Amicus Curiae Brief — Laurence M. Fedora, Petitioner v. Merit Systems Protection Board, et al.

Supreme Court briefNov 13, 2017

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No. 17-557

IN THE

Supreme Court of the United States

______________________

LAURENCE M. FEDORA,

Petitioner,

MERIT SYSTEMS PROTECTION BOARD AND

UNITED STATES POSTAL SERVICE,

Respondents.

__________________________

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

Joint 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 Considerations In Henderson Apply

Here. ...................................................................11

III. The Elimination Of Equitable Tolling

Would Thwart Congress’s Goal Of

Ensuring Fair And Equitable Treatment

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

Veterans already bear the burden of

navigating a “procedural morass” in

adjudicating their claims before the

MSPB. .........................................................14

Veterans disproportionately suffer

cognitive impairments and other

circumstances that can affect their

ability to pursue claims and meet

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

The availability of Article III judicial

review of MSPB decisions is an

important safeguard for veterans’

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

CONCLUSION ........................................................19

—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, 11, 12, 19

Brown v. Gardner,

513 U.S. 115 (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.,

486 U.S. 107 (1988) .................................... 6, 15, 16

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, 16

Fedora v. Merit Sys. Protection Bd., 848

F.3d 1013 (Fed. Cir. 2017) ..................................... 2

—iii—

Fishgold v. Sullivan Drydock & Repair

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

Hamer v. Neighborhood Hous. Servs. of

Chi., No. 16–658, ___ S. Ct. ____

(Nov. 8, 2017) ......................................................... 5

Henderson v. Shinseki,

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

Hodge v. West,

155 F.3d 1356 (Fed. Cir. 1998) ...................... 10, 11

Irwin v. Dep’t of Veterans Affairs, 498

U.S. 89 (1990)……………… ............................. 9, 10

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) (en

banc) ............................................................. 5, 9, 10

Lynch v. Dep’t of the Army,

107 M.S.P.R. 224 (M.S.P.B. 2007) ....................... 19

McKnight v. Gober,

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

Mitchell v. Cohen,

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

Pers. Adm’r of Mass. v. Feeney,

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

—iv—

United States v. Wong,

135 S. Ct. 1625 (2015) .......................................... 13

Valentine-Johnson v. Roche,

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

Statutes and Regulations

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

5 U.S.C. § 3330a .................................................... 5, 10

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. §§ 4311–16 .................................................. 4

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

38 U.S.C. § 4324 .......................................................... 4

Civil Service Reform Act (CSRA), 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

—v—

Uniformed Services Employment and

Reemployment Rights Act of 1994

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

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

Veterans Employment Opportunities

Act of 1998 (VEOA), Pub. L. No. 105339, 112 Stat. 3182 ...................................... passim

Veterans’ Preference Act, Pub. L. No.

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

Vietnam Era Veterans’ Readjustment

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

88 Stat. 1578 (1974) ............................................... 7

5 C.F.R. § 1201.3(b)(1) ............................................. 4, 5

Congressional Authorities

137 Cong. Rec. H2972–80 (daily ed. May

14, 1991) ................................................................. 4

139 Cong. Rec. S5181–91 (daily ed. Apr.

29, 1993) ................................................................. 7

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

2000) ....................................................................... 3

146 Cong. Rec. S9212–13 (daily ed.

Sept. 25, 2000) ........................................................ 3

H.R. Rep. No. 103-65 (1993)........................................ 7

H.R. Rep. No. 78-1289 (1944)...................................... 8

—vi—

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. (2nd Sess.

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

Veterans’ Preference: Hearing Before the

Subcomm. on Econ. Opportunity of

the H. Comm. on Veterans’ Affairs,

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

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. for Mental Health, PostTraumatic Stress Disorder,

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

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

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

Governmentwide Veterans’

Recruitment & Employment

—vii—

Strategic Plan for FY 2010-2012

(2010) ...................................................................... 2

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

Protecting the Rights of

Servicemembers,

http://www.justice.gov/crt/publicatio

ns/servicemembers_booklet.pdf ............................ 3

VA Benefits & Health Care Utilization,

U.S. Dep’t of Veterans Affairs,

https://www.va.gov/vetdata/docs/pocketcards/fy2016q4.pdf .................... 17

Veterans Health Initiative, Traumatic

Brain Injury (Apr. 2010),

https://www.publichealth.va.gov/docs/vhi/traumaticbrain-injury-vhi.pdf ............................................. 17

—viii—

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 Respondents have consented to its filing.

