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

Supreme Court briefJan 19, 2024

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No. 23-21

IN THE

Supreme Court of the United States

______________________

STUART R. HARROW,

Petitioner,

DEPARTMENT OF DEFENSE,

Respondent.

__________________________

On Writ of Certiorari

to the United States Court of Appeals

for the Federal Circuit

_____________

BRIEF OF AMICUS CURIAE

NATIONAL VETERANS

LEGAL SERVICES PROGRAM

IN SUPPORT OF PETITIONER

_____________

Renée Burbank

Director of Litigation

NATIONAL VETERANS LEGAL

SERVICES PROGRAM

1100 Wilson Blvd, Ste. 900

Arlington, VA 22209

(202) 265-8305

Benjamin C. Block

Counsel of Record

Eli Nachmany

COVINGTON & BURLING LLP

One CityCenter

850 Tenth Street, NW

Washington, DC 20001

bblock@cov.com

(202) 662-5205

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ....................................................... 2

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

The Veteran Canon Is One of This Court’s

Traditional Tools of Statutory

Interpretation. .....................................................7

II.

The Decision in Harrow Contravenes

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

III. The Elimination of Equitable Tolling

Would Thwart Congress’s Goal of

Ensuring Fair and Equitable Treatment

of Veterans. ........................................................ 14

Veterans must navigate a

“procedural morass” to adjudicate

MSPB claims. .............................................14

Veterans disproportionately suffer

cognitive impairments and other

circumstances that can inhibit their

ability to meet filing deadlines. .................16

—i—

The availability of Article III judicial

review of MSPB decisions is an

important safeguard for veterans’

rights. ..........................................................17

These arguments are consistent with

Arellano v. McDonough. .............................19

CONCLUSION ........................................................ 22

—ii—

TABLE OF AUTHORITIES

Page(s)

Cases

Arellano v. McDonough,

143 S. Ct. 543 (2023) ............................ 6, 19, 20, 21

Att’y Gen. of N.Y. v. Soto-Lopez,

476 U.S. 898 (1986) ................................................ 3

Boone v. Lightner,

319 U.S. 561 (1943) ................................................ 7

Bowles v. Russell,

551 U.S. 205 (2007) .......................................... 5, 11

Brenndoerfer v. USPS,

693 F. App’x. 904 (Fed. Cir. 2017) ....................... 18

Brown v. Gardner,

513 U.S. 115 (1994) .......................................... 7, 21

Butler v. West,

164 F.3d 634 (D.C. Cir. 1999) .......................... 6, 14

Coffy v. Republic Steel Corp.,

447 U.S. 191 (1980) .............................................. 21

EEOC v. Com. Off. Prods. Co.,

486 U.S. 107 (1988) ................................................ 6

Erickson v. U.S. Postal Serv.,

636 F.3d 1353 (Fed. Cir. 2011) ............................ 17

—iii—

Fed. Express Corp. v. Holowecki,

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

Fed. Educ. Ass’n – Stateside Region v.

Dep’t of Defense,

898 F.3d 1222 (Fed. Cir. 2018) ............................ 12

Fishgold v. Sullivan Drydock & Repair

Corp.,

328 U.S. 275 (1946) ............................................ 3, 7

George v. McDonough,

142 S. Ct. 1953 (2022) ............................................ 7

Hamer v. Neighborhood Hous. Servs. of

Chi.,

138 S. Ct. 13 (2017) .......................................... 4, 11

Harrow v. Dep’t of Defense,

2023 WL 1987934 (Fed. Cir. Feb. 14,

2023) ..................................................... 1, 11, 13, 22

Henderson v. Shinseki,

562 U.S. 428 (2011) .......................... 2‒5, 11‒13, 22

Jarmin v. OPM,

678 F. App’x. 1023 (Fed. Cir. 2017) ..................... 18

Jones v. HHS,

702 F. App’x 988 (Fed Cir. 2017), cert

denied, 139 S. Ct. 359 (2018) ............................... 18

King v. St. Vincent’s Hosp.,

502 U.S. 215 (1991) ................................................ 7

—iv—

Kirkendall v. Dep’t of the Army,

479 F.3d 830 (Fed. Cir. 2007) .................... 4, 10, 20

Mitchell v. Cohen,

333 U.S. 411 (1948) ................................................ 9

Nat’l Org. of Veterans’ Advocates, Inc. v.

