Bernerd Young v. SEC ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 16, 2019 Decided April 28, 2020
No. 16-1149
BERNERD E. YOUNG,
PETITIONER
v.
SECURITIES AND EXCHANGE COMMISSION,
RESPONDENT
On Petition for Review of an Order of
the Securities & Exchange Commission
Minh Nguyen-Dang, appointed by the court, argued the
cause as amicus curiae for petitioner. On the brief was Brian
D. Netter, appointed by the court.
Bernerd E. Young, pro se, argued the cause and filed the
briefs for petitioner.
Dina B. Mishra, Senior Counsel, U.S. Securities and
Exchange Commission, argued the cause for respondent. With
her on the brief were Mark R. Freeman, Mark B. Stern, and
Daniel Aguilar, Attorneys, U.S. Department of Justice,
Michael A. Conley, Solicitor, U.S. Securities and Exchange
Commission, and Dominick V. Freda, Assistant General
2
Counsel. Lisa K. Helvin, Attorney, U.S. Securities and
Exchange Commission, entered an appearance.
Before: WILKINS, Circuit Judge, and WILLIAMS and
SENTELLE, Senior Circuit Judges.
Opinion for the court filed by Circuit Judge WILKINS.
Opinion concurring in the judgment filed by Senior Circuit
Judge WILLIAMS.
WILKINS, Circuit Judge: In 2012 the Securities and
Exchange Commission prosecuted Bernerd Young for multiple
securities violations based on his participation in a multi-billion
dollar Ponzi scheme between 2006 and 2009, during the height
of the financial crisis. After a hearing, an administrative law
judge (ALJ) found him liable on most of the charges and
imposed various penalties, including disgorgement of nearly
$600,000, which represented about half of the compensation he
received between 2006 and 2009. The Commission affirmed
the ALJ’s decision, and Young filed a petition for review.
However, he filed his petition in the District of Columbia Court
of Appeals, which is the wrong court. By the time he realized
his mistake and filed the petition in our Court, the sixty-day
deadline for filing had passed.
We do not pass upon whether the statutory time limit to
file a petition for review is jurisdictional and subject to
equitable tolling. Instead, we conclude that, even assuming it
is a non-mandatory claims processing rule, Young has failed to
demonstrate entitlement to equitable tolling. Filing a petition
for review in a state court that clearly lacks jurisdiction over
the petition does not toll the deadline for filing in our Court.
And because no extraordinary circumstance beyond his control
3
prevented him from timely filing in our Court, he is not entitled
to equitable tolling, and we must dismiss his petition.
I.
From 2006 to 2009, Bernerd Young was the Chief
Compliance Officer at Stanford Group Company (“SGC”).
SGC was an affiliate of Stanford Financial Group (“SFG”), a
network of companies controlled by Allen Stanford. Based in
Houston, SGC was a dually registered investment adviser and
broker-dealer that heavily marketed to U.S. investors so-called
“certificates of deposit” (“CDs”). These CDs were issued by
another SFG affiliate: Stanford International Bank Limited
(“SIB”), an offshore Antiguan bank established by Allen
Stanford. As Chief Compliance Officer, Young was
responsible for ensuring the accuracy of SGC’s statements in
promoting these CDs. The CDs, which accounted for 55.38%
of SGC’s revenue between 2006 and 2009, purported to be
“invested in diversified and liquid holdings” that generated
“consistent above-market returns” for investors. J.A. 166. In
fact, however, SIB was operating a Ponzi scheme.
SIB supported its CDs with “detailed marketing materials
and annual reports showing steady growth.” United States v.
Stanford, 805 F.3d 557, 564 (5th Cir. 2015). Meanwhile, Allen
Stanford “spent lavishly, purchasing boats, mansions, and
personal aircraft and sponsoring high-dollar cricket
tournaments.” Id. The scheme collapsed in 2009, when new
CD investments became insufficient to cover the interest and
redemption payments owed to current SIB investors. Id. The
Commission promptly instituted a civil action against Allen
Stanford, SIB, and other companies and persons involved in the
sale and promotion of the CDs, alleging an $8 billion
fraudulent scheme. In March 2012, Stanford was convicted of
numerous federal crimes and sentenced to 110 years in prison,
4
id. at 565, and he was later ordered to disgorge $5.9 billion in
ill-gotten gains, SEC v. Stanford Int’l Bank, Ltd., et.al., No.
