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No. 07-19

In the Supreme Court of the United States

DEPARTMENT OF THE ARMY, PETITIONER
v.
JOHN E. KIRKENDALL
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

PAUL D. CLEMENT
Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General
GREGORY G. GARRE
Deputy Solicitor General
KANNON K. SHANMUGAM
Assistant to the Solicitor
General
JEANNE E. DAVIDSON
KATHRYN A. BLEECKER
MICHAEL JAY SINGER
MICHAEL A. ROBINSON
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the 15-day statutory time limit for filing an appeal with the Merit Systems Protection Board from a decision of the Secretary of Labor denying a complaint under the Veterans Employment Opportunities Act of 1998, 5 U.S.C. 3330a(d), is subject to equitable tolling.

In the Supreme Court of the United States

No. 07-19

DEPARTMENT OF THE ARMY, PETITIONER
v.
JOHN E. KIRKENDALL
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the Department of the Army, respectfully petitions for a writ of certio rari to review the judgment of the United States Court of Appeals for the Federal Circuit in this case.

OPINIONS BELOW

The opinion of the en banc court of appeals (App., infra, 1a-85a) is reported at 479 F.3d 830. The panel opinion of the court of appeals (App., infra, 89a-110a) is reported at 412 F.3d 1273. The opinions and orders of the Merit Systems Protection Board (App., infra, 111a- 113a, 124a-129a) are reported at 97 M.S.P.R. 605 (Table) and 94 M.S.P.R. 70. The initial decisions of the adminis trative law judge (App., infra, 114a-123a, 130a-139a) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on March 7, 2007. On May 24, 2007, the Chief Justice ex tended the time within which to file a petition for a writ of certiorari to and including July 5, 2007. The jurisdic tion of this Court is invoked under 28 U.S.C. 1254(1).

3. STATUTORY PROVISIONS INVOLVED

Section 3330a of Title 5 of the United States Code is reproduced in the appendix to this petition (App., infra, 143a-146a).

STATEMENT

1. In order to facilitate the readjustment of veterans to civilian life, federal law has long provided preferences to certain veterans, including disabled veterans, seeking employment with the executive branch of the federal government. See, e.g., 5 U.S.C. 2108(3)(C). Veterans who are "preference eligible" are awarded additional points in the process used to make hiring decisions. See, e.g., 5 U.S.C. 3309(1). This case concerns the time limits for administrative appeals from the denial of claims al leging a violation of the veterans' preference laws.

To establish "a uniform redress mechanism for the enforcement of veterans' preference laws in both hiring and reductions-in-force decisions," S. Rep. No. 340, 105th Cong., 2d Sess. 15 (1998); accord H.R. Rep. No. 40, 105th Cong., 1st Sess., Pt. 1, at 9 (1997), Congress enacted the Veterans Employment Opportunities Act of 1998 (VEOA), 5 U.S.C. 3330a et seq. The VEOA pro vides that "[a] preference eligible [veteran] who alleges that an agency has violated such individual's rights un der any statute or regulation relating to veterans' preference may file a complaint with the Secretary of Labor." 5 U.S.C. 3330a(a)(1). Such a complaint "must be filed within 60 days after the date of the alleged viola tion." 5 U.S.C. 3330a(a)(2)(A). If the Secretary of La bor (Secretary) is unable to resolve the complaint within 60 days of its filing, the complainant may elect to appeal the alleged violation to the Merit Systems Protection Board (MSPB or Board). 5 U.S.C. 3330a(d)(1). In the language at issue here, the VEOA provides that "in no event may any such appeal be brought * * * before the 61st day after the date on which the complaint is filed; or * * * later than 15 days after the date on which the complainant receives written notification from the Secre tary" that she was unable to resolve the complaint. Ibid.

2. Respondent is a disabled veteran who applied for the civilian position of Supervisory Equipment Specialist in the Aircraft Maintenance Division at the Army base at Fort Bragg, North Carolina. The Army treated re spondent as "preference eligible," but found that he was ineligible for the position because his application lacked sufficient detail to allow the Army to determine whether he possessed sufficient experience for the particular job he sought. On January 5, 2000, the Army notified re spondent of its decision. The Army chose another dis abled veteran, who was also "preference eligible," to fill the position. App., infra, 2a-3a.

Respondent subsequently filed a complaint with the Secretary of Labor under the VEOA, alleging that the Army violated his preference rights. Although the re cord does not reflect exactly when respondent filed the complaint, it is undisputed that he filed it more than 60 days after the alleged violation. App., infra, 3a, 92a n.1. On November 29, 2001, the Secretary informed respon dent that his complaint had been dismissed as untimely. Id. at 140a-141a. In the notice of dismissal, the Secre tary specifically informed respondent that he had "the right to take [his] claim to the [MSPB]," and that "that claim must be filed within 15 days of the date following the receipt of this notification." Ibid.

3. Nearly 200 days later, on June 13, 2002, respon dent filed an appeal with the MSPB from the Secretary of Labor's denial of his VEOA complaint. An adminis trative judge dismissed the appeal. App., infra, 130a- 139a. As a preliminary matter, the administrative judge noted that "[respondent] does not deny that his com plaint to [the Secretary] was filed after the time limit set by statute." Id. at 133a. Because the Secretary had rejected respondent's complaint as untimely, the admin istrative judge concluded that the MSPB lacked jurisdic tion over respondent's appeal. Ibid. In the alternative, the administrative judge noted that, even assuming that the MSPB had jurisdiction, "[respondent's] appeal was not filed with the Board until June 13, 2002, long after he received [the Secretary's] November 29, 2001 notifi cation." Id. at 134a. The administrative judge con cluded that, because "VEOA's 15-day deadline for filing an appeal cannot be waived," "an appeal filed beyond that deadline must be dismissed." Ibid.

4. The full Board denied review in relevant part. App., infra, 124a-129a. It reasoned that respondent's petition for review "d[id] not meet the criteria for review set forth at 5 C.F.R. § 1201.115." App., infra, 125a. That regulation provides for review by the full Board of initial decisions by administrative law judges where, inter alia, "[t]he decision of the judge is based on an erroneous interpretation of statute or regulation." 5 C.F.R. 1201.115(d)(2).

5. A divided panel of the court of appeals reversed and remanded. App., infra, 89a-110a. It held both that the 60-day period established by 5 U.S.C. 3330a(a)(2)(A) for filing a VEOA complaint with the Secretary of Labor is subject to equitable tolling, and, as is relevant here, that the 15-day period established by 5 U.S.C. 3330a(d)(1) for filing an appeal with the MSPB is also subject to equitable tolling. App., infra, 89a-110a.

6. At the Department of the Army's request, the court of appeals granted rehearing en banc. App., infra, 86a-88a. Before the en banc court, the government ar gued that equitable tolling is not available for the 15-day appeal period established by Section 3330a(d)(1). Adopting the position of the panel, the en banc court of appeals reversed the Board and remanded, holding by a 7-6 majority that the 15-day appeal period is subject to equitable tolling. Id. at 1a-85a.

a. In an opinion written by Judge Mayer and joined in relevant part by Chief Judge Michel, Judges Newman, Schall, Gajarsa, and Linn, and Senior Judge Plager, the court of appeals explained that, in Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990), this Court "established the presumption that equitable toll ing is available in suits against the government when permitted in analogous private litigation." App., infra, 6a. The court of appeals reasoned that, because equita ble tolling is available on a claim of discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and respondent's VEOA claim was "sufficiently analogous" to a Title VII claim, equitable tolling is pre sumptively available on respondent's VEOA appeal. App., infra, 8a-9a.

The court of appeals then concluded that Congress had failed to "evince[] a clear intent to rebut that pre sumption." App., infra, 9a. The court rejected the gov ernment's argument that, by providing in Section 3330a(d)(1) that an appeal may "in no event" be brought outside the 15-day period, Congress manifested its in tent to prohibit equitable tolling. Id. at 10a. While ac knowledging that the phrase "in no event" is "certainly strong," the court reasoned that "the statute's technical language is little more than a neutral factor in our analy sis." Ibid. The court concluded that the statutory language was "analogous to statutory language" providing simply that a claim "shall be filed," or would be "barred" if not filed, within the requisite period. Id. at 15a (cita tions omitted). "Because the 'in no event' language is of limited, if any, special importance," the court continued, "we firmly reject the government's contention that al lowing equitable tolling here renders that language superfluous." Ibid.

In support of its conclusion that the time limit in Sec tion 3330a(d)(1) is subject to equitable tolling, the court of appeals noted that "section 3330a is not detailed"; "section 3330a's fairly simple language is not technical"; "the timing provisions in section 3330a are not re peated"; "section 3330a does not contain explicit excep tions to the two filing deadlines"; and "the 15-day fil- ing period under section 3330a(d)(1)(B) is extraordi narily short." App., infra, 16a-17a. The court further observed that the purpose of the VEOA-"to assist vet erans in obtaining gainful employment with the federal government and to provide a mechanism for enforcing this right"-and the canon that "veterans' benefits stat utes should be construed in the veteran's favor" sup ported the conclusion that equitable tolling is available. Id. at 18a, 22a.

The court of appeals also rejected the government's argument that the time limit in Section 3330a(d)(1) is jurisdictional, and, as a result, is mandatory and not subject to equitable tolling. App., infra, 18a-21a. Rely ing on its earlier decision in Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998) (en banc), the court reasoned that statutes specifying periods for review, like statutes of limitations, were subject to a presumption in favor of equitable tolling. App., infra, 19a. The court of appeals further reasoned that, in subsequent decisions, this Court had "clarified that time prescriptions, however emphatic, are not properly typed 'jurisdictional.'" Id. at 19a-20a (internal quotation marks omitted) (citing Arbaugh v. Y&H Corp., 546 U.S. 500 (2006); Eberhart v. United States, 546 U.S. 12 (2005) (per curiam); Scar borough v. Principi, 541 U.S. 401 (2004); and Kontrick v. Ryan, 540 U.S. 443 (2004)). The court of appeals dis counted as "irrelevant" the fact that some periods for review, such as the 90-day period for filing petitions for certiorari in this Court in civil cases, are not subject to equitable tolling. Id. at 20a-21a.

b. Judge Gajarsa, joined by Judge Linn and Senior Judge Plager, concurred. App., infra, 28a-43a. Judge Gajarsa agreed with the majority that a VEOA claim was analogous to a Title VII claim, for which equitable tolling is available. Id. at 30a-31a. He also agreed that there was "no good reason to believe" that Congress would have wanted to prohibit equitable tolling. Id. at 34a (internal quotation marks and citation omitted). With regard to the statutory language, Judge Gajarsa reasoned that "Congress could have placed the words 'equitable tolling shall not apply' in the statute but did not do so." Id. at 40a. Judge Gajarsa added that the court of appeals' earlier decision in Bailey "compels us not to create a new exception applying a lighter or no presumption to time limits dealing with periods of re view." Id. at 42a-43a.

c. Judge Moore, joined by Judges Lourie, Rader, Bryson, Dyk, and Prost, dissented in relevant part. App., infra, 43a-80a. At the outset, Judge Moore noted that "Congress set forth the 15-day deadline in unusu ally emphatic form." Id. at 46a. "If the 'in no event' language is not meant to foreclose tolling," she ex plained, "it would be entirely superfluous." Id. at 47a. "Short of saying 'equitable tolling shall not apply,'" she continued, "Congress could not have been clearer." Ibid. (footnote omitted). Judge Moore contended that the court's approach was "inconsistent with basic and fundamental tenets of statutory construction, which at tempt to discern congressional intent by first looking to the language of the statute itself." Id. at 48a-49a.

Judge Moore next reasoned that "[r]eading the em phatic 'in no event' language as it is used in the context of the entire VEOA further evinces Congress's intent to preclude tolling." App., infra, 51a. She noted that, "[i]n all other parts of the VEOA, Congress used less em phatic language to establish time limits," ibid., and that "[the VEOA's] time limits are detailed and sequential," id. at 52a. Judge Moore suggested that the purpose of the VEOA was to allow expeditious resolution of claims challenging an agency's hiring decision. Id. at 55a. Ac cording to Judge Moore, "[i]t is also significant that this statute is one specifying the time for filing an appeal." Ibid. She noted that, in the VEOA context, "[a]ppeals * * * are filed after the appellant has received notice regarding the specific time periods and location for ap pealing," and that respondent had received such notice in this case. Id. at 56a-57a.

Finally, Judge Moore reasoned that the 15-day dead line is, "in many ways, mandatory and jurisdictional in that [Section 3330a] is the sole statute providing the Board's jurisdiction over VEOA claims." App., infra, 58a. In addition, she explained that, "[t]o the extent that Bailey is read as permitting equitable tolling even where a statute is decisively 'mandatory and jurisdic tional[,]' it would seem inconsistent with Supreme Court precedent." Id. at 55a n.5 (citing Stone v. INS, 514 U.S. 386 (1995), and Missouri v. Jenkins, 495 U.S. 33 (1990)).

d. Judge Dyk also dissented separately. App., infra, 80a-85a. In his view, "the doctrine of equitable tolling and the accompanying presumption should not apply to appeal periods in either the judicial or the administra tive context." Id. at 80a. He explained that "[t]he doc trine of equitable tolling is designed to militate the harsh results that would flow from the strict application of statutes of limitations," and that "[t]he fundamental error in today's decision lies in applying that doctrine to a statute providing a time for appeal." Ibid. Accord ing to Judge Dyk, that error "traces back to our * * * decision in Bailey." Ibid. While observing that this Court's intervening cases "have admittedly clouded the 'jurisdictional' nature of appeal periods," Judge Dyk contended that those cases "have not undermined the strictness of the rule for appellate time limits." Id. at 81a. He noted that "whether [appeal] provisions are jurisdictional [was] itself under review by [this] Court" in Bowles v. Russell, 127 S. Ct. 2360 (2007), and that "Bowles appears also to present the question whether some form of equitable tolling is available with respect to appeal periods." App., infra, 81a-82a n.2. Judge Dyk also suggested that equitable tolling of periods for ap pellate review "creates a risk of making finality unat tainable" and "is [not] necessary in the interests of fair ness." Id. at 85a.

Judge Dyk also rejected the suggestion that "equita ble tolling of appeal periods is necessary in the interests of fairness." App., infra, 85a. He explained that, "[u]n like a potential litigant confronting a statute of limita tions, an individual who appeals an adverse decision has already determined to commence a judicial or adminis trative proceeding and has demonstrated the ability to participate in the process." Ibid. Moreover, Judge Dyk continued, as was the case here, "[t]ypically * * * in administrative cases the losing party receives actual notice of the time for appeal." Ibid.1

REASONS FOR GRANTING THE PETITION

The 7-6 en banc majority of the Federal Circuit erred by holding that the 15-day statutory time limit for filing an appeal with the MSPB from a decision of the Secre tary of Labor denying a complaint under the VEOA is subject to equitable tolling. As a preliminary matter, the court of appeals erred by treating the time limit as non-jurisdictional. As this Court reaffirmed just weeks ago in Bowles v. Russell, 127 S. Ct. 2360 (2007), a statu tory time limit governing the transfer of a case from one tribunal to another is jurisdictional, and, as a result, is mandatory and not subject to equitable tolling. Because the en banc court did not have the benefit of the Court's decision in Bowles when it decided this case, the Court should vacate and remand for the court of appeals to reconsider its conclusion in light of Bowles.

Having erred by holding as a threshold matter that the time limit at issue is non-jurisdictional, the court of appeals further erred by holding that the time limit is subject to equitable tolling under Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990). The statute on its face rebuts any presumption in favor of equitable tolling, because it emphatically provides that a VEOA appeal "in no event" may be brought beyond the 15-day time limit. Congress need go no further in spelling out that a time period is fixed and not subject to equitable tolling. Because the Federal Circuit has exclusive juris diction over VEOA appeals, its holding in this case will have nationwide effect. Accordingly, if this Court does not vacate and remand in light of Bowles, it should grant plenary review and hold that equitable tolling is unavailable.

A. This Court's Intervening Decision In Bowles v. Russell Underscores That The Time Limit In Section 3330a(d)(1) Is Jurisdictional And Thus Not Subject To Equitable Tolling

The court of appeals rejected the government's argu ment that the 15-day statutory time limit for filing a VEOA appeal with the MSPB is jurisdictional and thus not subject to equitable tolling. See App., infra, 18a- 21a. The court of appeals reached that conclusion, how ever, without the benefit of this Court's recent decision in Bowles, although Judge Dyk specifically noted that Bowles was pending at the time. Id. at 81a-82a. Be cause Bowles underscores that the time limit at issue is jurisdictional and clarifies the prior decisions from this Court on which the court of appeals relied in concluding to the contrary, it would be appropriate for this Court to vacate the court of appeals' judgment and remand for reconsideration in light of Bowles.

1. Three weeks ago, in Bowles, this Court held that a habeas petitioner's failure to file a notice of appeal within the 14-day reopening period specified by 28 U.S.C. 2107(c) (and Federal Rule of Appellate Proce dure 4(a)(6)) deprived the court of appeals of jurisdic tion. 127 S. Ct. at 2363-2366. The Court began by not ing that it had "long held that the taking of an appeal within the prescribed time is mandatory and jurisdic tional." Id. at 2363 (internal quotation marks and cita tion omitted); see id. at 2362 (stating that "[w]e have long and repeatedly held that the time limits for filing a notice of appeal are jurisdictional in nature"). While acknowledging that "several of [the Court's] recent deci sions have undertaken to clarify the distinction between claims-processing rules and jurisdictional rules," the Court explained that "none of [those decisions] calls into question [the Court's] longstanding treatment of statu tory time limits for taking an appeal as jurisdictional." Id. at 2364.

The Court distinguished its decisions in Eberhart v. United States, 546 U.S. 12 (2005) (per curiam), and Kontrick v. Ryan, 540 U.S. 443 (2004), on which the ma jority below relied, on the ground that those decisions did not involve statutory time limits. Bowles, 127 S. Ct. at 2364-2365. The Court likewise distinguished its deci sions in Arbaugh v. Y&H Corp., 546 U.S. 500 (2006), and Scarborough v. Principi, 541 U.S. 401 (2004), on which the majority below also relied, on the grounds that they involved an employee-numerosity requirement (in the case of Arbaugh) and the availability of attorney's fees ancillary to an action as to which the court already had jurisdiction (in the case of Scarborough). 127 S. Ct. at 2365. The Court further noted that it had treated the 90-day period for filing petitions for certiorari in civil cases as jurisdictional. Ibid.

Applying that understanding, the Court held that, because the statutory 14-day time limit for taking an appeal on reopening was jurisdictional, it was manda tory and not subject to exception. Bowles, 127 S. Ct. at 2366-2367. The Court also rejected the habeas peti tioner's reliance on the "unique circumstances" doctrine, on the ground that "this Court has no authority to create equitable exceptions to jurisdictional requirements." Id. at 2366. The Court noted that Congress could authorize courts to promulgate rules that excuse compliance with statutory time limits, but reiterated that, in the absence of such an authorization, courts "lack present authority to make the exception [the habeas petitioner] seeks." Id. at 2367.

2. Bowles underscores that the 15-day statutory time limit for filing a VEOA appeal with the MSPB is jurisdictional and thus not subject to equitable tolling. That time limit, like the time limit in Bowles, is set out in a statute enacted by Congress, not simply in a rule adopted by a court or tribunal. And the statute es tablishing that time limit, like the statute in Bowles, governs the transfer of a case from one tribunal to an other-namely, from the Secretary of Labor to the MSPB-and thus defines the class of cases that the ap pellate tribunal is competent to hear.2 Indeed, the statu tory case for treating the time limit here as jurisdic tional is if anything stronger than in Bowles, because the time limit is contained in the same statutory section that contains the general grant of jurisdiction to the MSPB over VEOA appeals. See 5 U.S.C. 3330a(d)(1); App., infra, 58a (Moore, J., dissenting) (noting that "[Section 3330a] is the sole statute providing the Board's jurisdic tion over VEOA claims"); cf. Cowan v. United States, 710 F.2d 803, 805 (Fed. Cir. 1983) (noting that "[the MSPB's] jurisdiction is limited to those areas specifi cally granted by statute or regulation").

The time limit at issue in this case does concern the appeal of a case from one administrative agency to an other, rather than from one court to another (or from an administrative agency to a court). But that does not render the reasoning of Bowles inapposite. To the con trary, administrative agencies are creatures of statute and Congress can constrain administrative agencies, no less than courts, by specifying the circumstances under which agencies have jurisdiction to hear cases, including when agencies are acting in the capacity of appellate tribunals. Cf. Stone v. INS, 514 U.S. 386, 405 (1995) (stating, without distinguishing between courts and ad ministrative agencies, that "time limits" in "statutory provisions specifying the timing of review * * * are, as we have often stated, mandatory and jurisdictional, and are not subject to equitable tolling") (internal quotation marks and citation omitted); Joshi v. Ashcroft, 389 F.3d 732, 734 (7th Cir. 2001) (observing that "[t]he emergent distinction * * * is between those deadlines that gov ern the transition from one court (or other tribunal) to another, which are jurisdictional, and other deadlines, which are not") (emphasis added). Moreover, as both the majority and dissenting opinions in Bowles make clear, when Congress imposes a jurisdictional time limit on a tribunal, only Congress may create equitable excep tions to such a time limit. See Bowles, 127 S. Ct. at 2366 (noting that "this Court has no authority to create equi table exceptions to jurisdictional requirements"); id. at 2368 (Souter, J., dissenting) (noting that, "if a limit is taken to be jurisdictional, meritorious excuse [becomes] irrelevant (unless the statute so provides)").3

In reaching the conclusion that the time limit in Sec tion 3330a(d)(1) is not jurisdictional, the court of appeals reasoned that this Court had "clarified that time pre scriptions, however emphatic, are not properly typed 'jurisdictional.'" App., infra, 19a-20a (internal quotation marks omitted) (citing Arbaugh, Eberhart, Scarborough, and Kontrick). Although Judge Dyk noted in his dissent that Bowles was pending (and that the majority's read ing of this Court's precedents was in any event wrong), see id. at 81a-82a & n.1, the court of appeals did not have the benefit of the Court's decision in Bowles at the time it issued its opinion-and Bowles makes clear that "none of [the cited decisions] calls into question [the Court's] longstanding treatment of statutory time limits for taking an appeal as jurisdictional." 127 S. Ct. at 2364.4 At a minimum, this Court should therefore vacate the court of appeals' judgment and remand so that the court of appeals can reconsider whether, in light of Bowles, the time limit in Section 3330a(d)(1) is jurisdic tional, and, as a result, is mandatory and not subject to equitable tolling.

B. Even If The Time Limit In Section 3330a(d)(1) Were Non-Jurisdictional, It Would Not Be Subject To Equitable Tolling

The court of appeals further erred by holding that the statutory time limit at issue is subject to equitable tolling. That holding cannot be squared with this Court's decisions concerning the circumstances under which equitable tolling is available for non-jurisdictional time limits, much less with the unequivocal "in no event" command of Section 3330a(d)(1).

1. In Irwin, supra, this Court held that "the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States." 498 U.S. at 95-96. The court of appeals held that such a presumption was appli cable to the time limit in Section 3330a(d)(1) because "[respondent's] VEOA claim is sufficiently analogous to private actions brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq." App., in fra, 8a-9a. Assuming that the Irwin presumption is ap plicable here, the court of appeals erred by holding that the presumption was not rebutted.5

As this Court has explained, the relevant inquiry under Irwin is whether "there [is] good reason to be lieve that Congress did not want the equitable tolling doctrine to apply." United States v. Brockamp, 519 U.S. 347, 350 (1997). As with all questions of statutory inter pretation, that inquiry naturally begins with the text of the statute, and, where equitable tolling would be "in consistent with the text of the relevant statute," it is not permitted. Young v. United States, 535 U.S. 43, 49 (2002) (quoting United States v. Beggerly, 524 U.S. 38, 48 (1998)). Thus, as this Court has emphasized, where a statute "sets forth its time limitations in unusually em phatic form," equitable tolling is not warranted. Broc kamp, 519 U.S. at 350.

Section 3330a(d)(1) contains such "unusually em phatic" language. Rather than providing merely that a VEOA appeal must be filed within 15 days (or that a VEOA appeal shall be barred unless it is filed within 15 days), see Irwin, 498 U.S. at 94-95 (discussing statutes worded in that manner), Section 3330a(d)(1) provides that a VEOA appeal "in no event * * * may * * * be brought * * * later than 15 days" after the claimant receives written notice from the Secretary of Labor. As Judge Moore noted in her dissenting opinion, "[s]hort of saying 'equitable tolling shall not apply,' Congress could not have been clearer." App., infra, 47a. A reading of Section 3330a(d)(1) that permitted equitable tolling would render the "in no event" language effectively superfluous-in contravention of the fundamental canon of statutory construction that "a statute must, if possi ble, be construed in such fashion that every word has some operative effect." United States v. Nordic Vill., Inc., 503 U.S. 30, 36 (1992).

Moreover, in other federal statutes establishing fil ing deadlines, the phrase "in no event" has consistently been strictly construed. Several major statutes provide that an action must be brought within a specified limita tions period and "in no event" may be brought outside a longer period of repose. See, e.g., 15 U.S.C. 77m (Secu rities Act of 1933); 15 U.S.C. 78i(e) (Securities Exchange Act of 1934); 31 U.S.C. 3731 (False Claims Act). In Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbert son, 501 U.S. 350 (1991), this Court held that neither the one-year limitations period nor the three-year repose period of the Securities Act of 1933 was subject to equi table tolling. Id. at 363. That statute provides, in rele vant part, that "[i]n no event shall any * * * action be brought * * * more than three years after the security was bona fide offered to the public." 15 U.S.C. 77m. The Court reasoned that "the purpose of the 3-year limi tation is clearly to serve as a cutoff." Lampf, 501 U.S. at 363. Lower courts construing similarly worded statutes have reached the same result. See, e.g., Cook v. Deltona Corp., 753 F.2d 1552, 1562 (11th Cir. 1985); Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1042-1043 (10th Cir. 1980).

2. In reading Section 3330a(d)(1) to permit equitable tolling, the court of appeals relied heavily on this Court's decisions in Brockamp and Beggerly. See App., infra, 12a-14a, 16a-17a. In each of those cases, however, the Court was construing statutes that, at least by their ex press terms, did not emphatically preclude equitable tolling. In Brockamp, the statute at issue stated that a "[c]laim for * * * refund * * * of any tax * * * shall be filed by the taxpayer" within a specified time period (and repeated that time limit on several occa sions). 26 U.S.C. 6511(a). In Beggerly, the statute pro vided that a quiet title action "shall be barred unless it is commenced within twelve years of the date upon which it accrued." 28 U.S.C. 2409a(g). Notwithstanding that unremarkable statutory language, the Court held in each instance that other factors compelled the conclu sion that, despite Irwin, the time limits at issue were not subject to equitable tolling. See Brockamp, 519 U.S. at 350-354; Beggerly, 524 U.S. at 48-49.

In this case, the court of appeals dismissed "the stat ute's technical language" as "little more than a neutral factor in our analysis," App., infra, 10a, and instead held that Section 3330a(d)(1)'s more emphatic "in no event" language was insufficient, in the absence of at least some of the other factors cited in Brockamp and Beggerly, to overcome the Irwin presumption in favor of equitable tolling. As Judge Gajarsa conceded in his concurring opinion, however, that approach comes perilously close to requiring Congress to state in the text of the statute that "equitable tolling shall not apply" in order to pre clude tolling, id. at 40a-a "magic words" requirement that no time limit currently contained in the United States Code would satisfy. There is no basis in this Court's cases for such an approach, which would be at odds with the fact that "the time limits imposed by Con gress in a suit against the government involve a waiver of sovereign immunity." Irwin, 498 U.S. at 96.

The court of appeals compounded its error by misap plying some of the factors cited in Brockamp and Beg gerly in analyzing the time limit in Section 3330a(d)(1). The court first asserted that "section 3330a is not de tailed," App., infra, 16a, and that "section 3330a's fairly simple language is not technical." Id. at 17a. That lan guage, however, is no less technical than the relevant language of the statutes at issue in Brockamp and Beg gerly, and it appears in the context of a complex and detailed regime for the processing of VEOA claims. The court next asserted that "section 3330a does not contain explicit exceptions to the two filing deadlines." Ibid. The fact that Congress specified that a VEOA appeal "in no event * * * may * * * be brought" outside the 15- day limit, however, makes clear that Congress intended that there be no exceptions to that limit, and did not intend to permit an "unmentioned, open-ended, 'equita ble' exception[] into the statute that it wrote." Broc kamp, 519 U.S. at 352. Finally, the court asserted that "the 15-day filing period under section 3330a(d)(1)(B) is extraordinarily short." App., infra, 17a. But the brevity of a filing period is not sufficient to overcome a textual declaration that it shall "in no event" be extended, and, in any event, as Judge Dyk explained, the time limit ap plies to a class of individuals who have "already deter mined to commence * * * administrative proceedings and [have] demonstrated the ability to participate in the process." Id. at 85a.

In addition, to the extent that the court of appeals considered extratextual factors in concluding that the Irwin presumption had not been overcome, it erred by failing to recognize that Section 3330a(d)(1) establishes a time limit for appellate review, rather than a time limit for the initiation of a claim. As Judge Dyk noted in dis sent, whereas "statutes of limitations merely govern the time when a case is first filed," "equitable tolling of ap peal periods creates a risk of making finality unattain able." App., infra, 84a. Accordingly, to the extent that lower courts (like the court below) have held that appel late time limits are non-jurisdictional, they have gener ally held (unlike the court below) that such time limits are mandatory and not subject to equitable tolling. See id. at 82a-83a (citing cases). Thus, while it is unques tionably true, as the majority opinion noted, that "[t]he purpose of the VEOA is to assist veterans in obtaining gainful employment with the federal government and to provide a mechanism for enforcing this right," id. at 18a, it does not follow that Congress would have intended to permit tolling of the period for appealing a decision on a VEOA claim, even assuming that it did intend to per mit tolling of the period for filing a VEOA claim in the first place (despite the undoubted need for prompt reso lution of grievances relating to federal employment). Nor would such a rule be inequitable where, as here, the VEOA claimant was provided with notice of the period for appeal when his initial complaint was dismissed. See id. at 140a-141a.6

3. Finally, having already relied on the VEOA's pur pose of assisting veterans in concluding that the time limit in Section 3330a(d)(1) is subject to equitable toll ing, the court of appeals reasoned that "the canon that veterans' benefits statutes should be construed in the veteran's favor" supported that conclusion. App., infra, 22a. Because the text of Section 3330a(d)(1) unambigu ously forecloses equitable tolling, however, that canon is unavailing. See Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285 (1946) (concluding that applica tion of that canon would "distort the language of [the] provisions [at issue]"). Moreover, as Judge Dyk ex plained, "interests of fairness" do not support the equitable-tolling argument advanced by respondent here. App., infra, 85a.

