[00:00:00] Speaker 02:
Okay, so this morning is number nineteen there sixteen ninety k g versus Health and Human Services Mr.. Hermson May please the court counsel

[00:00:26] Speaker 03:
In psychology, there's a theory called Maslow's hierarchy of needs.

[00:00:30] Speaker 03:
And what this says, at its most basic, is that a human being must address their basic survival needs before they're even psychologically capable of addressing less immediate needs, such as, for example, a statute of limitations in the National Vaccine Injury Compensation Program.

[00:00:46] Speaker 03:
What we have in this case is a petitioner who, for years, struggled just to survive.

[00:00:51] Speaker 03:
She struggled physically.

[00:00:53] Speaker 03:
She lost her ability to walk, to talk,

[00:00:56] Speaker 02:
Well, okay, but let's assume that the Vaccine Act does allow for equitable tolling because of disability.

[00:01:04] Speaker 02:
And I don't think that there's any issue here that if the Vaccine Act does so provide that her condition was such that she was incapable of acting.

[00:01:16] Speaker 02:
And that seems to make the issue boil down to whether the appointment

[00:01:22] Speaker 02:
of a representative, a conservator or a guardian, stop the tumbling of the statute of limitations that would otherwise exist because of incapacity.

[00:01:35] Speaker 02:
So why don't you address that issue?

[00:01:38] Speaker 03:
I agree, Your Honor.

[00:01:38] Speaker 03:
I think that the case really turns on that issue.

[00:01:41] Speaker 03:
I think, first of all, the test we need to look at is Barrett.

[00:01:46] Speaker 03:
And I don't know if my brief did a good enough job addressing that.

[00:01:48] Speaker 00:
Just to speak up a little bit.

[00:01:49] Speaker 03:
Yes, yes.

[00:01:50] Speaker 03:
The test we need to look at

[00:01:52] Speaker 03:
is Barrett.

[00:01:53] Speaker 03:
That's the 2011 Federal Circuit test.

[00:01:57] Speaker 03:
And what Barrett says is there are two parts.

[00:02:00] Speaker 03:
First of all, is the mental incapacity of sufficient severity.

[00:02:03] Speaker 03:
But second of all, and in that case, they were talking about a petitioner represented by an attorney.

[00:02:10] Speaker 03:
They said if a petitioner is represented by an attorney, the test is, did the mental incapacity, quote, impair that relationship?

[00:02:18] Speaker 03:
So that's the test we're applying here.

[00:02:20] Speaker 03:
Somehow, in this case, we got away from that test.

[00:02:24] Speaker 03:
But that's the test we need to apply.

[00:02:26] Speaker 02:
You're saying that test ought to be applied to the guardian relationship?

[00:02:30] Speaker 03:
Correct.

[00:02:31] Speaker 03:
I think if we're going to apply that test to someone represented by an attorney, in this case, we have a caring sister, not legally trained, not an attorney, who's simply trying to step in two and a half years after the fact

[00:02:47] Speaker 03:
after the vaccination, after the injuries, and help her sister out, I think arguably we could apply a lower test.

[00:02:54] Speaker 03:
But I think assuming for purposes of this appeal, I think we can assume that that Barrett test would apply to a non-attorney the same way it applies to an attorney.

[00:03:02] Speaker 03:
So I think the test was that relationship impaired.

[00:03:05] Speaker 03:
I think the answer is absolutely.

[00:03:07] Speaker 03:
And I can get into that, but to continue to address your question, Your Honor.

[00:03:12] Speaker 03:
Barrett was a case decided in the context of a

[00:03:16] Speaker 03:
Veterans benefit claim That test should absolutely apply in the vaccine injury compensation program as well.

[00:03:23] Speaker 03:
They're both remedial statutes and if you look at Supreme Court precedent I Was not able to find a case where we're dealing with a remedial statute With what the Supreme Court has coined a run-of-the-mill statute limitations where they did not apply Equitable tolling where they found that the Irwin presumption was overcome in every case where you're dealing with a remedial statute and

[00:03:47] Speaker 03:
with this standard run-of-the-mill statute of limitations, as they describe it, they apply equitable tolling.

