Amicus Curiae Brief — Stuart R. Harrow, Petitioner v. Department of Defense

No. 23-21

In the

Supreme Court of the United States

________________

STUART R. HARROW,

v.

Petitioner,

DEPARTMENT OF DEFENSE,

________________

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Federal Circuit

________________

BRIEF OF THE FEDERAL CIRCUIT BAR

ASSOCIATION AS AMICUS CURIAE

SUPPORTING PETITIONER

________________

JOHN C. O’QUINN

WILLIAM H. BURGESS

Counsel of Record

MARK WIGLEY

KIRKLAND & ELLIS LLP

1301 Pennsylvania Ave., NW

Washington, DC 20004

(202) 389-5000

wburgess@kirkland.com

January 18, 2024

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF THE ARGUMENT ........................... 2

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

I.

Treating

the

Appeal

Deadline

As

Jurisdictional Would Be Inconsistent With

the Statutory Scheme and Unfair to MSPB

Appellants, Who Are Mostly Pro Se. .................. 3

II. The Court Should Not Treat 28 U.S.C.

§ 1295’s Numerous Cross-References to

Other Statutes As Clear Statements from

Congress That the Associated Deadlines Are

Jurisdictional. ...................................................... 9

III. Courts of Appeals Can Evaluate Tolling

Arguments, Even When the Arguments

Implicate Facts or Evidence. ............................. 12

CONCLUSION ......................................................... 15

ii

TABLE OF AUTHORITIES

Cases

Acheson Hotels, LLC v. Laufer,

144 S. Ct. 18 (2023) ................................................. 14

Apple Inc. v. Qualcomm Inc.,

992 F.3d 1378 (Fed. Cir. 2021),

cert. denied, 142 S. Ct. 2868 (2022) ........................ 13

Argentum Pharms. LLC v. Novartis Pharms.

