Respondents Brief — Laurence M. Fedora, Petitioner v. Merit Systems Protection Board, et al.
Supreme Court briefDec 13, 2017
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No. 17-557
In the §§upremc Court of the Uniteb btatel
LAURENCE M. FEDORA, PETITIONER
V.
MERIT SYSTEMS PROTECTION BOARD, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
NOEL J. FRANCISCO
Solicitor General
Counsel of Record
CHAD A. READLER
Acting Assistant Attorney
General
ROBERT E. KIRSCHMAN, JR.
CLAUDIA BURKE
RUSSELL J. UPTON
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
Opinionsbelow..............................................................................1
Jurisdiction....................................................................................1
Statement......................................................................................2
Argument.......................................................................................9
Conclusion...................................................................................29
TABLE OF AUTHORITIES
Cases:
A.I.M. Controls, L.L.C. v. Commissioner,
672 F.3d 390 (5th Cir. 2012)............................................... 27
Bers v. United States Gov't, 666 F. Supp. 1
(D.D.C. 1987)...................................................................2, 19
Bledsoe v. MSPB, 659 F.3d 1097 (Fed. Cir. 2011) 2, 19, 21
Bowen v. City off. 476 U.S. 467 (1986) ...................18, 20
Bowles v. Russell, 551 U.S. 205 (2007) ...........6, 10, 13, 16, 28
Clean Water Action Council of Ne. Wisc., Inc. v.
EPA, 765 F.3d 749 (7th Cir. 2014) ....................................26
Garcia v. Department of Homeland Sec.,
437 F.3d 1322 (Fed. Cir. 2006).............................................2
Gonzalez v. Thaler, 565 U.S. 134 (2012)........................ 11, 17
Guedes v. Mukasey, 317 Fed. Appx. 16 (1st Cir. 2008) .....26
Hamer v. Neighborhood Hous. Servs., No. 16-658
...
(Nov. 8, 2017)................................................13, 17, 18, 19, 22
Heckler v. Day, 467 U.S. 104 (1984)...............................18, 20
Henderson v. Shinseki, 562 U.S. 428 (2011).............. passim
Herr v. United States Forest Serv., 803 F.3d 809
(6th Cir. 2015)......................................................................27
Irwin v. Department of Veterans Affairs,
498 U.S. 89 (1990) ...................................................17, 21, 28
(III)
PI!1
Cases—Continued:
John R. Sand & Gravel Co. v. United States,
Page
552 U.S. 130 (2008)..................................................14, 15, 17
Kloecknerv. Solis, 568 U.S. 41 (2012) .........................2, 3, 24
Lara v. OPM, 566 U.S. 974 (2012) (No. 11-915) ...................9
Lindahi v. OPM, 470 U.S. 768 (1985).....10, 11, 15, 18, 22, 24
Luna v. Holder, 637 F.3d 85 (2d Cir. 2011) ........................26
Martin v. Office of Special Counsel, 819 F.2d 1181
(D.C. Cir. 1987) .........................................................2, 19, 21
Medical Waste Inst. & Energy Recovery Council v.
EPA, 645 F.3d 420 (D.C. Cir. 2011) ..................................26
Monzo v. Department of Transp., 735 F.2d 1335
(Fed. Cir. 1984) ...............................................................4, 12
Motor & Equip. Mfrs. Assn v. Nichols,
142 F.3d 449 (D.C. Cir. 1998).............................................27
Musselman v. Department of Army,
868 F.3d 1341 (Fed. Cir. 2017), petition for cert.
pending, No. 17-570 (filed Oct. 16, 2017) ............................9
Nunnally v. MacCausland, 996 F.2d 1
(1st Cir. 1993)......................................................................24
Oja v. Department of the Army, 405 F.3d 1349
(Fed. Cir. 2005) ...........................................................4, 6, 25
Oklahoma Dept of Envtl. Quality v. EPA,
740 F.3d 185 (D.C. Cir. 2014).............................................26
Perry v. MSPB, 137 S. Ct. 1975 (2017) ...........................3, 23
Reed Elsevier, Inc. v. Muchnick,
559 U.S. 154 (2010)................................................................6
Ruiz-Martinez v. Mukasey, 516 F.3d 102
(2d Cir. 2008) .............................................................6, 11, 17
Stone v. INS, 514 U.S. 386 (1995) ........................6, 13, 14, 20
United States v. Kwai Fun Wong,
135 S. Ct. 1625 (2015) ..................................11, 17, 20, 21, 22
Page
Cases—Continued:
. 18
United States v. Oregon, 366 U.S. 643 (1961)
EPA,
Utah Dept of Envtl. Quality v.
