[00:00:00] Speaker 04:
Case number 22-5093.

[00:00:03] Speaker 04:
Adam Robinson, Appellate versus Department of Permanent Security, Office of International General.

[00:00:09] Speaker 04:
Ms.

[00:00:09] Speaker 04:
Cooney for the event, Ms.

[00:00:10] Speaker 04:
Lyons for the appellate.

[00:00:14] Speaker 03:
Professor Wolfman, good morning.

[00:00:17] Speaker 00:
Good morning, Your Honors.

[00:00:18] Speaker 00:
I'm Brian Wolfman for Appellant Adam Robinson, and I'm pleased to introduce Kara Cooney, Student Counsel in the Georgetown Appellate Reports Immersion Clinic, who will present argument this morning.

[00:00:30] Speaker 03:
Thank you.

[00:00:40] Speaker 01:
May it please the court.

[00:00:41] Speaker 01:
I would like to reserve two minutes of my time for a bottle.

[00:00:45] Speaker 01:
King B. Dole is clearly incorrect and should be overruled.

[00:00:48] Speaker 01:
This court should then grant Mr. Robinson equitable tolling because his one day late filing was caused by the misinformation from the district court clerk that filing deadlines were not being strictly enforced due to the pandemic.

[00:01:00] Speaker 01:
Absent a clear statement from Congress, statutory time limits running against the government are non-jurisdictional and presumptively subject to equitable tolling.

[00:01:09] Speaker 01:
The instruction in Section 7703B2 that claims must be filed within 30 days is a quintessential claim processing rule that merely instructs the litigant to take a certain step by a specified time.

[00:01:23] Speaker 01:
This mirrors the provisions found non-jurisdictional in Irwin 30 years ago, in Beckler last term, and in Wilkins just last month.

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And four other circuit courts that have expressly addressed Section 7703B2 have determined that it is a non-jurisdictional claim processing rule.

[00:01:42] Speaker 01:
This court should follow the approach it took in Jackson v. Modley

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when it overruled a longstanding precedent holding a statute of limitations as jurisdictional in light of intervening Supreme Court cases and Sister Circuit precedent.

[00:01:57] Speaker 05:
For it to be considered non-jurisdictional, if we were to go that route, do we have to then also indicate that it's a claim processing group?

[00:02:04] Speaker 05:
Or can we just stop it whether it's jurisdictional?

[00:02:07] Speaker 01:
So once it's determined that it's non-jurisdictional, the Supreme Court has set up

[00:02:14] Speaker 01:
two different options that is in Hamer.

[00:02:17] Speaker 01:
It explains that either a rule is jurisdictional and that when it comes to time limits, the only rules that are jurisdictional are those that transfer adjudicatory authority from one Article III court to another, whereas other time limits that govern transfer of authority from non-Article III courts to an Article III court are claim processing rules.

[00:02:42] Speaker 01:
So it has set up two different options between jurisdictional and claim processing rules.

[00:02:48] Speaker 01:
It could still be mandatory, but it would be a claim processing rule.

[00:02:53] Speaker 01:
And that is what the court determined in Jackson v. Modley when it used an iron's footnote to overrule that prior precedent before it turned to equitable tolling, which if there are no further questions regarding jurisdiction, I will now turn to.

[00:03:06] Speaker 02:
So the claim processing is not jurisdiction.

[00:03:13] Speaker 02:
Correct?

[00:03:14] Speaker 02:
Yes, Your Honor.

[00:03:15] Speaker 02:
And claims processing hasn't been raised at all by government in this case.

[00:03:21] Speaker 02:
So that argument is not even before us, is it?

[00:03:25] Speaker 01:
So the government raised below whether or not the claim was... Raised it in its brief here?

[00:03:30] Speaker 01:
Sorry, excuse me?

[00:03:31] Speaker 02:
Did it raise it in its brief here?

[00:03:33] Speaker 01:
It did not raise it in its brief here.

[00:03:34] Speaker 02:
It hasn't mentioned claims processing, so that issue just isn't before us.

[00:03:38] Speaker 01:
No, Your Honor.

