No. 07-19

In the Supreme Court of the United States

DEPARTMENT OF THE ARMY, PETITIONER

v.

JOHN E. KIRKENDALL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

REPLY BRIEF FOR THE PETITIONER

PAUL D. CLEMENT
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

In the Supreme Court of the United States

No. 07-19

DEPARTMENT OF THE ARMY, PETITIONER

v.

JOHN E. KIRKENDALL

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

REPLY BRIEF FOR THE PETITIONER

The 7-6 en banc majority of the Federal Circuit erred in this case both by concluding that the 15-day statutory time limit for filing an appeal with the Merit Systems Protection Board under the Veterans Employment Op portunities Act of 1998 (VEOA), 5 U.S.C. 3300a(d), is not jurisdictional (and therefore not mandatory) and by con cluding that the time limit is subject to equitable tolling. With regard to the former conclusion, respondent sug gests (Br. in Opp. 21-28) that it is unnecessary for this Court to vacate the court of appeals' judgment and re mand in light of the Court's intervening decision in Bowles v. Russell, 127 S. Ct. 2360 (2007), on the theory that Bowles, which held that a similar appellate time limit was mandatory, does not call into question the court of appeals' analysis. With regard to the latter con clusion, respondent contends (Br. in Opp. 7-21) that, assuming that the time limit is non-jurisdictional, fur ther review is not warranted, because the court of ap peals correctly followed decisions from this Court hold ing that equitable tolling was available under differently (and less emphatically) worded statutes. Respondent's reasoning is flawed on both counts.

A. The Court of Appeals' Jurisdictional Ruling Cannot Be Squared With Bowles v. Russell

1. In rejecting the government's argument that the appellate time limit in Section 3330a(d)(1) is jurisdic tional (and therefore mandatory), the court of appeals held that statutes specifying periods for review, no less than statutes of limitations, were subject to a presump tion in favor of equitable tolling. Pet. App. 19a. The court of appeals asserted that this Court had "clarified that time prescriptions, however emphatic, are not prop erly typed 'jurisdictional.'" Id. at 19a-20a (internal quo tation marks omitted) (citing Arbaugh v. Y&H Corp., 546 U.S. 500 (2006); Eberhart v. United States, 546 U.S. 12 (2005) (per curiam); Scarborough v. Principi, 541 U.S. 401 (2004); and Kontrick v. Ryan, 540 U.S. 443 (2004)). In Bowles, however, this Court held that the failure to file a notice of appeal within the statutory pe riod deprived a court of appeals of jurisdiction. 127 S. Ct. at 2363-2366. Critically, the Court distinguished all four of the prior decisions on which the court of appeals had relied, explaining that "none of them calls into ques tion our longstanding treatment of statutory time limits for taking an appeal as jurisdictional" and that "those decisions have also recognized the jurisdictional signifi cance of the fact that a time limitation is set forth in a statute." Id. at 2364 (emphases added). Bowles thus knocks out the underpinnings of the court of appeals' reasoning in holding that the time limit in Section 3330a(d)(1) is not jurisdictional.

Respondent makes no effort to contend otherwise; indeed, he scarcely acknowledges the prior decisions of this Court on which the court of appeals primarily re lied. Instead, he contends that "this case has nothing to do with Bowles," Br. in Opp. 21, on the theory that a different rule should apply to time limits for appeals to administrative agencies from that for appeals to Article III courts, id. at 1-2, 23-24, 25-26. As a preliminary mat ter, that contention is best addressed in the first in stance by the court of appeals on remand, because that court did not have the benefit of Bowles when it issued its decision. Cf. Lawrence ex rel. Lawrence v. Chater, 516 U.S. 163, 167 (1996) (per curiam) (providing that a remand is appropriate where there is "a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportu nity for further consideration").

In any event, respondent's contention lacks merit. Congress can constrain administrative agencies, no less than Article III courts, by specifying the circumstances under which they have jurisdiction to hear cases, includ ing when they act in the capacity of appellate tribu nals-and, when Congress does so, agencies have no greater authority than courts to deviate from those con straints. Notably, respondent fails to cite a single deci sion, from this Court or any other court, that stands for the proposition that appellate time limits for administra tive agencies are not "jurisdictional," in the sense of be ing mandatory. The sole authority respondent cites (Br. in Opp. 25) is a concurring opinion by Judge McConnell, which, far from supporting respondent's position, simply reaffirms the principle that "[t]he scope of regulatory jurisdiction * * * is a matter of policy for Congress to decide," Fuel Safe Washington v. FERC, 389 F.3d 1313, 1333 (10th Cir. 2004), and concludes that, in the statute at issue, Congress did not permit a party to challenge the agency's jurisdiction for the first time in a petition for review to an Article III court, see id. at 1333-1334.1

