Opposition Brief — Department of the Army v. John E. Kirkendall, 479 F.3d 830 (2007) (No. 07-19)

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No. 07-19

IN THE

Supreme Court of the United States

DEPARTMENT OF THE ARMY,

Petitioner,

Vv.

JOHN E. KIRKENDALL,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Federal Circuit

BRIEF IN OPPOSITION

Theodore B. Olson

Counsel of Record

Miguel A. Estrada

Henry C. Whitaker

Gibson, Dunn & Crutcher LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

Counsel for Respondent

BEST AVAILABLE COPY

QUESTION PRESENTED

In Irwin v. Department of Veterans Affairs, 498

U.S. 89 (1990), this Court held that “the same rebut-

table presumption of equitable tolling applicable to

suits against private defendants should also apply to

suits against the United States.” Jd. at 95-96. Eight

years later, Congress enacted the Veterans Employ-

ment Opportunities Act of 1998 (VEOA), which pro-

vides a mechanism for veterans to vindicate their

veterans-preference rights in suits against the fed-

eral government. The question presented is:

May the 15-day period for a veteran to file a

VEOA lawsuit in the Merit Systems Protection

Board be equitably tolled in at least some cases?

TABLE OF CONTENTS

Page

COEF Re ee PNET HOE D asin ccscccanvscassassdeteasonnenbeotans i

TRE I PREF BE Ft ovo ccc casinccssecconesccecevsscacnnosces iv

Sc as poe waa 1

I ae 2

REASONS FOR DENYING THE PETITION ............ 7

I. The Federal Circuit’s Decision Is

Correct And Conflicts With No

Decision Of This Court Or Any Other

je ERTS Oar rey OT ie SCO eRe 7

A. The Federal Circuit correctly

applied this Court’s precedent on

FEROS SOR LD Et Ene 8

B. The VEOA’s mandatory language

is insufficient to rebut the J/rwin

III wiinincciincshatiaubiiasakebiikianacccsbescen 11

C. The VEOA’s 15-day time limit is

not an_ inflexible “appellate -

GE SEERA Oe A PREE YPORER NDB ee OTE 15

Il. This Case Is Inappropriate For

pe FAD R TE ae ee eet RN ERD 16

A. This case presents no important

question meriting plenary review ......... 17

B. This case would not be a good

vehicle to review the question

presented even were that question

IOI ok is cacnncastncasacices cAncabuchensatandaunvanss 19

ill

III. This Court Should Not Grant, Vacate,

And Remand This Case In Light Of

a a Es 21

A. Bowles does not undermine the

Federal Circuit’s decision ...................... 22

B. Granting, vacating, and

remanding this case in light of

Bowles is not in the interest of

PUMENCAS GOOTIOIING 6.05 ooo ssn ocd eaencscnckesso sense 27

PERI sic hak ccanssasiecskcapiva giaindnaniebbanbuaasonnpphcbaeis 28

;

TABLE OF AUTHORITIES

Page(s)

CASES

Anderson v. Yungkau, 329 U.S. 482 (1947)........00...... 12

Atl. Thermoplastics Co. v. Faytex Corp., 970

FF Aen ee ar AI wins cnes inei ces ctantdecpoocncs 27

Bowen v. City of New York, 476 U.S. 467

IIE ics sastivsiaia i hacks tpairaiiaedwesb keen neaes 15, 16, 24

Bowles v. Russell, 127 S. Ct. 2360 (2007)......... passim

United States v. Brockamp, 519 U.S. 347

PR rl kictvdciccuistis tecsciiceptiedoudaan insane 9, 10

Doe v. United States, 372 F.3d 1347 (Fed.

Ss Se ais kis pci banbovinrenenccaneenuadedilcionrisBesAanidaakascaals 27

FDIC vu. Meyer, 510 U.S. 471 (1994) ............000600000000 24

Fuel Safe Wash. v. FERC, 389 F.3d 1313

8 RRR SRR eae ayy ee eines WOR NODES 25, 26

Glus v. Brooklyn E. Dist. Terminal, 359

a I coiciis vongivenkstse sapcesulciseceucoaesiarsaseernixs 13

Hallstrom v. Tillamook County, 493 U.S.

PT as tcvcacianlshikabeunsanvsendis cas deebpasdvinlakaodinbestuiienion 23

Henderson v. United States, 517 U.S. 654

SUE sacccinvaninads cacresats cient eceumurecsisadesnsticiksamesnecienss 25

Honda v. Clark, 386 U.S. 484 (1967)........................ 23

Irwin v. Dep't of Veterans Affairs, 498 U.S.

SERIE icin cs Cacaaitanibe a auew cones rina autiaaeiicn passim

King v. St. Vincent’s Hosp., 502 U.S. 215

IN iach nietiteds ARdocib a Lh al antes Ceaseadadaoe 10, 17

Kirkendall v. Dep’t of the Army, 479 F.3d

830 (Fed. Cir. 2007) (en banc) ....................... 13, 20

Lampf, Pleva, Lipkind, Prupis & Petigrow

v. Gilbertson, 501 U.S. 350 (1991)....0....000000.. 14, 15

Lawrence v. Chater, 516 U.S. 163 (1996) ........... an, at

Lexecon Inc. v. Milberg Weiss Bershad

Hynes & Lerach, 523 U.S. 26 (1998) ...............0... 12

Mansfield, C. & L.M. Ry. Co. v. Swan, 111

A A Bae das sora cvtanakecscvavatsbisceisiinuscevasiasvokas 25

Oja v. Dep't of the Army, 405 F.3d 1349

I ee oe sik wanienbiins 22

Scarborough v. Principi, 541 U.S. 401

carers cori cilvcipacdadenuiurkesenemadebivsiat 8, 9, 12, 24

United States v. Sherwood, 312 U.S. 584

I eiiietiat cecik ct csdataes tiekiaailas utibuagauinidiics cla nkeinsnckah 24

Steel Co. v. Citizens for a Better Env’t, 523

a a ey ea hahha dadcarenicanscsecesibicn 20

Teva Pharms. USA, Inc. v. Novartis

Pharms. Corp., 482 F.3d 1330 (Fed. Cir.”

