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

No. 17-557

IN THE

Supreme Court of the United States

________________

LAURENCE M. FEDORA,

Petitioner,

v.

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

________________

REPLY BRIEF OF PETITIONER

________________

Christopher J. Cariello

ORRICK, HERRINGTON &

SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

Eric A. Shumsky

Counsel of Record

Thomas M. Bondy

Hannah Garden-Monheit

Alec Schierenbeck

ORRICK, HERRINGTON &

SUTCLIFFE LLP

1152 15th Street NW

Washington, DC 20005

(202) 339-8400

eshumsky@orrick.com

Counsel for Petitioner

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... ii

INTRODUCTION ..................................................... 1

I.

The Decision Below Departs From This

Court’s Precedents. ............................................. 3

II. The Lower Courts Are Riddled With

Confusion. ........................................................... 8

III. This Case Is An Ideal Vehicle For

Resolving This Important And Recurring

Question. ........................................................... 10

CONCLUSION ........................................................ 12

ii

TABLE OF AUTHORITIES

Cases

Arbaugh v. Y & H Corp.,

546 U.S. 500 (2006) .................................................5

Bowen v. City of New York,

476 U.S. 467 (1986) .................................................5

Bowles v. Russell,

551 U.S. 305 (2007) .................................................2

Clean Water Action Council of Ne.

Wisconsin, Inc. v. EPA,

765 F.3d 749 (7th Cir. 2014) ...............................7, 9

Eberhart v. United States,

546 U.S. 12 (2005) ...................................................7

Gonzalez v. Thaler,

565 U.S. 134 (2012) .................................................6

Hamer v. Neighborhood Hous. Servs. of

Chicago,

138 S. Ct. 13 (2017) .........................................2, 3, 7

Henderson v. Shinseki,

562 U.S. 428 (2011) ..................................... 2, 3, 5, 7

Irwin v. Dep’t of Veterans Affairs,

498 U.S. 89 (1990) ...............................................2, 3

Jones v. Dep’t of Treasury,

No. 02-1184, 2002 WL 31655853 (D.C.

Cir. Nov. 22, 2002) ...................................................6

iii

King v. Dole,

782 F.2d 274 (D.C. Cir. 1986)................................10

Kontrick v. Ryan,

540 U.S. 443 (2004) .................................................7

Lindahl v. OPM,

470 U.S. 768 (1985) .............................................2, 4

Oja v. Dep’t of the Army,

405 F.3d 1349 (Fed. Cir. 2005) ................................7

Pinat v. OPM,

931 F.2d 1544 (Fed. Cir. 1991) ..............................11

Ruiz-Martinez v. Mukasey,

516 F.3d 102 (2d Cir. 2008) .....................................9

Smith-Penny v. SEC,

672 F. App’x 19 (D.C. Cir. 2016) .............................6

Steel Co. v. Citizens for a Better

Environment,

523 U.S. 83 (1998) ...................................................5

Stone v. INS,

514 U.S. 386 (1995) .................................................5

United States v. Kwai Fun Wong,

135 S. Ct. 1625 (2015) .............................................2

Util. Air Regulatory Grp. v. EPA,

744 F.3d 741 (D.C. Cir. 2014)..................................9

iv

Statutes

5 U.S.C. § 7703(a)(1) ...................................................4

5 U.S.C. § 7703(b)(1) ................... 4, 5, 6, 7, 8, 9, 10, 11

5 U.S.C. § 7703(b)(2) .............................................9, 10

28 U.S.C. § 1295(a)(9) .............................................6, 8

Rules

Fed. R. App. P. 26(b)(2) .............................................. 7

Other Authorities

Respondent’s Br., Henderson v. Shinseki,

No. 09-1036, 2010 WL 4312791 (Nov.

1, 2010) .................................................................... 7

INTRODUCTION

The petition demonstrates persistent confusion

about an important and recurring question: How to

assess whether the time to appeal an agency’s decision is “jurisdictional” in nature. Specifically, should

a court apply the categorical rule from Bowles (in

which case tolling is unavailable), or the rebuttable

presumption announced in Irwin that such provisions

are non-jurisdictional (and therefore can be tolled)? In

a published decision in Mr. Fedora’s case, over multiple dissents, the Federal Circuit gave its answer: It

applied Bowles. It did so even though the Federal Circuit itself had misled pro se litigants, like Mr. Fedora,

about the relevant timing provision. Pet. 33-34. Not

only is this a gross injustice; the Federal Circuit’s answer conflicts with Irwin and subsequent decisions of

this Court.1

The government now has filed a mini-merits brief

that, like the sharply divided decision it defends, suggests that the Court’s guidance is falling on deaf ears.

