Kirkendall v. Department of Army

Decision Date07 March 2007
Docket NumberNo. 05-3077.,05-3077.
Citation479 F.3d 830
PartiesJohn E. KIRKENDALL, Petitioner, v. DEPARTMENT OF the ARMY, Respondent.
CourtU.S. Court of Appeals — Federal Circuit

Thomas Dupree, Jr., Gibson, Dunn & Crutcher LLP, of Washington, DC, argued for petitioner. With him on the brief were Theodore B. Olson, and Henry C. Whitaker.

Kathryn A. Bleecker, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With her on the brief were Peter D. Keisler, Assistant Attorney General, and David M. Cohen, Director. Of counsel was Donald E. Kinner, Assistant Director.

Edward R. Reines, Weil, Gotshal & Manges, LLP, of Redwood Shores, California, for amici curiae Disabled American Veterans, et al. With him on the brief were Jeffrey G. Homrig and Sonal N. Mehta. Of counsel on the brief were Ronald L. Smith, Disabled American Veterans, and Barton F. Stichman, National Veterans Legal Services Program, Inc., of Washington, DC.

Jeffrey A. Gauger, Attorney, Office of the General Counsel, United States Merit Systems Protection Board, of Washington, DC, for amicus curiae United States Merit Systems Protection Board. With him on the brief were Martha B. Schneider, General Counsel, and Rosa Koppel, Deputy General Counsel.

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, Circuit Judge, filed a concurring opinion, in which NEWMAN, Circuit Judge, and PLAGER, Senior Circuit Judge, join. MOORE, Circuit Judge, filed an opinion concurring 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 LOURIE, RADER, 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 Uniformed Services Employment and Reemployment Rights Act ("USERRA"), 38 U.S.C. § 4311 (2000). Kirkendall 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.


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 indicated, 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 sufficient detail regarding his experience and rated him ineligible for the position. Kenneth Black, also a 10-point preference eligible 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 disability. On November 29, 2001, DoL rejected the complaint 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 Kirkendall'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 reversed 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 Secretary of Labor set forth in 5 U.S.C. § 3330a(a)(2)(A) subject 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


Preliminarily, we find no merit in the government's suggestion that DoL's rejection of Kirkendall's complaint as untimely under 5 U.S.C. § 3330a(a)(2)(A) constitutes 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 reasons the Court found the underlying timeliness requirement 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 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."); 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, despite the possibility of tolling, and conflict with the "strong presumption that Congress intends judicial review 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 convincing evidence of Congressional intent to the contrary."). 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 Supreme 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 required; 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) ("Litigation against the United States exists because Congress has enacted legislation creating rights against the Government, often in matters peculiar to the Government's engagements with private persons-matters such as the administration of benefit programs. Because many statutes that create claims for relief against the United States or its agencies apply only to Government defendants, 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 equitable tolling, the Court recognized that once the government has consented to be sued through a waiver of sovereign immunity, "making the rule of...

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