NN Nr Nita aici Gil oad dole edb baaeahccivwasncivannise 27

Va. Military Inst. v. United States, 508 U.S.

ge SERS REGS AUT as RRS ter And Ses ar Eee PAE 19

Young v. United States, 535 U.S. 43 (2002) ....... 12,13

Zipes v. Trans World Airlines, Inc., 455

ES an sek ee sicduk tnakasnslpinkavaneasauesand 11, 24, 26

STATUTES

Be ee A IID ice bccons cas casueda\adunvrancadevsosvanenes 18

eae Bre ce INTE EMI Dik ciinnscc iviicasnessiiadasdnconesecanseniens 3

BD UDA), S TEGO MEA) sissinscvcscncescvsnisecssssvsvonsvars 3, 13

By teers Ae CD ccs iincck dh ccssnnccduevissvageasenes 3, 13, 16

a ee A oct csasiess ddinicevoweatanemeiaeaianesbopmbiial 20

ee ae: A ints entnddinns ede lax ac noes 18

ra, a a a al 8

Be ee ke IIE sivas essicnancrentineninmsstcenupadeensas 8

OTHER AUTHORITIES

Br. for the United States as Amicus Curiae

Supporting Resp’t, Bowles v. Russell,

BE Be es Pe ED icksicts can sdicanrcderascnveneesissascdcae 11

Office of the Assistant Secretary for

Veterans’ Employment & Training, U.S.

Dep’t of Labor, FY 2005 Annual Report

to Congress 23 (2007), available at

http://www.dol.gov/vets/media/FY2005_

Annual_Report_To_Congress.pdf........................ 18

U.S. Merit Systems Protection Board,

Annual Report Fiscal Year 2005 (np),

http://www.mspb.gov/netsearch/viewdoc

s.aspx?docnumber=278041&version=27

8351&application=ACROBAT......................0000ee 19

BRIEF IN OPPOSITION

Respondent John E. Kirkendall respectfully op-

poses the United States’ petition for a®writ of certio-

rari.

INTRODUCTION

While this Nation’s military fights simultaneous

wars in Iraq and Afghanistan, the United States

asks this Court to hold that Congress clearly forbade

all of this Nation’s veterans in all cases from obtain-

ing equitable tolling of the 15-day period for filing a

veterans-preference claim in the Merit Systems Pro-

tection Board. But the en banc Federal Circuit,

which is expert in these matters, reached a contrary

judgment via a garden-variety, careful/ and entirely

correct application of the multi-factor, context-

sensitive test mandated by this Court’s equitable

tolling precedents—principally Irwin v. Department

of Veterans Affairs, 498 U.S. 89 (1990). The decision

below is limited to the distinctive statutory scheme

at issue, is interlocutory, and implicates no circuit

conflict. It does not merit this Court’s review.

Unable to show why this Court should grant ple-

nary review, the government contends that the Court

should grant, vacate, and remand (GVR) in light of

Bowles v. Russell, 127 S. Ct. 2360 (2007). But aGVR

is wholly inappropriate in this case. The Federal

Circuit’s judgment rests on this Court’s settled equi-

table tolling precedents—decisiens that Bowles did

not so much as mention, let alone overrule. Bowles

simply reaffirmed the longstanding rule that the

time within which to appeal an Article III district

court’s decision is “mandatory and jurisdictional.”

This case, by contrast, involves the time for transfer-

ring an adjudication from one administrative body to

another. The Federal Circuit was fully aware of the

rule that the time to appeal a district court’s decision

is jurisdictional, but squarely rejected the relevance

of that rule in this case. There is no reasonable

probability it would change that conclusion were this

case remanded for further consideration in light of

Bowles.

In any event, even were Bowles arguably rele-

vant to the Federal Circuit’s ruling, this Court

should still not GVR in light of Bowles. The Federal

Circuit remanded this case to the Board both so that

Mr. Kirkendall could demonstrate that he is entitled

to equitable tolling on his Veterans Employment Op-

portunities Act of 1998 (VEOA) claim, and for Mr.

Kirkendall to have the hearing on his separate Uni-

formed Services Employment and Reemployment

Rights Act (USERRA) claim to which he is entitled.

At the conclusion of those proceedings, the Federal

Circuit would have ample opportunity to reconsider

its equitable tolling holding in light of Bowles should

Mr. Kirkendall prevail. A GVR in light of Bowles

now, however, would gratuitously delay the hearing

that the Board has, for years, denied Mr. Kirkendall

on his USERRA claim. The Court should not exacer-

bate that delay.

The petition for a writ of certiorari should be de-

nied.

STATEMENT

1. Congress enacted the VEOA, 5 U.S.C.

§ 3330a, “to assist veterans in obtaining gainful em-

ployment with the federal government and to provide

a mechanism for enforcing this right.” Pet. App. 18a.

Congress intended the VEOA to simplify and stream-

line the remedial mechanism by which veterans may

enforce various preferences to which federal law en-

titles them, including preferential treatment in seek-

ing federal employment. The VEOA, accordingly, “is

an expression of gratitude by the federal government

to the men and women who have risked their lives in

defense of the United States.” Id.

_Under the VEOA, veterans who believe their vet-

erans-preference rights have been violated by the

United States government may file a complaint with

the Department of Labor (DOL). See 5 U.S.C.

§ 3330a(a)(1)(A). Such a “complaint must be filed

within 60 days after the date of the alleged viola-

tion.” Id. § 3330a(a)(2)(A). If unsuccessful before the

Secretary, the veteran may then challenge the gov-

ernment’s employment determination in the Board,

“except that in no event may any such appeal be

brought ... later than 15 days after the date on

which the complainant receives written notification

from the Secretary.” Id. § 3330a(d)(1).

2. Respondent John E. Kirkendall is a 100% dis-

abled veteran who suffers from organic brain syn-

drome. Pet. App. 2a. Mr. Kirkendall joined the

United States Army in 1982, and was posted to

South Korea in 1984 and 1985. Govt. C.A. App. 50.

After his service overseas, he served as Commander

of a Direct Support Platoon at Fort Bragg, North

Carolina, and as a Force Integration Officer and an

Executive Officer/Commander at Fort Bliss, Texas.

Id. at 39-40, 49-52. He was honorably discharged

from the Army in 1990, having achieved the rank of

Captain. His disability arises from a cerebral hem-

orrhage that occurred during his service in the Army,

and has resulted in the paralysis of the left side of

his body. Jd. at 67.

In 1999, Mr. Kirkendall applied for a position as

a Supervisory Equipment Specialist (Aircraft) with

the Army at Fort Bragg. His service and resulting

disability entitled him to a 10-point veterans prefer-

ence under federal law. Pet. App. 2a. In support of

his application, Mr. Kirkendall submitted a two-page

resume noting his experience in aviation mainte-

nance. Govt. C.A. App. 39-40. The resume detailed,

for example, that Mr. Kirkendall had held a job at

Fort Bragg virtually identical to the position offered;

in that job he had supervised 30 enlisted men and

women and five officers. Jd. at 39. He also submit-

ted an evaluation from his supervisor, who stated

that “Captain Kirkendall is an extremely talented

officer who possesses superb skills” and recom-

mended that he “be promoted to Major and command

an aviation maintenance unit.” Id. at 42.

