Petition for Writ of Certiorari — Metal Conversion Technologies, LLC, Petitioner v. Department of Transportation
Supreme Court briefFeb 9, 2024
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No. 23-___
IN THE
Supreme Court of the United States
_________________________
METAL CONVERSION TECHNOLOGIES, LLC,
Petitioner,
v.
UNITED STATES DEPARTMENT OF
TRANSPORTATION,
Respondent.
_________________________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE U.S. COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
Mark S. Chenoweth
Counsel of Record
Sheng Li
Kara M. Rollins
NEW CIVIL LIBERTIES ALLIANCE
1225 19th St. NW, Suite 450
Washington, DC 20036
(202) 869-5210
Mark.Chenoweth@ncla.legal
February 9, 2024
i
QUESTION PRESENTED
When an aggrieved party petitions for judicial
review of the Department of Transportation’s final
action under the Hazardous Materials Transportation
Act: “[t]he petition must be filed not more than 60
days after the Secretary’s action becomes final.”
49 U.S.C. § 5127(a). This Court has held that absent
clear congressional intent to preclude tolling,
nonjurisdictional statutory filing deadlines are
subject to equitable tolling. Boechler, P.C. v. Comm’r
of Internal Revenue, 596 U.S. 199, 208–09 (2022). As
such, “an ordinary, nonjurisdictional deadline [is]
subject to equitable tolling.” Id. at 211.
In the per curiam decision below, the Eleventh
Circuit assumed § 5127(a)’s 60-day deadline is not
jurisdictional. It nonetheless held that Federal Rule of
Appellate Procedure 26(b) precludes tolling of this
statutory deadline. Rule 26(b), which has not changed
since this Court’s adoption in 1967, states: “For good
cause, the court may extend the time prescribed by
these rules … . But the court may not extend the time
to file … a petition to … review an order of an
administrative agency, board, commission, or officer
of the United States, unless specifically authorized by
law.”
The question presented is:
1. Whether Federal Rule of Appellate Procedure
26(b) precludes equitable tolling of 49 U.S.C.
§ 5127(a)’s ordinary and nonjurisdictional deadline to
petition for review of an agency’s final action.
ii
PARTIES TO THE PROCEEDING
Petitioner is Metal Conversion Technologies, LLC
Respondent is the U.S. Department of Transportation
iii
RELATED PROCEEDINGS
Metal Conversion Technologies, LLC v. U.S.
Department of Transportation, No 22-14140 (11th
Cir.). Petition for review dismissed July 27, 2023.
In the Matter of: Metal Conversion Technologies,
LLC, PHMSA Case No. 18-0086-HMI-SW (Dep’t of
Transportation). Decision on Appeal issued July 25,
2022.
In the Matter of: Metal Conversion Technologies,
LLC, PHMSA Case No. 18-0086-HMI-SW (Dep’t of
Transportation). Order of the Chief Counsel issued
October 7, 2021.
iv
CORPORATE DISCLOSURE STATEMENT
Petitioner Metal Conversion Technologies LLC is
a limited liability company with no parent
corporation, and no publicly held corporation holds
10% or more of its stock.
v
TABLE OF CONTENTS
Page
QUESTION PRESENTED........................................... i
PARTIES TO THE PROCEEDING ............................. i
RELATED PROCEEDINGS ..................................... iii
CORPORATE DISCLOSURE STATEMENT ........... iv
TABLE OF CONTENTS ............................................. v
TABLE OF AUTHORITIES.................................... viii
PETITION FOR A WRIT OF CERTIORARI ............. 1
OPINIONS AND ORDERS BELOW .......................... 1
JURISDICTION .......................................................... 1
STATUTORY PROVISIONS INVOLVED ................. 1
INTRODUCTION ........................................................ 2
STATEMENT OF THE CASE .................................... 4
I. LEGAL BACKGROUND........................................... 4
II.FACTUAL BACKGROUND AND PROCEEDINGS
BELOW ............................................................... 6
REASONS FOR GRANTING THE WRIT .................. 8
I. THE AVAILABILITY OF EQUITABLE TOLLING FOR
STATUTES TO REVIEW AGENCY ACTION IS AN
IMPORTANT FEDERAL QUESTION ...................... 11
II.THE DECISION BELOW CONFLICTS WITH THIS
COURT’S PRECEDENT ........................................ 16
III.THE DECISION BELOW CONFLICTS WITH OTHER
CIRCUITS .......................................................... 23
CONCLUSION .......................................................... 25
vi
TABLE OF APPENDICES
Appendix A
Order, United States Court of Appeals for the
Eleventh Circuit, Metal Conversion Technologies,
LLC v. U.S. Department of Transportation, No. 2214140 (Oct. 12, 2023)................................................. 1a
Appendix B
Opinion, United States Court of Appeals for the
Eleventh Circuit, Metal Conversion Technologies,
LLC v. U.S. Department of Transportation, No. 2214140 (July 27, 2023) ................................................ 3a
Appendix C
Jurisdictional Question, United States Court of
Appeals for the Eleventh Circuit, Metal Conversion
Technologies, LLC v. U.S. Department of
Transportation, No. 22-14140 (Jan. 31, 2023) ......... 6a
Appendix D
Decision, U.S. Department of Transportation Pipeline
and Hazardous Materials Safety Administration, In
re: Metal Conversion Technologies, LLC., Case No. 180086-HMI-SW, Docket No. PHMSA-2021-0088 (July
25, 2022) .................................................................... 8a
Appendix E
Order, U.S. Department of Transportation Pipeline
and Hazardous Materials Safety Administration
Office of Chief Counsel, In re: Metal Conversion
Technologies, LLC., Case No. 18-0086-HMI-SW,
Docket No. PHMSA-2021-0088 (Oct. 7, 2021)........ 32a
vii
Appendix F
Relevant Statutory Provisions ................................ 71a
49 U.S.C. § 5127 ................................................ 71a
viii
TABLE OF AUTHORITIES
Page(s)
Cases
Blaney v. United States,
34 F.3d 509 (7th Cir. 1994) ................................... 23
Boechler, P.C. v. Comm’r of Internal Revenue,
596 U.S. 199