C. The Question Presented Is Important And Warrants Review

The question whether the 15-day statutory time limit for filing a VEOA appeal with the MSPB is subject to equitable tolling is a recurring one of threshold impor tance to the administration of the VEOA's remedial scheme. Because the Federal Circuit has exclusive jurisdiction over appeals from MSPB decisions in VEOA cases, see 28 U.S.C. 1295(a)(9), no circuit conflict will arise on the availability of equitable tolling under Sec tion 3330a(d)(1), and the Federal Circuit's holding that equitable tolling is available will have nationwide effect. The MSPB has already begun reopening VEOA appeals previously dismissed as untimely in order to determine whether equitable tolling is warranted. See Hayes v. Department of the Army, 2007 M.S.P.B. No. 157 (June 13, 2007); Seward v. Department of Veterans Affairs, 2007 M.S.P.B. No. 152 (June 12, 2007).

More broadly, the en banc Federal Circuit's decision, which employs an unduly broad methodology for deter mining whether equitable tolling is available, could have pernicious effects in the interpretation of other filing deadlines within the Federal Circuit's exclusive purview. See, e.g., 5 U.S.C. 1214(a)(3) (period for appeal to the MSPB under the Whistleblower Protection Act); 29 U.S.C. 255 (limitations period for bringing a claim in the Court of Federal Claims under the Fair Labor Stan dards Act); 41 U.S.C. 609(a)(3) (same under the Con tract Disputes Act). The Federal Circuit's extensive reliance in this case on its earlier decision in Bailey am ply demonstrates that mistaken rulings about equitable tolling are not easily cabined to the specific statutory scheme that spawned the erroneous rule. Accordingly, if this Court does not vacate and remand for Bowles, it should grant plenary review to clarify the proper appli cation of the Irwin presumption and decide whether the time limit in Section 3330a(d)(1) is subject to equitable tolling.7

CONCLUSION

The petition for a writ of certiorari should be granted, the judgment of the court of appeals vacated, and the case remanded for further consideration in light of Bowles v. Russell, 127 S. Ct. 2360 (2007). In the alter native, the petition should be granted and the case set for briefing and oral argument.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
PETER D. KEISLER
Assistant Attorney General
GREGORY G. GARRE
Deputy Solicitor General
KANNON K. SHANMUGAM
Assistant to the Solicitor
General
JEANNE E. DAVIDSON
KATHRYN A. BLEECKER
MICHAEL JAY SINGER
MICHAEL A. ROBINSON
Attorneys

JULY 2007

1 At the same time that he filed his VEOA appeal, respondent also filed a complaint with the MSPB under the Uniformed Services Em ployment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. 4301 et seq., alleging that he had been discriminated against on the basis of his military service. The administrative judge determined that re spondent had failed to present any evidence demonstrating that his status was a substantial or motivating factor in the Army's ineligibility determination, and denied respondent's request for a hearing. App., infra, 114a-123a. The full Board denied review. Id. at 111a-113a. The initial court of appeals panel held that a veteran who has filed a USERRA complaint with the MSPB is entitled to a hearing as of right. Id. at 98a-100a. The en banc court of appeals granted rehearing on that issue, as well as the VEOA issue discussed above, and held by a 7-6 majority that a USERRA complainant is entitled to a hearing as of right. Id. at 23a-28a (plurality opinion); id. at 58a-62a (Moore, J., joined by Prost, J., concurring in the result in relevant part). Respondent's USERRA claim is not at issue in this petition.

2 As in the Article III context, notice of an appeal to the MSPB divests the Secretary of Labor of jurisdiction over the complaint. See 5 U.S.C. 3330a(d)(3).

3 Judge Dyk observed that Bowen v. City of New York, 476 U.S. 467 (1986), "is in some tension" with this Court's cases establishing that statutory time limits for appeals are jurisdictional and thus mandatory. App., infra, 81a n.1. In Bowen, the Court held in passing that the 60- day limit in 42 U.S.C. 405(g) for commencing a civil action in federal district court challenging an administrative determination as to Social Security benefits "is not jurisdictional." 476 U.S. at 478. As Judge Dyk explained, however, the Bowen Court found that 42 U.S.C. 405(g) con stitutes a "statute of limitations" (and not a statute specifying a period for review). 476 U.S. at 478-479. The time limit at issue in this case, like the one in Bowles, is explicitly delineated as a time limit on "appeal[s]," 5 U.S.C. 3330a(d)(1), and Bowen is at a minimum distin guishable on that basis. Accordingly, Bowen does not support the court of appeals' decision holding that the time limit in Section 3330a(d)(1) is non-jurisdictional, and does not undermine the force of Bowles as applied to that time limit.

4 The court of appeals also relied on its earlier decision in Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998) (en banc), in which it held that the 120-day statutory time limit for filing an appeal to the Court of Appeals for Veterans Claims from the Board of Veterans' Appeals was subject to equitable tolling. Id. at 1368. This Court's decision in Bowles, how ever, bolsters Judge Moore's conclusion (in her dissenting opinion below) that Bailey is out of step with the Court's precedents. See App., infra, 55a n.5.

5 Although a "precise private analogue" is not required in order to invoke the Irwin presumption, Scarborough, 541 U.S. at 422, the court of appeals also erred by holding that an administrative appeal under the VEOA was sufficiently analogous to a civil action under Title VII, for which equitable tolling is available, to trigger the Irwin presumption. Unlike USERRA (which contains no time limit on administrative com plaints to the MSPB), the VEOA does not directly prohibit discrimina tion against veterans, but instead merely provides a mechanism for enforcement of veterans' preference rights.

6 Prior to the court of appeals' decision in this case, the MSPB had taken the position that the 15-day time limit in Section 3330a(d)(1) is mandatory. See Williams v. Department of the Navy, 94 M.S.P.R. 400, 410 (2003), aff'd, 89 Fed. Appx. 714 (Fed. Cir. 2004); 65 Fed. Reg. 5411 (2000). Although the court of appeals did not address whether the MSPB's interpretation of the statute was entitled to deference, the fact that the MSPB has consistently taken the position that equitable tolling is not available bolsters the conclusion that follows from the statute's plain text. Cf. Krizman v. MSPB, 77 F.3d 434, 439-440 (Fed. Cir. 1996) (deferring to MSPB's determination that a Postal Service employee failed to establish "good cause" for the untimely filing of his appeal).

7 In John R. Sand & Gravel Co. v. United States, cert. granted, No. 06-1164 (May 29, 2007), the Court is considering whether the six-year limitations period established by 28 U.S.C. 2501 is jurisdictional (and thus must be considered by a court even if it is not raised by the parties). It would be unnecessary to hold the petition in this case pending the disposition of John R. Sand & Gravel, because that case does not present any question concerning the applicability (or applica tion) of the presumption in favor of equitable tolling.

 

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

No. 05-3077

JOHN E. KIRKENDALL, PETITIONER

v.

DEPARTMENT OF THE ARMY, RESPONDENT

Mar. 7, 2007

Before MICHEL, Chief Judge, NEWMAN, MAYER, Circuit Judges, PLAGER, Senior Circuit Judge, LOURIE, RADER, SCHALL, BRYSON, GAJARSA, LINN, DYK, PROST, and MOORE, Circuit Judges.

MAYER, Circuit Judge, announced the judgment of the court, and filed the opinion for the court with respect to Part I, in which MICHEL, Chief Judge, NEWMAN, Circuit Judge, PLAGER, Senior Circuit Judge, and SCHALL, GAJARSA, and LINN, Circuit Judges, join, and filed an opinion with respect to Part II, in which MICHEL, Chief Judge, NEWMAN, Circuit Judge, PLAGER, Senior Circuit Judge, and GAJARSA, Circuit Judge, join. GAJARSA, Cir cuit Judge, filed a concurring opinion, in which NEWMAN, Circuit Judge, and PLAGER, Senior Circuit Judge, join. MOORE, Circuit Judge, filed an opinion con curring in part and dissenting in part, in which PROST, Circuit Judge, joins, and in which LOURIE, RADER, BRYSON, and DYK, Circuit Judges, join in part. BRYSON, Circuit Judge, filed a dissenting opinion, in which LOU RIE, RADER, BRYSON, and DYK, Circuit Judges, join, and in which SCHALL and LINN, Circuit Judges, join in part. DYK, Circuit Judge, filed a dissenting opinion.

MAYER, Circuit Judge.

John E. Kirkendall appeals the decision of the Merit Systems Protection Board, which dismissed his claims that he had been discriminated against in violation of the Veterans Employment Opportunities Act of 1998 ("VEOA"), 5 U.S.C. § 3330a (2000), and the Uni formed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4311 (2000). Kir kendall v. Dep't of the Army, AT-3443-02-0622-I-1, AT-0330-02-0621-B-1, 2004 WL 2359294 (MSPB Oct. 13, 2004). Because the VEOA is subject to equitable tolling and Kirkendall is entitled to a hearing on his USERRA claim, we reverse and remand.

Background

Kirkendall, a 100% disabled veteran who suffers from organic brain syndrome, applied for a position as a Supervisory Equipment Specialist (Aircraft), GS- 1670-12, with the Department of the Army ("agency") at Fort Bragg, North Carolina. Kirkendall's service and resulting disability entitled him to a 10-point preference. He included a resume with his application, which indi cated, inter alia, that he had admirably served as the Commander of a Direct Support Platoon at Fort Bragg, and as a Force Integration Officer and an Executive Officer/Commander at Fort Bliss, Texas. In addition, Kirkendall's resume listed numerous, specific duties he had performed, as well as several technical courses he had taken while in the Army. On January 5, 2000, the agency found that Kirkendall's application lacked suffi cient detail regarding his experience and rated him inel igible for the position. Kenneth Black, also a 10-point preference eligible veteran, was chosen to fill the posi tion.

Kirkendall filed several complaints with the agency contesting his non-selection, all of which were denied. He then filed a formal complaint with the Department of Labor ("DoL") claiming a violation of his veterans' preference rights and discrimination based on his dis ability. On November 29, 2001, DoL rejected the com plaint because it had not been filed within 60 days of the agency's alleged violation as required by 5 U.S.C. § 3330a(a)(2)(A). On June 13, 2002, Kirkendall appealed to the Merit Systems Protection Board.

The administrative judge ("AJ") dismissed Kirken dall's USERRA claim for failure to state a claim, and dismissed his VEOA claim on the ground that where DoL rejects a VEOA complaint as untimely, the board has no authority to decide whether DoL should have waived the 60-day deadline. The AJ dismissed the VEOA claim on the further ground that Kirkendall failed to appeal DoL's rejection to the board within 15 days, as required by 5 U.S.C. § 3330a(d)(1)(B), and that the 15-day deadline could not be equitably relaxed. The board affirmed the AJ's decision that the VEOA claim was precluded for failure to timely file, but reversed the determination that Kirkendall had failed to state a proper claim for relief under USERRA. Rather, the board held that Kirkendall's assertion that he was not selected based on his status as a disabled veteran was cognizable. On remand, the AJ held, without a hearing, that Kirkendall had offered no proof that his veteran status was a substantial or motivating factor in his non-selection. Kirkendall again petitioned the full board for review, but review was denied, and the AJ's remand decision became final.

Kirkendall appealed, and a panel of this court re versed and remanded the decision, holding that the board erred by failing to toll the filing periods contained in 5 U.S.C. § 3330a and by refusing to hold a hearing on his USERRA claim. Kirkendall v. Dep't of the Army, 412 F.3d 1273 (Fed. Cir. 2005). The court then granted the government's petition for rehearing en banc, and vacated the panel's opinion. Kirkendall v. Dep't of the Army, 159 Fed. Appx. 193 (Fed. Cir. 2006) (per curiam order).

The order granting en banc review asked the parties to brief three issues: (1) Is the 15-day period for filing appeals to the Merit Systems Protection Board set forth in 5 U.S.C. § 3330a(d)(1)(B) subject to equitable tolling? (2) Is the 60-day period for filing a claim with the Secre tary of Labor set forth in 5 U.S.C. § 3330a(a)(2)(A) sub ject to equitable tolling? (3) Are all veterans who allege a USERRA violation entitled to a hearing under 5 U.S.C. § 7701? Id. at 194.1

Discussion

Preliminarily, we find no merit in the government's suggestion that DoL's rejection of Kirkendall's com plaint as untimely under 5 U.S.C. § 3330a(a)(2)(A) con stitutes a failure to exhaust administrative remedies depriving both the board and this court of jurisdiction over his VEOA claim.2 Because the question of whether section 3330a(a)(2)(A) is subject to equitable tolling was at issue, the board had the authority and the obligation to consider whether DoL's action was in error. See Bowen v. City of N.Y., 476 U.S. 467, 482, 106 S. Ct. 2022, 90 L. Ed. 2d 462 (1986) (excusing claimants' failure to exhaust their administrative remedies for the same rea sons the Court found the underlying timeliness require ment subject to equitable tolling); Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127, 71 L. Ed. 2d 234 (1982) ("[F]iling a timely charge of discrimi nation with the EEOC is not a jurisdictional prerequi site to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling."); Garcia v. Dep't of Homeland Sec., 437 F.3d 1322, 1331 (Fed. Cir. 2006) (en banc) (The board has "jurisdiction to determine its jurisdiction.") (quoting Cruz v. Dep't of Navy, 934 F.2d 1240, 1244 (Fed. Cir. 1991) (en banc)). To conclude otherwise would foreclose judicial review of DoL's rejection, de spite the possibility of tolling, and conflict with the "strong presumption that Congress intends judicial re view of administrative action." Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670, 106 S. Ct. 2133, 90 L. Ed. 2d 623 (1986); see also Conoco, Inc. v. U.S. Foreign-Trade Zones Bd., 18 F.3d 1581, 1585 (Fed. Cir. 1994) ("It is well established that judicial review of agency action is to be presumed, absent clear and con vincing evidence of Congressional intent to the con trary."). We, of course, have authority to review the board's decision under 28 U.S.C. § 1295(a)(9).

I. Equitable Tolling

In deciding whether the timing provisions at issue here are subject to equitable tolling, we are guided by Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990). There the Su preme Court established the presumption that equitable tolling is available in suits against the government when permitted in analogous private litigation. Id. at 95-96, 111 S. Ct. 453. A precise private analogue is not re quired; only that there be sufficient similarity between the suits. See Scarborough v. Principi, 541 U.S. 401, 422, 124 S. Ct. 1856, 158 L. Ed. 2d 674 (2004) ("Litiga tion against the United States exists because Congress has enacted legislation creating rights against the Gov ernment, often in matters peculiar to the Government's engagements with private persons-matters such as the administration of benefit programs. Because many stat utes that create claims for relief against the United States or its agencies apply only to Government defen dants, Irwin's reasoning would be diminished were it instructive only in situations with a readily identifiable private-litigation equivalent.").

In so establishing the presumption in favor of equita ble tolling, the Court recognized that once the govern ment has consented to be sued through a waiver of sov ereign immunity, "making the rule of equitable tolling applicable to suits against the Government, in the same way that it is applicable to private suits, amounts to lit tle, if any, broadening of the congressional waiver." Irwin, 498 U.S. at 95, 111 S. Ct. 453. Instead, "[s]uch a principle is likely to be a realistic assessment of legisla tive intent as well as a practically useful principle of in terpretation." Id. Moreover, it cautioned that "we must be careful not to assume the authority to narrow the waiver that Congress intended, or construe the waiver unduly restrictively." Id. at 94, 111 S. Ct. 453 (quoting Bowen, 476 U.S. at 479, 106 S. Ct. 2022) (internal quotation marks omitted).

However, in order to honor congressional intent, the Irwin presumption can be rebutted if "there [is] good reason to believe that Congress did not want the equita ble tolling doctrine to apply." United States v. Broc kamp, 519 U.S. 347, 350, 117 S. Ct. 849, 136 L. Ed. 2d 818 (1997); see also Young v. United States, 535 U.S. 43, 49, 122 S. Ct. 1036, 152 L. Ed. 2d 79 (2002) ("It is horn book law that limitations periods are customarily subject to equitable tolling, unless tolling would be inconsistent with the text of the relevant statute.") (citations and internal quotation marks omitted); United States v. Beggerly, 524 U.S. 38, 48, 118 S. Ct. 1862, 141 L. Ed. 2d 32 (1998) ("Equitable tolling is not permissible where it is inconsistent with the text of the relevant statute."). We have interpreted this to mean that "absent a clear contrary intent of Congress to limit jurisdiction created by a particular statute," we will apply the presumption. Bailey v. West, 160 F.3d 1360, 1368 (Fed. Cir. 1998) (en banc) (emphasis added). To make this determination, we look to the factors enumerated by the Supreme Court in Brockamp: "the statute's detail, its technical language, its multiple iterations of the limitations period in procedural and substantive form, its explicit inclusion of exceptions, and its underlying subject matter." Brice v. Sec'y of Health & Human Servs., 240 F.3d 1367, 1372 (Fed. Cir. 2001) (citing Brockamp, 519 U.S. at 350-52, 117 S. Ct. 849). Every factor need not be present to find that Congress intended to preclude tolling, Brice, 240 F.3d at 1372-73, and while unlikely, it is possible for a single factor to be dispositive.

In sum, to determine the availability of equitable tolling in suits against the government, we engage in a two-part inquiry. First, we determine whether such tolling is available in a sufficiently analogous private suit. If so, we look to the Brockamp factors to deter mine whether Congress expressed a "clear intent" that equitable tolling not apply.

A.

Turning to the matter at hand, the purpose of the VEOA is to provide preference eligible veterans with a method for seeking redress where their veterans' pref erence rights have been violated in hiring decisions made by the federal government. Where a veteran es tablishes a violation, the agency is ordered to comply with the veterans' preference statutes and award com pensation for any lost wages or benefits suffered by rea son of the violation. 5 U.S.C. § 3330c(a). Moreover, if the violation is found to be willful, the agency is ordered to pay the aggrieved veteran "an amount equal to back pay as liquidated damages." Id. Accordingly, we find that Kirkendall's VEOA claim is sufficiently analogous to private actions brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., to invoke the presumption that equitable tolling applies here. See Irwin, 498 U.S. at 95, 111 S. Ct. 453 (holding that "the statutory time limits applicable to lawsuits against pri vate employers under Title VII are subject to equitable tolling"); Brice, 240 F.3d at 1372 (holding that claims under the Vaccine Act are sufficiently similar to tort claims so as to invoke the Irwin presumption). This leaves only the question of whether Congress has evinced a clear intent to rebut that presumption.

B.

Kirkendall missed both relevant timing provisions under 5 U.S.C. § 3330a. Therefore, if either period is not subject to equitable tolling, his VEOA claim is barred. Because the government concedes that 5 U.S.C. § 3330a(a)(2)(A)3 is subject to equitable tolling, and be cause, if anything, it is comparatively less emphatic, less detailed, and less technical than 5 U.S.C. § 3330a(d)(1),4 we begin our analysis with section 3330a(d)(1). The government argues, based primarily on section 3330a(d)(1)'s "in no event" clause, that Congress manifested a clear intent to rebut the Irwin presumption. We disagree.

While the "in no event" clause is certainly strong, when the statute's language is considered as a whole and that clause is evaluated in context, the statute's techni cal language is little more than a neutral factor in our analysis under Brockamp. When taken together with the remaining factors, it certainly does not operate to rebut the Irwin presumption. To begin, the clause at issue, "except that in no event," introduces section 3330a(d)(1)(A), which provides that an appeal may not be brought "before the 61st day after the date on which the complaint is filed." Because section 3330a(d)(1) ex plicitly stipulates that the Secretary of Labor is to have 60 days to resolve veterans' VEOA complaints before they may seek redress from the board, the clause pri marily operates to emphasize Congress' intent to pro vide a 60-day window left exclusively for DoL review. Because the "in no event" clause first introduces a tim ing requirement that is not a "deadline" that a complain ant can "miss" in a manner giving rise to a late filing, which would thereby invoke considerations of equitable tolling, that clause can hardly be viewed as either clear or emphatic evidence of Congress' intent to foreclose equitable tolling under section 3330a(d)(1)(B).

Moreover, Irwin, 498 U.S. at 95, 111 S. Ct. 453, which "adopt[ed] a more general rule to govern the ap plicability of equitable tolling in suits against the Gov ernment," cautioned against reading too much into seemingly stringent language setting forth a statute's timing requirements. There, the Supreme Court found equitable tolling equally available in two statutes provid ing for actions against the government, one of which stated, "[w]ithin thirty days . . . an employee . . . may file a civil action," while the other provided, "[e]very claim . . . shall be barred unless the petition . . . is filed . . . within six years." Id. at 94-95, 111 S. Ct. 453 (emphases added). As the Court explained, "An argument can undoubtedly be made that the latter language is more stringent than the former, but we are not persuaded that the difference between them is enough to manifest a different congressional intent with respect to the availability of equitable tolling." Id.

Lending additional support, Bailey v. Glover, 21 Wall. 342, 88 U.S. 342, 22 L. Ed. 636 (1874), involved statutory language that is decidedly analogous to that found here, and further illustrates the limited role that these more subtle distinctions in Congress' choice of language play in a court's analysis into whether it may equitably relax a deadline. There, the Supreme Court allowed a plaintiff's late-filed claim to proceed despite statutory language that provided, "no suit at law or in equity shall in any case be maintainable . . . in any court whatsoever, unless . . . brought within two years." Id. at 344, 88 U.S. 342 (emphasis added). While Bailey v. Glover specifically relates to claim accrual, not equitable tolling, the Supreme Court nevertheless cites it in Young, 535 U.S. at 49, 122 S. Ct. 1036, to support the proposition that limitation periods are customarily subject to equitable tolling, unless it "would be 'inconsis tent with the text of the relevant statute.'" (citations omitted). In other words, despite the statute's admon ishment that "no suit . . . shall in any case be maintain able," the Court, nonetheless, found that equitable relief was not inconsistent.

With respect to the propriety of applying Bailey v. Glover, to an equitable tolling case, the Supreme Court also cited it in Lampf, Pleva, Lipkind, Prupis & Peti grow v. Gilbertson, 501 U.S. 350, 363, 111 S. Ct. 2773, 115 L. Ed. 2d 321 (1991), as a case relating to equitable tolling. Moreover, Glus v. Brooklyn Eastern District Terminal, 359 U.S. 231, 231, 79 S. Ct. 760, 3 L. Ed. 2d 770 (1959), which was cited in Irwin, held that despite the statutory command, "No action shall be maintained . . . unless commenced within three years from the day the cause of action accrued," because the defendant's fraud caused the plaintiff to let the filing period lapse, the defendant was equitably estopped from using the late filing to bar the action. Glus is an equitable estoppel case, but Irwin relied on it for the proposi- tion that, "We have allowed equitable tolling in situa tions . . . where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass." 498 U.S. at 96 n.4, 111 S. Ct. 453 (emphasis added). Certainly, the availability of the vari ous equitable remedies for relaxing limitations periods are governed by differing considerations, but as the Su preme Court makes clear, these remedies are suffi ciently similar that precedents relating to the availabil ity of one are applicable to the others.

In addition, further analysis of Brockamp illustrates the error and weakness in the government's reliance on the "in no event" clause. The statute at issue there, 26 U.S.C. § 6511, provides that a "[c]laim for . . . refund . . . shall be filed . . . within 3 years." 519 U.S. at 349-54, 117 S. Ct. 849. Despite the similarity between the "shall be filed" language and the "shall be barred" clause in Irwin, where equitable tolling was found to apply, Brockamp found equitable tolling unavailable under section 6511. It even characterized the manner in which the statute set forth time limitations as "unusually emphatic." 519 U.S. at 350, 117 S. Ct. 849. This appar ent contradiction is readily explained, however, because the Court paid little, if any, attention to the specific lan guage introducing section 6511's timing provision. In stead, the Court based its conclusion on the fact that the statute "sets forth its limitations in a highly detailed technical manner, that, linguistically speaking, cannot easily be read as containing implicit exceptions. More over, § 6511 reiterates its limitations several times in several different ways." Id. at 350-51, 117 S. Ct. 849. It further elaborated that "§ 6511 sets forth explicit excep tions to its basic time limits, and those very specific ex ceptions do not include 'equitable tolling'" and "to read an 'equitable tolling' provision into these provisions, one would have to assume an implied exception for tolling virtually every time a number appears. To do so would work a kind of linguistic havoc." Id. at 351-52, 117 S. Ct. 849. The Court also pointed to policy considerations underscoring the need for repose and administrative simplicity in tax cases. In other words, it was a compre hensive view of the statute as a whole and the purpose of the statutory scheme that drove the analysis, not rudi mentary reliance on the seemingly, or not so seemingly, stringent nature of the language introducing the stat ute's timing provisions.

The Supreme Court's decision in Lampf further illu minates our discussion. Despite the fact that the statute at issue there, 15 U.S.C. § 77m, contains an "in no event" clause, that specific language did not play a significant role in the Court's holding that equitable tolling was not available. Instead, as in Brockamp, it relied heavily on the statute's highly technical structure and its explicit allowance for "tolling" within the statute.5 See 501 U.S. at 363, 111 S. Ct. 2773; see also Beggerly, 524 U.S. at 48, 118 S. Ct. 1862 (finding that judicially provided equita ble tolling was unavailable because the Quiet Title Act, 28 U.S.C. § 2409a, by providing that the 12-year statute of repose will not "begin to run until the plaintiff 'knew or should have known of the claim of the United States,' has already effectively allowed for equitable tolling") (emphasis added). Indeed, the provision at issue in Lampf provides that suits must be brought either within one year from discovery of the facts constituting a viola tion, or within the three-year "period of repose," i.e., the explicit exception providing for "tolling," which runs from the date of the relevant transaction. Therefore, the Court said, "Because the purpose of the 3-year limi tation is clearly to serve as a cutoff, we hold that tolling principles do not apply to that period." 501 U.S. at 363, 111 S. Ct. 2773.

Therefore, given (1) Irwin's command that courts should be wary of allowing subtle distinctions in Con gress' choice of language to unduly drive the inquiry into its intent, especially when viewed in light of the Su preme Court analysis in Lampf and Brockamp; (2) the substantial similarity between the "in no event" lan guage here and the language in Bailey v. Glover; and (3) the purpose of the "in no event" clause within section 3330a(d)(1), we find that the statutory language itself is not unusually emphatic. Rather, in this context, it is analogous to the statutory language of "barred" and "shall be filed" found in Glus, 359 U.S. at 231, 79 S. Ct. 760; Irwin, 498 U.S. at 95, 111 S. Ct. 453; Bailey v. West, 160 F.3d at 1361; and Former Employees of Sonoco Pro ducts Co. v. Chao, 372 F.3d 1291, 1293 (Fed. Cir. 2004)- all cases in which the relevant statutes were found to be subject to equitable tolling. Because the "in no event" language is of limited, if any, special importance, we firmly reject the government's contention that allowing equitable tolling here renders that language superflu ous. Cf. Brown v. Gardner, 513 U.S. 115, 120, 115 S. Ct. 552, 130 L. Ed. 2d 462 (1994) ("[W]here Congress in cludes particular language in one section of a statute but omits it in another section of the same Act, it is gener ally presumed that Congress acts intentionally and pur posely in the disparate inclusion or exclusion.") (quoting Russello v. United States, 464 U.S. 16, 23, 104 S. Ct. 296, 78 L. Ed. 2d 17 (1983)).6

Consistent with Irwin, we perceive no meaningful difference in Congress' intent with respect to the avail ability of equitable tolling in the statutes at issue here, despite the fact that arguments can undoubtedly be made in support of the proposition that the "in no event" language under section 3330a(d)(1) is more strin gent than the "must be filed" language of section 3330a(a)(2)(A). See 498 U.S. at 94-95, 111 S. Ct. 453.

Analysis of the remaining Brockamp factors gives us the firm and definite conviction that Congress did not intend to override the Irwin presumption. First, section 3330a is not detailed. This is especially true in compari son with other administrative schemes held subject to equitable tolling, such as Title VII, Irwin, 498 U.S. at 92, 111 S. Ct. 453, and Social Security, Bowen, 476 U.S. at 469, 106 S. Ct. 2022. Similarly, section 3330a is less detailed than the highly complex scheme used to provide benefits to veterans. See Bailey, 160 F.3d 1360 (holding that 38 U.S.C. § 7266 is subject to equitable tolling). But see Brice, 240 F.3d at 1373 (holding that the Na tional Childhood Vaccine Injury Act is "part of a de tailed statutory scheme which includes other strict deadlines").

