmed.

[00:11:46] Speaker 00:
Let me ask you about their alternative theory here.

[00:11:49] Speaker 00:
about his physical condition.

[00:11:53] Speaker 00:
As I understand it, our prior cases have involved situations where people were incompetent to manage their own affairs, and that is not the situation here.

[00:12:04] Speaker 00:
But why shouldn't there also be equitable tolling where somebody is impaired in terms of vision and hearing so that that person has a hard time meeting the deadlines?

[00:12:18] Speaker 04:
I don't think we would argue that equitable tolling might be available in such a circumstance, but the facts that the Veterans Court reviewed, notably the Veterans Court on pages 52 and 53, took those facts into consideration, explained that just sort of general statements that one is old and has eyesight problems and need a third party without facts

[00:12:46] Speaker 04:
specific facts to draw that story to the court is not something that the court is required to accept.

[00:12:54] Speaker 04:
The court explained Mr. Palomar didn't say who this third party is, how often do they visit, when did the person read the letter to them.

[00:13:03] Speaker 04:
Notably, Mr. Palomar never says when he did receive the letter, and that is a fact that the court found important.

[00:13:16] Speaker 04:
I don't think we would suggest that physical infirmity in the right circumstances might be an extraordinary circumstance that could stand in the way of someone's timely filing.

[00:13:28] Speaker 04:
But in this particular circumstance, on the facts that Mr. Palomar gave the veterans... He didn't provide enough detail.

[00:13:36] Speaker 04:
I think that's the conclusion that you could draw.

[00:13:39] Speaker 04:
You need to go beyond simply saying you're old or infirm.

[00:13:45] Speaker 04:
that has to be tied to an inability to take care of one's legal affairs in a timely manner.

[00:13:57] Speaker 04:
This is clearly a factual

[00:14:04] Speaker 04:
issue that the Veterans Court addressed that would be beyond?

[00:14:07] Speaker 00:
Well, it wouldn't be a factual issue if we were to read their opinions rejecting it on the theory that only mental incompetence could qualify for equitable totality as opposed to physical infirmity.

[00:14:23] Speaker 00:
See, because they say in the beginning under item 2, they say equitable totality may be warranted if a claimant's mental or physical illness renders him incapable of handling his own affairs.

[00:14:34] Speaker 00:
And if we were to read that as the standard, that might be the wrong standard.

[00:14:40] Speaker 00:
And you seem to think that it's the wrong standard because I understand that you can see that physical infirmities could lead to equitable tolling.

[00:14:49] Speaker 04:
I think under the right factual facts that certainly might warrant equitable tolling.

[00:14:55] Speaker 04:
Veterans Court does correctly state at the end of the paragraph is that medical diagnosis alone or vague assertions of mental or physical problems are not sufficient.

[00:15:03] Speaker 04:
And I think that's the conclusion that the Veterans Court drew in this case was that this is just an allegation without specifics.

[00:15:12] Speaker 04:
With respect to the main argument that Mr. Palmer makes on appeal, and I think the only one that we would consider to be within the court's jurisdiction,

[00:15:24] Speaker 04:
The normal usual time for mail to arrive to one's geographical location is not an extraordinary circumstance.

[00:15:32] Speaker 04:
And to adopt a legal standard that Mr. Palamer puts before the court would lead to the anomaly that a claimant living in Hawaii would have a time period for filing a notice of appeal start from the date of mailing the board decision, whereas someone living in Toronto would get the benefit of

[00:15:52] Speaker 04:
the date of receipt, which again, we're still going to have to rely on the veteran or the claimant to come forward and say what that date was.

[00:16:01] Speaker 04:
But I don't think that that's a standard that the court should be adopting.

[00:16:06] Speaker 04:
I think particularly in light of the fact that when Congress revised 7266 in 1994, it did know that it takes longer for a mail to arrive in certain geographical locations.

[00:16:19] Speaker 04:
and decided not to change the time period for when the notice of appeal period starts to run.

[00:16:27] Speaker 04:
It did add the postmark rule, which does provide a benefit for claimants who use the US postal system to have the date of postmark recount as the date that the notice of appeal is filed.

[00:16:41] Speaker 04:
But if you don't use the postal system, then you're back to the beginning, which is that the notice of appeal, or in this case, the request for reconsideration

[00:16:49] Speaker 04:
must arrive within 120 days from the date of mailing of the board decision.

[00:16:54] Speaker 06:
This is a little bit unusual.

[00:16:56] Speaker 06:
I guess it happens from time to time.

[00:17:00] Speaker 06:
But rather than there being a delay in filing the notice of appeal, the notice of appeal was timely filed if you take it from the dismissal or the denial of reconsideration.