[00:03:38] Speaker 01:
Thank you.

[00:03:42] Speaker 01:
I will now turn to equitable tolling.

[00:03:44] Speaker 01:
Equitable tolling is warranted on this record.

[00:03:46] Speaker 02:
I'm sorry, can I back you up on one thing?

[00:03:47] Speaker 02:
Yes.

[00:03:48] Speaker 02:
I apologize.

[00:03:49] Speaker 02:
On the jurisdictional argument, the government argues that the provision issued here has a notwithstanding clause to introduce it.

[00:04:00] Speaker 02:
And that's different from other examples where time limits have been found to be non-jurisdictional.

[00:04:09] Speaker 02:
What is your response to that?

[00:04:10] Speaker 01:
So the notwithstanding clause does not turn the provision into a jurisdictional hurdle because it does not speak in jurisdictional terms or to the power of the courts, which is what the Supreme Court has instructed is required for a jurisdictional rule in Kwai Fen Wong and in several other cases.

[00:04:27] Speaker 01:
The types of language that is jurisdictional is something along the lines of the tax court shall have jurisdiction, which is what the Supreme Court discussed in Bentley.

[00:04:35] Speaker 01:
There is no comparable jurisdictional language in section 7703B2.

[00:04:42] Speaker 01:
This court should then grant Mr. Robinson equitable tolling because within only a 30-day filing period that began and ended during the COVID-19 pandemic, Mr. Robinson prepared a full federal complaint demonstrating that he was diligently pursuing his rights and it was the misinformation from the district court clerk that created an extraordinary circumstance standing in his way.

[00:05:03] Speaker 05:
But can an individual in a clerk's office overrule essentially any standing order by that clerk's office?

[00:05:12] Speaker 01:
No, and we do not argue that the district court overruled the standing order, which did not itself all statute limitations, but it also did not abrogate equitable tolling where it would otherwise be available.

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I would also note that the standing order instructed that litigants with emergency filing should call the clerk's office for further information.

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And it is reasonable for a pro se litigant in Mr. Robinson's position to have thought that that suggested when he only had a few days left before the filing deadline to call the clerk.

[00:05:41] Speaker 01:
And then the clerk informed him filing deadlines were not being strictly enforced.

[00:05:45] Speaker 05:
But aren't we also looking at extraordinary circumstances here, you know, for the equitable tolling argument?

[00:05:50] Speaker 05:
You have recent problems, their diligence, and then the extraordinary circumstances.

[00:05:56] Speaker 05:
But here, what would you say was outside of the litigant's control?

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to get to that extraordinary circumstance?

[00:06:03] Speaker 01:
Yes, it was the misinformation from the district court clerk's office that finally deadlines were not being strictly enforced.

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And so that information, it was reasonable for a pro se litigant, as many of the courts have recognized, to rely and believe information from a government official or district court clerk.

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And when that information is misleading or inaccurate, it may be sufficient to create an extraordinary circumstance out of his control.

[00:06:28] Speaker 02:
And the DC District Court recently recognized that in a case, Feral v. Fudge, which we cited at page 18 of our- A lot of the courts of appeals, though, have held that misinformation from a government official, while it might bear on diligence, is not itself an extraordinary circumstance.

[00:06:45] Speaker 02:
I had taken from your brief that it was COVID situation.

[00:06:51] Speaker 02:
And that's what necessitated calling the clerks off.

[00:06:55] Speaker 02:
And in fact, the standing order, the very one the government relies on, instructed people who were not going to be filed during the daytime.

[00:07:05] Speaker 02:
If you weren't filing after hours, you can't use the drop box.

[00:07:08] Speaker 02:
They were instructed to call the clerk's office for directions on how to make their filing.

[00:07:15] Speaker 02:
That's what the standing order said.

[00:07:17] Speaker 02:
And since presumably he wasn't planning to file it at midnight and use the drop box, he was trying to find out how to file

[00:07:25] Speaker 02:
in the daylight hours, and that it was that aspect of the COVID situation where the standing order told him, you can't use the drop box.

[00:07:34] Speaker 02:
You've got to get directions from the clerk's office.