Corp., 956 F.3d 1374 (Fed. Cir. 2020),

cert. denied, 141 S. Ct. 1685 (2021) ........................ 13

AVX Corp. v. Presidio Components, Inc.,

923 F.3d 1357 (Fed. Cir. 2019) ............................... 13

Baker v. MSPB,

No. 23-1585, ECF #9 (Fed. Cir. July 6, 2023) .......... 7

Bender v. Williamsport Areas Sch. Dist.,

475 U.S. 534 (1986) ................................................. 12

Brenndoerfer v. USPS,

693 F. App’x 904 (Fed. Cir. 2017) ............................. 8

Burnett v. N.Y. Cent. R.R. Co., 380 U.S. 424 (1965) ..... 6

Casillas v. Dep’t of Veterans Affs.,

No. 22-2264, ECF #13 (Fed. Cir. Feb. 16, 2023) ...... 7

Chaudhuri v. Dep’t of Veterans Affs.,

No. 23-1890, ECF #13 (Fed. Cir. Oct. 19, 2023) .. 7, 8

iii

Chowdhury v. MSPB,

No. 23-1973, ECF #19 (Fed. Cir. Oct. 23, 2023) ...... 7

Cuozzo Speed Techs., LLC v. Lee,

579 U.S. 261 (2016) ................................................. 13

Edwards v. OPM,

No. 22-2245, ECF #12 (Fed. Cir. Mar. 27, 2023) ..... 7

English v. Pabst Brewing Co.,

828 F.2d 1047 (4th Cir. 1987) ................................... 6

Fed. Educ. Ass’n—Stateside Region v. Dep’t of Def.,

Domestic Dependents Elementary & Secondary

Schs., 898 F.3d 1222 (Fed. Cir. 2018),

reh’g denied, 909 F.3d 1141 (Fed. Cir. 2019),

cert. denied 139 S. Ct. 2616 ................................. 9, 11

Freeman v. OPM,

No. 23-2000, ECF #15 (Fed. Cir. Oct. 30, 2023) ...... 7

Gen. Elec. Co. v. United Techs. Corp.,

928 F.3d 1349 (Fed. Cir. 2019),

cert. denied, 140 S. Ct. 2820 (2020) ........................ 13

Glus v. Brooklyn E. Dist. Terminal,

359 U.S. 231 (1959) ................................................... 6

Henderson v. Shinseki, 562 U.S. 428 (2011) ........ 3, 4, 14

Hobson v. Dep’t of Def.,

No. 23-1258, ECF #17 (Fed. Cir. Apr. 21, 2023) ...... 7

Jolley v. HUD,

No. 22-2061, ECF#31 (Fed. Cir. June 7, 2023) .... 7, 8

iv

Jones v. MSPB,

No. 23-1703, ECF #21 (Fed. Cir. Nov. 6, 2023) ....... 7

JTEKT Corp. v. GKN Auto. LTD.,

898 F.3d 1217 (Fed. Cir. 2018),

cert. denied, 139 S. Ct. 2713 (2019) ........................ 13

Kitlinski v. DOJ,

No. 23-1961, ECF #14 (Fed. Cir. July 10, 2023) ...... 7

Love v. Pullman Co., 404 U.S. 522 (1972) ..................... 3

Markman v. Westview Instruments, Inc.,

517 U.S. 370 (1996) ................................................. 10

Menominee Indian Tribe of Wis. v. United States,

577 U.S. 250 (2016) ................................................. 14

ModernaTx, Inc. v. Arbutus Biopharm. Corp.,

18 F.4th 1352 (Fed. Cir. 2021) ................................ 13

Momenta Pharms., Inc. v. Bristol-Myers Squibb

Co., 915 F.3d 764 (Fed. Cir. 2019) .......................... 13

Norwegian Cruise Line Holdings Ltd. v. State

Surgeon Gen., 55 F.4th 1312 (11th Cir. 2022) ....... 14

Obiedzinski v. USPS,

No. 17-1375, ECF #9 (Fed. Cir. Mar. 9, 2017) ......... 7

Phigenix, Inc. v. Immunogen, Inc.,

845 F.3d 1168 (Fed. Cir. 2017) ............................... 14

Samsung Elecs. Co. v. Infobridge Pte. Ltd.,

929 F.3d 1363 (Fed. Cir. 2019) ............................... 13

v

Sierra Club v. EPA,

292 F.3d 895 (D.C. Cir. 2002) ........................... 12, 14

South Corp. v. United States,

690 F.2d 1368 (Fed. Cir. 1982) ............................... 10

Swartwout v. OPM,

No. 17-1522, ECF #12 (Fed. Cir. July 21, 2017) ...... 8

Zipes v. Trans World Airlines, Inc.,

455 U.S. 385 (1982) ................................................... 3

Statutes

2 U.S.C. § 1407 .............................................................. 10

5 U.S.C. § 7701 ................................................................ 4

5 U.S.C. § 7703 ........................................ 2, 6, 7, 9, 12, 15

15 U.S.C. § 1071 ............................................................ 11

19 U.S.C. § 1337 ............................................................ 11

28 U.S.C. § 1295 .............................................. 2, 9, 10, 11

28 U.S.C. § 2645 ............................................................ 11

31 U.S.C. § 755 .............................................................. 10

35 U.S.C. §§ 141-144 ..................................................... 11

35 U.S.C. § 311 .............................................................. 13

35 U.S.C. § 319 .............................................................. 13

38 U.S.C. § 7263 .............................................................. 4

vi

38 U.S.C. § 7264 .............................................................. 4

38 U.S.C. § 7292 ............................................................ 10

41 U.S.C. § 7107 ............................................................ 10

42 U.S.C. § 300aa-12(f) ................................................. 10

42 U.S.C. § 300aa-21(a) ................................................ 10

Rules

Ct. Fed. Cl. R. 58.1 ........................................................ 10

D.C. Cir. R. 15(c)(2) ....................................................... 14

Regulations

5 C.F.R. § 1201.24 ........................................................... 5

5 C.F.R. § 1201.31(b) ....................................................... 4

5 C.F.R. § 1201.56 ........................................................... 5

5 C.F.R. § 1201.116 ......................................................... 5

37 C.F.R. § 2.145(d)(1)................................................... 11

Other Authorities

Rochelle Cooper Dreyfuss, The Federal Circuit: A

Case Study in Specialized Courts,

64 N.Y.U. L. Rev. 1 (1989) ...................................... 10

MSPB, Congressional Budget Justification

FY 2022 (May 2021)