[00:03:54] Speaker 03:
There have been cases where they have not applied equitable tolling.

[00:03:56] Speaker 03:
For example, there was an IRS case.

[00:03:59] Speaker 03:
There were tax refund appeals.

[00:04:03] Speaker 03:
And they said in that case, we're not dealing with a remedial statute.

[00:04:05] Speaker 03:
This is an administrative statute.

[00:04:08] Speaker 03:
And the massive burden on the IRS by millions of cases that would potentially be affected by equitable tolling tells us that, as we interpret this statute,

[00:04:17] Speaker 03:
We're not going to interpret equitable tolling into it.

[00:04:20] Speaker 02:
Okay, but let's assume that we are going to interpret the statute to, along with Cloer, to provide for equitable tolling.

[00:04:31] Speaker 02:
Why is it that the relationship between the sister and the claimant prevented the sister as guardian from retaining an attorney and pursuing the claim?

[00:04:46] Speaker 02:
What was, what was needed by the sister that wasn't available to her because of the incapacity.

[00:04:54] Speaker 03:
So first of all, your honor, I think this case would be different if her sister was there from the very beginning.

[00:04:59] Speaker 03:
If her sister was her guardian and conservator at the time she got the shot, maybe the case is different.

[00:05:04] Speaker 03:
She wasn't, she wasn't appointed guardian conservator until two and a half years after the vaccination.

[00:05:09] Speaker 03:
after the symptoms, so I think that's one factor.

[00:05:12] Speaker 03:
The second factor is the... Why does that make a difference?

[00:05:16] Speaker 02:
What's the evidence that the claimant would provide during that two and a half year period that was necessary to make the claim?

[00:05:25] Speaker 03:
I think part of the reason why her being there contemporaneously and being involved contemporaneously is important is because we have such a difficult chain of causation in this case, and we're the first to admit that.

[00:05:35] Speaker 03:
This isn't an obvious chain of causation

[00:05:38] Speaker 03:
If she had gotten a shot in her arm, in her shoulder, and within a day she's feeling pain in that shoulder and that lasts for another six months, we might say, hey, legal representative, that's a pretty obvious claim that you should have brought.

[00:05:52] Speaker 03:
That's not this case.

[00:05:54] Speaker 03:
She had a shot, a seasonal influenza vaccination.

[00:05:58] Speaker 03:
And for attorneys that are familiar with this program, one of the main types of injuries you see from that in this program are

[00:06:06] Speaker 03:
this Guillain-Barre syndrome and then the related chronic idiopathic demyelinating polyneuropathy, CIDP.

[00:06:14] Speaker 02:
So you're saying that the sister needed the claimant's testimony as to the symptom, the development of the systems and the chronology and the timing?

[00:06:23] Speaker 02:
Correct.

[00:06:24] Speaker 00:
Would you say also that that distinguishes, there's lots of different vaccine act cases that involved parents representing children

[00:06:34] Speaker 00:
And that could distinguish that situation.

[00:06:36] Speaker 00:
For example, here, the sister wasn't called in to two and a half years later, whereas in the typical situation involving a parent who's representing a child, they're there throughout the whole thing, taking them to the doctor from the beginning to the end.

[00:06:49] Speaker 03:
Absolutely, Your Honor.

[00:06:50] Speaker 03:
Yeah, I agree with that 100%.

[00:06:54] Speaker ?:
Yes.

[00:06:54] Speaker 03:
So she's not there from the beginning.

[00:06:57] Speaker 03:
This is not an obvious claim by any means.

[00:07:01] Speaker 03:
And then we're talking about a mental incapacity of such severity that she's actually sent as an inpatient to a mental health facility for three plus years.

[00:07:14] Speaker 03:
So that's another fact that if we change that a little bit, maybe this case is different.

[00:07:18] Speaker 03:
Maybe she's incapacitated, but not to the point where she can't pass on.

