Respondents Brief — Robert D. Vocke, Jr., Petitioner v. Merit Systems Protection Board
Supreme Court briefDec 13, 2017
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No. 17-544
In the Supreme Court of the United States
ROBERT D. VOCKE, JR., PETITIONER
v.
MERIT SYSTEMS PROTECTION BOARD
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
CHAD A. READLER
Acting Assistant Attorney
General
ROBERT E. KIRSCHMAN, JR.
ELIZABETH M. HOSFORD
MEEN-GEU OH
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
Whether the 60-day time limit for seeking Federal
Circuit review of an order or decision of the Merit Systems Protection Board, 5 U.S.C. 7703(b)(1)(A), is jurisdictional and therefore not subject to equitable tolling.
(I)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 1
Statement ...................................................................................... 2
Argument..................................................................................... 10
Conclusion ................................................................................... 30
TABLE OF AUTHORITIES
Cases:
A.I.M. Controls, L.L.C. v. Commissioner,
672 F.3d 390 (5th Cir. 2012) ............................................... 28
Bers v. United States Gov’t, 666 F. Supp. 1
(D.D.C. 1987) ................................................................... 2, 20
Bledsoe v. MSPB, 659 F.3d 1097 (Fed. Cir. 2011) ... 2, 20, 22
Bowen v. City of N.Y., 476 U.S. 467 (1986) ................... 19, 21
Bowles v. Russell, 551 U.S. 205 (2007) .......7, 8, 12, 14, 17, 29
Clean Water Action Council of Ne. Wisc., Inc. v.
EPA, 765 F.3d 749 (7th Cir. 2014) .................................... 27
Fedora v. MSPB, 848 F.3d 1013 (Fed. Cir. 2017),
petition for cert. pending, No. 17-557
(filed Oct. 6, 2017) ................................................................. 7
Garcia v. Department of Homeland Sec.,
437 F.3d 1322 (Fed. Cir. 2006) ............................................. 2
Gonzalez v. Thaler, 565 U.S. 134 (2012) ........................ 12, 19
Guedes v. Mukasey, 317 Fed. Appx. 16
(1st Cir. 2008) ...................................................................... 27
Hamer v. Neighborhood Hous. Servs., No. 16-658
(Nov. 8, 2017) ................................................14, 18, 19, 21, 24
Heckler v. Day, 467 U.S. 104 (1984)............................... 20, 21
Henderson v. Shinseki, 562 U.S. 428 (2011) .............. passim
Herr v. United States Forest Serv., 803 F.3d 809
(6th Cir. 2015) ...................................................................... 28
(III)
IV
Cases—Continued:
Page
Irwin v. Department of Veterans Affairs,
498 U.S. 89 (1990) ................................................... 18, 22, 30
John R. Sand & Gravel Co. v. United States,
552 U.S. 130 (2008).................................................. 16, 17, 18
Kloeckner v. Solis, 568 U.S. 41 (2012) ......................... 2, 3, 25
Lara v. OPM, 566 U.S. 974 (2012) (No. 11-915) ................. 11
Lindahl v. OPM, 470 U.S. 768 (1985) ..... 11, 12, 16, 19, 23, 25
Luna v. Holder, 637 F.3d 85 (2d Cir. 2011) ........................ 27
Martin v. Office of Special Counsel, 819 F.2d 1181
(D.C. Cir. 1987) ......................................................... 2, 20, 22
Medical Waste Inst. & Energy Recovery Council v.
EPA, 645 F.3d 420 (D.C. Cir. 2011) .................................. 28
Monzo v. Department of Transp., 735 F.2d 1335
(Fed. Cir. 1984) ........................................................... 3, 7, 13
Motor & Equip. Mfrs. Ass’n v. Nichols,
142 F.3d 449 (D.C. Cir. 1998) ............................................. 28
Musselman v. Department of Army,
868 F.3d 1341 (Fed. Cir. 2017), petition for cert.
pending, No. 17-570 (filed Oct. 16, 2017) .......................... 10
Nunnally v. MacCausland, 996 F.2d 1
(1st Cir. 1993) ................................................................ 25, 26
Oja v. Department of the Army, 405 F.3d 1349
(Fed. Cir. 2005) ..................................................... 4, 7, 13, 26
Oklahoma Dep’t of Envtl. Quality v. EPA,
740 F.3d 185 (D.C. Cir. 2014) ............................................. 27
Perry v. MSPB, 137 S. Ct. 1975 (2017) ........................... 3, 24
Reed Elsevier, Inc. v. Muchnick,
559 U.S. 154 (2010).................................................... 8, 12, 19
Ruiz-Martinez v. Mukasey, 516 F.3d 102
(2d Cir. 2008) ....................................................................... 27
Stone v. INS, 514 U.S. 386 (1995) .............................. 8, 15, 21
V
Cases—Continued:
Page
United States v. Kwai Fun Wong,
135 S. Ct. 1625 (2015) ..................................12, 19, 21, 22, 23
United States v. Oregon, 366 U.S. 643 (1961) ..................... 20
Utah Dep’t of Envtl. Quality v. EPA,
765 F.3d 1257 (10th Cir. 2014) ........................................... 28
Willingham v. Ashcroft, 228 F.R.D. 1
(D.D.C. 2005) ................................................................... 2, 20
Zhang v. INS, 348 F.3d 289 (1st Cir. 2003)......................... 27
Constitution, statutes, regulations, and rules:
U.S. Const.:
Art. I ............................................................................. 8, 20
Art. III .............................................................. 8, 20, 21, 29
Civil Rights Act of 1964, Tit. VII,
42 U.S.C. 2000e-16(c) .................................................... 22, 26
Civil Service Reform Act of 1978, Pub. L. No. 95-454,
Tit. II, ch. 77, § 205, 92 Stat. 1143-1144 ...................... 13, 16
Federal Courts Improvement Act of 1982, Pub. L.
No. 97-164, § 144, 96 Stat. 45 ............................................. 13
Federal Employees Life Insurance Improvement
Act, Pub. L. No. 105-311, § 10(a), 112 Stat. 2954 ............. 26
Federal Tort Claims Act, 28 U.S.C. 2671 et seq. ................ 22
Hobbs Administrative Orders Review Act of 1950,
28 U.S.C. 2341 et seq. ............................................................ 8
28 U.S.C. 2344 (1988 & 2012) ......................................... 15
28 U.S.C. 2344 .................................................................. 15
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat.
3009-546 ............................................................................... 15
Immigration and Nationality Act, 8 U.S.C. 1101
et seq. ...................................................................................... 8
8 U.S.C. 1105a(a) (1988 & Supp. V 1993) ...................... 15
VI
Statutes, regulations, and rules—Continued:
Page
8 U.S.C. 1105a(a)(1) (1988 & Supp. V 1993).................. 15
Tucker Act, 28 U.S.C. 1491 ................................................... 16
Whistleblower Protection Enhancement Act of 2012,
Pub. L. No. 112-199, Tit. I, § 108(a), 126 Stat.