Second, section 3330a's fairly simple language is not technical, especially as compared to the tax statute at issue in Brockamp and the securities statute at issue in Lampf. Third, the timing provisions in section 3330a are not repeated. See Brockamp, 519 U.S. at 351, 117 S. Ct. 849 ("[Section] 6511 reiterates its limitations several times in several different ways."). Fourth, section 3330a does not contain explicit exceptions to the two filing deadlines. See Bailey, 160 F.3d at 1365 ("Likewise, sec tion 7266 does not provide its own exceptions to the gen eral rule."); see also Brockamp, 519 U.S. at 351, 117 S. Ct. 849 ("[Section] 6511 sets forth explicit exceptions to its basic time limits, and those very specific excep tions do not include 'equitable tolling.'"); Martinez v. United States, 333 F.3d 1295, 1318 (Fed. Cir. 2003) (en banc) (finding that 28 U.S.C. § 2501 contains an explicit exception for "persons 'under legal disability'"); Brice, 240 F.3d at 1373 ("[T]he Act includes a specific excep tion from the limitations period for a petition improperly filed in state or federal court."). Moreover, the 15-day filing period under section 3330a(d)(1)(B) is extraordi narily short, in sharp contrast to the three-year period of repose in Lampf, and the "unusually generous" 12-year period of repose in Beggerly, 524 U.S. at 48-49, 118 S. Ct. 1862.

Finally, section 3330a's purpose and the statutory scheme in which it operates make it abundantly clear that the Irwin presumption is not rebutted. The pur pose of the VEOA is to assist veterans in obtaining gain ful employment with the federal government and to pro vide a mechanism for enforcing this right. In a very real sense, it is an expression of gratitude by the federal gov ernment to the men and women who have risked their lives in defense of the United States. It defies logic to suppose that when Congress adopted the VEOA in 1998, well after the Supreme Court's decision in Irwin, it in tended the narrow interpretation that the government gives it. See Young, 535 U.S. at 49-50, 122 S. Ct. 1036 ("Congress must be presumed to draft limitations peri ods in light of [the Irwin presumption].") (citations omitted).

It is also relevant that veterans who seek to enforce their rights under the VEOA often proceed without the benefit of representation, just as Kirkendall did. Under such circumstances, it is "particularly inappropriate" to foreclose equitable relief. Zipes, 455 U.S. at 397, 102 S. Ct. 1127 (quoting Love v. Pullman, 404 U.S. 522, 527, 92 S. Ct. 616, 30 L. Ed. 2d 679 (1972)); see also Bowen, 476 U.S. at 480, 106 S. Ct. 2022 ("The statute of limita tions we construe in this case is contained in a statute that Congress designed to be unusually protective of claimants.") (internal quotation marks omitted).

C.

The government raises one final objection to our holding. It argues that because section 3330a(d)(1)(B) sets forth a provision specifying the time for review, it is "mandatory and jurisdictional," and "not subject to equitable tolling." See Stone v. INS, 514 U.S. 386, 405, 115 S. Ct. 1537, 131 L. Ed. 2d 465 (1995) (quoting Mis souri v. Jenkins, 495 U.S. 33, 45, 110 S. Ct. 1651, 109 L. Ed. 2d 31 (1990)). This contention is without merit. In Bailey v. West, we also confronted a statute specify ing the time for review, and sitting en banc, we found that 38 U.S.C. § 7266 is subject to equitable tolling. We held, "statutes specifying the time for review are within the rebuttable presumption in favor of equitable tolling." 160 F.3d at 1367. We further stated: "We recognize that language in Stone and Missouri v. Jenkins can be read to draw a bright line which would place statutes of limitation on one side of the Irwin presumption and stat utes of timing of review on the other. We are not com fortable drawing that line, because the language of Irwin admits of no such distinctions. . . . Missouri v. Jenkins was decided only a few months before Irwin. If the Supreme Court had meant to shield statutes specify ing the time for review from the Irwin presumption, we would have expected the distinction to be drawn in Irwin." Id.; accord Socop-Gonzalez v. INS, 272 F.3d 1176, 1192-93 (9th Cir. 2001) (en banc) ("Like the Fed eral Circuit, we do not believe that the Supreme Court meant to distinguish between statutes of limitations and statutes specifying the time for review when it estab lished the generally applicable rule in Irwin that time limits involved in filing suit against the government are presumed to be subject to equitable tolling.").

In decisions post-dating Bailey, the Supreme Court has "clarified that time prescriptions, however emphatic, 'are not properly typed "jurisdictional."'" Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S. Ct. 1235, 1242, 163 L. Ed. 2d 1097 (2006) (quoting Scarborough v. Principi, 541 U.S. 401, 414, 124 S. Ct. 1856, 158 L. Ed. 2d 674 (2004)). In Eberhart v. United States, 546 U.S. 12, 126 S. Ct. 403, 405, 163 L. Ed. 2d 14 (2005), the Court stated: "'Clarity would be facilitated,' we have said, 'if courts and litigants used the label "jurisdictional" not for claim-processing rules, but only for prescriptions delin eating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court's adjudicatory authority.'" (Quoting Kontrick v. Ryan, 540 U.S. 443, 455, 124 S. Ct. 906, 157 L. Ed. 2d 867 (2004)). The Court acknowledged that its "repeti tion of the phrase 'mandatory and jurisdictional' ha[d] understandably led the lower courts to err on the side of caution by giving [certain time limitations] the force of subject-matter jurisdiction." Eberhart, 126 S. Ct. at 407. These decisions establish that timing provisions like those of section 3330a are not necessarily "mandatory" or "jurisdictional," and they bolster Bailey's holding that Stone and Missouri v. Jenkins cannot be read to create a per se rule placing "statutes of limitation on one side of the Irwin presumption and statutes of timing of review on the other." Bailey, 160 F.3d at 1367.

The fact that some provisions specifying the time for review are not subject to equitable tolling is irrelevant to our analysis as to whether it is available under this statute, section 3330a(d)(1)(B). Rather, such holdings are in accord with Irwin's command that equitable toll ing shall not apply where Congress has so provided. 498 U.S. at 96, 111 S. Ct. 453; see, e.g., Stone, 514 U.S. 386, 115 S. Ct. 1537, 131 L. Ed. 2d 465 (holding that based on the statutory text and structure and the nature of con gressional amendments to the statutory scheme, mo tions for reconsideration of a decision by the Board of Immigration Appeals do not toll the 90-day period to appeal a final deportation order); Missouri v. Jenkins, 495 U.S. 33, 110 S. Ct. 1651, 109 L. Ed. 2d 31 (holding that where the statute at issue provided for an addi tional 60 days to file for good cause shown and Congress had demonstrated an intent to preclude tolling, the 90-day period to file a petition for certiorari to the Su preme Court was not subject to equitable tolling); Oja v. Dep't of the Army, 405 F.3d 1349 (Fed. Cir. 2005).7

When we consider that the timing provision at issue here is analogous to those found subject to equitable tolling in Irwin, 498 U.S. at 94, 111 S. Ct. 453 (30-day window in which to seek review in district court of a final action by the EEOC),8 and Bowen, 476 U.S. at 472, 106 S. Ct. 2022 (60-day window in which to seek "review" of a denial of social security benefits by the Secretary of Health and Human Services),9 our holding is unremark- able and entirely consistent with Supreme Court prece dent. This is especially so in view of Irwin's pronounce ment that it "adopt[ed] a more general rule to govern the applicability of equitable tolling in suits against the Government," and that "[t]he phraseology of th[e] par ticular statutory time limit [in 42 U.S.C. § 2000e-16] is probably very similar to some other statutory limita tions on suits against the Government." Id. at 94-95, 111 S. Ct. 453.

D.

Even if this were a close case, which it is not, the canon that veterans' benefits statutes should be con strued in the veteran's favor would compel us to find that section 3330a is subject to equitable tolling. See King v. St. Vincent's Hosp., 502 U.S. 215, 220 n.9, 112 S. Ct. 570, 116 L. Ed. 2d 578 (1991) ("Even if the express examples [from other subsections of the statute at issue] unsettled the significance of subsection (d)'s drafting, however, we would ultimately read the provision in King's favor under the canon that provisions for benefits to members of the Armed Services are to be construed in the beneficiaries' favor."); Ala. Power Co. v. Davis, 431 U.S. 581, 584, 97 S. Ct. 2002, 52 L. Ed. 2d 595 (1977) ("This legislation is to be liberally construed for the benefit of those who left private life to serve their country in its hour of great need.") (quoting Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285, 66 S. Ct. 1105, 90 L. Ed. 1230 (1946)). Both subsection 3330a(a)(1)(A) and subsection 3330a(d)(1)(B) are subject to equitable tolling.

II. Hearing Rights Under USERRA

With respect to hearing rights, our analysis begins with the USERRA statute itself. See Sheehan v. Dep't of the Navy, 240 F.3d 1009, 1012 (Fed. Cir. 2001) (decid ing the burden of proof requirement for USERRA ac tions "[o]n the basis of the statute and the appurtenant legislative history"). 38 U.S.C. § 4324(c)(1) provides: "The Merit Systems Protection Board shall adjudicate any complaint brought before the Board pursuant to subsection (a)(2)(A) or (b). . . . A person who seeks a hearing or adjudication by submitting such a complaint under this paragraph may be represented at such hear ing or adjudication in accordance with the rules of the Board." The unambiguous meaning of the language is that any veteran who requests a hearing shall receive one. Indeed, section 4324(c)(1) begins, the board "shall adjudicate any complaint brought before [it]." The dis cretion it then affords does not relate to whether a hear ing may be denied, but to how the veteran "may be rep resented" at the "hearing or adjudication." By provid ing that the board shall adjudicate all USERRA claims brought before it and affording discretion over how the veteran may be represented at any requested "hearing or adjudication," the statute clearly evinces Congress' intent to provide veterans with a hearing as a matter of right. To interpret the statute otherwise would render the "such hearing" language nonsensical. The board has discretion neither to deny a requested "adjudication," nor to deny a requested "hearing."

Until now, it has been the board's practice to grant a hearing as a matter of administrative grace, or deny one at its convenience. See, e.g., Matotek v. Dep't of Commerce, 104 M.S.P.R. 36, 41 (2006); Jordan v. U.S. Postal Serv., 90 M.S.P.R. 525, 529 (2002), aff'd, 82 Fed. Appx. 42 (Fed. Cir. 2003). But it must administer the law as Congress wrote it. The board's consistent misap plication of the law can neither be used to defend its practice; nor to justify what Congress did not intend. See Brown v. Gardner, 513 U.S. 115, 120-21, 115 S. Ct. 552, 130 L. Ed. 2d 462 (1994) (where the Department of Veterans Affairs' 60-year regulatory practice was con trary to statute, congressional reenactment of the stat ute and legislative silence did not constitute an implicit endorsement); see also Demarest v. Manspeaker, 498 U.S. 184, 190, 111 S. Ct. 599, 112 L. Ed. 2d 608 (1991) ("Where the law is plain, subsequent reenactment does not constitute an adoption of a previous administrative construction."); Mass. Trs. of E. Gas & Fuel Assocs. v. United States, 377 U.S. 235, 241-242, 84 S. Ct. 1236, 12 L. Ed. 2d 268 (1964) (congressional reenactment has no interpretive effect where regulations clearly contradict requirements of statute). To be sure, the board is free to set out regulations for the orderly conduct of busi ness, but it cannot use that discretion to override the congressionally mandated right to a hearing.

5 U.S.C. § 7701(a) lends additional support to our reading of section 4324(c). It provides: "An employee, or applicant for employment, may submit an appeal to the Merit Systems Protection Board from any action which is appealable to the Board under any law, rule, or regulation. An appellant shall have the right-(1) to a hearing for which a transcript will be kept; and (2) to be represented by an attorney or other representative." Plainly, Kirkendall's USERRA claim is "appealable" to the board under section 4324, and therefore consti tutes an "appeal" entitled to a hearing. Cf. 5 C.F.R. § 1208.4(c) ("'USERRA appeal' means an appeal filed under 38 U.S.C. § 4324."); 5 C.F.R. § 1208.13 (character izing board review of USERRA claims as "USERRA appeals"); see also Kirkendall v. Dep't of the Army, AT-3443-02-0622-I-1, AT-0330-02-0621-B-1 (MSPB Dec. 4, 2003) (referring to board review of Kirkendall's USERRA claim as an "appeal").

It is true, as the government argues, that Kirken dall's proceeding before the board is not an appeal in the traditional Article III sense, as defined by Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803), but this is of no moment. In providing procedural protec tions for employees of and applicants to the federal gov ernment, e.g., 5 U.S.C. § 7512, Congress made clear its intent to vary the Marbury definition of "appeal" in fed eral employment contexts. Indeed, the vast majority of cases heard by the board, and subject to section 7701 procedures, are "appeals" of employment decisions, dis ciplinary or otherwise, made in the first instance by an agency. See, e.g., Price v. Soc. Sec. Admin., 398 F.3d 1322 (Fed. Cir. 2005); Guillebeau v. Dep't of the Navy, 362 F.3d 1329 (Fed. Cir. 2004); Knight v. Dep't of Def., 332 F.3d 1362 (Fed. Cir. 2003). These cases do not in volve a lower tribunal, such as a district court, yet they clearly involve an initial decision maker distinct from the board, rendering them an "appeal" of agency action. In the same way, USERRA claims derive from an agency's employment decision, e.g., the refusal to hire a veteran.

Merely because Congress described Kirkendall's petition for review as a "complaint" does not suggest that it intended to characterize his action as an "origi nal" proceeding before the board, and deprive him of the right to a hearing. To the contrary, in determining what procedural protections Congress intended to afford USERRA complainants, we look to the substance of the matter, review of an initial agency action, not to the form surrounding it or the name ascribed, initiation of proceedings before the board with a "complaint." Cf. Dolan v. City of Tigard, 512 U.S. 374, 405 n.8, 114 S. Ct. 2309, 129 L. Ed. 2d 304 (1994) ("In determining what is due process of law regard must be had to substance, not to form.") (quoting Chicago B. & Q. R. Co. v. Chicago, 166 U.S. 226, 235, 17 S. Ct. 581, 41 L. Ed. 979 (1897)); see also Katz v. Cisneros, 16 F.3d 1204, 1207 (Fed. Cir. 1994) ("[W]e look to the true nature of the action in de termining the existence or not of jurisdiction."); Chem. Eng'g Corp. v. Marlo, Inc., 754 F.2d 331, 333 (Fed. Cir. 1984) ("Implicit in our mandate is the authority to recharacterize pleadings which would improperly evade the intent of Congress."); In re Snap-on Tools Corp., 720 F.2d 654, 655 (Fed. Cir. 1983) ("The issue here turns on the nature of the action as established in the com plaint."). Moreover, it is incongruous to presume that Congress intended to provide hearings as a matter of right in cases involving discipline for misconduct, e.g., Price, 398 F.3d at 1322 (constructive suspension); Guillebeau, 362 F.3d at 1329 (Fed. Cir. 2004) (removal), while declining to so provide for veterans who may have been victimized.

There is no ambiguity here. "Ambiguity is a creature not of definitional possibilities but of statutory context." Brown, 513 U.S. at 118, 115 S. Ct. 552; see also St. Vin cent's Hosp., 502 U.S. at 221, 112 S. Ct. 570 ("[T]he meaning of statutory language, plain or not, depends on context."). But even if section 4324, especially in the context of section 7701(a), still fairly permitted of more than one interpretation, the rule set out in St. Vincent's Hospital, 502 U.S. at 220 n.9, 112 S. Ct. 570; Alabama Power Co., 431 U.S. at 584, 97 S. Ct. 2002; and Fishgold, 328 U.S. at 285, 66 S. Ct. 1105, would demand that we find in Kirkendall's favor. St. Vincent's Hospital, and Brown, 513 U.S. at 117-18, 115 S. Ct. 552, make clear that "interpretive doubt is to be resolved in the vet eran's favor" and operate to rebut or eliminate other wise fair readings in close cases. And this statutory re gime emphatically does not admit of deference to the board à la Chevron because "[i]f a court, employing tra ditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect." Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n.9, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). After applying the interpretive rule in Fishgold, it is abundantly clear that Congress' intent is to provide veterans a hearing upon request, especially because we "presume congressional understanding of such interpre tive principles," at the time of enactment. St. Vincent's Hospital, 502 U.S. at 220 n.9, 112 S. Ct. 570.

Contrary to the government's assertion, Lindahl v. Office of Personnel Management, 776 F.2d 276 (Fed. Cir. 1985), does not conflict with our holding here; in fact, it enhances it. Lindahl provides that, absent a ref erence to 5 U.S.C. § 7701 in the statute giving rise to the right of action, there 5 U.S.C. § 8347(d)(1), some of its guidelines, whether procedural or substantive, may ap ply to an action without invoking all of them, as con trasted with cases under 5 U.S.C. § 8347(d)(2), which explicitly refers to section 7701. Id. at 278-80. Indeed, Lindahl approved of the board's practice of applying most of section 7701's procedures to voluntary physical disability retirement cases, but not applying its burden of proof. Id. Similarly, section 4324(c)(1) in this case gives rise to the right to a hearing, while 38 U.S.C. § 4311(c)(1) and the legislative history surrounding USERRA make clear that section 7701(c)'s burden of proof requirement does not apply. See Sheehan, 240 F.3d at 1012-14.

In fact, had Congress referenced section 7701 in the USERRA statute, section 7701(c)'s burden of proof, along with all of section 7701's remaining procedures, would necessarily apply. Therefore, its decision not to reference this "catch-all" statute does not in any way suggest an intent not to provide a right to a hearing. It only demonstrates that Congress, while providing for a hearing, did not necessarily want all of section 7701 to apply. Consequently, because Kirkendall requested a hearing before the board on his USERRA claim, we re verse the board's decision to deny him one.

Conclusion

Accordingly, the decision of the Merits Systems Pro tection Board is reversed, and the case is remanded for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

1 We are grateful to Theodore B. Olson, Thomas H. Dupree, Jr., and Henry C. Whitaker of Gibson, Dunn & Crutcher LLP, who represented John E. Kirkendall pro bono at the court's request.

2 Before the merits panel, the government argued that the board was without jurisdiction to consider Kirdendall's VEOA appeal because of his alleged failure to exhaust administrative remedies. We addressed that argument, and rejected it. In its petition for rehearing en banc, the government did not renew this argument, and we did not grant rehear ing on it. As a general rule, the scope of our en banc review is limited to the issues set out in the en banc order. Accord United States v. Padilla, 415 F.3d 211, 217 (1st Cir. 2005) (en banc); Brown v. Stites Concrete, Inc., 994 F.2d 553, 557 (8th Cir. 1993) (en banc). It is, there fore, inappropriate for the government now to reargue exhaustion. However, because exhaustion calls into question our jurisdiction over the tolling issues, we address it to clarify that there are no jurisdictional impediments.

3 5 U.S.C. § 3330a(a)(2)(A) provides:

A complaint under this subsection must be filed within 60 days after the date of the alleged violation.

4 5 U.S.C. § 3330a(d)(1) provides:

If the Secretary of Labor is unable to resolve a complaint under subsection (a) within 60 days after the date on which it is filed, the complainant may elect to appeal the alleged violation to the Merit Systems Protection Board in accordance with such procedures as the Merit Systems Protection Board shall prescribe, except that in no event may any such appeal be brought-

(A) before the 61st day after the date on which the complaint is filed; or later than 15 days after the date on which the complainant receives written notification from the Secretary under subsection (c)(2).

(emphasis added).

5 15 U.S.C. § 77m provides:

No action shall be maintained to enforce any liability created under [section 11] or [section 12(a)(2)] unless brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reason able diligence, or, if the action is to enforce a liability created under [section 12(a)(1)], unless brought within one year after the violation upon which it is based. In no event shall any such action be brought to enforce a liability created under [section 11] or [section 12(a)(1)] more than three years after the security was bona fide offered to the public, or under [section 12(a)(2)] more than three years after the sale.

(emphasis added).

6 An attempt to draw a distinction between the "in no event" lang uage from section 3330a(d)(1)(B) and the "must be filed" language of section 3330a(a)(2)(A), see post, separate opinion of Moore, J., is inconsistent with Irwin. Moreover, the circuit court precedents upon which it relies to make this distinction are all either irrelevant or cumu lative of Supreme Court precedents considered above. See Dubuc v. Johnson, 314 F.3d 1205 (10th Cir. 2003) (the statute at issue, 28 U.S.C. § 1915(g), does not involve a timing provision); Caviness v. DeRand Res. Corp., 983 F.2d 1295, 1300-02 (4th Cir. 1993) (interprets the statute at issue in Lampf); Short v. Belleville Shoe Mfg., 908 F.2d 1385 (7th Cir. 1990) (same); Aldrich v. McCulloch Props. Inc., 627 F.2d 1036 (10th Cir. 1980) (the decision predates Irwin, and the statute at issue, 15 U.S.C. § 1711, is analogous to that in Lampf, i.e., it contains a two-tiered timing structure with a three-year period of repose); Hodgson v. Int'l Printing Pressmen & Assistants' Union of N. Am., 440 F.2d 1113 (6th Cir. 1971) (the decision predates Irwin, waiver of the deadline at issue was per mitted, and the statute at issue, 29 U.S.C. § 482(b), does not contain "in no event").

7 The dicta in Farzana K. v. Indiana Department of Education, 473 F.3d 703 (7th Cir. 2007), discussed, post, separate opinion of Dyk, J., is not authority for anything, much less, for when equitable relaxation of a federal veterans deadline specifying the timing for review is appropri ate. Farzana held that the party there did meet a state's deadline to seek judicial review of a determination, thus making any discussion of equitable relief superfluous.

8 42 U.S.C. § 2000e-16(c) (1988) provides in pertinent part:

Within thirty days of receipt of notice of final action taken by . . . the Equal Employment Opportunity Commission . . . an em ployee or applicant for employment, if aggrieved by the final dis position of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 2000e-5 of this title.

9 42 U.S.C. § 405(g) (1982) provides in pertinent part:

Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, 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(emphasis added)

 

GAJARSA, Circuit Judge, concurring, with whom Circuit Judge NEWMAN and Senior Circuit Judge PLAGER join.

I join Part I of the majority, which holds that the 15-day window for filing an appeal to the Merit Systems Protection Board ("Board") under 5 U.S.C. § 3330a is subject to equitable tolling. I also join Part II of the majority, which holds that the veteran is entitled to a hearing before the Board on his USERRA claim. I write separately, however, to provide an additional basis to support the judgment reached in Part I.

I.

I too begin with Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990), the seminal Supreme Court precedent on the applicability of the equitable tolling doctrine in suits against the government. In Irwin, the Court adopted "a more general rule to govern the applicability of equi table tolling in suits against the Government" and held that "the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States." Id. at 95-96, 111 S. Ct. 453. While acknowledging that a "waiver of sovereign immunity cannot be implied but must be unequivocally expressed," id. (citation omitted), the Court reasoned:

Once Congress has made such a waiver, we think that making the rule of equitable tolling applicable to suits against the Government, in the same way that it is applicable to private suits, amounts to little, if any, broadening of the congressional waiver. Such a prin ciple is likely to be a realistic assessment of legisla tive intent as well as a practically useful principle of interpretation.

Id. The Court thus applied the equitable tolling doctrine to 42 U.S.C. § 2000e-16(c), which specifies the time in days that a Title VII complaint against the government must be filed in district court after final action by the EEOC. Id. at 91, 96, 111 S. Ct. 453.

Accordingly, the Supreme Court has directed courts to engage in a two-step inquiry of asking (1) whether there is a private suit that is "sufficiently similar to war rant asking (2) Irwin's negatively phrased question: Is there good reason to believe that Congress did not want the equitable tolling doctrine to apply?" United States v. Brockamp, 519 U.S. 347, 350, 117 S. Ct. 849, 136 L. Ed. 2d 818 (1997). Similarly, the rule our court has drawn "from Irwin is that the doctrine of equitable tolling, [1] when available in comparable suits of private parties, is available in suits against the United States, [2] unless Congress has expressed its intent to the contrary." Bailey v. West, 160 F.3d 1360, 1364 (Fed. Cir. 1998) (en banc).

In this case, as noted in the majority opinion, Kirken dall's suit is analogous to a Title VII discrimination claim. The first inquiry of Irwin asks only if the suit against the government is similar, not identical, to a pri vate suit. The statute at issue in this case establishes an administrative procedure for redress for a preference eligible veteran "who alleges that an agency has violated such individual's rights . . . relating to veterans' prefer ence." 5 U.S.C. § 3330a(a)(1)(A). Under the statute, the veteran has 60 days after the date of the alleged violation to file a complaint with the Department of Labor ("DoL"). If the DoL is unable to resolve the complaint within another 60 days, the veteran may "appeal the al leged violation to the Merit Systems Protection Board in accordance with such procedures as the Merit Systems Protection Board shall prescribe, 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 DoL. Id. § 3330a(d). Similarly, in a Title VII action between private parties, a plaintiff has 180 days from the occurrence of the alleged unlawful employment practice to file a complaint with the EEOC. 42 U.S.C. § 2000e-5(e). If the EEOC dismisses the com plaint, the plaintiff has 90 days from the time of EEOC notification to file a civil action in a district court. See id. § 2000e-5(f)(1). Therefore, I agree that Kirkendall's suit is sufficiently similar to proceed to the next Irwin inquiry.

II.

A.

The second inquiry of Irwin comes from the Supreme Court's acknowledgment that "Congress, of course, may provide otherwise if it wishes to do so." 498 U.S. at 96, 111 S. Ct. 453. The Court has thus asked: "Is there good reason to believe that Congress did not want the equita ble tolling doctrine to apply?" Brockamp, 519 U.S. at 350, 117 S. Ct. 849; see also Bailey, 160 F.3d at 1364 (asking if "Congress has expressed its intent to the con trary").

The Court found such a reason in Brockamp. The statute at issue in Brockamp stated that a claim "shall be filed" within a period of years, but the Court did not sim ply hold that those three words evidenced Congressional intent. Rather, the Court examined the entire language in context and found the tax statute to set forth "its limi tations in unusually emphatic form" because the statute (1) sets "forth its limitations in a highly detailed techni cal manner, that, linguistically speaking, cannot easily be read as containing implicit exceptions"; (2) "reiterates its limitations several times in several different ways"; (3) specifies procedures for "refunds that do not comply with these limitations" and "explicit exceptions to its basic time limits, and those very specific exceptions do not include 'equitable tolling.'" Id. at 350-52, 117 S. Ct. 849. The Court also examined the substance of the statute and found that equitable tolling the tax statute (4) "would require tolling, not only procedural limitations, but also substantive limitations on the amount of recov ery-a kind of tolling for which we have found no direct precedent"; and (5) "could create serious administrative problems by forcing the IRS to respond to, and perhaps litigate, large numbers of late claims, accompanied by requests for 'equitable tolling' which, upon close inspec tion, might turn out to lack sufficient equitable justifica tion." Id. at 352-53, 117 S. Ct. 849 (observing that tax law "is not normally characterized by case-specific ex ceptions reflecting individualized equities").

In this case, it is undisputed that the second, third, fourth, and fifth factors evidence no intent of Congress to preclude equitable tolling. Indeed, the government concedes that VEOA does not reiterate its limitations, contains no explicit exceptions, and would create no seri ous administrative problem for the Board. As we stated en banc in Bailey, "because the statute addresses timeli ness for an appeal from a closed record, it does not threaten administrative complexity or unpredictable fis cal peril." 160 F.3d at 1365 (applying Brockamp in hold ing that equitable tolling applies to 120-day time limit for appeal in Court of Veterans Appeals). The government does not even mention that tolling VEOA would affect no substantive limitations. Similarly, Judge Moore's dissent acknowledges that the second and third factors favor tolling in this case, post, at 860-61, and makes no mention of the fourth and fifth Brockamp factors.

Therefore, the only Brockamp factor in dispute is the first, where the Supreme Court found that the tax stat ute sets "forth its limitations in a highly detailed techni cal manner, that, linguistically speaking, cannot easily be read as containing implicit exceptions." 519 U.S. at 350, 117 S. Ct. 849. As examples, the Court found the following:

[The Brockamp tax statute] says, first, that a

"[c]laim for . . . refund . . . of any tax . . . shall be filed by the taxpayer within 3 years from the time the return was filed or 2 years from the time the tax was paid, whichever of such peri ods expires the later, or if no return was filed . . . within 2 years from the time the tax was paid." 26 U.S.C. § 6511(a). . . .

And

"[i]f the claim was not filed within such 3-year period, the amount of the credit or refund shall not exceed the portion of the tax paid during the 2 years immediately preceding the filing of the claim." § 6511(b)(2)(B).

Id. at 351, 117 S. Ct. 849. In this case, the VEOA statute states simply 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 under subsection (c)(2)." In comparison with the Brockamp tax statute, the VEOA statute does not set forth its 15-day limitation in a "highly detailed technical manner."

The government concedes that the VEOA statute is not technical, but asserts that it is detailed because it is sequential. See Resp't Br. 25-27. Judge Moore's dissent goes one step further and asserts that the sequential nature of the VEOA statute makes it both "detailed and technical." Post, at 858. As discussed in infra Part II.C, the sequential nature of the VEOA statute fails to satisfy the two-tiered structure of Lampf. Therefore, Judge Moore's dissent and the government both attempt to shoehorn the sequential nature of VEOA into Broc kamp's "highly detailed technical" description of the tax statute excerpted above. This non sequitur, however, is unjustified and contrary to the entire language of the VEOA statute.

Accordingly, Brockamp offers no "good reason to believe that Congress did not want the equitable tolling doctrine to apply" in this case. 519 U.S. at 350, 117 S. Ct. 849.

B.

The Supreme Court also found good reason that equi table tolling should not apply in Beggerly, 524 U.S. 38, 118 S. Ct. 1862, 141 L. Ed. 2d 32 (1998). The Quiet Title Act ("QTA") was the statute at issue in Beggerly and stated that QTA actions "shall be barred unless it is com menced within twelve years." 28 U.S.C. § 2409a(g) (emphasis added).

While stating that "[e]quitable tolling is not permissi ble where it is inconsistent with the text of the relevant statute," Beggerly, 524 U.S. at 48, 118 S. Ct. 1862, the Court did not hold that the three words, "shall be barred," precluded equitable tolling. Indeed, Beggerly did not even recite the three words as relevant. Instead, as it did in Brockamp, the Court examined the entire language of the statute in context and found that

the QTA, by providing that the statute of limitations will not begin to run until the plaintiff "knew or should have known of the claim of the United States," has already effectively allowed for equitable tolling. Given this fact, and the unusually generous nature of QTA's limitations time period, extension of the statu tory period by additional equitable tolling would be unwarranted.