[https://tinyurl.com/5e53mxs2] ................................. 4

vii

MSPB, Judges’ Handbook (Oct. 2019)

[https://tinyurl.com/wmu7frwy] ................................ 5

MSPB, Jurisdiction

[https://tinyurl.com/36zdzkdp] .................................. 4

INTEREST OF AMICUS CURIAE1

The Federal Circuit Bar Association (FCBA) is a

national organization for the bar of the United States

Court of Appeals for the Federal Circuit. Started in

1985, the FCBA unites different groups across the

nation that practice before the Federal Circuit. The

FCBA facilitates pro bono representation for

claimants such as veterans, patent applicants, and

government employees who have potential or active

litigation in the Federal Circuit’s jurisdiction, with a

view to strengthening the litigation process at that

court. This includes representation for Merit Systems

Protection Board (MSPB) claimants, either at the

agency or on appeal to the Federal Circuit. Federal

Circuit precedent treating certain deadlines as

jurisdictional affects the FCBA’s ability to provide

meaningful representation for those claimants.

Because the Respondent is part of the federal

government, FCBA members and leaders who are

federal government employees have not participated

in the FCBA’s decision whether to participate as an

amicus, or in preparation of this brief.

1 No counsel for any party authored this brief in whole or in part,

and no person or entity other than amicus or its counsel made

any monetary contribution to the preparation or submission of

this brief.

2

SUMMARY OF THE ARGUMENT

The Court should hold that 5 U.S.C.

§ 7703(b)(1)(A)’s 60-day deadline to appeal from the

MSPB to the Federal Circuit is a claim-processing

rule, not a jurisdictional requirement. In addition to

the points in Petitioner’s brief, three further

considerations favor that result.

First, treating the filing deadline as jurisdictional

would be inconsistent with the MSPB adjudication

process and unfair to many litigants. In contrast to

district-court litigation, MSPB proceedings are

relatively informal and claimant-friendly. Statutes

and regulations establish flexible deadlines, informal

rules, appellant-friendly burdens of proof, and

asymmetric appeal rights. Consistent with the legal

structure of the process, approximately half of MSPB

appellants are pro se, and many others proceed with

non-attorney representatives. Here, as in cases like

Zipes and Henderson, treating the filing deadline as

jurisdictional would clash with the statutory scheme

and be ill-suited to a largely pro se-driven process. It

would also be especially unfair to those pro se litigants

who miss their appeal deadlines by de minimis

amounts of time, for reasons attributable to the

government.

Second, 28 U.S.C. § 1295(a)’s text and structure

reflect the unique nature of the Federal Circuit’s

jurisdiction. The numerous cross-references in section

1295(a)’s fourteen subsections reflect only Congress’

intent to state which cases may come to the Federal

Circuit. The Court should not hold—explicitly or

implicitly—that any deadlines contained in the

3

numerous cross-referenced

jurisdictional.

statutes

are

now

Third, the Court should reject the government’s

suggestion that appellate courts are unsuited to

consider factual or evidentiary questions associated

with equitable tolling. Henderson rejects that

argument. And courts of appeals can, and often do,

analyze facts and evidence in the first instance when

necessary to resolve threshold issues such as standing,

mootness, or tolling. Examples abound from the

Federal and D.C. Circuits, and refute any suggestion

that equitable tolling is somehow beyond an appellate

court’s competence.

ARGUMENT

I.

Treating

the

Appeal

Deadline

As

Jurisdictional Would Be Inconsistent With

the Statutory Scheme and Unfair to MSPB

Appellants, Who Are Mostly Pro Se.

1. This Court’s precedent recognizes that

“technicalities are particularly inappropriate in a

statutory scheme in which laymen, unassisted by

trained lawyers, initiate the process.” Love v. Pullman

Co., 404 U.S. 522, 527 (1972). Zipes v. Trans World

Airlines, Inc., 455 U.S. 385, 397-98 (1982) applied that

“guiding principle” to rule that a Title VII filing

deadline was not jurisdictional.