[00:07:38] Speaker 02:
And so the COVID emergency situation that was causing the extraordinary circumstance.

[00:07:43] Speaker 01:
COVID is relevant to the evaluation, and the court should consider the full set of circumstances.

[00:07:48] Speaker 01:
But it was the clerk's misinformation that creates the extraordinary circumstance.

[00:07:52] Speaker 02:
But it was a COVID situation that instructed him to talk to the clerk's office to figure out how to make a filing.

[00:07:58] Speaker 02:
Yes.

[00:07:59] Speaker 02:
Because he couldn't use the Dropbox during business hours.

[00:08:02] Speaker 01:
So what the standing order actually said was that litigants with emergency filings should call the clerk's office for further instructions.

[00:08:10] Speaker 01:
And that is what, assuming Mr. Robinson had learned this.

[00:08:13] Speaker 02:
Well, it also said that there's a Dropbox we use after hours, or with the clerk's office closed.

[00:08:19] Speaker 02:
Yes.

[00:08:20] Speaker 02:
But the Dropbox cannot be used

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during business hours.

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Instead, you should call the clerk's office for directions.

[00:08:29] Speaker 01:
Yes, Your Honor.

[00:08:29] Speaker 01:
That is what Mr. Robinson did.

[00:08:31] Speaker 01:
He called the clerk's office for further instruction, and then the clerk's office informed him that filing deadlines were not being strictly enforced, which is what caused him to then mail his complaint.

[00:08:41] Speaker 01:
And as the government recognizes at page 26 of its brief,

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quote, the most that can be said of the evidence in the record is that the clerk statement convinced Robinson that he can mail the pleading and risk it being a day or two or more late without consequence.

[00:08:55] Speaker 03:
Didn't the clerk also say just get it in?

[00:09:00] Speaker 03:
Just get it in here.

[00:09:00] Speaker 01:
The clerk said, and this is at JA 59, that it's most important just to file.

[00:09:05] Speaker 01:
And so we think that Mr. Robinson, even though the clerk had said that filing deadlines were not being strictly enforced, the fact that he then chose to mail it that same day demonstrates that he continued to diligently pursue his rights.

[00:09:17] Speaker 01:
However, the government, as it concedes, the clerk had convinced Mr. Robinson there would be no adverse consequences by mailing it.

[00:09:25] Speaker 01:
And as the court has recognized in many other cases,

[00:09:28] Speaker 01:
justifiable reliance on a representation from a government official may be sufficient to warrant equitable tolling.

[00:09:34] Speaker 03:
But how much does he need?

[00:09:35] Speaker 03:
Is there anything in the record that indicates he could not have done this electronically, which is what 99.9% of people do now?

[00:09:44] Speaker 01:
No, Your Honor, but I would reiterate that Mr. Robinson does not bear the burden of showing what other paths he could have taken.

[00:09:51] Speaker 01:
He really needs to show that it was the extraordinary circumstance that caused the delay.

[00:09:55] Speaker 01:
That was in the standing order.

[00:09:57] Speaker 03:
the option of doing it by e-file.

[00:10:00] Speaker 03:
That was in the standing order.

[00:10:01] Speaker 01:
Yes, but what was also in the standing order was the instruction to call the clerk's office.

[00:10:05] Speaker 01:
And that is what Mr. Robinson did.

[00:10:07] Speaker 01:
And he then received misinformation that resulted in him mailing the complaint and caused the untimely.

[00:10:14] Speaker 05:
And not to at all impugn Mr. Robinson's integrity or his character.

[00:10:19] Speaker 05:
But one of the things that concerns me is kind of this being a floodgates case from the standpoint that everybody could say, I called the clerk's office, but I don't, how much cooperation do we need?

[00:10:30] Speaker 05:
For example, a date stamp on that he actually had a postmark for that day.

[00:10:35] Speaker 05:
He actually put it in the mail because you got to check that's a couple of days later.

[00:10:39] Speaker 05:
And so how much more cooperation would we need other than just saying, I called the clerk's office, um, ignore the standing order because an individual,

[00:10:48] Speaker 05:
essentially trumps a written standing order out of the clerk's office.