[00:07:24] Speaker 03:
the necessary information to her guardian.

[00:07:28] Speaker 03:
So we're talking about a severe mental incapacity in this case, a guardian conserver that was not there from the very beginning, a claim that is not very obvious.

[00:07:39] Speaker 03:
So all these factors, that's the information, Your Honor, that her sister really needed to be able to reasonably be expected to bring this claim.

[00:07:51] Speaker 03:
The other factor I would touch on

[00:07:54] Speaker 03:
is the extent to which that relationship fell apart.

[00:07:58] Speaker 03:
We have affidavits in the case from her sister saying, KG hated me.

[00:08:05] Speaker 03:
She would not cooperate with me for anything.

[00:08:08] Speaker 03:
She believed I was conspiring against her.

[00:08:11] Speaker 03:
she believed i was trying to turn her kids against her she believed i was locking her up in uh... in this in this facility like as if it was a prison uh... but it's not just after the fact affidavits its contemporaneous medical records we have psychiatry records where k g's complaining to a psychiatrist in every single appointment and that's that's not my language that's a psychiatrist language that said every single conversation i have with k g she brings up her sister she says her sister is my main problem

[00:08:40] Speaker 03:
Context of her saying my sister is my main problem is Her being locked in a nursing home without the use of her legs her arms.

[00:08:49] Speaker 03:
She can barely speak She's lost her job.

[00:08:51] Speaker 03:
She barely talks to her kids But yet in the context of all that she said my sister is my main problem.

[00:08:57] Speaker 00:
I interrupt you for a minute I hear what you're saying, and I know you've made this argument in your brief, but under Holland Which is Supreme Court case rate on equitable tolling?

[00:09:08] Speaker 00:
Why wouldn't we vacate and remand?

[00:09:10] Speaker 00:
I mean, one of the things the Supreme Court said in Holland is emphasize the importance of the trier of fact being the first one to determine whether equitable tolling applies.

[00:09:23] Speaker 00:
And here, in this case, if we were to agree with you that the court below applied

[00:09:33] Speaker 00:
a bright line rule and didn't apply Barrett or didn't apply equitable tolling, look at the totality of circumstances.

[00:09:39] Speaker 00:
Why wouldn't we vacate and remand?

[00:09:41] Speaker 00:
Why would we be the first ones to decide whether equitable tolling applies?

[00:09:47] Speaker 03:
That may be the correct course, Your Honor.

[00:09:49] Speaker 03:
And I know that that was done in the, I believe it was Hodge.

[00:09:54] Speaker 03:
There was some dispute about how the equitable tolling doctrine applied on appeal in Hodge.

[00:09:59] Speaker 03:
And I believe it was remanded for a redetermination based on this court's clarification on how this doctrine should be applied.

[00:10:09] Speaker 03:
So that may be correct.

[00:10:10] Speaker 03:
I don't necessarily disagree with you on that.

[00:10:12] Speaker 03:
Because I do think if this court clarifies that equitable tolling Can apply when the legal representative is appointed.

[00:10:22] Speaker 00:
I think that completely changes this case I think it makes a difference whether it's a guardian or an attorney you had mentioned earlier relying on the Barrett test which talks about having counsel Do you think there's a difference in the relationship there?

[00:10:37] Speaker 03:
I mean, practically I do.

[00:10:39] Speaker 03:
I think we should be holding an attorney to a higher standard than we hold a non-legally trained sister.

[00:10:48] Speaker 02:
Because the attorney has the obligation to bring the suit if that's what he or she was hired to do, whereas it's not clear that the guardian has an obligation.

[00:10:59] Speaker 03:
Correct, Your Honor.

[00:11:00] Speaker 03:
And another factor I talked about in my brief is that

[00:11:05] Speaker 03:
I think what you're getting at with that point, Your Honor, is that guardians and conservators have very different considerations than an attorney does.

[00:11:15] Speaker 03:
I cited to an Iowa statute that says a guardian or conservator that brings, not necessarily that brings a claim, but that depletes an estate's assets or award's assets without good reason, they can actually be personally liable for that.

