STEPHEN SHENDOCK, PETITIONER V. DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR No. 89-7215 In The Supreme Court Of The United States October Term 1989 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Third Circuit Brief For The Respondent In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-25a) is reported at 893 F.2d 1458. The opinions of the Benefits Review Board (Pet. App. 32a-34a) and the administrative law judge (Pet. App. 35a-42a) are unreported. JURISDICTION The judgment of the court of appeals was entered on January 12, 1990. The petition for a writ of certiorari was filed on April 11, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether a court of appeals has jurisdiction to decide an appeal from a decision of the Benefits Review Board when the appeal is not filed within the 60-day period prescribed by Section 21(c) of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 921(c). STATEMENT 1. The Black Lung Benefits Act (BLBA), as amended, 30 U.S.C. 901-945, provides benefits to coal miners who are totally disabled or die due to pneumoconiosis arising from coal mine employment. See Pittston Coal Group v. Sebben, 109 S. Ct. 414, 417 (1988); Mullins Coal Co. v. Director, OWCP, 484 U.S. 135, 138 (1987). Section 21(b)(3) of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 921(b)(3) (Longshore Act), which is incorporated by Section 422(a) of the BLBA, 30 U.S.C. 932(a), provides that initial administrative determinations with respect to claims for benefits may be appealed to the Benefits Review Board. See Sebben, 109 S. Ct. at 424. Section 21(c) of the Longshore Act, 33 U.S.C. 921(c), also incorporated by Section 422(a) of the BLBA, provides for judicial review of final Board orders. See 109 S. Ct. at 424. Section 21(c) provides, in relevant part, that (a)ny person adversely affected or aggrieved by a final order of the Board may obtain a review of that order in the United States court of appeals for the circuit in which the injury occurred, by filing in such court within sixty days following the issuance of such Board order a written petition praying that the order be modified or set aside. A copy of such petition shall be forthwith transmitted by the clerk of the court, to the Board, and to the other parties, and thereupon the Board shall file in the court the record in the proceedings as provided in section 2112 of title 28. Upon such filing, the court shall have jurisdiction of the proceeding and shall have the power to give a decree affirming, modifying, or setting aside, in whole or in part, the order of the Board and enforcing same to the extent that such order is affirmed or modified. 33 U.S.C. 921(c). 2. Petitioner filed an application for benefits under the BLBA. Pet. App. 4a. The Department of Labor denied the claim. Following a formal hearing, an administrative law judge issued a decision and order denying benefits. Id. at 4a-5a; 35a-42a. Petitioner appealed this decision to the Board, which issued a decision affirming the ALJ's denial of benefits on April 15, 1987. Id. at 5a; 32a-34a. The Board sent a copy of its decision, and a notice informing petitioner of his right to appeal, by certified mail to petitioner's attorney of record. Pet. App. 5a. In the interim, however, petitioner's attorney had become a judge of the Pennsylvania Court of Common Pleas and thus could not continue to represent him. Ibid. The attorney who took over the new judge's law practice wrote to petitioner on April 23, 1987, enclosing a copy of the Board's decision and informing petitioner that the attorney believed an appeal would be unsuccessful and that he therefore would be "unable to assist" in taking an appeal. Id. at 6a. The attorney further informed petitioner that the Board's decision would become final if not appealed within 60 days of its date of issuance. Ibid. In a telephone conversation on April 27, the same attorney advised petitioner's wife of her husband's appeal rights and suggested that she contact the local Department of Labor black lung field office for assistance in filing an appeal. Ibid. Petitioner's wife personally delivered a letter, signed by petitioner and dated May 4, 1987, to a deputy commissioner at the local black lung field office. Pet. App. 6a-7a; 27a, 29a. /1/ The letter, addressed to the Board, expressed petitioner's desire to appeal the Board's decision to the court of appeals. Id. at 7a; 29a. The deputy commissioner apparently told petitioner's wife that the letter would be forwarded to the Board "right away." Id. at 7a; 27a. In fact, the letter was not postmarked until June 5, and was not received by the Board until June 15, the last day allowed by Section 21(c) for the filing of a petition for review. Id. at 7a; 27a-28a. The Board did not forward petitioner's