(2022)............. i, 2, 5, 9, 12, 14, 16, 17, 18, 19, 20, 25
Bowen v. City of New York,
476 U.S. 467 (1986).................. 5, 8, 9, 14, 15, 18, 19
Chance v. Zinke,
898 F.3d 1025 (10th Cir. 2018).............................. 23
City of New York v. Heckler,
742 F.2d 729 (2d. Cir. 1984) .............................. 9, 15
Cody v. Kijakazi,
48 F.4th 956 (9th Cir. 2022) ....................................7
Corner Post, Inc. v. Bd. of Governors, FRS,
216 L. Ed. 2d 1312 (Sept. 29, 2023) ...................... 23
DeSuze v. Ammon,
990 F.3d 264 (2d Cir. 2021) ................................... 23
Free Enter. Fund v. PCAOB,
561 U.S. 477 (2010).......................................... 14, 15
Harrow v. Dep’t of Def.,
No. 2022-2254, 2023 WL 1987934
(Fed. Cir. Feb. 14, 2023) .............................. 3, 11, 25
Harrow v. Dep’t of Def.,
No. 23-21, 2023 WL 8509836
(Dec. 8, 2023).................................................. 2, 3, 12
ix
Holland v. Florida,
560 U.S. 631 (2010)................................................ 17
Honda v. Clark,
386 U.S. 484 (1967)................................................ 19
Impact Energy Res., LLC v. Salazar,
693 F.3d 1239 (10th Cir. 2012)........................ 15, 24
Irwin v. Dep't of Veterans Affs.,
498 U.S. 89 (1990)............................................ 17, 20
Kontrick v. Ryan,
540 U.S. 443 (2004)................................................ 19
Lucia v. SEC,
138 S. Ct. 2044 (2018)..............................................6
Montoya v. Chao,
296 F.3d 952 (10th Cir. 2002) ............................... 23
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm
Mut. Auto. Ins. Co.,
463 U.S. 29 (1983).................................................. 15
N.D. Retail Ass’n v. Bd. of Governors
of the Fed. Rsrv. Sys.,
55 F.4th 634 (8th Cir. 2022) .................................. 23
NRDC v. Nat’l Highway Traffic Safety Admin.,
894 F.3d 95 (2d Cir. 2018) ............................... 10, 24
Nunnally v. MacCausland,
996 F.2d 1 (1st Cir. 1993) ...................................... 23
Nutraceutical Corp. v. Lambert,
139 S. Ct. 710 (2019).................................... 8, 10, 21
Polyweave Packaging, Inc. v. DOT,
No. 21-4202, 2023 WL 1112247
(6th Cir. Jan. 27, 2023) ............................................6
x
Robinson v. Dep’t of Homeland Sec.
Off. of Inspector Gen.,
71 F.4th 51 (D.C. Cir. 2023) .................................. 23
Sebelius v. Auburn Reg’l Med. Ctr.,
568 U.S. 145 (2013)................................................ 17
United States v. Brockamp,
519 U.S. 347 (1997).......................................... 18, 20
United States v. Wong,
575 U.S. 402 (2015)................................................ 17
Washington v. Garrett,
10 F.3d 1421 (9th Cir. 1993) ................................. 23
Wilkins v. United States,
598 U.S. 152 (2023)..................................................2
Young v. United States,
535 U.S. 43 (2002).................................................. 18
Statutes
15 U.S.C. § 45 ............................................................ 11
15 U.S.C. § 78y .......................................................... 11
26 U.S.C. § 6330 ........................................................ 20
28 U.S.C. § 2071 ........................................................ 20
28 U.S.C. § 2074 ........................................................ 21
28 U.S.C. § 2401 .................................................. 14, 23
29 U.S.C. § 660 .......................................................... 11
30 U.S.C. § 816 .......................................................... 11
42 U.S.C. § 405 .................................................... 18, 20
42 U.S.C. § 4915 ........................................................ 12
47 U.S.C. § 402 .................................................... 12, 13
xi
49 U.S.C. § 32902 ................................................ 14, 24
49 U.S.C. § 5103 ...................................................... 4, 6
49 U.S.C. § 5123 ..........................................................4
49 U.S.C. § 5127 ....................................... i, 4, 5, 20, 24
49 U.S.C. § 521 .......................................................... 13
49 U.S.C.§ 1153 ......................................................... 13
5 U.S.C. § 7703 .............................................. 11, 12, 23
Safe, Accountable, Flexible Efficient Transportation
Equity Act of 2005,
Pub. L 109-59, title VII, § 7123(b),
119 Stat. 1907, Aug. 10, 2005................................ 17
Rules
Fed. R. App. P. 26 ................... i, 3, 8, 10, 11, 12, 22, 25
Other Authorities
Supreme Court,
Amendments to Federal Rules of Civil Procedure
(Mar. 26, 2009) ....................................................... 10
1
PETITION FOR A WRIT OF CERTIORARI
Petitioner respectfully seeks a writ of certiorari
to review the judgment of the United States Court of
Appeals for the Eleventh Circuit.
OPINIONS AND ORDERS BELOW
The per curiam panel opinion of the Eleventh
Circuit (App.1a) is not reported in the Federal
Reporter but is available at 2023 WL 4789084. The per
curiam decision of the Eleventh Circuit denying
rehearing (App.3a) is not reported in the Federal
Reporter. The final order (App.8a) of the U.S.
Department of Transportation (DOT) dated July 25,
2022, is available at: https://www.regulations.gov/
document/PHMSA-2021-0088-0002. The decision
(App.32a) of the agency’s Chief Counsel dated October
7, 2021, is available at: https://www.regulations.gov/
document/PHMSA-2021-0088-0001.
JURISDICTION
The Eleventh Circuit entered judgment on July 27,
2023, and denied rehearing on October 12, 2023. On
December 27, 2023, Justice Thomas extended the time
to file a petition for writ of certiorari until February 9,
2024. This Court has jurisdiction under 28 U.S.C.
§ 1254(1).
STATUTORY PROVISIONS INVOLVED
The pertinent statutory provisions are reproduced
in Appendix F to this petition. App.71a-73a.