765 F.3d 1257 (10th Cir. 2014)...........................................27
Vocke v. MSPB, 680 Fed. Appx. 944 (Fed. Cir. 2017),
petition for cert. pending, No. 17-544
(filed Oct. 6, 2017) .................................................................9
Willingham v. Ashcroft, 228 F.R.D. 1
(D.D.C. 2005)...................................................................2, 19
Zhang v. INS, 348 F.3d 289 (1st Cir. 2003).........................26
Constitution, statutes, regulations, and rules:
U.S. Const.:
Art. I ............................................................................. 6,19
Art. III..................................................................... passim
Civil Rights Act of 1964, Tit. VII,
42 U.S.C. 2000e-16(c) .................................................... 21, 24
Civil Service Reform Act of 1978, Pub. L. No. 95-454,
Tit. II, § 205, 92 Stat. 1143-1144 .................................. 12,15
Federal Courts Improvement Act of 1982, Pub. L.
No. 97-164, Tit. II, ch. 77, § 144, 96 Stat. 45.....................12
Federal Employees Life Insurance Improvement
Act, Pub. L. No. 105-311, § 10(a), 112 Stat. 2954.............25
Federal Tort Claims Act, 28 U.S.C. 2671 et seq . ................ 21
Hobbs Administrative Orders Review Act of 1950,
28 U.S.C. 2341 et seq. ............................................................ 7
28 U.S.C. 2344 (1988 & 2012) .........................................14
28 U.S.C. 2344..................................................................14
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat.
3009-546 ...............................................................................14
Immigration and Nationality Act, 8 U.S.C. 1101
etseq. ...................................................................................... 7
VI
Page
Statutes, regulations, and rules—Continued:
8 U.S.C. 1105a(a) (1988 & Supp. V 1993) ......................14
8 U.S.C. 1105a(a)(1) (1988 & Supp. V 1993)..................14
Tucker Act, 28 U.S.C. 1491...................................................14
Whistleblower Protection Enhancement Act of 2012,
Pub. L. No. 112-199, Tit. I, § 108(a),
126 Stat. 1469 ............................................................7, 12, 15
5 U.S.C. 7701(a) .......................................................................2
SU.S.C. 7701(a)(1)-(2) ............................................................. 2
5 U.S.C. 7703(b)(1) (1994 & Supp. IV 1998)..........................7
5 U.S.C. 7703(b)(1)........................................................ passim
5 U.S.C. 7703(b)(1)(A) .................................................. passim
5 U.S.C. 7703(b)(2).................................................3, 23, 24, 25
5 U.S.C. 7703(d) ...........................................................3, 10, 22
8U.S.C. 1252..........................................................................14
8 U.S.C. 1252(a)(1).................................................................14
8 U.S.C. 1252(b)(1)....................................................... 14,26
28 U.S.C. 1295(a) .............................................................10, 24
28 U.S.C. 1295(a)(9)..........................................3, 10, 12, 21, 22
28 U.S.C. 2074........................................................................16
28 U.S.C. 2401(a) .............................................................25, 27
28 U.S.C. 2401(b) ...................................................................21
28 U.S.C. 2501........................................................................15
28 U.S.C. App. at 367 ............................................................16
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) ......................................................3
Section 1201.117(a)............................................................3
Section 1201.117(c)............................................................3
....