In January 2000, the Army informed Mr. Kirk-

endall in writing that it had rated him “Ineligible”

for the position purportedly because his application

lacked “details of [his] experience relating to [the of-

fered] position.” Jd. at 46. Mr. Kirkendall requested

reconsideration. Id. at 47. The regional employment

office advised him in writing to “[e]xpand on [his] du-

ties as Aviation Maintenance Chief” and more fully

discuss his experience and responsibilities. Jd. at 48.

Mr. Kirkendall submitted a revised four-page resume

that incorporated these suggestions. Id. at 49-52.

The Army again rated Mr. Kirkendali “Ineligi-

ble,” once again asserting a lack of detail in his ap-

plication. Jd. at 56. A follow-up letter sent by an

Army official stated that Mr. Kirkendall’s resume

was deficient because “(t]he duties reflected under

each job title were indescriptive and inconclusive in

describing how the tasks were actually per-

formed/executed in relation to the duties required by

this position.” Jd. at 57. Mr. Kirkendall e-mailed the

director of the regional employment office, asking

why he had been rated “Ineligible” in light of his ex-

panded resume. Id. at 58, 64. In an e-mail response,

the director admitted that Kirkendall “most likely

[has] the necessary qualifications for the position in

question.” Jd. at 65. The director did not indicate

that Kirkendall’s resume insufficiently detailed the

duties performed in each prior job, but noted that the

resume was deficient because it should have included

the starting and ending months for the various

jobs—not just the years. Id. The director identified

no other reason for the “Ineligible” rating. Another

candidate, a 30% disabled veteran, was selected for

the position. Pet. App. 3a.

3. Proceeding pro se, Mr. Kirkendall filed a com-

plaint with the DOL, alleging that the Army had vio-

lated his veterans-preference .ights under the

VEOA. Govt. C.A. App. 5. The DOL advised him

that his complaint was untimely because it was not

filed within 60 days of the alleged VEOA violation, as

required by 5 U.S.C. § 3330a(a)(2)(A). Pet. App.

140a-141a.

On June 13, 2002, Mr. Kirkendall sought review

of the Army’s refusal to hire him in the Merit Sys-

tems Protection Board. Mr. Kirkendall renewed his

VEOA claim, and also separately contended that the

Army had unlawfully discriminated against him in

violation of USERRA. An administrative judge dis-

missed Mr. Kirkendall’s VEOA claim as untimely

and also dismissed his USERRA claim. /d. at 133a-

134a. The full Board eventually affirmed that deci-

sion.

4. Still proceeding pro se, Mr. Kirkendall sought

review in the Federal Circuit. A divided panel of

that court reversed the Board’s decision. Jd. at 89a.

The majority held that the 60-day time period set

forth in 5 U.S.C. § 3330a(a)(2)(A), and the 15-day

time period set forth in 5 U.S.C. § 3330a(d)(1)(B),

were both subject to equitable tolling under the

standard established in Jrwin v. Department of Vet-

erans Affairs, 498 U.S. 89, 95-96 (1990). The panel

also held that Mr. Kirkendall was entitled to a hear-

ing on his separate USERRA claim. It thus re-

manded the case to the agency “to assess whether

Kirkendall’s disability prevented him from comply-

ing with the filing requirements,” id. at 97a, and for

the Board to hold a hearing on his USERRA claim.

Judge Dyk dissented from both rulings.

5. The Federal Circuit granted the government’s

request for rehearing en banc, and appointed the un-

dersigned pro bono counsel for Mr. Kirkendall. Jd. at

86a-87a. The en banc panel agreed with the panel’s

holding in both respects, ruling not only that the

time limits in the VEOA were amenable to equitable

tolling, but also that Mr. Kirkendall is entitled to a

hearing on his USERRA claim. 7d. at 2a.

The court rested its equitable tolling holding on

the framework articulated in /rwin. The court rea-

soned that “Kirkendall’s VEOA claim is sufficiently

analogous to private actions brought under Title VII

of the Civil Rights Act of 1964 . . . to invoke the pre-

sumption that equitable tolling applies here.” Jd. at

8a-9a. Applying the /rwin presumption, the court

considered in detail the purpose, structure, and lan-

guage of the VEOA, and concluded that it contained

no “clear or emphatic evidence of Congress’ intent to

foreclose equitable’ tolling under _ section

3330a(d)(1B).” Jd. at 10a; see also id. at 9a-18a.

Judge Gajarsa concurred separately to provide addi-

tional reasons supporting the court’s equitable-

tolling ruling. Jd. at 29a-43a.

Judge Moore concurred in part and dissented in

part. She agreed with the en banc majority that the

Irwin presumption applied to the VEOA. But Judge

Moore argued that Congress had clearly rebutted

that presumption by, among other things, including

the words “in no event” in the statutory text. See id.

at 43a, 46a-48a. Judge Moore agreed, however, that

Mr. Kirkendall was entitled to a hearing on his

USERRA claim. Id. at 58a-62a. Judge Bryson also

dissented, expressing the view that Mr. Kirkendall

was not (contrary to the majority’s ruling) entitled to

a hearing on his USERRA.claim. /d. at 63a-80a.

Judge Dyk, writing only for himself, dissented sepa-

rately. Id. at 80a-85a.

REASONS FOR DENYING THE PETITION

I. The Federal Circuit’s Decision Is Cor-

rect And Conflicts With No Decision Of

This Court Or Any Other Court

The decision below is correct and conflicts with

no decision of this Court or any other court of ap-

peals. Indeed, the government scarcely even at-

tempts to satisfy traditional certiorari criteria. The

government's petition contends instead that Con-

gress clearly forbade veterans from obtaining equita-

ble tolling of the 15-day time period for bringing a

VEOA case in the MSPB. Pet. 16-22. The Federal

Circuit correctly rejected that argument.

A. The Federal Circuit correctly

applied this Court’s precedent on

equitable tolling

In 1990, this Court clarified a drafting rule

against which Congress has legislated ever since.

Absent clear indication to the contrary, statutory

time limits governing suits against the federal gov-

ernment—even those phrased in mandatory terms—

may be equitably tolled in lawsuits that are arguably

(though not necessarily precisely) analogous to a pri-

vate lawsuit. Irwin, 498 U.S. at 95; Scarborough v.

Principi, 541 U.S. 401, 422 (2004). Congress enacted

the VEOA just eight years later, against the back-

ground of that settled presumption, and nothing in

the VEOA rebuts it, much less clearly so.