Beggerly, 524 U.S. at 48-49, 118 S. Ct. 1862 (citation omitted). The Court similarly examined the substance of the statute and found that "[t]his is particularly true given that the QTA deals with ownership of land." Id. at 49, 118 S. Ct. 1862.

It is of special importance that landowners know with certainty what their rights are, and the period during which those rights may be subject to challenge. Eq uitable tolling of the already generous statute of limi tations incorporated in the QTA would throw a cloud of uncertainty over these rights, and we hold that it is incompatible with the Act.

Id.

In this case, there is no text within VEOA that "effec tively" allows for equitable tolling based on the date that time begins to accrue. Next, the 15-day time limit at issue here is far from the "unusually generous" 12-year period in Beggerly. Lastly, the government has asserted no "special importance" with the 15-day period under 5 U.S.C. § 3330a(d)(1), and under such circumstances, fore closing equitable tolling would be "particularly inappro priate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process." Zipes v. TWA, Inc., 455 U.S. 385, 397, 102 S. Ct. 1127, 71 L. Ed. 2d 234 (1982) (holding that Title VII filing period is requirement subject to tolling when equity so requires) (citation omit ted); see also Majority, ante, at 842.

Judge Moore's dissent attempts to elevate the impor tance of precluding tolling in the VEOA statute by ob serving its impact on the public fisc. Post, at 858-59. This argument is unavailing. By definition, the Irwin presumption of equitable tolling applies to statutes that provide for suits against the government and thus, al ways implicates the public fisc. Therefore, the VEOA statute does not rise to the "special importance" of the QTA in Beggerly, where the Supreme Court found that landowners must "know with certainty what their rights are, and the period during which those rights may be subject to challenge." 524 U.S. at 49, 118 S. Ct. 1862.

Accordingly, as with Brockamp, 519 U.S. at 350, 117 S. Ct. 849, there is no "good reason to believe that Con gress did not want the equitable tolling doctrine to apply" based on Beggerly.

C.

In Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 111 S. Ct. 2773, 115 L. Ed. 2d 321 (1991), the Supreme Court evaluated a statute that contained the words "in no event" and held that equitable tolling should not apply. Id. at 360 n.7, 363, 111 S. Ct. 2773. The Court, however, did not even recite the words "in no event" in reaching its holding regarding equitable tolling. Rather, the Court examined the language of the statute in context. The Securities and Exchange Act statute at issue stated:

No action shall be maintained to enforce any liability . . . unless brought within one year after the discov ery of the untrue statement or the omission. . . . In no event shall any such action be brought to enforce a liability . . . more than three years after the secu rity was bona fide offered to the public.

Id. at 360 n.7, 111 S. Ct. 2773 (quoting 15 U.S.C. § 77m) (emphasis added). Based on the structure established by the statute in context, the Court concluded that:

The 1-year period, by its terms, begins after discov ery of the facts constituting the violation, making toll ing unnecessary. The 3-year limit is a period of re pose inconsistent with tolling. . . . Because the pur pose of the 3-year limitation is clearly to serve as a cutoff, we hold that tolling principles do not apply to that period.

Id. at 363, 111 S. Ct. 2773 (emphasis added).

In this case, VEOA establishes procedures where a veteran has 60 days to file a complaint and the DoL has another 60 days to resolve the complaint. If the DoL is unable to resolve the complaint within the 60 days after the date on which it is filed, the DoL must notify the vet eran, who then has 15 days to file with the Board. These procedures establish no structure indicating that the 15-day period is a period of repose. Therefore, Lampf does not support a finding precluding equitable tolling.

Nonetheless, Judge Moore's dissent and the govern ment assert that VEOA "is like the two-tiered structure employed in section 13 of the 1933 Securities Exchange Act discussed in Lampf." Post, at 858; Resp't Br. 25-26. By listing multiple sequential time periods, it is true that VEOA establishes a structure. Lampf, however, does not stand for the proposition that any statute with any structure is inconsistent with equitable tolling. Rather, the critical inquiry under Lampf is whether the structure reveals that one limitation is a period of repose. In Lampf, the 3-year limitation served as a cutoff for the 1-year period, which "has already effectively allowed for equitable tolling" by providing that accrual "begins after discovery of the facts." Beggerly, 524 U.S. at 48, 118 S. Ct. 1862 (citation omitted); Lampf, 501 U.S. at 363, 111 S. Ct. 2773. The 3-year time period thus constituted a period of repose inconsistent with equitable tolling. In this case, the 15-day time limitation for filing with the Board does not serve as a cutoff for the 60-day period for filing a complaint. Therefore, the 15-day period at issue is not a period of repose, and Lampf offers no support for Judge Moore's dissent or the government's position.

By asserting that the structure of VEOA is like "the two-tiered structure" of the Lampf statute, Judge Moore's dissent and the government have essentially stated that if a statute contains more than one time pe riod, there is "good reason to believe that Congress did not want the equitable tolling doctrine to apply." Broc kamp, 519 U.S. at 350, 117 S. Ct. 849. Under that ratio nale, all suits against the government that must be ex hausted in an administrative agency before a plaintiff may file in a district court or in the Court of Federal Claims would establish a structure inconsistent with eq uitable tolling. Such erroneous reasoning would eviscer ate the Irwin presumption established by the Supreme Court. Indeed, because a plaintiff must first exhaust a Title VII claim in the EEOC before filing an action in a district court, the rule argued by Judge Moore's dissent and the government in this case would presumably seek to overturn Irwin itself.

The critical question of Lampf is whether the "struc ture" establishes a period of repose. In this case, the answer is no, and accordingly, there is no "good reason to believe that Congress did not want the equitable toll ing doctrine to apply" under Lampf. Brockamp, 519 U.S. at 350, 117 S. Ct. 849.

III.

The overriding message of the Supreme Court's pre cedents of Brockamp, Beggerly, and Lampf is that we should examine the language in context and the sub stance of the statute in determining whether equitable tolling should not apply in a suit against the government. As shown, when applying the Supreme Court's prece dents properly, the government and the dissenting opin ions have failed to show that equitable tolling is inconsis tent with the text of VEOA. Therefore, there is no "good reason to believe that Congress did not want the equita ble tolling doctrine to apply." Brockamp, 519 U.S. at 350, 117 S. Ct. 849.

The government and the dissenting opinions, how ever, attempt to create new exceptions to scale back the presumption of tolling that the Supreme Court estab lished in Irwin. These new exceptions are based on mis interpreting Supreme Court precedent and disregarding this court's precedent.

A.

First, Judge Moore's dissent attempts to establish a new rule holding that three words alone, "in no event," preclude equitable tolling. To do so, her dissent seizes on one sentence in Brockamp, 519 U.S. at 350, 117 S. Ct. 849 (emphasis added), stating that the tax statute "sets forth its time limitations in unusually emphatic form," and labels it a Brockamp factor. Post, at 854-57. Her dissent then discards the five Brockamp factors actually enunciated and makes its newly created "unusually em phatic" factor dispositive.

This misreads and misrepresents Brockamp. While the Brockamp sentence taken out of context could be read as an independent factor, reading the Supreme Court's entire discussion reveals that it states a conclu sion based on the five factors discussed above in supra Part II.A. See 519 U.S. at 350-54, 117 S. Ct. 849. The Court did not, as Judge Moore's dissent does, identify certain words as being "unusually emphatic" in form. Rather, the Court evaluated, as I do here, the five enun ciated Brockamp factors. It is clear to me that the phrase "unusually emphatic" in Brockamp is not an inde pendent factor but a conclusion based upon the enunci ated factors, and there is no controlling precedent to the contrary.

Judge Moore's dissent also concludes summarily that "[s]hort of saying 'equitable tolling shall not apply,' we do not think Congress could have been clearer." Post, at 855. Congress, however, enacted the VEOA statute after the Supreme Court decided Irwin. Therefore, Congress could have placed the words "equitable tolling shall not apply" in the statute but did not do so. Her dissent of fers no rationale for why we should not require the words "equitable tolling shall not apply" when precluding equi table tolling based on a few words selectively removed from the entire language and substance of a statute. As the Supreme Court stated regarding the Irwin presump tion, "Congress must be presumed to draft limitations periods in light of this background principle." Young v. United States, 535 U.S. 43, 49-50, 122 S. Ct. 1036, 152 L. Ed. 2d 79 (2002) (citations omitted). Moreover, the foot note assertion of her dissent that no statute contains such words is no justification for us to define an incanta tion of other "magic words" to preclude equitable tolling. Post, at 855.

Even if it were prudent to identify certain words as precluding equitable tolling, Judge Moore's dissent of fers no rationale for why the words "in no event" are so "unusually emphatic." Time limitations in statutes often include words such as "shall," "must," or "barred." It is wholly unclear from her dissenting opinion and the gov ernment's brief what would make one of these terms merely "ordinary and simple," another "emphatic," an other "usually emphatic," and another "unusually em phatic." Similarly, while I agree with the proposition that "equitable tolling is not permissible where it is in consistent with the text of the relevant statute," Beg gerly, 524 U.S. at 48, 118 S. Ct. 1862, Judge Moore's dis sent offers no reasoned justification to explain why toll ing is consistent with a statute that uses, for example, the term "must" but is inconsistent with a statute that uses the term "in no event."

The cases cited by Judge Moore's dissent from other circuits to the contrary are neither controlling nor appli cable. See Dubuc v. Johnson, 314 F.3d 1205, 1209 (10th Cir. 2003) (interpreting not periods of limitation, but pre requisites of proceeding in forma pauperis); Webb v. United States, 66 F.3d 691, 700-02 (4th Cir. 1995) (inter preting statute of repose from two-tiered Lampf struc ture); Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1043 (10th Cir. 1980) (same); Caviness v. DeRand Res. Corp., 983 F.2d 1295, 1301 (4th Cir. 1993) (same); Hodg son v. Int'l Printing Pressmen & Assistants' Union of N. Am., 440 F.2d 1113, 1116-17 (6th Cir. 1971) (proposing that "[i]t may, however, be significant that the more em phatic language 'but in no event after 60 days' was not adopted," but placing no weight on such legislative his tory in ultimate holding).

Therefore, there is no reasoned justification to create a new exception to the Irwin presumption to preclude the application of equitable tolling based on the use of the three words "in no event."

B.

Second, Judge Moore's dissent attempts to establish a new rule holding that time limits "for filing an appeal rather than an initial cause of action" constitute a factor weighing "against a finding that equitable tolling ap plies." Post, at 860-61. As discussed by the majority opinion, ante, at 842-43, this court decided en banc in Bailey that the same Irwin presumption applies to stat utes of limitations and statutes of timing of review. See 160 F.3d at 1366-68. Judge Moore's argument in this case that the nature of the deadline is nonetheless rele vant merely recasts the argument that this court dis missed in Bailey. Specifically, by considering the appel late nature of a deadline to be a factor against equitable tolling, her dissent attempts to bifurcate the equitable tolling doctrine into two branches: (1) for time limits of initial causes of action, the Irwin presumption applies, and (2) for time limits of filing appeals, a lighter presumption or no presumption applies.

Of course, this court sitting en banc may reconsider our own precedent. Judge Moore's dissent, however, has not even acknowledged that its argument seeks to over turn our en banc decision. Moreover, Judge Dyk's dis sent, by explicitly seeking to overturn Bailey and failing, highlights the fact that Bailey remains controlling law. Therefore, Bailey compels us not to create a new excep tion applying a lighter or no presumption to time limits dealing with periods of review.

IV.

Accordingly, the Supreme Court's decisions in Irwin, Brockamp, Beggerly, and Lampf, and our decision in Bailey dictate that the doctrine of equitable tolling applies to the VEOA statute and that Kirkendall has at least the opportunity to equitably toll the time limit.

 

 

MOORE, Circuit Judge, concurring in part and dissenting in part, in which PROST, Circuit Judge joins, and LOU RIE, RADER, BRYSON, and DYK, Circuit Judges, join as to Part I.

I disagree with the majority's conclusion that section 3330a(d)(1) of Title 5 is subject to equitable tolling. Therefore, I dissent from Part I of the majority opinion. Additionally, while I agree with the majority that Kirkendall is entitled to a hearing on his Uniformed Ser vices Employment and Reemployment Rights Act ("USERRA") claim, section 4324(c)(1) cannot be read to confer that right. Rather, I believe that Kirkendall has that right because the Merit Systems Protection Board ("Board"), through its regulations, has defined Kirken dall's USERRA claim as an "appeal" for which a hearing is granted under 5 U.S.C. § 7701. Therefore, I concur in the result with respect to Part II of the majority's opinion.

I. Equitable Tolling

The Veterans Employment Opportunities Act of 1998 ("VEOA") is an employment statute designed to provide certain preference-eligible veterans with a method for seeking redress if veteran's preference rights have been violated in hiring decisions made by the federal government. See H.R. Rep. No. 105-40(I) (1997), 1997 WL 136375, at *9. By statute, VEOA claimants must first file a complaint with the Department of Labor ("DoL") within 60 days of the alleged veterans preference viola tion, 5 U.S.C. § 3330a(2)(A), and if the Secretary of La bor is unable to resolve the complaint, the claimant may appeal to the Board within 15 days of receiving notice that the DoL was unable to resolve the complaint. See 5 U.S.C. § 3330a(d)(1)(B) (2000). The majority holds that both of these deadlines may be equitably tolled.1

While I agree that under our precedent, there is a presumption that equitable tolling applies to Kirkendall's VEOA appeal under section 3330a(d)(1)(B), in my opin ion, Congress rebutted that presumption when enacting the 15-day deadline for appealing to the Board. See Bailey v. West, 160 F.3d 1360, 1364-65 (Fed. Cir. 1998) (en banc) (concluding that the Irwin presumption applies to the deadline for filing an appeal under 38 U.S.C. § 7266(a)); see also Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990). The presumption that equitable tolling applies may be rebutted if "there [is] a good reason to believe that Con gress did not want the equitable tolling doctrine to ap ply." United States v. Brockamp, 519 U.S. 347, 350, 117 S. Ct. 849, 136 L. Ed. 2d 818 (1997). In Bailey v. West, we stated that "Irwin commands that tolling should be presumed absent a clear contrary intent of Congress to limit jurisdiction created by a particular statute." 160 F.3d at 1368.

Factors that help us discern Congress's intent include whether the limitations are provided in unusually em phatic form, whether the limitations are set forth in a highly detailed technical manner, the statute's underly ing subject matter, whether the limitations are reiter ated in several different ways, and whether the statute sets forth explicit exceptions. Brockamp, 519 U.S. at 350-52, 117 S. Ct. 849. All Brockamp factors need not be present to find that Congress intended to preclude toll ing. See Brice v. Sec'y of Health & Human Servs., 240 F.3d 1367, 1372-73 (Fed. Cir. 2001). When analyzing a statute in view of the Brockamp factors, courts must re member that "equitable tolling is not permissible where it is inconsistent with the text of the relevant statute." United States v. Beggerly, 524 U.S. 38, 48, 118 S. Ct. 1862, 141 L. Ed. 2d 32 (1998); see also Young v. United States, 535 U.S. 43, 49, 122 S. Ct. 1036, 152 L. Ed. 2d 79 (2002) (noting that it is "hornbook law" that limitations periods are tollable "unless tolling would be 'inconsistent with the text of the relevant statute'").

The majority only considers the Brockamp factors in its analysis and turns a blind eye toward other consider ations which have traditionally been used to determine Congress's intent in statutory construction. In determin ing whether there is "good reason to believe that Con gress did not want the equitable tolling doctrine to ap ply," Brockamp, 519 U.S. at 350, 117 S. Ct. 849, courts should look at all the evidence of congressional intent including all appropriate canons and tools of statutory construction, the plain words of the statute, and the na ture of the proceeding provided for in the statute.

Based on the Brockamp factors, the majority con cludes that Congress has not expressed a "clear contrary intent," Bailey, 160 F.3d at 1368, to preclude equitable tolling and therefore the time period in section 3330a(d)(1)(B) can be equitably tolled. I disagree. Nu merous factors suggest that Congress did not intend that the 15-day time period for filing an appeal be equitably tolled. These factors include: the emphatic "in no event" language-particularly when compared to the less em phatic language used to specify deadlines elsewhere in the VEOA, the highly detailed and technical structure of the administrative redress scheme embodied in the VEOA and the centrality of the 15-day deadline in that process, that the VEOA is a federal employment statute inherently requiring speedy resolution of grievances, and the fact that the deadline is a mandatory and jurisdic tional appellate deadline.

A.

I believe that Congress set forth the 15-day deadline in unusually emphatic form. Brockamp, 519 U.S. at 350-52, 117 S. Ct. 849. Specifically, the "in no event" lan guage is unequivocal and emphatic. The statute provides:

If the Secretary of Labor is unable to resolve a com plaint under subsection (a) within 60 days after the date on which it is filed, the complainant may elect to appeal the alleged violation to the Merit Systems Pro tection Board in accordance with such procedures as the Merit Systems Protection Board shall prescribe, except that in no event may any such appeal be brought-

(A) before the 61st day after the date on which the complaint is filed; or

(B) later than 15 days after the date on which the complainant receives written notification from the Secretary under subsection (c)(2).

5 U.S.C. § 3330a(d)(1) (emphasis added). If the "in no event" language is not meant to foreclose tolling, it would be entirely superfluous. See Duncan v. Walker, 533 U.S. 167, 174, 121 S. Ct. 2120, 150 L. Ed. 2d 251 (2001) (adopt ing construction of a statute that avoids rendering stat ute's language "insignificant, if not wholly superfluous"); Williams v. Taylor, 529 U.S. 362, 404, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000) ("It is . . . a cardinal principle of statutory construction that we must 'give effect, if pos sible to every clause and word of a statute.' United States v. Menasche, 348 U.S. 528, 538-39, 75 S. Ct. 513, 99 L. Ed. 615 (1955)." (additional citations omitted)). To permit equitable tolling in spite of the "in no event" lan guage would be "inconsistent with the text of the rele vant statute" and therefore impermissible. See Beggerly, 524 U.S. at 48, 118 S. Ct. 1862. "In no event" is equiva lent to stating "there shall be no exceptions." Short of saying "equitable tolling shall not apply,"2 Congress could not have been clearer.

Other circuit courts agree that when Congress in cludes the "in no event" clause in a statute, Congress means what it says. See Aldrich v. McCulloch Proper ties, Inc., 627 F.2d 1036, 1043 (10th Cir. 1980) (interpret ing the "in no event" language in the Interstate Land Sales Full Disclosure Act ("ILSFDA," 15 U.S.C. § 1711) and stating "[t]he last sentence of this section uses strong and unambiguous terms which, if not meant to create an absolute bar to untimely suits under the ILDSFA, are extraneous and meaningless"); Caviness v. DeRand Res. Corp., 983 F.2d 1295, 1301 (4th Cir. 1993) (stating that permitting equitable tolling of section 13 of the Securities Act of 1933 "would require us to ignore the plain meaning of the language that says 'in no event' may an action be filed more than three years after the sale and defeat the very purpose of the statute of repose"); Webb v. United States, 66 F.3d 691, 701-02 (4th Cir. 1995) (citing Short v. Belleville Shoe Mfg. Co., 908 F.2d 1385, 1391-92 (7th Cir. 1990), which concluded that "[u]nless the 'in no event more than three' language cuts off claims of tolling and estoppel at three years . . . it serves no purpose at all"); Dubuc v. Johnson, 314 F.3d 1205, 1209 (10th Cir. 2003) (noting the irony that the language "in no event" must lead to a result contrary to the purpose of 28 U.S.C. § 1915(g), but finding this insufficient to "justify the judicial repeal of § 1915(g)'s 'in no event' lan guage"); Hodgson v. Int'l Printing Pressmen & Assis tants' Union of N. Am., 440 F.2d 1113, 1116-17 (6th Cir. 1971) (stating "[i]t may, however, be significant that the more emphatic language 'but in no event after 60 days' was not adopted" in assessing the applicability of equita ble tolling to 29 U.S.C. § 482(b) (1964)).

The majority would like to divorce the analysis of Con gress's intent from the words of the statute. The major ity suggests that the Supreme Court pays "little, if any attention to the specific language" of the statute when determining whether Congress intended the statute to be tollable. Maj. op. at 839. This narrow reading of eq uitable tolling case law is inconsistent with basic and fun damental tenets of statutory construction, which attempt to discern congressional intent by first looking to the language of the statute itself. See Lamie v. United States Tr., 540 U.S. 526, 534, 124 S. Ct. 1023, 157 L. Ed. 2d 1024 (2004) ("The starting point in discerning con gressional intent is the existing statutory text. . . ."); Holloway v. United States, 526 U.S. 1, 6, 119 S. Ct. 966, 143 L. Ed. 2d 1 (1999) ("[T]he language of the statutes that Congress enacts provides the most reliable evidence of its intent. For that reason, we typically begin the task of statutory construction by focusing on the words that the drafters have chosen."); Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409, 113 S. Ct. 2151, 124 L. Ed. 2d 368 (1993) ("The starting point in interpreting a statute is its language. . . ."); United States v. Scharton, 285 U.S. 518, 521, 52 S. Ct. 416, 76 L. Ed. 917 (1932) ("We are required to ascertain the intent of Congress from the language used [in the statute]."). In my view, the Su preme Court's equitable tolling cases, like all statutory interpretation cases, require us to consider the language chosen by Congress to determine whether Congress in tended that equitable tolling apply. See Beggerly, 524 U.S. at 48, 118 S. Ct. 1862 ("equitable tolling is not per missible where it is inconsistent with the text of the rele vant statute"); Brockamp, 519 U.S. at 350-52, 117 S. Ct. 849 (looking at the "unusually emphatic form" for the statute and holding that "linguistically speaking" the statute uses "language that is not simple").

The majority suggests that the Supreme Court's deci sion in Bailey v. Glover, 21 Wall. 342, 88 U.S. 342, 349, 22 L. Ed. 636 (1874), underscores the minimal importance of the language of the statute in determining congressio nal intent. Maj. op. at 838-39 ("[D]espite the statute's admonishment that 'no suit . . . shall in any case be maintainable,' the Court, nonetheless, found that equita ble relief was not inconsistent."). In my opinion, Bailey fails to support to the majority's insistence that we ig nore the plain language of the statute in determining congressional intent regarding equitable tolling. That case did not involve the "in no event" language used here but rather a less emphatic reference to "in any case," meaning merely that the statute applied generally. Bailey is not an equitable tolling case. In that case, the Supreme Court adopted what has come to be known as the "fraudulent concealment doctrine." In the event of fraud, the Supreme Court held that equity would in tervene to prevent the claim from accruing despite the statute's language that "no suit in law or equity shall in any case be maintained . . . unless brought within two years." Id. Bailey, therefore, deals with when a claim accrues and the statute begins to run, carving out an exception to statutes of limitations when the facts giv ing rise to the cause of action have been fraudulently concealed from a claimant.3 Id. at 349-50. Because there are no allegations that Kirkendall's appeal was not timely filed due to fraudulent concealment by the gov ernment, this narrow exception does not apply. In fact, Kirkendall's counsel conceded during oral argument that the present appeal addresses equitable tolling and not claim accrual.

B.

Reading the emphatic "in no event" language as it is used in the context of the entire VEOA further evinces Congress's intent to preclude tolling. In all other parts of the VEOA, Congress used less emphatic language to establish time limits. For example, the statute says that a complaint with the DoL "must be filed within 60 days after the date of the alleged violation." 5 U.S.C. § 3330a(a)(2)(A). If a claimant chooses to pursue redress through the district courts rather than the administra tive process, they must do so "not later than 60 days af ter the date of the election." 5 U.S.C. § 3330b(a) (2000 & Supp. 2006). Section 3330b(b) states: "[a]n election un der this section may not be made-(1) before the 121st day after the date on which the appeal is filed with the Merit Systems Protection Board." None of the other sections of the VEOA say "in no event." All other time limits for pursuing action under the VEOA allow for lon ger time limits and use language which is far less em phatic. Yet, Congress chose a more rigid time period for bringing actions to the Board once the administrative process was underway. Again, proper weight should be given to the words Congress chose, especially where Congress itself has drawn a distinction in the words it used in the same statute. See Sosa v. Alvarez-Machain, 542 U.S. 692, 712 n.9, 124 S. Ct. 2739, 159 L. Ed. 2d 718 (2004) (stating that there is a "usual rule that when the legislature uses certain language in one part of the stat ute and different language in another, the court assumes different meanings were intended" (internal citations and quotations omitted)); Russello v. United States, 464 U.S. 16, 23, 104 S. Ct. 296, 78 L. Ed. 2d 17 (1983); 2A N. Singer, Sutherland Statutory Construction § 46:6 (6th ed. 2000) ("[W]hen the legislature uses certain lan guage in one part of the statute and different language in another, the court assumes different meanings were in tended."); United States v. Ahlers, 305 F.3d 54, 59-60 (1st Cir. 2002) ("It is accepted lore that when Congress uses certain words in one part of a statute, but omits them in another, an inquiring court should presume that this differential draftsmanship was deliberate."). The use of the "in no event" language alongside less emphatic language in the VEOA further convinces me that Con gress intended to foreclose equitable tolling in the ap peals portion of the process.

C.

Read as a whole, the VEOA is detailed and technical; it sets forth various time limits for filing at the different stages of the administrative process. These time limits are detailed and sequential and further support my con clusion that Congress did not intend the 15-day time pe riod in subsection (d)(1)(B) to be equitably tolled as that deadline stands in the middle of the sequential adminis trative redress process.4 The structure of subsection (d)(1) is technical in nature and is like the two-tiered structure employed in section 13 of the 1933 Securities Act discussed in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 111 S. Ct. 2773, 115 L. Ed. 2d 321 (1991). The Brockamp factor (that de tailed, technical language weighs against tolling) focuses on the detail in the statute's enumeration of the time lim its rather than an analysis of the technical nature of the underlying subject matter to which the statute pertains. See Brockamp, 117 S. Ct. at 851-52 (discussing the de tailed, technical language used to set forth the statute's time limits). The statute in question does not merely prohibit an appeal more than 15 days after receiving no tice from the DoL regarding the results of its investiga tion, but also prohibits the filing of an appeal before the 61st day. See 5 U.S.C. § 3330a(d)(1). The statute, in this case, details a specific window during which the appeal must be filed; it cannot be filed too early (before the 61st day after the date on which the complaint is filed) or too late (more than 15 days after the DoL notice is received). Id.

Although the majority also considers the nature of this window for the appeals process created by Congress, it draws incorrect inferences from it. The majority sug gests that the purpose of the "in no event" language is to "introduce[ ] a timing requirement that is not a 'dead line'" and merely "emphasize[s] Congress' intent to pro vide a 60-day window left exclusively for DoL review." Maj. op. at 838. The majority's conclusion is self-contra dictory. The "in no event" language cannot demonstrate congressional intent to bar an early appeal to the Board, but at the same time permit an appeal filed after the 15-day time period-the "in no event" clause applies equally to both subsection (d)(1)(A) and (d)(1)(B).

 

D.

The substance or subject matter of the statute also leads me to believe that Congress did not intend equita ble tolling to apply to the 15-day deadline. The majority believes that the policies underlying section 3330a com pel the conclusion that the 15-day deadline in section 3330a(d)(1)(B) is subject to equitable tolling. Maj. op. at 841-42, 843-44. It is true that, when possible, veterans' benefits legislation should be "liberally construed for the benefit of those who left private life to serve their coun try in its hour of great need." Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285, 66 S. Ct. 1105, 90 L. Ed. 1230 (1946). Courts must, however, be mindful that a statute's correct construction is consistent with the language Congress chose to use in the statute. The VEOA's redress mechanism is "modeled after the procedures established in [USERRA]." [S. Rep. No.] 105-340, 1998 WL 658809, at *16 (1998). There is no time limit for filing a USERRA complaint with the Board. See 5 C.F.R. § 1208.12 ("there is no time limit for filing a USERRA appeal directly with the Board"). That the VEOA, an employment statute, includes time limitations for filing with the Board whereas USERRA, an anti discrimination statute, does not include any such limita tion, further weighs in favor of concluding that tolling of the 15-day deadline is inappropriate. Congress's choice of emphatic language coupled with a relatively short deadline for filing an appeal strongly support the notion that Congress acted deliberately and intended the result that it legislated-particularly where the statute upon which the VEOA was based included no time limits for filing an appeal.

Moreover, Congress chose to codify the VEOA in Chapter 33, Title 5, the section of the United States Code directed to government organization and employees, whereas USERRA is codified in Title 38, which relates to statutory veterans' benefits. Claims under the VEOA challenge the methodology used by the federal govern ment in reaching hiring decisions and could result in changes in the way that agencies make such decisions. Once a challenge to an agency's hiring decision has been made, it ought to be resolved expeditiously otherwise uncertainty remains in the government hiring process. Obviously, the government would prefer not to pay two people to do one job and the longer it takes to resolve the hiring dispute, the more money in the way of back pay is at stake. It is therefore important that VEOA com plaints are resolved expeditiously so that the government can operate efficiently. Accord 5 U.S.C. § 3301 (2000) (giving the executive power to promulgate such regula tions as "will best promote the efficiency of service").

E.

It is also significant that this statute is one specifying the time for filing an appeal. Although in Bailey v. West we rejected the notion that statutes "specifying the time for review cannot be subject to equitable tolling because such statutes are mandatory and jurisdictional," our holding in Bailey does not preclude us from considering the context of the deadline as relevant to the Brockamp subject matter inquiry.5 Bailey, 160 F.3d at 1367; see also Oja v. Dep't of the Army, 405 F.3d 1349, 1359 (Fed. Cir. 2005). Our opinion in Bailey itself recognizes that the Supreme Court has found statutes specifying the time for review to be "mandatory and jurisdictional" and "not subject to equitable tolling." 160 F.3d at 1366-67; see also Stone v. INS, 514 U.S. 386, 405, 115 S. Ct. 1537, 131 L. Ed. 2d 465 (1995) (holding that judicial review provisions "are mandatory and jurisdictional . . . and are not subject to equitable tolling" (internal citations and quotations omitted)); Missouri v. Jenkins, 495 U.S. 33, 45, 110 S. Ct. 1651, 109 L. Ed. 2d 31 (1990) (stating that the 90-day time period for filing a petition for certio rari in a civil case is "mandatory and jurisdictional" and that the Court does not have "authority to extend the period for filing except as Congress permits"). Hence, while the fact that the time limit at issue is for filing an appeal rather than an initial cause of action may not be dispositive, we find the context relevant to our analysis. Appeals in this case are filed after the appellant has re ceived notice regarding the specific time periods and location for appealing. In this case, Kirkendall received notification from DoL that his complaint was dismissed as untimely on November 29, 2001. This notification stated that Kirkendall had "the right to take [his] claim to the Merit Staffing [sic Systems] Protection Board (MSPB), that claim must be filed within 15 days of the date following the receipt of this notification." U.S. DoL Ltr. to Kirkendall (Nov. 29, 2001) (emphasis in original). Kirkendall did not file his appeal with the Board until June 13, 2002-nearly six months later. For initial fil ings, in contrast, litigants are often without information as to statutes of limitations periods or even appropriate methods of filing for redress. Accordingly, the nature of the deadline in this case, i.e., the time for filing an ap peal, where notice about the filing deadline and require ments had been given, further weighs against a finding that equitable tolling applies.

F.

Although Congress did not create any exceptions to the filing deadlines in section 3330a(d)(1) or repeat the time periods for filing an appeal, these factors cannot outweigh the evidence that Congress did not intend equi table tolling apply to the 15-day time period. Congress may not have allowed for exceptions because it did not intend for there to be any-as the "in no event" language plainly suggests. Moreover, when Congress speaks clearly expressing its intent that "in no event" may the time period be extended, it seems inappropriate to con clude that the fact that it did not say it twice ought to weigh against giving force and effect to Congress's words. Hence, while repetition and exceptions may weigh in favor of precluding equitable tolling, and cer tainly Supreme Court cases confirm that they do, e.g., Brockamp, 519 U.S. at 352, 117 S. Ct. 849, it does not necessarily follow that the absence of these factors favors permitting tolling.6

After considering: the emphatic language which Con gress chose to articulate the particular timeframe at is sue especially when compared to other timeframes in the VEOA; the detailed nature of the redress process in the VEOA; the detailed administrative redress scheme of which 3330a(d)(1) is a small, yet central part of; the fact that the VEOA pertains to federal employment decisions; that the deadline is akin an appellate deadline that is, in many ways, mandatory and jurisdictional in that it is the sole statute providing the Board's jurisdiction over VEOA claims, I cannot conclude that Congress intended that section 3330a(d)(1)(B) be equitably tolled. Because Kirkendall failed to meet the 15-day deadline for filing an appeal to the Board on his VEOA claim, and that deadline is not subject to equitable tolling, I respectfully dissent.

II. Right to a Hearing on USERRA Claim

The lead opinion holds that section 4324(c)(1) "unam biguously" requires the Board to provide Kirkendall a hearing on his USERRA claim.7 I do not agree with the interpretation of the statute reached in the lead opinion. Rather, I conclude that the Board's own regulations, rather than anything in USERRA, provide Kirkendall with the right to a hearing under section 7701 of Title 5. It is for this reason that I concur only in the result with respect to Part II of the lead opinion.

A.

Section 4324(c)(1) provides in full:

The Merit Systems Protection Board shall adjudicate any complaint brought before the Board pursuant to subsection (a)(2)(A) or (b), without regard as to whether the complaint accrued before, on, or after October 13, 1994. A person who seeks a hearing or adjudication by submitting such a complaint under this paragraph may be represented at such hearing or adjudication in accordance with the rules of the Board.

38 U.S.C. § 4324(c)(1) (2000) (emphasis added). The plurality relies heavily on the language that that Board "shall adjudicate any complaint brought before [it]." Maj. op. at 844 (quoting section 4324(c)(1)). Nothing in the statute requires that "adjudication" automatically include a "hearing." In fact, the word "adjudication" is used disjunctively from the term "hearing" and indicates that they have different meanings. Sosa, 542 U.S. at 712 n.9, 124 S. Ct. 2739. The plurality believes that any in terpretation of the statute that does not confer the right to a hearing renders the "at such hearing" language of the statute "nonsensical." Maj. op. at 844. To reach this conclusion the plurality ignores the words of the statute, which permit representation in the court of "such hear ing or adjudication." 38 U.S.C. § 4324(c)(1) (emphasis added). The statute only requires: (1) retroactivity; and (2) that a person be entitled to representation when the Board hears or adjudicates their USERRA claims. Id. This statute cannot reasonably be read to mandate a right to a hearing on all USERRA claims.

Even if section 4324(c)(1) were ambiguous, which it is not, the legislative history demonstrates that during the enactment of this section changes were made to the stat utory language to address concerns regarding whether the Office of Special Counsel would be required to repre sent USERRA claimants or how representation would be made available. See, e.g., JOINT EXPLANATORY STATE MENT ON H.R. 955, 140 CONG. REC. H9136 (1994), re printed in 1994 U.S.C.C.A.N. 2493, 2509-10 (explaining the adoption of the Senate proposal that an "individual would be able to be represented before the MSPB by a representative of choice"); S. Rep. No. 103-158, at 37 (1993) (stating that USERRA would "[e]nable Federal executive agency employees . . . to receive representa tion by the Office of Special Counsel before the MSPB and the U.S. Court of Appeals for the Federal Circuit"). I have found nothing in the legislative history that sug gests that Congress intended section 4324(c)(1) to man date that the Board provide a hearing to all USERRA claimants. In fact, the legislative history, as reflected in the statute, indicates that the Board would be free to promulgate rules to govern the USERRA claims process. See 38 U.S.C. § 4331(2)(A) (2000); S. Rep. No. 103-158, at 75 (1993) ("Although [the Board] may have authority under title 5, United States Code, to prescribe necessary regulations, explicit inclusion of that authority in chapter 43 of title 38 would remove any doubt on this matter."); see also 5 U.S.C. § 1204(a)(1) (2000) (amended with en actment of USERRA to permit the Board to "hear, adju dicate, or provide for the hearing or adjudication, of all matters within the jurisdiction of the Board under . . . [USERRA], or any other law, rule, or regulation . . ." (emphasis added)).

Although the plurality determines that the statutory language unambiguously requires a hearing, the majority also relies on Fishgold, 328 U.S. at 285, 66 S. Ct. 1105 and King v. St. Vincent's Hospital, 502 U.S. 215, 220 n.9, 112 S. Ct. 570, 116 L. Ed. 2d 578 (1991), to conclude that "it is abundantly clear that Congress' intent is to provide veterans a hearing upon request, especially be cause" we resolve statutory ambiguities in favor of the veteran. Maj. op. at 845-46. The statute is unambiguous and, in my opinion, does not convey an automatic right to a hearing.

B.

Although I do not believe section 4324 conveys a right to a hearing in every case, I do conclude Kirkendall is entitled to a hearing based on the Board's regulations. Section 7701 of Title 5 of the United States Code applies to appeals to the Board "under any law, rule, or regula tion." See also 5 U.S.C. § 1204(a)(1) (2000) (giving the Board authority to hear or adjudicate any matter brought within its jurisdiction by "any . . . rule, or regulation"). The plain import of this language permits ap peals to lie with the Board not only under laws, but also under rules and regulations. Here, the Board has pro mulgated regulations that invoke section 7701 by repeat edly defining USERRA claims as "appeals" and by plac ing these claims within its appellate jurisdiction.8 See 5 C.F.R. §§ 1201.3(b)(1), 1208.4(a), 1208.13. The Board's regulations clearly define USERRA claims to be within the Board's appellate jurisdiction. See, e.g., 5 C.F.R. § 1201.3(b)(1); Petersen v. Dep't of the Interior, 71 M.S.P.R. 227, 234 (1996) (stating that "both the language and legislative history of USERRA make it evident that all cases under USERRA brought by the individual ap pellants fall within the Board's appellate jurisdiction"). The Board's intent when it enacted the rules enabling USERRA was clear: USERRA actions are "appeals." See 65 Fed.Reg. 49,895 (Aug. 16, 2000) (notice of final rulemaking for subpart 1208 referring to USERRA claims as "appeals"); 65 Fed.Reg. 5,409 (Feb. 4, 2000) (addressing new subpart 1208 and continuing to refer to USERRA claims as "appeals"); 62 Fed.Reg. 66,813 (Dec. 22, 1997) (stating that USERRA provides federal em ployees expanded rights "including a new statutory right to appeal a USERRA violation to the MSPB"). Given that the Board treats USERRA proceedings as appeals, USERRA proceedings are subject to the procedures specified in section 7701 and Kirkendall had a right to a hearing.9

1 Because I conclude that the 15-day deadline is not subject to equit able tolling, I need not reach the question of whether the 60-day dead line may be equitably tolled.

2 Appellant proffered this language to the court during oral argu ment, but could point to no statute in which Congress used this lang uage.

3 Although Bailey has been cited in cases wording the applicable doctrine as "equitable tolling," this does not change the limited nature of the holding in Bailey. For example, in Lampf, the petitioner's argu ments were directed to whether fraud should equitably relax the deadline at issue. 501 U.S. at 363, 111 S. Ct. 2773 ("Thus, this Court has said that in the usual case, 'where the party injured by the fraud remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered, though there be no special circumstances or efforts on the part of the party committing the fraud to conceal it from the knowledge of the other party.'") Read in context, the Supreme Court's citation of Bailey in Lampf makes sense. Therefore, I do not read the Supreme Court's decisions as interjecting Bailey's fraudulent concealment doctrine into all equitable tolling cases where fraud is not at issue.

 

4 The majority suggests that the short 15-day time period favors tolling, relying on the three-and twelve-year periods of Lampf and Beggerly. Maj. op. at 841. The statutes at issue there, however, were limitation periods for bringing actions, rather than time for review provisions, as in this case. This distinction is an important one. There is clearly an interest in expeditious resolution of employment disputes once in progress, thereby justifying much shorter time limits.

5 To the extent that Bailey is read as permitting equitable tolling even where a statute is decisively "mandatory and jurisdictional" it would seem inconsistent with Supreme Court precedent. Missouri v. Jenkins, 495 U.S. 33, 45, 110 S. Ct. 1651, 109 L. Ed. 2d 31 (1990); Stone v. INS, 514 U.S. 386, 405, 115 S. Ct. 1537, 131 L. Ed. 2d 465 (1995); see also Neverson v. Farquharson, 366 F.3d 32, 40 n.8 (1st Cir. 2004) ("[I]t may be that when a time limit is phrased in jurisdictional terms, the Irwin presumption is rebutted"; "the Supreme Court after Irwin has continued to characterize 'jurisdictional' time limits as ineligible for equitable tolling."). If Stone and Jenkins are interpreted as prohibit ing equitable tolling of statutory time limits that are mandatory and jurisdictional, equitable tolling would not be permitted in this case because section 3330a(d)(1) is the sole statutory section providing an individual the ability to appeal a VEOA violation to the board.

6 For example, had Congress said "equitable tolling shall not apply," would the majority still suggest that because they did not say it twice or allow exceptions, tolling is permitted?

7 Notably, no party or amici at any time during any of the proceed ings before this court suggested that section 4324(c)(1) provides an automatic right to a hearing as the majority holds.

8 In fact, the Board's regulations refer to USERRA actions as "appeals" 29 times and the person bringing the action before the Board as the "appellant" 28 times.

9 The Board interpreted 5 C.F.R. § 1208.13 as permitting it to exercise discretion on whether or not Kirkendall was entitled to a hearing. Kirkendall v. Dep't of the Army, AT-343-02-0622-B-1, AT-0330-02-0621-B-1 at 6 n.3. Because the Board has consistently treated USERRA actions as "appeals," its interpretation of 5 C.F.R. § 1208.13 as giving it discretion to grant a hearing in a USERRA action is improper and inconsistent with the body of its regulations.

 

BRYSON, Circuit Judge, with whom LOURIE, RADER, and DYK, Circuit Judges, join, and with whom SCHALL and LINN, Circuit Judges, join in part, dissenting.*

I respectfully dissent as to both issues in this case. With respect to the first issue-whether equitable tolling may apply to the 15-day limitations period under the Vet erans Employment Opportunities Act of 1998 ("VEOA"), Pub. L. No. 105-339-I join Judge Moore's dissent. With respect to the second issue-whether a complainant has an automatic right to a hearing before the Merit Sys- tems Protection Board under the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"), Pub. L. No. 103-353-I dissent from the court's disposition for the reasons set forth below.

The Board's USERRA regulation provides, and the Board has consistently held, that USERRA complainants have no absolute statutory or regulatory right to a hear ing, but that hearings may be conducted at the discretion of the administrative judge presiding over the proceed ing. The Board's consistent practice under its USERRA regulation has been to direct its administrative judges to hold hearings in USERRA cases when there are disputed issues of material fact, but not to require hearings in every case in which one is requested. See, e.g., Wooten v. Dep't of Veterans Affairs, 102 M.S.P.R. 131, 135-36 (2006); Perih v. Dep't of Veterans Affairs, 102 M.S.P.R. 454, 457 (2006); Mills v. Dep't of Transp., 101 M.S.P.R. 610, 614 (2006); Jordan v. U.S. Postal Serv., 90 M.S.P.R. 525, 529 (2002), aff'd, 82 Fed. Appx. 42 (Fed. Cir. 2003).1

Judge Mayer's opinion takes the position that the right to a hearing before the Board in USERRA cases is guaranteed by both the USERRA statute itself, 38 U.S.C. § 4324, and by the statute that gives the Board jurisdiction over appeals from agency decisions, 5 U.S.C. § 7701. Judge Moore's concurring opinion disagrees with that statutory analysis but takes the position that the right to a hearing is created by Board regulation. I dis agree with both views and conclude that, as the Board has consistently held, neither those statutes nor the Board's regulations provide an automatic right to a hear ing in USERRA cases. Even if the statutes and regula tions are considered unclear on this point, the Board's interpretations of the pertinent statutes and its own reg ulations are entitled to deference under well-established principles of administrative law. The Board's resolution of the USERRA hearing issue should therefore be up held.

I

The analysis begins with 5 U.S.C. § 7701(a), which provides that "[a]n employee or applicant for employ ment may submit an appeal to the Merit Systems Protec tion Board from any action which is appealable to the Board under any law, rule, or regulation." Section 7701 sets forth a number of procedural rights that attach to matters that are appealable to the Board. For present purposes, the most important is that the appellant has the right "to a hearing for which a transcript will be kept." Id. § 7701(a)(1).

A

The statutory trigger for applying section 7701 and its prescribed procedures is that the action must be "appealable to the Board under any law, rule, or regula tion." The paradigmatic example of an action that is made "appealable to the Board under any law" is an ad verse agency action under 5 U.S.C. § 7512, from which an employee "is entitled to appeal to the Merit Systems Pro tection Board under section 7701 of this title." Id. § 7513(d). There are a number of other actions that are also made appealable to the Board under section 7701, such as those in which appeals are authorized under 5 U.S.C. §§ 3593(c)(2) (appeal from denial of reinstate ment in Senior Executive Service), 3595(c) (appeal from removal from Senior Executive Service due to reduction in force), 4303(e) (appeal from reduction in grade or re moval for unacceptable performance), 7543(d) (appeal from removal or suspension from Senior Executive Ser vice), 8347(d)(2) (appeal from finding of disability based on mental condition, for employees covered by the Civil Service Retirement System), and 8461(e)(2) (same, for employees covered by the Federal Employees' Retire ment System). In each of those instances, Congress re ferred to the action before the Board as an "appeal" and expressly referred to the appeal as being subject to section 7701.

In addition to the statutory sources of authority for appeals to the Board, a number of regulatory provi sions promulgated by the Office of Personnel Manage ment ("OPM") authorize section 7701 appeals. This court has listed several examples of Board "jurisdiction con ferred by [OPM] regulation," including "the board's au thority to hear certain probationers' appeals (5 C.F.R. §§ 315.806, 315.908), and appeals concerning reduc tions-in-force (5 C.F.R. § 315.901), and reemployment rights (5 C.F.R. § 352.209)." Maule v. Merit Sys. Prot. Bd., 812 F.2d 1396, 1398 n.2 (Fed. Cir. 1987); see also Hellman v. Office of Pers. Mgmt., 9 MSPB 839, 10 M.S.P.R. 639, 642-43 (1982). Other OPM regulations that authorize appeals to the Board include 5 C.F.R. §§ 302.501, 330.209, 352.313, 352.508, 352.707, 352.807, and 353.304 (all authorizing appeals to the Board from denials of reinstatement, reemployment, and restoration in various circumstances), 359.805 (authorizing appeals to the Board from improper furloughs), 731.501 (autho rizing appeals to the Board from unsuitability determina tions), 300.104 (authorizing appeals from applications of unlawful employment practices by OPM), and 839.1302 (authorizing appeals from adverse decisions under Fed eral Erroneous Retirement Coverage Corrections Act). As this court's decisions make clear, those OPM regula tions are the sources of the right to appeal to the Board; because they make particular actions "appealable to the Board under any . . . regulation," 5 U.S.C. § 7701(a), they are the triggers for applying the section 7701 proce dures. See Sturdy v. Dep't of the Army, 440 F.3d 1328, 1333 (Fed. Cir. 2006) (right to appeal from reemployment priority decision established by OPM regulation); Roberto v. Dep't of the Navy, 440 F.3d 1341, 1353 (Fed. Cir. 2006) (same); Meeker v. Merit Sys. Prot. Bd., 319 F.3d 1368, 1373 (Fed. Cir. 2003) (OPM regulation grants Board jurisdiction over appeal from OPM's application of employment practices); Maule, 812 F.2d at 1398 n.2.

Importantly, the Board's jurisdiction is not limited to the appeals referred to in section 7701. In particular, the Board has jurisdiction over other actions that are not statutorily denominated "appeals," see 5 U.S.C. § 1221(a) (individual right of action for whistleblower claims), or in which the governing statutes prescribe procedures other than those set forth in section 7701, see 5 U.S.C. § 3330a(d)(1) (VEOA); id. §§ 8347(d)(1), 8461(e)(1) (re view of agency action in certain disability retirement cases). One such statute is USERRA, which provides that a person claiming to have been denied a right cre ated by the statute "may submit a complaint against a Federal executive agency or the Office of Personnel Man agement," which will be adjudicated by the Board. 38 U.S.C. § 4324.

The USERRA statute does not refer to the proceed ing before the Board as an "appeal," and it does not refer to section 7701 as providing the procedures for adjudicat ing USERRA complaints before the Board. Therefore, section 7701 does not confer an absolute right to a hear ing before the Board in USERRA cases. Such a right, if conferred by statute, must be found in the USERRA statute itself. Contrary to the position taken in Judge Mayer's opinion, however, the USERRA statute does not confer such a right. Although the USERRA statute re fers to the possibility of a hearing on a complaint brought before the Board, 38 U.S.C. §§ 4324(c)(1), 4324(c)(4), it does not state that the complainant has an automatic right to a hearing. Section 4324(c)(1) of USERRA pro vides that the Board "shall adjudicate any complaint brought before the Board" pursuant to USERRA and refers to a person "who seeks a hearing or adjudication by submitting such a complaint." 38 U.S.C. § 4324(c)(1). Nothing in that formulation, however, gives complainants an absolute right to a hearing, just as the general run of administrative statutes that provide for a hearing have not been construed to require an automatic hearing in the absence of a material factual dispute. See note 1, supra. Instead, section 4324(c)(1) simply echoes the lan guage used in the Board's general authorizing statute, 5 U.S.C. § 1204(a)(1), which gives the Board authority to "hear, adjudicate, or provide for the hearing or adjudica tion of all matters within the jurisdiction of the Board," a provision that plainly does not confer an absolute right to a hearing in every proceeding before the Board.

B

As the Board points out in its amicus curiae brief, the fact that Congress chose to grant the Board specific au thority to create procedures for USERRA proceedings is further evidence that Congress regarded USERRA proceedings as not being governed by section 7701. Sec tion 7701 already has a provision granting the Board au thority to adopt procedures for appeals governed by that statute. If USERRA proceedings fell within section 7701, the USERRA provision giving the Board the au thority to promulgate procedural regulations, 38 U.S.C. § 4331(b)(2)(A), would be redundant.

The legislative background of section 4331(b)(2)(A) supports the inference that Congress intended for the Board to be able to prescribe different procedures for USERRA cases than it employed for section 7701 ap peals. The original bill that ultimately became USERRA lacked any provision authorizing the Board to promul gate regulations to govern cases within its new USERRA jurisdiction. In a written submission to the Senate com mittee, the Board urged that such a provision be included so that it would be clear that the Board could promulgate procedural regulations specific to USERRA cases. The Board explained that "[m]aking the Board's regulatory power explicit for [USERRA] purposes would assure that the Board could issue regulations tailored to the requirements of [USERRA] cases." Legislation Relat ing to Reemployment Rights, Educational Assistance, and the U.S. Court of Veterans Appeals: Hearing before the S. Comm. On Veterans' Affairs, 102d Cong., 1st Sess. 309-10 (1991). The bill was amended as the Board re quested. The new provision ultimately became section 4331(b)(2)(A) of USERRA, which the Board invoked in promulgating its new USERRA regulation giving the Board discretion with regard to holding hearings in USERRA cases, 5 C.F.R. § 1208.13(b). Congress's affir mative response to the Board's request for specific au thorization to promulgate procedural regulations "tai lored to the requirements" of USERRA cases is a further indication that Congress did not intend for the new class of USERRA claims to be governed by the procedures set forth in section 7701 and the Board's regulation promul gated under the authority of that provision.

C

This court's cases recognize that the procedures pre scribed in section 7701 do not govern all matters before the Board, or even all matters involving Board review of an initial decisionmaker distinct from the Board. An instructive case that addresses the scope of section 7701 is Lindahl v. Office of Personnel Management, 776 F.2d 276 (Fed. Cir. 1985). There, the court dealt with the pro cedures used for appeals from OPM decisions in disabil ity retirement cases under 5 U.S.C. § 8347(d). Congress delegated to the Board the authority to prescribe proce dures for such cases, and the Board did so, providing inter alia that in voluntary retirement cases the individ ual would bear the burden of proof. Lindahl appealed, arguing that section 7701 applied to the disability pro ceedings, which the Board termed "appeals," and that the agency should bear the burden of proof, as dictated by section 7701(c). This court rejected that argument. As part of its rationale, the court noted that Congress had given the Board independent statutory authority to prescribe procedures for disability retirement cases and thus could not be deemed to have intended for the sec tion 7701 procedures to apply. 776 F.2d at 278-79. The court reached that conclusion even though the statute at issue in Lindahl referred to the disability proceeding before the Board as an "appeal." In this case, the USERRA statute not only provides separate rulemaking authority for the Board but also does not refer to the proceedings before the Board as "appeals." The argu ment for finding section 7701 inapplicable is therefore even stronger here than it was in Lindahl.

The differing burden of proof in section 7701 appeals and USERRA cases provides further evidence that USERRA cases are not "appeals" governed by section 7701. Section 7701 provides that in all appeals under that section, with one narrow exception, the agency bears the burden of proof by a preponderance of the evidence to sustain the agency action on appeal. 5 U.S.C. § 7701(c)(1)(B). However, in Sheehan v. Dep't of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001), this court held that in USERRA discrimination cases the employee or applicant who makes a claim of discrimination bears the initial burden of proof of showing, by a preponder ance of the evidence, that the employee's military service was "a substantial or motivating factor" in the adverse employment action, a different standard than that appli cable under section 7701(c).2 If section 7701 covered all proceedings before the Board, including USERRA pro ceedings, there would be a conflict between the express burden of proof provision of section 7701 and the differ ent burden of proof found to be applicable in USERRA discrimination cases. There was no need for Congress to reconcile the conflicting burdens of proof under the two statutes for the simple reason that USERRA discrimina tion complaints were not made subject to section 7701.

D

Because section 7701 does not govern USERRA pro ceedings and because the reference in section 4324(c)(1) of USERRA to a person "who seeks a hearing or adjudi cation" does not confer an absolute right to a hearing before the Board, neither statute provides a source for the right that Mr. Kirkendall asserts. Even if the refer ence to a "hearing or adjudication" in section 4324(c)(1) were considered ambiguous, however, the Board has in terpreted that language as not granting an absolute right to a hearing. That interpretation, adopted through no tice-and-comment rulemaking, is a reasonable one and is therefore entitled to deference under the principles of Chevron U.S.A. Inc. v. Natural Resources Defense Coun cil, 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984). See United States v. Mead Corp., 533 U.S. 218, 229-30, 121 S. Ct. 2164, 150 L. Ed. 2d 292 (2001); Hawkins v. United States, 469 F.3d 993, 1000, 1002 (Fed. Cir. 2006); Elkem Metals Co. v. United States, 468 F.3d 795, 800-02 (Fed. Cir. 2006); Motorola, Inc. v. United States, 436 F.3d 1357, 1364-66 (Fed. Cir. 2006).

The Board's regulations sharply distinguish between appeals governed by section 7701 and other matters within its jurisdiction, such as USERRA cases. In its regulations setting forth the procedures applicable to appeals governed by section 7701, which are found at 5 C.F.R. part 1201 (specifically, at 5 C.F.R. §§ 1201.11- 1201.121), the Board relied on 5 U.S.C. § 7701(k), the subsection of section 7701 that authorizes the Board to "prescribe regulations to carry out the purpose of this section." See 54 Fed. Reg. 53505 (Dec. 29, 1989); 51 Fed. Reg. 25147 (July 10, 1986). Those regulations, like sec tion 7701 itself, provide that an appellant "has a right to a hearing" in an appeal before the Board. 5 C.F.R. § 1201.24(d). The Board, however, has promulgated a separate regulation setting forth the procedures that apply in USERRA proceedings. In adopting that regula tion, which is found in 5 C.F.R. part 1208 (specifically, 5 C.F.R. §§ 1208.11-1208.16), the Board relied on 38 U.S.C. § 4331(b)(2)(A), the subsection of the USERRA statute that grants the Board authority to prescribe regulations to carry out its activities under USERRA. See 65 Fed. Reg. 5412 (Feb. 4, 2000). The Board has made clear that USERRA proceedings are governed by the regula tion in part 1208 to the extent that it supplements or con flicts with the regulations in part 1201. See 5 C.F.R. § 1201.3(b)(1).

Unlike the regulations in part 1201, the USERRA regulation in part 1208 does not provide that a complain ant has an automatic right to a hearing before the Board, but instead provides that if the complainant submits a timely request for a hearing, a hearing "may be pro vided" either on the merits of the dispute or on the issue of jurisdiction. 5 C.F.R. § 1208.13(b). Since promulgat ing the USERRA regulation in 2000, the Board has con sistently interpreted it as giving the Board discretion in determining whether to hold hearings in USERRA cases. See Smith v. Dep't of Justice, 103 M.S.P.R. 207, 213 (2006); Jordan, 90 M.S.P.R. at 528; Metzenbaum v. Dep't of Justice, 89 M.S.P.R. 285, 290 (2001). In the absence of a clear statutory directive that hearings be held in USERRA cases whenever a complainant makes a timely request, the Board's contrary interpretation is entitled to deference and should be sustained.

II

All this would be straightforward enough, and would seem to leave no room for doubt that the Board has dis cretion whether to provide a hearing in a USERRA case, except for one complication. In its regulations, the Board has chosen to divide the universe of actions before it into two categories, "original" and "appellate." Based on that perhaps unfortunate choice of terms, Judge Moore's opinion concludes that all the actions the Board classified as within its "appellate" jurisdiction are "ap peals" for purposes of section 7701. The Board has made clear, however, that its regulations should not be inter preted in that manner, and it is a mistake for us not to take the Board at its word with respect to the meaning of its own regulations.

 

A

In the Board's USERRA regulation, a "complaint" or "action," as those terms are used in USERRA, is catego rized as an "appeal" for purposes of the regulation. 5 C.F.R. § 1208.4(a). But the Board has made clear that by denominating USERRA complaints or actions as "ap peals" for purposes of the regulation, it did not convert USERRA complaints into appeals that fall within section 7701 and are therefore subject to all the procedures man dated by section 7701. The Board explained the matter in detail in a case decided shortly after the Board adopted its USERRA regulation:

The Board's statement [in the USERRA regulation] that "appeal" is inclusive in this manner indicates an effort on its part to achieve consistency in describing matters that the Board is authorized to review. It does not purport to suggest that, because USERRA complaints are "appeals," they are, by definition, appealable to the Board pursuant to 5 U.S.C. § 7701. . . . In adopting [the USERRA] regulation, the Board stated that it was adding USERRA actions to the list of appealable actions (as opposed to those which fall under the Board's "original jurisdiction"). . . . There was no suggestion that the Board thereby considered that USERRA actions were appealable under 5 U.S.C. § 7701, and that they were, therefore, covered by 5 U.S.C. § 7702. As noted above, the USERRA statute itself did not provide that the Board's appellate procedures at 5 U.S.C. § 7701 would apply. And the Board's case law, as it devel oped, was, and continues to be, wholly consistent with that notion. . . . This is so regardless of whether the Board refers to such claims in its regulations as ap peals or complaints. The terminology used simply does not, nor can it, render these matters subject to the statutory provisions of 5 U.S.C. §§ 7701 and 7702 when the USERRA statute itself does not so indicate.

Metzenbaum, 89 M.S.P.R. at 290-92; see also Jordan, 90 M.S.P.R. at 529 n.2 (USERRA complaints are not adjudi cated under 5 U.S.C. § 7701, and therefore section 7701's prohibition against summary judgment does not apply); Bodus v. Dep't of the Air Force, 82 M.S.P.R. 508, 516 (1999) (USERRA complaints are not appeals, but peti tions for remedial action).