VII
Page
Rules—Continued:
Fed. R. App. P.:
Rule15(a)(1).....................................................................15
Rule 26(b)(2) ..............................................................15, 16
Rule35(a)...........................................................................9
Miscellaneous:
U.S. Court of Appeals for the Federal Circuit, Guide
for Pro Se Petitioners and Appellants, http:ll
www.cafc.uscourts.gov/sites/defaultlfiles/rules-ofpractice/Pro_Se_Guide.pdf (last visited Dec. 13,
2017).................................................................................7,28
JJn the 6upreme Court of the Nutteb 'tate
No. 17-557
LAURENCE M. FEDORA, PETITIONER
V.
MERIT SYSTEMS PROTECTION BOARD, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. la-31a)
is reported at 848 F.3d 1013. The order denying rehearing en bane (Pet. App. 32a-44a) is reported at 868 F.3d
1336. The final order of the Merit Systems Protection
Board (C.A. App. A30-A38)1 is not published in the
Merit Systems Protection Board Reporter, but is available at 2014 WL 5421525. The initial decision of the administrative judge (C.A. App. A189-A207) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on
February 16, 2017. A petition for rehearing was denied
on July 20, 2017 (Pet. App. 32a-35a). The petition for a
1
"C.A. App." refers to the appendix filed in the court of appeals.
See Doc. 28-2 (May 13, 2015); Pet. 4 n.1.
(1)
2
writ of certiorari was filed on October 6, 2017. The 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) (citing Garcia v. Department of Homeland
Sec., 437 F.3d 1322, 1327 (Fed. Cir. 2006) (en bane)).
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 "Ea]n order" providing
for "appropriate relief." 5 C.F.R. 1201.111(a) and
(b)(1)43).
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,"
3
legal error, or an abuse of discretion, 5 C.F.R.
1201.115(a)-(c), 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
2
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, "th
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. Because petitioner does not present a
mixed case (see Pet. 7 n.2), Section 7703(b)(2) is not at issue here.
4
"jurisdictional," Monzo v. Department 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 [the court of appeals'] exercise of jurisdiction," Oja v. Department of the Army, 405 F.3d 1349,
1360 (Fed. cir. 2005).
2. Petitioner began working for the United States
Postal Service (USPS) in 1980 and retired from his position as a Mail Handler on August 31, 2012. Pet. App.
2a. On April 27, 2013, petitioner sought relief from the
Board, alleging that his retirement was involuntary and
amounted to constructive discharge. Ibid. An administrative judge conducted a hearing and found that petitioner had failed to make a non-frivolous allegation that
his retirement was involuntary. Id. at 3a. The judge
therefore dismissed the case for lack of jurisdiction.
Ibid.
Petitioner sought review by the Board. In a decision
issued August 15, 2014, the Board affirmed the administrative judge's initial decision. Pet. App. 3a; see C.A.
App. A30-A38. After concluding that "the administrative judge correctly dismissed this appeal for lack of jurisdiction," C.A. App. A36, the Board's 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 United States Court of Appeals for
the Federal Circuit. You must submit your request
to the court at the following address. * * * The court
must receive your request for review no later than 60
calendar days after the date of your order. See
5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 2012).
5
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 1554 (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
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 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.
Ibid.
3. Following issuance of the Board's decision on August 14, 2014, petitioner had 60 days—until October 14,
2014—to file a petition for review in the Federal Circuit.
See 5 U.S.C. 7703(b)(1)(A). Petitioner mailed his petition for review on October 11, 2014, but the court of appeals did not receive it until October 20, 2014, six days
after the filing deadline. The clerk initially returned the
document to petitioner because it was untimely. C.A.
App. A13. Following petitioner's request for reconsideration, however, the clerk docketed the petition for review. See Pet. 8. A divided panel of the court of appeals
then dismissed petitioner's untimely petition for lack of
jurisdiction. Pet. App. la-31a.