The ZJrwin presumption of equitable tolling

squarely governs the time limits in the VEOA. As

the three-judge panel and 13-judge Federal Circuit

en banc panel unanimously recognized, a VEOA suit

in the MSPB is strikingly analogous to a private Ti-

tle VII lawsuit in United States district court. Pet.

App. 8a-9a (majority opinion); id. at 44a (Moore, J.,

concurring in part and dissenting in part); id. at 93a

(panel majority); id. at 102a (Dyk, J., dissenting).

Both Title VII and the VEOA vindicate employment

rights against the federal government, and do so in

parallel ways. As Judge Gajarsa pointed out, id. at

30a-3la, a Title VII private claimant, for example,

must first file a complaint with the EEOC, and only

then may file a private suit in federal district court.

See 42 U.S.C. § 2000e-5(e), ((1). Equitable tolling

applies to both of those deadlines. Irwin, 498 U.S. at

95. Like a Title VII claimant, a VEOA claimant

must first file a complaint with the DOL, and if the

DOL is unable to resolve the complaint, then may

bring an action in the MSPB.! Because that reme-

dial structure is precisely analogous to the structure

of Title VII, this Court should presume that the time

limits in the VEOA may be equitably tolled just like

the time limits in Title VII.

The Federal Circuit correctly ruled that nothing

in the VEOA clearly rebuts that presumption. The

factors this Court has previously employed to rebut

the Jrwin presumption do not apply to the time lim-

its in the VEOA. For example, in United States v.

Brockamp, 519 U.S. 347 (1997), this Court concluded

that the statute of limitations for filing federal tax

refund claims precluded equitable tolling. The Court

found that this statute—which employed the word

“shall,” 519 U.S. at 350—“‘set(] forth its time limita-

tions in unusually emphatic form,” not because the

statutory language was absolute, but rather because

Congress gave a number of structural signals that

tolling was precluded. /d. at 350-53. For example,

the tax statute in Brockamp set forth the time period

in a “highly detailed technical manner,” repeated

that time limit several times, and set forth explicit

exceptions to the time limit. Jd. at 350-51. The

Court also emphasized the obvious administrative

1 The government disputes this analogy between the VEOA

and Title VII in a two-sentence footnote. “(T]he VEOA,” the

government says, “does not directly prohibit discrimination

against veterans, but instead merely provides a mechanism for

enforcement of veterans’ preference rights.” Pet. 17 n.5 (empha-

sis in original). But as the government recognizes, a “precise

private analogue” is not required for the /rwin presumption to

govern a suit against the Povernment. Jd. (quoting Scarbor-

ough v. Principi, 541 U.S. 401, 422 (2004)). The similarities

between Title VII and the VEOA easily satisfy that lenient

standard.

problems that would be caused by permitting equita-

ble tolling for the hundreds of millions of tax-refunds

claims filed each year. Id.

The Federal Circuit faithfully followed that

analysis in this case. The 15-day time limit in the

VEOA is not structured in “unusually emphatic”

terms like the statute in Brockamp. Pet. App. 6a-

23a. Section 3330a is miles away from being “de-

tailed, technical, or repeated”: like many limitations

periods that are routinely held subject to tolling, the

15-day time limit in the VEOA is stated in straight-

forward, simple terms in a single subsection. Jd. at

16a-17a. Section 3330a also contains no explicit ex-

ceptions that might suggest that Congress deliber-

ately considered, yet rejected, equitable tolling. Jd.

at 17a.2 The statute in addition is relatively short—

far shorter than other statutes this Court has held to

foreclose equitable tolling. Jd. Finally, the Federal

Circuit noted that the purpose of the VEOA’s admin-

istrative scheme—which is “an expression of grati-

tude by the federal government to the men and

women who have risked their lives in defense of the

United States”—and the fact that many veterans

proceed pro se both support permitting equitable toll-

ing. Jd. at 18a. Those features are all the more per-

suasive in this case, which is governed by the “canon

that veterans’ benefits statutes should be construed

in the veteran’s favor.” Jd. at 17a, 22a (citing, among

other cases, King v. St. Vincent’s Hospital, 502 U.S.

215, 220 n.9 (1991)). A straightforward application

2 The government did not contend below, and does not con-

tend here, that permitting equitable tolling of the VEOA’s time

limits would create administrative problems comparable to per-

mitting equitable tolling for the tax-return deadlines at issue in

Brockamp.

a <—

of the factors this Court considered in Brockamp

therefore shows that the time limits in the VEOA

may be equitably tolled.

B. The VEOA’s mandatory language is

insufficient to rebut the Irwin

presumption

The government barely discusses the multi-factor

analysis that this Court conducted in Brockamp to

establish that a statute emphatically precludes toll-

ing. Instead, the United States attaches talismanic

significance to the fact that the 15-day time limit is

phrased in mandatory terms. Pet. 18-19. But the

text of all time limits is mandatory; otherwise they

would not be “limits.” The government’s “textual”

theory would render ail tolling doctrine nugatory.

Indeed, Jrwin made clear that mandatory language

alone does not foreclose equitable tolling. When con-

sidered against the backdrop of the Jrwin drafting

rule, therefore, the government’s heavy reliance on

the categorical language in the VEOA is utterly mis-

placed.

This Court has repeatedly held that “a time limit

may be phrased in seemingly categorical terms but

still be subject to equitable tolling.” Br. for the

United States as Amicus Curiae Supporting Resp'’t,

Bowles v. Russell, 127 S. Ct. 2360 (2007). The exam-

ples are legion. In /rwin itself, this Court explained

that a statute providing that “[e]very claim .. . shall

be barred unless the petition ... is filed within six

years,” did not clearly indicate that Congress in-

tended every such action to be barred within the

time period. 498 U.S. at 95 (emphasis added and

quotation marks omitted). In Zipes v. Trans World

Airlines, Inc., 455 U.S. 385 (1982), this Court like-

wise held that the time limit on filing a Title VII

charge with the EEOC—which provided the charge

“shall be filed” within a time certain—was subject to

equitable tolling. Jd. at 393-94 & n.10 (emphasis

added). And in Scarborough, this Court ruled that a

time limit providing that fee applications pursuant to

the Equal Access to Justice Act “shall” be filed and

“shall” contain certain allegations was subject to eq-

uitable exceptions. 541 U.S. at 407-08, 420-23. All of

those time limits employed the word “shall,” which

“normally creates an obligation impervious to judi-

cial discretion.” Lexecon Inc. v. Milberg Weiss Ber-

shad Hynes & Lerach, 523 U.S. 26, 35 (1998) (citing

Anderson v. Yungkau, 329 U.S. 482, 485 (1947)). Yet

this Court never wavered from the rule that such ab-

solute, facially exceptionless language does not fore-

close equitable exceptions.