And in so doing, the government’s brief has done more

to confirm the need for this Court’s review than we

ever could. By now, the proper mode for analyzing jurisdiction should be clear. First, a court must ask

1 In addition to Fedora, petitions for certiorari have been

filed to challenge the follow-on dispositions in Vocke (No. 17544), and in Musselman v. Dep’t of Army (No. 17-570), which was

voluntarily dismissed in an unpublished order in light of Fedora.

The briefs in opposition in Fedora and Vocke are near-identical,

so Mr. Fedora and Mr. Vocke are filing reply briefs that differ

only in non-substantive ways. This petition cites the petition, opposition, and petition appendix in Vocke as “Vocke Pet.,” “Vocke

Opp.,” and “Vocke App.”

2

whether a timing provision “govern[s] the transfer of

adjudicatory authority from one Article III court to

another.” Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 20 (2017). If so, the provision is

jurisdictional. Bowles v. Russell, 551 U.S. 305 (2007).

If not, there is a “rebuttable presumption” that tolling

is available, which can be overcome by a clear statement that Congress intended the time limit to be jurisdictional. Irwin v. Dep’t of Veterans Affairs, 498

U.S. 89, 95-96 (1990); see also, e.g., Hamer, 138 S. Ct.

at 20 & n.9; United States v. Kwai Fun Wong, 135 S.

Ct. 1625, 1630-32 (2015).

Yet confusion reigns. In Fedora, the Federal Circuit held that Bowles governs, and so never even

looked “‘to see if there is any clear indication that Congress wanted the rule to be jurisdictional.’” Pet. App.

41a (Wallach, J.) (quoting Henderson v. Shinseki, 562

U.S. 428, 436 (2011)). As Judge Plager explained, the

majority opinion reads as if 15 years of the Court’s decisions never happened. Pet. App. 10a-31a. Now the

government takes the same approach. But the centerpiece of its argument—Lindahl v. OPM, 470 U.S. 768

(1985)—wasn’t even cited by the Federal Circuit. That

is proof positive that something is seriously amiss.

The government’s argument also is wrong; Lindahl

does not address whether a time limit is jurisdictional, let alone apply the Court’s “newer thinking

about jurisdiction,” Pet. App. 21a (Plager, J.). And

nothing else in the government’s lengthy argument

justifies the Federal Circuit’s elevation of and reliance

on Bowles.

The government freely admits—indeed, it repeatedly trumpets—that the Federal Circuit has applied

3

its rule “for over 30 years.” E.g., Opp. 28. That’s exactly the problem, as the dissenting judges explained.

Pet. App. 28a-31a. And as an array of amici have explained, that rule applies to millions of veterans and

federal employees, who may lose their only opportunity for independent Article III review of agency action even when equity demands otherwise. See also

Pet. 21-24. The Court has intervened repeatedly to

“bring some discipline to the use of th[e] term” “jurisdictional,” Henderson, 562 U.S. at 435-36, and it

should do so here.

I.

The Decision Below Departs From This

Court’s Precedents.

1. The Federal Circuit misread Bowles to mean

that all “[a]ppeal periods to Article III courts” are jurisdictional, even those governing review of administrative agencies. Pet. App. 4a. Some courts agree with

this broad reading of Bowles; others do not. Pet. 2529; infra 8-10. As the petition explains, this holding

directly contravenes the Court’s clear admonition

that “Bowles did not hold categorically that every

deadline for seeking judicial review in civil litigation

is jurisdictional. Instead, Bowles concerned an appeal

from one court to another court.” Henderson, 562 U.S.

at 436 (emphasis added); Hamer, 138 S. Ct. at 20

(Bowles applies to time limits “governing the transfer

of adjudicatory authority from one Article III court to

another”); see Pet. 15. But outside of that situation, a

time limit is not jurisdictional unless Congress clearly

said so. Irwin, 498 U.S. at 95-96. The government

therefore is wrong that Bowles broadly “held that the

4

statutory time limit for filing a notice of appeal in a

civil case is jurisdictional.” Opp. 13.2

2. The government invokes other precedents that,

it says, demonstrate that the Federal Circuit didn’t

need to look for a clear congressional statement. Its

arguments are wrong, and if they weren’t, the ad hoc

regime it advocates would cry out for review and repair.