In Henderson v. Shinseki, 562 U.S. 428, 440-41

(2011), this Court applied similar reasoning to hold

that the deadline to appeal to the Court of Appeals for

Veterans

Claims

(Veterans

Court)

is

not

jurisdictional. The veterans claims system is informal,

non-adversarial, and pro-claimant in ways that

“contrast … dramatic[ally]” with “ordinary civil

4

litigation.” Id. at 440. Among other things, the

statutory scheme requires the VA to assist the veteran

in developing his claims, and provides asymmetric

appeal rights to the Veterans Court. Id. at 440-41. The

veteran may appeal an adverse decision, but the VA

may not. Id. at 441. Henderson surveyed these and

other features of the veterans claims system, and

concluded that “[r]igid jurisdictional treatment of the

120-day period for filing a notice of appeal in the

Veterans Court would clash sharply with this

scheme.” Id. That was so, even though proceedings at

the Veterans Court itself are formal and adversarial.

Id. at 432-33; see also, e.g., 38 U.S.C. §§ 7263 (VA

represented by general counsel at the Veterans

Court), 7264 (Veterans Court proceedings follow

formal rules).

Zipes and Henderson support reversal here. As in

Zipes, the deadline here is embedded within “a

statutory scheme in which laymen, unassisted by

trained lawyers, initiate the process.” Around two

million federal employees have the right to appeal to

the MSPB from adverse employment actions by

government agencies. See MSPB, Jurisdiction,

available at https://tinyurl.com/36zdzkdp. “[A]bout

50% of appeals filed with the agency are from pro se

appellants—employees representing themselves.”

MSPB, Congressional Budget Justification FY 2022 at

18 (May 2021), available at https://tinyurl.com/

5e53mxs2. That does not mean the remaining 50%

have lawyers. MSPB appellants may “be represented

by an attorney or other representative.” 5 U.S.C.

§ 7701(a)(2) (emphasis added). Any person may be a

“representative” “as long as that person is willing and

available to serve.” 5 C.F.R. § 1201.31(b); see also

5

MSPB, Judges’ Handbook, at 11 (Oct. 2019) (“A party

may choose any representative who is willing and

available to serve…”), available at https://tinyurl.com/

wmu7frwy.

As in Henderson, rigid treatment of the deadline to

appeal from the MSPB would “clash sharply” with the

statutory scheme. As Petitioner explains (at 3-5, 2021), and this brief will not recapitulate, MSPB

procedures are relatively informal and reflect

solicitude for federal employees—including by

requiring detailed notifications to employees of their

rights; by treating deadlines as flexible, waivable, or

excusable for good cause; and by placing the burden of

proof on the agency to show that its actions were

lawful. In addition to features Petitioner identifies,

other regulations underscore the informal, claimantfriendly nature of the process.2 And similar to the

scheme the Court considered in Henderson, the

statute provides asymmetric appeal rights. “Any

employee or applicant … adversely affected or

aggrieved by a final order or decision … may obtain

2 E.g., 5 C.F.R. § 1201.24(a) (allowing an appeal to “be in any

format, including letter form”), (b) (allowing an employee to raise

a claim or defense during the initial MSPB conference even if he

did not raise it in his appeal, and to raise a new claim after the

conference for good cause); id. § 1201.56(d) (requiring AJs to

inform the parties of the burdens of proof for the few issues for

which the employee bears the burden); id. § 1201.111(c) (Board

decision ordering interim relief must give employee specific

notice that he is entitled to relief, even if the government

petitions for review of the decision); id. § 1201.116(a) (requiring

agency to certify that it has provided employee any requisite

interim relief if it petitions for review), (d) (employee may request

dismissal of a petition for review if agency has not provided

required interim relief).

6

judicial review” as of right. 5 U.S.C. § 7703(a)(1)

(emphasis added). But the government may only

obtain judicial review if OPM’s Director determines

that the MSPB decision misinterpreted a legal

provision “affecting personnel management” and “will

have a substantial impact on a civil service” law or

policy. Id. § 7703(d)(1), (2). And whether to hear a

petition for review by the government is ultimately “at

the discretion of the [c]ourt of [a]ppeals,” rather than

of right. Id.

2. Harsh jurisdictional treatment of Section

7703(b)(1)(A)’s deadline would not only clash with the

statutory scheme; it would be particularly unfair here.