[00:10:52] Speaker 01:
So Mr. Robinson did include at J-59 a reference to the telephonic record of his call, which was heard at 10.13 a.m.

[00:10:59] Speaker 01:
in the morning.

[00:11:00] Speaker 01:
And I would note that at this stage, this was at the motion to dismiss stage, Mr. Robinson was entitled to all reasonable inferences drawn in his favor and the evidence viewed in the light most favorable to him.

[00:11:10] Speaker 01:
I would also say that a floodgates problem is not an issue here, because this is squarely within this court's existing precedent.

[00:11:17] Speaker 01:
In general, the US Postal Service, the court recognized, as I've mentioned before, that just the reasonable reliance on a government official may warrant equitable tolling.

[00:11:26] Speaker 01:
So we're not asking you to step beyond your existing precedent.

[00:11:29] Speaker 01:
And it aligns with recent DC district court decisions as well.

[00:11:34] Speaker 03:
Let me ask you, how do you read notwithstanding any other provision of law?

[00:11:39] Speaker 03:
What do you think that refers to?

[00:11:41] Speaker 01:
So we believe that notwithstanding any of the provision of law merely instructs the litigant that he should look at the filing period in section 7703B2, which is 30 days, as opposed to looking for a contrary filing period in any other provision, such as the 60-day filing period in section 7703B1 or the 90-day filing period applicable to Title VII claims.

[00:12:02] Speaker 01:
So it really instructs the litigant that the relevant filing period for a mixed case is that in 7703B2 and not to look elsewhere.

[00:12:11] Speaker 03:
Are you saying, because the way I read it is notwithstanding any new provision of law, you've got three other statutes directly above that which do have their own filing dates.

[00:12:27] Speaker 03:
I mean, it seems to me it's pretty clear that notwithstanding any other provision of law after you've cited three other provisions of law that have their own filing dates, that that's what you're talking about.

[00:12:37] Speaker 01:
Yes, Your Honor, exactly.

[00:12:38] Speaker 01:
So that is exactly our point.

[00:12:42] Speaker 03:
All right, we'll give you a couple of minutes in reply.

[00:12:44] Speaker 03:
Thank you so much.

[00:12:54] Speaker 03:
Ms.

[00:12:54] Speaker 03:
Lyons, you're a familiar face.

[00:12:59] Speaker 04:
Good morning, Your Honor.

[00:13:00] Speaker 04:
Nice to see you again.

[00:13:03] Speaker 04:
May it please the Court, I am Jane Lyons from the U.S.

[00:13:06] Speaker 04:
Attorney's Office, and I'm here on behalf of the Department of Homeland Security's

[00:13:10] Speaker 04:
Office of Inspector General.

[00:13:12] Speaker 04:
Can you all hear me?

[00:13:13] Speaker 04:
I don't feel right.

[00:13:16] Speaker 04:
Everything's okay?

[00:13:19] Speaker 04:
So what we're here talking about today is initiating a civil complaint, a civil action, which requires delivery of the complaint, a receipt of the complaint by the District Court's Clerk's Office.

[00:13:33] Speaker 04:
I think I'd like to start with the language of the

[00:13:37] Speaker 04:
District Court standing order, which has been discussed here at length this morning, and I think a bit incorrectly.

[00:13:44] Speaker 04:
The only direction for calling the clerk's office was for emergency or sealed violence.

[00:13:50] Speaker 04:
The first two sentences of paragraph eight of standing order 20-9 say, quote, the clerk's office will remain open, although public access will be restricted.

[00:14:01] Speaker 04:
Electronic filings through CMECF will remain available and, here's the important part, self-represented litigants may date stamp and deposit papers in drop boxes available at the entrance to the courthouse.

[00:14:14] Speaker 04:
In other words, there's no change for regular civil business in the courthouse.

[00:14:21] Speaker 04:
And even more importantly, in the paragraph immediately above that, paragraph seven, in bold and underlined language says,

[00:14:29] Speaker 04:
Statutes of limitations, unaffected.

[00:14:32] Speaker 04:
Order does not pull any applicable statute of limitations.

[00:14:37] Speaker 02:
And in this case, we know that Mr. Robinson- Did I misread or read something else when it said the drop box shouldn't be used during working hours?

[00:14:49] Speaker 04:
The drop box may not be used for emergency and sealed matters.

[00:14:55] Speaker 04:
That's where you're called to call for additional instructions, which I think one would fairly guess would mean if you have an emergency or sealed filing, we will meet you at the door and take it from you, would be my guess.

[00:15:07] Speaker 04:
I don't know.

[00:15:08] Speaker 04:
But this is not an emergency or a sealed matter.

[00:15:11] Speaker 04:
This is one of the most routine things that happens in a courthouse.

[00:15:15] Speaker 04:
Someone has to file a lawsuit.

[00:15:18] Speaker 04:
And the initiation of a lawsuit,

[00:15:23] Speaker 04:
under a deadline that Mr. Robinson knew from the notice he received from the Merit Systems Protection Board was statutory.

[00:15:32] Speaker 04:
Section 7703B appears in the notice.

[00:15:40] Speaker 04:
And so he knew the deadline.

[00:15:43] Speaker 04:
We have no disputes in this case about when the deadline was or what happened when.

[00:15:51] Speaker 04:
And the record shows he was ready to file on the same day he had the conversation with the clerk.

[00:15:56] Speaker 04:
And the district court correctly told that he did everything he was going to do to file that day, so the conversation doesn't appear to have made any difference in what he was doing.

[00:16:11] Speaker 04:
The clerk did not tell him to use the mail.

[00:16:14] Speaker 04:
The clerk said, in sum and substance, just file, don't hurry.

[00:16:20] Speaker 04:
File whenever you feel like.

[00:16:26] Speaker 04:
So there's the language in the notice, the clerk's statement saying it's more important to file.

[00:16:31] Speaker 02:
He didn't file whenever he felt like it.

[00:16:34] Speaker 02:
He filed from what he thought.

[00:16:37] Speaker 02:
He mailed it with four days from the suburb of Washington, D.C.

[00:16:43] Speaker 02:
The post office website itself would tell him it would be there within two days.

[00:16:47] Speaker 02:
He thought two days.

[00:16:48] Speaker 02:
The check was dated two days later.

[00:16:51] Speaker 02:
So this isn't a case of somebody who did it whenever he felt like it.

[00:16:55] Speaker 02:
The question was, in the middle of the worst time in the COVID pandemic, and the question is, do I need to go drive into DC and either go into a building or interact with other people, or can I just put a stamp and put it in the mailbox?

[00:17:11] Speaker 02:
And when I'm told just file and be lawyers, we know, you know, file that can have different combinations.

[00:17:18] Speaker 02:
What does that mean?

[00:17:18] Speaker 02:
Sometimes mailing is filing, sometimes it's not, but he is pro se.

[00:17:23] Speaker 02:
So this isn't, I mean, this isn't someone who wasn't diligent.

[00:17:27] Speaker 02:
I understand you're arguing about extraordinary circumstances, but he was not someone who was taken his.

[00:17:32] Speaker 02:
time and most of us would think if you mail something from the suburbs and into DC that it's it's going to get there within four days.

[00:17:43] Speaker 04:
Perhaps during ordinary times your honor but I think the pandemic sheds a different

[00:17:49] Speaker 02:
view of that.

[00:17:50] Speaker 02:
So the pandemic is an extraordinary circumstance from the government's perspective, but not his?

[00:17:55] Speaker 04:
No, that's not what I'm arguing.

[00:17:56] Speaker 02:
I'm arguing that as Young versus SEC... Was the mail slowed down?

[00:18:01] Speaker 02:
I don't even remember that.

[00:18:02] Speaker 02:
I don't remember that part of it.

[00:18:04] Speaker 04:
I don't remember what I remember from that time, honestly, Your Honor, is that I used to collect mail out of the mailbox and leave it in a box for three or four days before I touched it, because we were afraid we'd get COVID from the mail.

[00:18:15] Speaker 04:
Maybe the clerk's office did the same thing.