Amici submit this brief on behalf of Petitioner

Laurence Fedora because the rule adopted by the Federal Circuit in Fedora v. Merit Systems Protection

Board, 848 F.3d 1013 (Fed. Cir. 2017), results in the

denial of judicial review of agency decisions that

would affect amici’s core constituencies—United

States military veterans. The Merit Systems Protection Board (MSPB), a quasi-judicial 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. Nearly half a million veterans are employed

in federal agencies across the country, comprising

more than one out of every four federal workers.4

If allowed to stand, the Federal Circuit’s decision

would preclude judicial review of claims by veterans

like Mr. Fedora, who often proceed unrepresented.

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. §§ 43014335).

3 Pub. L. No. 105-339, 112 Stat. 3182.

4 See U.S. Office of Pers. Mgmt., The Governmentwide Veterans’

Recruitment & Employment Strategic Plan for FY 2010–2012, 2

(2010), https://www.fedshirevets.gov/pdf/Vets_Initiative_Strategic_Plan.pdf (last visited Nov. 7, 2017).

—2—

INTRODUCTION AND

SUMMARY OF ARGUMENT

Petitioner Fedora and the dissents in the Federal

Circuit’s initial and en banc decisions have explained

the legal errors in the decision below. Amici write to

demonstrate further that Congress did not and could

not have intended the interpretation of 5 U.S.C.

§ 7703(b)(1)(A) adopted by the Federal Circuit, 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 Congress’s longstanding

solicitude for veterans leads it to “‘place a thumb on

the scale in the veteran’s favor’” when enacting legislation that affects veterans, Henderson, 562 U.S. at

440 (citation omitted), and to ensure 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, http://www.justice.gov/crt/publications/servicemembers_booklet.pdf (last visited Nov. 7, 2017).

—3—

I. To further protect, assist, and reward veterans

for their service, Congress enacted USERRA and

VEOA.

A. USERRA guarantees servicemembers an expansive right to take military leave from their civilian

jobs, to be reemployed promptly upon returning from

military leave, and to be free of discrimination based

on service to our country. 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”).

The MSPB hears the claims of veterans denied the

benefits to which they are entitled under USERRA by

federal employers, with appeal rights to the Federal

Circuit. 38 U.S.C. § 4324; 5 C.F.R. § 1201.3(b)(1).

B. VEOA gives qualified veterans a favorable position in competing for federal employment, with the

aim of assisting veterans in readjusting to civilian life

and rewarding them for their service to our country.

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]

—4—

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).

The MSPB hears claims of veterans denied their

veterans’ preference rights under VEOA, with appeal

rights to the Federal Circuit. 5 U.S.C. § 3330a(d)(1); 5

C.F.R. § 1201.3(b)(1).

In Henderson, this Court explained that statutes

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., No. 16–658, ___ S.

Ct. ____, slip op. at 8 n.9 (Nov. 8, 2017). Applying the

longstanding “‘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

the “appeal 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

foreclosing 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.

II. A decision that equitable tolling is never permissible in appeals of MSPB decisions before the

Federal Circuit would have a devastating impact on

—5—

veterans with meritorious claims. Though Congress

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

enabling statute for the MSPB—to protect federal employees, 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 noted 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 (like Fedora)—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 essential to ensuring that these veterans receive the benefits to which they are entitled.

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

—6—

ARGUMENT

Congress Has Consistently Enacted

Legislation To Support And Assist

Veterans In Their Interactions With

The Government.

The history of the government’s commitment to

veterans dates back to the earliest days of Congress.

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 through enactment of 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

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

No. 103-65, at 18 (1993).

—7—

To ensure broad application of its protections,

Congress ensured that USERRA applied 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

would be provided preferential treatment in 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

solidify and strengthen further 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. John L. Mica). Through VEOA, Congress

sought to “provide preference eligible veterans with a

—8—

method for seeking redress where their veterans’ preference rights have been violated.” Kirkendall, 479

F.3d at 837. As part of this goal, Congress conferred

upon 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 longstanding 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 available in

suits against the federal government. See 498 U.S. 89,

95–96 (1990). And Congress made veterans’ claims

under these statutes subject 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 equitable tolling.