2
INTRODUCTION
This Court has spent recent terms attempting to
bring discipline to the question of which statutory
filing deadlines are subject to equitable tolling. It has
repeatedly held that statutory time limits are claimprocessing rules that are subject to equitable tolling
unless Congress has clearly indicated otherwise by
stating that the time limit is jurisdictional or by
expressing a clear intent to preclude tolling. This
Court has repeatedly granted certiorari to reaffirm
this principle when lower courts go astray, most
recently in Wilkins v. United States, 598 U.S. 152
(2023) (Quiet Title Act’s statute of limitation is
nonjurisdictional) and Boechler, P.C. v. Comm’r of
Internal Revenue, 596 U.S. 199 (2022) (deadline
governing petition for judicial review of IRS decision
is subject to tolling). This term, the Court granted
review in Harrow v. Dep’t of Def., No. 23-21, to
determine whether the deadline to petition for judicial
review of Merit Systems Protection Board (MSPB)
decisions is subject to equitable tolling.
In a per curiam decision, the Eleventh Circuit held
that the ordinary 60-day deadline under 49 U.S.C.
§ 5127(a) to file a petition for judicial review of the
Department of Transportation (DOT)’s final action is
not subject to equitable tolling. It reached this
conclusion without finding any indication that
Congress intended to preclude equitable tolling when
enacting § 5127(a). Instead, the panel held that
Federal Rule of Appellate Procedure 26(b)—which
was not enacted by Congress and thus cannot indicate
congressional intent—precludes equitable tolling.
That erroneous reasoning presents an important
federal question because Rule 26(b)’s preclusive effect
3
would apply to every federal statutory scheme that
provides for judicial review of “an order of an
administrative agency, board, commission, or officer
of the United States[.]” Fed. R. App. P. 26(b).
The Eleventh Circuit’s decision cannot be
reconciled with this Court’s precedent that clear
congressional intent to preclude tolling is needed to
rebut the presumption in favor of a statutory deadline
being subject to equitable tolling. It also conflicts with
other circuits’ holdings that ordinary deadlines found
in statutory review schemes are subject to equitable
tolling. The panel below incorrectly resolved an
important and recurring issue impacting every agency
statutory review scheme. This Court’s review is
warranted.
The Federal Circuit in Harrow reinforced its core
jurisdictional decision by stating in passing that Rule
26(b) prohibits tolling the statutory deadline in that
case. Harrow v. Dep’t of Def., No. 2022-2254, 2023 WL
1987934, at *1 (Fed. Cir. Feb. 14, 2023) (per curiam),
cert. granted, No. 23-21, (Dec. 8, 2023) (citing Fed. R.
App. P. 26(b)). While Rule 26(b) was not part of the
jurisdictional question presented on which this Court
granted review in Harrow, the Solicitor General’s
brief opposing certiorari argued that Rule 26(b)
independently precludes equitable tolling of a
deadline to seek judicial review of final agency action.
Resp. Br. at 18-19, Harrow v. Dep’t of Defense, No. 2321 (Oct. 6, 2023). Should the Court elect to resolve the
Rule 26(b) issue in Harrow, Petitioner requests in the
alternative that the Court hold this petition pending
the decision in Harrow, and then dispose of this
petition as appropriate in light of that decision.
4
STATEMENT OF THE CASE
I.
LEGAL BACKGROUND
Congress
authorized
the
Secretary
of
Transportation to promulgate regulations for “the
safe transportation … of hazardous material in …
commerce.” 49 U.S.C. § 5103(b)(1). The Secretary may
seek from any “person that knowingly violates [such
regulations] … a civil penalty of not more than
$75,000 for each violation.” Id. § 5123(a)(1). Multiple
DOT agencies promulgate and enforce regulations
issued under § 5123(a)(1). These include the Federal
Aviation Administration (FAA), the Federal Railroad
Administration (FRA), and the U.S. Pipeline and
Hazardous
Materials
Safety
Administration
(PHMSA).
Congress further created a statutory review
scheme which provides for judicial review of the
Secretary’s final decisions to promulgate hazardous
materials regulations or to impose a civil penalty for
violation of such regulations. See 49 U.S.C. § 5127.
The congressionally enacted statutory review scheme
states:
[A] person adversely affected or
aggrieved by a final action of the
Secretary under this chapter may
petition for review of the final action in
the United States Court of Appeals for
the District of Columbia or in the court
of appeals for the United States for the
circuit in which the person resides or has
its principal place of business. The
petition must be filed not more than 60
5
days after the Secretary’s action becomes
final.
Id. § 5127(a).
Section 5127(a) is not materially different from
countless statutory review schemes that require
persons aggrieved by final agency action to seek
judicial review within a specific time limit.
None of these statutory review schemes
specifically authorize equitable tolling of deadlines.
This Court has nonetheless found their deadlines to
be subject to tolling. See, e.g., Boechler, 596 U.S. at 201
(holding 30-day period under 26 U.S.C. § 6330(d)(1) to
petition the Tax Court for review of agency decision
subject to equitable tolling); Bowen v. City of New
York, 476 U.S. 467, 481 (1986) (holding 42 U.S.C.
§ 405(g)’s 60-day period for seeking judicial review of
final decision by Secretary of Health and Human
Services subject to equitable tolling).
That is because “[e]quitable tolling is a traditional
feature of American jurisprudence and a background
principle against which Congress drafts limitations
periods. … Because [the Court does] not understand
Congress
to
alter
that
backdrop
lightly,
nonjurisdictional
limitations
periods
are
presumptively subject to equitable tolling.” Boechler,
596 U.S at 208–09 (citations omitted). This
presumption is rebutted only if the structure and
context of the statutory review scheme clearly
indicate Congress intended to preclude equitable
tolling. Id. at 209.
6
II.
FACTUAL BACKGROUND
BELOW
AND
PROCEEDINGS
Petitioner is a battery recycling company that
operated in Cartersville, Georgia. In February 2020,
DOT charged Petitioner with violating regulations
promulgated under 49 U.S.C. § 5103(b)(1). App.33–
35a. After an informal hearing, DOT assessed a civil
penalty against Petitioner for the alleged violations.
App.31a. On December 14, 2021, Petitioner filed an
administrative appeal to PHMSA’s Chief Safety
Officer. App.9a.
On July 22, 2022, DOT revealed in a separate case
that the Chief Safety Officer was not properly
appointed to adjudicate administrative proceedings
by the President or Secretary, as required by Lucia v.