Sec’y of Veterans Affs.,

48 F.4th 1307 (Fed. Cir. 2022)............................... 7

Pers. Adm’r of Mass. v. Feeney,

442 U.S. 256 (1979) ................................................ 9

United States v. Oregon,

366 U.S. 643 (1961) ................................................ 8

Valentine-Johnson v. Roche,

386 F.3d 800 (6th Cir. 2004) ...................... 5, 14, 15

Zipes v. Trans World Airlines, Inc.,

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

Statutes

5 U.S.C. § 2301 .......................................................... 14

5 U.S.C. § 3330a ................................................ 2, 5, 20

5 U.S.C. § 7101 ............................................................ 5

5 U.S.C. § 7702 .......................................................... 20

5 U.S.C. § 7703 ................................ 2, 5, 10‒14, 20‒21

28 U.S.C. § 1295 .................................................. 12‒13

28 U.S.C. § 2107 ........................................................ 18

—v—

38 U.S.C. § 4301 .......................................................... 9

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

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

38 U.S.C. § 5110 ........................................................ 19

38 U.S.C. § 7266 ........................................................ 12

Invalid Pensions Act, 1 Stat. 243 (1792) .................... 8

Selective Training and Service Act, Pub.

L. No. 76-783, 54 Stat. 885 (1940) ......................... 8

Veterans’ Preference Act, Pub. L. No.

78-359, 58 Stat. 387 (1944) .................................... 9

Vietnam Era Veterans’ Readjustment

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

88 Stat. 1578 (1974) ............................................... 8

Other Authorities

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

1991) ....................................................................... 4

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

1993) ....................................................................... 9

Amy Coney Barrett, Substantive

Canons and Faithful Agency, 90 B.U.

L. Rev. 109 (2010) ................................................ 21

Antonin Scalia, Assorted Canards of

Contemporary Legal Analysis, 40

Case W. Res. L. Rev. 581 (1990) ............................ 8

—vi—

Cass R. Sunstein, Nondelegation

Canons, 67 U. Chi. L. Rev. 315

(2000) ...................................................................... 8

Chadwick J. Harper, Note, Give

Veterans the Benefit of the Doubt:

Chevron, Auer, and the Veteran’s

Canon, 42 Harv. J.L. & Pub. Pol’y

931 (2019) ............................................................... 7

Dep’t of Veterans Affs. Off. of Rsch. &

Development, VA Research on Traumatic Brain Injury (TBI),

https://www.research.va.gov/topics/tbi.cfm (last visited Jan. 5, 2024) ................... 16

Erin Bagalman, Cong. Rsch. Serv.,

R40941, Traumatic Brain Injury

Among Veterans (Jan 4, 2013) ............................. 16

Lynch v. Department of the Army,

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

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

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

ics/post-traumatic-stress-disorderptsd (last visited Jan. 5, 2024) ............................ 16

MSPB, Congressional Budget

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

Supreme Court Rule 37.6............................................ 1

—vii—

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

Protecting the Rights of Servicemembers,

https://www.justice.gov/sites/default/files/crt/

legacy/2013/05/22/servicemembers_booklet.pdf (last visited Jan. 2,

2024) ....................................................................... 3

U.S. Off. of Pers. Mgmt., Employment of

Veterans in the Federal Executive

Branch: Fiscal Year 2021 (2021),

https://www.opm.gov/fedshirevets/hi

ring-officials/ved-fy21.pdf ................................ 2, 16

Veterans Affs., VA Benefits & Health

Care Utilization,

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

ketcards/fy2021q4.pdf (last updated

July 15, 2021) ....................................................... 16

Veterans Preference: Hearing Before the

Subcomm. on Civil Service of the H.

Comm. on Gov’t Reform and Oversight, 104th Cong. 1 (2d Sess. 1996) ........... 3‒4, 10

Veterans’ Preference: Hearing Before the

Subcomm. on Econ. Opportunity of

the H. Comm. on Veterans’ Affs.,

110th Cong. 25 (1st Sess. 2007)........................... 10

—viii—

INTEREST OF THE AMICUS 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 benefit; 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.