Many pro se appellants to the Federal Circuit miss

their deadlines by de minimis amounts, and for

reasons that are either attributable to the government

or that would be unreasonable to hold against pro se

appellants. If the deadline here were not

jurisdictional, the Federal Circuit would at least have

the latitude to permit the government to acquiesce to

or waive de minimis objections to untimeliness. Or it

could consider the government’s responsibility for the

delay, consistent with equitable tolling principles.

Equitable tolling protects the plaintiff who “has not

slept on his rights, but … has been prevented from

asserting them.” Burnett v. N.Y. Cent. R.R. Co., 380

U.S. 424, 429 (1965). And it vindicates the principle

that defendants should not escape liability by

preventing the plaintiff from meeting a filing deadline.

English v. Pabst Brewing Co., 828 F.2d 1047, 1049

(4th Cir. 1987); cf. Glus v. Brooklyn E. Dist. Terminal,

359 U.S. 231, 232-33 (1959).

7

One way the government often contributes to

MSPB appellants missing their filing deadlines is

through mailing delays. In part because the Federal

Circuit construes 5 U.S.C. § 7703(b)(1)(A) to impose a

deadline for receipt by the court rather than a mailbox

rule, it frequently happens that pro se appellants mail

their petitions to the Federal Circuit before the

deadline, but miss the deadline by a week or less, and

have their appeals dismissed sua sponte.3

Ironically, the United States Postal Service is a

frequent respondent in MSPB appeals, and sometimes

the beneficiary of its own delays in delivering petitions

to the Federal Circuit. In Obiedzinski v. USPS, No. 171375, ECF #9 (Fed. Cir. Mar. 9, 2017), a pro se

3 See Casillas v. Dep’t of Veterans Affs., No. 22-2264, ECF #13

(Fed. Cir. Feb. 16, 2023) (pro se appellant); Edwards v. OPM, No.

22-2245, ECF #12 (Fed. Cir. Mar. 27, 2023) (pro se appellant);

Hobson v. Dep’t of Def., No. 23-1258, ECF #17 (Fed. Cir. Apr. 21,

2023) (pro se appellant; petition for review mailed, but delivered

two days late); Jolley v. HUD, No. 22-2061, ECF#31 (Fed. Cir.

June 7, 2023) (pro se appellant; petition for review mailed, but

delivered one day late); Baker v. MSPB, No. 23-1585, ECF #9

(Fed. Cir. July 6, 2023) (pro se appellant); Kitlinski v. DOJ, No.

23-1961, ECF #14 (Fed. Cir. July 10, 2023) (pro se appellant;

petition for review mailed, but delivered two days late);

Chaudhuri v. Dep’t of Veterans Affs., No. 23-1890, ECF #13 (Fed.

Cir. Oct. 19, 2023) (pro se appellant; petition for review sent via

first-class mail, but delivered seven days late; tracking

demonstrates USPS took eleven days to deliver petition from

Texas to Washington, D.C.); Chowdhury v. MSPB, No. 23-1973,

ECF #19 (Fed. Cir. Oct. 23, 2023) (pro se appellant); Freeman v.

OPM, No. 23-2000, ECF #15 (Fed. Cir. Oct. 30, 2023) (pro se

appellant; petition for review mailed, but delivered three days

late); Jones v. MSPB, No. 23-1703, ECF #21 (Fed. Cir. Nov. 6,

2023) (pro se appellant; petition for review mailed, but delivered

three days late).

8

appellant proceeding against the Postal Service

mailed his petition seven days before the deadline, but

had his appeal dismissed because the Postal Service

did not deliver it until ten days later. See also, e.g.,

Brenndoerfer v. USPS, 693 F. App’x 904 (Fed. Cir.

2017) (similar). Even an appellant who used express

mail, eight days before the appeal deadline, was

unable to escape the same fate. Swartwout v. OPM,

No. 17-1522, ECF #12 (Fed. Cir. July 21, 2017). And

just last year, a pro se appellant showed, with tracking

information, that he mailed his petition three days

before the deadline via first class mail, but the Postal

Service took eleven days to deliver it to Washington,

D.C. Chaudhuri v. Dep’t of Veterans Affs., No. 23-1890,

ECF #11 (Fed. Cir. July 13, 2023); see also Jolley v.