SEC, 138 S. Ct. 2044 (2018). See Motion to Vacate and
Remand, Polyweave Packaging, Inc. v. DOT, No. 214202, Doc. 29 at 2 (6th Cir. July 22, 2022); see also
Polyweave Packaging, Inc. v. DOT, No. 21-4202, 2023
WL 1112247, at *1 (6th Cir. Jan. 27, 2023) (“The
Department now concedes that the Chief Safety
Officer was not properly appointed at the time of the
decision.”). DOT discovered the Appointments Clause
defect in July 2022, and moved to vacate and remand
the civil-penalty order being challenged in Polyweave,
so it could be decided by a new decision-maker. See id.
At the time, Petitioner’s administrative appeal was
pending before the same improperly appointed
official, who said nothing.
There was no practical way for Petitioner to have
learned on its own about the PHMSA adjudicator’s
Appointments Clause violation—the agency itself did
7
not know until July 2022. 1 At that time, Petitioner’s
case had been pending before the improperly
appointed adjudicator for seven months. DOT did not
notify Petitioner that the adjudicator was improperly
appointed even though he was then reviewing
Petitioner’s administrative appeal. Nor did DOT
provide Petitioner “what Lucia requires: an
adjudication untainted by an Appointments Clause
violation.” Cody v. Kijakazi, 48 F.4th 956, 962 (9th
Cir. 2022). Instead, DOT allowed the tainted
adjudicator to keep issuing final civil-penalty orders
in cases he had heard while improperly appointed,
including against Petitioner on July 25, 2022—just
three days after DOT asked the Sixth Circuit to vacate
a civil-penalty order because of his improper
appointment. In other words, DOT allowed an official
whom it knew to be an unconstitutional adjudicator to
decide Petitioner’s case. Petitioner did not learn of the
adjudicator’s defective appointment until October 18,
2022. See Decl. of J. Patterson, Metal Conversion
Techs., LLC v. Dep’t of Transp., No 22-14140, Doc 122 ¶¶ 14–15 (11th Cir. Feb. 14, 2023).
Petitioner thereafter engaged new counsel and
filed a petition to review DOT’s civil-penalty order on
December 15, 2022—58 days after discovering the
appointment defect. Petitioner sought equitable
tolling of § 5127’s 60-day deadline on the ground that
The Secretary did not ratify the official’s
appointment until July 15, 2022. See Doc 21-4,
Exhibit C to Motion to Dismiss, gh Package Product
Testing and Consulting, Inc. v. Buttigieg, No. 23-cv00403, Doc. 21-4 (S.D. Ohio, September 18, 2023).
1
8
DOT concealed what it knew to be a blatant
constitutional defect in its agency proceeding. See
Bowen, 476 U.S. at 481 (equitable tolling of filing
deadline to challenge agency decision is proper where
“the Government’s secretive conduct prevents
plaintiffs from knowing of a violation of rights[.]”).
Due to that concealment, Petitioner did not learn of
its Appointments Clause claim until October 18, 2022.
Tolling § 5127(a)’s 60-day deadline to commence at
that discovery date would render Petitioner’s
December 15, 2022 filing timely.
The panel asked the parties to address the
timeliness of the petition as a “Jurisdictional
Question.” App.7a. It did not hold § 5127 to be a
jurisdictional bar. Nonetheless, the panel cited
Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 714–
15 (2019), to hold (without full briefing on nonjurisdictional issues) that § 5127’s statutory deadline
is “not subject to equitable tolling” because Federal
Rule of Appellate Procedure 26(b) “precludes
flexibility.” App.4a–5a. Rule 26(b) is a rule of
procedure adopted by this Court in 1967 and states:
“For good cause, the court may extend the time
prescribed by these rules,” but that “the court may not
extend the time to file,” among other things, “a
petition to … review an order of an administrative
agency, board, commission, or officer of the United
States, unless specifically authorized by law[.]”
REASONS FOR GRANTING THE WRIT
The Court should grant the petition for three
reasons.
First, the petition presents an important question
of federal law that impacts every statutory scheme
9
reviewing final agency actions. Section 5127(a)’s
deadline is an ordinary deadline, no different from
deadlines in countless statutory review schemes. The
Eleventh Circuit’s decision that Rule 26(b) precludes
equitable tolling of § 5127(a)’s deadline would
likewise bar the tolling of any other statutory deadline
seeking review of agency action. Indeed, the Solicitor
General’s brief opposing review in Harrow relied on
the same reasoning to argue that Rule 26(b) would
preclude tolling 5 U.S.C. § 7703(b)(1)(A)’s 60-day
deadline to seek judicial review of MSPB’s decisions,
regardless of whether that deadline is jurisdictional.
Resp. Br. at 18-19, Harrow v. Dep’t of Def., No. 23-21
(Oct. 6, 2023). The government thus agrees with
Petitioner that, under the panel’s reasoning, no
statutory deadline for judicial review of agency action
could ever be equitably tolled.
Equitable tolling enables judicial review of agency
action where an agency conceals “a systematic
procedural irregularity that renders” its decisions
“subject to court challenge.” Bowen, 476 U.S. at 481
(quoting City of New York v. Heckler, 742 F.2d 729,
738 (2d. Cir. 1984)). Without it, an agency could evade
judicial review by hiding a known constitutional
defect—here, an Appointments Clause violation—
until the statutory deadline has expired.
Second, the decision below ignores this Court’s
precedent that ordinary, nonjurisdictional statutory
filing deadlines are subject to equitable tolling. This
Court has explained that a statutory deadline is
presumptively subject to equitable tolling absent clear
indication of contrary congressional intent. Boechler,
596 U.S. at 208-09. Rule 26(b) cannot supply
congressional intent to rebut that presumption
10
because Congress did not enact it. Additionally, by its
own terms, Rule 26(b) governs only the extension of
deadlines “prescribed by these rules[,]” meaning rules
of juridical procedure adopted by this Court—not
statutory deadlines enacted by Congress like
§ 5127(a).
The Eleventh Circuit’s departure from this Court’s
precedent is based off a misreading of this Court’s
interpretation of Rule 26(b) in Nutraceutical Corp.,
139 S. Ct. 710. See App.4a–5a. That case held Rule
26(b) precludes the extension of Federal Rule of
Appellate Procedure 23(f)’s court-adopted 14-day
deadline to appeal a denial of class certification. 2 Id.
at 714–15. It does not allow Rule 26(b) to override the
standard
background
presumption
regarding
Congress’s intent to incorporate equitable tolling
when it enacted § 5127(a).