Amicus submits this brief on behalf of Petitioner

Stuart Harrow because the rule applied by the Federal Circuit in Harrow v. Department of Defense, 2023

WL 1987934 (Fed. Cir. Feb. 14, 2023), denies judicial

review of agency decisions that affect amicus’s core

constituency—United States military veterans. The

Merit Systems Protection Board (MSPB), a quasi-judicial body, hears the claims of federal employees and

applicants, including veterans’ claims under the Veterans Employment Opportunities Act of 1998

1 Pursuant to Supreme Court Rule 37.6, amicus affirms 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 amicus or its counsel made such a monetary

contribution.

(VEOA)2 and the Uniformed Services Employment

and Reemployment Rights Act of 1994 (USERRA) 3

when veterans are denied the rights to which they are

entitled by federal employers. Over 600,000 veterans

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

If allowed to stand, the Federal Circuit’s decision

would preclude judicial review of claims by veterans,

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

inconsistent with this Court’s decision in Henderson

v. Shinseki, 562 U.S. 428 (2011), and would contravene the cardinal rule of statutory interpretation that

congressional enactments should be read in such a

way as to favor veterans.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Petitioner Harrow has explained the legal errors

in the decision below. Amicus writes to demonstrate

further that Congress did not and could not have intended the Federal Circuit’s interpretation of the

deadline in 5 U.S.C. § 7703(b)(1)(A) to preclude equitable tolling, nor the adverse consequences to

veterans resulting from that interpretation.

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

§ 3330a).

3 Pub. L. No. 103-353, 108 Stat. 3149 (codified as amended at 38

U.S.C. §§ 4301–4335).

4 See U.S. Off. of Pers. Mgmt., Employment of Veterans in the

Federal Executive Branch: Fiscal Year 2021 1 (2021),

https://www.opm.gov/fedshirevets/hiring-officials/ved-fy21.pdf.

—2—

I. In recognition of the extraordinary sacrifices

made by our nation’s veterans in military service,

“Congress has enacted a number of laws specifically

designed to protect the civil rights of servicemembers,

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

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

the veteran’s favor,” Henderson, 562 U.S. at 440 (citation omitted), and expects that the legislation will “be

liberally construed for the benefit of those who left private life to serve their country in its hour of great

need,” Fishgold v. Sullivan Drydock & Repair Corp.,

328 U.S. 275, 285 (1946). This tool of interpretation,

the pro-veteran canon, reflects Congress’s longstanding commitment to our Nation’s veterans.

To further protect, assist, and reward veterans for

their service, Congress enacted VEOA and USERRA.

VEOA helps veterans readjust to civilian life and rewards them for their service to our country by giving

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

910 (1986) (plurality opinion) (“Compensating veterans for their past sacrifices by providing them with

advantages over nonveteran citizens is a longstanding

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

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

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

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

2, 2024).

—3—

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

Oversight, 104th Cong. 1 (2d Sess. 1996) (statement of

Rep. John L. Mica). VEOA “provide[s] preference eligible veterans with a method for seeking redress

where their veterans’ preference rights have been violated in hiring decisions made by the federal

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

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

USERRA guarantees servicemembers expansive

rights to take military leave from their civilian jobs,

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

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

Cong. Rec. H2972, H2978 (daily ed. May 14, 1991)

(statement of Rep. Penny) (discussing “the importance

of employment and reemployment protection for

members of the uniformed services”).

Because the statute at issue before the Court in

this case concerns the regime pursuant to which veterans may vindicate their rights to federal

employment under VEOA and USERRA, the Court

should apply the pro-veteran canon here if there were

any interpretive doubt.

II. In Henderson, this Court explained that statutory filing deadlines should not be interpreted to

create jurisdictional bars for litigants unless Congress

clearly intended that result. 562 U.S. at 434–35; see

also Hamer v. Neighborhood Hous. Servs. of Chi., 138

S. Ct. 13, 25 n.9 (2017).

—4—

Applying the well-established “canon that provisions for benefits to members of the Armed Services

are to be construed in the beneficiaries’ favor,” Henderson, 562 U.S. at 441, the Court concluded that

veterans’ appeals from the Board of Veterans’ Appeals

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

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

id. at 436, held to be jurisdictional in Bowles v. Russell, 551 U.S. 205 (2007).