Indeed, the Federal Circuit previously had recognized

that “[t]he purpose of the VEOA is to assist veterans

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://www.gpo.gov/fdsys/pkg/CHRG-110hhrg39450/pdf/CHRG

-110hhrg39450.pdf (last visited Nov. 7, 2017).

—9—

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 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, indicating

Congress’s aim that these cases be 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 timeliness of appeals from the

MSPB, suggests that Congress intended to impart

harsh jurisdictional consequences. 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.

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

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

—10—

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))).

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 Fedora impedes Congress’s goal

to create an avenue for veterans to appeal their

USERRA and VEOA claims.

II.

The Considerations In Henderson

Apply Here.

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 were

subject to equitable tolling. 562 U.S. 428, 436, 441–42

(2011). In doing so, and in distinguishing its prior decision in Bowles v. Russell, 551 U.S. 205 (2007)

involving time limits to appeal from a federal district

court to a federal court of appeals, this Court applied

the “‘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). This Court reiterated that filing deadlines

are not jurisdictional unless there is a “‘clear’ indication that Congress wanted the rule to be

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

—11—

These same considerations should apply to appeals of MSPB decisions. As in Henderson, there is no

clear indication of Congressional intent to make the

appeals deadline jurisdictional. Fedora’s appeal from

the MSPB, a quasi-judicial agency, is unlike the statute governing appeals “from one court to another

court” at issue in Bowles. Henderson, 562 U.S. at 436.

Rather, the statute’s plain language and its applicability to appeals of USERRA and VEOA claims

indicate that Congress intended the deadline to be

subject to equitable tolling.

When Congress intends to make a deadline jurisdictional, it does so unambiguously. Henderson

explained that Congress intends that a jurisdictional

bar apply when the statute provides that Article III

review occur “within the time and in the manner prescribed for appeal to United States courts of appeals

from United States district courts.” Id. at 438. Congress did not do so in the deadline for seeking review

of an MSPB decision. 5 U.S.C. § 7703(b)(1)(A) provides only that “any petition for review shall be filed

within 60 days after the Board issues notice of the final order or decision of the Board.”8

Additionally, as in Henderson, the provision

providing the time limit for appeals, 5 U.S.C.

§ 7703(b)(1)(A), is in a different section of the U.S.

Code from the provision conferring subject matter jurisdiction on the Federal Circuit to review final

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

clear in Henderson that use of “shall” does not render the 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).

—12—

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 suggests that Congress

regarded the 120-day limit as a claim-processing

rule); see also United States v. Wong, 135 S. Ct. 1625,

1633 (2015) (holding time bar was not jurisdictional

when “§ 2401(b) houses the FTCA’s time limitations

[and] a different section of Title 28 confers power on

federal district courts to hear FTCA claims”).

In determining whether Congress intended for the

deadline at issue in Henderson to be jurisdictional,

this Court also gave weight to Congress’s “solicitude”

for veterans, Henderson, 562 U.S. at 440, and the fact

that “the veterans benefits program[] is ‘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 its

analysis, id., should also apply here as Section

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

In sum, the Federal Circuit’s holding violates

Henderson in two ways: (a) by deeming a deadline jurisdictional absent a finding of any “clear indication”

by Congress to treat it as such; and (b) by failing to

consider Congress’s longstanding intent that statutes

affecting veterans be interpreted in veterans’ favor.

—13—

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 may face

deployment or medical circumstances that make navigating that morass even more difficult. The doctrine

of equitable tolling should be available in such circumstances.

Veterans already bear the burden of

navigating a “procedural morass” in

adjudicating 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).

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 litigants to navigate. This process has been

described as a “procedural morass” or “procedural

maze” for litigants. Valentine-Johnson, 386 F.3d at

—14—

802, 805. “[T]he provisions that structure both administrative and judicial review of adverse personnel

actions” have likewise been described as “a complicated tapestry.” Butler, 164 F.3d at 637.

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

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

an Air Force employee’s pre-termination 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.