1469 ............................................................................ 9, 14, 26
5 U.S.C. 2302(b)(8) ................................................................... 4
5 U.S.C. 7701(a) ....................................................................... 2
5 U.S.C. 7701(a)(1)-(2) ............................................................. 2
5 U.S.C. 7703 ............................................................................ 7
5 U.S.C. 7703(b)(1) .................................... 12, 13, 16, 17, 19, 22
5 U.S.C. 7703(b)(1)(A) .................................................. passim
5 U.S.C. 7703(b)(2) ................................................. 3, 24, 25, 26
8 U.S.C. 1105a(a)(1) (1988 & Supp. V 1993) ........................ 15
8 U.S.C. 1252 .......................................................................... 15
8 U.S.C. 1252(a)(1) ................................................................. 16
8 U.S.C. 1252(b)(1) ........................................................... 16, 21
28 U.S.C. 1295(a) ................................................................... 11
28 U.S.C. 1295(a)(9) ..........................................3, 11, 13, 22, 23
28 U.S.C. 2074 ........................................................................ 17
28 U.S.C. 2401(a) ............................................................. 26, 28
28 U.S.C. 2401(b) ................................................................... 22
28 U.S.C. 2501 ........................................................................ 16
28 U.S.C. App. at 367 ............................................................ 17
5 C.F.R.:
Section 1201.41 .................................................................. 2
Section 1201.111(a) ............................................................ 2
Section 1201.111(b)(1)-(3) ................................................. 2
Section 1201.114 ................................................................ 2
Section 1201.115(a)-(c) ...................................................... 2
Section 1201.117(a) ............................................................ 3
Section 1201.117(c) ............................................................ 3
VII
Rules—Continued:
Page
Fed. R. App. P.:
Rule 15(a)(1) ..................................................................... 17
Rule 26(b)(2) .............................................................. 16, 17
Rule 35(a) ......................................................................... 10
Miscellaneous:
U.S. Court of Appeals for the Federal Circuit, Guide
for Pro Se Petitioners and Appellants, http://www.
cafc.uscourts.gov/sites/default/files/rules-ofpractice/Pro_Se_Guide.pdf (last visited Dec. 13,
2017) ................................................................................. 9, 29
In the Supreme Court of the United States
No. 17-544
ROBERT D. VOCKE, JR., PETITIONER
v.
MERIT SYSTEMS PROTECTION BOARD
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-6a)
is not published in the Federal Reporter, but is available at 680 Fed. Appx. 944. The final order of the Merit
Systems Protection Board (C.A. App. 9-18) 1 is not published in the Merit Systems Protection Board Reporter,
but is available at 2016 WL 1742994. The initial decision
of the administrative judge (C.A. App. 1-8) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on
February 17, 2017. A petition for rehearing en banc was
denied on July 20, 2017 (Pet. App. 7a-9a). The petition
for a writ of certiorari was filed on October 6, 2017. The
“C.A. App.” refers to the appendix that the Merit Systems Protection Board filed in the court of appeals. See Doc. 17 (Oct. 27,
2017); Pet. 3 n.1.
1
(1)
2
jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
STATEMENT
1. a. “A federal employee subjected to an adverse
personnel action such as a discharge or demotion may
appeal her agency’s decision to the Merit Systems Protection Board (MSPB or Board).” Kloeckner v. Solis,
568 U.S. 41, 43 (2012); see 5 U.S.C. 7701(a). “The Board
is an independent, quasi-judicial federal administrative
agency.” Bledsoe v. MSPB, 659 F.3d 1097, 1101 (Fed.
Cir. 2011) (quoting Garcia v. Department of Homeland
Sec., 437 F.3d 1322, 1327 (Fed. Cir. 2006) (en banc)).
MSPB proceedings are “adversarial” in nature.
Martin v. Office of Special Counsel, 819 F.2d 1181, 1188
(D.C. Cir. 1987); see also Willingham v. Ashcroft, 228
F.R.D. 1, 5 (D.D.C. 2005); Bers v. United States Gov’t,
666 F. Supp. 1, 1 (D.D.C. 1987). Employees proceeding
before the Board have a statutory right “to a hearing
for which a transcript will be kept,” as well as “to be
represented by an attorney or other representative.”
5 U.S.C. 7701(a)(1)-(2). The Board’s administrative
judges possess the authority to conduct such hearings.
5 C.F.R. 1201.41. Following the opportunity for a hearing, the administrative judge must “prepare an initial
decision” containing, inter alia, “[f ]indings of fact and
conclusions of law,” “[t]he reasons or bases for those
findings and conclusions,” and “[a]n order” providing
for “appropriate relief.”
5 C.F.R. 1201.111(a) and
(b)(1)-(3).
A federal employee may seek the full Board’s review
of an administrative judge’s adverse initial decision.
5 C.F.R. 1201.114. The full Board reviews the initial decision for “erroneous findings of material fact,” legal error, or an abuse of discretion, 5 C.F.R. 1201.115(a)-(c),
3
in a role consistent with that of an appellate review
panel. See 5 C.F.R. 1201.117(a) (providing the Board
with authority to, inter alia, hear oral arguments, require the submission of briefs, and remand the case to
the administrative judge). If appropriate, the full
Board issues a final order, which may be either precedential or nonprecedential. 5 C.F.R. 1201.117(c).
b. A federal employee aggrieved by the Board’s final
order may seek review in the United States Court of
Appeals for the Federal Circuit, which has “exclusive
jurisdiction” over such “appeal[s] * * * pursuant to sections 7703(b)(1) and 7703(d) of title 5.” 28 U.S.C.
1295(a)(9); see Perry v. MSPB, 137 S. Ct. 1975, 1979
(2017). As relevant here, Section 7703(b)(1)(A) provides:
[A] petition to review a final order or final decision
of the Board shall be filed in the United States Court
of Appeals for the Federal Circuit. Notwithstanding
any other provision of law, any petition for review
shall be filed within 60 days after the Board issues
notice of the final order or decision of the Board.
5 U.S.C. 7703(b)(1)(A). 2
For more than 30 years, the Federal Circuit has held
that the timing requirement of Section 7703(b)(1)(A) is
“jurisdictional,” Monzo v. Department of Transp., 735
F.2d 1335, 1336 (Fed. Cir. 1984), and that “[c]ompliance
A different rule applies if the federal employee is pursuing a
“mixed case,” i.e., “a personnel action serious enough to appeal to the
MSPB” as well as an allegation that “the action was based on discrimination.” Kloeckner, 568 U.S. at 44. In that situation, “the district
court is the proper forum for judicial review.” Perry, 137 S. Ct. at
1988. Pursuant to 5 U.S.C. 7703(b)(2), an employee bringing a
mixed case must file a case in the district court within 30 days of the
Board’s final order. Section 7703(b)(2) is not at issue here.
2
4
with the filing deadline of 5 U.S.C. § 7703(b)(1) is a prerequisite to [the court of appeals’] exercise of jurisdiction,” Oja v. Department of the Army, 405 F.3d 1349,
1360 (Fed. Cir. 2005).
2. Petitioner is a Physical Scientist at the National
Institute of Standards and Technology, which is part of
the United States Department of Commerce (the
Agency). Pet. App. 2a. In the summer of 2012, petitioner “sent emails to his supervisors and up his chain
of command” alleging that “certain managers were receiving significantly higher compensation than [their]
performance ratings warranted.” Ibid. On August 15,
2012, petitioner’s second-level supervisor sent him a
“Letter of Counseling” stating that petitioner had
“fail[ed] to communicate with [his] supervisors appropriately,” and “clarify[ing the supervisor’s] expectations for [petitioner’s] conduct in the future.” Ibid.
While the letter stated that it was “only a counseling”
and would “not be included in [petitioner’s] Official Personnel Folder,” it warned that “any future misconduct
may result in disciplinary action up to and including removal from the Federal Service.” Id. at 3a.