HUD, No. 22-2061, ECF #31 (Fed. Cir. June 7, 2023)

(at the time of mailing, Postal Service estimated a

timely delivery date, but ultimately delivered the

petition one day late).

This case appears to involve another instance of

inordinate government delay contributing to a pro se

appellant missing his deadline. While Petitioner’s

request for full Board review was pending in 2017, the

MSPB lost its quorum and was unable to issue

decisions until March 2022. MSPB, Lack of Quorum

and the Inherited Inventory: Chart of Cases Decided

and Cases Pending, available at http://tinyurl.com/

2ed7p75k. After five years of silence, the MSPB issued

a decision out of the blue and relied on its e-mail

system to alert Petitioner to the result. Whatever

might be said about a professional attorney’s duty in

ordinary civil litigation to update contact information

and monitor a dormant docket for five years—it is

unlikely that Congress intended the pro se appellants

9

at the MSPB to suffer the automatic, case-ending

consequences imposed here.

II. The Court Should Not Treat 28 U.S.C.

§ 1295’s Numerous Cross-References to

Other Statutes As Clear Statements from

Congress That the Associated Deadlines

Are Jurisdictional.

28 U.S.C. § 1295(a)(9) states that the “Federal

Circuit shall have exclusive jurisdiction— … of an

appeal from a final order or final decision of the Merit

Systems Protection Board, pursuant to sections

7703(b)(1) and 7703(d) of title 5.”

The government and the Federal Circuit have

contended that because 1295(a) is a jurisdictional

statute, the simple cross-reference to section

7703(b)(1) is a “clear statement” that section

7703(b)(1)(A)’s filing deadline is jurisdictional. See

BIO 10 (“[T]he time bar is jurisdictional because it is

linked to Section 1295(a)(9)’s grant of jurisdiction by

an express cross-reference” (cleaned up)); Fed. Educ.

Ass’n—Stateside Region v. Dep’t of Def., Domestic

Dependents Elementary & Secondary Schs., 898 F.3d

1222, 1225-26 (Fed. Cir. 2018), reh’g denied, 909 F.3d

1141 (Fed. Cir. 2019), cert. denied 139 S. Ct. 2616

[hereinafter Graviss]. Petitioner’s opening brief

explains the main problems with that argument,

predominantly relying on the text of sections

1295(a)(9) and 7703(b)(1)(A) (at 11-20).

Another reason to reject the government’s crossreference argument is that incorporating section

7703(b)(1)(A)’s

deadline

into

section

1295’s

jurisdictional grant runs counter to the broader

context of section 1295(a) and the Federal Circuit’s

10

unique jurisdiction. Congress created the Federal

Circuit in 1982 by merging and altering the Court of

Claims and the Court of Customs and Patent Appeals.

South Corp. v. United States, 690 F.2d 1368, 1369

(Fed. Cir. 1982) (en banc). To bring uniformity to

patent law, Congress gave the Federal Circuit

exclusive appellate jurisdiction over most patent

cases, including district court appeals that had

previously gone to the regional circuits. See Markman

v. Westview Instruments, Inc., 517 U.S. 370, 390

(1996). But to prevent the Federal Circuit from

becoming too isolated or specialized, Congress also

assigned it jurisdiction over orders from a complex and

diverse collection of tribunals. See Rochelle Cooper

Dreyfuss, The Federal Circuit: A Case Study in

Specialized Courts, 64 N.Y.U. L. Rev. 1, 3 (1989).

Today, the Federal Circuit’s jurisdiction includes

review of agencies’ boards of contract appeals,4 the

Office of Compliance,5 the Government Accountability

Office Personnel Appeals Board,6 the Court of Appeals

for Veterans Claims,7 the Court of Federal Claims,8

4 28 U.S.C. § 1295(a)(10) (jurisdiction); 41 U.S.C. § 7107(a) (filing

deadline).

5 2 U.S.C. § 1407(a) (jurisdiction), (b)(1) (filing deadline).

6 31 U.S.C. § 755 (jurisdiction and filing deadline).

7 38 U.S.C. § 7292(c), (d) (jurisdiction); id. § 7292(a) (“within the

time and in the manner prescribed for appeal to United States

courts of appeals from United States district courts”).