3:09-CV-0298-N, 2013 WL 12360438, at *5 (N.D. Tex. Apr.
25, 2013).
In August 2012, after a lengthy investigation, the
Commission instituted proceedings against Young and two
other former officers of SGC, charging them with various
violations of federal securities laws. Young was represented
by counsel before an ALJ. 1 Following a fifteen-day hearing, at
which 26 witnesses testified and over 350 exhibits were
presented, the ALJ issued an initial decision in August 2013,
which found Young and the other two respondents liable on
most of the charges.
Specifically, the ALJ concluded that Young and the other
two respondents negligently failed to conduct reasonable
diligence in investigating the CDs. Despite this lack of
diligence, Young and the respondents approved SGC’s use of
materials that misrepresented material facts to investors about
the liquidity of SIB’s underlying investment portfolio. Later,
clients and potential clients began expressing concerns that
SIB’s model was indicative of a Ponzi scheme akin to the one
Bernie Madoff had recently been caught orchestrating, and that
Antiguan regulators were being corruptly influenced by Allen
Stanford. 2 The ALJ concluded that, after hearing these
concerns, Young and the other respondents “decided that SGC
should ‘attack’ with talking points,” rather than “investigate
the[ir] possible truthfulness.” J.A. 51. As the ALJ explained,
1
At that time, “the Commission had left the task of appointing
ALJs … to SEC staff members.” Lucia v. SEC, 138 S. Ct. 2044,
2050 (2018). Neither the President nor the Commission itself played
any role in this selection and appointment process.
2
Indeed, Young himself admitted at the hearing that he suspected
Antiguan regulators might be under Allen Stanford’s influence.
5
they “went on a damage control road show,” J.A. 52, designed
to “lull customers so as to forestall redemptions and continue
sales of the SIB CD.” J.A. 51.
The ALJ imposed multiple sanctions against Young and
the other two respondents. The ALJ (1) ordered them to cease
and desist from committing or causing any future violations of
the securities laws at issue; (2) imposed a civil penalty of
$260,000; and (3) permanently barred them from working in
the securities industry. In addition, the ALJ ordered Young to
disgorge $591,992.46, or 55.38% of the $1,068,964.36 in
payroll compensation he received from SGC between 2006 and
2009.
The other two respondents did not seek Commission
review of the ALJ’s decision, but Young did. Now proceeding
pro se, Young timely petitioned the Commission for review in
September 2013. On March 24, 2016, the Commission issued
a unanimous opinion and order affirming the ALJ’s decision
and the penalties.
Young had sixty days to seek review of the Commission’s
decision, either from our Circuit or the circuit in which he
resides or maintains his principal place of business. See 15
U.S.C. §§ 77i(a), 78y(a)(1), 80b-13(a), and 80a-42(a). On May
23, 2016, the last day to file, he filed a petition for review, but
filed it with the wrong court – the District of Columbia Court
of Appeals (DCCA). Young had previously contacted the
DCCA and received instructions on how to file a petition there.
On May 24, the DCCA contacted Young and informed him of
his error. Young, who happened to be in Washington, D.C. at
the time, retrieved his petition from the DCCA and refiled it in
our Court later that same day – one day too late. Young’s
petition was docketed, and we issued an order to show cause
why the petition should not be dismissed for lack of
6
jurisdiction. After Young explained the circumstances, we
discharged the order to show cause and directed the parties to
address our jurisdiction in their merits briefs.
During briefing, we granted the Commission’s motion to
hold the case in abeyance pending the resolution of Lucia v.
SEC, in which the Supreme Court ultimately held that SEC
ALJs are “Officers of the United States” under the
Appointments Clause, and that ALJs not appointed by the
President were thus unconstitutionally appointed. 138 S. Ct. at
2053. Thereafter, the parties filed motions to govern further
proceedings. In his motion, Young sought leave to file a
supplemental brief addressing both Lucia and Kokesh v. SEC,
in which the Supreme Court held that the five-year statute of
limitations for any “action, suit or proceeding for the
enforcement of any civil fine, penalty, or forfeiture, pecuniary
or otherwise” applies to disgorgement imposed as a sanction
for violating a federal securities law. 137 S. Ct. 1635, 1643
(2017) (interpreting 28 U.S.C. § 2462). Given the new
complexity of the case, we appointed amicus curiae on March
4, 2019 to present arguments in support of Young’s position,
and we entered a new briefing schedule. The case is now ready
for our consideration.
