Fedora v. Merit Systems Protection Board

United States Court of Appeals

for the Federal Circuit

______________________

LAURENCE M. FEDORA,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

UNITED STATES POSTAL SERVICE,

Intervenor

______________________

2015-3039

______________________

Petition for review of the Merit Systems Protection

Board in No. SF-0752-13-0433-I-1.

______________________

Decided: February 16, 2017

______________________

LAURENCE M. FEDORA, Portland, OR, pro se.

LINDSEY SCHRECKENGOST, Office of the General Coun-

sel, Merit Systems Protection Board, Washington, DC, for

respondent. Also represented by BRYAN G. POLISUK.

RUSSELL JAMES UPTON, Commercial Litigation

Branch, Civil Division, United States Department of

Justice, Washington, DC, for intervenor. Also represented

2 FEDORA v. MSPB

by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,

PATRICIA M. MCCARTHY.

______________________

Before DYK, PLAGER, and REYNA, Circuit Judges.

Opinion for the court filed by Circuit Judge DYK.

Dissenting opinion filed by Circuit Judge PLAGER.

DYK, Circuit Judge.

Laurence Fedora petitions for review of a final order

of the Merit Systems Protection Board (“Board”) dismiss-

ing his appeal for lack of jurisdiction. Because Mr. Fedora

failed to timely file his petition for review with this court

within 60 days after the Board issued notice of its final

order, we dismiss his petition for review for lack of juris-

diction. See 5 U.S.C. § 7703(b)(1)(A).

BACKGROUND

Mr. Fedora began his employment with the United

States Postal Service in 1980. He was employed as a Mail

Handler in the Portland Processing and Distribution

Center at the time of his retirement on August 31, 2012.

On April 27, 2013, Mr. Fedora filed an appeal with the

Board alleging that his retirement was involuntary and

amounted to constructive discharge. He claimed that he

was forced to perform work in violation of his medical

restrictions, was harassed, and was improperly threat-

ened with removal and loss of his pension.

On August 12, 2013, the administrative judge (“AJ”)

found that Mr. Fedora had failed to make a non-frivolous

allegation that his retirement was involuntary and dis-

missed his appeal for lack of jurisdiction. Mr. Fedora then

filed a petition for review by the Board.

On August 15, 2014, the Board issued a final order af-

firming the initial decision by the AJ. The Board’s final

order stated that Mr. Fedora had “the right to request

FEDORA v. MSPB 3

review of [its] final decision by the United States Court of

Appeals for the Federal Circuit” and that the “court must

receive [his] request for review no later than 60 calendar

days after the date of [the Board’s] order.” App. 36. He

filed a petition for review in this court on October 20,

2014. His petition for review was filed within 60 days of

his receipt of the order (August 19, 2014), 1 but not within

60 days of issuance of the notice (August 15, 2014).

DISCUSSION

I

This court has jurisdiction to review final decisions by

the Board pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C.

§ 7703(b)(1)(A). However, this jurisdiction is circum-

scribed by the terms of § 7703(b)(1)(A), which provides:

“[n]otwithstanding any other provision of law, any peti-

tion for review shall be filed within 60 days after the

Board issues notice of the final order or decision of the

Board.” We have previously held that the requirements of

this provision are “statutory, mandatory, [and] jurisdic-

tional,” Monzo v. Dep’t of Transp., 735 F.2d 1335, 1336

(Fed. Cir. 1984), and that “[c]ompliance with the filing

deadline of 5 U.S.C. § 7703(b)(1) is a prerequisite to our

exercise of jurisdiction,” Oja v. Dep’t of the Army, 405 F.3d

1349, 1360 (Fed. Cir. 2005).

The dissent suggests that these cases are no longer

good law because the Supreme Court in recent years has

recognized that not all statutory time limits are properly

characterized as jurisdictional. We think that those cases

do not undermine our holdings that the appeal period of

§ 7703(b)(1) is jurisdictional. Many of the Supreme

Court’s cases cited by the dissent hold generally that

1 Since 60 days from August 19, 2014 would end on

October 18, 2014, a Saturday, the period would run until

Monday, October 20, 2014. See Fed. R. App. P. 26(a)(1).

4 FEDORA v. MSPB

limitations periods (“claims-processing rules”) are not

jurisdictional. See, e.g., United States v. Kwai Fun Wong,

135 S. Ct. 1625, 1638 (2015) (holding that the time limits

for filing a claim against the United States under the

Federal Tort Claims Act “are nonjurisdictional and sub-

ject to equitable tolling”); Irwin v. Dep’t of Veterans Af-

fairs, 498 U.S. 89, 95–96 (1990) (holding that there is a

rebuttable presumption that the statutory time limit for

filing a Title VII suit against the United States after final

agency action is subject to equitable tolling). Those cases

do not concern appeal periods. Appeal periods to Article

III courts, such as the period in § 7703(b)(1), are con-

trolled by the Court’s decision in Bowles v. Russell, 551

U.S. 205 (2007).

In Bowles, the Supreme Court reaffirmed that “the

taking of an appeal within the prescribed time is ‘manda-

tory and jurisdictional.’” 551 U.S. at 209 (quoting Griggs

v. Provident Consumer Disc. Co., 459 U.S. 56, 61 (1982)).

The Court recognized that “several . . . recent decisions

have undertaken to clarify the distinction between claims-

processing rules and jurisdictional rules, [but concluded

that] none of them calls into question [the Court’s]

longstanding treatment of statutory time limits for taking

an appeal as jurisdictional.” Id. at 210. Accordingly, the

Court held that compliance with the appeal period pre-

scribed in 28 U.S.C. § 2107(c) is jurisdictional and not

subject to equitable tolling or the unique circumstances

doctrine. Id. at 212–14.

The Supreme Court’s subsequent opinion in Reed

Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010), explicitly

recognized the distinction between statutory time limits

for filing appeals and time limits or other requirements in

non-appeal contexts. There, the Court stated:

In Bowles, we considered 28 U.S.C. § 2107, which

requires parties in a civil action to file a notice of

appeal within 30 days . . . . After analyzing

FEDORA v. MSPB 5

§ 2107’s specific language and this Court’s histori-

cal treatment of the type of limitation § 2107 im-

poses (i.e., statutory deadlines for filing appeals),

we concluded that Congress had ranked the statu-

tory condition as jurisdictional. . . . Bowles em-

phasized that this Court had long treated such

conditions as jurisdictional, including in statutes

other than § 2107, and specifically in statutes that

predated the creation of the courts of appeals.

Id. at 168 (citations omitted).

Relying on Henderson v. Shinseki, 562 U.S. 428

(2011), which concerned the time limit for filings appeals

to the Court of Appeals for Veterans Claims, an Article I

court, the dissent suggests that Bowles does not govern

“judicial review of administrative decisions.” Id. at 437. In

Henderson, the Court held that the appeal period was not

jurisdictional because of the “unique administrative

scheme” that is “unusually protective of claimants.” Id. at

437–38 (internal quotation marks omitted). To be sure,

Henderson initially distinguished Bowles on the ground

that it “concerned an appeal from one court to another

court [and t]he ‘century’s worth of precedent and practice

in American courts’ on which Bowles relied involved

appeals of that type.” Id. at 436 (quoting Bowles, 551 U.S.

at 209–10). But the Court went on to discuss at length

judicial review of administrative agencies, citing to Stone

v. INS, 514 U.S. 386, 405 (1995), which held that the

deadline for seeking judicial review of final removal

orders by the Board of Immigration Appeals is jurisdic-

tional. The Henderson Court also noted that lower courts

uniformly treat the time limit for review of certain final

agency decisions under the Hobbs Act as jurisdictional.

Henderson, 562 U.S. at 437. The Court eventually con-

cluded that none of its prior cases required that the

appeal period from the Veterans Administration to an

Article I court be jurisdictional since “[a]ll of those cases

involved review by Article III courts.” Id. (emphasis add-

6 FEDORA v. MSPB

ed). The Henderson Court thus made clear that appeal

periods to Article III courts are jurisdictional.

Since this case concerns the timeliness of Fedora’s ap-

peal to this court, an Article III court, Bowles—not Hen-

derson—is the governing authority. Accordingly, this

court lacks jurisdiction over petitions for review that fail

to comply with the requirements of § 7703(b)(1)(A).

As the Supreme Court also made clear in Bowles, the

jurisdictional nature of the timeliness requirement pre-

cludes equitable exceptions. 551 U.S. at 213–14. Our own

prior decisions have likewise held that § 7703(b)(1) is not

subject to equitable tolling. Oja, 405 F.3d at 1357–60; see

also Marandola v. United States, 518 F.3d 913, 914–15

(Fed. Cir. 2008) (holding that the filing requirements of

28 U.S.C. § 2107(b), Fed. R. App. P. 4(a)(1)(B), and R. Fed.

Cl. 58.1 are “mandatory and jurisdictional” and cannot be

waived or equitably tolled).

II

A prior version of § 7703(b)(1) provided that “any peti-

tion for review must be filed within 60 days after the date

the petitioner received notice of the final order or decision

of the Board.” See 5 U.S.C. § 7703(b)(1) (1998) (emphasis

added). But, in 2012, this provision was amended to

require “fil[ing] within 60 days after the Board issues

notice of the final order or decision of the Board.” Whistle-

blower Protection Enhancement Act of 2012, Pub. L. No.

112-199, § 108(a), 126 Stat. 1465, 1469 (2012) (emphasis

added). By its plain terms, § 7703(b)(1)(A) as amended

begins the 60-day clock on the date the Board issues

notice of its final order, not the date the petitioner re-

ceives notice of that decision. Here, notice of the final

decision was issued on August 15, 2014. This court did not

receive the petition until October 20, 2014, 6 days after

the 60-day period had run.

FEDORA v. MSPB 7

III

Mr. Fedora thus failed to timely file his petition for

review within the 60-day period required by

§ 7703(b)(1)(A). Under § 7703(b)(1)(A) Mr. Fedora was

required to file his petition for review “within 60 days

after” August 15, 2014—i.e., by October 14, 2014. Since

filing requires actual receipt by the court, not just timely

mailing, see Pinat v. Office of Pers. Mgmt., 931 F.2d 1544,

1546 (Fed. Cir. 1991); Fed. R. App. P. 25(a)(2)(A), Mr.

Fedora missed the October 14, 2014 filing deadline. 2

Mr. Fedora points out that the Board’s final order di-

rected him to this court’s “Guide for Pro Se Petitioners

and Appellants,” which incorrectly instructed that a

petitioner “may file a petition for review in this court

within 60 days of receipt of the Board’s decision.” App. 5.