8 28 U.S.C. § 1295(a)(3) (jurisdiction); Ct. Fed. Cl. R. 58.1 (“within

the time and in the manner prescribed for appeals in [Fed. R.

App. P. 3]”); 42 U.S.C. §§ 300aa-12(f), 300aa-21(a) (jurisdiction

and filing deadline for Vaccine Act appeals).

11

the Patent Trial and Appeal Board,9 the Trademark

Trial and Appeal Board,10 the Court of International

Trade,11 and the International Trade Commission.12

Individual tribunals’ statutory schemes are scattered

throughout the U.S. Code, and include provisions for

appealing to the Federal Circuit. See, e.g., 35 U.S.C.

§§ 141-144 (Patent Office appeals); 19 U.S.C. § 1337(c)

(International Trade Commission).

28 U.S.C. § 1295(a) contains fourteen subsections,

and numerous cross-references to other statutes.

Section 1295(a)’s subsections mainly collect and list

which appeals of which decisions from which tribunals

the Federal Circuit may hear, using a “mélange of

phrasing.” Graviss, 898 F.3d at 1230 (Plager, J.,

dissenting). As Judge Plager explained in dissent in

Graviss, the “clear … purpose of § 1295(a) is to state

which cases come to the Federal Circuit, not when

they may come.” Id. at 1230 (Plager, J., dissenting).

Closer examination of the individual appeal deadlines

under this Court’s precedents may reveal which ones

Congress clearly intended to have jurisdictional

consequences. But the Court should not hold or imply

that a mere cross-reference in 28 U.S.C. § 1295(a), by

itself, is a clear statement to that effect.

9 28 U.S.C. § 1295(a)(4)(A).

10 28 U.S.C. § 1295(a)(4)(B) (jurisdiction); 37 C.F.R. § 2.145(d)(1)

(filing deadline); see also 15 U.S.C. § 1071(a).

11 28 U.S.C. §§ 1295(a)(5) (jurisdiction), 2645(c) (same deadline as

“for appeals … from the United States district courts.”).

12 28 U.S.C. § 1295(a)(6) (jurisdiction); 19 U.S.C. § 1337(c)

(deadline).

12

III. Courts of Appeals Can Evaluate Tolling

Arguments, Even When the Arguments

Implicate Facts or Evidence.

The government’s brief opposing certiorari includes

the argument that § 7703(b)(1)(A)’s deadline should be

jurisdictional because courts of appeals may find it

“more cumbersome” than district courts “to conduct

the fact-intensive inquiries that equitable tolling

requires.” BIO 13-14, 18. The government is wrong.

Courts of appeals can, and often do, analyze facts and

evidence in the first instance when necessary to

resolve threshold issues such as standing, mootness,

or tolling.

A common example is Article III standing in

administrative appeals. Administrative agencies are

not subject to Article III, so there is generally no need

for participants in agency proceedings to establish

their standing, or for the agency to consider standing.

But when a petitioner seeks judicial review in a court

of appeals, “the constitutional requirement [of]

standing kicks in.” Sierra Club v. EPA, 292 F.3d 895,

899 (D.C. Cir. 2002). If standing is not self-evident,

“the petitioner must substantiate its standing,” by

“submit[ting] additional evidence to the court of

appeals” if necessary. Id.; see also id. at 900-01. In

those cases, the court of appeals unavoidably weighs

evidence and assesses facts, as part of its “special

obligation to satisfy itself … of its own jurisdiction.”

Bender v. Williamsport Areas Sch. Dist., 475 U.S. 534,

541 (1986).

The Federal Circuit is no stranger to that scenario.

It hears hundreds of appeals each year from inter

partes reviews challenging the validity of patents at

13

the Patent Trial and Appeal Board. Any “person” other

than the patent owner can initiate proceedings. 35

U.S.C. § 311(a). The challenger “need not have a

concrete stake in the outcome; indeed, they may lack

constitutional standing.” Cuozzo Speed Techs., LLC v.

Lee, 579 U.S. 261, 279 (2016). Any “party dissatisfied

with” the final decision can appeal. 35 U.S.C. § 319. A

patent challenger’s standing to appeal an adverse

decision is often self-evident—e.g., if the challenger is

also the defendant in an infringement lawsuit. But if

standing is not self-evident, the Federal Circuit must

often assess facts and evidence in the first instance.