Third, the decision below also conflicts with
decisions of at least five other circuits. It breaks with
decisions in the Second, Eighth, Ninth, Tenth, and
D.C. Circuits that apply this Court’s precedent to
recognize ordinary statutory deadlines for seeking
review of agency action in a variety of contexts are
subject to equitable tolling. The starkest of these
splits is with the Second Circuit’s decision in NRDC v.
Nat’l Highway Traffic Safety Admin., 894 F.3d 95,
106–07 (2d Cir. 2018), which held that 49 U.S.C.
2 This Court adopted the 14-day deadline in 2009. See
Supreme Court, Amendments to Federal Rules of Civil
Procedure
(Mar.
26,
2009),
available
at
https://www.supremecourt.gov/orders/courtorders/
frcv09.pdf (last visited Feb. 6, 2024).
11
§ 32909(b)’s 59-day filing deadline to review DOT’s
fuel-economy regulations—which is worded virtually
the same as § 5127(a)’s 60-day deadline governing
review of DOT’s hazardous materials regulations—is
subject to equitable tolling. By comparison, the only
federal appellate court on the Eleventh Circuit’s side
of the split is the Federal Circuit in Harrow, 2023 WL
1987934, at *1 (citing Fed. R. App. P. 26(b)).
Review is warranted to resolve this split and to
ensure this Court’s precedent is followed on an
important question of federal law.
I.
THE AVAILABILITY OF EQUITABLE TOLLING
FOR STATUTES TO REVIEW AGENCY ACTION IS
AN IMPORTANT FEDERAL QUESTION
The Eleventh Circuit’s conclusion that Rule 26(b)
precludes equitable tolling of § 5127(a)’s statutory
deadline is an important issue warranting this
Court’s review because that preclusion applies with
equal force to all statutory deadlines for petitions to
review final agency action. The decision categorically
bars equitable tolling for all statutory schemes
reviewing federal agency action.
Congress has enacted countless statutes that
provide for judicial review of agency orders, provided
that a petitioner files within the congressionally
enacted deadline. See, e.g., 5 U.S.C. § 7703(b)(1)(A)
(60-day deadline for petition to review MSPB orders);
15 U.S.C. §§ 45(c) (60-day deadline for petition to
review FTC orders); § 78y(a)(1) (60-day deadline for
petition to review SEC orders); 29 U.S.C. § 660(a) (60day deadline for petition to review Occupational
Safety and Health Review Commission orders); 30
U.S.C. § 816 (30-day deadline for petition to review
12
Mine Safety and Health Review Commission orders);
42 U.S.C. § 4915(a) (90-day deadline for petition to
review certain EPA and FAA actions); 47 U.S.C.
§ 402(c) (30-day deadline for petition to review FCC
orders).
In recent years, this Court has repeatedly granted
certiorari to review whether a generic statutory
deadline to seek judicial review of agency orders is
subject to tolling. It held in Boechler that the statutory
deadline to petition for judicial review of IRS taxation
decisions is “ordinary” and thus subject to tolling. 596
U.S. at 211. And this term, it has granted review of
whether the 60-day deadline under 5 U.S.C.
§ 7703(b)(1)(A) to seek judicial review of a decision of
the MSPB is subject to tolling. See Harrow v. Dep’t of
Def., No. 23-21, 2023 WL 8509836 (Dec. 8, 2023).
The question presented in Harrow is whether
§ 7703(b)(1)(A)’s 60-day deadline is jurisdictional and
thus not subject to tolling. See Pet. Br. at i, Harrow v.
Dep’t of Defense, No. 23-21 (July 3, 2023). The Solicitor
General’s brief opposing certiorari explicitly argued
that that deadline is not subject to tolling, even if it is
nonjurisdictional, because Federal Rule of Appellate
Procedure 26(b) categorically precludes tolling of any
“petition to enjoin, set aside, suspend, modify, enforce,
or otherwise review an order of an administrative
agency, board, commission, or officer of the United
States, unless specifically authorized by law.” Resp.
Br. at 18-19, Harrow v. Dep’t of Defense, No. 23-21
(Oct. 6, 2023) (quoting Fed. R. App. P. 26(b)(2)).
The Solicitor General’s argument in Harrow
regarding § 7703(b)(1)(A) is indistinguishable from
the Eleventh Circuit’s per curiam decision regarding
§ 5127(a). She therefore must agree with Petitioner
13
that the Eleventh Circuit’s ruling is not limited to
§ 5127(a) and instead Rule 26(b)’s preclusive effect
would apply to all other generic statutory deadlines to
petition for judicial review of agency decisions.
The affected statutory review schemes are too
numerous to list in full, but would include:
•
•
•
•
•
•
•
•
•
15 U.S.C. § 45(c)’s 60-day deadline for petitions
to review Federal Trade Commission orders;
15 U.S.C. § 78y(a)(1)’s 60-day deadline for
petitions to review Securities and Exchange
Commission orders;
29 U.S.C. § 660(a)’s 60-day deadline for
petitions to review Occupational Safety and
Health Review Commission orders;
30 U.S.C. § 226-2’s 90-day deadline to seek
judicial review of the Secretary of the Interior’s
decisions regarding oil and gas leases;
30 U.S.C. § 816’s 30-day deadline for petitions
to review Mine Safety and Health Review
Commission orders;
42 U.S.C. § 4915(a)’s 90-day deadline for
petitions to review certain Environmental
Protection Agency and Federal Aviation
Administration orders;
47 U.S.C. § 402(c)’s 30-day deadline for
petitions to review Federal Communications
Commission orders;
49 U.S.C. § 521(b)(9)’s 30-day deadline for
petitions to review Federal Motor Carrier
Safety Administration orders;
49 U.S.C. § 1153’s 60-day deadline for petitions
to review National Transportation Safety
Board orders; and
14
•
49 U.S.C. § 32902(b)’s 59-day deadline for
petitions
to
review
Department
of
Transportation fuel-economy regulations.
And, of course, Rule 26(b)’s preclusive effect would
extend to the Administrative Procedure Act’s default
six-year time limit for seeking judicial review of
agency orders that are not covered by a specific
statutory scheme. See 28 U.S.C. § 2401(a).