letter to the court of appeals, but informed petitioner by letter dated January 7, 1988, that any appeal must be filed with the Third Circuit within 60 days of the Board's decision and provided the court's address. /2/ Id. at 7a; 30a. Petitioner requested such review from the court on January 20, 1988, more than seven months after expiration of the 60-day appeal period prescribed by Section 21(c). Id. at 7a-8a. 3. The court of appeals, sitting en banc, unanimously held that the filing requirements of Section 21(c) are jurisdictional. /3/ Pet. App. 24a. It therefore dismissed the petition for lack of jurisdiction "without considering either whether the surrounding circumstances excuse (petitioner's) failure to file it timely in the proper forum or the merits of his petition." Id. at 24a-25a. The court of appeals looked first to the language of Section 21(c). Pet. App. 9a-17a. The court concluded that use of the term "jurisdiction" in Section 21(c) "is entitled to considerable weight," because Congress presumably knows "the meaning of the term 'jurisdiction' as it relates to the power of federal courts to hear and decide cases." Id. at 10a-11a. The court distinguished Section 21(c) from statutory provisions specifying the filing requirements for judicial review under the Social Security Act and for instituting a charge with the Equal Employment Opportunity Commission under Title VII of the Civil Rights Act of 1964. Id. at 11a-13a. As the court noted (id. at 11a), those provisions were construed by this Court as statutes of limitations because neither of them speaks in jurisdictional terms. See Bowen v. City of New York, 476 U.S. 467, 478-482 (1986); Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392-394 (1982). Referring to the sparse legislative history of Section 21(c), the court of appeals stated that "Congress expressed its intent by using the word 'jurisdiction,' and the absence of legislative history independently showing an intent to use the word in accordance with its ordinary meaning proves nothing." /4/ Id. at 14a. The court of appeals observed that "(a)ll the other circuits that have considered the question" have reached the same conclusion. Pet. App. 15a-16a (citing cases). The court found no support for excusing petitioner's untimely filing in this Court's decisions in Houston v. Lack, 487 U.S. 266 (1988) or Fallen v. United States, 378 U.S. 139 (1964). It distinguished those cases as limited to the "truly extraordinary" circumstances of pro se prisoners who, by transmitting their notices of appeal to prison officials, "did all that could reasonably be expected to get the letter (of appeal) to its destination within the required (time)." Id. at 19a (quoting Fallen, 378 U.S. at 144). Finally, the court of appeals pointed to the circular quality of petitioner's argument based on the equities of the case. The court observed that the equities are relevant only if equitable tolling is available, "the very point in issue." Pet. App. 20a. While acknowledging "the harsh outcome that Shendock faces as a result of his unfortunate failure to meet the jurisdictional requirements of Section 921(c)," the court stated that equitable tolling "simply is not available when there are jurisdictional limitations." /5/ Id. at 19a-20a. The court concluded that it has "no power to amend the statutes (Congress) enacts." Id. at 22a. ARGUMENT The unanimous decision of the en banc court of appeals is correct and does not conflict with any decision of this Court or any other court of appeals. Review by this Court therefore is unwarranted. The court of appeals held that the 60-day filing requirement of Section 21(c) is a jurisdictional prerequisite to suit in federal court and thus is not subject to equitable tolling. As petitioner concedes (Pet. 12), every court of appeals that has addressed this question has reached the same result. See Adkins v. Director, OWCP, 889 F.2d 1360, 1361-1363 (4th Cir. 1989); Brown v. Director, OWCP, 864 F.2d 120, 122-123 (11th Cir. 1989); Danko v. Director, OWCP, 846 F.2d 366, 369 (6th Cir. 1988) (per curiam); Arch Mineral Corp. v. Director, OWCP, 798 F.2d 215, 217 (7th Cir. 1986) (dictum); Clay v. Director, OWCP, 748 F.2d 501, 503 (8th Cir. 1984); Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 44 (2d Cir. 1976), aff'd on other grounds sub nom. Northeast Terminal Co. v. Caputo, 432 U.S. 249 (1977). Four courts of appeals have held expressly that the timely filing of a petition for review with the Board instead of a court of appeals does not toll Section 21(c). Cooley v. Director, OWCP, 895 F.2d 1301, 1303 (11th Cir. 1990) (per curiam); Adkins, 889 F.2d at 1363; Mussatto v. Director, OWCP, 855 F.2d 513, 514 (8th Cir. 1988) (per curiam); Danko, 846 F.2d at 369; Bolling v. Director, OWCP, 