Similarly, in Young v. United States, 535 U.S. 43,

50 (2002), this Court—at the United States’ urging—

unanimously fashioned an equitable exception to the

facially mandatory three-year “lookback period” for

discharging a federal tax liability in bankruptcy. On

its face, that statute excepted the discharge of any

federal tax liability for which a return was due

within three years of the filing of the bankruptcy pe-

tition. See Young, 535 U.S. at 46. Despite the man-

datory, unqualified language of that exception, this

Court held that the pendency of a prior bankruptcy

petition equitably tolled that deadline. Jd. at 47. To

reach that result consistent with the Bankruptcy

Code’s absolute language, this Court relied on /rwin,

noting the rule that Congress drafts such time peri-

ods in light of the presumption in favor of equitable

tolling. Id. at 49-50.3

The mandatory language this Court repeatedly

held to permit equitable tolling in those cases is in-

distinguishable from the language in the 15-day pe-

riod in the VEOA. The VEOA provides that “in no

event” may any VEOA claim be brought after a cer-

tain time. 5 U.S.C. § 3330a(d)(1). But language pro-

viding that certain claims “shall be barred”—which

the government apparently concedes is not suffi-

ciently emphatic to foreclose equitable tolling, Pet.

18—or providing that “no” claims may be filed after a

date certain, on their face are as mandatory and un-

forgiving of exceptions as the words “in no event.”

That is no doubt why the government conceded below

that the mandatory language in the 60-day time

limit on filing a VEOA claim with the DOL—which

provides that such claims “must be filed within 60

days,” 5 U.S.C. § 3330a(a)(2)(A)—‘“on its face, could

be interpreted as being susceptible to equitabie toll-

ing.” Br. for Resp’t Dep’t of the Army at 25, Kirken-

dall v. Dep’t of the Army, 479 F.3d 830 (Fed. Cir.

2007) (en banc).

That concession was correct, for “Congress must

be presumed to draft limitations periods in light of”

the presumption that mandatory language, by itself,

is insufficient to foreclose equitable tolling. Young,

535 U.S. at 49-50. Congress enacted the VEOA just

3 This analysis is by no means a novelty introduced by /rwin;

it has long been this Court’s approach to supposedly “manda-

tory” deadlines. In, for example, Glus v. Brooklyn Eastern Dis-

trict Terminal, 359 U.S. 231 (1959), this Court permitted equi-

table tolling of a statute that provided that “/n/o action shall be

maintained ... unless commenced within three years.” Jd. at

231 (emphasis added and internal quotation marks omitted).

eight years after Jrwin, and therefore presumably

followed the convention established in those cases:

that facially absolute language alone does not fore-

close equitable tolling. See Pet. App. 40a-41la (Ga-

jarsa, J., concurring). As the Federal Circuit prop-

erly recognized, therefore, the “in no event” language

“is little more than a neutral factor” in the analysis.

Id. at 10a.

The government accuses the Federal Circuit of

imposing “a ‘magic words’ requirement” that comes

“perilously close” to requiring Congress “to state in

the text of the statute ‘equitable tolling shall not ap-

ply’ in order to preclude tolling.” Pet. 20. But that is

not so. Congress easily may foreclose equitable toll-

ing without resorting to incantations. For example,

Congress could—as this Court has held it to have

done several times—evince its intent to foreclose toll-

ing by creating explicit exceptions—equitable or

not—to the time limit, see Pet. App. 13a-14a, or by

drafting a time limit in detailed, technical, or re-

peated terms, see id. at 16a-18a. In addition, Con-

gress is well aware that the Jrwin presumption only

applies to suits against the government that contain

an arguable private-suit analogue. See id. at 6a-8a.

The Federal Circuit’s reasoning is inapplicable to

statutes that lack such an analogue. Indeed, it is the

government that asks this Court to rule that the

phrase “in no event” magically transmutes a time

limit into an absolute bar, while equally absolute

language such as “shall be barred” or “must be filed”

does not.

The government also relies on Lampf, Pleva,

Lipkind, Prupis & Petigrow v. Gilbertson, 501 US.

350 (1991), in which the Court declined to permit eq-

uitable tolling of a time requirement borrowed from

three separate statutes of limitations in the securi-

ties laws, one of which used the words “in no event.”

See Pet. 18-19. But Lampf did not reach that holding

via a “strict{] construl[ction],” id. at 18, (or, indeed,

any “construction”) of the words “in no event”; in fact,

only one of the three time limits Lampf held to fore-

close equitable tolling even contained that phrase.

See 501 U.S. at 360 nn.6-7.

Instead, Lampf’s reasoning depended on the

statutes’ structure, which is nothing like the VEOA.

The statutes in Lampf provided that a securities

fraud action could either be brought within one year

of the date the plaintiff discovered the violation, or

within three years of the violation. Jd. Those time

periods were not subject to equitable tolling, the

Court held, because the three-year period, in effect,

served as an exception to the one-year limitations

period; “the three-year period,” the Court explained,

therefore “can have no significance in this context

other than to impose an outside limit.” Jd. at 363

(internal quotation marks and citation omitted). The

VEOA, as the Federal Circuit recognized, contains no

such exception or “outside limit.” See Pet. App. 17a.

C. The VEOA’s 15-day time limit is not

an inflexible “appellate deadline”

Citing Judge Dyk’s lone dissent below, the gov-

ernment in addition argues that the 15-day time pe-

riod in the VEOA is not subject to equitable tolling

because it is “a time limit for appellate review,

rather than a time limit for the initiation of a claim.”

Pet. 21. This Court’s precedents, however, create no

per se rule that an “appellate” time deadline is ipso

facto immune from equitable tolling. On the con-

trary, in Bowen v. City of New York, 476 U.S. 467,

478 (1986), this Court squarely held that the time

period on appealing a decision by the Secretary of

Health and Human Services to deny Social Security

benefits was subject to equitable tolling. And con-

trary to the government’s suggestion, id. at 15 n.3,

Bowen explicitly described that 60-day period as a

time for “seek[ing] judicial review” of the Secretary’s

decision, and therefore recognized it was an appel-

late deadline. 476 U.S. at 473; see also Pet. App. 21a

& n.9. The Federal Circuit relied on Bowen for this

precise proposition. Pet. App. 2la-22a. Since the

government cannot reasonably suggest that Bowen

be reconsidered—and has made no such suggestion—

Bowen forecloses the government’s argument here.