Mr. Fedora claims to have relied on this guidance in filing

his petition for review. But as previously stated, we do not

have the authority to equitably toll the filing require-

ments of § 7703(b)(1)(A). See Bowles, 551 U.S. at 213–14;

Oja, 405 F.3d at 1357–60. Moreover, the Board’s final

order gave notice to Mr. Fedora regarding his rights for

further review and specifically stated that the 60-day

period would begin on the date the final order was issued.

It imparted the importance of the filing deadline, caution-

ing to “be very careful to file on time” since the “court

must receive [the] request for review no later than 60

calendar days after the date of [the] order.” App. 36 (citing

5 U.S.C. § 7703(b)(1)(A) and noting the revision effective

December 27, 2012). Unfortunately for Mr. Fedora, he

failed to follow these instructions and missed the October

14, 2014 deadline.

2 The fact that Mr. Fedora mailed his petition on

October 11, 2014, within the 60-day period, is irrelevant

since the court did not receive it until October 20, 2014.

8 FEDORA v. MSPB

DISMISSED

COSTS

No costs.

United States Court of Appeals

for the Federal Circuit

______________________

LAURENCE M. FEDORA,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

UNITED STATES POSTAL SERVICE,

Intervenor

______________________

2015-3039

______________________

Petition for review of the Merit Systems Protection

Board in No. SF-0752-13-0433-I-1.

______________________

PLAGER, Circuit Judge, dissenting.

In the case before us, the majority, having labelled the

time bar “mandatory and jurisdictional,” proceeded to rule

that “this court lacks jurisdiction over petitions for review

that fail to comply with the [statutory deadline for filing].”

Because that conclusion does not do justice to the com-

plexities of the issue Mr. Fedora presents, is inconsistent

with current Supreme Court guidance, and in my view

probably results in a wrong conclusion that is based

neither on good law nor fundamental fairness, I respect-

fully dissent.

2 FEDORA v. MSPB

1.

Mr. Fedora asks this court to review a decision of the

Merit Systems Protection Board (“MSPB” or “Board”). In

that decision, the MSPB affirmed a determination by its

administrative judge that Mr. Fedora had failed to state a

Board-reviewable claim of involuntary, i.e., forced, re-

tirement from the Postal Service, and that therefore the

MSPB could not help him. Upon receipt of the Board’s

order, Mr. Fedora’s attempt to appeal to this court for

review of that decision ran into two procedural hurdles.

First, by fully following the official printed instructions,

provided by this appellate court, regarding filing dead-

lines, he missed the statutory deadline for filing his

petition for review by several days—the instructions were

in error. Second, by using the Postal Service to send in

his petition as our procedures authorize, his former

employer, in a bit of irony, apparently delivered his

petition to the court in Washington after an unexplained

delay—it was stamped received by this court nine days

after it was mailed from Portland. As a result, his appeal

petition was considered received six days late. The ques-

tion is whether there is anything that can be done about

the fact of his late filing, which would otherwise preclude

his appeal.

Citing a 1984 decision of this court, Monzo v. Depart-

ment of Transportation, 735 F.2d 1335 (Fed. Cir. 1984),

the majority decides this case by invoking the old shibbo-

leth that the time bar is “mandatory [and] jurisdictional.”

As the Supreme Court itself has recently emphasized, see

the discussion below, the term “jurisdiction” is one of the

most misused and ambiguous terms in the legal vocabu-

lary.

When used correctly, the term “jurisdiction,” for ex-

ample when used in the phrase “subject-matter jurisdic-

tion,” refers to a well-understood characteristic of judicial

process: the authority of a court to exercise judicial power

FEDORA v. MSPB 3

over a case before it. To illustrate: by statute this court

has subject-matter jurisdiction to review final decisions

rendered by the Board. See 28 U.S.C. § 1295(a)(9) (“The

United States Court of Appeals for the Federal Circuit

shall have exclusive jurisdiction—(9) of an appeal from a

final order or final decision of the Merit Systems Protec-

tion Board, pursuant to sections 7703(b)(1) and 7703(d) of

title 5 . . . .”). 1 Indeed, our subject-matter jurisdiction

over this class of decisions is exclusive—no other court of

appeals may hear and decide these appeals.

When used in other contexts, the term “jurisdiction”

can be used as a conclusory label to support a result, often

with little if any analysis. An example is the lead case the

majority cites as authority for the outcome in this case.

Monzo, like this case, involved a petition for review of an

MSPB decision adverse to the petitioner. The statute at

issue provided that any petition for review “must be filed

within 30 days after the date the petitioner received

notice of the final order or decision of the Board.” 5

U.S.C. § 7703(b)(1) (1982). The evidence in the case

indicated that petitioner received notice of the decision on

October 11, 1983, and his attorney received it on October

14. The petition for review was received by the court on

November 14. The court held that the date the attorney

received notice was irrelevant; the statute refers only to

the petitioner. The court in a one paragraph Order an-

nounced that “[t]he 30-day period for appeal is statutory,

mandatory, jurisdictional, and bars the claim here.” 735

F.2d at 1336.