The MSPB hears the claims of veterans denied

their benefits from federal employers under VEOA

and USERRA. 5 U.S.C. § 3330a(d)(1). The Federal

Circuit has exclusive jurisdiction over subsequent appeals by veterans from the MSPB. 5 U.S.C.

§ 7703(b)(1)(A). The Federal Circuit’s decision denying equitable tolling for appeals from the MSPB

thwarts Congress’s longstanding policy of favorable

treatment toward veterans and is inconsistent with

the holding and guidance of Henderson.

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

Circuit would have a devastating impact on veterans

with meritorious claims. Although Congress enacted

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

statute for the MSPB—to protect federal employees,

see 5 U.S.C. § 7101, that Act’s procedural processes

are complex, confusing, and difficult to navigate.

Traversing the CSRA involves a “procedural maze”

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

386 F.3d 800, 802, 805 (6th Cir. 2004) (determining

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

—5—

that an Air Force employee “was unsuccessful in navigating the procedural maze for the processing of a

mixed case because of erroneous advice given to her

by the MSPB Administrative Judge (AJ) hearing her

claims”).

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

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

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

(2008) (citing EEOC v. Com. Off. Prods. Co., 486 U.S.

107, 124 (1988) (discussing the ADEA and Title VII

“remedial scheme[s] in which laypersons, rather than

lawyers, are expected to initiate the process”)). Yet

veterans—who often proceed pro se and suffer from

cognitive impairments and other challenges as a result of their service that make it difficult to follow

procedural formalities scrupulously—are left to wrestle with this “complicated tapestry.” Butler v. West,

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

is critical to ensure that these veterans receive the

benefits that Congress prescribed.

This Court’s recent decision in Arellano v.

McDonough, 143 S. Ct. 543 (2023), does not disturb

this conclusion. Arellano instead reiterates the importance of application of the pro-veteran canon

absent express indication of Congressional intent that

equitable tolling does not apply. That indication does

not exist with respect to the statute at issue in this

case.

—6—

ARGUMENT

The Veteran Canon Is One of This

Court’s Traditional Tools of Statutory

Interpretation.

The Supreme Court has instructed that courts

should construe legislation “liberally … to protect

those who have been obliged to drop their own affairs

to take up the burdens of the nation.” Boone v. Lightner, 319 U.S. 561, 575 (1943). Put another way,

legislation involving veterans “is to be liberally construed for the benefit of those who left private life to

serve their country in its hour of great need.” Fishgold, 328 U.S. at 285. This principle has been called

“the pro-veteran canon” of construction. Nat’l Org. of

Veterans’ Advocates, Inc. v. Sec’y of Veterans Affs., 48

F.4th 1307, 1317 (Fed. Cir. 2022).

“[T]he rule that interpretive doubt is to be resolved in the veteran’s favor” is a bedrock principle.

Brown v. Gardner, 513 U.S. 115, 117 (1994); see also

George v. McDonough, 142 S. Ct. 1953, 1964 (2022)

(Sotomayor, J., dissenting) (describing the canon as

“venerable”); Chadwick J. Harper, Note, Give Veterans the Benefit of the Doubt: Chevron, Auer, and the

Veteran’s Canon, 42 Harv. J.L. & Pub. Pol’y 931, 949

(2019) (“Simply put, the veteran’s canon is a traditional tool of interpretation.”). This Court has

“presume[d] congressional understanding of such interpretive principles.” King v. St. Vincent’s Hosp., 502

U.S. 215, 220 n.9 (1991).

—7—

The pro-veteran canon is deeply rooted and

longstanding. The history of Congress’s commitment

to veterans dates to the founding. See, e.g., Invalid

Pensions Act, 1 Stat. 243 (1792). The pro-veteran

canon translates the truism that “[t]he solicitude of

Congress for veterans is of long standing,” United

States v. Oregon, 366 U.S. 643, 647 (1961), into the judicial practice of statutory interpretation. That is

why, in construing statutes in favor of veterans,

courts require “Congress itself to speak if it wants to

compromise policy that is perceived as generally

held.” Cass R. Sunstein, Nondelegation Canons, 67 U.