[00:18:16] Speaker 04:
No, there's no evidence to suggest that on the record.

[00:18:19] Speaker 04:
A party is in Young versus SEC, the court held that when a party's lulled into missing a deadline, missing a formal deadline by a court order or a ruling,

[00:18:34] Speaker 04:
But that doesn't apply to statements made by the clerk's office staff.

[00:18:38] Speaker 04:
That's something the court has ruled as sort of out of bounds to rely on to excuse what you're doing.

[00:18:44] Speaker 04:
And Houston v. Lack in the Supreme Court case, Houston v. Lack, the Supreme Court talks about why there's a need for the prisoner mailbox rule, why prisoners can't do it.

[00:18:54] Speaker 04:
And the reason it ultimately is, they can't rescue themselves if there's a last minute problem.

[00:18:59] Speaker 04:
If they mail something in and it isn't or hasn't arrived as expected,

[00:19:04] Speaker 04:
they can't rescue themselves.

[00:19:06] Speaker 04:
And the real issue with Mr. Robinson's record here is that he has not made any additional efforts after he's mailed to ensure the timely receipt.

[00:19:18] Speaker 04:
He doesn't say that he checked his bank account to see if the cash was checked.

[00:19:23] Speaker 04:
He doesn't say that he ever considered going to the clerk's office at the last minute on Thursday or Friday

[00:19:31] Speaker 04:
with another copy of the complaint to make sure it was in on time.

[00:19:35] Speaker 04:
And that's what reasonably diligent people would do.

[00:19:38] Speaker 02:
People allowed to go into the clerk's office at that time because of COVID?

[00:19:42] Speaker 02:
Pardon me?

[00:19:42] Speaker 02:
Were people allowed to physically enter the clerk's office at that time?

[00:19:45] Speaker 04:
People were allowed to enter the clerk, not the clerk's office, the courthouse to put things in the drop box, which is the same thing.

[00:19:51] Speaker 02:
I know, but he thought this was an emergency filing, he's pro se.

[00:19:55] Speaker 02:
He was told not to do that.

[00:19:56] Speaker 02:
That's the confusion here.

[00:19:58] Speaker 04:
He was not told not to use the court's drop box, Your Honor.

[00:20:01] Speaker 02:
He was.

[00:20:01] Speaker 02:
If he thought it was an emergency filing, he's like, he's thinking, I've got only a few days.

[00:20:06] Speaker 02:
Maybe he doesn't know what an emergency filing is.

[00:20:08] Speaker 04:
Well, maybe, but the gaps in the record shouldn't be filled in by this kind of speculation.

[00:20:14] Speaker 02:
Well, should they?

[00:20:15] Speaker 02:
Are we at the 12-by-6 stage here?

[00:20:19] Speaker 04:
No, that is not the proper standard to evaluate.

[00:20:22] Speaker 04:
In carrying a burden,

[00:20:24] Speaker 04:
And there must be some evidence.

[00:20:26] Speaker 02:
We evaluate burdens all the time differently.

[00:20:29] Speaker 02:
We evaluate the burden to state a claim at 12b6 differently than we evaluate the burden to sustain a claim at summary judgment.

[00:20:37] Speaker 02:
I'm not changing the burden here.

[00:20:39] Speaker 02:
I'm just saying, do we need to make inferences at this stage until there's more information?

[00:20:44] Speaker 04:
No, Your Honor.

[00:20:45] Speaker 04:
I don't believe so.

[00:20:46] Speaker 04:
The burden here is of a showing.

[00:20:48] Speaker 04:
to carry a burden of proof that- Sure, complaints have to show a claim, and we do that differently.

[00:20:54] Speaker 02:
This is not about the complaint.

[00:20:55] Speaker 02:
No, no, no, but I'm saying that show doesn't make a difference here.

[00:20:58] Speaker 02:
The question is how much you have to show at the preliminary 12b6 stage as opposed to, say, summary judgment after there's discovery and development of a full record.