[00:17:12] Speaker 06:
The delay is earlier in the process of the period between receipt of the

[00:17:19] Speaker 06:
the actual ruling of the board and the filing of the request for reconsideration.

[00:17:26] Speaker 06:
Is it clear to you, I don't think that that's governed by statute.

[00:17:32] Speaker 06:
It seems to me the statute only covers the period for filing a notice of appeal.

[00:17:37] Speaker 06:
Is it clear to you that the same principle that applies to

[00:17:44] Speaker 06:
the period from filing a notice of appeal applies for the period for filing a motion for reconsideration if you intend ultimately to file a notice of appeal.

[00:17:54] Speaker 06:
I mean, I take it that you could file a notice for request for reconsideration at any time.

[00:17:59] Speaker 04:
Correct.

[00:17:59] Speaker 06:
But if you don't meet the 120 days, the consequence is I take it that you then can't seek an appeal.

[00:18:09] Speaker 04:
Right.

[00:18:09] Speaker 04:
Unless, as the Veterans Court found here, there was some equitable tolling to be applied.

[00:18:14] Speaker 04:
Right.

[00:18:16] Speaker 04:
So at least going back to 1991, the Veterans Court has said that if you do file a request for reconsideration within that 120-day time period, that will abate the time period for filing.

[00:18:29] Speaker 05:
And if you don't, you're out of court.

[00:18:33] Speaker 04:
Right.

[00:18:34] Speaker 04:
So you must do something within those 120 days, whether that's filing a notice of appeal with the Veterans Court or filing a request.

[00:18:41] Speaker 06:
It is a little strange.

[00:18:42] Speaker 06:
The structure is a little strange, right?

[00:18:44] Speaker 06:
They say you can file a request for reconsideration at any time, but the catch is if it's not in 120 days, you'll never be able to take an appeal.

[00:18:57] Speaker 06:
Am I right about that being the structure?

[00:18:58] Speaker 04:
That is the structure, and I guess the idea being if you did come back a year later with some compelling reason to reconsider it.

[00:19:08] Speaker 02:
But if you file a request for reconsideration within 120 days,

[00:19:14] Speaker 02:
Then how long do you have after the denial of that to file at the court?

[00:19:19] Speaker 04:
You have another 120 days.

[00:19:22] Speaker 02:
Because that's another decision.

[00:19:24] Speaker 04:
That's in the case.

[00:19:26] Speaker 06:
A timely notion of reconsideration tolls the period of the board's decision, in effect.

[00:19:32] Speaker 06:
Correct.

[00:19:32] Speaker 06:
Yeah, OK.

[00:19:34] Speaker 04:
Just one other point I think I want to make, which is that Mr. Palmer also contends that it's because he is a claimant under this particular

[00:19:44] Speaker 04:
Filipino Veterans' Equity Compensation Fund, that that somehow should be taken into consideration as an equitable element.

[00:19:52] Speaker 04:
And this court has never drawn any distinctions based on classes of claimants or the types of veterans' benefits that a claimant is seeking.

[00:19:59] Speaker 04:
And to the extent that Congress intended to treat these claimants differently or more generously, it certainly had the opportunity to do so in 2009.

[00:20:08] Speaker 04:
And to the contrary, Section 1002, J2 of the

[00:20:14] Speaker 04:
legislation provided that the Secretary is to apply Title 38 in the usual way that it processes claims, except to the extent that it would be contrary to what the Act provided.

[00:20:28] Speaker 06:
I suppose if there were a case in which the entire 120 days, or let's say all but three days of the 120 days, had expired before the notice of the board's decision had arrived in wherever someone is, Kathmandu or something

[00:20:44] Speaker 06:
Would you say in that situation that the equitable tolling would almost certainly apply?

[00:20:53] Speaker 04:
I think it's a closer case, Your Honor.

[00:20:56] Speaker 04:
If you lived in Kathmandu, for example, you're in a war zone where there's not reliable mail.

[00:21:04] Speaker 06:
The Postal Service, God forbid, just lost the letter, and finally they found it on the 125th day.

[00:21:10] Speaker 06:
You're not going to say that the person in that situation is barred from appealing.

[00:21:14] Speaker 04:
No, I think they would have to come forward with facts explaining the circumstances of when they received the notice and how that that was extraordinary considering what should normally have applied, what should normally have happened.

[00:21:30] Speaker 00:
That would be true domestically too.

[00:21:32] Speaker 00:
You lived in Detroit and you didn't get it until the day before.

[00:21:37] Speaker 00:
You'd have an argument for equitable tolling, right?

[00:21:40] Speaker 04:
I think you could make an argument.

[00:21:42] Speaker 06:
Well, you could make an argument.

[00:21:46] Speaker 06:
My question really is, is the government inclined to commit itself to the position that that argument would be a very strong one?