First, the government says the Court already has

decided that the timing provision in § 7703(b)(1) is jurisdictional. Opp. 10-11, 18, 21-22. That would be surprising if it were true, given that the decision below

didn’t even cite Lindahl (unlike the government,

which cites it six times, see Opp. IV). But elsewhere,

the government has to admit that Lindahl does “not

specifically discuss Section 7703(b)(1)(A)’s timing requirement.” Opp. 11. Exactly. Lindahl said nothing

about whether the timing provision in § 7703(b)(1) is

“jurisdictional” (as opposed to claims-processing). Rather, it considered a different question entirely—

whether a separate provision, § 7703(a)(1), limited

the Federal Circuit’s ability to review certain claims

by retired employees that otherwise would fall within

§ 7703(b)(1). The Court rejected that argument, concluding that the Federal Circuit had the power—the

“jurisdiction”—to hear such claims. 470 U.S. at 79192. The government’s argument thus amounts to

wordplay over the term “jurisdiction,” “a word of

2 The government elsewhere suggests the rule is that a provision “govern[ing] an appeal from a quasi-judicial agency to the

court of appeals[] is jurisdictional.” Opp. 19-20 n.7. It never reconciles its proposals.

5

many, too many, meanings,” Steel Co. v. Citizens for a

Better Environment, 523 U.S. 83, 90 (1998). At most,

Lindahl (decided in 1985) is an example of the “sometimes … profligate … use of the term” that the Court

has sought to eradicate. Arbaugh v. Y & H Corp., 546

U.S. 500, 510 (2006).3

Next, the government points to Stone v. INS, 514

U.S. 386 (1995), and Henderson, 562 U.S. 428, as obviating the need to look for a clear statement. Opp.

13-14. But the Court rejected this argument in Henderson itself. There, the government likewise “relie[d]

on Stone” to argue that “Bowles’ reasoning extends to

the judicial review of administrative decisions.” 562

U.S. at 437. But Henderson rejected the government’s

argument that Bowles ends the inquiry, and applied

the clear-statement rule. And it dismissed Stone’s “descri[ption]” of an administrative-review deadline “as

‘mandatory and jurisdictional’” as having been made

“without elaboration.” Id.

Finally, the government seeks to avoid the clearstatement rule—and to distinguish cases applying

tolling to administrative-review deadlines, like

Bowen v. City of New York, 476 U.S. 467 (1986), see

Opp. 20—on the theory that it “makes good sense” to

treat § 7703(b)(1) as jurisdictional. Opp. 16. It says

that equitable tolling could involve “cumbersome”

fact-finding. Id. But (as here), tolling often involves

undisputed facts, and appellate courts have had no

3 The same is true of the old non-Federal-Circuit decisions

the government invokes (at 12), the latest of which was decided

in 1983, and each of which characterized § 7703(b)(1) as “jurisdictional” in a single, unreasoned sentence.

6

difficulty assessing tolling in the first instance. E.g.,

Smith-Penny v. SEC, 672 F. App’x 19 (D.C. Cir. 2016)

(per curiam); Jones v. Dep’t of Treasury, No. 02-1184,

2002 WL 31655853, at *1 (D.C. Cir. Nov. 22, 2002)

(per curiam). As the government itself recognizes, if

additional factfinding is required, that can be conducted in the agency. Opp. 16-17.

3. Most of the government’s argument is about

these cases—under which, it says, no clear-statement

rule even applies. It does ultimately acknowledge the

existence of the clear-statement rule, Opp. 21, and

says a little about § 7703(b)(1)’s text and structure,

Opp. 11-12. But as we have explained (Pet. 19-20), the

statute contains no clear statement that this timing

provision is jurisdictional.

The government points to 28 U.S.C. § 1295(a)(9),

which establishes subject-matter jurisdiction; notes

that it cross-references § 7703(b)(1); and on that basis

argues that § 7703(b)(1) is jurisdictional. Opp. 12. But

the Court already has rejected this type of argument.

See Gonzalez v. Thaler, 565 U.S. 134, 145 (2012)

(holding one provision nonjurisdictional “even

though” it cross-referenced a jurisdictional provision).

On the contrary, when the provision at issue (here,

§ 7703(b)(1)) does not speak in jurisdictional terms,

and a separate provision (i.e., § 1295(a)(9)) does, “the

contrast” instead “show[s] that Congress would have

spoken in clearer terms if it intended [the provision]

to have similar jurisdictional force.” 565 U.S. at 143.

Next, the Government looks to the “origins” of

§ 7703(b)(1), which it says “replaced” review provi-

7

sions—notably the Hobbs Act—that it says are jurisdictional. Opp. 15. But to support its claim that the

Hobbs Act’s provision was “jurisdictional,” the government cites not judicial authority, but the Court’s

recitation of the government’s argument in Henderson,

562 U.S. at 437; see Respondent’s Br., Henderson v.

Shinseki, No. 09-1036, 2010 WL 4312791, at *17.