Petitioner filed a complaint with the Office of Special
Counsel (OSC), alleging that the Agency’s letter was an
act of retaliation against him for lawful whistleblowing
disclosures pursuant to 5 U.S.C. 2302(b)(8). Pet. App.
3a. On May 30, 2013, OSC informed petitioner that it
had terminated its inquiry into his allegations. Ibid.
Petitioner sought relief from the Board, and an administrative judge dismissed his case for lack of jurisdiction. Pet. App. 4a. The administrative judge concluded (1) the “Letter of Counseling” did not amount to
a “personnel action” under Section 2302(b)(8), and
(2) the contents of petitioner’s disclosures “concerned,
5
at best, debatable expenditures rather than illegal or
grossly wasteful spending,” and therefore were not protected under the same provision. Ibid.
Petitioner sought the Board’s review. On May 2,
2016, the Board denied the petition. Pet. App. 4a. The
Board affirmed the administrative judge’s finding that
the Letter of Counseling did not constitute a personnel
action, and it vacated the administrative judge’s alternative finding that petitioner’s disclosures were not
protected. Ibid.; see C.A. App. 9-17.
After concluding that “the administrative judge
properly dismissed the appeal for lack of jurisdiction,”
C.A. App. 15, the order included a heading, in bold capital letters: “Notice to the Appellant Regarding Your
Further Review Rights.” Ibid. (capitalization and emphasis altered). The notice stated in relevant part:
You have the right to request review of this final decision by the U.S. Court of Appeals for the Federal
Circuit.
The court must receive your request for review no
later than 60 calendar days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on
time. The court has held that normally it does not
have the authority to waive this statutory deadline
and that filings that do not comply with the deadline
must be dismissed. See Pinat v. Office of Personnel
Management, 931 F.2d 1154 (Fed. Cir. 1991). * * *
If you need further information about your right
to appeal this decision to court, you should refer to
the Federal law that gives you this right. It is found
in title 5 of the United States Code, section 7703
(5 U.S.C. § 7703) (as rev. eff. Dec. 27, 2012). You may
6
read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/
appeals/uscode.htm. Additional information about
the U.S. Court of Appeals for the Federal Circuit is
available at the court’s website, www.cafc.uscourts.
gov. Of particular relevance is the court’s “Guide for
Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and
Forms 5, 6, and 11.
Id. at 15-16.
3. Following issuance of the Board’s decision on
May 2, 2016, petitioner had 60 days—until July 1,
2016—to file a petition for review in the Federal Circuit.
See 5 U.S.C. 7703(b)(1)(A). But the court of appeals did
not receive the petition until July 7, 2016, six days after
the filing deadline. Pet. App. 4a; see Doc. 9, at 1 (Aug.
31, 2016). The clerk initially returned the document to
petitioner because it was untimely. Doc. 9, at 2. Following petitioner’s request for reconsideration, however, the clerk docketed the petition for review. Ibid.
In a per curiam decision, the court of appeals dismissed petitioner’s untimely petition for lack of jurisdiction. Pet. App. 2a, 5a-6a. The court first rejected
petitioner’s contention that the time to file a petition for
review runs from when a litigant receives the Board’s
decision, rather than the date on which the decision is
issued. Id. at 5a. The court observed that although a
prior iteration of Section 7703(b)(1)(A) keyed the filing
deadline to the claimant’s receipt of the Board’s decision, Congress amended that language in 2012 to read
that petitions “shall be filed within 60 days after the
Board issues notice of the final order or decision.” Id.
at 5a-6a (citation omitted). The court was not “persuaded * * * that the new statutory language should,
7
counterintuitively, be interpreted identically to the
old.” Id. at 6a.
The court also rejected petitioner’s argument that
the 60-day period should be subject to equitable tolling.
Citing its precedent, the court explained that “Congress
has limited this court’s review of final decisions of the
Board to those petitions ‘filed within 60 days after the
Board issues notice of the final order or decision of the
Board,’ ” and “[f ]ailure to comply with that statutory
deadline prevents jurisdiction in this court.” Pet. App.
5a (quoting 5 U.S.C. 7703(b)(1)(A) and citing Oja, 405
F.3d at 1360; Monzo, 735 F.2d at 1336); see id. at 6a
(“This panel is bound * * * by our prior precedent.”).
The court further noted that, just the day before, another panel had reaffirmed that the 60-day appeal period in Section 7703 was jurisdictional and could not be
equitably tolled. Fedora v. MSPB, 848 F.3d 1013 (Fed.
Cir. 2017), petition for cert. pending, No. 17-557 (filed
Oct. 6, 2017). Like the court in this case, the Fedora
majority relied on the Federal Circuit’s prior decisions
holding that “[c]ompliance with” Section 7703(b)(1)(A)’s
60-day filing deadline “is a prerequisite to [the court’s]
exercise of jurisdiction.” Fedora Pet. App. 4a (quoting
Oja, 405 F.3d at 1360) (first set of brackets in original).
The majority acknowledged that “in recent years” this
Court “has recognized that not all statutory time limits
are properly characterized as jurisdictional.” Ibid. But
it stated that many of this Court’s cases involved
“claims-processing rules” rather than “[a]ppeal periods
to Article III courts,” which this Court had addressed
in Bowles v. Russell, 551 U.S. 205 (2007). Fedora Pet.
App. 4a. As the court of appeals explained, that decision
held that the Court’s recent cases did not “call[] into
8
question [the Court’s] longstanding treatment of statutory time limits for taking an appeal as jurisdictional.”
Id. at 5a (quoting Bowles, 551 U.S. at 210) (second set
of brackets in original); see ibid. (discussing Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010)).
The Fedora majority also addressed Henderson v.
Shinseki, 562 U.S. 428 (2011), which held that the time
for appealing from the Board of Veterans’ Appeals to
the Court of Appeals for Veterans Claims was subject
to equitable tolling. Fedora Pet. App. 6a. The majority
found Henderson inapposite because the appeal there
was to an Article I tribunal, rather than an Article III
court, and the case involved a “unique administrative
scheme” that was “unusually protective of claimants.”
Ibid. (quoting Henderson, 562 U.S. at 437-438). Moreover, the majority noted, Henderson distinguished
Stone v. INS, 514 U.S. 386, 405 (1995), in which this
Court held that an appeal period from an administrative
agency—the Board of Immigration Appeals—to an Article III court under the Hobbs Administrative Orders
Review Act of 1950 (Hobbs Act), 28 U.S.C. 2341 et seq.,
and the Immigration and Nationality Act (INA),
8 U.S.C. 1101 et seq., was jurisdictional. Fedora Pet.
App. 6a; see ibid. (noting Henderson’s discussion of the
fact that “lower courts uniformly treat the time limit for
review of certain final agency decisions under the
Hobbs Act as jurisdictional”). The Fedora majority
thus found that Bowles was more relevant than Henderson in assessing whether Section 7703(b)(1)(A) is jurisdictional in nature. Id. at 6a-7a.
The Fedora majority further explained that because
Section 7703(b)(1)(A)’s 60-day filing deadline is jurisdictional, it is not subject to equitable tolling. Fedora
9
Pet. App. 7a-9a. The petitioner in Fedora (like petitioner here) thus could not excuse the untimeliness of his
petition by pointing to his reliance on the court of
appeals’ Guide for Pro Se Litigants (Guide), http://www.
cafc.uscourts.gov/sites/default/files/rules-of-practice/
Pro_Se_Guide.pdf. Pet. App. 8a. Although it was updated in December 2016, see Fedora Pet. 8 n.3, the
Guide previously reflected the prior version of Section
7703(b)(1)(A), which required a petition for review to be
filed within 60 days of receipt of the Board’s decision.
Pet. App. 6a; Fedora Pet. App. 7a-8a; see Whistleblower
Protection Enhancement Act of 2012 (WPEA), Pub. L.
No. 112-199, § 108(a), 126 Stat. 1469 (amending the
statute to require that a petition for review be filed
within 60 days of issuance of the Board’s decision). In
any event, the Fedora court noted, “the Board’s final
order” in that case (like this one) had “specifically
stated that the 60-day [appeal] period would begin on
the date the final order was issued,” and it cautioned
Mr. Fedora “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.’ ”
Fedora Pet. App. 8a-9a (citation omitted; second and
third sets of brackets in original); see id. at 9a (pointing
out that order specifically cited the statute and “not[ed]
the revision effective December 27, 2012.”); pp. 5-6,
supra.
Judge Plager dissented in Fedora. Fedora Pet. App.
10a-31a. In his view, the majority’s analysis did “not do
justice to the complexities of the issue [petitioner] presents” and “probably result[ed] in a wrong conclusion.”
Id. at 10a. Judge Plager did not, however, determine
that petitioner was necessarily correct that Section
10
7703(b)(1)(A)’s 60-day filing deadline is not jurisdictional. Id. at 30a. Instead, he urged the court of appeals
to consider the case en banc. Ibid.
4. Petitioners in both Fedora and this case obtained
counsel and sought rehearing en banc.
On July 20, 2017, the court of appeals denied rehearing en banc in Fedora. Fedora Pet. App. 32a-44a. Four
judges dissented from that decision: Judge Stoll did so
without opinion, while Judge Wallach issued a dissenting opinion in which Judges Newman and O’Malley
joined. Id. at 33a. The dissent criticized the majority
for “analy[zing] the question presented using an incomplete framework,” but, like Judge Plager, it did not conclude that the majority’s decision was necessarily incorrect. Id. at 40a (capitalization altered); see id. at 43a. 3
That same day, the court of appeals issued a per curium order denying petitioner’s request for rehearing
en banc in this case. Pet. App. 7a-9a. Judges Wallach,
Newman, and O’Malley dissented “for the reasons
stated” in Judge Wallach’s dissent in Fedora. Id. at 8a.
Judge Stoll again dissented without opinion. Ibid. 4
ARGUMENT
The court of appeals correctly held that Section
7703(b)(1)(A)’s 60-day deadline for seeking Federal Cir-
Judge Plager, whose senior status rendered him ineligible to
vote on the petition for rehearing en banc in Fedora, see Fed. R.
App. P. 35(a), dissented from the denial of panel rehearing “for the
reasons expressed in [his] dissent to the panel majority opinion,” as
well as those “expressed in Judge Wallach’s dissent from the denial
of the petition for rehearing en banc.” Fedora Pet. App. 44a.
4
The court of appeals also relied on Fedora in Musselman v. Department of Army, 868 F.3d 1341 (per curiam), petition for cert.
pending, No. 17-570 (filed Oct. 16, 2017).
3
11
cuit review of an order or decision of the Board is jurisdictional and not subject to equitable tolling. The decision does not conflict with any decision of this Court or
of any other court of appeals. This Court has previously
denied review of a petition for a writ of certiorari raising
the same question, see Lara v. OPM, 566 U.S. 974
(2012) (No. 11-915), and the same result is warranted
here.
1. Section 1295(a) of Title 28 of the United States
Code provides that “[t]he 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 Protection Board, pursuant to sections 7703(b)(1) and 7703(d) of title 5.”
28 U.S.C. 1295(a)(9) (emphases added). Subject to certain exceptions not relevant here, Section 7703(b)(1)(A)
in turn states:
[A] petition to review a final order or final decision
of the Board shall be filed in the United States Court
of Appeals for the Federal Circuit. Notwithstanding
any other provision of law, any petition for review
shall be filed within 60 days after the Board issues
notice of the final order or decision of the Board.
5 U.S.C. 7703(b)(1)(A). In light of the text, structure,
and history of these provisions, the court of appeals correctly concluded that it lacks jurisdiction to review a petition that fails to comply with Section 7703(b)(1)(A)’s
timing requirement.
a. This Court has previously recognized that Section
7703(b)(1) is jurisdictional in nature. In Lindahl v.
OPM, 470 U.S. 768, 792 (1985), the Court explained that
“Sections 1295(a)(9) and 7703(b)(1) together * * * provide for exclusive jurisdiction over MSPB decisions in
12
the Federal Circuit.” And the Court continued: “Section 7703(b)(1) confers the operative grant of jurisdiction
—the ‘power to adjudicate.’ ” Id. at 793 (emphasis added); see also, e.g., Bowles v. Russell, 551 U.S. 205, 213
(2007) (“[T]he notion of subject matter jurisdiction obviously extends to classes of cases falling within a
court’s adjudicatory authority.”) (citation, ellipses, and
internal quotation marks omitted). Lindahl expressly
rejected the argument that Section 7703(b)(1) was
“nothing more than a venue provision” with no “relat[ion] to the power of a court.” 470 U.S. at 792, 793
n.30 (citation omitted). Instead, the Court emphasized
that Section 7703(b)(1) is what gives the Federal Circuit
the “ ‘power to adjudicate’ ” cases that “fall within [the
Section’s] jurisdictional perimeters.” Id. at 793.
Although Lindahl did not specifically discuss Section 7703(b)(1)(A)’s timing requirement, that condition
is necessarily one of the “jurisdictional perimeters,” 470
U.S. at 793, that defines the Federal Circuit’s power or
authority to adjudicate. Congress’s inclusion of that
condition within Section 7703(b)(1)’s “jurisdictional
grant” demonstrates that Congress intended it as a limitation on the scope of that grant. Indeed, in considering other provisions to be nonjurisdictional, this Court
has relied on the fact that the statutes separately addressed jurisdiction and timeliness, without “condition[ing] the jurisdictional grant on the limitations period, or otherwise link[ing] those separate provisions.”
United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1633
(2015); see, e.g., Gonzalez v. Thaler, 565 U.S. 134, 135
(2012) (requirement was nonjurisdictional where Congress “set off ” the jurisdictional and nonjurisdictional
requirements in “distinct paragraphs”); Reed Elsevier,
13
Inc. v. Muchnick, 559 U.S. 154, 164-165 (2010) (requirement was nonjurisdictional where it was “located in a
provision ‘separate’ from those granting federal courts
subject-matter jurisdiction,” and those provisions did
not “condition [their] jurisdictional grant[s] on whether
copyright holders have registered their works before
suing for infringement”). By contrast, here, this Court
has held that Section 7703(b)(1) itself is jurisdictional.
And if there were any doubt, the time bar and jurisdictional grant are located in the same provision (Section
7703(b)(1)), which is in turn “link[ed]” by an express
cross-reference to Section 7703(b)(1) in Section
1295(a)(9), which provides the Federal Circuit with “exclusive jurisdiction” over “an appeal from a final order
or final decision of the Merit Systems Protection Board,
pursuant to section[] 7703(b)(1).” 28 U.S.C. 1295(a)(9)
(emphasis added).
Every court of appeals to consider the question has
held that Section 7703(b)(1)’s time bar is jurisdictional.
The Federal Circuit has so held for more than 30 years.
See Pet. App. 5a (citing Oja v. Department of the Army,
405 F.3d 1349, 1360 (2005); Monzo v. Department of
Transp., 735 F.2d 1335, 1336 (Fed. Cir. 1984)). And
while the provision has channeled review exclusively to
the Federal Circuit since 1982, the original 1978 version
provided for review in the regional courts of appeals.
See Civil Service Reform Act of 1978 (CSRA), Pub. L.
No. 95-454, Tit. II, ch. 77, 92 Stat. 1143-1144; Federal
Courts Improvement Act of 1982, Pub. L. No. 97-164,
§ 144, 96 Stat. 45. During that initial period, the courts
of appeals for the Eighth, Ninth, and District of Columbia Circuits also recognized the jurisdictional nature of
the statute’s time limitation. Oja, 405 F.3d at 1357 n.5
(citing decisions).
14
Congress has left those holdings undisturbed. Most
recently, in 2012, Congress passed the WPEA, which
clarified that the commencement of the appeal period is
the date of the MSPB decision, not its receipt. WPEA
§ 108(a), 126 Stat. 1469. In imposing a less petitionerfriendly triggering date for the 60-day appeal period in
Section 7703(b)(1)(A), Congress did nothing to alter the
jurisdictional nature of the filing deadline.
b. The conclusion that Section 7703(b)(1)(A)’s time
limit is jurisdictional accords with this Court’s precedents addressing analogous time limits for seeking judicial review in the federal courts of appeals. See Henderson v. Shinseki, 562 U.S. 428, 436 (2011) (“When ‘a
long line of this Court’s decisions left undisturbed by
Congress,’ * * * has treated a similar requirement as
‘jurisdictional,’ we will presume that Congress intended
to follow that course.”) (citation omitted). In Bowles,
supra, this Court held that the statutory time limit for
filing a notice of appeal in a civil case is jurisdictional.
As the Court explained, “[a]lthough 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.” 551 U.S. at 210. Just this Term, the
Court reiterated Bowles’ holding that “an appeal filing
deadline prescribed by statute will be regarded as ‘jurisdictional,’ meaning that late filing of the appeal notice necessitates dismissal of the appeal.” Hamer v.
Neighborhood Hous. Servs., No. 16-658 (Nov. 8, 2017),
slip op. 1; see id. at 2 (“[A] provision governing the time
to appeal in a civil action qualifies as jurisdictional only
if Congress sets the time.”).
15
Stone v. INS, 514 U.S. 386 (1995), further supports
the decision below. The timing provision at issue there
was materially similar to Section 7703(b)(1)(A), in that
it set a deadline for seeking the court of appeals’ review
of the decision of an adjudicative administrative agency
(there, the Board of Immigration Appeals). Specifically, the INA provided that “[t]he procedure prescribed by, and all the provisions of chapter 158 of title
28”—the Hobbs Act—“shall be the sole and exclusive
procedure for the judicial review of all final orders of
deportation.” 8 U.S.C. 1105a(a) (1988 & Supp. V 1993).
The INA’s judicial review section then further provided
that “a petition for review [of a final deportation order]
may be filed not later than 90 days after the date of the
issuance of the final deportation order, or, in the case of
an alien convicted of an aggravated felony, not later
than 30 days after the issuance of such order.” Stone,
514 U.S. at 390 (quoting 8 U.S.C. 1105a(a)(1) (1988 &
Supp. V 1993)) (brackets in original). 5 The Court concluded in Stone that this statutory time limit was not
subject to tolling because it was “jurisdictional in nature” and therefore “must be construed with strict fidelity to [its] terms.” Id. at 405. And consistent with
Stone, the courts of appeals have uniformly concluded
that the 60-day time limit for court-of-appeals review
of certain agency decisions under the Hobbs Act,
28 U.S.C. 2344, is likewise jurisdictional. Henderson,
562 U.S. at 437. 6
5
The INA thus altered the 60-day requirement for seeking judicial review under the Hobbs Act. See 28 U.S.C. 2344 (1988 & 2012).
6
The INA’s judicial-review provisions were revised in 1996 by the
Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Pub. L. No. 104-208, 110 Stat. 3009-546. See 8 U.S.C. 1252.
That provision continues to incorporate the review provisions in the
16
c. The origins of Section 7703(b)(1)(A) further support the conclusion that its time limitation is jurisdictional. Before the CSRA’s enactment, federal employees sought review of employment-related actions in the
Court of Claims pursuant to the Tucker Act, 28 U.S.C.
1491. As this Court held in John R. Sand & Gravel Co.
v. United States, 552 U.S. 130, 134-139 (2008), the
Tucker Act’s filing deadline, 28 U.S.C. 2501, is jurisdictional in nature. The CSRA established the MSPB and
directed that “jurisdiction over ‘a final order or final decision of the Board’ would be in the Court of Claims,
pursuant to the Tucker Act, or in the regional courts of
appeals, pursuant to 28 U.S.C. 2342,” the Hobbs Act’s
review provision. Lindahl, 470 U.S. at 774 (quoting
CSRA § 205, 92 Stat. 1143-1144). As the courts of appeals agree, the Hobbs Act’s time bar, like the Tucker
Act’s, is jurisdictional. See Henderson, 562 U.S. at 437.
Thus, Section 7703(b)(1) replaced judicial-review provisions for which the applicable time bar has been held to
be jurisdictional in nature. This history further supports the conclusion that Section 7703(b)(1)(A)’s filing
deadline, too, is jurisdictional. See id. at 436 (“When ‘a
long line of this Court’s decisions left undisturbed by
Congress,’ * * * has treated a similar requirement as
‘jurisdictional,’ we will presume that Congress intended
to follow that course.”) (citation omitted). 7
Hobbs Act, see 28 U.S.C. 1252(a)(1), but subject to specific exceptions and other provisions in Section 1252, including a requirement
that a petition for review now must be filed within 30 days, see 28
U.S.C. 1252(b)(1).
7
The Federal Rules of Appellate Procedure also support treating
the time limit in Section 7703(b)(1)(A) as jurisdictional. Rule
26(b)(2) states that a court of appeals “may not extend the time to
file * * * a notice of appeal from or a petition to enjoin, set aside,
17
d. Finally, “[ j]urisdictional treatment of ” Section
7703(b)(1)(A) “makes good sense.” Bowles, 551 U.S. at
212. “Because Congress decides whether federal courts
can hear cases at all, it can also determine when, and
under what conditions, federal courts can hear them.”
Id. at 212-213. And Congress has good practical reason
to enact jurisdictional time limitations where, as here,
a claimant seeks direct review in the court of appeals.
As a general matter, it will be more cumbersome for a
court of appeals, as opposed to a district court, to adjudicate a litigant’s claim that a deadline should be equitably tolled in a particular case. Here, for example, petitioner maintains that he relied on the court of appeals’
Guide, which reflected the prior version of Section
7703(b)(1)(A); at the same time, the Board’s Order correctly stated that the time to file ran from issuance of
its decision (rather than petitioner’s receipt of it), and it
warned petitioner of the importance of timely filing
suspend, modify, enforce, or otherwise review an order of an administrative agency, board, commission, or officer of the United
States, unless specifically authorized by law.” Fed. R. App. P.
26(b)(2). See also Fed. R. App. P. 15(a)(1) (“Review of an agency
order is commenced by filing, within the time prescribed by law, a
petition for review with the clerk of a court of appeals authorized to
review the agency order.”). The Rules thus expressly contemplate
that limitations like Section 7703(b)(1)’s cannot be tolled by a
court—a signature feature of a jurisdictional time limit. See John
R. Sand & Gravel Co., 552 U.S. at 134. Although Rule 26(b)(2) did
not originate in Congress, it was presented to Congress before
going into effect, see 28 U.S.C. 2074; its materially identical
predecessor was in effect when Congress first enacted Section
7703(b)(1) in 1978 (see 28 U.S.C. App. at 367 (1976)); and that predecessor version provided the background against which Congress
drafted Section 7703(b)(1) (and has amended it without material
alteration, see pp. 13-14, supra).
18
while pointing him to the text of the statute itself. See
C.A. App. 16. The Federal Circuit would not be wellsituated to perform the adjudicatory factfinding that
might be necessary to evaluate and weigh these competing factors in the equitable-tolling analysis. Although it
could, if necessary, remand to the MSPB to develop the
facts, Congress could reasonably have concluded that,
on the whole, the cost of such remands outweighs any
potential benefit of trying to identify the rare case in
which equitable tolling might in fact be warranted. Cf.
John R. Sand, 552 U.S. at 133 (listing “facilitating the
administration of claims” and “promoting judicial efficiency” among the reasons why a statute might contain
a jurisdictional time limit).
2. Petitioner offers no persuasive reason for treating Section 7703(b)(1)(A)’s time limit as nonjurisdictional. He points out (Pet. 1, 15-16) that the Court’s recent cases have sought to establish clearer rules about
what statutory requirements will be considered jurisdictional, and he faults the Federal Circuit for purportedly failing to apply that “framework.” But the court of
appeals acknowledged this Court’s more recent cases
and distinguished them. See Fedora Pet. App. 4a-6a.
Whether considered under Bowles and Stone or Irwin
v. Department of Veterans Affairs, 498 U.S. 89 (1990),
and its progeny, Section 7703(b)(1)(A)’s time limit is jurisdictional and precludes equitable tolling.
a. Petitioner contends (Pet. 15-19) that Irwin governs this case. But as explained above, Bowles and
Stone are the more relevant precedents here. In any
event, even where Irwin applies, this Court has made
clear that Congress need not “incant magic words” to
demonstrate that a particular provision is jurisdictional.
Hamer, slip op. 8 n.9. Instead, this Court “consider[s]
19
context, including this Court’s interpretation of similar
provisions in many years past, as probative of [Congress’s intent].’ ” Ibid. (citations and internal quotation
mark omitted) (second set of brackets in original); see
also Wong, 135 S. Ct. at 1632-1633; Gonzalez, 565 U.S.
at 142 n.3; Henderson, 562 U.S. at 436; Reed Elsevier,
Inc., 559 U.S. at 168.
Here, this Court has not merely interpreted a “similar provision[]” to be jurisdictional, Hamer, slip op. 8
n.9—it has held that Section 7703(b)(1) itself “confers
the operative grant of jurisdiction.” Lindahl, 470 U.S.
at 793. That decision, as well as the Court’s decisions in
Bowles and Stone, strongly support the conclusion that
Section 7703(b)(1)’s 60-day deadline for seeking review
in the Federal Circuit is jurisdictional. See pp. 11-15,
supra.
b. Petitioner also is incorrect in asserting (Pet. 1519) that the decision below “conflicts with” Henderson,
supra, and Bowen v. City of New York, 476 U.S. 467
(1986). Neither of those cases controls the interpretation of statutory time limits for seeking direct review in
a court of appeals of an agency decision in general, or
the interpretation of Section 7703(b)(1) in particular.
Henderson held that the deadline to appeal a decision
of the Board of Veterans’ Appeals to the Veterans
Court—an “Article I tribunal”—was not jurisdictional;
in reaching that conclusion, Henderson expressly distinguished cases, like Bowles, that “involved review by
Article III courts.” 562 U.S. at 437-438. Moreover,
Henderson considered a “unique administrative scheme,”
id. at 438, and it found “most telling * * * the singular
characteristics” of that system: it was “ ‘unusually protective’ of claimants,” “nonadversarial” in nature, and
20
“plainly reflected” Congress’s “ ‘long standing’ ” “ ‘solicitude * * * for veterans.’ ” Id. at 437, 440 (quoting
Heckler v. Day, 467 U.S. 104, 106-107 (1984), and
United States v. Oregon, 366 U.S. 643, 647 (1961)). In
fact, Henderson found that “[t]he contrast between ordinary civil litigation—which provided the context of
our decision in Bowles—and the system that Congress
created for the adjudication of veterans’ benefits claims
could hardly be more dramatic.” Id. at 440.
The framework Congress adopted for MSPB actions
has far more in common with the appeals in “ordinary
civil litigation,” Henderson, 562 U.S. at 440, at issue in
Bowles, than it does with the scheme considered in Henderson. Proceedings before the MSPB are adversarial.
See p. 2, supra; Martin v. Office of Special Counsel, 819
F.2d 1181, 1188 (D.C. Cir. 1987) (holding, in the context
of the Privacy Act, that there is no “functional reason to
distinguish between documents prepared in anticipation of a district court action and those prepared in anticipation of proceedings before MSPB”); Willingham
v. Ashcroft, 228 F.R.D. 1, 5 (D.D.C. 2005) (describing an
MSPB proceeding as “adversarial”); Bers v. United
States Gov’t, 666 F. Supp. 1, 1 (D.D.C. 1987) (same).
And an appeal of the Board’s decision—which is itself
the third level of review after an agency decision and an
initial decision by an administrative judge—is directly
reviewed by an Article III court, the Federal Circuit,
rather than an Article I tribunal. See Bledsoe v. MSPB,
659 F.3d 1097, 1101 (Fed. Cir. 2011) (“[T]he Board is an
independent, quasi-judicial federal administrative
agency.”) (citation omitted). 8
As petitioner notes (Pet. 17), Henderson stated that “Bowles did
not hold categorically that every deadline for seeking judicial review
8
21
Petitioner’s reliance on Bowen (Pet. 18-19) is similarly misplaced. The Court there held that a district
court could toll the deadline for obtaining review of the
denial of Social Security benefits. See 476 U.S. at 479482. Significantly, however, the statute at issue in
Bowen did not involve direct review in a court of appeals, and it already explicitly permitted tolling by the
Secretary of Health and Human Services; Congress had
thus expressed a “clear intention to allow tolling in some
cases,” and this Court simply made clear that courts
also could toll the period when the agency did not. Id.
at 480. In addition, like the provision at issue in Henderson, the time limit in Bowen was “contained in a statute that Congress designed to be ‘unusually protective’
of claimants.” Ibid. (quoting Heckler, 467 U.S. at 106).
c. Petitioner’s citations to this Court’s other timebar cases fare no better. Relying on Wong, supra, and
Irwin, supra, petitioner contends (Pet. 19) that “equitable tolling [is] available for a timing provision that—
like § 7703(b)(1)(A)—establishes the period for filing in
an Article III court after an administrative agency rejects a claim.” But that assertion (like petitioner’s submission more generally) simply ignores Stone, which
held that such a provision is in fact jurisdictional. See
514 U.S. at 390.
in civil litigation is jurisdictional[; i]nstead, Bowles concerned an appeal from one court to another court.” 562 U.S. at 436; see also
Hamer, slip op. 8 n.9 (noting that “[i]n cases not involving the timebound transfer of adjudicatory authority from one Article III court
to another, we have additionally applied a clear-statement rule”).
The government’s argument here, however, is not that Bowles renders all statutory time bars, or all time bars in civil litigation, jurisdictional. It is instead that Section 7703(b)(1)(A), which governs an
appeal from a quasi-judicial agency to the court of appeals, is jurisdictional.
22
In any event, Wong and Irwin each considered a
statute governing the time for filing an action in district
court, rather than for appealing a quasi-judicial independent agency’s decision to the court of appeals. See
Wong, 135 S. Ct. at 1631-1633 (holding that provision
setting deadline for filing claims under the Federal Tort
Claims Act, 28 U.S.C. 2671 et seq. in federal district
court, 28 U.S.C. 2401(b), is not jurisdictional); Irwin,
498 U.S. at 95-96 (same for provision governing time to
file civil action under Title VII of the Civil Rights Act of
1964, 42 U.S.C. 2000e-16(c)); Bledsoe, 659 F.3d at 1101
(describing the Board as an “independent, quasijudicial federal administrative agency”) (citation omitted); Martin, 819 F.2d at 1188 (similar). As discussed
above, and as Bowles and Stone suggest, there are good
reasons for Congress to treat the two types of time bars
differently, including that courts of appeals lack the
factfinding capacity necessary to make equitable tolling
determinations in the first instance. More generally,
both Irwin and Wong recognize that the presumption in
favor of equitable tolling they applied is “rebuttable.”
Wong, 135 S. Ct. at 1631 (“A rebuttable presumption, of
course, may be rebutted.”); Irwin, 498 U.S. at 96 (“Congress, of course, may [foreclose equitable tolling] if it
wishes to do so.”). Here, any such presumption is rebutted by, inter alia, Section 7703(b)(1)(A)’s combination of a jurisdiction-granting provision and a time bar
in one subparagraph; the provision’s express textual
link to Section 1295(a)(9); this Court’s decision in Lindahl, which recognized that Section 7703(b)(1) is jurisdictional; Congress’s acquiescence in that judgment;
and this Court’s decisions regarding similar provisions
in Bowles and Stone.
23
d. Indeed, petitioner is wrong to contend (Pet. 20)
that the time limitation in Section 7703(b)(1) has no connection to any provision governing subject-matter jurisdiction. As explained above (see pp. 11-13, supra), this
Court has held to the contrary, recognizing that Section
7703(b)(1) itself functions as a “jurisdictional grant” of
authority for the Federal Circuit to review MSPB decisions. Lindahl, 470 U.S. at 792. And while petitioner
contends that “[i]t is 28 U.S.C. § 1295(a)(9), not § 7703,
that gives the Federal Circuit ‘subject-matter jurisdiction,’ ” Pet. 20 (quoting Fedora Pet. App. 12a (Plager,
J., dissenting)), that provision favors the government’s
view: it expressly conditions the grant of jurisdiction on
Section 7703(b)(1), which includes Section 7703(b)(1)(A)’s
timing provision. See 28 U.S.C. 1295(a)(9) (“The United
States Court of Appeals for the Federal Circuit shall
have exclusive jurisdiction * * * of an appeal from a
final order or final decision of the [MSPB], pursuant to
sections 7703(b)(1) and 7703(d) of title 5.”). Thus, in
contrast to Wong, 135 S. Ct. at 1633, this is not a case in
which “[n]othing conditions the jurisdictional grant on
the limitations periods, or otherwise links those separate provisions.”
3. The decision below does not warrant this Court’s
review.
a. Because the Federal Circuit has exclusive jurisdiction over cases subject to Section 7303(b)(1)(A),
there is no division of authority with respect to the question presented. Instead, petitioner contends (Pet. 2533) that the courts of appeals are “intractably divided”
regarding whether certain other time limits are jurisdictional. But this case does not implicate those other
disagreements. And in any event, this Court has estab-
24
lished principles to resolve the varied scenarios petitioner notes, and it applied those principles just last
month in Hamer, supra. Thus, even if review were otherwise warranted, it would be premature because the
courts of appeals have not yet had the opportunity to
interpret and apply that decision.
i. Petitioner maintains that there are “three acknowledged circuit splits about” the jurisdictional status of “particular timing provisions.” Pet. 30 (emphasis
omitted).
First, petitioner contends (Pet. 31) that the courts of
appeals are divided regarding whether the time limit in
5 U.S.C. 7703(b)(2) is jurisdictional. He claims (Pet. 31)
that the decisions of the four courts of appeals that have
held it is not are “in serious tension—if not direct
conflict—with the decision below.”
Petitioner is incorrect. Section 7703(b)(2) governs
“mixed cases,” which “fall[] within the compass” of the
Board’s jurisdiction but also allege discrimination by
the agency. Perry v. MSPB, 137 S. Ct. 1975, 1979, 1988
(2017). Section 7703(b)(2) states:
Cases of discrimination subject to the provisions of
section 7702 of this title shall be filed under section
717(c) of the Civil Rights Act of 1964 (42 U.S.C.
2000e-16(c)), section 15(c) of the Age Discrimination
in Employment Act of 1967 (29 U.S.C. 633a(c)), and
section 16(b) of the Fair Labor Standards Act of
1938, as amended (29 U.S.C. 216(b)), as applicable.
Notwithstanding any other provision of law, any
such case filed under any such section must be filed
within 30 days after the date the individual filing the
case received notice of the judicially reviewable action under such section 7702.
5 U.S.C. 7703(b)(2).
25
Although Sections 7703(b)(1)(A) and (b)(2) are
neighboring provisions, they differ in important ways.
Unlike Section 7703(b)(1)(A), which provides that “a
petition to review a final order or final decision of the
Board shall be filed in the United States Court of Appeals
for the Federal Circuit,” 5 U.S.C. 7703(b)(1)(A), Section
7703(b)(2) does not provide jurisdiction in that court; it
instead channels mixed cases to the district courts via
other statutory provisions. See Kloeckner v. Solis, 568
U.S. 41, 46 (2016) (“The enforcement provisions of the
antidiscrimination statutes listed in [Section 7703(b)(2)]
all authorize suit in federal district court.”). Section
7703(b)(2) thus does not follow the structure of Section
7703(b)(1)(A), which combines an express, selfcontained jurisdictional grant to the court of appeals
with a time limitation. Section 7703(b)(2) also is not
cross-referenced in Section 1295(a), which expressly
provides an “exclusive” grant of “jurisdiction” to the
Federal Circuit “pursuant to” Section 7703(b)(1). 28
U.S.C. 1295(a). And this Court’s decision in Lindahl—
which held that Section 7703(b)(1) “confers the operative grant of jurisdiction”—did not address Section
7703(b)(2). 470 U.S. at 793.
That Section 7703(b)(2) steers cases to the district
courts, rather than the court of appeals, is significant in
other respects as well. As noted above, the district
courts are better-equipped to address the fact-intensive
inquiries that equitable tolling requires. See pp. 17-18,
supra. And the specific provisions cross-referenced in
Section 7703(b)(2) affected the jurisdictional analysis in
the cases petitioner cites. For example, in holding that
Section 7703(b)(2)’s filing deadline is subject to equitable tolling, Nunnally v. MacCausland, 996 F.2d 1 (1st
Cir. 1993) (per curiam), explained that the provision “is
26
not only similar to, but intersects with, the * * * provision directly addressed in Irwin,” 42 U.S.C. 2000e16(c). 996 F.2d at 3. Given the link between the two
provisions, the court was unwilling to treat the deadline
the plaintiff faced in that case differently (i.e., as jurisdictional) because of the particular procedural route she
had chosen to take. Ibid.; see Oja, 405 F.3d at 1358. 9
Petitioner’s other purported divisions of authority
are even less relevant. He alleges (Pet. 32-33) that
there is a 4-4 disagreement among the courts of appeals
“concerning the proper treatment of the time limit”
governing a suit against the government in district
court under 28 U.S.C. 2401(a), as well as a 2-1 split as to
whether the Clean Water Act’s time limit for filing a petition for review, 42 U.S.C. 7607(b), is jurisdictional.