II.
Before we may consider the merits of Young’s petition,
we must determine whether a basis exists to excuse his
petition’s untimeliness.
As an initial matter, Amicus argues that because Young’s
petition complied with every requirement except for the place
of filing, his petition was, in effect, in compliance with the
sixty-day deadline. We disagree.
7
Amicus relies on Torres v. Oakland Scavenger Company,
487 U.S. 312, 316-17 (1988), and Anderson v. District of
Columbia, 72 F.3d 166, 167 (D.C. Cir. 1995) (per curiam), but
these cases speak to petitions that are timely filed in the correct
court but contain some technical defect. In Torres, the
Supreme Court explained that where “a litigant files papers in
a fashion that is technically at variance with the letter of a
procedural rule, a court may nonetheless find that the litigant
has complied with the rule if the litigant’s action is the
functional equivalent of what the rule requires.” 487 U.S. at
316-17 (citations omitted). Relying on this principle, our Court
later held that an appellant who had “timely filed a notice of
appeal in the district court but improperly designated the
United States Supreme Court as the court to which the appeal
was taken” had functionally complied with the filing
requirements. Anderson, 72 F.3d at 167-68 (“[A] defective
notice of appeal does not warrant dismissal where the intention
to appeal to a certain court of appeals may be inferred from the
notice and where the defect has not materially misled the
appellee.”). Unlike the appellant in Anderson, however, Young
did not timely file a petition in our court that happened to have
some technical defect. Rather, he did not timely file a petition
in our court at all.
Amicus next argues that, even if the petition was untimely,
the deadline is not jurisdictional and we may excuse the
petition’s untimeliness in these circumstances.
Filing deadlines fall into one of three categories:
(1) jurisdictional deadlines, which cannot be equitably tolled
by the court or waived by an opposing party, (2) mandatory
claims-processing deadlines, which are subject to equitable
tolling unless properly raised by an opposing party, in which
case they are unalterable, or (3) nonmandatory claims-
processing deadlines, which are both subject to equitable
8
tolling and flexible when raised by an opposing party. Bowles
v. Russell, 551 U.S. 205, 213 (2007); Nutraceutical Corp. v.
Lambert, 139 S. Ct. 710, 714 (2019). Here, the SEC argues
that the time limit is jurisdictional, while Amicus argues that
the time limit is a nonmandatory claims-processing rule. We
need not resolve this dispute, however, because even assuming
the time limit is both nonjurisdictional and nonmandatory,
Young cannot show entitlement to equitable tolling. See Coal
River Energy, LLC v. Jewell, 751 F.3d 659, 663 (D.C. Cir.
2014) (declining to decide whether a statute of limitations is
jurisdictional because the appellant failed to establish
entitlement to equitable tolling); see also Norman v. United
States, 467 F.3d 773, 776 (D.C. Cir. 2006) (same).
The party arguing for equitable tolling bears the burden of
demonstrating entitlement to it. United States v. Saro, 252 F.3d
449, 454 (D.C. Cir. 2001). “Generally, a litigant seeking
equitable tolling bears the burden of establishing two elements:
(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way.” Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005) (citations omitted).
“To count as sufficiently ‘extraordinary’ to support equitable
tolling, the circumstances that caused a litigant’s delay must
have been beyond its control.” Menominee Indian Tribe of
Wis. v. United States, 764 F.3d 51, 58 (D.C. Cir. 2014), aff’d,
136 S. Ct. 750 (2016). Relevant here, “[t]he circumstance that
stood in a litigant’s way cannot be a product of that litigant’s
own misunderstanding of the law or tactical mistakes in
litigation.” Id.To meet this heavy burden, Amicus primarily relies on
Burnett v. New York Central Railroad Company, 380 U.S. 424(1965). In that case, the petitioner filed an action under the
Federal Employers’ Liability Act (FELA) in an Ohio state
court that had concurrent jurisdiction over the action. Id. at
9
424-25. However, the state court dismissed his action because
venue was improper. Id. at 425. Eight days later, he filed an
identical action in an Ohio federal court. Id. This time, the
complaint was dismissed because “although the state suit was
brought within [FELA’s] limitations period, the federal action
was not.” Id. The court of appeals affirmed the dismissal, but
the Supreme Court reversed. Id. at 424-26. Specifically, the
Court concluded that “when a plaintiff begins a timely FELA
action in a state court of competent jurisdiction, service of
process is made upon the opposing party, and the state court
action is later dismissed because of improper venue, the FELA
limitation is tolled during the pendency of the state action.” Id.
at 428.