[00:21:08] Speaker 02:
I mean, district courts would be well within their discretion to say, all right, time out, let's just figure out, before we go any further,

[00:21:15] Speaker 02:
let's find out exactly what was going on for this equitable tolling claim and have, I don't know if he needs discovery, if you all needed to ask some questions or interrogations to get the record fleshed out.

[00:21:26] Speaker 02:
If he wants to have a chance to flesh the record out more, then that can all get resolved.

[00:21:31] Speaker 04:
This is, this is the kind of issue that's typically resolved at the, at the outset of the case.

[00:21:37] Speaker 04:
It is a,

[00:21:39] Speaker 04:
defense that was a very factual one that says it's going to make for the fact that all in the possession of Mister Robinson that matter.

[00:21:47] Speaker 04:
And he had the opportunity to provide them he had the assistance of counsel to provide a second declaration here.

[00:21:54] Speaker 02:
But we need to take how do we view those facts and the reasonable inferences from them that's what I'm asking you you review these facts to see if they establish the burden of.

[00:22:04] Speaker 02:
And take reasonable inferences from them in his favor.

[00:22:07] Speaker 04:
I don't believe he is entitled to reasonable inferences, but not too far.

[00:22:12] Speaker 04:
They have to be well supported to show reasonable diligence and extraordinary circumstances shown to have prevented timely filing.

[00:22:20] Speaker 02:
And I know- Have we held that you don't take reasonable inferences at this stage?

[00:22:25] Speaker 02:
Not to change the burden, but just to determine whether the burden is met.

[00:22:30] Speaker 02:
That's all I'm asking.

[00:22:31] Speaker 02:
Have we held that for other courts?

[00:22:33] Speaker 04:
I don't think we have a clear ruling on exactly that.

[00:22:37] Speaker 04:
Sometimes in this sort of situation, there's a presumption, but there are no real presumptions that apply in this context.

[00:22:45] Speaker 02:
Did you have any arguments on the... We don't have to get to equitable tolling if there's not jurisdiction.

[00:22:54] Speaker 04:
I didn't know if you were just resting on your brief on that or had... No, I'd be happy to address that.

[00:23:00] Speaker 04:
I just wanted to make sure I didn't want to say anything else.

[00:23:03] Speaker 04:
on the equitable tolling.

[00:23:08] Speaker 04:
Our basic position on the equitable tolling is nothing thwarted his efforts, his reasonable efforts to get the complaint there on.

[00:23:16] Speaker 04:
Turning to the King versus Dole argument, that's what you're asking me about, correct?

[00:23:23] Speaker 04:
There are a number of reasons for

[00:23:26] Speaker 04:
not using the express lane for on-bound consideration.

[00:23:32] Speaker 04:
First, the court's already rejected it in full in this case, and there are good reasons for that.

[00:23:40] Speaker 04:
I have to be careful today to keep my job, because only the Solicitor General of the United States is able to present arguments

[00:23:46] Speaker 04:
And the Solicitor General has not approved any of the arguments I wrote up in draft briefs for presentation to the court.

[00:23:55] Speaker 04:
But I would say, because I was also the lawyer in Jackson versus Motley the last time you used the lawyer's foot.

[00:24:00] Speaker 04:
So maybe there's a set of steak knives in my future, but this time I won't talk about it.

[00:24:07] Speaker 04:
The court has emphasized that the CSRA is a particularly comprehensive remedial scheme.

[00:24:16] Speaker 04:
And Congress was unusually intentional in creating and depriving people of rights that can be seen to be in somewhat similar situations.

[00:24:25] Speaker 04:
And of course, I refer to the court to cases like file bark versus Department of Transportation, Fornaro versus James.

[00:24:31] Speaker 04:
These are familiar.

[00:24:33] Speaker 04:
Here, administering this statute, Judge Henderson, you were looking at the different sections of an immediately preceding language.

[00:24:43] Speaker 04:
There is no doubt that today under

[00:24:45] Speaker 04:
One of the previous sections in the Federal Circuit, Mr. Robinson, his claim would have been dismissed for untimeliness because the Federal Circuit is regarding its own time limitation as jurisdictional.

[00:25:00] Speaker 04:
Um, and so there's a, there's a fairness across the application of the CSRA here.

