Sunday, February 16, 2020

A noteworthy ruling in Washington

The U.S. Court of Appeals for the District of Columbia Circuit has handed down Jackson v. Modly, ___ F.3d __, No. 18-5180 (D.C. Cir. Feb. 14, 2020). In a unanimous decision, the panel (per Karen LeCraft Henderson, J.), made several important rulings. First, military personnel are not entitled to sue in federal court under Title VII of the 1964 Civil Rights Act. (The appellant here had served in the Marine Corps from 1977 to 1991.) This has been the unanimous view of other circuits, but the D.C. Circuit had never squarely addressed the point. The panel's analysis is meticulous and different in some respects from those of other courts, but the bottom line is the same: no dice. Second, the panel held, in accordance with United States v. Kwai Fun Wong, 575 U.S. 402 (2015), and contrary to the D.C. Circuit's precedents, that the doctrine of equitable tolling applies to civil actions against the government that would otherwise be time-barred under the six-year statute of limitations (28 U.S.C. § 2401(a)). Thus, to the extent that the appellant's claim seemed to come within the Administrative Procedure Act, it was not jurisdictionally barred. Nonetheless, the panel found that he had failed to make out a sufficient case to warrant equitable tolling. Third, the panel held that it lacked jurisdiction over his Military Pay Act claim, since appeals in such cases are subject to the exclusive appellate jurisdiction of its sister court, the U.S. Court of Appeals for the Federal Circuit. All of this seems entirely predictable, and helps to resolve any lingering doubts on these issues.

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