The Federal Circuit has considered evidence on

subjects such as the appellant’s investments, plans,

and progress toward developing potentially infringing

products,13 the appellant’s competitive relationship

with the patent owner,14 and specific terms of patent

licenses between the challenger and patent owner.15

13 E.g., Argentum Pharms. LLC v. Novartis Pharms. Corp., 956

F.3d 1374, 1377-78 (Fed. Cir. 2020), cert. denied, 141 S. Ct. 1685

(2021); Momenta Pharms., Inc. v. Bristol-Myers Squibb Co., 915

F.3d 764, 769-70 (Fed. Cir. 2019); JTEKT Corp. v. GKN Auto.

LTD., 898 F.3d 1217, 1220-21 (Fed. Cir. 2018), cert. denied, 139

S. Ct. 2713 (2019).

14 E.g., Gen. Elec. Co. v. United Techs. Corp., 928 F.3d 1349,

1353-55 (Fed. Cir. 2019), cert. denied, 140 S. Ct. 2820 (2020); AVX

Corp. v. Presidio Components, Inc., 923 F.3d 1357, 1365-67 (Fed.

Cir. 2019).

15 ModernaTx, Inc. v. Arbutus Biopharm. Corp., 18 F.4th 1352,

1359-62 (Fed. Cir. 2021); Apple Inc. v. Qualcomm Inc., 992 F.3d

1378, 1381-85 (Fed. Cir. 2021), cert. denied, 142 S. Ct. 2868

(2022); Samsung Elecs. Co. v. Infobridge Pte. Ltd., 929 F.3d 1363,

1368 (Fed. Cir. 2019).

14

The Federal Circuit’s standing decisions draw from

D.C. Circuit precedent. E.g., Phigenix, Inc. v.

Immunogen, Inc., 845 F.3d 1168, 1173 (Fed. Cir. 2017)

(discussing D.C. Circuit Sierra Club case). The D.C.

Circuit has decades of experience considering evidence

of an appellant’s standing to challenge agency action.

The D.C. Circuit’s 2002 Sierra Club decision details

procedures for substantiating standing in agency

appeals. And the court has adopted Circuit Rules and

forms specifically for that purpose. E.g., D.C. Cir. R.

15(c)(2) (docketing statement), 28(a)(7) (required

section of briefs).

Another example is mootness. When it appears that

a case may have become moot on appeal, appellate

courts (including this Court) must often accept and

review new facts and evidence. E.g., Acheson Hotels,

LLC v. Laufer, 144 S. Ct. 18 (2023); Norwegian Cruise

Line Holdings Ltd. v. State Surgeon Gen., 55 F.4th

1312, 1314-15 (11th Cir. 2022).

Equitable tolling is no more complicated, “factintensive” or “cumbersome,” BIO 13, 18, than standing

or mootness. The litigant must show “(1) that he has

been pursuing his rights diligently, and (2) that some

extraordinary circumstance stood in his way and

prevented timely filing.” Menominee Indian Tribe of

Wis. v. United States, 577 U.S. 250, 255 (2016). That

inquiry is well within the competence of a court of

appeals.

The government’s contrary suggestion, taken to its

logical conclusion, would make all appeal deadlines

presumptively jurisdictional. That result would

contravene this Court’s precedent. See Henderson, 562

U.S. at 431 (holding that the deadline to appeal a

15

decision to the United States Court of Appeals for

Veterans Claims is not jurisdictional). It would also

muddy this Court’s otherwise-clear rule for filing

deadlines.

CONCLUSION

The Court should hold that

5 U.S.C.

§ 7703(b)(1)(A)’s 60-day deadline to appeal from the

MSPB to the Federal Circuit is a claim-processing

rule, not a jurisdictional requirement.

Respectfully submitted,

January 18, 2024

JOHN C. O’QUINN

WILLIAM H. BURGESS

Counsel of Record

MARK WIGLEY

KIRKLAND & ELLIS LLP

1301 Pennsylvania Ave., NW

Washington, DC 20004

(202) 389-5000

wburgess@kirkland.com