In any event, the 15-day period on bringing a

claim before the MSPB is not an inflexible “appel-

late” deadline under this Court’s precedents. The

VEOA provides that claimants must first file a claim

with the DOL, and then, only after exhausting that

remedy, may file a claim with the Board. But when

it hears such a claim the Board is not “reviewing” the

DOL’s decision; what is being “appealed” is simply

“the alleged violation,” 5 U.S.C. § 3330a(d)(1)—in

other words, the lawfulness of the employing

agency's determination. In that respect, the 15-day

period on filing such a claim with the Board is pre-

cisely parallel to the remedial scheme of Title VII,

which provides that a claimant may file a claim in

district court only after an unsuccessful attempt to

obtain relief from the EEOC. See also supra pp. 8-9.

Equitable tolling applies to Title VII’s time limits.

See Irwin, 498 U.S. at 95. It follows that tolling ap-

plies to the VEOA’s time limits as well.

II. This Case Is Inappropriate For Plenary

Review

The government argues, with almost palpable

lack of enthusiasm, that this Court should grant ple-

nary review of the question of whether the 15-day

time limit on filing a VEOA case in the MSPB should

be equitably tolled. Pet. 22-23. But that question

implicates no circuit split, or important question of

federal law; and even if it did, this case would be an

inappropriate vehicle to decide it.

A. This case presents no important

question meriting plenary review

The government has abandoned its contention—

advanced vigorously in its petition for rehearing en

banc before the Federal Circuit and in its en banc

merits brief—that the Federal Circuit’s decision im-

plicates any circuit split. Jd. at 23. Instead, the gov-

ernment half-heartedly argues that the Federal Cir-

cuit’s holding is “of threshold importance to the ad-

ministration of the VEOA remedial scheme” with

“nationwide effect,” and will adversely impact other

filing deadlines within the Federal Circuit’s jurisdic-

tion. Jd. at 22-23. The government’s petition, how-

ever, amounts to little more than a request for the

correction of :a supposed error that will have little

impact outside, or even within, the unique statutory

scheme of the VEOA.

The Federal Circuit’s decision is unlikely to im-

pact statutes other than the VEOA. The Federal

Circuit employed a highly context-sensitive analysis

to conclude that the time limits in the VEOA were

subject to equitable tolling, and that analysis is not

easily transferable to other statutes. See supra

pp. 8-11. For example, the VEOA is a statute that

protects veterans, and the Federal Circuit squarely

rested its holding on this Court’s “canon that veter-

ans’ benefits statutes should be construed in the vet-

eran’s favor.” Pet. App. 22a (citing, among other

cases, King v. St. Vincent’s Hospital, 502 U.S. 215,

220 n.9 (1991)). Certainly the statutes the govern-

ment cites as evidence of the supposedly significant

effect of the Federal Circuit’s holding, Pet. 23, are

not comparable to the 15-day limit of the VEOA.

Those provisions arise in different schemes and have

entirely different language than the VEOA’s 15-day

appeal provision. Two of those time limits, Tor in-

stance, have express exceptions, unlike the VEOA.

See 5 U.S.C. § 1214(a)(3)(B); 29 U.S.C. § 255(a). Re-

viewing this case will therefore settle no significant

question of federal law outside of the VEOA.

The government also vastly overstates the “na-

tioawide” impact of the Federal Circuit’s ruling on

the administration of the VEOA itself. Pet. 23.

While the Board does have eight regional offices

throughout the United States, http:/(www.mspb.gov/

sites/mspb/pages/Contact.aspx, its VEOA caseload is

not substantial. To illustrate, DOL received 527

VEOA complaints in FY 2005, 21 of which were with-

drawn. This number is skewed by the fact that one

claimant filed 156 complaints in August 2005. See

Office of the Assistant Secretary for Veterans’ Em-

ployment & Training, U.S. Dep’t of Labor, FY 2005

Annual Report to Congress 23 (2007), available at

http://www.dol.gov/vets/media/FY2005_Annual_Repo

rt_To_Congress.pdf. In other words, DOL that year

decided complaints brought by some 350 veterans,

many of whom presumably did not seek review from

the Board. By contrast, the Board decided 8,440

cases in FY 2005—6,847 decisions by administrative

law judges at the regional offices, and 1,593 decisions

by the full Board. U.S. Merit Systems Protection

Board, Annual Report Fiscal Year 2005 (np),

http://www.mspb.gov/netsearch/viewdocs.aspx?docnu

mber=278041&version=278351&application=ACROB

AT. Therefore, even assuming all 350 veterans

sought review—though that number is undoubtedly

much lower—VEOA claims constitute approximately

four percent of the Board’s docket.

The number of VEOA cases in which the ques-

tion presented is even relevant is s.naller still. Even

of these VEOA claims before the Board, a large num-

ber are filed on time, so the Board need only evaluate

whether equitable tolling applies in a much smaller

subset of that small fraction of its docket. And even

in untimely filed VEOA appeals, the question pre-

sented matters only if a litigant is actually entitled

to equitable tolling—an infrequent occurrence. See,

e.g., Irwin, 498 U.S. at 96. This Court has better

uses of its scarce resources than deciding an issue

that will impact only a tiny traction of cases filed in a

single administrative court that is rarely relevant,

let alone outcome determinative.

B. This case would not be a good

vehicle to review the question

presented even were that question

certworthy

Even if the question presented merited this

Court’s attention in the abstract, this case would be

an inappropriate vehicle in which to decide it.

First, the interlocutory posture of this case

strongly counsels against immediate review. The

Court “generally await(s] final judgment in the lower

courts before exercising [its] certiorari jurisdiction.”

Va. Military Inst. v. United States, 508 U.S. 946, 946

(1993) (Scalia, J., respecting the denial of certiorari).

This case flunks that requirement: the Federal Cir-

cuit remanded the case to the Board for further pro-

ceedings on Mr. Kirkendall’s VEOA and USERRA

claims. Should Mr. Kirkendall prevail on remand,

the United States may seek review of the Board’s de-

cision in the Federal Circuit, see 5 U.S.C. § 7703(d),

and in this Court. Its request for review now is pre-

mature.

