John E. KIRKENDALL, Petitioner, v. DEPARTMENT OF THE ARMY, Respondent, 412 F.3d 1273

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-3443-02-0622-1-1, 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 Kirk-endall 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 Eligibles as required by subsection 3330a(a)(2)(A). Second, he failed to appeal DoL’s determination to the board within 15 days as required by subsection 3330a(d)(l)(B).

In response, Kirk-endall 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 Kirken-dall’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)(l)(

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 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 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 National Childhood Vaccine 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)(l)(

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) 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 obtaining 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

interpretation, Congress understood the availability of the Irwin presumption, which was well established by 1998 when the VEOA was adopted. We farther 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 “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 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 Brock-amp 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 remand, the board is instructed to assess whether Kirkendall’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. The board explained in a footnote that it has discretion in USER-RA 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. § 4324 refers to USERRA claims as “complaints,” not as “appeals,” and therefore 5 U.S.C. § 7701(a), 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 contradicts 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 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 involve a lower tribunal, such as a district court, yet they clearly involve an initial decision maker distinct from the board. In the same way, USER-RA 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 appealed 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 memorializing 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 US-ERRA claimants as “appellants” no fewer than fourteen times. And, as noted in Metzenbaum, 240 F.3d at 1071, the board intentionally included USERRA claims in its appellate jurisdiction. 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 reversed. The case is remanded for further proceedings consistent with this opinion. COSTS John E. Kirkendall shall have his costs. REVERSED AND REMANDED . While it is unclear when Kirkendall filed his complaint with DoL, it is undisputed that he failed to satisfy the 60-day deadline. . 5 U.S.C. § 3330a(a)(2)(

A) states that “[a] complaint under this subsection must be filed within 60 days after the date of the alleged violation.” .5 U.S.C. § 3330a(d)(l)(

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&emdash;... (

B) later than 15 days after the date on which the complainant receives written notification from the Secretary under subsection (c)(2).” . 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 commenced in accordance with the rules of the Court of International Trade within sixty days after the date of notice of such determination.” (emphasis added). . 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 obligation.'' . 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). .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'&emdash;(1) to a hearing for which a transcript will be kept; and (2) to be represented by an attorney or other representative.” (emphasis added). . 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 Metzenbaum 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).”).