As the Board explained, its procedural regulations in 5 C.F.R. §§ 1201-1208 do not purport to create rights of appeal, either generally or in USERRA cases. Those regulations merely set forth the procedures applicable to cases in which rights of action before the Board are cre ated by other sources, i.e., by statute or by OPM regula tion. For that reason, it is not important whether the Board's regulations call particular proceedings "com plaints," "appeals," or otherwise. What matters is whether a particular agency action is made "appealable under any statute, rule, or regulation" within the mean ing of 5 U.S.C. § 7701(a). That issue is not resolved by looking to the Board's regulations that govern the proce dures to be followed in actions over which the Board has been accorded jurisdiction.

The Board's regulation that sets forth the compo nents of what it terms its "appellate jurisdiction," 5 C.F.R. § 1201.3, makes this point clear. Subsection (a) of that regulation enumerates the appeals governed by the procedures of section 7701, describing each of those appeals as being "authorized by law, rule, or regulation," the triggering language of section 7701. Section 1201.3 then sets forth each of the 20 types of appeals that are authorized by law, rule, or regulation, along with the statute or regulation that authorizes an appeal in each case. For example, section 1201.3(a)(1) refers to appeals from reductions in grade or removal for unac ceptable performance, and it then cites the regulatory and statutory source of the authority for taking such appeals (5 C.F.R. part 432 and 5 U.S.C. § 4303(e)). Section 1201.3(a) thus makes clear that it is not sec- tion 1201 itself that provides the statutory or regula- tory authority for the appeals, and that section 1201 merely lists those cases in which the Board has been granted appellate jurisdiction through other statutory or regulartory authorization. Significantly, the Board does not list USERRA proceedings in section 1201.3(a), which uses the triggering language of section 7701. In stead, USERRA proceedings are listed in 5 C.F.R. § 1201.3(b)(1), a separate subsection of section 1201.3. The Board's own "appellate jurisdiction" regulation therefore does not characterize USERRA claims as among those in which "appeals are authorized by law, rule, or regulation" and thus governed by the procedures of section 7701.

The subsection of the USERRA regulation that refers to the Board's jurisdiction reinforces the same point. That subsection, 5 C.F.R. § 1208.2, states that the right to review by the Board in USERRA cases derives from the USERRA statute, 38 U.S.C. § 4324. In order to de termine whether the procedures of section 7701 apply, we therefore must determine whether the USERRA statute creates a right of appeal under section 7701. The statute itself makes clear that it does not. The USERRA statute makes no reference to an appeal and no reference to section 7701. Moreover, as noted, the USERRA stat ute does not invoke the procedures of section 7701, either explicitly or implicitly; instead, the USERRA sta- tute directs the Board to formulate its own regular- tions governing USERRA proceedings. See 38 U.S.C. § 4331(b)(2)(A). The Board has done so by including a regulatory provision governing when hearings will be afforded in USERRA cases. 5 C.F.R. § 1208.13(b). Sec tion 7701 therefore has no role to play with respect to actions before the Board authorized by USERRA.

B

Interpreting the Board's USERRA regulation as con ferring an automatic right to a hearing is also contrary to the plain language of the regulation and the Board's con sistent interpretation of it. The pertinent subsection reads as follows:

An appellant must submit any request for a hear ing with the USERRA appeal, or within any other time period the judge sets. A hearing may be pro vided to the appellant once the Board's jurisdiction over the appeal is established. The judge may also order a hearing if necessary to resolve issues of jurisdiction.

5 C.F.R. § 1208.13(b).

That regulation cannot reasonably be read to provide an automatic right to a hearing upon request. The word "may," which defines the right to a hearing in the regula tion, "customarily connotes discretion," Jama v. Immi gration & Customs Enforcement, 543 U.S. 335, 346, 125 S. Ct. 694, 160 L. Ed. 2d 708 (2005), and we have rou tinely construed statutes and regulations containing the word "may" as granting discretion to the agency in ques tion, see Green v. Gen. Servs. Admin., 220 F.3d 1313, 1317-18 (Fed. Cir. 2000) (the use of the word "may" in an OPM regulation vests agency with discretion); Hubbard v. Merit Sys. Prot. Bd., 205 F.3d 1315, 1320 (Fed. Cir. 2000) (use of the word "may" in a statute shows "intent to provide . . . broad discretion"). Moreover, the lan guage in the Board's USERRA regulation stands in sharp contrast with the language the Board uses in its regulations that apply to section 7701 appeals, where the Board simply states that "an appellant has a right to a hearing," 5 C.F.R. § 1201.24(d).3

More importantly, the Board has consistently con strued its USERRA regulation as making hearings in USERRA cases discretionary with the Board. See Metzenbaum, 89 M.S.P.R. at 290; see also Smith, 103 M.S.P.R. at 213; Perfilio v. Dep't of the Air Force, 102 M.S.P.R. 444, 448 (2006); Williams v. Dep't of the Air Force, 97 M.S.P.R. 252, 254 n.* (2004); Schoch v. Dep't of the Army, 91 M.S.P.R. 134, 135 (2001); Jordan, 90 M.S.P.R. at 529. It is well settled that an administrative agency's interpretation of its own regulations is entitled to substantial deference from a reviewing court. See Lyng v. Payne, 476 U.S. 926, 939, 106 S. Ct. 2333, 90 L. Ed. 2d 921 (1986). Because an agency is the master of its own regulations, the deference we accord to an agency's construction of its own regulations is even greater than the deference we accord to an agency's construction of the statute it is charged with enforcing. See Gose v. U.S. Postal Serv., 451 F.3d 831, 837 (Fed. Cir. 2006) ("We defer even more broadly to an agency's interpreta- tions of its own regulations than to its interpretation of statutes, because the agency, as the promulgator of the regulation, is particularly well suited to speak to its original intent in adopting the regulation."); Cathe dral Candle Co. v. U.S. Int'l Trade Comm'n, 400 F.3d 1352, 1363-64 (Fed. Cir. 2005) ("[I]t is well settled that an agency's interpretation of its own regulations is enti tled to broad deference from the courts. Deference to an agency's interpretation of its own regulations is broader than deference to the agency's construction of a statute, because in the latter case the agency is address ing Congress's intentions, while in the former it is ad dressing its own."). In addition, the Board has been con sistent in its interpretation of the regulation governing hearings in USERRA cases, a factor that further en hances the agency's entitlement to deference with regard to its construction of its own regulation. See Gose, 451 F.3d at 837 ("Deference is particularly appropriate when the agency interpretation has been consistently applied.").

Given the high degree of deference due, there is no justification for rejecting the Board's sensible interpre tation of its USERRA regulation regarding hearings in favor of a much less natural interpretation. The Board's interpretation of its regulations accords with the plain meaning of the regulations and is not inconsistent with any statute or other regulatory provision. To interpret the Board's regulations otherwise converts an adminis trative choice of nomenclature into a creation of rights. That is not what the Board tells us it did, and there is no reason not to defer to the Board's explanation of what its regulations do. The Board's regulations do not create a right of appeal with respect to USERRA complaints, and thus do not provide USERRA complainants an automatic right to a hearing under section 7701(a)(1).

Because I disagree with the analysis in both of the opinions that make up the majority in this case, I re spectfully dissent from the court's disposition of the USERRA hearing issue.

* Judges Schall and Linn join this dissent with respect to the USERRA issue.

1 The Board's practice in USERRA cases is consistent with the practice of many other federal administrative agencies that have "opted to make available procedures for the summary disposition of adjudica tory matters." Puerto Rico Aqueduct & Sewer Auth. v. Envtl. Prot. Agency, 35 F.3d 600, 606 (1st Cir. 1994); see Costle v. Pac. Legal Found., 445 U.S. 198, 214, 100 S. Ct. 1095, 63 L. Ed. 2d 329 (1980) (referring with approval to agency rules requiring a party who seeks a hearing to "tender[] evidence suggesting the need for a hearing"); State of Pa. v. Riley, 84 F.3d 125, 130 (3d Cir. 1996) (administrative hearing not required absent a disputed material issue of fact); 32 Charles Alan Wright & Charles H. Koch, Jr., Federal Practice & Procedure § 8230 (2006).

2 In addition to prohibiting discrimination based on military service, see 38 U.S.C. § 4311, USERRA strengthened the prior legal protections for service members seeking restoration to employment, see 38 U.S.C. §§ 4312-4316. The Board has distinguished restoration cases from dis crimination cases with respect to the burden of proof, holding that in restoration cases the burden falls on the agency to prove that it met its statutory obligations. See Wyatt v. U.S. Postal Serv., 101 M.S.P.R. 28, 36 (2006); Clavin v. U.S. Postal Serv., 99 M.S.P.R. 619, 622-23 (2005).

3 The Board has used similar wording in addressing the right to a hearing in VEOA appeals, 5 C.F.R. § 1208.23(b) ("[a] hearing may be provided"), which the Board interprets as conferring discretion to conduct a hearing, see Sherwood v. Dep't of Veterans Affairs, 88 M.S.P.R. 208, 212-13 (2001). By contrast, in referring to the right to a hearing on the merits of an individual right of action appeal, the Board has stated that the appellant "has a right to a hearing," 5 C.F.R. § 1209.6(b), the same language that the Board has used in 5 C.F.R. § 1201.24(d), which governs section 7701 appeals.

 

DYK, Circuit Judge, dissenting.

I join Judge Bryson's opinion dissenting from the ma jority's decision on the USERRA hearing issue, and I join Part I of Judge Moore's opinion dissenting from the majority's decision on the VEOA equitable tolling issue. I agree with Judge Moore that even if a presumption of equitable tolling applies to this statute, that presumption has been rebutted. I write separately to note that, in my view, the doctrine of equitable tolling and the accompa nying presumption should not apply to appeal periods in either the judicial or the administrative context.

The doctrine of equitable tolling is designed to mili tate the harsh results that would flow from the strict application of statutes of limitations. See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990). The fundamental error in today's de cision lies in applying that doctrine to a statute providing a time for appeal. This error traces back to our 1998 decision in Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998) (en banc). There we held that equitable tolling could apply to an administrative appeal period-in that case the period governing appeal to the Court of Veterans Appeals of a denial of service connection by the Board of Veterans' Appeals. Four dissenting judges urged that the Bailey majority's holding was inconsistent with the Supreme Court's decisions in Stone v. INS, 514 U.S. 386, 405, 115 S. Ct. 1537, 131 L. Ed. 2d 465 (1995) (citing Mis souri v. Jenkins, 495 U.S. 33, 45, 110 S. Ct. 1651, 109 L. Ed. 2d 31 (1990)), which held that periods of appeal are mandatory and jurisdictional and not subject to tolling.1

Since our decision in Bailey the Supreme Court's cases have admittedly clouded the "jurisdictional" nature of appeal periods, but have not undermined the strict ness of the rule for appellate time limits mandated in Stone and Jenkins. In Kontrick v. Ryan, 540 U.S. 443, 124 S. Ct. 906, 157 L. Ed. 2d 867 (2004), the Court held that claim-processing rules (such as the time limitation for objecting to the debtor's discharge in the bankruptcy rule at issue in the case) are not properly termed juris dictional, and cautioned about "less than meticulous" use of the term jurisdictional. Id. at 454-55, 124 S. Ct. 906. The Court reiterated this warning in Eberhart v. United States. 546 U.S. 12, 126 S. Ct. 403, 404-05, 163 L. Ed. 2d 14 (2005). See also Scarborough v. Principi, 541 U.S. 401, 413, 124 S. Ct. 1856, 158 L. Ed. 2d 674 (2004). Kon trick and related cases at most suggest that time for ap peal provisions are not jurisdictional-and hence waiv able-though the question whether those provisions are jurisdictional is itself under review by the Supreme Court. Bowles v. Russell, U.S. , 127 S. Ct. 763, 166 L. Ed. 2d 590 (2006) (granting petition for writ of certiorari).2 Whether or not appeal periods are jurisdic tional, Kontrick and its progeny do not suggest that appeal periods are subject to equitable tolling.

The majority of circuits to consider the question in the past few years have held that time for appeal provi sions must be strictly enforced. Some circuits have con cluded that such provisions remain mandatory and juris dictional. Alva v. Teen Help, 469 F.3d 946, 952-53 (10th Cir. 2006) (holding that Fed. R. App. Proc. 4 remains jurisdictional since "[n]either Eberhart nor Kontrick affects the jurisdictional nature of the timely filing of an [sic] civil appeal"); Bowles v. Russell, 432 F.3d 668, 671 n.1 (6th Cir. 2005), cert. granted, U.S. , 127 S. Ct. 763, 166 L. Ed. 2d 590 (2006) (holding that Fed. R. App. Proc. 4 remains jurisdictional after Kontrick); see also Brickwood Contractors, Inc. v. Datanet Eng'g, Inc., 369 F.3d 385, 393 (4th Cir. 2004) (assuming, after Kontrick, that Fed. R. App. Proc. 4 is jurisdictional). If appeal periods are mandatory and jurisdictional, as the dissent in Bailey urged, it is difficult to see how they could be subject to general equitable tolling. 160 F.3d at 1371-72.

Other circuits have held that even though the time limits may not be jurisdictional, they must be strictly enforced nonetheless. In re Johns-Manville Corp., 476 F.3d 118, 2007 WL 106516, at *4 (2d Cir. Jan. 17, 2007) ("[W]hether a cross-appeal time limit is jurisdictional or, after Eberhart, only a 'claim-processing rule,' we con clude that Eberhart strongly indicates that we are to enforce that limit strictly, once it is properly invoked."); United States v. Leijano-Cruz, 473 F.3d 571, 574 (5th Cir. 2006) ("[T]he district court does not err, after Eber hart, if it enforces an inflexible claim processing rule, and we may not reverse its decision to do so."). So far as I have been able to determine, only the Ninth Circuit disagrees. See Socop-Gonzalez v. INS, 272 F.3d 1176, 1192-93 (9th Cir. 2001).

In my view the circuits holding that appeal periods are to be strictly enforced are correct, and our decision in Bailey was incorrect.3 As the Seventh Circuit has re cently concluded, "[i]t is hard to see why a court should invoke equitable tolling to supply a litigant with more time to apply for review of an agency's decision. The period for seeking administrative review, like the time for appealing a decision of the district court, usually is brief because a contest is ongoing." Farzana K. v. Indi ana Dep't of Educ., 473 F.3d 703, 706 (7th Cir. 2007).4

There are, moreover, powerful reasons to doubt that Congress intended equitable tolling of the short periods provided for appeal, because of the implications of such provisions on the smooth functioning of the judicial and administrative systems. As noted, the presumption of equitable tolling recognized in Irwin, 498 U.S. at 95-96, 111 S. Ct. 453 and United States v. Brockamp, 519 U.S. 347, 350, 117 S. Ct. 849, 136 L. Ed. 2d 818 (1997), arose in the context of statutes of limitations. When a statute of limitations is tolled, the efficient functioning of the adjudicatory system is not impacted because statutes of limitations merely govern the time when a case is first filed. In contrast equitable tolling of appeal periods cre ates a risk of making finality unattainable. For example, in this case the appellant urges that he was disabled from filing an appeal because of mental incapacity. The major ity's holding naturally implies that, if established, this would equitably toll the appeal period for the duration of his incapacity, even though that might render the deci sion under review non-final for many years. Under such circumstances, the setting of a short period for appeal becomes meaningless.

Nor do I see why equitable tolling of appeal periods is necessary in the interests of fairness. Unlike a poten tial litigant confronting a statute of limitations, an indi vidual who appeals an adverse decision has already de termined to commence a judicial or administrative pro ceeding and has demonstrated the ability to participate in the process. Typically as well, in administrative cases the losing party receives actual notice of the time for appeal. If some relief for appellate time limits is neces sary in the interests of fairness, Congress can explicitly provide a limited exception, as has been done in Rule 4(a)(5) of the Federal Rules of Appellate Procedure. I see no basis for applying the general doctrine of equita ble tolling and its presumption to appeal periods.

1 The Supreme Court's earlier decision in Bowen v. City of New York, 476 U.S. 467, 106 S. Ct. 2022, 90 L. Ed. 2d 462 (1986), admittedly is in some tension with the Supreme Court's later cases. In Bowen the Supreme Court held that a 60-day period for filing a civil action in district court to review a decision of the Social Security Administration was subject to equitable tolling. 476 U.S. at 471-72, 481, 106 S. Ct. 2022. However, the Supreme Court repeatedly referred to the 60-day period at issue as a "statute of limitations," rather than an appellate deadline.

2 Bowles appears also to present the question whether some form of equitable tolling is available with respect to appeal periods. See Brief of Petitioner at 14, Bowles v. Russell, No. 06-5306, 2007 WL 215255 (U.S. Jan. 19, 2007).

3 Even our own circuit has not been entirely consistent. See Oja v. Dep't of Army, 405 F.3d 1349, 1359 (Fed. Cir. 2005) (appeal period not subject to equitable tolling).

4 It is hard to see why a court should invoke equitable tolling to supply a litigant with more time to apply for review of an agency's decision. The period for seeking administrative review, like the time for appealing a decision of the district court, usually is brief because a contest is ongoing. The loser simply notifies the other side (by a peti tion for review or a notice of appeal) that argument will resume in another forum. A lawyer who misses the time to file a notice of appeal cannot invoke "equitable tolling" to justify the delay. Rules may allow judges to grant extra time. See Fed. R. App. P. 4(a)(5), (6). Once the time as extended under the Rules lapses, however, common-law tolling is unavailable; the existence of rules specifying when (and how far) time may be extended is incompatible with an open-ended power to add extra time on "equitable" grounds. Indeed, the Supreme Court has characterized the time limit for appellate review within a unitary system as "jurisdictional," e.g., Browder v. Director of Corrections, 434 U.S. 257, 98 S. Ct. 556, 54 L. Ed. 2d 521 (1978), and although Eberhart calls that characterization into question, the Court continues to insist that "mandatory" rules be enforced whether or not they are dubbed "jurisdictional." Allowing more time under the rubric of equitable tolling, when a federal rule covers the subject of extensions, would just contradict the rule-and for no good reason. Once a litigant has received one or more decisions (whether from district courts or hearing officers under the IDEA) after formal adjudication, there is little point in bending the rules to allow another. 473 F.3d at 706 (emphasis added).

 

APPENDIX B

UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
No. 05-3077

JOHN E. KIRKENDALL, PETITIONER

v.

DEPARTMENT OF THE ARMY, RESPONDENT

Jan. 3, 2006

ORDER

Before MICHEL, Chief Judge, NEWMAN, MAYER, LOU RIE, CLEVENGER, RADER, SCHALL, BRYSON, GAJARSA, LINN, DYK, and PROST, Circuit Judges.

PER CURIAM.

A combined petition for panel rehearing and rehear ing en banc having been filed by respondent, and re sponse thereto having been waived by petitioner, the petition for panel rehearing having been referred to the panel that heard the appeal, and thereafter the petition for rehearing en banc having been referred to the circuit judges who are in regular active service,

IT IS ORDERED THAT:

The petition for rehearing en banc is granted.

The court vacates the panel's judgment and original opinion entered June 22, 2005, John E. Kirkendall v. Department of the Army, 412 F.3d 1273 (Fed. Cir. 2005).

The court has appointed Theodore Olson of Washing ton, DC to represent the petitioner. The parties are in vited to submit new briefs addressing the following issues:

(1) Is the 15-day period for filing appeals to the Merit Systems Protection Board set forth in 5 U.S.C. § 3330a subject to equitable tolling? See 5 U.S.C. § 3330a(d)(1)(B) ("[T]he complain- ant may elect to appeal the alleged violation to the Merit Systems Protection Board . . ., except that in no event may any such appeal be brought- . . . (B) later than 15 days after the date on which the complainant receives written notification from the Secretary under subjection (c)(2)."); Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990); United States v. Brockamp, 519 U.S. 347, 117 S. Ct. 849, 136 L. Ed. 2d 818 (1997); Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 111 S. Ct. 2773, 115 L. Ed. 2d 321 (1991).

(2) Is the 60-day period for filing a claim with the Secretary of Labor set forth in 5 U.S.C. § 3330a subject to equitable tolling? See 5 U.S.C. § 3330a(a)(2)(A) ("A complaint under this section must be filed within 60 days after the alleged violation.").

(3) Are all veterans who allege a violation of the Uni formed Services Employment and Reemploy ment Rights Act entitled to a hearing pursuant to 5 U.S.C. § 7701? See 5 U.S.C. § 7712.

This case will be reheard en banc on the basis of the new briefs addressing the issues set forth above. An original and thirty copies of all briefs shall be filed, and two copies served on opposing counsel. Any brief from the petitioner shall be filed forty days from the date of this order; any brief from the respondent thirty days thereafter; and any reply from the petitioner fifteen days after the date the respondent's additional brief is due. Briefs shall adhere to the type-volume limitations set forth in Federal Rule of Appellate Procedure 32 and Federal Circuit Rule 32.

Briefs of amici curiae will be entertained in accordance with Federal Rule of Appellate Procedure 29 and Federal Circuit Rule 29. The question of oral argument will be resolved at a later date.

APPENDIX C

UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

No. 05-3077

JOHN E. KIRKENDALL, PETITIONER

v.

DEPARTMENT OF THE ARMY, RESPONDENT

[DECIDED: June 22, 2005]

Before MAYER, Circuit Judge, PLAGER, Senior Circuit Judge, and DYK, Circuit Judge.

Opinion for the court filed by Circuit Judge MAYER. Dis senting opinion filed by Circuit Judge DYK.

MAYER, Circuit Judge.

John E. Kirkendall appeals the decision of the Merit Systems Protection Board, which dismissed his claims that he had been discriminated against in viola- tion of the Veterans Employment Opportunities Act of 1998 ("VEOA"), 5 U.S.C. § 3330a (2000), and the Uni formed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4311 (2000). Kir kendall v. Dep't of the Army, AT-3443-02-0622-I-1, AT0330020621-B-1, 97 M.S.P.R. 605, 2004 WL 2359294 (MSPB Oct. 13, 2004). Because the VEOA is subject to equitable tolling and Kirkendall is entitled to a hearing on his USERRA claim, we reverse and remand.

Background

Kirkendall, a 100% disabled veteran who suffers from organic brain syndrome, applied for a position as a Su pervisory Equipment Specialist (Aircraft), GS-1670-12, with the Department of the Army ("agency") at Fort Bragg, North Carolina. Kirkendall's service and result ing disability entitled him to a 10-point preference. He included a resumé with his application, which indicated, inter alia, that he had admirably served as the Com mander of a Direct Support Platoon at Fort Bragg, and as a Force Integration Officer and an Executive Officer/ Commander at Fort Bliss, Texas. In addition, Kirken dall's resumé listed numerous, specific duties he had per formed, as well as several technical courses he had taken while in the Army. On January 5, 2000, the agency found that Kirkendall's application lacked sufficient detail re garding his experience and rated him ineligible for the position. Kenneth Black, also a 10-point preference eligi ble veteran, was chosen to fill the position.

Kirkendall filed several complaints with the agency contesting his non-selection, all of which were denied. He then filed a formal complaint with the Department of Labor ("DoL") claiming a violation of his veterans' preference rights and discrimination based on his dis ability. On November 29, 2001, DoL rejected the com plaint because it had not been filed within 60 days of the agency's alleged violation as required by 5 U.S.C. § 3330a(a)(2)(A). On June 13, 2002, Kirkendall appealed to the Merit Systems Protection Board.

The administrative judge ("AJ") dismissed Kirken dall's VEOA claim as untimely and his USERRA claim for failure to state a claim. The board affirmed the AJ's decision that the VEOA claim was precluded for failure to timely file, but reversed the determination that Kir kendall had failed to state a proper claim for relief. Rather, the board held that Kirkendall's assertion that he was not selected based on his status as a disabled vet eran was cognizable under USERRA. On remand, the AJ held, without a hearing, that Kirkendall had offered no proof that his veteran status was a substantial or mo tivating factor in his non-selection. The AJ further held that discrimination could not be inferred because: (1) Kirkendall's non-selection was based on the indefinite ness of his application; (2) all other applicants on the Certificate of Eligibles were veterans; and (3) a veteran, who was eligible for a 10-point preference, was selected for the position. The AJ's remand decision was adopted by the board when review was denied.

Kirkendall appeals the board's decision to this court, claiming that the board erred by failing to toll the filing periods contained in 5 U.S.C. § 3330a and by refusing to hold a hearing on his USERRA claim. We exercise juris diction pursuant to 28 U.S.C. § 1295(a)(9).

Discussion

We are presented with three issues: (1) is the 60-day filing deadline contained in 5 U.S.C. § 3330a(a)(2)(A) sub ject to equitable tolling; (2) is the 15-day filing deadline contained in 5 U.S.C. § 3330a(d)(1)(B) subject to equita ble tolling; and (3) are veterans entitled to a hearing re garding their USERRA claims. Because each of these questions involves the interpretation of a statute, we re view the board's decision de novo. See Pitsker v. Office of Pers. Mgmt., 234 F.3d 1378, 1381 (Fed. Cir. 2000) ("Statutory interpretation is a question of law which we review de novo.").

I. Equitable Tolling

The agency contends that the board lacks jurisdiction over Kirkendall's VEOA claim for two reasons. First, he failed to file his complaint with DoL within 60 days of the decision not to list him on the Certificate of Eligibles1 as required by subsection 3330a(a)(2)(A).2 Second, he failed to appeal DoL's determination to the board within 15 days as required by subsection 3330a(d)(1)(B).3 In response, Kirkendall argues that both filing periods are subject to equitable tolling and that his severe disability justifies tolling in this case.

In Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990), the Supreme Court established a presumption in favor of equitable tolling in suits against the government when permitted in analogous private litigation. In an attempt to honor congressional intent, the Court later held that this pre sumption can be rebutted if "there [is] good reason to believe that Congress did not want the equitable tolling doctrine to apply." United States v. Brockamp, 519 U.S. 347, 350, 117 S. Ct. 849, 136 L. Ed. 2d 818 (1997). Five factors evince a contrary congressional intent: "[a] stat ute's detail, its technical language, its multiple iterations of the limitations period in procedural and substantive form, its explicit inclusion of exceptions, and its underly ing subject matter." Brice v. Sec'y of Health & Human Serv., 240 F.3d 1367, 1372 (Fed. Cir. 2001).

There can be little doubt that Kirkendall's employ ment discrimination claim is analogous to claims brought pursuant to Title VII. See Irwin, 498 U.S. at 95, 111 S. Ct. 453 (holding that "the statutory time limits applicable to lawsuits against private employers under Title VII are subject to equitable tolling"); Brice, 240 F.3d at 1372 (holding that claims under the Vaccine Act are suffi ciently similar to tort claims so as to invoke the Irwin presumption). We therefore begin our analysis by as suming that equitable tolling applies. As a result, we need only determine whether the language and context of section 3330a indicate that Congress desired otherwise.

As an initial matter, we must dispose of the agency's contention that the failure to meet the filing deadline in subsection 3330a(a)(2)(A) irrevocably forecloses a vet eran from exhausting his administrative remedies, thus precluding jurisdiction in the board. The agency's theory does not comport with our holding in Bailey v. West, 160 F.3d 1360, 1364 (Fed. Cir. 1998) (en banc), that the Supreme Court has "not distinguish[ed] among the various kinds of time limitations that may act as conditions to the waiver of sovereign immunity." Furthermore, the agency's theory directly contradicts Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127, 71 L. Ed. 2d 234 (1982), a Title VII case, which held that "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling."

Other courts have likewise held that filing deadlines contained in statutes requiring exhaustion of administra tive remedies are not jurisdictional, but rather are sub ject to equitable relief. For example, in Edelman v. Lynchburg College, 300 F.3d 400, 404 (4th Cir. 2002), another Title VII case, the Fourth Circuit held that the exhaustion requirement, like a statute of limitations, can be tolled. See also Leong v. Potter, 347 F.3d 1117, 1122 (9th Cir. 2003) ("The exhaustion requirement is akin to a statute of limitations and is subject to waiver, equitable estoppel, and equitable tolling."). Similarly, Harms v. Internal Revenue Service, 321 F.3d 1001, 1009 (10th Cir. 2003), held that "the failure to timely exhaust adminis trative remedies [with the MSPB] is not a jurisdictional deficiency but rather is in the nature of a violation of a statute of limitations." In the context of the Occupa tional Safety and Health Act, the Tenth Circuit held that the requirement that an employee must file a complaint with the Secretary of Labor within 30 days of a violation could be tolled. Donovan v. Hahner, Foreman & Har ness, Inc., 736 F.2d 1421, 1424 (10th Cir. 1984) (analyzing 29 U.S.C. § 660(c)(2)). And, the Second Circuit held that the failure to timely exhaust administrative remedies prescribed in the Financial Institution Reform, Recov ery, and Enforcement Act can be excused when required by equity. Carlyle Towers Condo. Ass'n v. Fed. Deposit Ins. Corp., 170 F.3d 301, 307 (2d Cir. 1999). We there fore hold that the exhaustion requirement contained in subsection 3330a(a)(2)(A) that a veteran file a complaint with DoL within 60 days of the alleged violation is akin to a statute of limitations. As such, we apply the same analysis to subsection 3330a(a)(2)(A) as we apply to sub section 3330a(d)(1)(B) in determining whether equitable tolling is allowed.

Turning to the focus of our inquiry, we consider each of the five factors outlined in Brockamp, 519 U.S. at 350-53, 117 S. Ct. 849, to determine whether Congress intended that equitable tolling not be allowed. First, sec tion 3330a is not detailed. This is especially true in com parison with other administrative schemes held subject to equitable tolling, such as Title VII, Irwin, 498 U.S. at 92, 111 S. Ct. 453, and Social Security, Bowen v. City of N.Y., 476 U.S. 467, 469, 106 S. Ct. 2022, 90 L. Ed. 2d 462 (1986). Similarly, section 3330a is less detailed than the highly complex scheme used to provide benefits to veter ans. See Bailey, 160 F.3d 1360 (holding that 38 U.S.C. § 7266 is subject to equitable tolling). But see Brice, 240 F.3d at 1373 (holding that the National Childhood Vac cine Injury Act is "part of a detailed statutory scheme which includes other strict deadlines").