1 Another necessary ingredient for the exercise of

judicial power in a given case is personal jurisdiction over

the parties. This involves quite different considerations

from those affecting subject-matter jurisdiction, and is not

at issue in this case. See, e.g., Daimler AG v. Bauman,

134 S. Ct. 746 (2014).

4 FEDORA v. MSPB

The only explanation offered for that conclusion was a

cite to Ramos v. United States, 683 F.2d 396 (Ct. Cl.

1982), in which the Claims Court held that receipt by

petitioner’s wife of the decision of the Board constituted

notice to petitioner within the meaning of the statute.

The Ramos majority emphasized that “statutes of limita-

tions” are a condition on the sovereign’s consent to suit,

and must be strictly construed. The concurring judge

suggested he would not construe the statute so strictly if

given “any reasonable handle for doing so,” but since Mr.

Ramos did not offer one, he concluded his only alternative

was “a weary shrug and a turn aside to more agreeable

objects of contemplation.” Id. at 399.

The second case on which the majority bases its result

here is the more recent case of Oja v. Department of the

Army, 405 F.3d 1349 (Fed. Cir. 2005). Mr. Oja sought

enforcement by the MSPB of a settlement agreement he

had with the Army Corps of Engineers, the outcome of a

contentious dispute involving his performance and subse-

quent removal from his office in the Corps. The Federal

Circuit’s opinion is considerably more detailed than

Monzo; as the opinion noted, the case came to this court

by way of “a tangled procedural path—first to the MSPB,

then to the EEOC, then to the district court, and now to

this court.” Id. at 1354.

The opinion discusses at length a number of issues

raised by this ‘tangled procedural path,’ but for purposes

of our case here, the only relevant point is that the Oja

majority concluded that, “even if . . . the filing limit of

section 7703(b)(2) [is] subject to equitable tolling, an issue

we need not decide, [that] . . . does not likewise affect

section 7703(b)(1) and does not change this court’s bind-

ing holding in Monzo that section 7703(b)(1) is not subject

to equitable tolling.” Id. at 1361. The court then dis-

missed the appeal for “lack of jurisdiction.” Id. (I note in

passing that Oja was decided before any of the Supreme

Court’s later opinions discussed below.)

FEDORA v. MSPB 5

Oja’s reliance on Monzo for the proposition that the

statute at issue is not “subject to equitable tolling” is

curious, since the words “equitable tolling” do not appear

in the Monzo opinion; its legal point was limited to the

statement that the statute was “mandatory [and] jurisdic-

tional.” Which raises the interesting question—what is

the relationship between jurisdiction and equitable toll-

ing?

2.

The answer to that question is that these are two sep-

arate and distinct legal issues. Subject-matter jurisdic-

tion is granted by Congress to courts it creates under

Article III of the Constitution, pursuant to Congress’s

Constitutional powers. 2 Subject-matter jurisdiction

describes the kinds of disputes a particular court is em-

powered to decide. Constitutionally, if a court lacks

subject-matter jurisdiction over a case, the court is with-

out power to grant any remedy, no matter how warranted;

that necessarily includes equitable tolling of a statutory

deadline. 3

2 This statement is strictly true only for the lower

federal courts, the district and appellate courts created by

congressional act. With the exception of the Supreme

Court, federal courts, both trial and appeal, are depend-

ent on congressional authorization for their structure and

subject-matter jurisdiction. The Supreme Court, estab-

lished by the Constitution itself, has assigned to it by the

Constitution certain exclusive subject-matter areas. See

generally U.S. Const. art. III.

3 In the felicitous phrasing of Justice Breyer, con-

curring in Steel Co. v. Citizens for a Better Environment,

523 U.S. 83, 111 (1998), determining a court’s subject-

matter jurisdiction at the outset of a case “helps better to

restrict the use of the federal courts to those adversarial

6 FEDORA v. MSPB

Assuming, however, that a court has subject-matter

jurisdiction over the cause, the question of whether a

statutory condition, such as a time bar, is “jurisdictional,”

and thus determinative of eligibility for equitable tolling

of an otherwise apparently mandatory deadline, is a

question the Supreme Court’s cases have wrestled with in

the last decade or so. And this is a question on which I

find the majority demonstrates insufficient understanding

of these recent cases from the Supreme Court.

As the comment from the Ramos case, supra, indicat-

ed, at an earlier time the general view espoused by the

Supreme Court among others was that if Congress im-

posed a statutory deadline for seeking judicial relief,

Congress intended that deadline to be strictly enforced.

Hence the almost religious repetition in the early cases of

the phrase about “mandatory and jurisdictional.”

“Jurisdictional” in that context did not mean that the

court somehow lost subject-matter jurisdiction, i.e., the

authority to decide the kind of dispute at issue. Instead,

it was a shorthand way of saying that the court had had

its power to adjudicate this particular case withdrawn,

because Congress intended that the adjudicative power be

withdrawn when the time-filing requirement was not met.

That was then; then came Irwin.

In 1990, Irwin v. Department of Veterans Affairs 4

turned the law of “mandatory and jurisdictional” and its

concomitant equitable tolling doctrine on its head, or so it

was thought. Shirley Irwin was fired from his job with

the Veterans Administration. Pursuant to the Civil

Rights Act of 1964 5 (“the Act”), he first sought help from

disputes that Article III defines as the federal judiciary’s

business.”

4 498 U.S. 89 (1990).

5 Pub. L. 88-352, 78 Stat. 241 (1964), as amended.

FEDORA v. MSPB 7

the Equal Employment Opportunity Commission

(“EEOC”), alleging an unlawful discharge based on race

and disability. After getting a letter from the EEOC

affirming his dismissal, he filed a complaint in the district

court, as provided by the Act. However, his complaint

was not filed within 30 days of the EEOC’s decision,

which was the time deadline stated in the Act.

At the Government’s urging, the district court held it

was without jurisdiction, a holding affirmed by the Fifth

Circuit Court of Appeals. Id. at 91. The court of appeals

reasoned that the 30-day period operated as an absolute

jurisdictional limit, and that the district court could not

excuse Irwin’s late filing because federal courts lacked

“jurisdiction” over his untimely claim. Id.

The Supreme Court reversed. The Court first recited,

with due citation, the traditional doctrine that congres-

sional waivers of sovereign immunity (the doctrine, inher-

ited from the Kings of England, that the sovereign, here

the Federal Government, generally is immune from suit

for its wrongful acts) must be strictly construed, and that

a waiver of sovereign immunity cannot be implied but

must be unequivocally expressed.

But then the Court announced that, once Congress

has made such a waiver—presumably by granting federal

courts subject-matter jurisdiction over a particular class

of cases against the Government—the question of equita-

ble tolling applicable to statutory time bars in a given

case would be decided “in the same way that it is applica-

ble to private suits . . . . We therefore hold that the same

rebuttable presumption of equitable tolling applicable to

suits against private defendants should also apply to suits

against the United States.” Id. at 95.

Irwin was thus understood to say that once Congress

authorized a suit against the Federal Government in a

particular subject-matter area, the statutory conditions

placed on that suit in the form of a time bar in which suit

8 FEDORA v. MSPB

must be filed were to be presumed to be subject to equita-

ble relief for the same reasons they would be in private

litigation. Thus, unless Congress specifically indicated

otherwise, such time limits were no longer to be consid-

ered “jurisdictional,” that is, intended by Congress to be

automatic and unwaivable withdrawals of a court’s power

to adjudicate.

Two issues have emerged in the cases, discussed next,

following Irwin—first, has Congress expressed a clear

intention to make a stated condition in a suit against the

Government—such as the time within which a plaintiff

must file the suit in court—a bar to a court’s exercise of

power over a particular case, i.e., a “jurisdictional” bar? If

not, the Irwin presumption is not rebutted, and the stated

condition or bar is subject to equitable relief.

Second, assuming the condition is one subject to equi-

table relief, is such relief available for a particular plain-

tiff in the particular case? That depends on the particular

facts. For example, in the Irwin case itself, this reversal

of long-standing doctrine dealing with ‘jurisdiction’ did

not help Mr. Irwin. The Court explained that federal

courts “have typically extended equitable relief only

sparingly,” and gave illustrations: a plaintiff who diligent-

ly pursued his remedies by filing within the time limit,

but filed a defective pleading; and a complainant who “has

been induced or tricked by his adversary’s misconduct

into allowing the filing deadline to pass.” Id. at 90. 6

Concluding that Mr. Irwin’s failure to file timely be-

cause his lawyer was away was “at best a garden variety

claim of excusable neglect,” it was not entitled to equita-

6 See Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998)

(en banc) for a discussion of factors entitling a petitioner

to equitable tolling.

FEDORA v. MSPB 9

ble intervention. Id. at 96. The judgment of the court of

appeals was affirmed. Id.

Since the Irwin decision, the Supreme Court, as well

as the lower courts, have wrestled primarily with the first

of these two questions: in a given statutory setting, has

Congress somehow expressed a clear enough intention to

make the failure to comply with a condition to judicial

relief against the Government’s conduct, such as a filing

deadline, an absolute bar? To put it in terms applicable

here, has the “rebuttable presumption of equitable tolling”

of the time bar in this case been rebutted by a clear

congressional expression of its intention to the contrary?

In reality, Congress is not known to address this issue

in the specific terms of jurisdictional bar vs. equitable

relief. The resolution of the issue has become one of

construing the phrases in which the condition, the time

bar for example, is expressed. This may be seen in such

indicators as where in a complex of statutory provisions

the bar appears vis-à-vis where the court’s basic subject-

matter authorization appears, how the particular bar is

stated, and even how often a court has addressed the

issue without congressional reaction.

The Supreme Court’s recent cases, despite Irwin’s

stated desire to no longer decide these cases in an ad hoc

manner but rather to “adopt a more general rule to gov-

ern the applicability of equitable tolling suits against the

Government,” id. at 95, have flipped back and forth based

on the various factors the particular opinion seemed to

consider relevant.

3.

The question of jurisdictional vs. nonjurisdictional

statutory conditions to judicial relief has come before the

Supreme Court in both time bar and other statutory

contexts. Arbaugh v. Y&H Corp., 546 U.S. 500 (2006)

raised a somewhat different bar, in that the condition at

10 FEDORA v. MSPB

issue was not a time-bar regarding filing of an appeal, but

rather a condition on whether the statute at issue was

applicable to the defendant employer. The case arose

under Title VII of the Civil Rights Act of 1964 (the “Act”).