Chi. L. Rev. 315, 334 (2000) (discussing the pro-veteran canon). Here, “the relevant policies are not the

judges’ own, but have a source in widely held social

commitments.” Id. And because “the legislature presumably has [the pro-veteran canon] in mind when it

chooses its language,” the rule has “acquire[d] a sort

of prescriptive validity.” Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case W.

Res. L. Rev. 581, 583 (1990).

Indeed, Congress over the last century 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. 76783, 54 Stat. 885, 890 (1940). Congress further

strengthened these rights by passing the Veterans’

Reemployment Rights Act of 1974 (VRR). See Vietnam

Era Veterans’ Readjustment Assistance Act, Pub. L.

No. 93-508 § 404, 88 Stat. 1578, 1594 (1974).

—8—

Congress then enacted USERRA in 1994 based in

part on a concern that “the VRR law ha[d] 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 minimize the disruption to the lives of persons performing service in

the uniformed services as well as to their employers,

their fellow employees, and their communities, by

providing for the prompt reemployment of such persons upon their completion of such service.” 38 U.S.C.

§ 4301. To ensure broad application of its protections,

Congress made USERRA applicable to public sector

employers of all sizes, including federal, state, and local governments. See id. §§ 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 ensuring that veterans receive preferential treatment in federal employment

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

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

should take the lead in assuring those who are in the

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

employment.” (quoting Letter from President Roosevelt to Rep. Ramspeck, quoted in H.R. Rep. No. 781289, at 5 (1944))).

—9—

Most recently, in 1998, Congress passed VEOA to

strengthen and solidify veterans’ preference rights,

following testimony that “veterans preference is often

ignored or too easily evaded, and redress for veterans

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

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

Cong. 1 (2d Sess. 1996) (statement of Rep. John L.

Mica). Through VEOA, Congress sought “to provide

preference eligible veterans with a method for seeking

redress where their veterans’ preference rights have

been violated.” Kirkendall, 479 F.3d at 837. As part of

this goal, Congress gave the MSPB “the power to decide cases brought by preference eligibles and certain

other veterans who allege a violation of their employment rights.” Veterans’ Preference: Hearing Before the

Subcomm. on Econ. Opportunity of the H. Comm. on

Veterans’ Affs., 110th Cong. 25 (1st Sess. 2007) (statement of Hon. Neil A.G. McPhie).

This Court has consistently interpreted federal

statutes in light of Congress’s persistent preference

for veterans and their rights. Without equitable tolling, veterans risk losing meritorious claims due to

cumbersome procedural hurdles—an outcome inconsistent with the longstanding principle of statutory

interpretation the pro-veteran canon embodies.

Petitioner demonstrates why the best reading of 5

U.S.C. § 7703(b)(1)(A) is one that permits equitable

tolling. But to the extent that the Court sees the provision as ambiguous, it should apply the pro-veteran

canon and interpret the statute to favor often-pro se

veterans attempting to navigate a complex legal system riddled with procedural hurdles.

—10—

II.

The Decision in Harrow Contravenes

Henderson.

In Henderson, this Court held that the deadline

for filing a notice of appeal from the Board of Veterans’

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

Claims is subject to equitable tolling. 562 U.S. at 436,

441–42. This Court reiterated that filing deadlines are

subject to equitable tolling absent a “‘clear’ indication

that Congress wanted the rule to be ‘jurisdictional.’”

Id. at 436 (citation omitted). Applying the pro-veteran

canon, this Court saw no indication that the time limit

was intended to “carry the harsh consequences that

accompany the jurisdictional tag.” Id. at 441. In doing

so, this Court explicitly rejected the rule that under

Bowles v. Russell, 551 U.S. 205 (2007), statutory appeal deadlines are per se jurisdictional. See

Henderson, 562 U.S. at 436. This Court distinguished

Bowles as involving a special “type” of deadline—for

appeals “from one court to another court”—that Congress intended to pose a jurisdictional bar. Id.

In Hamer v. Neighborhood Housing Services of

Chicago, this Court affirmed this distinction, emphasizing that the clear-statement analysis applies

unless the time limit concerns an appeal from “one Article III court to another.” 138 S. Ct. at 25 n.9.

The Federal Circuit’s holding below that the deadline in Section 7703(b)(1) is jurisdictional violates

Henderson in two ways: (1) by deeming a deadline jurisdictional absent a finding of any “clear indication”

by Congress to treat it as such; and (2) by failing to

consider Congress’s longstanding intent that statutes

affecting veterans be construed in veterans’ favor.