The SEC argues that Burnett does not apply here, because
the plaintiff in that case filed his claim in a court of “competent
jurisdiction” – that is, a state court with concurrent jurisdiction
over the claim. SEC Resp. Br. at 35. We agree. In Burnett,
“[t]here [wa]s no doubt that, as a matter of federal law,” the
plaintiff’s action “was properly ‘commenced’ within the
meaning of the federal limitation statute.” 380 U.S. at 426.
Therefore, the plaintiff “did not sleep on his rights but brought
an action within the statutory period in the state court of
competent jurisdiction.” Id. at 429. The only reason that the
plaintiff had to refile his suit in federal court was because Ohio
state law did not allow such an action to be transferred to a
federal court. Id. at 426. By contrast, Young’s petition was
not “properly commenced,” because it was not filed in a court
with concurrent jurisdiction over it. See id. at 426, 429.
Every circuit that has considered the question before us has
held that filing an action in a state court or federal agency that
clearly lacks jurisdiction over the action does not toll the time
for filing in federal court. See Thompson v. Comm’r of Soc.
Sec. Admin., 919 F.3d 1033, 1037 (8th Cir. 2019) (“The
10
rationale of [Burnett] does not extend to a situation like this one
under [42 U.S.C] § 405(g), where federal courts have exclusive
jurisdiction over a claim, and the complainant mistakenly
corresponds with an agency rather than a court of competent
jurisdiction.”); Jackson v. Astrue, 506 F.3d 1349, 1357 (11th
Cir. 2007) (affirming dismissal of action under 42 U.S.C.
405(g) because “[t]he [state court] in which [the appellant]
filed her claim was not a court of competent jurisdiction over
her claim”); Gibson v. Am. Bankers Ins. Co., 289 F.3d 943, 946
(6th Cir. 2002) (“We agree with the district court that plaintiffs’
claims . . . were within the exclusive jurisdiction of the federal
district court and, therefore, the filing in state court did not toll
the statute of limitations.”); Shofer v. Hack Co., 970 F.2d 1316,
1319 (4th Cir. 1992) (“The commencement of an action in a
clearly inappropriate forum, a court that clearly lacks
jurisdiction, will not toll the statute of limitations. . . . Because
the state court clearly lacked jurisdiction over the ERISA
fiduciary duty claims, Burnett . . . [does] not apply, and
equitable tolling under federal tolling principles is not
appropriate in this case.”). We now join them.
To be sure, where a litigant “reasonably believe[s]” that
the state court possesses concurrent jurisdiction over a federal
claim, courts will toll the limitations period from the filing of
the state action. See Fox v. Eaton Corp., 615 F.2d 716, 719-21
(6th Cir. 1980) (“[A]s a general matter, the filing of an action
in a court that clearly lacks jurisdiction will not toll the statute
of limitations. But in this case, the lack of jurisdiction in the
state court was far from clear.”); see also Valenzuela v. Kraft,
Inc., 801 F.2d 1170, 1175 (9th Cir. 1986) (“At the time
Valenzuela filed her action in state court it was unclear whether
federal courts had exclusive jurisdiction over Title VII
claims. . . . Tolling the 90-day filing period in this case is
consistent with the remedial purpose of Title VII legislation.”).
But this is not such a case. There was no reasonable basis for
11
Young to believe that the DCCA possessed concurrent
jurisdiction over a petition for review of an SEC order.
Amicus also invokes Young’s pro se status as a
justification for his confusing two similarly named courts. But
ignorance of the law is not an appropriate basis for equitable
tolling. See United States v. Cicero, 214 F.3d 199, 203 (D.C.