The Act required that an employer subject to the Act have

15 or more employees. The defendant had not raised the

issue of whether the employer had the requisite number

of employees—and when later raised there was a disputed

question regarding the issue—until the case was on

appeal. If the issue was simply an element in the plain-

tiff’s claim for relief, the employer’s attempt to raise the

issue as a defense at the appellate stages of the case

would be barred. See Fed. R. Civ. Proc. 12(h)(2) (an

objection under Rule 12(b)(6) may not be asserted post-

trial). On the other hand, if the numerosity requirement

went to the court’s real “jurisdiction,” that would be an

issue that is not too late to raise on appeal, see Fed. R.

Civ. P. 12(h)(3), and indeed since it went to the court’s

power to decide the case, it is one the court must attend to

even if the parties do not. Arbaugh, 546 U.S. at 514.

The Court recapped the newer thinking about juris-

diction. Justice Ginsburg, writing for a unanimous court,

said: “‘Jurisdiction,’ this Court has observed, ‘is a word of

many, too many meanings.’ This Court, no less than

other courts, has sometimes been profligate in its use of

the term. For example, this Court and others have occa-

sionally described a nonextendable time limit as ‘manda-

tory and jurisdictional.’ But in recent decisions, we have

clarified that time prescriptions, however emphatic, ‘are

not properly typed “jurisdictional.”’” Id. at 510 (citations

omitted).

The Court described contrary decisions as “unrefined

dispositions,” “‘drive-by jurisdictional rulings’” that

“should be accorded ‘no precedential effect’ on the ques-

tion whether the federal court had authority to adjudicate

the claim in suit.” Id. at 511 (quoting Steel Co., 523 U.S.

at 91). The Court acknowledged that Congress could have

FEDORA v. MSPB 11

made the employee-numerosity requirement “jurisdic-

tional,” but noted that “the 15-employee threshold ap-

pears in a separate provision that ‘does not speak in

jurisdictional terms or refer in any way to the jurisdiction

of the district courts.’” Id. at 515 (citation omitted). The

Court held the numerosity provision to be an element of a

plaintiff’s claim for relief, not a jurisdictional issue.

In Bowles v. Russell, 551 U.S. 205 (2007), decided but

a year after Arbaugh, the Court came to the opposite

conclusion. Bowles arose in a murder case, involving the

late filing of an appeal from an adverse district court

decision in a habeas appeal. An attempt had been made

to extend the defendant’s time for appeal pursuant to

court rule, but the filing did not comply with the time

limit provided in the statute on which the rule was based.

The court of appeals held that it lacked jurisdiction to

hear the case, holding that the provision allowing a

district court to extend the filing period for fourteen days

for reopening of a case was “jurisdictional.”

The Supreme Court affirmed, in an opinion that

seemed to refute Irwin and Arbaugh. Justice Thomas,

writing for a five Justice majority, stated that, “Although

several of our recent decisions have undertaken to clarify

the distinction between claims-processing rules and

jurisdictional rules, none of them calls into question our

longstanding treatment of statutory time limits for taking

an appeal as jurisdictional.” Id. at 210. The Irwin pre-

sumption was not mentioned or considered; Arbaugh was

distinguished: “Nor do[es] Arbaugh . . . aid petitioner. In

Arbaugh, the statutory limitation was an employee-

numerosity requirement, not a time limit.” Id. at 211

(citations omitted). The court of appeals was affirmed.

The stark contrast between the approach taken in Ar-

baugh and that in Bowles did not remain unaddressed

very long. Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154

(2010), decided the following year, turned on a somewhat

12 FEDORA v. MSPB

arcane issue—whether a provision of the Copyright Act

regarding registration precluded appeal in a case arising

from claims of infringement of unregistered works. In

terms relevant here, the issue was whether the require-

ments of the statute were to be treated as “jurisdictional,”

and thus a bar to the appeal. The Court stated the ques-

tion as “whether § 411(a) ‘clearly states’ that its registra-

tion requirement is ‘jurisdictional.’” Id. at 163 (quoting

Arbaugh, 559 U.S. at 515). The Court answered, “It does

not.” Id.

The Court then explained its decision in Bowles:

“Bowles did not hold that any statutory condition devoid

of an express jurisdictional label should be treated as

jurisdictional simply because courts have long treated it

as such. Nor did it hold that all statutory conditions

imposing a time limit should be considered jurisdictional.

Rather, Bowles stands for the proposition that context,

including this Court’s interpretation of similar provisions

in many years past, is relevant to whether a statute ranks

a requirement as jurisdictional.” Id. at 167–68. The court

of appeals was reversed; the statutory provision was held

nonjurisdictional. It is worth noting that Reed Elsevier,

with its explanation of Bowles, was written by the same

justice who authored Bowles.

In an opinion concurring in part, Justice Ginsburg,

the authoring Justice in Arbaugh, offered a further expla-

nation: “Bowles and Arbaugh can be reconciled without

distorting either decision, however, on the ground that

Bowles rel[ied] on a long line of this Court’s decisions left

undisturbed by Congress.” Id. at 173.

Subsequently, in Henderson v. Shinseki, 562 U.S. 428

(2011), the Court addressed directly a statutory time bar

on review from this court. The case involved an appeal

from the Board of Veterans Appeals to the Court of Ap-

peals for Veterans Affairs. To appeal to the Veterans

Court, the appellant must file a notice of appeal with the

FEDORA v. MSPB 13

court within 120 days after the date when the Board’s

final decision is mailed. 38 U.S.C. § 7266(a). As the

Supreme Court saw it, “[t]he case presents the question

whether a veteran’s failure to file a notice of appeal

within the 120-day period should be regarded as having

‘jurisdictional’ consequences.” Id. at 431. This court had

held that it should be so regarded; the Supreme Court

replied: “We hold that it should not.” Id.