[00:11:32] Speaker 03:
Obviously, I feel like we've got a pretty good case here.

[00:11:34] Speaker 03:
I don't think that's at issue here.

[00:11:36] Speaker 03:
But for a non, for a lay person evaluating a claim like this, they might say there's no chance on bringing this claim, potentially having to spend 20, $30,000 on an expert to plead this ward's assets and then have to be personally liable for that.

[00:11:53] Speaker 03:
So there's very different considerations at play for the two.

[00:12:01] Speaker 03:
I have a few minutes left.

[00:12:03] Speaker 03:
I'd like to reserve a little bit of time for Rebuttal so I'll unless you have anything else you want me to dress at this time Okay, thank you.

[00:12:12] Speaker 01:
Thank you Good morning your honor may it please the court

[00:12:19] Speaker 01:
I'll start kind of where we just left off on the discussion of the effect of the legal representative and what that has on the equitable tolling test.

[00:12:29] Speaker 01:
I believe you asked how it factored in and what counsel said was that the sister was not there at the beginning and she didn't have all of the information that was available in order to understand that there was a claim.

[00:12:43] Speaker 01:
That sounds to me like the discovery role.

[00:12:45] Speaker 01:
which this court held in court is not available.

[00:12:48] Speaker 01:
That basically the reason the claim was not filed by the guardian was because the guardian was not aware that there was a potential claim to be filed.

[00:12:56] Speaker 01:
So it wasn't that there was something standing in the way.

[00:12:58] Speaker 01:
No, I don't think it's the discovery.

[00:13:01] Speaker 02:
What they're saying is that the appointment of the guardian shouldn't stop the tolling because the guardian needs further information and the cooperation

[00:13:13] Speaker 02:
of the claimant and can't get it.

[00:13:16] Speaker 02:
So in those circumstances, they're suggesting that the appointment of a guardian shouldn't stop the tolling.

[00:13:23] Speaker 02:
It's not applying a discovery rule.

[00:13:25] Speaker 01:
Well, but they haven't pointed to anything other than the fact that the guardian was unaware of information necessary to know that there was a claim that was standing in the way.

[00:13:36] Speaker 00:
But they're saying the reason why the guardian didn't know is because she couldn't communicate

[00:13:41] Speaker 00:
with KG.

[00:13:43] Speaker 01:
And I believe you asked how that you tried to distinguish that from cases of parents who were there from the beginning and would have all of the information.

[00:13:50] Speaker 01:
But this court actually faced another case called Carson in 2013, which was a post-clerk claim, in which the parents of a child who had speech delays, and they argued the discovery rule in that case.

[00:14:03] Speaker 01:
And this court said that that wouldn't apply.

[00:14:06] Speaker 00:
But what if we don't agree with you that they're arguing the discovery rule?

[00:14:09] Speaker 00:
What other arguments do you have?

[00:14:11] Speaker 01:
Well, just as the now Chief Special Master found, that there was nothing extraordinary standing in the way of the sister filing, as you suggested, retaining an attorney to investigate whether there was a claim available.

[00:14:26] Speaker 01:
And also that the second prong of the test, and while counsel argued Barrett today, and as briefing he argued, the PACE test of both extraordinary circumstances and reasonable diligence,

[00:14:36] Speaker 01:
The special master found that there was a lack of diligence in pursuing the claim, both on the part of petitioner and her sister in this case.

[00:14:44] Speaker 00:
And you take the position that that was not challenged on appeal, right?

[00:14:48] Speaker 01:
Correct.

[00:14:48] Speaker 00:
Well, in the reply brief, there's a response to your position.

[00:14:53] Speaker 01:
What do you have to say in response to that they argue in the reply brief that basically their entire brief argued the the diligence issue I reviewed the initial brief and I did not find any specific instance where they raised This specific finding by the chief special master and and said that it was incorrect and

[00:15:14] Speaker 01:
But we also argue that even if the issue was not waived, that there were certainly ample grounds for the special master to find that there was a lack of diligence.