Second, the government has not asked this Court

to review a closely related, threshold jurisdictional

issue that could preclude this Court from ever reach-

ing the question presented. Below, the United States

contended that the Board lacked jurisdiction to hear

Mr. Kirkendall’s appeal because Mr. Kirkendall had

not met the 60-day time limit on filing a VEOA claim

with the DOL. Br. for Resp’t Dep’t of the Army at

30-37, Kirkendall v. Dep’t of the Army, 479 F.3d 830

(Fed. Cir. 2007) (en banc). The Federal Circuit prop-

erly rejected that contention, Pet. App. 4a-6a, and

the government’s petition does not renew it—no

doubt because the government recognizes that that

question is insufficiently important to warrant re-

view. If the government’s position that the 60-day

time limit is jurisdictional is taken seriously, this

Court might well need to decide that question as a

threshold matter in this case. See Steel Co. v. Citi-

zens for a Better Env’t, 523 U.S. 83, 95 (1998). If it

does, the Court may never reach the question the

Regardless of whether the 60-day period on filing

a VEOA claim with the DOL is jurisdictional, the

government’s failure to seek review of it in this case

still makes this case a poor vehicle in which to decide

whether the VEOA’s 15-day time limit is subject to

equitable tolling. The 60-day time limit for filing

VEOA claims with the DOL, and the 15-day time

limit on filing VEOA claims with the MSPB following

a DOL decision are closely related, and the Federal

Circuit’s en banc decision reviewed those questions

together. Pet. App. 9a-10a, 16a. This Court should

await a petition that presents both before reviewing

either. This petition, however, presents only the lat-

ter question.

III. This Court Should Not Grant, Vacate,

And Remand This Case In Light Of

Bowles

The government argues that the Court should

GVR this case in light of this Court’s recent decision

in Bowles. Pet. 11-16. But this case has nothing to

do with Bowles.

Relying on this Court’s “longstanding treatment”

of time limits on appealing from Articie III district

courts as “mandatory and jurisdictional,” Bowles

held that a habeas petitioner’s failure to file a notice

of appeal within the 14-day reopening period de-

prived the court of appeals of jurisdiction. 127 S. Ct.

at 2363-66. That holding is consistent with, and does

not significantly affect, the Federal Circuit’s analysis

here. A GVR in light of Bowles is therefore unwar-

ranted.

A GVR in light of an intervening decision of this

Court is appropriate only if there is “a reasonable

probability that the decision below rests upon a

premise that the lower court would reject if given the

opportunity for further consideration, and where it

appears that such a redetermination may determine

the ultimate outcome of the litigation.” Lawrence uv.

Chater, 516 U.S. 163, 167 (1996) (per curiam). More.

over, “if the delay and further cost entailed in a re-

mand are not justified by the potential benefits of

further consideration by the lower court, a GVR or-

der is inappropriate.” Jd. at 168. A GVR is clearly

inappropriate under those criteria.

A. Bowles does not undermine the

Federal Circuit’s decision

As an initial matter, Bowles undermines no sig-

nificant premise of the Federal Circuit’s decision.

The Federal Circuit did, of course, reject the govern-

ment’s contention that the 15-day time limit on filing

an appeal with the MSPB is “mandatory and juris-

dictional.” Pet. App. 18a-22a. Bowles does not, how-

ever, cast doubt on the Federal Circuit’s reasoning on

that score. Bowles simply held, based on the specific

structure of the statute before it and based on this

Court’s tradition of treating notices of appeal as ju-

risdictional, that the time for reopening an appeal

from a district court’s decision was mandatory and

jurisdictional. 127 S. Ct. at 2366. The Federal Cir-

cuit went out of its way to reconcile its holding with

that tradition.

The Federal Circuit conceded that “some provi-

sions specifying the time for review are not subject to

equitable tolling” because they are mandatory and

jurisdictional Pet. App. 20a. Nonetheless, the Fed-

eral Circuit concluded that the structure of the

VEOA did not support the conclusion that it was

mandatory and jurisdictional like those statutes. /d.

at 19a-20a. It distinguished its decision in Oja v.

Department of the Army, 405 F.3d 1349 (Fed. Cir.

2005), see id. at 21a, which applied reasoning nearly

identical to Bowles’. Relying on the rule that a notice

of appeal from a United States District Court is

“mandatory and jurisdictional,” Oja held that the

time limit on petitioning for judicial review from a

decision of the MSPB to the Federal Circuit was not

subject to equitable tolling. 405 F.3d at 1358-60.

Judge Dyk’s dissent, indeed, heavily relied upon the

very court of appeals decision that Bowles affirmed.

Pet. App. 82a. In other words, the Federal Circuit

has already considered, and rejected, the contention

that the reasoning of Bowles changes the outcome of

this case.

The government contends that the Article III ap-

pellate deadline Bowles held to be “mandatory and

jurisdictional” shows that the VEOA’s 15-day admin-

istrative deadline is as well. Pet. 13-16. As the gov-

ernment points out, both the VEOA’s deadlines and

the deadline in Bowles are “set out in a statute en-

acted by Congress, not simply in a rule adopted by a

court or tribunal.” Jd. at 13. But this Court has re-

peatedly held that time limits set forth in statutes

duly enacted by Congress are not “jurisdictional pre-

requisites” to suit, but instead are subject to “waiver,

estoppel, and equitable tolling.” Zipes, 455 U.S. at

393; see Hallstrom v. Tillamook County, 493 U.S. 20,

27 (1989); Honda v. Clark, 386 U.S. 484, 501 (1967);

cases cited supra pp. 11-13. The Federal Circuit cor-

rectly relied on that line of cases, Pet. App. 10a-18a,

which Bowles did not mention, let alone overrule.

The government submits, however, that the 15-

day time limit in the VEOA, like the one in Bowles,

“governs the transfer of a case from one tribunal to

another ... and thus defines the class of cases that

the appellate tribunal is competent to hear.” Pet. 13-

14. But Bowles cannot mean that any statute that

“governs the transfer of a case from one tribunal to

another” in any case is “mandatory and jurisdic-

tional.” On the contrary, where, as here, a claimant

is seeking review after the decision of an administra-

tive adjudicator, as opposed to the Article III district

court at issue in Bowles, this Court has held that the

time for seeking review is subject to equitable tolling.

In Jrwin, for instance, this Court held that the

statute governing the time for filing a Title VII ac-

tion in district court after a claimant’s unsuccessful

attempt to obtain relief from the EEOC is not “man-

datory and jurisdictional.” 498 U.S. at 95. Again,

the VEOA’s 15-day time limit governs the “transfer”

of a case from the DOL to the MSPB in precisely the

same sense that Title VII’s time limit on filing a dis-

crimination claim in federal court governs the trans-

fer of a case from the EEOC to federal court. See su-

pra pp. 8-9. And once again, in Bowen, this Court

squarely held that a statute governing the transfer of

a case from the Secretary of Health and Human Ser-

vices to federal court “is not jurisdictional, but rather

constitutes a period of limitations.” 476 U.S. at 478.

