Kirkendall v. Department of Army

Decision Date22 June 2005
Docket NumberNo. 05-3077.,05-3077.
Citation412 F.3d 1273
PartiesJohn E. KIRKENDALL, Petitioner, v. DEPARTMENT OF THE ARMY, Respondent.
CourtU.S. Court of Appeals — Federal Circuit

John E. Kirkendall, of Floral City, Florida, pro se.

Gerald M. Alexander, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With him on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, and Donald E. Kinner, Assistant Director.

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

Opinion for the court filed by Circuit Judge MAYER. Dissenting 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 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, 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 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 resumé 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 resumé 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 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 Kirkendall 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 veteran 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 motivating 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 indefiniteness 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 jurisdiction 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) subject to equitable tolling; (2) is the 15-day filing deadline contained in 5 U.S.C. § 3330a(d)(1)(B) subject to equitable tolling; and (3) are veterans entitled to a hearing regarding their USERRA claims. Because each of these questions involves the interpretation of a statute, we review 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 presumption 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] 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 Serv., 240 F.3d 1367, 1372 (Fed.Cir.2001).

There can be little doubt that Kirkendall's employment 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 sufficiently similar to tort claims so as to invoke the Irwin presumption). We therefore begin our analysis by assuming 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 veteran 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 administrative remedies are not jurisdictional, but rather are subject 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 administrative 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 Occupational 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 & Harness, 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, Recovery, 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 therefore 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 subsection 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, section 3330a is not detailed. This is especially true in comparison with other administrative schemes held...

To continue reading

Request your trial
3 cases
  • Kirkendall v. Department of Army
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • March 7, 2007
    ...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......
  • Bell v. Rinchem Co.
    • United States
    • U.S. District Court — District of Massachusetts
    • February 11, 2016
    ...that an employee must file a complaint with the Secretary of Labor within 30 days of a violation." See Kirkendall v. Dep't of Army, 412 F.3d 1273, 1276 (Fed. Cir. 2005) (citing Donovan v. Hahner, Foreman & Harness, Inc., 736 F.2d 1421, 1424 (10th Cir. 1984)), reh'g and reh'g en banc granted......
  • Googerdy v. N.Car. Agr. and Technical State Univ., No. 1:04CV00212.
    • United States
    • U.S. District Court — Middle District of North Carolina
    • August 24, 2005
    ...be subject to tolling or estoppel because they have been held to resemble statutes of limitations, see, e.g., Kirkendall v. Department of Army, 412 F.3d 1273, 1276 (Fed.Cir.2005) (discussing circuit holdings, including those of the Fourth Circuit, subjecting federal statutes to equitable re......
1 books & journal articles
  • VACATUR PENDING EN BANC REVIEW.
    • United States
    • Michigan Law Review Vol. 120 No. 3, December 2021
    • December 1, 2021
    ...vacating en banc 277 F.3d 284 (8th Cir. 2002); Kirkendall v. Dep't of the Army, 159 F. App'x 193 (Fed. Cir. 2006), vacating en banc 412 F.3d 1273 (Fed. Cir. 2005); NantKwest, Inc. v. Matal, 869 F.3d 1327 (Fed. Cir.), vacating en banc 860 F.3d 1352 (Fed. Cir. (121.) See, e.g., Gary B. v. Whi......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT