Amicus Curiae Brief — Clifford W. Jones, Sr., Petitioner v. Department of Health and Human Services

Supreme Court briefJun 27, 2018

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No. 17-1610

IN THE

Supreme Court of the United States

______________________

CLIFFORD W. JONES, SR.,

Petitioner,

DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Respondent.

__________________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Federal Circuit

_____________

BRIEF OF AMICI CURIAE

NATIONAL VETERANS LEGAL SERVICES

PROGRAM and NATIONAL ORGANIZATION OF

VETERANS’ ADVOCATES, INC.

IN SUPPORT OF PETITIONER

_____________

Barton F. Stichman

Executive Director

NATIONAL VETERANS LEGAL

SERVICES PROGRAM

1600 K St. NW, Ste. 500

Washington, DC 20006

(202) 621-5677

Benjamin C. Block

Counsel of Record

COVINGTON & BURLING LLP

One CityCenter

850 Tenth Street, NW

Washington, DC 20001

bblock@cov.com

(202) 662-5205

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF CONTENTS .................................... i

TABLE OF AUTHORITIES ............................. iii

INTEREST OF THE AMICI CURIAE ............... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................. 3

ARGUMENT .................................................... 7

Congress Has Consistently Enacted

Legislation To Support And Assist

Veterans In Their Interactions With

The Government. ....................................... 7

II. The Decision in Jones Contravenes

Henderson. .............................................. 11

III. The Elimination Of Equitable Tolling

Would Thwart Congress’s Goal Of

Ensuring Fair And Equitable

Treatment Of Veterans. .......................... 14

Veterans must navigate a

“procedural morass” to adjudicate

their claims before the MSPB. ...................14

Veterans disproportionately suffer

cognitive impairments and other

circumstances that can inhibit their

ability to pursue claims and meet

filing deadlines. ..........................................16

The availability of Article III judicial

review of MSPB decisions is an

important safeguard for veterans’

rights. ..........................................................18

CONCLUSION............................................... 20

—ii—

TABLE OF AUTHORITIES

Page(s)

Cases

Ala. Power Co. v. Davis,

431 U.S. 581 (1977) ................................................ 9

Att’y Gen. v. Soto-Lopez,

476 U.S. 898 (1986) ................................................ 4

Bowles v. Russell,

551 U.S. 205 (2007) .............................. 5, 12, 14, 20

Brenndoerfer v. USPS,

693 Fed. App’x. 904 (Fed. Cir. 2017) ................... 19

Brown v. Gardner,

513 U.S. 115, 118 (1994) ...................................... 11

Butler v. West,

164 F.3d 634 (D.C. Cir. 1999) .......................... 6, 15

Conoco, Inc. v. U.S. Foreign–Trade

Zones Bd.,

18 F.3d 1581 (Fed. Cir. 1994) .............................. 16

EEOC v. Commercial Office Prods. Co.,

468 U.S. 107, 124 (1988) ........................................ 6

Erickson v. U.S. Postal Serv.,

636 F.3d 1353 (Fed. Cir. 2011) ............................ 18

Fed. Express Corp. v. Holowecki,

552 U.S. 389 (2008) .......................................... 6, 15

—iii—

Fedora v. Merit Systems Protection

Board,

848 F.3d 1013 (Fed. Cir. 2017) ............................ 19

Fishgold v. Sullivan Drydock & Repair

Corp.,

328 U.S. 275, 285 (1946) ........................................ 9

Hamer v. Neighborhood Housing

Services of Chicago,

138 S. Ct. 13 (Nov. 8, 2017) ....................... 5, 12, 20

Henderson v. Shinseki,

562 U.S. 428 (2011) ...................................... passim

Hodge v. West,

155 F.3d 1356 (Fed. Cir. 1998) ............................ 11

Irwin v. Department of Veterans

Affairs,, 498 U.S. 89, 95–96 (1990) ........................ 9

Jarmin v. OPM,

678 Fed. App’x. 1023 (Fed. Cir. 2017) ................. 19

Jones v. Department of Health and

Human Services,

702 Fed. App’x. 988 (Fed. Cir. 2017) ... 2, 11, 12, 14

King v. St. Vincent’s Hosp.,

502 U.S. 215 (1991) .......................................... 9, 10

Kirkendall v. Dep’t of the Army,

479 F.3d 830 (Fed. Cir. 2007) ...................... 4, 9, 10

Lynch v. Department of the Army,

107 M.S.P.R. 224 (M.S.P.B. 2007) ....................... 18

—iv—

McKnight v. Gober,

131 F.3d 1483 (Fed. Cir. 1997) ............................ 11

Mitchell v. Cohen,

333 U.S. 411 (1948) ................................................ 8

MSPB, Congressional Budget

Justification FY 2018 ........................................... 15

Pers. Adm’r of Mass. v. Feeney,

442 U.S. 256 (1979) ................................................ 8

Valentine-Johnson v. Roche,

386 F.3d 800 (6th Cir. 2004) ...................... 6, 15, 16

Zipes v. Trans World Airlines, Inc.,

455 U.S. 385 (1982) .............................................. 15

Statutes and Regulations

5 U.S.C. § 2301(b)(8)(A) ............................................ 14

5 U.S.C. § 3330a(d)(1) ................................................. 5

5 U.S.C. § 7702(f)....................................................... 10

5 U.S.C. § 7703 .................................................. passim

28 U.S.C. § 1295 ........................................................ 13

28 U.S.C. § 2107 ........................................................ 19

38 U.S.C. §§ 4301–4335 .............................................. 2

38 U.S.C. §§ 4311–16 .................................................. 4

38 U.S.C. §§ 4314 (a), (d) ............................................. 8

—v—

38 U.S.C. § 7292 (a), (c), (d) ...................................... 19

Civil Service Reform Act, Pub. L. No.

95-454, 92 Stat. 1111 (1978) ........................ passim

Invalid Pensions Act of 1792, 1 Stat.

243 .......................................................................... 7

Selective Training and Service Act, Pub.

L. No. 76-783, 54 Stat. 885, 890

(1940) ...................................................................... 7

Uniformed Services Employment and

Reemployment Rights Act of 1994

(USERRA), Pub. L. No. 103-353 (codfied as amended at 38 U.S.C.

§§ 4301-4335) ............................................... passim

Veterans Employment Opportunities

Act of 1998, Pub. L. No. 105-339, 112

Stat. 3182 ..................................................... passim

Veterans’ Preference Act, Pub. L. No.

78-359, 58 Stat. 387 (1944) .................................... 8

Veterans’ Reemployment Rights Act of

1974 ........................................................................ 7

Vietnam Era Veterans’ Readjustment

Assistance Act, Pub. L. No. 93-508

§ 404, 88 Stat. 1578, 1594 (1974) .......................... 7

5 C.F.R. § 1201.3(b)(1) ................................................. 5

—vi—

Congressional Authorities

137 Cong. Rec. H2972 (daily ed. May 14,

1991) (statement of Rep. Penny) ........................... 4

139 Cong. Rec. S5181 (daily ed. Apr. 29,

1993) (statement of Sen. Rockefeller) ................... 7

146 Cong. Rec. H6786 (daily ed. July 25,

2000) (statement of Rep. Evans) ........................... 3

146 Cong. Rec. S9212–13 (daily ed.

Sept. 25, 2000) (statement of Sen.

Rockefeller)............................................................. 3

H.R. Rep. No. 103-65 (1993)........................................ 8

H.R. Rep. No. 1289 (1944) ........................................... 8

S. Rep. No. 95-969 (1978) ...................................... 6, 14

Veterans’ Preference: Hearing Before the

Subcomm. on Civil Service of the H.

Comm. on Gov’t Reform and

Oversight, 104th Cong. 20, at 1 (2nd

Sess. 1996) .......................................................... 4, 8

Veterans’ Preference: Hearing Before the

Subcomm. on Econ. Opportunity of

the H. Comm. on Veterans’ Affairs,

110th Cong. 25, at 25 (1st Sess. 2007) ................... 9

—vii—

Other Authorities

DoD Worldwide Numbers for TBI,

Defense and Veterans Brain Injury

Center, http://dvbic.dcoe.mil/dodworldwide-numbers-tbi ........................................ 17

MSPB, Congressional Budget

Justification FY 2018,

https://www.mspb.gov/MSPBSEARC

H/viewdocs.aspx?docnumber=141249

4&version=1417936&application=A

CROBAT ............................................................... 15

Nat’l Inst. of Mental Health, PostTraumatic Stress Disorder,

https://www.nimh.nih.gov/health/top

ics/post-traumatic-stress-disorderptsd/index.shtml................................................... 17

U.S. Dep’t of Justice Civil Rights Div.,

Protecting the Rights of

Servicemembers 3,

https://www.justice.gov/sites/dfault/fi

les/crt/legacy/2013/05/22/servicemem

bers_booklet.pdf ..................................................... 3

U.S. Dep’t of Veterans Affairs, VA

Benefits & Health Care Utilization,

https://www.va.gov/vetdata/docs/poc

ketcards/fy2016 q4.pdf ......................................... 17

—viii—

U.S. Office of Pers. Mgmt., The

Employment of Veterans in the

Federal Executive Branch for FY

2016 2 (2017),

https://www.fedshirevets.gov/veteran

s-council/veteran-employmentdata/employment-of-veterans-in-thefederal-executive-branch-fy2016.pdf ..................... 2

U.S. Office of Pers. Mgmt., The

Employment of Veterans in the

Federal Executive Branch for FY

2016, supra n.4 ..................................................... 16

Veterans Health Initiative, Traumatic

Brain Injury 59–60 (Apr. 2010),

https://www.publichealth.va.gov/docs

/vhi/traumat-ic-brain-injury-vhi.pdf ................... 17

—ix—

INTEREST OF THE AMICI CURIAE

National Veterans Legal Services Program

(NVLSP) is an independent nonprofit organization

that has worked since 1980 to ensure that the United

States government provides our nation’s 25 million

veterans and active duty personnel with the federal

benefits that they have earned through their service

to our country.1 NVLSP accomplishes its mission

through: litigation; administrative representation of

veterans and active duty personnel on claims for benefits; publication of materials that provide veterans,

their families, and their advocates with the information necessary to obtain the benefits to which they

are entitled; and service as a national support center

that recruits, trains, and assists thousands of lawyer

and non-lawyer advocates to represent veterans and

active duty personnel on claims for benefits.

National Organization of Veterans’ Advocates,

Inc. (NOVA) is a not-for-profit educational membership organization incorporated in 1993. NOVA is

comprised of approximately 500 attorneys and agents

who represent tens of thousands of our nation’s military veterans, their families, and their survivors. The

vast majority of veterans represented by NOVA members are eligible for veterans’ preference rights.

1 Pursuant to Supreme Court Rule 37.6, amici affirm that no

counsel for a party authored this brief in whole or in part, that

no counsel or party made a monetary contribution intended to

fund the preparation or submission of this brief, and that no person other than the amici or their counsel made such a monetary

contribution. Counsel for all parties received notice at least 10

days before the due date of amici’s intention to file this brief; Petitioner and Respondent have consented to its filing.

Amici submit this brief on behalf of Petitioner

Clifford Jones because the rule applied by the Federal

Circuit in Jones v. Department of Health and Human

Services, 702 Fed. App’x. 988 (Fed. Cir. 2017), denies

judicial review of agency decisions that affect amici’s

core constituencies—United States military veterans.

The Merit Systems Protection Board (MSPB), a quasijudicial body, hears veterans’ claims under the Uniformed Services Employment and Reemployment

Rights Act of 1994 (USERRA)2 and the Veterans Employment Opportunities Act of 1998 (VEOA)3 when

veterans are denied the rights to which they are entitled by federal employers. Over 600,000 veterans are

employed in federal agencies across the country, comprising nearly one out of every three federal workers.4

If allowed to stand, the Federal Circuit’s decision

would preclude judicial review of claims by veterans—

many of whom proceed pro se. Such a result would be

inconsistent with this Court’s decision in Henderson

v. Shinseki, 562 U.S. 428 (2011), and would contravene Congress’s longstanding intent to protect

veterans and to provide them the opportunity to vindicate their employment and reemployment rights.

2 Pub. L. No. 103-353 (codified as amended at 38 U.S.C. §§ 4301–

4335).

3 Pub. L. No. 105-339, 112 Stat. 3182 (codified at 5 U.S.C.

§ 3330a).

4 See U.S. Office of Pers. Mgmt., The Employment of Veterans in

the Federal Executive Branch for FY 2016 2 (2017),

https://www.fedshirevets.gov/veterans-council/veteran-employment-data/employment-of-veterans-in-the-federal-executivebranch-fy2016.pdf.

—2—

INTRODUCTION AND

SUMMARY OF ARGUMENT

Petitioner Jones has explained the legal errors in

the decision below. Amici write to demonstrate further that Congress did not and could not have

intended the Federal Circuit’s interpretation of 5

U.S.C. § 7703(b)(1)(A), nor the adverse consequences

to veterans resulting from that interpretation.

In recognition of the extraordinary sacrifices

made by our nation’s veterans in military service,

“Congress has enacted a number of laws specifically

designed to protect the civil rights of servicemembers,

both while they are on active duty and after they return to civilian life.”5 When enacting laws that affect

veterans, Congress “‘place[s] a thumb on the scale in

the veteran’s favor,’” Henderson, 562 U.S. at 440 (citation omitted), and ensures that those laws enable

veterans “to have their claims decided fairly and

fully,” 146 Cong. Rec. H6786, H6788 (daily ed. July

25, 2000) (statement of Rep. Evans). See also 146

Cong. Rec. S9212–13 (daily ed. Sept. 25, 2000) (statement of Sen. Rockefeller) (explaining that the systems

designed to protect veterans “should not create technicalities and bureaucratic hoops for them to jump

through”).

5 U.S. Dep’t of Justice Civil Rights Div., Protecting the Rights of

Servicemembers 3, https://www.justice.gov/sites/default/files/crt/

legacy/2013/05/22/servicemembers_booklet.pdf (last visited June

18, 2018).

—3—

I. To further protect, assist, and reward veterans

for their service, Congress enacted SERRA and

VEOA.

USERRA guarantees servicemembers expansive

rights to take military leave from their civilian jobs,

to be reemployed promptly upon returning from military leave, and to be free from discrimination based

their service. 38 U.S.C. §§ 4311–16; see also 137 Cong.

Rec. H2972, H2978 (daily ed. May 14, 1991) (statement of Rep. Penny) (discussing “the importance of

employment and reemployment protection for members of the uniformed services”).

VEOA helps veterans readjust to civilian life and

rewards them for their service to our country by giving

veterans certain advantages in the federal hiring process. See Att’y Gen. v. Soto-Lopez, 476 U.S. 898, 910

(1986) (plurality op.) (“Compensating veterans for

their past sacrifices by providing them with advantages over nonveteran citizens is a long-standing

policy of our Federal and State Governments.”).

Congress enacted VEOA to strengthen veterans’

preference rights, following testimony that “redress

for veterans who are wronged is often inadequate.”

Veterans’ Preference: Hearing Before the Subcomm. on

Civil Service of the H. Comm. on Gov’t Reform and

Oversight, 104th Cong. 20, at 1 (2nd Sess. 1996)

(statement of Rep. John L. Mica). VEOA “provide[s]

preference eligible veterans with a method for seeking

redress where their veterans’ preference rights have

been violated in hiring decisions made by the federal

government.” Kirkendall v. Dep’t of the Army, 479

F.3d 830, 837 (Fed. Cir. 2007) (en banc).

—4—

The MSPB hears the claims of veterans denied

their benefits under USERRA and VEOA. 5 U.S.C.

§ 3330a(d)(1). The Federal Circuit has exclusive jurisdiction over subsequent appeals by veterans from the

MSPB. 5 C.F.R. § 1201.3(b)(1).

II. In Henderson v. Shinseki, this Court explained

that statutory filing deadlines should not be interpreted to create jurisdictional bars for litigants unless

Congress clearly intended that result. 562 U.S. at

434–35; see also Hamer v. Neighborhood Hous. Servs.

of Chi., 138 S. Ct. 13, 20 n.9 (Nov. 8, 2017). Applying

the well-established “‘canon that provisions for benefits to members of the Armed Services are to be

construed in the beneficiaries’ favor,’” Henderson, 562

U.S. at 441 (citation omitted), the Court found that

veterans’ appeals from the Board of Veterans’ Appeals

to the U.S. Court of Appeals for Veterans Claims were

subject to equitable tolling, distinguishing such appeals from “appeal[s] from one court to another court,”

id. at 436, found to be jurisdictional in Bowles v. Russell, 551 U.S. 205 (2007). The Federal Circuit’s

decision denying equitable tolling for appeals from the

MSPB thwarts Congress’s longstanding policy of favorable treatment toward veterans and is inconsistent

with the holding and guidance of Henderson.

III. A decision that equitable tolling is never permissible in appeals of MSPB decisions to the Federal

Circuit would have a devastating impact on veterans

with meritorious claims. Although Congress enacted

the Civil Service Reform Act (CSRA)6—the enabling

statute for the MSPB—to protect federal employees,

6 Pub. L. No. 95-454, 92 Stat. 1111 (1978).

—5—

see S. Rep. No. 95-969, at 3 (1978), that Act’s procedural processes are complex, confusing, and difficult

to navigate. The Sixth Circuit has recognized that

traversing the CSRA involves a “procedural maze”

and “procedural morass.” Valentine-Johnson v. Roche,

386 F.3d 800, 802, 805 (6th Cir. 2004) (finding that an

Air Force employee “was unsuccessful in navigating

the procedural maze for the processing of a mixed case

because of erroneous advice given to her by the MSPB

Administrative Judge (AJ) hearing her claims”).

This Court has emphasized repeatedly that complex remedial systems “must be accessible to

individuals who have no detailed knowledge of the relevant statutory mechanisms and agency processes.”

Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402–03

(2008) (citing EEOC v. Commercial Office Prods. Co.,

486 U.S. 107, 124 (1988) (discussing the ADEA and

Title VII “remedial scheme[s] in which laypersons, rather than lawyers, are expected to initiate the

process”)). Yet veterans—who often proceed pro se and

suffer from cognitive impairments and other challenges as a result of their service that make it difficult

to follow procedural formalities scrupulously—are left

to wrestle with this “complicated tapestry.” Butler v.

West, 164 F.3d 634, 637 (D.C. Cir. 1999). Equitable

tolling is critical to ensure that these veterans receive

the benefits that Congress prescribed.

—6—

ARGUMENT

Congress Has Consistently Enacted

Legislation To Support And Assist Veterans In Their Interactions With The

Government.

Without equitable tolling, veterans risk losing

meritorious claims due to cumbersome procedural

hurdles—an outcome inconsistent with Congress’s

longstanding intent to protect and to aid veterans.

The history of the Congress’s commitment to veterans dates back to our founding. See, e.g., Invalid

Pensions Act of 1792, 1 Stat. 243. Over the past 75

years, Congress repeatedly has expanded and

strengthened protections for veterans reentering the

workforce or taking leave from employment to fulfill

military obligations. In 1940, Congress established a

right to reemployment for draftees and voluntary enlistees in World War II. See Selective Training and

Service Act, Pub. L. No. 76-783, 54 Stat. 885, 890

(1940). Congress further strengthened these rights by

passing the Veterans’ Reemployment Rights Act of

1974 (VRR). See Vietnam Era Veterans’ Readjustment Assistance Act, Pub. L. No. 93-508 § 404, 88

Stat. 1578, 1594 (1974).

Congress enacted USERRA in 1994 based on a

concern that “the VRR law has become a confusing

and cumbersome patchwork of statutory amendments

and judicial constructions that, at times, hinder the

resolution of claims.” 139 Cong. Rec. S5181, S5182

(daily ed. Apr. 29, 1993) (statement of Sen. Rockefeller). USERRA aims “to clarify, simplify, and, where

—7—

necessary, strengthen the existing veterans’ employment and reemployment rights provisions.” H.R. Rep.

No. 103-65, at 18 (1993). To ensure broad application

of its protections, Congress made USERRA applicable

to public sector employers of all sizes, including federal, state, and local governments. See 38 U.S.C.

§§ 4314 (a), (d).

Congress’s commitment to veterans’ preference

rights is similarly longstanding. Since the Civil War

era, veterans applying for federal jobs have been afforded preference. See Pers. Adm’r of Mass. v. Feeney,

442 U.S. 256, 261 n.6 (1979). In 1944, President Roosevelt signed into law the Veterans’ Preference Act,

Pub. L. No. 78-359, 58 Stat. 387 (1944), which took a

comprehensive approach to assuring that veterans receive preferential treatment in federal employment

with federal agencies. See Mitchell v. Cohen, 333 U.S.

411, 419 n.12 (1948) (“I believe that the Federal Government, functioning in its capacity as an employer,

should take the lead in assuring those who are in the

armed services that when they return special consideration will be given to them in their efforts to obtain

employment” (quoting letter from President Roosevelt

to Rep. Ramspeck, found in H.R. Rep. No. 78-1289, at

5 (1944)).).

Most recently, in 1998, Congress passed VEOA to

strengthen and solidify veterans’ preference rights,

following testimony that “veterans’ preference is often

ignored or too easily evaded, and redress for veterans

who are wronged is often inadequate.” Veterans’ Preference: Hearing Before the Subcomm. on Civil Service

of the H. Comm. on Gov’t Reform and Oversight, 104th

Cong. 20, at 1 (2nd Sess. 1996) (statement of Rep.

—8—

John L. Mica). Through VEOA, Congress sought to

“provide preference eligible veterans with a method

for seeking redress where their veterans’ preference

rights have been violated.” Kirkendall, 479 F.3d at

837. As part of this goal, Congress gave the MSPB “the

power to decide cases brought by preference eligibles

and certain other veterans who allege a violation of

their employment rights.”7

In light of Congress’s special solicitude for veterans and their rights, this Court has consistently

recognized that “provisions for benefits to members of

the Armed Services are to be construed in the beneficiaries’ favor.” King v. St. Vincent’s Hosp., 502 U.S.

215, 220 n.9 (1991); see also Ala. Power Co. v. Davis,

431 U.S. 581, 584 (1977) (“‘This legislation is to be liberally construed for the benefit of those who left

private life to serve their country in its hour of great

need.’”) (quoting Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285 (1946)).

Congress enacted both USERRA and VEOA with

knowledge of Irwin v. Department of Veterans Affairs’

settled holding that equitable tolling is presumptively

available in suits against the federal government. See

498 U.S. 89, 95–96 (1990). And Congress subjected

veterans’ claims under these statutes to the 60-day

time limit of 5 U.S.C. §7703(b)(1)(A) with no indication that it sought to restrict the availability of

7 Veterans’ Preference: Hearing Before the Subcomm. on Econ.

Opportunity of the H. Comm. on Veterans’ Affairs, 110th Cong.

25, at 25 (1st Sess. 2007) (statement of Hon. Neil A.G. McPhie),

https://archives-veterans.house.gov/witness-testimony/hon-neilag-mcphie (last visited June 18, 2018).

—9—

equitable tolling. Indeed, the Federal Circuit previously recognized that because “[t]he purpose of the

VEOA is to assist veterans in obtaining gainful employment with the federal government and to provide

a mechanism for enforcing this right …[,] [i]t defies

logic to suppose that when Congress adopted the

VEOA in 1998, well after the Supreme Court’s decision in Irwin, it intended” to foreclose equitable tolling

to such veterans. Kirkendall, 479 F.3d at 841 (holding

that equitable tolling applies to the appeal period under the VEOA); see id. at 843 (“Even if this were a

close case, which it is not, the canon that veterans’

benefits statutes should be construed in the veteran’s

favor would compel us to find that section 3330a is

subject to equitable tolling.”).

The history and structure of the CSRA, USERRA,

and VEOA all demonstrate that Congress did not intend to create traps for the unwary or misinformed.

Mechanisms to help abate some of the CSRA’s complexity are even built into the statute, demonstrating

Congress’s intent to have these cases heard on the

merits. See 5 U.S.C. § 7702(f) (savings provision for

timeliness purposes when litigant erroneously files in

incorrect forum).