What’s more, that argument was based on lines of antiquated precedent that other courts since have rejected. See Clean Water Action Council of Ne.

Wisconsin, Inc. v. EPA, 765 F.3d 749, 752 (7th Cir.

2014) (the D.C. Circuit’s Hobbs Act precedent relied

on “exactly the sort of thing that the Supreme Court

has held does not mark a rule as jurisdictional”). This

further conflict and confusion reaffirms the need for

review.4

4. Not only does the government fail to demonstrate a “clear statement”; it ignores the many aspects

4 The government elsewhere argues in a footnote (at 15 n.6)

that § 7703(b)(1) is jurisdictional because Federal Rule of Appellate Procedure 26(b)(2) prohibits extending the time to file a petition for review. But that court-promulgated rule is not a clear

statement from Congress. Time limits imposed by rule, rather

than by statute, are not jurisdictional. Hamer, 138 S. Ct. at 1718; Kontrick v. Ryan, 540 U.S. 443, 452-53 (2004); Eberhart v.

United States, 546 U.S. 12, 19 (2005).

That same error infects Oja v. Department of the Army, 405

F.3d 1349, 1360 (Fed. Cir. 2005), which the government cites to

show the consistency of the Federal Circuit’s approach. Opp. 34. All Oja shows is that the Federal Circuit has consistently gotten § 7703(b)(1) wrong. The court in Oja did apply the clearstatement rule, but erroneously relied on Rule 26(b)(2) to give

§ 7703(b)(1) jurisdictional effect, contrary to Kontrick, Eberhart,

and Hamer.

8

of the statute’s text, structure, and history that show

§ 7703(b)(1) to be non-jurisdictional. Pet. 19-20. As

noted above (at 6), § 7703(b)(1) is separate from the

grant of subject-matter jurisdiction in 28 U.S.C.

§ 1295(a)(9). In addition, the purpose of the Civil Service Reform Act (CSRA) was to protect employees’ interest in employment—to protect and expand, not cut

off, their access to independent Article III courts.

Nat’l Treasury Emps. Union (NTEU) Br. 11-16; Pet.

App. 30a n.8 (Plager, J.); but cf. Opp. 18-20 (suggesting that the CSRA is not claimant-protective).

Section 7703(b)(1) is utterly unlike filing a notice

of appeal in “ordinary civil litigation,” Opp. 19. Rather, it is a litigant’s only chance for independent Article III review of arbitrary agency decisionmaking.

Congress, acting against a background presumption

that tolling is available in suits against the government, “purposefully made [§ 7703(b)(1)] … applicable

to … legal regimes intended to be specially protective

of claimants”—including USERRA and the Veterans

Employment Opportunities Act. See Nat’l Veterans

Legal Servs. Program (NVLSP) Br. 9-10. That makes

it especially unlikely that Congress intended to attach

harsh jurisdictional consequences to § 7703(b)(1).

Certainly Congress did not say so clearly. The government has not identified a clear statement, and the

Federal Circuit didn’t even look.

II. The Lower Courts Are Riddled With

Confusion.

As the petition explains, the Federal Circuit is not

alone in its misunderstanding. The circuits are confused about how to treat time limits for appeals from

9

agencies to federal appellate courts. Pet. 24-29. Some

courts, like the Federal Circuit, have found in Bowles

a categorical rule that all appeals to Article III courts

are jurisdictional. E.g., Ruiz-Martinez v. Mukasey,

516 F.3d 102, 118-19 (2d Cir. 2008). Others apply the

clear-statement rule that the Court requires. E.g.,

Clean Water Action Council, 765 F.3d at 751-53. Still

others continue to apply dusty precedents that “predated” the Court’s “recent cases that … tightened the

definition of when a rule is considered jurisdictional.”

Util. Air Regulatory Grp. v. EPA, 744 F.3d 741, 751

(D.C. Cir. 2014) (Kavanaugh, J., concurring).

Tellingly, the government never seriously disputes that there are multiple conflicts concerning timing provisions for appealing agency action to Article

III courts. Instead, it says this case isn’t about “those

other disagreements.” Opp. 22. Yes, obviously this

isn’t a Clean Air Act case. We cited these cases (see

Pet. 30-32) because they vividly illustrate the confusion about how to treat timing provisions governing

judicial review of agency decisions.5

The confusion is not so far removed from this case

as the government suggests. There is a 4-2 circuit

split over whether the time limit in § 7703(b)(1)’s

neighboring provision, § 7703(b)(2), is jurisdictional.

5 The government similarly minimizes those conflicts as the

product of “the particular provision at issue in each case.” Opp.