No
a. The majority began its analysis by discussing its
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." 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 the majority stated that many of this
Court's cases involved "claims-processing rules" rather
than "[aippeal periods to Article III courts," which this
Court had addressed in Bowles v. Russell, 551 U.S. 205
(2007). Pet. App. 4a. As the court of appeals explained,
that decision held that the Court's recent cases did not
"call[] into 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 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. 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 the
period for taking an appeal from an administrative
7
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. 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 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 majority further explained that because Section
7703(b)(1)(A)'s 60-day filing deadline is jurisdictional, it
is not subject to equitable tolling. Pet. App. 7a-9a. Petitioner thus could not excuse the untimeliness of his petition by pointing to his reliance on the court of appeals'
Guide for Pro Se Petitioners and Appellants (Guide),
http ://www.cafc.uscourts.gov/sites/default/files/rules-ofpractice/Pro_Se_Guide.pdf. Pet. App. 8a. At the time
petitioner consulted it—and although it has since been
updated, see Pet. 8 n.3—that document reflected a 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. Id. at 7a-8a; 5 U.S.C. 7703(b)(1) (1994
& Supp. IV 1998). Although Congress had amended the
statute in December 2012 to require that a petition for
review be filed within 60 days of issuance of the Board's
decision, Whistleblower Protection Enhancement Act
of 2012 (WPEA), Pub. L. No. 112-199, § 108(a), 126 Stat.
1469, and that new provision applied to petitioner's
case, the Guide had not yet been updated when petitioner accessed it.
Moreover, the court noted, despite the Guide's reference to the prior rule, "the Board's final order" in petitioner's case had "specifically stated that the 60-day
[appeal] period would begin on the date the final order
was issued," and it cautioned petitioner "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." Pet. App. 8a-9a (citation omitted; second and third sets of brackets in original). It
also specifically cited the statute and "not[ed] the revision effective December 27, 2012." Id. at 9a; see p. 5,
supra. "Unfortunately," petitioner had "failed to follow
these instructions and missed the October 14, 2014
deadline." Pet. App. 9a.
b. Judge Plager dissented. 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 traced the history of the court of appeals'
cases regarding Section 7703(b)(1), id. at 13a-14a, as
well as this Court's cases concerning statutory time
bars and other limits on relief, id. at 14a-28a. Judge
Plager did not, however, determine that petitioner was
necessarily correct that Section 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
bane. Ibid.
4. Petitioner obtained counsel and sought rehearing,
which the court of appeals denied. Pet. App. 32a-43a.
Four judges dissented from the denial of rehearing
en bane: Judge Stoll did so without opinion, while Judge
Wallach issued a dissenting opinion in which Judges
Newman and O'Malley joined. Pet. App. 33a. The dissenting opinion stated that Bowles was not controlling
because it presented "a different scenario" than this
case: "an appeal from an Article III district court to an
Article III appeals court," rather than an appeal from
an administrative agency to an Article III appeals
court. Id. at 39a. The dissent further criticized the majority for "analy[zing] the question presented using an
incomplete framework." Id. at 40a (capitalization altered). Like Judge Plager, however, the dissenters did
not conclude that the majority's decision was necessarily incorrect; they stated instead that the full court
"should review the nature of the filing deadline in §
7703(b)(1)(A)" in light of this Court's more recent decisions. Id. at 42a.
Judge Plager, whose senior status rendered him ineligible to vote on the petition for rehearing en bane, 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 bane." Pet. App. 44a.3
ARGUME NT
The court of appeals correctly held that Section
7703(b)(1)(A)'s 60-day deadline for seeking Federal Circuit 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
The Federal Circuit applied its decision in this case in Vocke v.
MSPB, 680 Fed. Appx. 944 (2017), petition for cert. pending, No. 17544 (filed Oct. 6, 2017), and Musselman v. Department of Army, 868
F.3d 1341, petition for cert. pending, No. 17-570 (filed Oct. 16, 2017).
10
(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
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
11
internal quotation marks omitted). Lindahi expressly
rejected the argument that Section 7703(b)(1) was
"nothing more than a venue provision" with no
lat[ion] to the power of a court." Lindahi, 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 (citation omitted).