[00:25:07] Speaker 04:
Um, of course, I already say this, the court should have the benefit of the solicitor general's views on why this should happen.

[00:25:15] Speaker 02:
Um, but I'm just a little confused on what we need the solicitor general's views on.

[00:25:21] Speaker 04:
You need the solicitor general's views on whether to, uh, overrule King versus Dole.

[00:25:27] Speaker 04:
The benefit that you will get from a fully articulated and considered thing.

[00:25:32] Speaker 02:
The Solicitor General doesn't usually get involved as Apple East at the Apple East stage.

[00:25:38] Speaker 04:
Correct.

[00:25:39] Speaker 04:
The Solicitor General's office becomes involved when there is a petition for a hearing.

[00:25:44] Speaker 04:
And we are asked to initially provide a response to a petition, and then they typically are involved beyond that.

[00:25:54] Speaker ?:
OK.

[00:25:55] Speaker 04:
The other reason to be cautious here is that just the fact alone of whether the provision is jurisdictional is not the end of the inquiry in terms of equitable tolling, because Supreme Court has more recently, including in January of this year in Arolano versus McDonough, recognized that equitable tolling can be disallowed in even non-jurisdictional provisions.

[00:26:19] Speaker 04:
So even solving the jurisdictional issue doesn't

[00:26:22] Speaker 04:
necessarily in the inquiry here.

[00:26:23] Speaker 02:
Do you think there's anything in the language here that would foreclose application of equitable tolling?

[00:26:28] Speaker 04:
I believe that notwithstanding any other provision of law, language could be read to include the doctrine of equitable tolling.

[00:26:34] Speaker 04:
The doctrine of equitable tolling has existed longer than the Civil Service Reform Act, and it is at least possible that it is swept within that language.

[00:26:42] Speaker 04:
Yes, Your Honor.

[00:26:42] Speaker 04:
And that language is particularly clear and emphatic because, and this was part of what the court in King versus Dole,

[00:26:50] Speaker 04:
It says, notwithstanding any other provision of law, any such case filed under any such section must be filed within 30 days.

[00:26:59] Speaker 04:
I mean, I know this is much like language and other statutes the Supreme Court has considered, but the Supreme Court considered this very provision in Lindahl and at least has not come back.

[00:27:10] Speaker 02:
And in terms of how often this comes up- I also considered it in Kleppner and said it's just a plain old time of filing provision.

[00:27:18] Speaker 02:
Klechner versus Solis.

[00:27:19] Speaker 02:
I'm saying Klechner, right, versus Solis.

[00:27:20] Speaker 02:
It's just plain old routine, ordinary time of filing provision.

[00:27:28] Speaker 04:
There's been a lot of writing on these issues.

[00:27:30] Speaker 02:
The statute for sure, for sure.

[00:27:32] Speaker 02:
It's a messy statute.

[00:27:33] Speaker 04:
And it's worth the benefit of a very careful consideration before overturning both this court's precedent and recognizing that Lindahl may have been overcome.

[00:27:48] Speaker 04:
have any further questions.

[00:27:50] Speaker 05:
No thank you.

[00:27:51] Speaker 04:
We respectfully ask that you affirm and not use an iron skill.

[00:27:56] Speaker 03:
Thank you.

[00:27:58] Speaker 03:
Ms.

[00:27:58] Speaker 03:
Cooney why don't you take two minutes.

[00:28:08] Speaker 03:
Thank you.

[00:28:10] Speaker 01:
Very quickly, despite the notwithstanding language, I would like to note that four other circuits have determined post-Erwin that equitable tolling is appropriate for Section 7703B2.

[00:28:20] Speaker 01:
Regarding the equitable tolling issue, the pandemic is relevant here because it renders Robinson's conduct reasonable, and he has met his burden of showing that the misleading information caused him to put the complaint in the mail.

[00:28:34] Speaker 01:
The government is free to prove otherwise with additional evidence on summary judgment

[00:28:40] Speaker 01:
I'm happy to address any further questions you may have.

[00:28:44] Speaker 01:
Thank you.