The Federal Circuit squarely relied on those cases to

reach its judgment, Pet. App. 21la-22a, and Bowles

leaves them untouched.

Finally, the government contends that the 15-

day time limit is “mandatory and jurisdictional”

within the meaning of Bowles because it “is con-

tained in the same statutory section that contains

the general grant of jurisdiction to the MSPB.” Pet.

14. But that a time limit appears in a “grant of ju-

risdiction” does not make it immune from equitable

tolling. For example, Jrwin, Scarborough, and Zipes

all allowed equitable tolling of time limits that ap-

peared in statutory provisions waiving the sovereign

immunity of the United States. “Sovereign immu-

nity is jurisdictional in nature” and “the ‘terms of the

[United States’] consent to be sued in any court de-

fine that court’s jurisdiction to entertain the suit.”

FDIC v. Meyer, 510 U.S. 471, 475 (1994) (quoting

United States v. Sherwood, 312 U.S. 584, 586 (1941)).

Yet those cases, and others, reject the government’s

notion that the presence of such a provision in a

grant of jurisdiction, standing alone, makes it man-

datory and jurisdictional. In Henderson v. United

States, 517 U.S. 654 (1996), to take another example,

this Court squarely rejected the government’s argu-

ment that a time period for serving the United States

with process was “mandatory and jurisdictional”

simply because it appeared in a statute waiving the

sovereign immunity of the United States. Id. at 671-

72. Indeed, the Jrwin presumption always involves a

“jurisdictional” statute, since it applies only to “suits

against the Government.” 498 U.S. at 95.

In any event, there is a world of difference be-

tween a grant of jurisdiction to the MSPB—an ad-

ministrative adjudicator—and the notice of appeal

provision at issue in Bowles, which governed the ju-

risdiction of an Article [II appellate court. As Bowles

noted, there is a long tradition of construing the

deadline for appealing a case from one Article III

court to another as “mandatory and jurisdictional.”

127 S. Ct. at 2362. Not only is there no comparable

tradition construing the deadline for filing a case in

an administrative body thet way, but there is also

good reason not to begin one in this case.

Administrative deadlines are not the same as ju-

dicial ones. As Judge McConnell has explained, “the

authority of a federal regulatory commission”—no

less than any other administrative agency—‘is not

analogous to the subject-matter jurisdiction of a fed-

eral court.” Fuel Safe Wash. v. FERC, 389 F.3d

1313, 1333 (10th Cir. 2004) (concurring opinion).

The principle that “challenges to the subject matter

jurisdiction of the federal courts ... cannot be

waived by the parties ... is grounded in ‘the nature

and limits of the judicial power of the United States,’

which is constitutional in nature, and ‘inflexible and

without exception.” Jd. (quoting Mansfield, C. &

L.M. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884)). By

contrast, “[t]he scope of regulatoiy jurisdiction ... is

a matter of policy for Congress to decide.” Jd. In in-

terpreting the boundaries of an Article III court’s ju-

risdiction, therefore, courts must tread carefully.

Those constitutional concerns are absent in this case,

which involves the scope of the jurisdictional grant to

an administrative adjudicator, the MSPB. Thus, the

deadline for filing a discrimination charge with the

EEOC, another administrative body, may be equita-

bly tolled—even though that time period appears in

the same section of the statute granting the EEOC

jurisdiction over charges. See Zipes, 455 U.S. at 389

n.2, 393-94.

In the end, the government’s arguments set up a

diametric conflict between Jrwin and Bowles, all but

inviting this Court to overrule not only Jrwin, but

also its numerous predecessors and progeny that ex-

plicate and apply Jrwin’s strong presumption in favor

of equitable tolling. But those cases are perfectly

consistent with Bowles. The /rwin presumption

“govern(s] the applicability of equitable tolling in

suits against the [federal] Government,” 498 U.S. at

95, and only then when there is a sufficiently analo-

gous private lawsuit to that federal-government suit,

Scarborough, 541 U.S. at 422. Bowles, however, in-

volved a federal habeas corpus petition by a state

prisoner. The federal government was not the de-

fendant in that case, and even had it been, there is

no arguable private-suit analogue to a habeas corpus

action. Jrwin was beside the point in Bowles—which

is why the Court in Bowles did not cite that decision.

But Jrwin squarely governs this case, and compels

the conclusion that the time limits in the VEOA are

subject to equitable tolling, as the Federal Circuit

properly ruled. See Pet. 6a-18a, 28a-43a (Gajarsa, J.,

concurring).

B. Granting, vacating, and remanding

this case in light of Bowles is not in

the interest of judicial economy

A GVR in light of Bowles is also inappropriate in

this case because “the delay and further cost entailed

in a remand [is] not justified by the potential benefits

of further consideration by the lower court.” Law-

rence, 516 U.S. at 168.

A GVR in light of Bowles would delay these pro-

ceedings with little corresponding benefit. Because

this case has been remanded to the Board, the Fed-

eral Circuit will have an opportunity to reconsider its

equitable-tolling holding in light of Bowles after Mr.

Kirkendall prevails on his claims. See supra pp. 19-

20. If the government is correct that Bowles is con-

trolling here, the Federal Circuit would have ample

opportunity to consider the effect of Bowles on its

judgment, since the Federal Circuit adheres to the

rule that otherwise-binding circuit precedent can be

reconsidered if “undermined by intervening Supreme

Court ... authority.” Doe v. United States, 372 F.3d

1347, 1354 (Fed. Cir. 2004); see also Teva Pharms.

USA, Inc. v. Novartis Pharms. Corp., 482 F.3d 1330,

1338 (Fed. Cir. 2007); Atl. Thermoplastics Co. v. Fay-

tex Corp., 970 F.2d 834, 838-39 n.2 (Fed. Cir. 1992).

The government thus stands to gain little from a

GVR. It has not sought review of the Federal Cir-

cuit’s ruling that Mr. Kirkendall was entitled to a

hearing on his separate and distinct USERRA claim.

That claim will therefore proceed regardless of what

happens on remand after any GVR. Since there will

be further remand proceedings in the Board regard-

less of whether this Court GVRs the Federal Cir-

cuit’s equitable-tolling ruling, doing so would do little

to preserve the government’s resources even were it

somehow to persuade the Federal Circuit that

Bowles has decisive relevance to its decision.

The cost to Mr. Kirkendall of a GVR, on the other

hand, is great. Mr. Kirkendall has been unlawfully

denied a hearing on his USERRA claim for years.

This Court should not compound that delay so that

the Federal Circuit may consider the effect of a deci-

sion the relevance of which it has already essentially

rejected, and that it will have a chance to consider in

any event even were it relevant.

CONCLUSION