823 F.2d 165, 166 (6th Cir. 1987). There is thus unanimity among the circuits concerning the jurisdictional nature of Section 21(c). /6/ Petitioner nevertheless contends (Pet. 12-22) that the decisions of the courts of appeals misread or ignore principles enunciated by this Court in Zipes v. Trans World Airlines, supra, Bowen v. City of New York, supra, Houston v. Lack, supra, and Fallen v. United States, supra. Contrary to petitioner's contentions, the courts of appeals correctly understood and applied those decisions. In Zipes, the Court held that timely filing of a discrimination charge with the Equal Employment Opportunity Commission is not a jurisdictional prerequisite to suit in a federal district court under Title VII of the Civil Rights Act of 1964. 455 U.S. at 392-394. The Court observed that the statutory grant of jurisdiction to the courts does not refer to the timely filing of a charge with the EEOC, and "(t)he provision specifying the time for filing charges with the EEOC appears as an entirely separate provision, and it does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts." Id. at 394. The Court also considered indications in the legislative history that Congress intended the time period for filing as a period of limitations, and referred to prior decisions of the Court that had treated the filing period as a limitations statute. Id. at 394-398. In this case, in contrast, the filing requirement and the grant of jurisdiction to the federal courts appear in the same provision, which expressly speaks in jurisdictional terms. The legislative history, as petitioner concedes (Pet. 18), is uninformative, and no prior decision of this Court or any court of appeals has treated the requirement as other than a jurisdictional prerequisite. In short, as Judge Friendly concluded in an opinion for the Second Circuit, there is "no reason not to read (Section 21(c)) as meaning what it says." Dellaventura, 544 F.2d at 44. /7/ In Bowen v. City of New York, the Court reaffirmed prior decisions that construed a judicial review provision in the Social Security Act, 42 U.S.C. 405(g), as a statute of limitations. 476 U.S. at 478 (citing Mathews v. Eldridge, 424 U.S. 319 (1976); Weinberger v. Salfi, 422 U.S. 749 (1975)). In both Eldridge and Salfi, the Court relied on the plain language of Section 405(g), which requires commencement of an action "within sixty days * * * or within such further time as the Secretary may allow." 424 U.S. at 328 n.9; 422 U.S. at 763-764. The Court in Bowen emphasized that "Congress has authorized the Secretary to toll the 60-day limit, thus expressing its clear intention to allow tolling in some cases." 476 U.S. at 480 (footnote omitted). Thus, the teaching of these cases, and of Zipes, is that courts must look first to the language Congress chooses in setting out statutory time limits for filing. In this instance, Congress was not silent on whether to allow equitable tolling; it expressly framed the 60-day requirement in jurisdictional terms. /8/ Petitioner also relies on Houston v. Lack for the proposition that a jurisdictional time limitation for filing an appeal "may be equitably tolled due to a litigant's pro se status and the particular circumstances of his filing." Pet. 14-15, 19. This reads too much into Houston. In that case, the Court held that notices of appeal from a denial of habeas corpus by pro se prisoners are "filed" in accord with Federal Rule of Appellate Procedure 4 when delivered to prison officials. The Court expressly stated that "(t)he situation of prisoners seeking to appeal without the aid of counsel is unique," because prisoners, unlike other pro se litigants, are not in a position to monitor the processing of their papers and therefore "the lack of control of pro se prisoners over delays extends much further than that of the typical civil litigant." 487 U.S. at 270-271, 273. It was the combination of Houston's incarceration and his pro se status that resulted in the "unique" holding of Houston -- a holding that rests not on equitable tolling but on a determination as to when a notice of appeal is "filed" by a prisoner whose only means of communication with the outside world is through prison officials. Houston is thus fully consistent with the decision of the court of appeals in this case. /9/ Petitioner's final contention (Pet. 15-16) is that "(e)quity principles have been invoked by the courts in many instances where a mechanical adherence to filing requirements would work a serious injustice." Of course this is so where the filing requirement is not jurisdictional, but equitable tolling "simply is not available when there are jurisdictional limitations." Pet. App. 20a. /10/ Jurisdictional deadlines inevitably produce harsh results in some cases. But