Second, section 3330a's language is not technical. And, although the language used in subsection 3330a(d)(1)(B) is fairly forceful, the Supreme Court has held that the use of "barred" is, by itself, not sufficient to persuade it that Congress intended to prohibit equitable tolling. Irwin, 498 U.S. at 95, 111 S. Ct. 453. Our court came to the same conclusion in Former Employees of Sonoco Products Co. v. Chao, 372 F.3d 1291, 1298 (Fed. Cir. 2004), where we held that 28 U.S.C. § 2636(d)4 could be tolled.

Third, the timing provisions in section 3330a are not repeated. See Brockamp, 519 U.S. at 351, 117 S. Ct. 849 ("[section] 6511 reiterates its limitations several times in several different ways"). Fourth, section 3330a does not contain explicit exceptions to the two filing deadlines. See Bailey, 160 F.3d at 1365 ("Likewise, section 7266 does not provide its own exceptions to the general rule."); see also Brockamp, 519 U.S. at 351, 117 S. Ct. 849 ("[section] 6511 sets forth explicit exceptions to its basic time limits, and those very specific exceptions do not include 'equitable tolling.'"); Martinez v. United States, 333 F.3d 1295, 1318 (Fed. Cir. 2003) (en banc) (finding that 28 U.S.C. § 2501 contains an explicit exception for "persons 'under legal disability'"); Brice, 240 F.3d at 1373 ("[T]he Act includes a specific exception from the limitations period for a petition improperly filed in state or federal court.").

The final, and most persuasive of the five Brockamp factors, is the underlying subject matter of section 3330a. The purpose of the VEOA is to assist veterans in obtain ing gainful employment with the federal government and to provide a mechanism for enforcing this right. In a very real sense, the VEOA 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. It is clear to us that, far from intending a strict interpre tation, Congress understood the availability of the Irwin presumption, which was well established by 1998 when the VEOA was adopted. We further note that veterans who seek to enforce their rights under the VEOA will often proceed without the benefit of representation, just as Kirkendall did. Under such circumstances, it is "par ticularly inappropriate" to foreclose equitable relief. Zipes, 455 U.S. at 397, 102 S. Ct. 1127 (quoting Love v. Pullman, 404 U.S. 522, 527, 92 S. Ct. 616, 30 L. Ed. 2d 679 (1972)); see also Bowen, 476 U.S. at 480, 106 S. Ct. 2022 ("The statute of limitations we construe in this case is contained in a statute that Congress designed to be unusually protective of claimants." (internal quotation marks omitted)). And, finally, the limitations periods in section 3330a are exceedingly short-far shorter than the 120-day period we held subject to equitable tolling in Bailey, 160 F.3d at 1366.

Having considered the five Brockamp factors we are left with the definite and firm conviction that Congress did not intend to override the Irwin presumption as to either filing period in section 3330a. As such, we hold that both subsection 3330a(a)(1)(A) and subsection 3330a(d)(1)(B) are subject to equitable tolling. On re mand, the board is instructed to assess whether Kirk endall's disability prevented him from complying with the filing requirements. See Arbas v. Nicholson, 403 F.3d 1379, 1381 (Fed. Cir. 2005); Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004).

II. Hearing Rights Under USERRA

We next address Kirkendall's contention that he was entitled to a hearing on his USERRA claim.5The board explained in a footnote that it has discretion in USERRA cases to grant a hearing, and that, because there was no genuine factual dispute, a hearing was unnecessary. In refusing to grant hearings in USERRA cases, the board has argued that 38 U.S.C. § 43246 refers to USERRA claims as "complaints," not as "appeals," and therefore 5 U.S.C. § 7701(a),7 which guarantees a hearing in all appeals to the board, does not apply. See Metzenbaum v. Dep't of Justice, 240 F.3d 1068, 1071 (Fed. Cir. 2001) (explaining the board's reasoning for holding that USERRA complaints are not "appeals").

The board's reasoning defies common sense and con tradicts its own regulations. First, the vast majority of cases heard by the board, and subject to section 7701, are "appeals" of employment decisions, disciplinary or other wise, made in the first instance by an agency. See, e.g., Price v. Soc. Sec. Admin., 398 F.3d 1322 (Fed. Cir. 2005); Guillebeau v. Dep't of the Navy, 362 F.3d 1329 (Fed. Cir. 2004); Knight v. Dep't of Def., 332 F.3d 1362 (Fed. Cir. 2003). These cases do not involve a lower tribunal, such as a district court, yet they clearly involve an initial deci sion maker distinct from the board. In the same way, USERRA claims originate when an agency makes an employment decision (e.g., refuses to hire a veteran). Regardless of the fact that section 4324 uses the term "complaint," these employment decisions are then ap pealed to the board for review. More troubling, however, is the board's interpretation of sections 4324 and 7701 as providing less procedural protection to veterans who have potentially been victimized than to employees who have been discharged for misconduct. To the contrary, this reasoning is a gross misinterpretation of the purpose of USERRA.

Second, the board itself understood that USERRA claims are "appeals" within the meaning of section 7701 and has promulgated numerous regulations memorializ ing this understanding. In 5 C.F.R. § 1208.4, the board determined that "(a) Appeal. 'Appeal' means a request for review of an agency action (the same meaning as in 5 C.F.R. § 1201.4(f)) and includes a 'complaint' or 'action' as those terms are used in USERRA (38 U.S.C. [§] 4342)." And in 5 C.F.R. § 1208.13, the board refers to USERRA claims as "appeals" or to USERRA claimants as "appellants" no fewer than fourteen times. And, as noted in Metzenbaum, 240 F.3d at 1071, the board inten tionally included USERRA claims in its appellate juris diction.8

For these reasons, section 7701 applies to USERRA cases. Consequently, veterans pursuing USERRA claims before the board are entitled to a hearing.

Conclusion

Accordingly, the decision of the board that the filing periods in 5 U.S.C. § 3330a cannot be tolled and that 5 U.S.C. § 7701 does not apply to USERRA cases is re versed. The case is remanded for further proceedings consistent with this opinion.

Costs

John E. Kirkendall shall have his costs.

REVERSED AND REMANDED.

1 While it is unclear when Kirkendall filed his complaint with DoL, it is undisputed that he failed to satisfy the 60-day deadline.

2 5 U.S.C. § 3330a(a)(2)(A) states that "[a] complaint under this sub section must be filed within 60 days after the date of the alleged vio lation."

3 5 U.S.C. § 3330a(d)(1)(B) states that "the complainant may elect to appeal the alleged violation to the Merit Systems Protection Board . . ., except that in no event may any such appeal be brought-. . . (B) later than 15 days after the date on which the complainant receives written notification from the Secretary under subsection (c)(2)."

4 28 U.S.C. § 2636(d) states that "A civil action contesting a final determination of the Secretary of Labor under section 223 of the Trade Act of 1974 or a final determination of the Secretary of Commerce under section 251 or section 271 of such Act is barred unless com menced in accordance with the rules of the Court of International Trade within sixty days after the date of notice of such determination." (emphasis added).

5 38 U.S.C. § 4311(a) states that "A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or oblligation."

6 38 U.S.C. § 4324(c)(1) states that "The Merit Systems Protection Board shall adjudicate any complaint brought before the Board pursuant to subsection (a)(2)(A) or (b) . . . . A person who seeks a hearing or adjudication by submitting such a complaint under this paragraph may be represented at such hearing or adjudication in accordance with the rules of the Board." (emphasis added).

7 5 U.S.C. § 7701(a) states that "An employee, or applicant for employment, may submit an appeal to the Merit Systems Protection Board from any action which is appealable to the Board under any law, rule, or regulation. An appellant shall have the right-(1) to a hearing for which a transcript will be kept; and (2) to be represented by an attorney or other representative." (emphasis added).

8 Even if we did not think it clear that section 7701 applies to USERRA cases, Kirkendall would be entitled to a hearing because the board promulgated regulations pursuant to 38 U.S.C. § 4331(b)(2) bringing USERRA cases within its appellate jurisdiction. See Metzen baum v. Dep't of Justice, 89 M.S.P.R. 285, 289 (2001) ("[USERRA] specifically provided that the Board could prescribe regulations to carry out its activities, [38] U.S.C. § 4331(b)(2)(B), pursuant to Congress' broad authorization of the Board to prescribe such regulations as may be necessary for the performance of its functions, 5 U.S.C. § 1204(h).").

 

DYK, Circuit Judge, dissenting.

The majority today holds with respect to the VEOA appeal that when Congress said "in no event may any . . . appeal be brought . . . later than 15 days," it did not really mean "in no event." With respect to the USERRA claim the majority gives "appeal" a different meaning than the well established meaning of that term. I respectfully dissent.

In my view, the Board should be affirmed both on the VEOA claim and on the USERRA claim. Kirkendall has failed to bring his VEOA appeal within 15 days as re quired by 5 U.S.C. § 3330a(d)(1)(B), and (since the USERRA proceeding is not an appeal) he is not entitled to a hearing under 38 U.S.C. § 4324 because he has failed to establish the existence of a genuine issue of material fact.

I

A

Turning first to the VEOA appeal, the majority holds that 5 U.S.C. § 3330a(d)(1)(B) is subject to equitable toll ing under Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990). Ante at 1276-77. In every equitable tolling situation the thresh old question is whether equitable tolling would be avail able in comparable private party litigation. As Irwin held, "it is evident that no more favorable tolling doctrine may be employed against the Government than is em ployed in suits between private litigants." 498 U.S. at 96, 111 S. Ct. 453. We reemphasized this rule in Bailey v. West: "The rule we draw from Irwin is that the doctrine of equitable tolling, when available in comparable suits of private parties, is available in suits against the United States, unless Congress has expressed its intent to the contrary." 160 F.3d 1360, 1364 (Fed. Cir. 1998) (en banc) (emphasis added). The majority starts with the premise that: "There can be little doubt that Kirkendall's em ployment discrimination claim is analogous to claims brought pursuant to Title VII [of the Civil Rights Act]." Ante at 1276. Because the Title VII statute of limitations between private parties in district court can be tolled, the majority holds that the Irwin equitable tolling pre sumption applies. Ante at 1276-77.

In my view, the majority's mistake lies in failing to distinguish between original and appellate proceedings. While it is true enough that Kirkendall's VEOA claim is analogous to a Title VII discrimination suit, his VEOA appeal is not analogous to an original district court civil action. The VEOA specifically states that the action be fore the Board is an "appeal" from the Department of Labor. See 5 U.S.C. § 3330a(d). Kirkendall's VEOA ap peal with the Board is thus analogous to an appeal to a court of appeals under Title VII. The analogous appel late filing deadline in private party Title VII cases is 28 U.S.C. § 2107, which is mandatory, jurisdictional, and cannot not be tolled.1 Browder v. Dir., Ill. Dep't of Corr., 434 U.S. 257, 264-65, 98 S. Ct. 556, 54 L. Ed. 2d 521 (1978); Oja v. Dep't of the Army, 405 F.3d 1349, 1358 (Fed. Cir. 2005). Since equitable tolling would not be available for comparable private party litigation, it is not available under the VEOA for Kirkendall's Board appeal.

B

Even if we were to assume that tolling would be avail able in comparable private party litigation, the question remains whether the statutory language here rebuts the presumption of tolling. Appellate filing deadlines are generally mandatory, jurisdictional, and not subject to equitable tolling. See Stone v. Immigration & Natural ization Serv., 514 U.S. 386, 405, 115 S. Ct. 1537, 131 L. Ed. 2d 465 (1995) (judicial review of the Board of Immi gration Appeals); Missouri v. Jenkins, 495 U.S. 33, 45, 110 S. Ct. 1651, 109 L. Ed. 2d 31 (1990) (petitions for writs of certiorari); Browder, 434 U.S. at 264-65, 98 S. Ct. 556 (appeals from district court); Oja, 405 F.3d at 1360 (judicial review of the Merit Systems Protection Board). Because appellate filing deadlines in general are not sub ject to equitable tolling between private parties, such filing deadlines will also rarely be subject to equitable tolling against the government.

To be sure, we have held that some appellate filing deadlines may be equitably tolled. We held in Bailey that 38 U.S.C. § 7266, the filing deadline in the Court of Appeals for Veterans Claims, may be tolled. 160 F.3d at 1365. Bailey is plainly distinguishable. There, the rele vant statute merely provided that the appellant "shall file a notice of appeal with the Court within 120 days." 38 U.S.C. § 7266 (2000). This is hardly emphatic lan guage that unequivocally precludes equitable tolling. Rather, it is a prototypical example of what the Supreme Court meant in United States v. Brockamp, 519 U.S. 347, 117 S. Ct. 849, 136 L. Ed. 2d 818 (1997), when it stated that "[o]rdinarily limitations statutes use fairly simple language, which one can often plausibly read as contain ing an implied 'equitable tolling' exception." Id. at 350, 117 S. Ct. 849.

However, the Supreme Court in Brockamp rejected the argument for tolling because the statute at issue "set[] forth its time limitations in unusually emphatic form." Id. Thus, the use of emphatic language is indica tive of congressional intent to foreclose equitable tolling. In contrast to the statute at issue in Bailey, the language of section 3330a(d)(1)(B) is sufficiently emphatic to rebut any presumption of equitable tolling.

Section 3330a(d)(1)(B) provides:

[T]he complainant may elect to appeal the al- leged violation to the Merit Systems Protection 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 notifi cation from the Secretary. . . .

5 U.S.C. § 3330a(d)(1)(B) (emphasis added). This is as emphatic, if not more so, than comparable appellate fil ing deadlines found at 28 U.S.C. § 2107(a)2 and 5 U.S.C. § 7703(b)(1),3 which, as we have recently reaffirmed, can not be tolled. Oja, 405 F.3d at 1358-60. The majority correctly notes that some of the other factors considered in Brockamp would favor finding equitable tolling avail able. Ante at 1276-78. However, as we held in Brice v. Secretary of Health and Human Services, 240 F.3d 1367, 1372-73 (Fed. Cir. 2001), not all the Brockamp factors need to be present to preclude equitable tolling. In my view, the emphatic plain language of section 3330a(d)(1)(B) decisively precludes equitable tolling in this case.

The majority suggests that the language in section 3330a(d)(1)(B) is comparable to the "barred" language in 28 U.S.C. § 2636(d), which we have held can be tolled. Ante at 1277. Contrary to the majority, the "barred" language is far less forceful than the "in no event may any . . . appeal be brought" language of § 3330a(d)(1)(B). The Supreme Court addressed almost the exact same statutory language in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 111 S. Ct. 2773, 115 L. Ed. 2d 321 (1991). Section 13 of the Securities Act of 1933 provides:

No action shall be maintained to enforce any liability created under section 11 or 12(a)(2) unless brought within one year after the discovery of the untrue statement or the omission, or after such discovery should have been made by the exercise of reasonable diligence, or, if the action is to enforce a liability cre ated under section 12(a)(1), unless brought within one year after the violation upon which it is based.

In no event shall any such action be brought to en force a liability created under section 11 or 12(a)(1) more than three years after the security was bona fide offered to the public, or under section 12(a)(2) more than three years after the sale.

Securities Act of 1933 § 13, codified as amended at 15 U.S.C. § 77m (2000) (emphasis added). The Supreme Court held in Lampf that the "3-year limit is a period of repose inconsistent with tolling. . . . Because the pur pose of the 3-year limitation is clearly to serve as a cut off, we hold that tolling principles do not apply to that period." 501 U.S. at 363, 111 S. Ct. 2773. In my view the majority's decision is not consistent with Lampf.

Finally, the majority considers it "particularly inap propriate" to literally apply a strict deadline because the VEOA was intended to benefit veterans. Ante at 1278. There is, of course, the canon of statutory construction that veterans "legislation is to be liberally construed for the benefit of those who left private life to serve their country." Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285, 66 S. Ct. 1105, 90 L. Ed. 1230 (1946). But this canon does not apply unless there is an ambigu ity in the statute. In section 3330a(d)(1)(B), there is sim ply none to be found. "In no event" cannot plausibly be read to contain an equitable tolling exception. Lampf, 501 U.S. at 363, 111 S. Ct. 2773.

II

The majority further holds that the Board erred in denying Kirkendall a hearing for his USERRA complaint under 5 U.S.C. § 7701. Section 7701 provides for a man datory merits hearing in any "appeal" to the Board, whether or not there is a genuine dispute of material fact. Crispin v. Dep't of Commerce, 732 F.2d 919, 924 (Fed. Cir. 1984). Section 7512 of Title 5 of the United States Code generally defines the adverse actions that are appealable to the Board. Some agency actions in alleged violation of USERRA are appealable to the Board as adverse actions, for example, a demotion alleg edly based on discrimination against the employee's mili tary service. See Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480, 1484 (Fed. Cir. 1998) ("[I]n challenging an adverse action before the Board, an employee of a Federal execu tive agency may assert, as an affirmative defense, a vio lation of USERRA by the agency."). A failure to hire- the action involved here-is not one of the appealable actions under section 7512. The question is whether 38 U.S.C. § 4324 makes all USERRA discrimination claims into appeals under section 7701.

The Board has held that

pure USERRA cases are not appeals of personnel actions. Rather, they are petitions for remedial ac tion . . . . In an appeal before the Board, just like an appeal before a court of appeals, the Board reviews a decision that resulted from a due process proceeding. . . . In a petition for remedial action, the Board, like a trial court, determines only whether the petitioner has proved his or her claim for relief.

Bodus v. Dep't of the Air Force, 82 M.S.P.R. 508, 516 (1999) (emphasis in original); see Jordan v. U.S. Postal Serv., 90 M.S.P.R. 525, 530 (2002). The majority today rejects the Board's view and holds that all USERRA complaints are "appeals," even where there is no adverse action.

The definition of an "appeal" is well established: "It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 175, 2 L. Ed. 60 (1803).

Viewed under the Marbury definition, a USERRA claim under 38 U.S.C. § 4324 cannot be an appeal. Sec tion 4324 provides:

(1) The Merit Systems Protection Board shall adjudicate any complaint brought before the Board . . . . A person who seeks a hearing or adjudication by submitting such a complaint under this paragraph may be represented at such hearing or adjudication in accordance with the rules of the Board.

(2) If the Board determines that a Federal execu tive agency or the Office of Personnel Management has not complied with the provisions of this chapter relating to the employment or reemployment of a per son by the agency, the Board shall enter an order requiring the agency or Office to comply with such provisions and to compensate such person for any loss of wages or benefits suffered by such person by rea son of such lack of compliance.

38 U.S.C. § 4324(c) (2000) (emphasis added). There is no "cause" before the agency which the Board must "revise[ ] and correct[ ]." Marbury, 5 U.S. at 175.

The majority nonetheless holds that section 4324 complaints are "appeals" because "USERRA claims ori ginate when an agency makes an employment decision . . . , these employment decisions are then appealed to the board for review." Ante at 1278. The majority draws the analogy to section 7512 adverse action appeals heard by the Board under 7701. Ante at 1278-79 (citing Price v. Soc. Sec. Admin., 398 F.3d 1322 (Fed. Cir. 2005) (constructive suspension); Guillebeau v. Dep't of the Navy, 362 F.3d 1329 (Fed. Cir. 2004) (removal); Knight v. Dep't of Def., 332 F.3d 1362 (Fed. Cir. 2003) (reduction in force demotion)). But Congress does not consider all employment decisions to be appealable adverse actions. The failure to hire (whether or not based on discrimina tion) is not an adverse action. Under the majority's theory, every employment discrimination claim is an appeal whether or not an adverse action is involved.

The majority's theory in this regard is inconsistent not only with section 7701 but also with our 5 U.S.C. § 7702 jurisprudence. Section 7702 provides for pendent Board jurisdiction over certain discrimination claims, and provides in pertinent part:

[I]n the case of any employee or applicant for employment who-

(A) has been affected by an action which the em ployee or applicant may appeal to the Merit Systems Protection Board, and

(B) alleges that a basis for the action was discrimination prohibited by-

(i) section 717 of the Civil Rights Act of 1964,

. . .

the Board shall, within 120 days of the filing of the appeal, decide both the issue of discrimination and the appealable action . . . .

5 U.S.C. § 7702 (2000). The language of section 7702 it self draws a distinction between "issue[s] of discrimina tion" and "appealable action [s]." The distinction is im portant because "appealable actions" are sufficient for Board jurisdiction under section 7701, but "issues of dis crimination" under section 7702 are pendent claims and cannot provide an independent basis for Board jurisdic tion. Cruz v. Dep't of the Navy, 934 F.2d 1240, 1243 (Fed. Cir. 1991) (en banc). That is, discrimination claims by themselves are not "appeals" falling under the Board's section 7701 jurisdiction.

To buttress its statutory argument, the majority re lies on the Board's regulation at 5 C.F.R. § 1208.4, defin ing an appeal to include a complaint under USERRA. As the majority points out, we have previously noted this incongruity between the Board's regulations and the Board's holdings in cases such as Bodus. Metzenbaum v. Dep't of Justice, 240 F.3d 1068, 1071 (Fed. Cir. 2001). But given the well established meaning of "appeal," the Board's regulations are irrelevant. Even if the Board were otherwise entitled to Chevron deference in its inter pretation of 5 U.S.C. § 7701 or 38 U.S.C. § 4324, Chevron would only apply if the statute were ambiguous. Gen. Dynamics Land Sys. v. Cline, 540 U.S. 581, 600, 124 S. Ct. 1236, 157 L. Ed. 2d 1094 (2004). In my view, the stat utory requirement of an "appeal" is not ambiguous, and a USERRA complaint is clearly not an appeal. Under this interpretation of the statute, the petitioner here has not raised a genuine issue of material fact and is not entitled to a hearing. I respectfully dissent.

 

1 Title VII discrimination suits filed in district court between private parties are subject to a 90-day statute of limitations in 42 U.S.C. § 2000e-5(f) that is not jurisdictional and may be equitably tolled. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394, 102 S. Ct. 1127, 71 L. Ed. 2d 234 (1982). But an appeal from the original district court proceeding under Title VII to a court of appeals is governed by 28 U.S.C. § 2107.

2 28 U.S.C. § 2107(a) provides:

[N]o appeal shall bring any judgment . . . of a civil nature before a court of appeals for review unless notice of appeal is filed, within thirty days after the entry of such judgment . . .

28 U.S.C. § 2107 (2000) (emphasis added).

3 5 U.S.C. § 7703(b)(1) provides:

Notwithstanding any other provision of law, any petition for review must be filed within 60 days after the date the petitioner received notice of the final order or decision of the Board.

5 U.S.C. § 7703(b)(1) (2000).

 

APPENDIX D

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

DOCKET NUMBER:
AT-3443-02-0622-B-1
AT-0330-02-0621-B-1

JOHN E. KIRKENDALL, APPELLANT

v.

DEPARTMENT OF THE ARMY, AGENCY

Date: [Oct. 13, 2004]

FINAL ORDER

John E. Kirkendall, Floral City, Florida, pro se.
Michael L. Larson, Esquire, Ft. Bragg, North Caro lina, for the agency.

BEFORE

Neil A. G. McPhie, Acting Chairman
Susanne T. Marshall, Member

The appellant has filed petitions for review in these cases asking us to reconsider the initial decision issued by the administrative judge. We grant petitions such as these only when significant new evidence is presented to us that was not available for consideration earlier or when the administrative judge made an error inter preting a law or regulation. The regulation that estab lishes this standard of review is found in Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).

After fully considering the filings in this appeal, we conclude that there is no new, previously unavailable, evidence and that the administrative judge made no error in law or regulation that affects the outcome. 5 C.F.R. § 1201.115(d). Therefore, we DENY the peti tions for review. The initial decisions of the admini strative judge are final. This is the Board's final deci sion in this matter. 5 C.F.R. § 1201.113.

NOTICE TO THE APPELLANT REGARDING YOUR FURTHER REVIEW RIGHTS

You have the right to request the United States Court of Appeals for the Federal Circuit to review this final decision. You must submit your request to the court at the following address:

United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439

The court must receive your request for review no later than 60 calendar days after your receipt of this order. If you have a representative in this case, and your representative receives this order before you do, then you must file with the court no later than 60 calendar days after receipt by your representative. If you choose to file, be very careful to file on time. The court has held that normally it does not have the authority to waive this statutory deadline and that filings that do not comply with the deadline must be dismissed. See Pinat v. Office of Personnel Manage ment, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to court, you should refer to the federal law that gives you this right. It is found in Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703). You may read this law as well as review the Board's regulations and other related material at our web site, http://www.mspb.gov.

 

FOR THE BOARD: /s/ MATTHEW SHANN
MATTHEW SHANN
[for] Bentley M. Roberts, Jr.
Clerk of the Board
>Washington, D.C.

APPENDIX E

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WASHINGTON REGIONAL OFFICE

DOCKET NUMBER:
AT-3443-02-0622-B-1
AT-0330-02-0621-B-1

JOHN E. KIRKENDALL, APPELLANT

v.

DEPARTMENT OF THE ARMY, AGENCY

Date: Dec. 4, 2003

INITIAL DECISION

John E. Kirkendall, Floral City, Florida, pro se.
Michael L. Larson, Esquire, Ft. Bragg, North Caro lina, for the agency.

BEFORE

Raphael Ben-Ami
Administrative Judge

 

The appellant filed appeals under the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Veterans Employment Opportunities Act (VEOA) from the agency's decision rating him ineligible for a position at Fort Bragg, North Carolina. I dismissed the appeals by initial decision dated September 20, 2002. See Kirkendall v. Depart ment of the Army, MSPB Docket Nos. AT-3443-02-0622- I-1, AT-0333-02-0621-I-1 (Initial Decision, Sept. 20, 2002).1 On the appellant's petition for review, the Board affirmed that portion of my initial decision dealing with his VEOA claim. See Kirkendall v. Department of the Army, 94 M.S.P.R. 70, 71 (2003). However, the Board also remanded the matter to this office for further pro ceedings on the appellant's USERRA claim. See id. For the following reasons, the appellant's request for relief under USERRA is DENIED.

BACKGROUND

In December of 1999, the appellant, a 10-point preference-eligible veteran, applied for the position of Supervisory Equipment Specialist (Aircraft), GS-1670- 12, with the Department of the Army in Fort Bragg, North Carolina. See USERRA Appeal File (UAF), Tab 11, Subtab 4E. By memorandum dated January 5, 2000, the agency informed the appellant that he was rated ineligible for the position because his application lacked details of his experience. See id., Subtab 4G. The appel lant filed a formal complaint of discrimination with the agency on April 29, 2000, claiming that he was not afforded veterans' preference in the hiring process and that his disability was improperly relied upon to dis qualify him from consideration for the position in ques tion. See id., Subtab 4D. The appellant also filed a complaint with the Department of Labor (DoL), claim ing a violation of his veterans' preference rights. By letter dated November 29, 2001, DoL advised the appel lant that his complaint was untimely because it was not filed within 60 days of the alleged veterans' preference violation, as required by statute. See UAF, Tab 1. The appellant was further advised that he could file an appeal with the Board within 15 days of his receipt of DoL's November 29 letter. See id.

The appellant filed these appeals on June 13, 2002, claiming, among other things, that his veterans' pref erence rights were violated and that the agency's deci sion rating him ineligible for the position constitutes a violation of USERRA. See VEOA and USERRA Appeal Files, Tabs 1.

I dismissed the appellant's VEOA appeal for lack of jurisdiction, finding that the DoL rejected the appel lant's complaint as untimely without addressing its sub stance, and that the appellant conceded that his VEOA complaint to DoL was untimely. See Kirkendall, slip op. at 3. I also found in the alternative that because the appellant had not filed his appeal until June 13, 2002, long after DoL's November 29, 2001 notification letter and VEOA's 15-day deadline for filing a Board appeal, the appeal must be dismissed because the deadline cannot be waived. See id., slip op. at 4.

In its remand Opinion and Order, the Board found that the appellant's assertion that he was not selected for the position in question based on his status as a dis abled veteran was "a claim that can proceed under USERRA." Kirkendall, 94 M.S.P.R. at 73. Although noting that the extant record was "void of the necessary evidence to support this claim," the Board explained that "the relative weakness of factual allegations in sup port of a USERRA claim is not a ground for dismissing the claim summarily; instead the claim should be denied on the merits if the appellant fails to develop those allegations." Id.

The Board thereupon directed me to advise the parties of the different methods of proving a USERRA claim and to explain the USERRA burdens of proof. See Kirkendall, 94 M.S.P.R. at 73. In addition, the Board directed me to provide the parties a further opportunity to conduct discovery and thereafter to "expressly rule on whether the appellant has demonstrated the exis tence of evidence involving the credibility of the parties involved, entitling the appellant to a hearing, or whether the matter can be decided on the basis of the written record." Id. The Board also asked that I "incorporate by reference the previous findings and conclusions on the [appellant's] VEOA claim so that the appellant has a single decision addressing both claims." Id.

Accordingly, in a September 9, 2003 order, I granted the parties an additional opportunity to conduct dis covery. See Remand Appeal File (RAF), Tab 2, Order at 3. I also advised the parties of the different methods of proving a USERRA claim and explained the USERRA burdens of proof. See id. at 2-3. Finally, I ordered the appellant to identify the method(s) of proof he wished to use to support his USERRA claim and to provide additional evidence and/or argument supportive of his claim. See id. at 3.

The appellant's USERRA claim is without merit.

The Board has jurisdiction over USERRA claims under 38 U.S.C. § 4324. See Kirkendall, 94 M.S.P.R. at 72 (citing 5 C.F.R. § 1201.3(a)(22)). USERRA prohibits discrimination in employment on the basis of military service. See id. (citing Sheehan v. Department of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001)). The requirements for establishing Board jurisdiction under USERRA are: (1) Performance of duty in a uniformed service of the United States; (2) an allegation of a loss of a benefit of employment; and (3) an allegation that the benefit was lost due to the performance of duty in the uniformed service. See Yates v. Merit Systems Protec tion Board, 145 F.3d 1480 (Fed. Cir. 1998).