The Court explained: “The question here . . . is wheth-

er Congress mandated that the 120-day deadline be

‘jurisdictional.’ In Arbaugh, we applied a ‘readily admin-

istrable bright line’ rule for deciding such questions.

Under Arbaugh, we look to see if there is any ‘clear’

indication that Congress wanted the rule to be ‘jurisdic-

tional.’ This approach is suited to capture Congress’

likely intent and also provides helpful guidance for courts

and litigants, who will be ‘duly instructed’ regarding a

rule’s nature.” Id. at 435–36 (citations omitted).

The Court then took note of the Government’s argu-

ment that Bowles meant that all statutory deadlines for

taking appeals in civil cases are jurisdictional, and since

this is a civil case, the 120-day rule is jurisdictional.

Replied the Court: “We reject the major premise of this

syllogism. Bowles did not hold categorically that every

deadline for seeking review in civil litigation is jurisdic-

tional. Instead, Bowles concerned an appeal from one

court to another court. The ‘century’s worth of precedent

and practice in American courts’ on which Bowles relied

involved appeals of that type.” Id. at 436.

In response to the Government’s argument that

Bowles’ reasoning nevertheless should be applied to

judicial review of administrative decisions generally, the

Court rejected the comparison to mine-run Hobbs Act

cases, instead analogizing veterans’ cases to Social Secu-

rity disability benefits cases, both involving special ad-

14 FEDORA v. MSPB

ministrative procedures and both being ‘unusually protec-

tive’ to claimants.

Finally, the Court noted that the deadline-stating

provision does not speak in jurisdictional terms or refer in

any way to the jurisdiction of the Veterans Court. It

contrasted the deadline-stating provision for appeals from

the Veterans Court to this court, which is cast in the same

language as the provision for appeals from the district

courts to the courts of appeal, the latter having long been

held ‘jurisdictional.’ The Court stated that if Congress

intended the same result, it could have stated the provi-

sion in the same terms. The Court concluded that “we do

not find any clear indication that the 120-day limit was

intended to carry the harsh consequences that accompany

the jurisdiction tag.” Id. at 441. The case was remanded

to the Federal Circuit to determine whether it falls within

any exception that calls for equitable tolling. 7

An even more recent Supreme Court decision, again

dealing with a time bar, must be added to the mix. In

United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015),

the issue was whether the statute for filing a claim under

the Federal Tort Claims Act, 28 U.S.C. § 2401(b), was

subject to tolling. The statute had two specified dead-

lines, one for notifying the appropriate federal agency of

the claim—a two year time limit—and the other—a six

month limit—for filing the claim in court if the agency

made a negative decision on the claim.

7 On remand, this court vacated the Veterans

Court’s decision and remanded. The Veterans Court

appears to have dismissed for lack of jurisdiction because

Mr. Henderson had died while his appeal was pending

before the Supreme Court and no one sought to be substi-

tuted before the Veterans Court.

FEDORA v. MSPB 15

Two cases were consolidated for Supreme Court re-

view; in each of the cases the claimant missed one of the

deadlines. The provisions had one thing in common—the

statute was written to say that a tort claim against the

United States “shall be forever barred” unless the dead-

lines are complied with. The Government argued that the

time limits are not subject to tolling as they clearly are

intended to be jurisdictional restrictions. However, on

appeal to the Ninth Circuit, the court of appeals held that

tolling was available in both cases.

In a split decision, the Supreme Court affirmed the

court of appeals. Unlike all of the cases since Irwin

reviewed above, this time the Court began with a discus-

sion of Irwin. Irwin, said the Court, “sets out the frame-

work for deciding ‘the applicability of equitable tolling in

suits against the Government.’ In Irwin, we recognized

that time bars in suits between private parties are pre-

sumptively subject to equitable tolling. That means a

court usually may pause the running of a limitations

statute in private litigation when a party ‘has pursued his

rights diligently but some extraordinary circumstance’

prevents him from meeting a deadline. We held in Irwin

that ‘the same rebuttable presumption of equitable toll-

ing’ should also apply to suits brought against the United

States under a statute waiving sovereign immunity.” Id.

at 1630–31 (citations omitted).

The Court added, “the Government must clear a high

bar to establish that a statute of limitations is jurisdic-

tional. In recent years, we have repeatedly held that

procedural rules, including time bars, cabin a court’s

power only if Congress has ‘clearly state[d]’ as much.

. . . And in applying that clear statement rule, we have

made plain that most time bars are nonjurisdictional.

Time and again, we have described filing deadlines as

‘quintessentially claim-processing rules,’ which ‘seek to

promote the orderly progress of litigation,’ but do not

deprive a court of authority to hear a case. [citing, inter

16 FEDORA v. MSPB

alia, Henderson v. Shinseki] . . . Congress must do some-

thing special, beyond setting an exception-free deadline,

to tag a statute of limitations as jurisdictional and so

prohibit a court from tolling it.” Id. at 1632–33 (citations

omitted).