These issues are of particular concern given the

substantial portion of claimants proceeding through

this remedial scheme pro se. See generally MSPB,

Congressional Budget Justification FY 2018, at 12

(“[A]t least half or more of the appeals filed with the

[MSPB] are from pro se appellants.”)9. The MSPB regime is one in which “‘laypersons, rather than

lawyers, are expected to initiate the process.’” Fed. Express, 552 U.S. at 402 (quoting Commercial Office, 486

U.S. at 124). Complex remedial schemes such as these

“must be accessible to individuals who have no detailed knowledge of the relevant statutory

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

=ACROBAT (last visited Nov. 7, 2017).

—15—

mechanisms and agency processes.” Id. at 403. Without equitable tolling, veterans are at risk of losing

meritorious claims, and their statutory right to judicial review, due to procedural claim processing

hurdles—an outcome inconsistent with Congress’s intent.

To punish veterans who fail to grasp the CSRA’s

mechanisms—mechanisms sufficiently complex as to

even challenge the courts at times—would undermine

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 affect their

ability to pursue claims and meet statutory filing deadlines.

Veterans disproportionately suffer from diseases,

including post-traumatic stress disorder (PTSD) and

traumatic brain injury (TBI), that may impede their

ability to understand and meet filing deadlines. More

than 850,000 veterans are compensated for PTSD;10

10 See VA Benefits & Health Care Utilization, U.S. Dep’t of

Veterans

Affairs,

https://www.va.gov/vetdata/docs/pocketcards/fy2016q4.pdf (last updated July 22, 2016).

—16—

more than 350,000 veterans and active duty personnel

have been diagnosed with TBI since 2000.11

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

carry out daily tasks.12 Even veterans with only mild

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

attention.13 These conditions can impair a veteran’s

ability to manage his or her own affairs and may make

it difficult for him or her to navigate administrative

systems with unfamiliar rules and regulations, particularly if he or she is proceeding pro se.

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

medical treatment to address service-related injuries,

making it even more difficult for them to be aware of

and fulfill statutory deadlines. Servicemembers seeking denial of military leave benefits may be deployed

overseas and not receiving mail regularly at the time

of the MSPB’s decision. Likewise, veterans with federal civilian jobs on overseas assignment may

11 See DoD Worldwide Numbers for TBI, Defense and Veterans

Brain Injury Center, http://dvbic.dcoe.mil/dod-worldwide-numbers-tbi (last visited Nov. 7, 2017).

12 See Nat’l Inst. for 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 (last visited Nov. 7, 2017).

13 See Veterans Health Initiative, Traumatic Brain Injury, supra

n.12, at 39–40.

—17—

experience attendant mail delays. Additionally, veterans whose medical conditions require hospitalization

or rehabilitation may not be in a position 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

important to ensure that veterans’ claims can be

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 discrimination claim under

USERRA and subsequently 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 enough to have had

counsel representing him, but had he proceeded pro

se, as many veterans do, and relied on incorrect guidance in the Federal Circuit’s Guide, as Petitioner

Fedora did, then the opportunity for Federal Circuit

review would have been foreclosed to him under the

rationale below, and the violation of his USERRA

rights left unchecked.

—18—

Likewise, in Lynch v. Department of the Army, 107

M.S.P.R. 224, 225 (M.S.P.B. 2007), the veterans’ 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 the VEOA. But if this veteran had been in

the hospital for his service-connected disability when

the adverse MSPB decision issued, his meritorious appeal would have been foreclosed under the holding

below.

Congress did not intend to foreclose Article III review in circumstances such as these. But under the

decision below, the claims-processing statute in 5

U.S.C. § 7703(b)(1)(A) is even more draconian than

the jurisdictional statute at issue in Bowles. That statute, 28 U.S.C. § 2107, provides that the time to appeal

can be extended in certain circumstances upon a

showing of “excusable neglect or good cause.” To conclude, as the decision below did, that there can never

be excusable neglect or good cause to toll appeals from

the MSPB is not what Congress provided or intended.

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 misapplication of Bowles

and misunderstanding of Henderson. This Court

should grant the petition for a writ of certiorari and

reverse the decision of the Federal Circuit.

—19—

Respectfully submitted,