Likewise, nothing in Section 7703(b)(1)(A), the

provision governing appeals from the MSPB, suggests

that Congress wanted to impart harsh jurisdictional

consequences on federal employees. Rather, Congress

purposefully made the MSPB appeals regime applicable to veterans’ claims under USERRA and VEOA—

legal regimes intended to be specially protective of

claimants and to which the pro-veteran canon of construction of King, 502 U.S. at 220 n.9, should apply.

—10—

See also, e.g., Hodge v. West, 155 F.3d 1356, 1362 (Fed.

Cir. 1998) (“This court and the Supreme Court both

have long recognized that the character of the veterans’ benefits statutes is strongly and uniquely proclaimant.”); McKnight v. Gober, 131 F.3d 1483, 1485

(Fed. Cir. 1997) (finding that “if there is ambiguity in

the statute, ‘interpretive doubt is to be resolved in the

veteran’s favor’” (quoting Brown v. Gardner, 513 U.S.

115, 118 (1994))).

In sum, Congress’s repeated enactment of legislation to assist veterans and to provide them with

means of redress demonstrates its intent that legal

matters affecting veterans’ rights be subject to equitable considerations such as equitable tolling. The

Federal Circuit’s decision in Jones impedes Congress’s

goal to create an avenue for veterans to appeal their

USERRA and VEOA claims.

II.

The Decision in Jones Contravenes

Henderson.

In Henderson v. Shinseki, this Court held that veterans’ appeals from the Board of Veterans’ Appeals to

the U.S. Court of Appeals for Veterans Claims are

subject to equitable tolling. 562 U.S. at 436, 441–42.

In doing so, this Court reiterated that filing deadlines

are subject to equitable tolling absent a “‘clear’ indication that Congress wanted the rule to be

‘jurisdictional.’” Id. at 436 (citation omitted). Applying

the pro-veteran canon of construction, this Court

found no indication that a filing time limit for veterans was intended to “carry the harsh consequences

that accompany the jurisdictional tag.” Id. at 444.

—11—

Further, in reviewing its controlling precedent,

this Court explicitly rejected rule—adopted by the

Federal Circuit in Jones—that, under Bowles v. Russell, 551 U.S. 205 (2007), statutory appeal deadlines

are per se jurisdictional. Id. at 436. Rather, this Court

distinguished Bowles as involving a special “type” of

deadline—for appeals “from one court to another

court”—that Congress intended to pose a jurisdictional bar. Id. Most recently in Hamer v.

Neighborhood Housing Services of Chicago, this Court

affirmed this distinction, emphasizing that the “clear

indication” analysis applies unless the time limit concerns an appeal from “one Article III court to another.”

138 S. Ct. at 20 & n.9 (citation omitted).

The Federal Circuit’s holding violates this Court’s

decision in Henderson v. Shinseki in two ways: (1) by

deeming a deadline jurisdictional absent a finding of

any “clear indication” by Congress to treat it as such;

and (2) by failing to consider Congress’s longstanding

intent that statutes affecting veterans be construed in

veterans’ favor.

First, as in Henderson, there is no clear indication

that Congress wanted the appeals deadline to be jurisdictional. Rather, the CSRA’s plain language and

structure evidence that Congress wanted equitable

tolling to apply.

For instance, the provision providing the time

limit for appeals, 5 U.S.C. § 7703(b)(1)(A), “does not

speak in jurisdictional terms or refer in any way to the

jurisdiction” of the court. Henderson, 562 U.S. at 438.

Instead, Section 7703(b)(1)(A) states only that “any

petition for review shall be filed within 60 days after

—12—

the Board issues notice of the final order or decision of

the Board.”8

Additionally, as in Henderson, the appeal filing

deadline is in a different section of the U.S. Code from

the provision conferring subject matter jurisdiction on

the Federal Circuit to review final decisions of the

MSPB, 28 U.S.C. § 1295(a)(9). Compare 5 U.S.C.

§ 7703 (“Judicial review of decisions of the Merit Systems Protection Board”) with 28 U.S.C. § 1295

(“Jurisdiction of the United States Court of Appeals

for the Federal Circuit”); see Henderson, 562 U.S. at

439 (finding that the deadline’s placement in the “Procedure” subchapter, not the “Organization and

Jurisdiction” subchapter indicates that Congress regarded the 120-day limit as a non-jurisdictional rule).

Second, given the CSRA’s applicability to

USERRA and VEOA, the deadline for appeals from

the MSPB should be construed in veterans’ favor. In

determining whether Congress intended the deadline

at issue in Henderson to be jurisdictional, this Court

gave weight to Congress’s “solicitude” for veterans,

Henderson, 562 U.S. at 440, and the fact that “the veterans benefits program[] [was] ‘unusually protective’

of claimants,” id. at 437 (citation omitted). This Court

considered Congress’s longstanding intent that veterans be treated preferentially under the review

schemes it enacts. See id. at 440. All of these factors,

which the Court found “most telling” in analyzing

8 Though the provision uses the word “shall,” this Court made

clear in Henderson that the use of “shall” does not render a time

limit jurisdictional: “we have rejected the notion that ‘all mandatory prescriptions, however emphatic, are … properly typed

jurisdictional.’” Henderson, 562 U.S. at 439 (citation omitted).