Respondent more generally relies (Br. in Opp. 15-16, 23-24) on this Court's decisions in Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990), and Bowen v. City of New York, 476 U.S. 467 (1986). Both of those cases, however, are distinguishable on the ground that they did not involve deadlines for filing "appeals," but rather deadlines for initiating litigation in Article III courts. See Irwin, 498 U.S. at 91 (30-day limit for filing civil action under Title VII after receiving notice of final action by EEOC); Bowen, 476 U.S. at 478 (60-day limit for filing civil action under Social Security Act after re ceiving notice of final decision by Commissioner). Al though respondent notes (Br. in Opp. 16) that, at one point in its opinion in Bowen, the Court described the statute at issue as providing a mechanism for "seek[ing] judicial review," 476 U.S. at 472, the Court, in rejecting the argument that the 60-day limit was jurisdictional, repeatedly characterized the statute as a statute of "lim itations," id. at 478-479. Accordingly, neither Bowen nor Irwin supports respondents' argument that the time limit on appeals at issue here is not jurisdictional. And of course, neither of those cases undermines the ratio nale of Bowles, which compels the contrary conclusion.

2. Respondent suggests (Br. in Opp. 27) that it would be inappropriate to vacate and remand this case in light of Bowles because doing so would delay the hearing that the court of appeals awarded him under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. 4301 et seq. As a preliminary matter, to the extent that such a remand would result in delay, it is because respondent agreed to stay proceedings on his USERRA claim before the MSPB, pending this Court's disposition of the govern ment's petition for a writ of certiorari on his VEOA claim. See 7/27/07 Initial Decision 2. It is therefore un surprising that, in entering the stay, the administrative judge concluded that respondent would suffer no preju dice from the delay. See ibid. More broadly, however, if the Court were to decide not to vacate and remand solely on the ground that it would delay respondent's USERRA hearing, it would effectively penalize the gov ernment for failing to seek further review of the court of appeals' holding on whether respondent was entitled to that hearing in the first place. See Pet. 10 n.1.2

To the extent that respondent suggests (Br. in Opp. 27) that it would also be inappropriate to vacate and re mand because the government could obtain further re view of the court of appeals' holding after the underlying VEOA claim is adjudicated, that suggestion also lacks merit. Notwithstanding respondent's contention (Br. in Opp. 17-19) that the question presented is neither im portant nor recurring, the court of appeals' holding is already having deleterious effects in other VEOA cases, and its reasoning calls into question the firmness of other statutory time limits as well. See Pet. 23. Those effects will undoubtedly continue as long as the court of appeals' holding remains in place. This Court should therefore vacate the decision below and afford the court of appeals the opportunity to reconsider, in light of Bowles, whether the time limit in Section 3330a(d)(1) is jurisdictional.

B. The Court Of Appeals Further Erred By Allowing Equi table Tolling

1. Having held that the time limit in Section 3330a(d)(1) is not jurisdictional, the court of appeals further erred by concluding that the time limit is subject to equitable tolling. In so doing, the court rejected the government's argument that Section 3330a(d)(1), which provides that a VEOA appeal "in no event may * * * be brought * * * later than 15 days" after the claimant receives written notice from the Secretary of Labor, contains unusually emphatic language that overcomes the ordinarily applicable presumption in favor of equita ble tolling. Pet. App. 10a. Further, the court dismissed "the statute's technical language" as "little more than a neutral factor in our analysis." Ibid.

In defense of that extraordinary reasoning, re- spondent contends (Br. in Opp. 11-13) that Section 3330a(d)(1) is no more emphatic than other statutes pro viding that a claim "must be filed" within a certain pe riod (or that a claim "shall be barred" unless it is filed within a certain period), some of which have been held to be subject to equitable tolling. That contention, how ever, is mistaken, for the straightforward reason that Congress could have written Section 3330a(d)(1) in those terms. It did not, and instead provided that the deadline in Section 3330a(d)(1) was "in no event" subject to ex ception. Tellingly, respondent offers no response to the point that a reading of Section 3330a(d)(1) that permit ted equitable tolling would render the phrase "in no event" superfluous. See, e.g., United States v. Nordic Vill., Inc., 503 U.S. 30, 36 (1992). Nor does respondent cite a single case in which a court has construed a stat ute that uses the phrase "in no event" to permit equita ble tolling; to the contrary, in other statutes, that phrase has consistently been construed strictly. See Pet. 18-19.

For the same reason, respondent's reliance (Br. in Opp. 9-10) on United States v. Brockamp, 519 U.S. 347 (1997), is unavailing. The statute in Brockamp provided that a "[c]laim for * * * refund * * * of any tax * * * shall be filed by the taxpayer" within a specified time period (and repeated that time limit on several oc casions). 26 U.S.C. 6511(a). Notwithstanding that less emphatic statutory language, the Court held that other features of the statute provided a sufficient basis to overcome the presumption in favor of equitable tolling. See Brockamp, 519 U.S. at 350-354. Those additional features, however, are not necessary where, as here, the "in no event" language of the statute is itself sufficiently emphatic to overcome the presumption.