[00:15:23] Speaker 02:
How can that be in the light of our Chico case?

[00:15:26] Speaker 02:
Which applies the stop clock approach and says the only question is whether there was diligence during the period of tolling.

[00:15:36] Speaker 01:
Correct.

[00:15:38] Speaker 01:
Well, I'm not sure that we've established that Chico is as applicable.

[00:15:44] Speaker 01:
I mean, that was not a case that was decided under the Vaccine Act.

[00:15:49] Speaker 01:
And we've argued in our brief that there is, when the special master is applying the facts to the test for equitable tolling, that there is an abuse of discretion standard that's applied to that

[00:16:05] Speaker 01:
to those findings.

[00:16:06] Speaker 01:
And here, the special master certainly was reasonable in looking at the fact that... The special master here said that automatically, when there's a guardian appointed, it stops the tolling, right?

[00:16:15] Speaker 01:
Well, but the special master also looked at the fact that there was a period of over a year from the vaccination until KG first began to experience mental incapacity that she could have pursued a claim and she did not.

[00:16:26] Speaker 01:
But Chico says that period's not relevant.

[00:16:29] Speaker 01:
Well, that is the first year of the statute of limitations, so it has to be relevant.

[00:16:33] Speaker 01:
Maybe so, but Chico says it's not.

[00:16:36] Speaker 01:
And then again, there was a year and a half after KG regained mental capacity during which no efforts were made based on the record in this case.

[00:16:45] Speaker 01:
Have you read Chico?

[00:16:47] Speaker 01:
I have not read Chico.

[00:16:48] Speaker 02:
I don't believe it was cited in... I suggest you go back and read it because it's inconsistent with the argument you're making.

[00:16:55] Speaker 01:
I'm sorry.

[00:16:56] Speaker 01:
I don't believe the appellant argued that the Chico standard was applicable in their briefing.

[00:17:01] Speaker 01:
And we certainly did not.

[00:17:02] Speaker 01:
We don't have to ignore the case.

[00:17:04] Speaker 01:
And Your Honor, we've actually made the argument that equitable tolling should not be available at all based on mental incapacity under the Vaccine Act.

[00:17:12] Speaker 01:
And I do think that question does need to be first reached by the court before we can go on and decide whether the facts of this case establish it.

[00:17:20] Speaker 00:
We are very much aware of that.

[00:17:21] Speaker 00:
And if you want, you can argue why it shouldn't apply.

[00:17:24] Speaker 01:
I would like to address why it does not apply.

[00:17:29] Speaker 01:
And I believe, again,

[00:17:30] Speaker 01:
that this court's decision in Clore, where the court held that the petitioner in that case argued basically for equitable tolling as a substitute for the discovery rule.

[00:17:43] Speaker 01:
And this court, in an en banc opinion, said it's not appropriate to use equitable tolling as a substitute for a remedy that Congress has conveyed a refusal to withhold.

[00:17:54] Speaker 01:
And we submit that Congress could have, in the statute of limitations,

[00:18:00] Speaker 01:
implemented a provision very much like savings clauses and other statutes of limitation that do toll for mental incapacity, the fact that Congress did not include that in the statute of limitations in the Vaccine Act conveys its refusal, and again, Gloria uses this language, is a strong indication of Congress's conveying its refusal to not adopt that rule.

[00:18:19] Speaker 02:
Why wouldn't the same thing be true in the veterans area?

[00:18:23] Speaker 01:
Because CLOR applies specifically to the Vaccine Act's statute of limitations, which is what this case is being decided under.

[00:18:31] Speaker 01:
It is a different statute of limitations than the veterans' benefits.

[00:18:33] Speaker 02:
We've said that equitable tolling for lack of capacity is available in the veterans' area.

[00:18:39] Speaker 01:
Why is this area different?

[00:18:41] Speaker 01:
The statutes are different, and the veterans... In what way are they different?