But even if this Court’s review of those other statutory
provisions were warranted, petitioner provides no reason why this case—which does not involve either one—
would provide a suitable vehicle for addressing any disagreement.
ii. Petitioner’s attempt (Pet. 25-30) to suggest a
more theoretical division among the courts of appeals
fares no better. He contends (Pet. 26-28) that the Federal Circuit has “join[ed] three other courts of appeals”
which hold that, “under Bowles, time limits for seeking
Article III review of agency action are, as a category,
Congress’s actions also reflect that it views Sections 7703(b)(1)
and (b)(2) as independent from one another. Since Irwin, Congress
has twice amended Section 7703(b)(1): in 1998, when it changed the
number of days for an appeal from 30 to 60; and in 2012, when it made
the date of the decision the trigger for the Section 7703(b)(1)(A) appeal period, while leaving Section 7703(b)(2) unchanged. See WPEA
§ 108, 126 Stat. 1469; Federal Employees Life Insurance Improvement Act, Pub. L. No. 105-311, § 10(a), 112 Stat. 2954.
9
27
jurisdictional,” while four other circuits “reject[] the
view that Bowles articulates a categorical rule.”
Petitioner’s argument fails because the cases he cites
address different statutes, and their analysis depends
on the particular provision at issue in each case. For
example, the First and Second Circuit cases petitioner
cites consider the statutory time limit for seeking review of a Board of Immigrations Appeal removal order,
8 U.S.C. 1252(b)(1). See Ruiz-Martinez v. Mukasey,
516 F.3d 102, 118 (2d Cir. 2008); Guedes v. Mukasey,
317 Fed. Appx. 16, 17 (1st Cir. 2008) (per curiam)
(adopting Ruiz-Martinez’s reasoning); Luna v. Holder,
637 F.3d 85, 92 (2d Cir. 2011) (following RuizMartinez). Those decisions do not adopt the per se rule
petitioner claims; rather, Ruiz-Martinez simply reaffirms a pre-Bowles decision holding the particular time
limit jurisdictional, and it notes that Bowles provides
“[s]upport” for that prior holding. 516 F.3d at 118; see
also Guedes, 317 Fed. Appx. at 27 (relying on the court
of appeals’ pre-Bowles decision in Zhang v. INS, 348
F.3d 289, 292 (1st Cir. 2003)).
Petitioner also points (Pet. 27-29) to decisions of the
Tenth and D.C. Circuits holding that the time limit for
filing a petition for review under the Clean Air Act is
jurisdictional, and he notes that those decisions reach a
different result than the Seventh Circuit did in Clean
Water Action Council of Northeast Wisconsin, Inc. v.
EPA, 765 F.3d 749, 751-752 (2014). But the D.C. and
Tenth Circuits’ cases do not depend on the categorical
reading of Bowles that petitioner claims. Like the First
and Second Circuits’ decisions, the D.C. Circuit’s cases
merely adopt pre-Bowles precedent to hold that a particular statutory deadline is jurisdictional. See Oklahoma Dep’t of Envtl. Quality v. EPA, 740 F.3d 185, 191
28
(2014) (relying on Medical Waste Inst. & Energy Recovery Council v. EPA, 645 F.3d 420, 427 (D.C. Cir. 2011),
which in turn relies on Motor & Equip. Mfrs. Ass’n v.
Nichols, 142 F.3d 449, 460 (D.C. Cir. 1998)). And as petitioner must concede (Pet. 30), the Tenth Circuit has
not adopted a bright-line rule that Bowles renders all
appeal deadlines jurisdictional: to the contrary, in the
decision petitioner cites, the court stated that a clear
statement rule applied, but found that the Clean Air Act
“exhibited the requisite statement of clear congressional intent to foreclose tolling.” See Utah Dep’t of Envtl. Quality v. EPA, 765 F.3d 1257, 1258-1261 (10th Cir.
2014) (denying rehearing en banc).
Petitioner’s final two cases (Pet. 29-30) also do not
demonstrate a division of authority. They involve the
deadline for bringing a readjustment petition in the
United States Tax Court, A.I.M. Controls, L.L.C. v.
Commissioner, 672 F.3d 390 (5th Cir. 2012), and the
time to file suit against the government in district court
under the default statute of limitations in 28 U.S.C.
2401(a), Herr v. United States Forest Serv., 803 F.3d
809 (6th Cir. 2015). These statute-specific dispositions
shed no light on the proper interpretation of Section
7703(b)(1)(A), and they do not support the claim of a
wider disagreement warranting this Court’s review. Indeed, A.I.M. Controls distinguishes Henderson in much
the same way as did Fedora—by considering “[c]ongressional intent,” as evidenced by the text and structure of each statutory scheme. 672 F.3d at 394. Compare id. at 393-394, with Fedora Pet. App. 6a-7a.
b. Petitioner also notes (Pet. 22) that this Court has
“repeatedly * * * granted review to assess whether
particular statutory provisions are ‘jurisdictional’ in nature,” and he contends (Pet. 24) that failure to do so
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here will “deprive countless federal employees of their
only opportunity for Article III judicial review of ” the
MSPB’s decisions. But the Federal Circuit has applied
the same rule for over 30 years: Section 7303(b)(1)(A)’s
60-day filing requirement is jurisdictional, and—as the
Board warned petitioner here—claimants must therefore “be very careful to file on time.” C.A. App. 16; see
Pet. App. 9a. Moreover, the court of appeals has now
revised its Guide to make clear that “[w]hen the Board
issues a decision, you may file a petition for review in
this court within 60 days after the date on which the
Board issued notice of that decision.” Guide 2. Thus,
litigants in the Federal Circuit—including those proceeding pro se, see Pet. 22-23—are on clear notice that
their petitions for review must be filed within 60 days of
the Board’s issuance of the decision, and may act accordingly.
c. Finally, petitioner suggests (Pet. 33-34) that this
Court should grant certiorari and hold that equitable
tolling applies because the facts of his case are sympathetic. As this Court has recognized, however, “[i]f rigorous rules like the one applied [below] are thought to
be inequitable, Congress may authorize courts to promulgate rules that excuse compliance with the statutory
time limits.” Bowles, 551 U.S. at 214; see id. at 207 (noting that petitioner missed the deadline for appealing the
denial of his application for a writ of habeas corpus because the district court “inexplicably gave [him an extension of ] 17 days” to file his notice of appeal—three
more than the statute and governing rule allowed).
Moreover, it is far from clear that petitioner’s reliance
on the Guide would entitle him to equitable tolling even
if it were available. The Board’s order made clear, in a
variety of ways, that petitioner in fact needed to file his
30
petition within 60 days of issuance of the order. See pp.
5-6, 9, supra; Irwin, 498 U.S. at 96 (stating that
“[f ]ederal courts have typically extended equitable relief only sparingly,” including “where the complainant
has been induced or tricked by his adversary’s misconduct,” and declining to toll the statutory time limit for a
“garden variety claim of excusable neglect”).
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
CHAD A. READLER
Acting Assistant Attorney
General
ROBERT E. KIRSCHMAN, JR.
ELIZABETH M. HOSFORD
MEEN-GEU OH
Attorneys
DECEMBER 2017
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.