Respondent effectively takes the position (Br. in Opp. 14) that, in order to foreclose equitable tolling, Congress must either use "magic words" in the statute (i.e., by expressly providing that "equitable tolling shall not apply"), or include the additional features that the Court cited in Brockamp. There is no reason, however, to impose those drafting conditions on Congress. With regard to Section 3330a(d)(1), respondent notes (Br. in Opp. 10) that the statute is "relatively short"; sets out its time limit in "straight-forward, simple terms"; and states that time limit only once. Respondent does not explain, however, why Congress should be required to repeat a time limit, or to use particularly complex or prolix language, in order to avoid equitable tolling, espe cially when a simple, emphatic "in no event" would seem to have the same effect. Nor is there any reason to adopt a rule of construction that would encourage Con gress to repeat itself (or to speak obscurely and at length).

Respondent further notes (Br. in Opp. 10) that Sec tion 3330a "contains no explicit exceptions that might suggest that Congress deliberately considered, yet re jected, equitable tolling." The obvious inference to be drawn from the fact that Congress specified that a VEOA appeal "in no event may * * * be brought" out side the 15-day limit, however, is that Congress intended that there be no exceptions to that limit. Congress need not include explicit exceptions simply in order to fore close the possibility that a broader implicit exception would subsequently be read into the statute. Instead, this Court presumes that Congress means what it says in a statute, and here that rule of construction compels the conclusion that Congress meant that the deadline in Section 3330a(d)(1) was "in no event" subject to excep tion. The court of appeals' contrary conclusion was erro neous, and, in the event that this Court does not vacate and remand for Bowles, it should grant plenary review to correct that conclusion.

2. Respondent seemingly acknowledges that, be cause the Federal Circuit has exclusive jurisdiction over appeals from MSPB decisions in VEOA cases, see 28 U.S.C. 1295(a)(9), no circuit conflict will arise on the availability of equitable tolling under Section 3330a(d)(1). Respondent nevertheless contends (Br. in Opp. 17-19) that further review is unwarranted because the Federal Circuit's decision will have only limited ef fects on the interpretation of other statutes. That con tention, however, is belied by the Federal Circuit's ex tensive reliance in this case on its earlier decision in Bailey v. West, 160 F.3d 1360 (1998), in which a divided en banc court, using similar methodology, held that the time limit for filing appeals from the Board of Veterans' Appeals to the Court of Veterans Appeals is subject to equitable tolling. Id. at 1368. This Court's intervention is warranted not only to correct the Federal Circuit's erroneous decision in this case, but to ensure that the Federal Circuit will not continue to employ that unduly broad methodology in future cases concerning the avail ability of equitable tolling.

Finally, respondent contends (Br. in Opp. 20) that this case would constitute a poor vehicle for resolv- ing the question presented because the government did not seek review on the "closely related" question whether the 60-day time limit for filing a VEOA com plaint (with the Secretary of Labor) is also subject to equitable tolling. The time limit for filing a VEOA com plaint, however, is worded in less emphatic terms than the time limit for filing a VEOA appeal. See 5 U.S.C. 3330a(a)(2)(A) (providing that a VEOA complaint "must be filed within 60 days after the date of the alleged viola tion"). Respondent hints, but stops short of affirma tively arguing (Br. in Opp. 20), that the VEOA time lim its are "jurisdictional" for purposes of the rule that an Article III court must consider questions of its own ju risdiction at the threshold. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 95 (1998). Even if that were true, however, there is no reason that this Court would have to consider the question whether equitable tolling is available for the filing of a VEOA complaint before the question whether it is available for the filing of a VEOA appeal. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999) (explaining that, "[w]hile * * * subject- matter jurisdiction necessarily precedes a ruling on the merits, the same principle does not dictate a sequencing of jurisdictional issues"). It is thus unnecessary for this Court to consider both questions in one case. And no such issue would arise if the Court were simply to vacate and remand in light of its intervening decision in Bowles.

* * * * *

For the foregoing reasons and those stated in the petition, the petition for a writ of certiorari should be granted, the judgment of the court of appeals vacated, and the case remanded for further consideration in light of Bowles v. Russell, 127 S. Ct. 2360 (2007). In the alter native, the petition should be granted and the case set for briefing and oral argument.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

SEPTEMBER 2007

1 Respondent contends (Br. in Opp. 16) that the time limit at issue in this case is not an "appellate" time limit, because the MSPB does not directly review the underlying decision of the Secretary of Labor. That time limit, however, is "appellate" in the relevant sense, because it governs the transfer of a case from one tribunal to another-i.e., from the Secretary to the MSPB. Notably, the statute establishing the time limit repeatedly characterizes the action before the MSPB as an "appeal." See, e.g., 5 U.S.C. 3330a(d)(1) and (d)(2).

2 While a majority of the en banc court of appeals held that a USERRA complainant is entitled to a hearing as a matter of right, a different majority held that the source of that right was an MSPB regulation (which the MSPB could presumably decide to amend). See Pet. App. 23a-28a (plurality opinion); id. at 58a-62a (Moore, J., concurring in the result in relevant part); id. at 63a-80a (Bryson, J., dissenting).