Cir. 2000) (“[I]gnorance of the law or unfamiliarity with the
legal process will not excuse [a litigant’s] untimely filing, nor
will a lack of representation during the applicable filing
period.”) (citations omitted); Richards v. Mileski, 662 F.2d 65,
71 n.10 (D.C. Cir. 1981) (“[M]ere ignorance of the law does
not ordinarily toll the statute of limitations.”). Rather,
equitable tolling is appropriate “only in ‘rare instances where—
due to circumstances external to the party’s own conduct—it
would be unconscionable to enforce the limitation period
against the party and gross injustice would result.’” Head v.
Wilson, 792 F.3d 102, 111 (D.C. Cir. 2015) (quoting Whiteside
v. United States, 775 F.3d 180, 184 (4th Cir. 2014)). No
extraordinary circumstance beyond Young’s control stood in
his way. Instead, his mistake is a “garden variety claim of
excusable neglect.” 3 See Irwin v. Dep’t of Veterans Affairs,
498 U.S. 89, 96 (1990).
Finally, Amicus lays the blame at the feet of the DCCA,
arguing that “Young’s confusion was likely compounded”
3
It is of no moment that Young’s mistake “caused no prejudice” to
the SEC. Amicus’s Opening Br. at 33. “Although absence of
prejudice is a factor to be considered in determining whether the
doctrine of equitable tolling should apply once a factor that might
justify such tolling is identified, it is not an independent basis for
invoking the doctrine and sanctioning deviations from established
procedures.” Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147,
152 (1984). Because Young cannot identify a basis that might justify
equitable tolling, we don’t consider the absence of prejudice here.
12
when, prior to his filing deadline, he contacted the DCCA to
obtain instructions on how to file his petition, and the DCCA
failed to correct his misunderstanding about where to file it.
Amicus Opening Br. at 32. This argument, too, lacks merit.
“[W]e have excused parties who were misled about the
running of a limitations period, whether by an adversary’s
actions, by a government official’s advice upon which they
reasonably relied, or by inaccurate or ineffective notice from a
government agency required to provide notice of the
limitations period[.]” Bowden v. United States, 106 F.3d 433,
438 (D.C. Cir. 1997) (citations omitted). Even assuming
Young told the DCCA’s clerk’s office that he wanted to seek
review of an SEC order (a fact he does not allege), he does not
claim that the DCCA affirmatively “misled” him in any way.
Id. at 438; see also Dyson v. D.C., 710 F.3d 415, 422 (D.C. Cir.
2013) (rejecting claim for equitable tolling because the
appellant did not allege “that either the EEOC or the District of
Columbia misled her as to her filing deadline”). Moreover, to
the extent Amicus invokes the “unique circumstances”
doctrine, that doctrine applies only where a party is “lulled into
missing the deadline by a formal court order or ruling” and does
not apply to “statements made by the clerk’s office staff,” see
Moore v. S.C. Labor Bd., 100 F.3d 162, 162, 164 (D.C. Cir.
1996), much less the clerk’s office of another court without
concurrent jurisdiction.
III.
Because no extraordinary circumstances beyond Young’s
control prevented him from timely filing his petition for
review, he is not entitled to equitable tolling, and we dismiss
his petition.
So ordered.
WILLIAMS, Senior Circuit Judge¸ concurring in the
judgment: Four statutes authorize a party in the position of Mr.
Young to secure review of an adverse SEC order in the court of
appeals where he resides, or in this court, by filing a petition in
such court within 60 days. See Securities Act of 1933, § 9(a),
15 U.S.C. § 77i(a); Securities Exchange Act of 1934, § 25(a),
15 U.S.C. § 78y(a); Investment Company Act of 1940, § 43(a),
15 U.S.C. § 80a-42(a); Investment Advisers Act of 1940,
§ 213(a), 15 U.S.C. § 80b-13(a). It is undisputed that on the
last possible day Mr. Young filed a petition—not in the United
States Court of Appeals for the District of Columbia Circuit but
in the District of Columbia Court of Appeals. He filed the next
day in our court, one day late.
I believe that our decision in New York Republican State
Committee v. SEC, 799 F.3d 1126 (D.C. Cir. 2015), correctly
ruled that one of the four relevant statutes, 15 U.S.C. § 80b-
13(a), did not create a jurisdictional bar precluding the exercise
of equitable tolling. “We may equitably toll a statutory
deadline unless Congress has shown its intent to withdraw our
jurisdiction once a deadline is missed.” Id. at 1134 (citing
Arbaugh v. Y&H Corp., 546 U.S. 500, 515–16 (2006), and
Menominee Indian Tribe v. United States, 614 F.3d 519, 523–
25 (D.C. Cir. 2010)).