These and countless other review schemes are
essential for regulated parties seeking judicial
recourse against the administrative state, “which now
wields vast power and touches almost every aspect of
daily life[.]” Free Enter. Fund v. PCAOB, 561 U.S. 477,
499 (2010). Like § 5127(a), none of these other
statutory review schemes specifically authorizes
equitable tolling because “[e]quitable tolling is a
traditional feature of American jurisprudence and a
background principle against which Congress drafts
limitations periods.” Boechler, 596 U.S. at 208–09
(2022) (citation omitted).
As such, the Eleventh Circuit’s interpretation of
Rule 26(b) would effectively preclude equitable tolling
for all statutory schemes to review final agency action.
Whether
the
Eleventh
Circuit
correctly
interpreted the effect of Rule 26(b) on statutory
deadlines is therefore important to the operation of
every congressionally enacted scheme providing for
judicial review of agency actions. Equitable tolling
provides for judicial review where the government
misleads individuals to believe for the statutory
period’s duration that adverse decisions reflect “the
considered judgment of an agency faithfully executing
the law of the United States[,]” Bowen, 476 U.S. at
480, when in fact those decisions were “made on the
15
basis of a systematic procedural irregularity that
rendered them subject to court challenge.” Id. at 481
(quoting Heckler, 742 F.2d at 738); see also Impact
Energy Res., LLC v. Salazar, 693 F.3d 1239, 1253
(10th Cir. 2012) (Lucero, J. concurring) (“[T]he parade
of horribles regarding secret agency decision-making
is largely mitigated by the availability of equitable
tolling.”).
A categorical bar against tolling thus “heightens”
this Court’s concern that the ever-growing
administrative state would further “slip from” judicial
review, Free Enter. Fund, 561 U.S. at 499. It would
encourage the very type of agency misconduct that
occurred in this case. An agency could evade judicial
review by concealing from the target of an
enforcement action a known constitutional defect in
its administrative proceedings—here, an undisputed
violation of the Appointments Clause under Lucia—
until the statutory deadline has run.
Consider another example in the rulemaking
rather than adjudication context. Suppose DOT
secretly “relied on factors which Congress has not
intended it to consider[]” in developing hazardous
materials regulations. See Motor Vehicle Mfrs. Ass’n
of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983). It then conceals its arbitrary and
capricious process until § 5127(a)’s 60-day judicialreview window closes. Under the Eleventh Circuit’s
misguided approach, no one could seek judicial review
of the agency’s unlawful rulemaking.
Rule 26(b)’s preclusive effect also would
disproportionately harm lower-income individuals
and small businesses that often appear pro se in
agency proceedings. Such parties lack resources
16
needed to timely discover agencies’ efforts to conceal
violations of their rights. It also negates this Court’s
rulings that filing deadlines to challenge agency’s
proceedings are nonjurisdictional, and thus subject to
tolling.
The question of whether Rule 26(b) precludes
equitable tolling of a statutory deadline is thus ripe
for review, and this case presents a clean vehicle to
conduct such a review. The Eleventh Circuit’s per
curiam decision was dispositive of Petitioner’s
attempt to seek judicial review. If Petitioner had
received equitable tolling until the date of discovery,
its petition for review would have been timely. But the
court below dismissed the petition as untimely based
on its determination that Rule 26(b) categorically
precludes equitable tolling of a deadline for petitions
to review the order of an agency. See App.4a–5a. The
question is thus squarely presented for this Court’s
consideration.
II.
THE DECISION BELOW CONFLICTS WITH THIS
COURT’S PRECEDENT
The decision below conflicts with this Court’s
precedent that a nonjurisdictional statutory filing
deadline is subject to equitable tolling absent clear
congressional intent to the contrary, Boechler, 596
U.S. at 209. Rule 26(b) cannot supply congressional
intent to preclude tolling for the simple reason that it
was not enacted by Congress. By relying on that courtcreated rule to preclude tolling, the decision below
contradicts this Court’s precedent.
Irwin v. Department of Veterans Affairs, 498 U.S.
89, 95–96 (1990), “sets out the framework for deciding
the applicability of equitable tolling in suits against
17
the Government.” United States v. Wong, 575 U.S.
402, 407 (2015). That framework recognizes that
“[e]quitable tolling is a traditional feature of
American jurisprudence and a background principle
against which Congress drafts limitations periods.”
Boechler, 596 U.S. at 208–09 (citation omitted).
“Because [courts] do not understand Congress to alter
that backdrop lightly, nonjurisdictional limitations
periods are presumptively subject to equitable
tolling.” Id. at 209 (citing Irwin, 498 U.S. at 95–96).
This presumption is “reinforced” when Congress
enacted a deadline after Irwin, because it “was likely
aware that courts[]” would interpret the relevant
“timing provision[]” to “apply the presumption.”
Holland v. Florida, 560 U.S. 631, 645–46 (2010). A
reinforced presumption applies here because 49
U.S.C. § 5127(a) was enacted after Irwin as part of the
Safe, Accountable, Flexible Efficient Transportation
Equity Act of 2005, Pub. L 109-59, title VII, § 7123(b),
119 Stat. 1907, Aug. 10, 2005.
“Congress, of course, may provide otherwise if it
wishes to do so.” Irwin, 498 U.S. at 96. For example,
it can make a statute of limitations jurisdictional, but
that “requires its own plain statement[.]” Wong, 575
U.S. at 420. This Court has “repeatedly held that
filing deadlines ordinarily are not jurisdictional[,]”
and that a particular time bar may be treated as
jurisdictional only if Congress “clearly stated” so.
Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153–
154 (2013) (cleaned up). The panel below did not
suggest that 49 U.S.C. § 5127(a)’s deadline is
jurisdictional.
Nonjurisdictional statutory deadlines like that in
§ 5127(a) are presumed to be subject to equitable
18
tolling. Boechler, 596 U.S. at 208–09. This
presumption may be rebutted only if the statutory
text or structure reveals that “Congress did not intend
the ‘equitable tolling’ doctrine to apply[.]” United
States v. Brockamp, 519 U.S. 347, 354 (1997). Hence,
“limitations periods are customarily subject to
equitable tolling, unless tolling would be inconsistent
with the text of the relevant statute.” Young v. United
States, 535 U.S. 43, 49 (2002) (cleaned up). This Court
has consistently held that ordinary statutory
deadlines for petitions to review an agency’s decision
are subject to equitable tolling.
