JWV Submits SCOTUS Amicus Brief

By PNC Harvey Weiner

JWV has once again submitted an amicus (friend of court) brief in a veteran’s case before the United States Supreme Court (SCOTUS), Arellano v. McDonough, No. 21-432. The case involves a veteran who, because of his PTSD, missed the one-year filing date after discharge, which was necessary to qualify for veterans benefits for his PTSD. The legal issue is whether the rebuttable presumption of equitable tolling the statute of limitations applies in this case, that is, in fairness to the veteran, did he have a really good excuse for missing the strict one-year deadline. Previous case law holds that there can be no excuse for missing the one-year deadline, but, as explained in our brief, Jewish American WWII soldier and novelist Joseph Heller would say that to deny the veteran his benefits for his PTSD because his PTSD caused him to miss the deadline would be the ultimate Catch-22.

The veteran in this case waited 30 years to submit his application for benefits, but our brief noted that the Jewish American World War II soldier and veteran J.D. Salinger suffered PTSD and that he was unable to submit a claim his entire life. He became a life-long recluse and never wrote another full novel. In the case at hand, we argue that the VA should not act as an obstacle to veterans seeking benefits to which they are entitled, but rather act as a catcher in the rye.

This is the fifth appellate case in the past ten years in which JWV has stepped up to the plate and submitted an amicus brief in support of veterans and soldiers. The other cases involved a war memorial cross (SCOTUS), DACA veterans and soldiers (SCOTUS), transgender soldiers (D.C. Circuit Court of Appeals), and the right to counsel for a veteran in a civil case where there was a high risk of incarceration for failing to pay child support (Massachusetts Supreme Judicial Court). JWV has received enormous positive publicity for these actions and has a national reputation in the legal and veteran communities for litigating veterans causes in high profile court cases. In this case, co-amicus, Military Veterans Advocacy, Inc., welcomed JWV as a player and commented on JWV’s reputation in this regard.

JWV is usually the only major veterans organization to advocate for veterans and soldiers in the courts. I do not know why the other major veterans organizations, with their greater resources, do not do so as well. Perhaps it is because they cannot act fast enough since there is usually very short notice. In this case, we had two weeks to submit a brief and JWV authorized the brief within 48 hours. I have occasionally wondered if, because all the veterans organizations except for JWV do not support a veteran’s position in court, a judge might think that they oppose the veteran’s position in the case. I believe this reluctance of these other veterans organizations to join in litigation not only does not advance their mission to help veterans but may even hurt veterans.

All briefs in Arellano will be submitted by the end of June and arguments are expected in the 2022-2023 term, which should begin on the first Monday in October. I will let you know the result.

Volume 76. Number 2. 2022