such results are required by the strict jurisdictional prerequisites imposed by Congress. See Torres v. Oakland Scavenger Co., 487 U.S. 312, 318 (1988) (quoting Schiavone v. Fortune, 477 U.S. 21, 31 (1986)). /11/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT P. DAVIS Solicitor of Labor ALLEN H. FELDMAN Associate Solicitor STEVEN J. MANDEL Deputy Associate Solicitor BARBARA J. JOHNSON Counsel for Black Lung Appellate Litigation PAUL L. FRIEDEN Attorney Department of Labor JUNE 1990 /1/ "The deputy commissioner is that official of the (Division of Coal Mine Workers' Compensation in the Office of Workers' Compensation Programs) or his designee who is authorized to perform functions with respect to the development, processing, and adjudication of claims in accordance with this part." 20 C.F.R. 725.350(b). /2/ The letter noted that "(i)t is unclear whether the Court will consider your appeal * * *." Pet. App. 30a. /3/ On November 18, 1988, a panel of the court of appeals issued a decision holding that it had jurisdiction to consider the merits of the case, reversing the Board's decision, and remanding for additional proceedings. In response to the Director's petition for rehearing and suggestion for rehearing en banc, the same panel ordered the Clerk to vacate the decision, and the case subsequently was argued en banc. /4/ The court found no merit in petitioner's argument that the term "filing" in the phrase "(u)pon such filing, the court shall have jurisdiction" in Section 21(c) applies to the Board's filing of the record with the court, rather than to the filing of the petition for review itself. The court stated that "(i)t is the notice of appeal, or petition for review, filed by the party seeking appeal or review, that confers jurisdiction upon the court, not the inferior tribunal's compliance with the order to file the record." Pet. App. 14a-15a. /5/ The court noted (Pet. App. 23a-24a) that the Federal Courts Improvement Act of 1982, 28 U.S.C. 1631, is of no help to petitioner. When an appeal from an administrative decision is timely filed in the wrong "court," the Act permits transfer to a court in which the appeal may be taken. But the statutory definition of "court" does not include an administrative agency (see 28 U.S.C. 610), and therefore does not include the Benefits Review Board. /6/ The court's decision also is consistent with Fed. R. App. P. 26(b), which prohibits the courts of appeals from enlarging the time prescribed by law for filing a petition for review of an order of an administrative agency, "except as specifically authorized by law." /7/ Petitioner renews his argument that "(t)he word 'filing' in the phrase, '(u)pon such filing,' * * * was intended to refer to the Board's filing of the record * * * and not the filing of a petition for review which appears much earlier in the section." Pet. 19. The court of appeals properly concluded that it is a party's filing of a notice of appeal that confers jurisdiction upon the court rather than the filing of the record by the lower tribunal. Pet. App. 14a-15a; see note 4, supra. As this Court has stated "(t)he filing of a notice of appeal is an event of jurisdictional significance -- it confers jurisdiction on the court of appeals." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). /8/ In both Zipes and Bowen, the Court looked to the remedial nature of the statutes at issue only after determining that the filing requirement was not framed in jurisdictional terms. 455 U.S. at 397-398; 476 U.S. at 480. Thus there is no basis for petitioner's contention (Pet. 17) that a court may look to the remedial nature of a statute "irrespective of apparently mandatory language chosen by Congress." /9/ Fallen v. United States plainly does not support petitioner's position. In Fallen, as in Houston, the appellant was a prisoner. In addition, there was no jurisdictional statute at issue in that case, and an applicable Federal Rule of Criminal Procedure stated that the rules were intended to provide for "the just determination of every criminal proceeding." 378 U.S. at 142. See Houston, 487 U.S. at 281 (Scalia, J., dissenting). /10/ Not surprisingly, none of the cases petitioner cites (Pet. 16) as examples of equitable relief from strict filing requirements involved judicial tolling of a jurisdictional provision. /11/ The court of appeals noted that petitioner may be entitled to black lung benefits if he files a new claim and demonstrates a "material change in (his) condition." Pet. App. 22a n.10 (quoting 20 C.F.R. 725.309(d)). The court observed that petitioner's original claim was filed in 1980, and that "it is well recognized medically that pneumoconiosis is a progressive disease whose symptoms increase in severity over time." Pet. App. 22a n.10.