—11—

First, as in Henderson, there is no clear indication

that Congress intended the deadline to be jurisdictional. Rather, the plain language and structure

evidence that Congress wanted equitable tolling to apply.

The provision providing the time limit for appeals

(including of adverse decisions under VEOA and

USERRA), 5 U.S.C. § 7703(b)(1)(A), “does not speak in

jurisdictional terms or refer in any way to the jurisdiction” of the court. Cf. Henderson, 562 U.S. at 438

(interpreting 38 U.S.C. § 7266(a)). Instead, Section

7703(b)(1)(A) states 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.” And

this Court made clear in Henderson that use of “shall”

does not render a time limit jurisdictional. 562 U.S. at

439 (“[W]e have rejected the notion that ‘all mandatory prescriptions, however emphatic, are … properly

typed jurisdictional.’”) (citation omitted).

In addition, as in Henderson, the appeal filing

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

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

the MSPB: 28 U.S.C. § 1295(a)(9).7 Compare 5 U.S.C.

7 The Federal Circuit has changed its rationale over time. In Fed-

eral Education Association – Stateside Region v. Department of

Defense, 898 F.3d 1222 (Fed. Cir. 2018), the court posited that

the jurisdictional nature of the appeal filing deadline comes from

28 U.S.C. § 1295, not 5 U.S.C. § 7703. Fed. Educ. Ass’n, 898 F.3d

at 1225. If such a minimal link were sufficient to make filing time

periods jurisdictional and immutable, then all of the time periods

in sections cross-referenced in Section 1295(a) would be jurisdictional (and equitable tolling inapplicable) notwithstanding that

Congress never intended such an extreme result.

—12—

§ 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 also Henderson, 562 U.S.

at 439 (concluding that the deadline’s placement in

the “Procedure” subchapter, not the “Organization

and Jurisdiction” subchapter, indicates that Congress

regarded the 120-day limit as a non-jurisdictional

rule).

Second, given the CSRA’s applicability to VEOA

and USERRA, the deadline for appeals from the

MSPB should be construed in veterans’ favor. In Henderson, this Court gave weight to Congress’s

“solicitude” for veterans and longstanding intent that

veterans be treated preferentially under the review

schemes that it enacts, see 562 U.S. at 440, and the

fact that “the veterans benefits program[] is ‘unusually protective’ of claimants,” id. at 437 (citation

omitted). All of these factors, which the Court viewed

as “most telling” in analyzing Congress’s intent, id. at

440, should apply here as Section 7703(b)(1)(A) governs the deadline for appeals of veterans’ VEOA and

USERRA claims.

In sum, the decision in Harrow misapplies the

Court’s clear indication requirement and overlooks

Congress’s longstanding solicitude for protecting veterans’ rights. That is inconsistent with this Court’s

decision in Henderson.

—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 face deployment or medical issues that make navigating that

morass even more difficult. The doctrine of equitable

tolling should be available in such circumstances.

Veterans must navigate a “procedural

morass” to adjudicate MSPB claims.

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

See 5 U.S.C. § 2301(b)(8)(A) (providing that under

governing merit systems principles, “[e]mployees

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

“procedural maze” for litigants, Valentine-Johnson,

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

structure both administrative and judicial review of

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

—14—

Compounding this complexity, at least 50 percent

of claimants proceed through this process pro se. See

generally MSPB, Congressional Budget Justification

FY 2018, at 12 (“Generally, at least half or more of the

appeals filed with the agency are from pro se appellants … . Pro se appellants do not generally have

equal knowledge of the case filing process or equal access to the information available, especially if they are

stationed overseas.”). Construing filing deadlines as

jurisdictional is “particularly inappropriate” for a system “in which laymen, unassisted by trained lawyers,

initiate the process.” Zipes v. Trans World Airlines,

Inc., 455 U.S. 385, 397 (1982). Rather, these complex

remedial schemes “must be accessible to individuals

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

Express, 552 U.S. at 403.

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 applied

principles of equity to allow an Air Force employee’s

discrimination claims to go forward 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, 811. Punishing veterans who fail to grasp

the CSRA’s complex mechanisms undermines Congress’s express intent to protect these litigants. The

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

—15—

Veterans disproportionately suffer

cognitive impairments and other circumstances that can inhibit their

ability to meet filing deadlines.