—13—

Congress’s intent, id., should apply here as Section

7703(b)(1)(A) governs the deadline for appeals of veterans’ USERRA and VEOA claims.

In sum, the decision in Jones misinterprets

Bowles—despite Hamer’s affirmation of the limited

extent of Bowles’s reach—and overlooks Congress’s

longstanding solicitude for protecting veterans’ rights.

III.

The Elimination Of Equitable Tolling

Would Thwart Congress’s Goal Of Ensuring Fair And Equitable Treatment

Of Veterans.

The Federal Circuit’s decision, if not reversed,

would contravene Congress’s goal of ensuring fair and

equitable treatment of veterans. MSPB appeals can

present a “procedural morass” for claimants. Veterans

often proceed pro se and disproportionately face deployment or medical issues that make navigating that

morass even more difficult. The doctrine of equitable

tolling should be available in such circumstances.

Veterans must navigate a “procedural

morass” to adjudicate their claims before the MSPB.

The MSPB was established under the CSRA, a remedial regime designed to protect federal employees.

See S. Rep. No. 95-969; see also 5 U.S.C.

§ 2301(b)(8)(A) (under governing merit systems principles, employees should be “protected against

arbitrary action, personal favoritism, or coercion for

partisan political purposes”). The CSRA codifies the

60-day time limit for appeals from the MSPB. See 5

U.S.C. § 7703(b)(1)(A).

—14—

Despite Congress’s intent that the CSRA protect

federal employees, the statute imposes a complex and

confusing set of procedures that are difficult for both

courts and parties to navigate. Courts have acknowledged that this process is a “procedural morass” or

“procedural maze” for litigants, Valentine-Johnson,

386 F.3d at 802, 805, and that “the provisions that

structure both administrative and judicial review of

adverse personnel actions form a complicated tapestry” of procedural rules, Butler, 164 F.3d at 637.

Compounding this complexity, at least 50 percent

of claimants proceed through this process pro se. See

generally MSPB, Congressional Budget Justification

FY 2018, at 12 (“Pro se appellants do not generally

have equal knowledge of the case filing process or

equal access to the information available, especially if

they are stationed overseas.”).9 This Court has recognized that construing filing deadlines as jurisdictional

is “particularly inappropriate” for a system in which

“laymen, unassisted by trained lawyers, initiate the

process.” Zipes v. Trans World Airlines, Inc., 455 U.S.

385, 397 (1982). Rather, complex remedial schemes,

like the CSRA, “must be accessible to individuals who

have no detailed knowledge of the relevant statutory

mechanisms and agency processes.” Fed. Express, 552

U.S. at 403 (citation omitted).

Veterans are not trained to navigate the procedural hurdles of the MSPB claims process, and the

complex nature of the CSRA can lead litigants to miss

Available at https://www.mspb.gov/MSPBSEARCH/viewdocs.aspx?docnumber=1412494&version=1417936&application

=ACROBAT.

—15—

filing deadlines through no fault of their own. In Valentine-Johnson, for instance, the Sixth Circuit heard

an Air Force employee’s discrimination claims under

principles of equity when the employee “was unsuccessful in navigating the procedural maze for the

processing of a mixed case because of erroneous advice

given to her by the MSPB Administrative Judge (AJ)

hearing her claims.” 386 F.3d at 802.

To punish veterans who fail to grasp the CSRA’s

mechanisms—mechanisms sufficiently complex as to

challenge even the courts at times—undermines Congress’s express intent to protect these litigants. The

CSRA’s many nuances should not preclude merits review by an Article III court when the equities warrant.

See Conoco, Inc. v. U.S. Foreign-Trade Zones Bd., 18

F.3d 1581, 1585 (Fed. Cir. 1994) (“It is well established that judicial review of agency action is to be

presumed, absent clear and convincing evidence of

Congressional intent to the contrary.”).

Veterans disproportionately suffer

cognitive impairments and other circumstances that can inhibit their

ability to pursue claims and meet filing deadlines.

Forty percent of veterans employed in the federal

government are disabled.10 In particular, veterans

disproportionately suffer from diseases, including

post-traumatic stress disorder (PTSD) and traumatic

10 See U.S. Office of Pers. Mgmt., The Employment of Veterans in

the Federal Executive Branch for FY 2016, supra n.4, at 2.

—16—

brain injury (TBI), that can impede their ability to

understand and meet rigid filing deadlines. More than

850,000 veterans are compensated for PTSD;11 more

than 375,000 veterans and active duty personnel have

been diagnosed with TBI since 2000.12

Veterans with PTSD and TBI often are significantly impaired in their ability to concentrate and

carry out daily tasks.13 Even veterans with only mild

brain injuries may experience intellectual impairment and difficulty with memory, attention, and

planning.14 These are, however, the exact capabilities

a layperson needs to navigate an unfamiliar “procedural maze” like the CSRA.