Although Lindahi 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 periods, 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, 145
(2012) (requirement was nonjurisdictional where Congress "set off" the jurisdictional and nonjurisdictional
requirements in "distinct paragraphs"); Reed Elsevier,
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
12
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. 3a-4a (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, § 205, 92 Stat. 11431144; Federal Courts Improvement Act of 1982, Pub. L.
No. 97-164, Tit. II, ch. 77, § 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).
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. Pet. App.
7a (citing WPEA § 108(a), 126 Stat. 1469). In imposing
a less petitioner-friendly triggering date for the 60-day
appeal period in Section 7703(b)(1)(A), Congress did
13
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.").
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). Specifi-
14
cally, 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).4 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 4375
c. The origins of Section 7703(b)(1)(A) further support the conclusion that its time limitation is jurisdic-
The INA thus altered the 60-day requirement for seeking judicial review under the Hobbs Act. See 28 U.S.C. 2344 (1988 & 2012).
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
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).
15
tional. 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).'
6
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,
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
16
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 the issuance
of its decision (rather than petitioner's receipt of it), and
it warned petitioner of the importance of timely filing
while pointing him to the text of the statute itself. See
C.A. App. 36a. 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
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 p. 12, supra).
17
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, 14-15) 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 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. 14-18) 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]
context, including this Court's interpretation of similar
provisions in many years past, as probative of [Congress's intent]." Ibid. (citation and internal quotation
mark omitted) (second set of brackets in original); see
also Wong, 135 S. Ct. at 1632-1633; Gonzalez, 565 U.S.
IN
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." Lindahi, 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. 10-14,
supra.
b. Petitioner also is incorrect in asserting (Pet. 1618) 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
"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
19
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 Pet. App. 6a-7a;
Bledsoe v. MSPB, 659 F.3d 1097, 1101 (Fed. Cir. 2011)
("[T]he Board is an independent, quasi-judicial federal
administrative agency.") (citation omitted).'
As petitioner notes (Pet. 16), Henderson stated that "Bowles did
not hold categorically that every deadline for seeking judicial review
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 "[un 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
20
Petitioner's reliance on Bowen (Pet. 17-18) 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. 18) 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—the Hobbs Act, as incorporated into the INA—is jurisdictional. See 514 U.S. at
390.
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 a claim under the Federal
governs an appeal from a quasi-judicial agency to the court of appeals, is jurisdictional.
21
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,
quasi-judicial 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 equitabletolling 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 Lindahi, 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.
d. Indeed, petitioner is wrong to contend (Pet. 19)
that the time limitation in Section 7703(b)(1) has no connection to any provision governing subject-matter jurisdiction. As explained above (see pp. 10-12, supra), this
Court has held to the contrary, recognizing that Section
7703(b)(1) itself functions as a "jurisdictional grant" of
22
authority for the Federal Circuit to review MSPB decisions. Lindahi, 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. 19 (quoting 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 7703(b)(1)(A),
there is no division of authority with respect to the question presented. Instead, petitioner contends (Pet. 2432) 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 established 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.
23
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. 30-31) 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.
30) 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).
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),
24
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 (2012) ("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 Linclahi—
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. 16-17,
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
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
25
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 1358.8
Petitioner's other purported divisions of authority
are even less relevant. He alleges (Pet. 31-32) 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. 25-29) to suggest a
more theoretical division among the courts of appeals
fares no better. He contends (Pet. 25-27) 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,
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
8
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.
26
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 Ruiz-Martinez). 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 17 (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. 25-29) 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
(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. Assn v.
27
Nichols, 142 F.3d 449,460 (D.C. Cir. 1998)). And as petitioner must concede (Pet. 29), 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 Dept 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 Se'rv., 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 the decision below—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 Pet. App. 6a-7a.
b. Petitioner also notes (Pet. 21) that this Court has
"repeatedly * * * granted review to assess whether
particular statutory provisions are 'jurisdictional' in nature," and he contends (Pet. 23-24) that failure to do so
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 7703(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. 36; 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
petition within 60 days of issuance of the order. See pp.
4-5, 8, supra; Irwin, 498 U.S. at 96 (stating that
29
"[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.
CLAUDIA BURKE
RUSSELL J. UPTON
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.