Fifty-three percent of veterans employed in the

federal government are disabled.8 In particular,

veterans disproportionately suffer from diseases,

including post-traumatic stress disorder (PTSD) and

traumatic brain injury (TBI), that can impede their

ability to understand and meet rigid filing deadlines.

More than 1,200,000 veterans are compensated for

PTSD;9 more than 414,000 veterans and active duty

personnel have been diagnosed with TBI since 2000.10

They are often are significantly impaired in their

ability to carry out daily tasks, and may experience

intellectual impairment and difficulty with memory,

attention, and concentration.11 Yet, these are the

exact capabilities a layperson needs to navigate an

unfamiliar “procedural maze” like the CSRA.

8 See U.S. Off. of Pers. Mgmt., Employment of Veterans in the

Federal Executive Branch: Fiscal Year 2021, supra n.4, at 1.

9 See U.S. Dep’t of Veterans Affs., VA Benefits & Health Care Uti-

lization,

https://www.va.gov/vetdata/docs/pocketcards/fy2021q4.pdf (last

updated July 15, 2021).

10 See Dep’t of Veterans Affs. Off. of Rsch. & Development, VA

Research on Traumatic Brain Injury (TBI), https://www.research.va.gov/topics/tbi.cfm (last visited Jan. 5, 2024).

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

der,

https://www.nimh.nih.gov/health/topics/post-traumaticstress-disorder-ptsd (last visited Jan. 5, 2024); Erin Bagalman,

Cong. Rsch. Serv., R40941, Traumatic Brain Injury Among Veterans 3 (Jan 4, 2013).

—16—

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

medical treatment to address service-related injuries,

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

before the MSPB can take several years to resolve.

Servicemembers seeking military leave benefits, for

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

decision. Likewise, veterans with federal civilian jobs

on overseas assignment may experience mail delays.

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

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

The availability of Article III judicial

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

Given the importance of Article III judicial review

for these claims, the availability of equitable tolling is

vital to ensure that veterans’ claims are heard.

On numerous occasions, the Federal Circuit has

reversed MSPB decisions denying veterans’ claims

under VEOA and USERRA. For instance, a veteran

had to appeal twice to the Federal Circuit after the

MSPB denied his USERRA discrimination claim and

determined that he had waived his rights by failing to

assert them while on active duty in an overseas military deployment. See Erickson v. U.S. Postal Serv.,

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

1356, 1359. The veteran in Erickson was fortunate to

—17—

be represented by counsel, but had he acted pro se, as

many veterans do, and missed a procedural deadline,

judicial review would have been denied and the violation of his USERRA rights left unchecked.

Similarly, in Lynch v. Department of the Army,

107 M.S.P.R. 224 (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 VEOA. See id. at 225‒26. Had this veteran

been hospitalized for his service-related disability

when the adverse decision issued, his winning appeal

might have been foreclosed under the decision below.

Congress did not intend to deny Article III review

in circumstances like these. However, in recent years,

the Federal Circuit has routinely dismissed untimely

MSPB appeals by pro se veterans without considering

equitable tolling arguments. See, e.g., Jones v. HHS,

702 F. App’x 988 (Fed Cir. 2017), cert denied, 139 S.

Ct. 359 (2018); Brenndoerfer v. USPS, 693 F. App’x.

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

1023 (Fed. Cir. 2017).

Further, under Federal Circuit precedent, the

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

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

See 28 U.S.C. § 2107(c). To conclude, as the Federal

Circuit did, that appeals from the MSPB under the

CSRA—a remedial scheme designed to protect federal

employees, including veterans—can never be tolled is

not what Congress provided or intended.

—18—

These arguments are consistent

with Arellano v. McDonough.

In Arellano v. McDonough, 143 S. Ct. 543 (2023),

this Court determined that a particular deadline in a

veterans benefits statute was not subject to equitable

tolling. But Arellano’s analysis does not cast doubt on

the continued vitality of the pro-veteran canon or on

the availability of equitable tolling in the CRSA. The

Arellano Court based its holding on the unambiguous

text and structure of the statute at issue there—which

was neither a statute of limitations nor a deadline to

appeal to a court. The Court concluded that Congress

was clear that it did not want equitable tolling to be

available for this deadline. Congress made no such indication in the statutory schemes at issue in this case.