[00:18:45] Speaker 01:
Well, in Barrett, the court said that as justification for applying equitable tolling based on mental capacity,

[00:18:53] Speaker 01:
it was the veteran service it was the fact that often the injury is going to be related or the mental incapacity is going to be related to the very injury for which the veteran is seeking compensation and also I think this is the same here no not necessarily I don't know that the record is establishes

[00:19:10] Speaker 01:
Um, and I think this would be have to require the allegation, the allegation is that the mental capacity flows from the alleged injury, but I don't correct.

[00:19:20] Speaker 00:
I mean, at this point in the proceeding that would, we're supposed to look behind that and see whether that's correct or not.

[00:19:30] Speaker 01:
Well, this is an equitable remedy.

[00:19:33] Speaker 01:
And so there has to be fact finding.

[00:19:35] Speaker 00:
Well, it's not an equitable remedy.

[00:19:37] Speaker 00:
We're trying to figure out whether there's something in vaccine law that makes it so unique from other areas of law that this rule wouldn't apply.

[00:19:45] Speaker 00:
You wouldn't have equitable tolling for a mental disability, right?

[00:19:49] Speaker 01:
Right.

[00:19:50] Speaker 01:
And I think, as we've argued in our brief, what makes the Vaccine Act unique is that when the act was implemented,

[00:19:57] Speaker 01:
Congress and the court of federal claims points this out in the legislative history Congress knew that a significant number of claimants that would be coming to the program were going to be children who were suffered devastating neurological injuries and Congress knowing that could have implemented a statute of limitations that accounted for that that accounted for tolling based on the mental incapacity that's not the situation here first of all it's not children right but but second of all I

[00:20:24] Speaker 00:
doesn't your argument it is you could look at it both ways I hear what you're saying but another way to look at it is that Congress's silence meant that they thought that equitable tolling for mental disability should apply and that the regular common law that applies in other areas would apply here that that's what their silence suggests whereas you would say their silence suggests

[00:20:48] Speaker 00:
no tolling at all.

[00:20:49] Speaker 01:
I would say that argument or that position, if that's the direction this court wants to go, is not consistent with what this court said in Clore, in which the court said the Congress's failure to

[00:21:04] Speaker 01:
Implement a discovery role and the saturated limitations conveyed its refusal to adopt a discovery role and so Following the same logic Congress's refusal to toll the saturated limitations based on mental incapacity Conveyed its refusal to toll the limitations period in cases involving Neurological injuries that or anything that prevents their position from one could argue in clower that it's different because in clower it

[00:21:30] Speaker 00:
The statute says specifically, right, that it's from the time that the symptoms first appear.

[00:21:36] Speaker 00:
So it's not just silence.

[00:21:38] Speaker 01:
Well, but there is still the... I mean, it doesn't then go on to say, and not from the time the petitioner discovers there is a potential claim.

[00:21:45] Speaker 01:
And so I think the same argument would be applicable here.

[00:21:48] Speaker 02:
The whole point of equitable tolling is that the statute doesn't provide for it, and that absent a statement in the statute that there shouldn't be equitable tolling, the Supreme Court has told us that there is equitable tolling.

[00:21:59] Speaker 02:
And in fact, Cloer said there's equitable tolling in the Vaccine Act.

[00:22:03] Speaker 02:
The only question is whether a particular kind of equitable tolling for lack of capacity should apply here.

[00:22:10] Speaker 02:
Why should, if we have equitable tolling in the Vaccine

[00:22:15] Speaker 02:
Why shouldn't there be equitable tolling for lack of capacity?

[00:22:18] Speaker 01:
Well, and I again go back to Clore, because while Clore did say equitable tolling is available, Clore went on to say equitable tolling is not available as a substitute for the discovery rule.

[00:22:28] Speaker 01:
And so just as here, petitioners attempting to use equitable tolling based on mental incapacity as a substitute for the fact that Congress did not already provide for tolling within the statute of limitations in cases where there is mental incapacity.

[00:22:59] Speaker 01:
So unless the court has any further questions, I believe I've covered everything that I was hoping to cover today.

[00:23:04] Speaker 01:
We believe the special master was reasonable in his fact finding and correctly applied the law.