After exhaustively reviewing other time bars, includ-

ing those with phrases like “shall be forever barred,” the

Court concluded that the time bar applicable to these

cases contained simply “mundane statute-of-limitations

language,” and that “neither this Court nor any other has

accorded those words talismanic power to render time

bars jurisdictional.” Id. at 1634. In effect, because Irwin

said so. There was a strong dissent, which argued that

“[t]he statutory text, its historical roots, and more than a

century of precedents show that this absolute bar is not

subject to equitable tolling.” Id. at 1639.

4.

I appreciate that this court’s precedents, starting with

Monzo back in 1984, support the outcome reached by the

majority, and provide an easy pathway to the conclusion

they reach. I also appreciate that an uncritical reading of

the Supreme Court’s opinion in Bowles supports that

conclusion. But there is now a more nuanced understand-

ing of the Bowles opinion, by the same authoring Justice

writing in Reed Elsevier: “[n]or did [Bowles] hold that all

statutory conditions imposing a time limit should be

considered jurisdictional.” 559 U.S. at 167. Add to this

the Court’s most recent case, in which a time bar desig-

nated by Congress as one in which a non-complying suit

“shall be forever barred.” The Court held it not a bar to

equitable tolling. Kwai Fun Wong, 135 S. Ct. at 1634.

In my view, the totality of the Supreme Court’s recent

cases add up to a significant rethinking of the “jurisdic-

tional” bar to equitable tolling. Attempts to distinguish

among the Court’s opinions, on the basis that only some

dealt with time bars while others required that different

FEDORA v. MSPB 17

statutory conditions be met, is misguided. The basic issue

is the same, and the Court itself did not make such back-

ground differences the controlling distinctions.

Rather, the Court examined the statutory context,

looking for a clear indication that Congress intended that

the Irwin presumption of the availability of equitable

tolling should be considered rebutted. That is why in

addressing the jurisdictional question, among other

things, the Court asked about whether the statutory

requirement “speak[s] in jurisdictional terms,” Arbaugh,

546 U.S. at 515; whether the cases at issue are long-

standing and left undisturbed by Congress, see the con-

curring opinion in Reed Elsevier, 559 U.S. at 173; and

whether the case involves a time bar from one court to

another (more likely to be seen as “jurisdictional”) or

whether it is from an administrative agency to a court,

the latter possibly reflecting a program “‘unusually pro-

tective’ of claimants,” Henderson, 562 U.S. at 436 (citation

omitted).

Given this backdrop, how should the case before this

court be decided? To do justice to Mr. Fedora’s case, at a

minimum the time bar has to be examined to determine

whether Congress has, in some clear manner, rebutted

the presumption of the availability of equitable tolling.

The burden has been placed on the Government to con-

vince the court that Congress intended that the rebutta-

ble presumption is rebutted.

Finding congressional intent to rebut the presumption

simply because the time bar is stated in a statute is no

longer appropriate. Even the author of Bowles seems to

have retreated from that proposition. What additional

considerations will persuade that the presumption has or

has not been rebutted depends on the context of a particu-

lar statute. Taking into consideration the criteria sug-

gested in the Court’s opinions, as outlined above, Mr.

Fedora presents a substantial case for the availability of

18 FEDORA v. MSPB

equitable relief—nothing in § 7703(b)(1)(A) speaks in

jurisdictional terms, there is no long-standing line of

decisions on MSPB appeals to this court that suggests

congressional acquiescence, and this is an appeal from an

administrative agency to a court, with considerable sup-

port for the proposition that MSPB proceedings are in-

tended to be specially protective of claimants. 8

But we should not rush to judgment. The case came

to us as a pro se filing with only an informal brief of

petitioner, and no oral argument. Neither the Govern-

ment in its Respondent’s brief nor the Intervenor, USPS,

in its brief did more than repeat the “mandatory and

jurisdictional” chant in support of their argument that we

are without “jurisdiction” over Mr. Fedora’s appeal

because his filing was untimely.

Because of the significance of this issue, and because

our court’s precedents have not recognized the current

state of Supreme Court law on the subject, a thorough

examination with competent opposing counsel is called

for. The case should be rebriefed before an en banc court

on the timeliness filing question, with assigned counsel

for Mr. Fedora, and an opportunity for the Government

and Intervenor to address the question of whether there is

any basis for a finding that the presumption under Irwin

of equitable tolling regarding the bar in § 7703(b)(1)(A)

has been rebutted.

The Government, in the words of the Supreme Court,

“must clear a high bar to establish that a statute of limi-

tations is jurisdictional,” Kwai Fun Wong, 135 S. Ct. at

1632. Because the petitioner was pro se, the Government

8 See, e.g., 5 U.S.C. § 2301(b)(8) (under governing

merit system principles, employees must be “protected

against arbitrary action, personal favoritism, or coercion

for partisan purposes”).

FEDORA v. MSPB 19

may not have appreciated the situation in which this case

puts it. I respect the argument that the Government has

had its day in court, and obviously failed to make its case,

but in the interest of fairness I favor giving the Govern-

ment an opportunity to attempt to clear that high bar. A

well-argued case, with competent counsel on both sides,

will help this court come to a correct conclusion regarding

the law of the case, a conclusion giving full attention and

respect to the opinions of the Supreme Court.

Accordingly, I respectfully dissent from any contrary

disposition of this appeal.