In general, “the effective date of an award of disability compensation to a veteran … ‘shall not be

earlier’ than the day on which the [VA] receives the

veteran’s application for benefits.” Id. at 546 (quoting

38 U.S.C. § 5110(a)(1)). Arellano concerned one of the

exceptions to that rule, pursuant to which the effective date becomes “the date of the veteran’s discharge

or release” if the VA receives the veteran’s benefit application “within one year from such date of discharge

or release.” Id. § 5110(b)(1). Looking to the text and

structure of the statute, the Court saw “good reason to

believe that Congress did not want the equitable tolling doctrine to apply.” Arellano, 143 S. Ct. at 548.

That is not the case here. Congress enacted both

VEOA and USERRA with knowledge of Irwin v. Department of Veterans Affairs’ settled holding that

equitable tolling is presumptively available in suits

—19—

against the federal government. See 498 U.S. 89, 95–

96 (1990). Arellano acknowledged the Irwin presumption but determined that the presumption was

rebutted there because “equitable tolling is inconsistent with the statutory scheme” at issue. Arellano,

143 S. Ct. at 547–48. Here, by contrast, Congress subjected veterans’ claims under these statutes to the 60day 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 recognized that because “[t]he purpose of the

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

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

logic to suppose that when Congress adopted the

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

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

that equitable tolling applies to the appeal period under the VEOA); see also 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 text, history, and structure of the CSRA,

VEOA, and USERRA all demonstrate that Congress

did not intend to create traps for the unwary or misinformed. Mechanisms to help abate some of the

CSRA’s complexity are even built into the statute,

demonstrating Congress’s intent to have these cases

heard on the merits. See 5 U.S.C. § 7702(f) (savings

provision for timeliness purposes when litigant erroneously files in incorrect forum).

—20—

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

provision governing appeals from the MSPB, suggests

that Congress wanted to impart harsh jurisdictional

consequences. Rather, Congress purposely made the

MSPB appeals regime applicable to veterans’ claims

under VEOA and USERRA—legal regimes intended

to be specially protective of claimants and to which the

pro-veteran canon of construction indisputably must

apply. Cf. Coffy v. Republic Steel Corp., 447 U.S. 191,

196 (1980) (“The [VRR] is to be liberally construed for

the benefit of the returning veteran.”).

Finally, Arellano does not cast doubt on the use of

the pro-veteran canon. Arellano bolsters the canon’s

pedigree by acknowledging its continued viability and

specifying the proper context for its usage. The petitioner contended “that the nature of the underlying

subject matter—veterans’ benefits—counsel[ed] in favor of tolling.” Arellano, 143 S. Ct. at 551 (internal

quotation marks omitted). The Court agreed that “[i]f

the text and structure favored [the veteran], the nature of the subject matter would garnish an already

solid argument.” Id. at 552. That is consistent both

with textualism and with Brown’s admonition “that

interpretive doubt is to be resolved in the veteran’s favor.” 513 U.S. at 117 (emphasis added); see also Amy

Coney Barrett, Substantive Canons and Faithful

Agency, 90 B.U. L. Rev. 109, 123‒24 (2010) (“Substantive canons are in significant tension with textualism,

… insofar as their application can require a judge to

adopt something other than the most textually plausible meaning of a statute.” (emphasis added)). If the

Court has any doubt about the correct interpretation

of the statute, it should apply the pro-veteran canon

to conclude that equitable tolling is available.

—21—

CONCLUSION

The pro-veteran canon is a traditional tool of statutory interpretation. 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.

Henderson compels this conclusion, and Arellano

does not disturb it. The Federal Circuit’s decision in

Harrow impedes Congress’s goal to permit veterans to

appeal their VEOA and USERRA claims, to obtain

core statutory preferences and benefits to which they

are entitled, frustrating Congress’s intent to secure

and protect veterans’ rights. This Court should correct

the Federal Circuit’s continued misapplication of this

Court’s clear-statement requirement, especially given

the pro-veteran canon’s applicability. This Court

should therefore reverse the decision of the Federal

Circuit.

Respectfully submitted,