The appellant asserted in his appeal that the agency's employment process "discriminated against all disabled veterans 30% or more disabled." UAF, Tab 1. He also asserted that he is a 100% disabled veteran, that his resume included this information, that his applica tion packet included a letter from the Department of Veterans Affairs advising the agency of his disability status, and that he was the only 100% disabled applicant for the position. The appellant further asserted that the agency failed to comply with the "legal obligations" to him as a 30% or more disabled veteran, and that the agency violated "USERRA and the Rehabilitation Act" by not selecting him for the position based on his mili tary service and his service-connected disability. See id.

The appellant provided evidence showing that he performed duty in a uniformed service. See UAF, Tab 9. In addition, the appellant's claim that he was not select ed for the position based on his status as a disabled veteran is cognizable under USERRA. See Kirkendall, 94 M.S.P.R. at 73. However, for the following reasons, I find appellant's USERRA claim to be without merit.

An appellant making a claim of discrimination under USERRA bears the initial burden of showing, by a preponderance of the evidence,2 that his military service was at least "a substantial or motivating factor" in the adverse employment action. See Fox v. U.S. Postal Ser vice, 88 M.S.P.R. 381, 385 (2001) (citing Sheehan, 240 F.3d at 1013). An appellant may prove discriminatory motive or intent by either direct or circumstantial (in direct) evidence. See id. (citing Sheehan, 240 F.3d at 1014). Discriminatory motivation under USERRA may be reasonably inferred from a variety of factors, includ ing disparate treatment of certain employees compared to other employees with similar work records. See Matz v. Department of Veterans Affairs, 91 M.S.P.R. 265, 268- 69 (2002). If the appellant shows that his military status was a motivating or substantial factor in the agency ac tion, the agency then has the opportunity come forward with evidence to prove, by a preponderance of the evi dence, that it would have taken the adverse action any way, for a valid reason. See id. at 269.

In response to my September 9, 2003 order, the appellant stated that "[his] proof is based primarily of indirect evidence." RAF, Tab 9, appellant's "USERRA Appeal" at 1. However, the appellant adduced no evi dence showing that his military service was a substantial or motivating factor in the agency's decision not to select him for the position in question. Nor may dis criminatory motivation be reasonably inferred under the circumstances. Instead, the record shows that: The appellant was rated ineligible for the position solely because his application lacked details of his experience; all of the individuals on the Certificate of Eligibles for the position were veterans; and the person ultimately selected for the position was, like the appellant, a 10- point preference-eligible veteran with a compensable service-connected disability. See RAF, Tab 9, Enclosure II, Subtabs 4, 5, 8, 9, 10; UAF, Tab 11, Subtabs 4C, 4G.

As part of his response, the appellant also asked that I review pursuant to 5 C.F.R. part 1203 the agency's allegedly invalid implementation of certain regulations issued by the Office of Personnel Management (OPM) and that I join that review with his USERRA complaint. See RAF, Tab 9, Enclosure I. Such discretionary re views may, upon a petitioner's request, be performed by the full Board under the original jurisdiction granted it by 5 U.S.C. § 1204(f). I consequently lack the authority to perform such a review.

Accordingly, the appellant's request for relief under USERRA must be denied.3 My previous findings and conclusions regarding the dismissal of the appellant's VEOA appeal are hereby incorporated by reference. See Kirkendall, slip op. at 3-4.

DECISION

The appellant's request for relief is DENIED.

FOR THE BOARD: /s/ RAPHAEL BEN-AMI
RAPHAEL BEN-AMI
Administrative Judge
NOTICE TO APPELLANT

This initial decision will become final on [JAN - 8 2004], unless a petition for review is filed by that date or the Board reopens the case on its own motion. This is an important date because it is usually the last day on which you can file a petition for review with the Board. However, if this initial decision is received by you more than 5 days after the date of issuance, you may file a petition for review within 30 days after the date you actually receive the initial decision. The date on which the initial decision becomes final also controls when you can file a petition for review with the Court of Appeals for the Federal Circuit. The paragraphs that follow tell you how and when to file with the Board or the federal court. These instructions are important because if you wish to file a petition, you must file it within the proper time period.

BOARD REVIEW

You may request Board review of this initial decision by filing a petition for review. Your petition, with sup porting evidence and argument, must be filed with:

The Clerk of the Board
Merit Systems Protection Board
1615 M Street, NW
Washington, DC 20419

A petition for review may be filed by mail, facsimile (fax), or personal or commercial delivery. A petition for review may also be filed by electronic mail (e-mail) if the petitioning party makes an election under 5 C.F.R. § 1201.5(f), which requires a written statement of the election that includes the e-mail address at which the party agrees to receive service. Such an election may be filed by e-mail at the following address: e-FilingHQ@mspb.gov.

If you file a petition for review, the Board will obtain the record in your case from the administrative judge and you should not submit anything to the Board that is already part of the record. Your petition must filed with the Clerk of the Board no later than the date this initial decision becomes final, or if this initial decision is received by you more than 5 days after the date of issuance, 30 days after the date you actually receive the initial decision. The date of filing by mail is determined by the postmark date. The date of filing by fax or e-mail is the date of submission. The date of filing by personal delivery is the date on which the Board receives the document. The date of filing by commercial delivery is the date the document was delivered to the commercial delivery service. Your petition may be rejected and returned to you if you fail to provide a statement of how you served your petition on the other party. If the petition is filed by e-mail, and the other party has elected e-Filing, including the party in the address portion of the e-mail constitutes a certificate of service.

JUDICIAL REVIEW

If you are dissatisfied with the Board's final decision, you may file a petition with:

The United States Court of Appeals
for the Federal Circuit
717 Madison Place, NW
Washington, DC 20439

You may not file your petition with the Court before this decision becomes final. To be timely, your petition must be received by the court no later than 60 calendar days after the date this initial decision becomes final.

NOTICE TO AGENCY/INTERVENOR

The agency or intervenor may file a petition for review of this initial decision in accordance with the Board's regulations.

1 I joined the appeals for decision-making purposes because they contained similar issues and joinder expedited processing of the cases without adversely affecting the interests of either party. See 5 C.F.R. § 1201.36.

2 Preponderance of the evidence is defined at 5 C.F.R. § 1201.56(c)(2) as the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.

3 A hearing may be provided to the appellant in a USERRA appeal once the Board's jurisdiction over the appeal is established. See 5 C.F.R. § 1208.13(b). Where, as here, discretion to grant a hearing exists, the Board has stated that the administrative judge should ex pressly rule on whether the appellant has demonstrated the existence of evidence involving the credibility of the parties involved, entitling the appellant to a hearing, or whether the matter can be resolved on the basis of the written record. See Jordan v. U.S. Postal Service, 90 M.S.P.R. 525, 530 (2002). The appellant failed to make such a demon stration here, and I therefore decided this appeal based on the parties' documentary submissions.

APPENDIX F

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

DOCKET NUMBERS:
AT-3443-02-0622-I-1
AT-0330-02-0621-I-1

JOHN E. KIRKENDALL, APPELLANT

v.

DEPARTMENT OF THE ARMY, AGENCY

DATE: [Aug. 29, 2003]

OPINION AND ORDER

John E. Kirkendall, Inverness, Florida, pro se.
Deborah Davis, Esquire, Fort Bragg, North Caro lina, for the agency.

BEFORE

Susanne T. Marshall, Chairman
Neil A. A. McPhie, Member

¶ 1 The appellant petitions for review of the initial decision that dismissed his claims under the Veterans Employment Opportunities Act (VEOA) of 1998, 5 U.S.C. § 3330a, and Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994, codified as amended at 38 U.S.C. §§ 4301-4333 (1994 & Supp. II 1996). We find that, with regard to the appellant's VEOA claim, the petition does not meet the criteria for review set forth at 5 C.F.R. § 1201.115, and we AFFIRM the portion of the initial decision dealing with that claim. For the reasons set forth below, how ever, we GRANT the petition for review with regard to the USERRA claim, REVERSE the initial decision insofar as it dismissed the USERRA claim for lack of jurisdiction, and REMAND the matter to the regional office for further proceedings on the USERRA claim.

BACKGROUND

¶ 2 On June 13, 2002, the appellant filed appeals under USERRA and VEOA from the agency's decision finding him not qualified for a position at Fort Bragg, North Carolina. Specifically, the appellant, a 10-point pre ference-eligible veteran, applied for the position of Supervisory Equipment Specialist (Aircraft), GS-12. USERRA Appeal File, No. AT-3443-02-0622-I-1 (UAF), Tab 11(4E). The agency notified the appellant that his application lacked details of his experience and that he had been rated ineligible for the position. UAF, Tab 11(4G). On April 29, 2000, the appellant filed a formal complaint of discrimination with the agency. He asserted that he was not afforded veterans' preference in the hiring process and that his disability was improp erly relied upon to disqualify him from consideration for the position. Id. The appellant also filed a complaint with the Department of Labor (DoL) claiming a violation of his veterans' preference rights. DoL notified the appellant that his complaint was untimely because it was not filed within the statutory 60-day filing deadline from the date of the alleged veterans' preference violation. UAF, Tab 1. DoL advised the appellant that he could file a Board appeal within 15 days of his receipt of DoL's November 29, 2001 letter. Id.

¶ 3 On appeal, the administrative judge (AJ) dismissed the appellant's VEOA appeal for lack of jurisdiction, finding that the DoL rejected the appellant's complaint as untimely without addressing its substance, and that the appellant conceded that his VEOA complaint to DoL was untimely. Initial Decision (ID) at 3. In the alter native, the AJ found that, because the appellant did not file his appeal until June 13, 2002, long after DoL's November 29, 2001 notification letter and VEOA's 15- day deadline for filing a Board appeal, the appeal must be dismissed because the deadline cannot be waived. The AJ found that, with regard to the appellant's USERRA claim, the appellant's complaint did not con stitute a cognizable claim under USERRA because he failed to allege that he was denied a benefit of employ ment on the basis of his previous performance of mili tary duty. The AJ denied the appellant's request for a hearing.

ANALYSIS

¶ 4 The Board has jurisdiction over USERRA claims under 38 U.S.C. § 4324. See 5 C.F.R. § 1201.3(a)(22). As the court of Appeals for the Federal Circuit found in Sheehan v. Department of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001), "the USERRA prohibits discrimination in employment on the basis of military service." The relevant provision states:

A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for member ship, performance of service, application for service, or obligation.

38 U.S.C. § 4311(a). Under this provision, an appellant's claim that he was denied initial employment based on his status as a disabled veteran is cognizable. Slentz v. U.S. Postal Service, 92 M.S.P.R. 144, ¶ 8 (2002); Bagunas v. U.S. Postal Service, 92 M.S.P.R. 5, ¶¶ 17, 18 (2002); cf. McBride v. U.S. Postal Service, 78 M.S.P.R. 411, 415 (1998) (allegation of disability discrimination alone does not raise a USERRA claim).

¶ 5 The appellant in this case specifically asserted in his petition for appeal that the agency's employment process "discriminates against all disabled veterans 30% or more disabled." UAF, Tab 1. He also asserted that he is a 100% disabled veteran, that his resume included this information, that his application packet included a letter from the Department of Veterans Affairs advising the agency of his disability status, and that he was the only 100% disabled applicant for the position. The ap pellant asserted further that the agency failed to comply with the "legal obligations" to him as a 30% or more dis abled veteran. UAF, Tab 1. In addition, the appellant claimed that he is rated as more than 30% disabled (as a result of a service connected cerebral hemorrhage that caused left hemiparesis with secondary conditions in cluding dementia), and argued that the agency violated "USERRA and the Rehabilitation Act" by not selecting him for the position based on his military service and his service-connected disability. UAF, Tab 1.

¶ 6 Although the AJ found that the appellant did not allege a cognizable claim under USERRA because he did not allege that he was denied a benefit of employ ment on the basis of his previous performance of mili tary duty, ID at 5-6, we find that the appellant's repeat ed assertions that he was not selected for the position based on his status as a disabled veteran was indeed a claim that can proceed under USERRA. See Bagunas, 92 M.S.P.R. 5, ¶ 18; cf. McBride, 78 M.S.P.R. 411, 415 (1998) (allegation of disability discrimination alone does not raise a USERRA claim).

¶ 7 Furthermore, even though the record before us is void of the necessary evidence to support this claim, the relative weakness of factual allegations in support of a USERRA claim is not a ground for dismissing the claim summarily; instead the claim should be denied on the merits if the appellant fails to develop those allegations. Bagunas, 92 M.S.P.R. 5, ¶ 18. Because the AJ only advised the appellant that an allegation of disability discrimination does not raise a USERRA claim, and did not advise him that a claim of non-selection based on his status as a "disabled veteran" is cognizable under USERRA, the appellant may have been hindered in understanding what was necessary to set forth his USERRA claim clearly. Accordingly, because the ap pellant did not have the full opportunity to develop his USERRA claim, we find it necessary to remand this case to the regional office for further proceedings on his USERRA claim.

ORDER

¶ 8 We REMAND this appeal to the regional office for further proceedings and the issuance of a new initial decision on the appellant's USERRA claim. The AJ shall advise the parties of the different methods of prov ing a USERRA claim, and explain the USERRA bur dens of proof. See Matz v. Department of Veterans Affairs, 91 M.S.P.R. 265, ¶¶ 9, 16 (2002). The AJ shall provide the parties a further opportunity to conduct dis covery. Although the AJ has the discretion under Jor dan v. U.S. Postal Service, 90 M.S.P.R. 525, ¶ 9 (2002), to determine whether to grant the appellant's request for a hearing, the AJ should expressly rule on whether the appellant has demonstrated the existence of evi dence involving the credibility of the parties involved, entitling the appellant to a hearing, or whether the matter can be decided on the basis of the written record. Id. The new initial decision should incorporate by reference the previous finding and conclusions on the VEOA claim so that the Appellant has a single decision addressing both claims.

 

FOR THE BOARD: /s/ MATTHEW SHANN MATTHEW SHANN

[for] Bentley M. Roberts, Jr. Clerk of the Board

Washington, D.C.

APPENDIX G

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WASHINGTON REGIONAL OFFICE

DOCKET NUMBERS1:
AT-3443-02-0622-I-1
AT-0330-02-0621-I-1

JOHN E. KIRKENDALL, APPELLANT

v.

DEPARTMENT OF THE ARMY, AGENCY

DATE: Sept. 20, 2002

INITIAL DECISION

John E. Kirkendall, Inverness, Florida, pro se.
Deborah Davis, Esquire, Fort Bragg, North Caro lina, for the agency.

BEFORE

Raphael Ben-Ami
Administrative Judge

The appellant filed appeals under the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Veterans Employment opportunities Act (VEOA) from the agency's decision finding him not qualified for a position at Fort Bragg, North Caro lina. For the following reasons, these appeals are DISMISSED.

BACKGROUND

In December of 1999, the appellant, a 10-point preference-eligible veteran, applied for the position of Supervisory Equipment Specialist (Aircraft), GS-1670- 12, with the Department of the Army in Fort Bragg, North Carolina. See USERRA Appeal File (UAF), Tab 11, Subtab 4E. By memorandum dated January 5, 2000, the agency informed the appellant that he was rated ineligible for the position because his application lacked details of his experience. See id., Subtab 4G. The appellant filed a formal complaint of discrimination with the agency on April 29, 2000, claiming that he was not afforded veterans' preference in the hiring process and that his disability was improperly relied upon to dis qualify him from consideration for the position in ques tion. See id., Subtab 4D. The appellant also filed a com plaint with the Department of Labor (DoL), claiming a violation of his veterans' preference rights. By letter dated November 29, 2001, DoL advised the appellant that his complaint was untimely because it was not filed within 60 days of the alleged veterans' preference viola tion, as required by statute. See UAF, Tab 1. The appellant was further advised that he could file an appeal with the Board within 15 days of his receipt of DoL's November 29 letter. See id.

The appellant filed these appeals on June 13, 2002 (see 5 C.F.R. § 1201.4(l), the date of filing by mail is determined by the postmark date), claiming, among other things, that his veterans' preference rights were violated and that the agency's decision finding him not qualified for the position in question constitutes a violation of USERRA. See VEOA Appeal File, Tab 1.

JURISDICTION

Legal standard/burden of proof

The Board's jurisdiction is not plenary, but is limited to those areas specifically granted by some law, rule, or regulation. See 5 U.S.C. § 7701(a); Todd v. Merit Sys tems Protection Board, 55 F.3d 1574, 1576 (Fed. Cir. 1995). Thus, the Board does not have jurisdiction over all actions that are alleged to be incorrect. See, e.g., Weyman v. Department of Justice, 58 M.S.P.R. 509, 512 (1993).

The appellant bears the burden of establishing by preponderant evidence that the Board has jurisdiction over his appeals. See 5 C.F.R. § 1201.56(a)(2). Pre ponderance of the evidence is defined by regulation as the degree of relevant evidence that a reasonable per son, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue. See 5 C.F.R. § 1201.56(c)(2).

The Board lacks jurisdiction over the appellant's VEOA appeal.

The VEOA provides that a preference eligible who believes that an agency has violated his rights "under any statute or regulation relating to veterans' pref erence may file a complaint with the Secretary of La bor." Bagunas v. U.S. Postal Service, 92 M.S.P.R. 5, 9 (2002) (citing 5 U.S.C. § 3330a(a)(1)). Such a complaint "must be filed within 60 days after the date of the alleged violation." Id. (citing 5 U.S.C. § 3330a(a)(2)(A)). The "complainant may elect to appeal the alleged violation" to the Board no later than 15 days from the date the complainant receives written notification from DoL of the results of its investigation. Id. (citing 5 U.S.C. § 3330a(d)(1)). Exhaustion of the DoL com plaint process is a jurisdictional prerequisite to pursuit of a Board appeal under the VEOA. Id. (citing Augus tine v. Department of Veterans Affairs, 88 M.S.P.R. 407, ¶ 7 (2001); Sherwood v. Department of Veterans Affairs, 88 M.S.P.R. 208, ¶ 5 (2001)). The Board cannot exercise jurisdiction over a claim that an agency violated an individual's veterans' preference rights if that individual did not first file a complaint with DoL. Id. (citing Tin dall v. Department of the Army, 84 M.S.P.R. 230, ¶ 5 (1999)). An appellant fails to exhaust his remedy before DoL where DoL rejects his complaint as untimely with no consideration of its substance. See id. at 10.

As noted above, DoL rejected the appellant's com plaint as untimely without addressing its substance. Further, the appellant does not deny that his complaint to DoL was filed after the time limit set by statute. When the appellant concedes that his VEOA complaint to DoL was untimely and DoL disposes of that complaint as untimely without addressing its substance, the Board cannot exercise jurisdiction over that individual's sub sequent VEOA appeal concerning the same alleged violation of veterans' preference rights. Bagunas, 92 M.S.P.R. at 10. In addition, where, as here, DoL rejects a VEOA complaint as untimely, the Board has no authority to decide whether DoL should have waived the deadline. Id. at 11. Finally, even assuming for the sake of argument that the appellant's VEOA appeal is within the Board's jurisdiction, his appeal was not filed with the Board until June 13, 2002, long after he received DoL's November 29, 2001 notification, and VEOA's 15-day deadline for filing an appeal cannot be waived and an appeal filed beyond that deadline must be dismissed. Id. at 9 (citing Williams v. Department of the Navy, 90 M.S.P.R. 669 (2002)).

The appellant has failed to raise a cognizable claim under USERRA.

Under USERRA, the Board has appellate juris diction over appeals of any person alleging discrimi nation in a Federal employment on account of prior military service. Bagunas, 92 M.S.P.R. at 12 (citing 38 U.S.C. §§ 4303(4)(A)(ii), 4311(a), 4324(b)). The re quirements for establishing Board jurisdiction under USERRA are: (1) Performance of duty in a uniformed service of the United States; (2) an allegation of a loss of a benefit of employment; and (3) an allegation that the benefit was lost due to the performance of duty in the uniformed service. See Yates v. Merit Systems Protec tion Board, 145 F.3d 1480 (Fed. Cir. 1998).

The appellant claims that the agency "denied [him] the right to qualify by denying [his] veteran's rights established under law." UAF, Tab 1, page 5 of appel lant's narrative attached to Board Appeal Form. The appellant further claims that "[t]his establishes [his] claim of discrimination based on handicap and [his] status as a veteran, because only 30% or more preferen tial applicants can exercise this right." Id. In addition, "[the appellant] contend[s] that if it were not for [his] military experience which [he] was not given credit for in the evaluation process [he] was qualified," and "[his] military experience was disregarded in considering [his] qualifications." Id. at page 10.

The appellant did not allege that he was denied a benefit of employment due to his performance of mili tary duty and provided no evidence with his appeal showing that he performed duty in a uniformed service. Thus, because it did not appear that the appellant had raised a cognizable claim under USERRA, I issued an Order to Show Cause, advising the appellant of his burden of proof and explaining that he could make out a prima facie case of discrimination under USERRA if he alleged facts that, if proven, could establish that he was found not qualified for the position for which he applied at Fort Bragg because of his prior military service. See UAF, Tab 8. I further advised the appellant that although USERRA proscribes, among other things, the denial of initial employment based on a veteran's perf ormance of military duty, it does not proscribe the denial of initial employment based on a disability arising from that duty. See McBride v. U.S. Postal Service, 78 M.S.P.R. 411, 415 (1998). In addition, I explained that the Board's jurisdiction under USERRA does not extend beyond the complained-of discrimination because of military status, does not allow for a decision on the merits of the underlying matter except to the extent necessary to address the appellant's military status claims, and thus does not include a review of other claims of prohibited discrimination. See Metzenbaum v. Department of Justice, 89 M.S.P.R. 285, 291-92 (2001).

The appellant thereafter provided evidence showing that he performed duty in a uniformed service. See UAF, Tab 9. The appellant also timely responded to the show-cause order, reiterating his contention that the agency failed to property credit his military service in assessing his qualifications for the position in question. See id., Tab 10.

I find that the appellant's complaint does not con stitute a cognizable claim under USERRA because he has not alleged that he was denied a benefit of employ ment on the basis of his previous performance of mili tary duty. Rather, the appellant alleges that he was found unqualified for the position because the agency ignored his military experience. Further, the appellant does not allege that individuals lacking military ex perience were rated eligible for the position. Indeed, the individual ultimately selected for the position was, like the appellant, a 10-point preference-eligible veteran with a compensable service-connected disability. See UAF, Tab 11, Subtab 4C. Nor has the appellant raised any other claim which might invoke the Board's juris diction.2 Accordingly, these appeals must be dismissed.

DECISION

The appeals are DISMISSED.

FOR THE BOARD: /s/ RAPHAEL BEN-AMI
RAPHAEL BEN-AMI
Administrative Judge
NOTICE TO APPELLANT

This initial decision will become in final on [Oct. 25, 2002], unless a petition for review is filed by that date or the Board reopens the case on its own motion. This is an important date because it is usually the last day on which you can file a petition for review with the Board. However, if this initial decision is received by you more than 5 days after the date of issuance, you may file a petition for review within 30 days after the date you actually receive the initial decision. The date on which the initial decision becomes final also controls when you can file a petition for review with the Court of Appeals for the Federal Circuit. The paragraphs that follow tell you how and when to file with the Board or the federal court. These instructions are important because if you wish to file a petition, you must file it within the proper time period.

BOARD REVIEW

You may request Board review of this initial decision by filing a petition for review. Your petition, with sup porting evidence and argument, must be filed with:

The Clerk of the Board
Merit Systems Protection Board
1615 M Street, NW
Washington, DC 20419

If you file a petition for review, the Board will obtain the record in your case from the administrative judge and you should not submit anyting to the Board that is already part of the record. Your petition must be post marked, faxed, or hand-delivered no later than the date this initial decision becomes final, or if this initial deci sion is received by you more than 5 days after the date of issuance, 30 days after the date you actually receive the initial decision. If you fail to provide a statement with your petition that you have either mailed, faxed, or hand-delivered a copy of your petition to the agency, your petition will be rejected and returned to you.

JUDICIAL REVIEW

If you are dissatisfied with the Board's final decision, you may file a petition with:

The United States Court of Appeals
for the Federal Circuit
717 Madison Place, NW
Washington, DC 20439

You may not file your petition with the court before this decision becomes final. To be timely, your petition must be received by the court no later than 60 calendar days after the date this initial decision becomes final.

NOTICE TO AGENCY/INTERVENOR

The agency or intervenor may file a petition for review of this initial decision in accordance with the Board's regulations.

1 I have joined these appeals because they contain similar issues and joinder will expedite processing of the cases without adversely affecting the interest of either party. See 5 C.F.R. § 1201.36.

2 I therefore did not provide the appellant his requested hearing in these appeals. See 5 C.F.R. §§ 1208.13(b), 1208.23(b) (a hearing may be provided to the appellant in a USERRA appeal once the Board's juris diction over the appeal is established and, in a VEOA appeal, once the Board's jurisdiction over the appeal has been established and it has been determined that the appeal is timely).

APPENDIX H

U.S. Department of Labor [Seal Omitted]
727-893-2415
fax 727-893-2981

 

Office of the Assistant Secretary for
Veterans' Employment and Training
Veterans Employment and Training Service
P.O. Box 12528
St. Petersburg, FL 33733
Nov. 29, 2001

Mr. John E. Kirkendall
P.O. Box 273
Floral City, FL 34436

RE:04-FL-2002-3-10-VP

Dr. Mr. Kirkendall:

This letter is in response to the package you sent in reference to the Veterans Employment Opportunity Act of 1998 (VEO). The act's intent was to transfers the investigative authority for veterans' preference in Federal employment from the OPM to the Veterans Employment and Training Service (VETS).

According to Public Law 105-339, sec. 3330a(2)(A), A complaint under this subsection must be filed within 60 days after the date of the alleged violation. It has been determined that the alleged violation occurred more than 60 days from the filing of this case. Therefore, you have the right to take your claim to the Merit Staffing Protection Board (MSPB), that claim must be filed within 15 days of the date fol lowing the receipt of this notification. If you chose to do so, notify this office, in writing of your intent. If you so elect, please use the enclosed Appeal Form 283.

Merit Systems Protection Board
401 W. Peachtree Street. Swt. 1050
Atlanta, GA 30308

If you have any additional questions, please feel free to contact me at the above telephone number.

Sincerely,

/s/ ILLEGIBLE
Craig K. Spry
Assistant Director

APPENDIX I

APPENDIX J

STATUTORY PROVISION INVOLVED

Section 3330a of Title 5 of the United States Code provides:

Preference eligibles; administrative redress

(a)(1) A preference eligible who alleges that an agency has violated such individual's rights under any statute or regulation relating to veterans' preference may file a complaint with the Secretary of Labor.

(2)(A) A complaint under this subsection must be filed within 60 days after the date of the alleged violation.

(B) Such complaint shall be in writing, be in such form as the Secretary may prescribe, specify the agency against which the complaint is filed, and contain a summary of the allegations that form the basis for the complaint.

(3) The Secretary shall, upon request, provide technical assistance to a potential complainant with respect to a complaint under this subsection.

(b)(1) The Secretary of Labor shall investigate each complaint under subsection (a).

(2) In carrying out any investigation under this subsection, the Secretary's duly authorized repre sentatives shall, at all reasonable times, have rea sonable access to, for purposes of examination, and the right to copy and receive, any documents of any person or agency that the Secretary considers rele vant to the investigation.

(3) In carrying out any investigation under this subsection, the Secretary may require by subpoena the attendance and testimony of witnesses and the production of documents relating to any matter under investigation. In case of disobedience of the subpoena or contumacy and on request of the Secretary, the Attorney General may apply to any district court of the United States in whose jurisdiction such disobedience or contumacy occurs for an order enforcing the subpoena.

(4) Upon application, the district courts of the United States shall have jurisdiction to issue writs commanding any person or agency to comply with the subpoena of the Secretary or to comply with any order of the Secretary made pursuant to a lawful investigation under this subsection and the district courts shall have jurisdiction to punish failure to obey a subpoena or other lawful order of the Secretary as a contempt of court.

(c)(1)(A) If the Secretary of Labor determines as a result of an investigation under subsection (b) that the action alleged in a complaint under subsection (a) occurred, the Secretary shall attempt to resolve the complaint by making reasonable efforts to ensure that the agency specified in the complaint complies with applicable provisions of statute or regulation relating to veterans' preference.

(B) The Secretary of Labor shall make deter minations referred to in subparagraph (A) based on a preponderance of the evidence.

(2) If the efforts of the Secretary under sub section (b) with respect to a complaint under sub section (a) do not result in the resolution of the complaint, the Secretary shall notify the person who submitted the complaint, in writing, of the results of the Secretary's investigation under subsection (b).

(d)(1) If the Secretary of Labor is unable to resolve a complaint under subsection (a) within 60 days after the date on which it is filed, the complainant may elect to appeal the alleged violation to the Merit Systems Protection Board in accordance with such procedures as the Merit Systems Protection Board shall prescribe, except that in no event may any such appeal be brought-

(A) before the 61st day after the date on which the complaint is filed; or

(B) later than 15 days after the date on which the complainant receives written notifica tion from the Secretary under subsection (c)(2).

(2) An appeal under this subsection may not be brought unless-

(A) the complainant first provides written notification to the Secretary of such complain ant's intention to bring such appeal; and

(B) appropriate evidence of compliance with subparagraph (A) is included (in such form and manner as the Merit Systems Protection Board may prescribe) with the notice of appeal under this subsection.

(3) Upon receiving notification under paragraph (2)(A), the Secretary shall not continue to investigate or further attempt to resolve the complaint to which the notification relates.

(e)(1) This section shall not be construed to prohibit a preference eligible from appealing directly to the Merit Systems Protection Board from any action which is appealable to the Board under any other law, rule, or regulation, in lieu of administrative redress under this section.

(2) A preference eligible may not pursue re dress for an alleged violation described in subsection (a) under this section at the same time the pref erence eligible pursues redress for such violation under any other law, rule, or regulation.