[00:23:11] Speaker 01:
And we therefore ask the court to affirm his decision.

[00:23:14] Speaker 01:
OK.

[00:23:14] Speaker 01:
Thank you, Mr. Johnson.

[00:23:17] Speaker 02:
Mr. Hermson.

[00:23:20] Speaker 03:
Thank you, Your Honor.

[00:23:23] Speaker 03:
I can address the waiver issue if you want.

[00:23:24] Speaker 03:
I'd rather use my time on other issues.

[00:23:27] Speaker 03:
So unless you have questions on that, I'm going to skip the waiver issue.

[00:23:32] Speaker 03:
The diligence argument, Special Master and Hodge,

[00:23:38] Speaker 03:
I think it was on remand, addressed that diligent argument.

[00:23:42] Speaker 03:
And he said, we're not applying diligence in the mental incapacity context, because doing so would be like trying to fit a square peg in a round hole.

[00:23:53] Speaker 03:
Because what we're saying is that this person is not mentally capable of diligence.

[00:23:57] Speaker 03:
So that's not the test.

[00:23:58] Speaker 03:
The test is did this, was it of sufficient severity, and then did it impair that relationship.

[00:24:08] Speaker 03:
Chlor is actually the case that held that equitable tolling applies in the Vaccine Act.

[00:24:13] Speaker 03:
So the continued citations to chlor confuse me.

[00:24:17] Speaker 03:
That addressed the discovery rule.

[00:24:20] Speaker 03:
The discovery rule is completely different than the equitable tolling doctrine.

[00:24:23] Speaker 03:
It has different common law roots.

[00:24:26] Speaker 03:
Justice Scalia in McQuiggins versus Perkins was the case.

[00:24:31] Speaker 03:
And Justice Scalia, of course, is not

[00:24:33] Speaker 03:
one to read many exceptions into a statute if there's not textual support.

[00:24:39] Speaker 03:
Justice Scalia said the equitable tolling doctrine has a strong basis in common law.

[00:24:45] Speaker 03:
It was adopted by the colonies.

[00:24:49] Speaker 03:
It is assumed that those colonial legislators would have brought that strong doctrine over from England with them, and they would have assumed that all their statute of limitations, that that doctrine would have applied.

[00:25:01] Speaker 03:
That's not the case with the discovery rule.

[00:25:03] Speaker 03:
So we're dealing with two very different rules with very different common law legal bases.

[00:25:10] Speaker 03:
As far as whether the language in the statute, I think the language is that a legal representative quote may bring a claim on a petitioner's behalf.

[00:25:26] Speaker 03:
My understanding is that is what respondents hang their hat on.

[00:25:30] Speaker 03:
as far as this statute being inconsistent and with equitable tolling.

[00:25:37] Speaker 03:
That's simply not the case.

[00:25:38] Speaker 03:
I addressed that in my brief, saying that someone may bring a claim is not the same as saying that they have to.

[00:25:44] Speaker 03:
And there's really strong Supreme Court case law in recent years saying you need more than that.

[00:25:51] Speaker 03:
US v. Kwai Fun Wong was the case, a 2015 case.

[00:25:58] Speaker 03:
And they really clarified that since the Irwin presumption, not only does that presumption continue to apply, but it's stronger than ever.

[00:26:07] Speaker 03:
We need an affirmative indication from Congress.

[00:26:11] Speaker 03:
It can't just be that this is a run of the mill statute of limitations.

[00:26:14] Speaker 03:
It can't be that the statute of limitations has exceptions to it.

[00:26:17] Speaker 03:
It can't even be that the statute of limitations is worded very strongly.

[00:26:22] Speaker 03:
It has to be some kind of affirmative indication from Congress saying,

[00:26:26] Speaker 03:
We don't want equitable tolling to apply in this case.

[00:26:29] Speaker 03:
There's no such indication from Congress here.

[00:26:31] Speaker 03:
There's nothing in the statute inconsistent with applying equitable tolling for mentally incapacitated petitioners.