[00:21:53] Speaker 04:
I think that would get closer to an extraordinary circumstance than this is just the normal time it takes for mail to be delivered.

[00:22:00] Speaker 04:
And two weeks is not, in and of itself, an extraordinary time period considering what it might take for the time to get to Arizona or California or Hawaii.

[00:22:11] Speaker 04:
which the Congress did specifically have in mind and chose not to change the time period from which, rather to include the time that it takes for mail to be received within that 120 days.

[00:22:27] Speaker 04:
If the Court has no further questions, we would respectfully request that the Court either dismiss or affirm the decision of the Veterans Court.

[00:22:33] Speaker 01:
Thank you, Ms.

[00:22:34] Speaker 01:
Hogan.

[00:22:35] Speaker 01:
Ms.

[00:22:35] Speaker 01:
Drake has

[00:22:37] Speaker 03:
Thank you, your honor.

[00:22:38] Speaker 03:
Just a few points I'd like to make in response with respect to the statute being amended to allow for the postmark to apply on the way back and that therefore we shouldn't worry about how long it takes mail to get to them.

[00:22:54] Speaker 03:
If you look at the congressional history, which is cited in the appellee's brief, it's very apparent that Congress was only talking about domestic mail and the U.S.

[00:23:05] Speaker 03:
Postal Service.

[00:23:06] Speaker 03:
Congress had no clue about the Filipino Postal Corporation, which is how the mail got from Mr. Palomar to the board and how it got from the board to Mr. Palomar.

[00:23:19] Speaker 03:
So it was completely outside the scope of what Congress did when it amended the statute.

[00:23:25] Speaker 03:
Also, with respect to counsel's view that the Filipino Veteran Equity Compensation Fund looks to Title 38

[00:23:36] Speaker 03:
and directs us to Title 38.

[00:23:39] Speaker 03:
The Act itself also says, look at all of the other provisions of law and other provisions of law, that wonderful broad phrase, including equitable tolling, right?

[00:23:51] Speaker 03:
Equitable tolling is a provision of law.

[00:23:53] Speaker 03:
Title 38 is a huge section.

[00:23:56] Speaker 03:
It includes everything from how to file a claim to how to file a notice of appeal.

[00:24:01] Speaker 03:
There's a lot of stuff in there.

[00:24:03] Speaker 03:
So I don't think Congress really focused in on

[00:24:06] Speaker 03:
the mailing issue when they passed this reparations act in 2009, which is buried in the middle of the stimulus package in 2009.

[00:24:15] Speaker 03:
Senator Inouye actually, finally after decades, the Filipino allotting organization was successful enough to get some reparations.

[00:24:23] Speaker 03:
So it's in the middle of this huge legislation.

[00:24:26] Speaker 03:
And I just don't believe that when Congress said, let's make sure we look at Title 38-2, they meant to say international mailing is now suddenly included.

[00:24:36] Speaker 03:
in 7266.

[00:24:38] Speaker 03:
Finally, Your Honor, the new legal standard I think that should be considered in addition to the others that are in our brief is why shouldn't equitable tolling be applied when you have someone who's over 90, hard of hearing, affirms that they can't see, relies on a third person, isn't that incapable of handling affairs?

[00:25:01] Speaker 03:
So perhaps we need to broaden the legal standard

[00:25:04] Speaker 03:
that applies in those situations when it comes to equitable towing.

[00:25:09] Speaker 03:
And finally, the government asserts that Mr. Palomar did not state exactly when he received the letter from the BVA.

[00:25:18] Speaker 03:
But again, veterans don't have the file stamps that courts and the board have.

[00:25:23] Speaker 03:
So to hold a veteran to that standard, I think, is unrealistic and not in keeping with the pro-veteran system that we supposedly have.

[00:25:33] Speaker 03:
So unless the court has anything further, I'd like to conclude by saying there is no better case for equitable towing.

[00:25:41] Speaker 03:
We have a 92-year-old Filipino soldier served in World War II as a guerrilla.

[00:25:47] Speaker 03:
His eyesight's failing.

[00:25:48] Speaker 03:
He can't hear.

[00:25:49] Speaker 03:
He needs somebody to explain things to him.

[00:25:53] Speaker 03:
And he was out of time for 13 days when the very record reflects that mail takes at least two to three weeks to get to him.

[00:26:02] Speaker 03:
So for those reasons, Your Honors, we ask that you reverse the decision of the Court of Appeals of Veterans' Claims.

[00:26:08] Speaker 02:
Thank you, Mrs. Drake.

[00:26:09] Speaker 02:
The case was well argued on both sides.

[00:26:12] Speaker 02:
We appreciate it.

[00:26:13] Speaker 02:
We'll take it on revisement.