The Court’s decision in Arbaugh had created a “clear
statement” rule to the effect that statutory requirements,
including timing deadlines, were not to be deemed
jurisdictional unless “the Legislature clearly states that a
threshold limitation on a statute’s scope shall count as
jurisdictional . . . But when Congress does not rank a statutory
limitation on coverage as jurisdictional, courts should treat the
restriction as nonjurisdictional in character.” 546 U.S. at 515–
16. Absent a clear statement to the contrary, filing deadlines
2
are “‘quintessential claim-processing rules,’ which ‘seek to
promote the orderly progress of litigation,’ but do not deprive
a court of authority to hear a case.” United States v. Kwai Fun
Wong, 575 U.S. 402, 410 (2015) (quoting Henderson v.
Shinseki, 562 U.S. 428, 435 (2011)).
The SEC’s misplaced reliance on Bowles v. Russell, 551
U.S. 205 (2007), ignores that the holding there rests on a
“century’s worth of precedent and practice in American
courts,” id. at 209–10 n.2, treating an appeal from one Article
III court to another as jurisdictional; “Bowles did not hold
categorically that every deadline for seeking judicial review in
civil litigation is jurisdictional,” Henderson, 562 U.S. at 436.
Although the Investment Advisers Act makes clear that this
court has jurisdiction “[u]pon the filing of such petition,” 15
U.S.C. § 80b-13(a), that language cannot be said to clearly
make the sixty-day filing deadline jurisdictional. And the three
statutes other than 15 U.S.C. § 80b-13(a), which employ
similar language, provide no more linguistic basis for a court to
dub them jurisdictional than does 15 U.S.C. § 80b-13(a).
Having found equitable tolling available in principle in
New York Republican State Committee, however, we declined
to find any reason to apply it; the filing was four years late and
the plaintiff failed to show either diligence or any kind of
extraordinary obstacle to timely filing.
But although New York Republican State Committee is
rightly considered a holding that the statutory filing deadline in
question was consistent with equitable tolling, there is a further
obstacle, not invoked by the SEC in that case: Federal Rule of
Appellate Procedure 26(b)(2) provides that the court may not
extend the time to file
a notice of appeal from or a petition to enjoin, set
aside, suspend, modify, enforce, or otherwise review
3
an order of an administrative agency, board,
commission, or officer of the United States, unless
specifically authorized by law.
Fed. Rule App. Proc. 26(b)(2) (emphasis added). “In other
words, Appellate Rule 26(b) says that the deadline for the
precise type of filing at issue here may not be extended.”
Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 715 (2019)
(applying the parallel language of Rule 26(b)(1) to petitions for
permission to appeal authorized by Federal Rule of Civil
Procedure 23(f)). See also Kern v. SEC, 724 F. App’x 687, 688
(10th Cir. 2018) (per curiam) (holding that Rule 26(b)(2) bars
tolling of time to file a petition for review of an SEC order
under 15 U.S.C. §§ 77i, 78y(a)(1), 80b-13).
Amicus for Mr. Young argues that 28 U.S.C. § 1631provides exactly the “specific[] authoriz[ation]” required by
Rule 26(b)(2). But § 1631 allows transfers only from a court
“as defined in section 610 of this title.” Section 610, in turn,
enumerates exclusively a set of federal courts, rendering
§ 1631 useless to Mr. Young and leaving no specific
authorization of the sort required by Rule 26(b)(2).
Although I read the controlling materials as barring our
application of equitable tolling, I’m by no means confident that
I would deny such tolling if the avenue were open to us. Mr.
Young was proceeding pro se; within the allowed 60 days he
filed a petition for review in the local court carrying a name
almost identical to that of this court, an identity that
understandably “has led to immense confusion to this day.”
John G. Roberts, Jr., What Makes the D.C. Circuit Different? A
Historical View, 92 Va. L. Rev. 375, 388 (2006). The nearness
of Mr. Young’s miss, both in time (one day) and the names of
the courts, coupled with his pro se status, present a fairly
compelling case for equitable tolling. But Rule 26(b)(2)
appears to me to throw an insuperable roadblock in his way.