In Bowen, 476 U.S. 467, this Court considered
whether 42 U.S.C. § 405(g)’s 60-day deadline for
seeking judicial review of a final decision of the Social
Security Administration was subject to equitable
tolling. That statutory deadline reads:
Any individual, after any final decision
of the Commissioner of Social Security
made after a hearing to which he was a
party, … may obtain a review of such
decision by a civil action commenced
within sixty days after the mailing to
him of notice of such decision or within
such further time as the Commissioner
of Social Security may allow.
42 U.S.C. § 405(g).
Even though Rule 26(b) was in effect, this Court
still permitted equitable tolling of the deadline,
“conclud[ing] that application of a ‘traditional
equitable tolling principle’ to the 60-day requirement
of § 405(g) is fully ‘consistent with the overall
congressional purpose’ and is ‘nowhere eschewed by
19
Congress.’” Id. at 480 (quoting Honda v. Clark, 386
U.S. 484, 501 (1967)).
The decision below cannot be reconciled with
Bowen. A reviewable decision by the SSA is no less an
“order of an administrative agency, board,
commission, or officer of the United States” under
Rule 26(b) than a DOT decision reviewable under
§ 5127(a). The Eleventh Circuit’s categorical rule—
that deadlines to petition for judicial review of such
decisions are not subject to tolling—squarely
contradicts Bowen.
The decision below also breaks with this Court’s
more recent decision in Boechler, 596 U.S. 199. There,
a law firm sought equitable tolling after missing the
30-day deadline under 26 U.S.C. § 6330(d)(1) to
petition the Tax Court to review IRS’s assessment of
a levy. The Eighth Circuit held tolling was
unavailable. But this Court reversed because nothing
in the statutory text or structure indicated that
Congress intended to foreclose tolling, it held, “Section
6330(d)(1)’s 30-day time limit to file a petition for
review of [the agency’s] determination is an ordinary,
nonjurisdictional deadline subject to equitable
tolling.” Id. at 211.
The same conclusion obtains with respect to 49
U.S.C. § 5127(a)’s deadline for petitions to review
DOT final actions because nothing in that statute’s
text or structure suggests that Congress intended to
preclude equitable tolling. Section 5127(a)’s 60-day
deadline is not written in “emphatic form.” Kontrick v.
Ryan, 540 U.S. 443, 458 (2004) (citation omitted). Nor
does it set forth “limitations in a highly detailed
technical manner,” that “cannot easily be read as
containing implicit exceptions.” See Brockamp, 519
20
U.S. at 350. Nor does “the nature of the underlying
subject” here result in equitable tolling that creates
“serious administrative problems” for the agency. Id.
at 352 (declining to toll tax-collection deadline under
26 U.S.C. § 6511).
Section 5127(a) simply states that a person “may
petition for review of the final action” in the courts of
appeal “not more than 60 days after [an agency’s]
action becomes final.” It is remarkably similar to
§ 6330(d)(1) at issue in Boechler, which states that a
person “may, within 30 days of [an agency’s]
determination under this section, petition the Tax
Court for review[.]” 26 U.S.C. § 6330(d)(1). It is also
not materially different from § 405(g) at issue in
Bowen, which states that a person “may obtain a
review of [the agency’s] decision by a civil action
commenced within sixty days[.]” 42 U.S.C. § 405(g).
Section
5127(a)
contains
an
ordinary,
nonjurisdictional deadline that is subject to equitable
tolling under this Court’s precedent.
The Eleventh Circuit’s reliance on Rule 26(b) to
“preclude flexibility” contradicts this Court’s
precedent that only congressional intent can preclude
tolling of a nonjurisdictional statutory deadline. See
Boechler, 142 S. Ct. at 208–09; Brockamp, 519 U.S. at
354; Irwin, 498 U.S. at 95–96. Rule 26(b) is a selfgoverning rule of procedure adopted by this Court in
1967 under the Rules Enabling Act. See 28 U.S.C.
§ 2071–77. 3 And it has not been amended since.
The Rule Enabling Act delegates to this Court
authority to “prescribe general rules of practice and
procedure and rules of evidence for cases in the United
3
21
Because it was not enacted by Congress through
bicameralism and presentment, Rule 26(b) cannot be
the basis of congressional intent in enacting a
statutory deadline.
The Eleventh Circuit’s departure from this Court’s
precedent regarding statutory deadlines was based on
an erroneous reading of Nutraceutical Corp., 139 S.
Ct. 710, which merely held that Rule 26(b) precluded
the tolling of a court-adopted deadline, id. at 714–15.
Nutraceutical concerned Federal Rule of Civil
Procedure 23(f)’s 14-day deadline to appeal a denial of
class certification. Id. at 713. That 14-day deadline
was adopted by this Court in 2009, see supra note 2,
and thus “is found in a procedural rule, not a statute.”
Id. at 714 (emphasis added). It was therefore
appropriate for this Court to rely on Federal Rule of
Appellate Procedure 26(b), another court-adopted rule
that “single[s] out Civil Rule 23(f) for inflexible
treatment[,]” to conclude the 14-day deadline is not
subject to tolling. Id. at 715. By contrast, Rule 26(b)
does not and cannot “single out” § 5127(a) for
inflexible treatment because a rule adopted by this
States district courts … and courts of appeals.” 28
U.S.C. § 2072. The Act requires this Court to transmit
any rule it prescribes to Congress no later than May 1
of the year in which such rule would take effect. Id.
§ 2074. A rule take effect automatically unless
Congress enacts legislation to reject, modify, or delay
it. Id. Federal Rule of Appellate Procedure 26(b) was
adopted by this Court on Dec. 4, 1967, transmitted to
Congress by the Chief Justice on Jan. 15, 1968, and
became effective on July 1, 1968.
22
Court in 1967 cannot rebut Irwin’s background
presumption that Congress intended to incorporate
traditional principles of equitable tolling when it
enacted § 5127(a) in 2005.
Nor does Rule 26(b)’s text purport to rebut such
presumption of congressional intent. It first states:
“For good cause, the court may extend the time
prescribed by these rules[,]” Fed. R. App. P. 26(b)
(emphasis added), thus limiting its reach to deadlines
established in procedural rules adopted by this Court.