In addition, many veterans and military servicemembers move frequently or need to travel for

medical treatment to address service-related injuries,

making it even harder for them to be aware of and fulfill statutory deadlines—especially given that claims

(like Jones’s) can take several years to resolve. Servicemembers seeking military leave benefits, for

11 See U.S. Dep’t of Veterans Affairs, VA Benefits & Health Care

Utilization, https://www.va.gov/vetdata/docs/pocketcards/fy2016

q4.pdf (last updated July 22, 2016).

12 See Defense and Veterans Brain Injury Ctr., DoD Worldwide

Numbers for TBI, http://dvbic.dcoe.mil/dod-worldwide-numberstbi (last visited June 18, 2018).

13 See Nat’l Inst. of Mental Health, Post-Traumatic Stress

Disorder, https://www.nimh.nih.gov/health/topics/post-traumaticstress-disorder-ptsd/index.shtml (last updated Feb. 2016); see

also Veterans Health Initiative, Traumatic Brain Injury 59–60

(Apr. 2010), https://www.publichealth.va.gov/docs/vhi/traumatic-brain-injury-vhi.pdf.

14 See Veterans Health Initiative, Traumatic Brain Injury, supra

n.13, at 39–40.

—17—

instance, may be deployed overseas and not able to receive mail regularly at the time of the MSPB’s

decision. Likewise, veterans with federal civilian jobs

on overseas assignment may experience mail delays.

And veterans whose medical conditions require hospitalization or rehabilitation may not be able, over a

particular 60-day period, to give a jurisdiction-preserving action their immediate attention.

The availability of Article III judicial

review of MSPB decisions is an important safeguard for veterans’ rights.

Given the importance of Article III judicial review

for these claims, the availability of equitable tolling is

vital to ensure that veterans’ claims are heard.

On numerous occasions, the Federal Circuit has

reversed MSPB decisions denying veterans’ claims

under USERRA and VEOA. For instance, a veteran

had to appeal twice to the Federal Circuit after the

MSPB denied his USERRA discrimination claim and

found that he had waived his USERRA rights by failing to raise them while on active duty in an overseas

military deployment. See Erickson v. U.S. Postal

Serv., 636 F.3d 1353, 1356 (Fed. Cir. 2011). The Federal Circuit reversed both of the MSPB’s decisions.

See id. at 1356, 1359. The veteran in Erickson was fortunate to be represented by counsel, but had he acted

pro se, as many veterans do, and missed a procedural

deadline, judicial review would have been denied and

the violation of his USERRA rights left unchecked.

Similarly, in Lynch v. Department of the Army,

107 M.S.P.R. 224, 225 (M.S.P.B. 2007), the veterans’

—18—

preference rights of a disabled veteran were vindicated only after the Federal Circuit reversed the

MSPB’s summary order denying his request for corrective action under VEOA. Had this veteran been in

the hospital for his service-related disability when the

adverse MSPB decision issued, his meritorious appeal

might have been foreclosed under the decision below.

Congress did not intend to deny Article III review

in circumstances like these. However, following its

precedential decision in Fedora v. Merit Systems Protection Board, 848 F.3d 1013, 1015 (Fed. Cir. 2017),

cert. denied, 138 S. Ct. 755 (2018), the Federal Circuit

has routinely dismissed untimely MSPB appeals by

pro se veterans without considering equitable tolling

arguments. See, e.g., Brenndoerfer v. USPS, 693 Fed.

App’x. 904 (Fed. Cir. 2017); Jarmin v. OPM, 678 Fed.

App’x. 1023 (Fed. Cir. 2017). These rulings threaten

to bar equitable tolling, not only for appellants from

the MSPB to the Federal Circuit, but for all appellants

within that court’s jurisdiction—including veterans

appealing from the U.S. Court of Appeals for Veterans

Claims. 38 U.S.C. § 7292 (a), (c), (d).

Further, under Federal Circuit precedent, the

deadline to appeal from the MSPB is even more draconian than the deadline to appeal from a federal

district court to a federal appellate court, which permits extensions for “excusable neglect or good cause.”

See 28 U.S.C. § 2107. To conclude, as the Federal Circuit did, that appeals from the MSPB under the

CSRA—a remedial scheme designed to protect federal

employees, including veterans—can never be tolled is

not what Congress provided or intended.

—19—

CONCLUSION

The decision below undermines the ability of veterans to obtain core statutory preferences and

benefits to which they are entitled, frustrating Congress’s longstanding efforts to secure and protect

veterans’ rights. This Court’s review is needed to correct the Federal Circuit’s continued misapplication of

Bowles and continued misunderstanding of Henderson, even after this Court’s decision in Hamer. This

Court should grant the petition for a writ of certiorari

and reverse the decision of the Federal Circuit.

Respectfully submitted,