26. For example, it says Ruiz-Martinez merely reaffirmed earlier

statute-specific holdings, rather than being more broadly about

Bowles. Id. On the contrary, Ruiz-Martinez turned on the same

overreading of Bowles at issue here. 516 F.3d at 118.

10

Pet. 30. The government asserts that § 7703(b)(2) “differ[s] in important ways.” Opp. 23. That’s not the view

of the D.C. Circuit, which has treated the provisions

as “analogous” for jurisdictional purposes, and observed that “constructions accorded to section

7703(b)(1) apply equally to like terms in section

7703(b)(2).” King v. Dole, 782 F.2d 274, 275-76 (D.C.

Cir. 1986). Clarification is needed, and this case is an

uncommonly good vehicle to provide it.

III. This Case Is An Ideal Vehicle For Resolving

This Important And Recurring Question.

It is hard to imagine more “compelling factual arguments” than the ones presented here. Vocke App.

6a. The Federal Circuit itself, through the guide it

published for pro se litigants, misled Mr. Fedora and

Mr. Vocke about the filing deadline. Pet. 7-8; Vocke

Pet. 7-8. The record on this subject is clear and undisputed. Pet. 7-8 (reliance on Pro Se Guide, in addition

to mail delay); Vocke Pet. 7-8 (reliance on Pro Se

Guide). The government identifies no obstacles to review.6 It does suggest that it “is far from clear” that

petitioners ultimately will be entitled to equitable

tolling. Opp. 28. But reasonable jurists disagree, Pet.

App. 10a-11a (Plager, J.); Vocke App. 6a, and in any

event, how to apply the correct legal rule is a question

for another day.

6 Counsel in Musselman, however, have mused that Fedora

(but not Vocke) “may” be a “mixed case” subject to § 7703(b)(2),

thereby “raising questions” about jurisdiction. Musselman Reply

11 n.7. That is simply incorrect, see Pet. 7 n.2, as the government

expressly has acknowledged. Opp. 3 n.2; Pet. App. 34a (Federal

Circuit order).

11

The government also suggests that the Court’s attention is not needed because the Federal Circuit has

corrected the erroneous instruction in its Pro Se

Guide. Opp. 28. That the Federal Circuit has stopped

affirmatively misleading pro se claimants does not fix

that court’s erroneous legal rule, or prevent its future

application to other meritorious litigants. Cf. Pinat v.

OPM, 931 F.2d 1544, 1546 (Fed. Cir. 1991) (the jurisdictional nature of § 7703(b)(1) precluded equitable

relief despite “disastrous typhoons”); NVLSP Br. 1418 (explaining the difficulties veterans “disproportionately … face” in meeting the § 7703(b)(1) time

bar).

Most fundamentally, the question whether

§ 7703(b)(1)’s timing provision is jurisdictional is “exceptionally important.” Pet. App. 38a (Wallach, J.).

The government does not dispute that it potentially

affects millions of federal employees, or that it governs their only opportunity to obtain Article III review

of arbitrary administrative action. NVLSP Br. 2;

NTEU Br. 1-2; Am. Fed’n of Gov’t Emps. Br. 1-3. Nor

does the government dispute that § 7703(b)(1) applies

to multiple statutes in addition to the CSRA, see Pet.

22 n.5—including actions to protect the rights of the

half-million military veterans in federal service.

NVLSP Br. 2-5. And because the Federal Circuit has

exclusive appellate jurisdiction over numerous administrative bodies and Article I courts, its categorical rule threatens to curtail review well beyond the

MSPB, see Fed. Circuit Bar Ass’n (FCBA) Br. 15-16—

a concern the government answers with silence.

12

Now is the appropriate time to address this issue,

and this case is ideally suited for doing so. The government itself notes that, in Fedora, the Federal Circuit applied the same approach it has used “for over

30 years,” Opp. 27-28, as though foolish consistency

were a virtue. What it signals is that this Court’s instructions are being ignored. The Federal Circuit has

given its definitive ruling, unmoved by decades of intervening precedents, four months of en banc consideration, and multiple impassioned dissents. Nothing

will change unless and until the Court steps in.

CONCLUSION

For the foregoing reasons, the petition should be

granted.

Respectfully submitted,

Christopher J. Cariello

ORRICK, HERRINGTON &

SUTCLIFFE LLP

51 West 52nd Street

New York, NY 10019

December 22, 2017

Eric A. Shumsky

Counsel of Record

Thomas M. Bondy

Hannah Garden-Monheit

Alec Schierenbeck

ORRICK, HERRINGTON &

SUTCLIFFE LLP

1152 15th Street NW

Washington, DC 20005

(202) 339-8400

eshumsky@orrick.com