It then provides an express caveat to this power: “But
the court may not extend the time to file[,]” among
other things, “a petition to … review an order of an
administrative agency, board, commission, or officer
of the United States, unless specifically authorized by
law.” Id. Because the power to extend reaches only
deadlines “prescribed by these rules[,]” the caveat to
that power is likewise limited to those same deadlines.
Id. The 60-day deadline of § 5127(a) is not “prescribed
by these rules[,]” id., but rather was enacted by
Congress. The procedural rules do not authorize the
extension of any deadline enacted by Congress. By the
same token, neither can they bar the tolling of such
deadlines—certainly not when Congress intended (as
courts must presume) tolling to be available.
The relevant question is whether Congress meant
for § 5127(a) to be subject to equitable tolling. As with
any other question of statutory interpretation, this
Court’s precedent makes clear that the answer lies in
the text and structure of the statute. The decision
below contradicts that precedent by relying on a courtcreated rule to override the presumption of
congressional intent permitting equitable tolling.
23
III.
THE DECISION BELOW
OTHER CIRCUITS
CONFLICTS
WITH
The Eleventh Circuit’s break with this Court’s
precedent unsurprisingly also conflicts with multiple
courts of appeals that have dutifully followed that
precedent to find ordinary statutory deadlines seeking
judicial review of agency orders in a variety of
contexts to be subject to equitable tolling.
The Second, Eighth, and Tenth Circuits have held
that the APA’s default six-year statute of limitations
under 28 U.S.C. § 2401(a) to seek judicial review of
final agency action is subject to equitable tolling. N.D.
Retail Ass’n v. Bd. of Governors of the Fed. Rsrv. Sys.,
55 F.4th 634, 641–42 (8th Cir. 2022), cert. granted on
other grounds sub nom. Corner Post, Inc. v. Bd. of
Governors, FRS, 216 L. Ed. 2d 1312 (Sept. 29, 2023);
DeSuze v. Ammon, 990 F.3d 264, 267 (2d Cir. 2021);
Chance v. Zinke, 898 F.3d 1025, 1034 (10th Cir. 2018).
The Eleventh Circuit’s decision that Rule 26(b)
precludes tolling for deadlines to petition for judicial
review of any order of an agency, board or commission
squarely conflicts with these circuits.
The D.C. Circuit recently overruled its own
precedent to join the First, Seventh, Ninth, and Tenth
Circuits to hold that 5 U.S.C. § 7703(b)(2)’s 30-day
deadline to seek review of MSPB’s decision on a
discrimination claim is subject to equitable tolling.
Robinson v. Dep’t of Homeland Sec. Off. of Inspector
Gen., 71 F.4th 51, 55–58 (D.C. Cir. 2023); Montoya v.
Chao, 296 F.3d 952, 957 (10th Cir. 2002); Blaney v.
United States, 34 F.3d 509, 513 (7th Cir. 1994);
Nunnally v. MacCausland, 996 F.2d 1, 4 (1st Cir.
1993) (per curiam); Washington v. Garrett, 10 F.3d
1421, 1437 (9th Cir. 1993). The Solicitor General’s
24
Harrow brief makes clear that the Eleventh Circuit’s
interpretation of Rule 26(b) would preclude such
tolling, thus creating an irreconcilable split.
The Tenth Circuit recognizes that the Mineral
Leasing Act’s 90-day statutory deadline to seek review
of the Secretary of Interior’s decision regarding oil and
gas leases is subject to equitable tolling. Impact
Energy Res., 693 F.3d at 1247. Judge Lucero
emphasized that the negative impacts of “secret
agency decision-making is largely mitigated by the
availability of equitable tolling.” Id. at 1253 (Lucero,
J. concurring). Such tolling and mitigation of the
effect of “secret agency decision-making” would not be
possible under the Eleventh Circuit’s erroneous
application of Rule 26(b).
Perhaps the starkest conflict is with the Second
Circuit’s holding that 49 U.S.C. § 32909(b)’s 59-day
deadline to seek review of DOT’s fuel-economy
regulations is subject to tolling. NRDC, 894 F.3d at
107. The deadlines in § 5127(a) and § 32909(b) both
govern filing deadlines for review of DOT regulations
by a court of appeals. Both use similar language.
Compare 49 U.S.C. § 5127(a) (“The petition must be
filed not more than 60 days after the Secretary’s
action becomes final.”) with id. § 32909(b) (“The
petition must be filed not later than 59 days after the
regulation is prescribed[.]”). The Second Circuit’s
decision that “Section 32909 is subject to equitable
tolling[,]” NRDC, 894 F.3d at 107, thus squarely
conflicts with the Eleventh Circuit’s decision holding
that § 5127(a) is “not subject to equitable tolling.”
App.4a–5a.
The only federal appellate court on the Eleventh
Circuit’s side of the split is the Federal Circuit in
25
Harrow, 2023 WL 1987934, at *1, which this Court is
currently reviewing. While the core holding in that
case was based on the Federal Circuit’s belief that the
statutory deadline at issue in that case was
jurisdictional, and thus not susceptible to tolling, it
also said in passing that Rule 26(b) “prohibit[s] the
court from extending or reopening the time to petition
for review ‘unless specifically authorized by law.’” Id.
(quoting Fed. R. App. P. 26(b)).
A majority of circuits follow this Court’s precedent
to hold that ordinary, nonjurisdictional deadlines to
seek judicial review of agency action are subject to
equitable tolling. Boechler, 596 U.S. at 209. The
decision below belongs to an emerging minority that
contradicts this Court’s precedent and should be
snuffed out now. Review is warranted to resolve this
split and to ensure this Court’s precedent is followed.
CONCLUSION
For the foregoing reasons, we respectfully urge the
Court to grant this petition. In the alternative, should
the Court elect to resolve the Rule 26(b) issue in
Harrow, it should hold this petition pending the
decision in Harrow, and then dispose of this petition
as appropriate in light of that decision.
26
Respectfully Submitted,
Mark S. Chenoweth
Counsel of Record
Sheng Li
Kara M. Rollins
NEW CIVIL LIBERTIES ALLIANCE
1225 19th St. NW, Suite 450
Washington, DC 20036
(202) 869-5210
Mark.Chenoweth@ncla.legal
Attorneys for Petitioner
February 9, 2024
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