Petition for Writ of Certiorari — Karen Graviss, Petitioner v. Department of Defense, Domestic Dependent Elementary and Secondary Schools

Supreme Court briefFeb 11, 2019

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No. 18-___

IN THE

KAREN GRAVISS,

Petitioner,

DEPARTMENT OF DEFENSE, DOMESTIC DEPENDENT

ELEMENTARY AND SECONDARY SCHOOLS,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Federal Circuit

PETITION FOR A WRIT OF CERTIORARI

Dorothy Lee

7728 Windwood Drive

Dublin, Ohio 43017

(614) 439-0135

Brian Wolfman

Counsel of Record

Bradley Girard

GEORGETOWN LAW

APPELLATE COURTS

IMMERSION CLINIC

600 New Jersey Ave., NW

Washington, D.C. 20001

(202) 661-6582

wolfmanb@georgetown.edu

QUESTIONS PRESENTED

Under 5 U.S.C. § 7703, a federal employee

aggrieved by a final decision of the Merit Systems

Protection Board or a final arbitration decision under

5 U.S.C. § 7121 may petition for review in the United

States Court of Appeals for the Federal Circuit. A

“petition for review shall be filed within 60 days” of

issuance of the final decision. 5 U.S.C. § 7703(b)(1)(A).

In this case, an arbitrator upheld petitioner’s

removal from federal employment. Petitioner then

sought review in the Federal Circuit, and a panel of

that court reversed on the merits. After granting the

Government’s request for en banc review and full

briefing on the merits, the en banc Federal Circuit sua

sponte remanded to the panel to consider the petition’s

timelinessnearly three years after the petition had

been filed and even though the Government had never

raised a timeliness defense. The panel held, in a split

decision, that Section 7703(b)(1)(A) imposes an

absolute jurisdictional bar on any late petition for

review and dismissed for lack of jurisdiction because

the petition had been filed one day late. The Federal

Circuit denied rehearing and rehearing en banc, with

four judges dissenting.

The questions presented are:

1. Whether the 60-day period for seeking Federal

Circuit review under 5 U.S.C. § 7703(b)(1)(A) sets a

jurisdictional bar, as the panel majority held, or

prescribes a claim-processing rule subject to

exceptions such as forfeiture, as the dissenting judges

below maintained.

2. Whether the

timeliness defense.

Government

forfeited

its

PARTIES TO THE PROCEEDING

Petitioner Karen Graviss was a petitioner in the

court of appeals. The Federal Education Association −

Stateside Region was also a petitioner in the court of

appeals but is not a petitioner in this Court. See Pet.

App. 3a n.1. Respondent Department of Defense,

Domestic Dependent Elementary and Secondary

Schools was the sole respondent in the court of appeals

and is the sole respondent in this Court.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED......................................... i

PARTIES TO THE PROCEEDING ............................ ii

TABLE OF AUTHORITIES ........................................ v

PETITION FOR A WRIT OF CERTIORARI.............. 1

OPINIONS BELOW .................................................... 1

JURISDICTION .......................................................... 1

RELEVANT STATUTORY PROVISIONS ................. 1

INTRODUCTION ........................................................ 2

STATEMENT OF THE CASE .................................... 5

Legal background ................................................ 5

II.

Factual and procedural background .................. 7

III. Federal Circuit rulings below ............................. 9

REASONS FOR GRANTING THE WRIT ................ 13

The decision below is wrong and defies this

Court’s precedent. ............................................. 14

A. Section 7703(b)(1)(A)’s time limit is a

nonjurisdictional, claim-processing rule. .... 14

B. The Government forfeited any timeliness

defense. ......................................................... 26

II.

The principal question presented is important to

private litigants, the Government, and the

judiciary, and answering it would help eliminate

confusion in the lower courts. ........................... 28

III. This case is an ideal vehicle for resolving the

questions presented. ......................................... 32

CONCLUSION .......................................................... 35

APPENDIX

Federal Circuit panel opinion (with dissenting

opinion) (Aug. 6, 2018) ...................................... 1a

Federal Circuit order granting en banc

review (Oct. 13, 2017) ................................... 24a

Federal Circuit order dissolving en banc

court (May 14, 2018)..................................... 28a

Federal Circuit order denying rehearing and

rehearing en banc (with dissenting opinions)

(Dec. 3, 2018) ................................................ 30a

TABLE OF AUTHORITIES

Page(s)

Cases

Arbaugh v. Y & H Corp.,

546 U.S. 500 (2006) ............................... 3, 6, 14, 15,

............................................................ 16, 17, 23, 29

Becker v. Montgomery,

532 U.S. 757 (2001) .............................................. 29

Bowen v. City of New York,

476 U.S. 467 (1986) .............................................. 15

Bowles v. Russell,

551 U.S. 205 (2007) ............ 6, 10, 15, 16, 29, 32, 33

Brenndoerfer v. USPS,

693 F. App’x 904 (Fed. Cir. 2017) ........................ 35

City & Cty. of San Francisco v. Sheehan,

135 S. Ct. 1765 (2015) .......................................... 27

Clean Water Council of Nw. Wis., Inc. v. EPA,

765 F.3d 749 (7th Cir. 2014) .......................... 31, 32

Eberhart v. United States,

546 U.S. 12 (2005) ................................................ 29

Fed. Educ. Ass’n Stateside Region v. Dep’t of

Def., 841 F.3d 1362 (Fed. Cir. 2016).................. 8, 9

Fedora v. MSPB,

848 F.3d 1013 (Fed. Cir. 2017),

cert. denied, 138 S. Ct. 755 (2018) .......... 10, 20, 21,

.................................................................. 32, 33, 35

Fort Bend Cty. v. Davis,

No. 18-525 (cert. granted Jan. 11, 2019) ............ 28

Freytag v. Comm’r,

501 U.S. 868 (1991) ........................................ 27, 28

Fuerst v. Dep’t of Air Force,

2018 WL 1587454 (S.D. Ohio Apr. 2, 2018) ........ 35

Gonzalez v. Thaler,

565 U.S. 134 (2012) ........................... 14, 15, 16, 17,

...................................................... 18, 19, 23, 24, 28

Hamer v. Neighborhood Hous. Servs. of Chi.,

138 S. Ct. 13 (2017) .................... 3, 6, 7, 10, 14, 15,

................................................ 18, 27, 28, 32, 34, 35

Henderson v. Shinseki,

562 U.S. 428 (2011) .................... 3, 4, 5, 14, 15, 16,

...................................................... 18, 21, 23, 28, 29

Holmes Grp., Inc. v. Vornado Air Circulation

Sys., 535 U.S. 826 (2002) ..................................... 29

Irwin v. Dep’t of Veterans Affairs,

498 U.S. 89 (1990) ........................ 14, 17, 27, 29, 34

John R. Sand & Gravel Co. v. United States,

552 U.S. 130 (2008) .............................................. 29

vii

Jones v. HHS,

702 F. App’x 988 (Fed. Cir. 2017), cert.

denied, 139 U.S. 359 (2018) ........................... 33, 35

Kloeckner v. Solis,

568 U.S. 41 (2012) .......................................... 13, 19

Kontrick v. Ryan,

540 U.S. 443 (2004) ........................................ 14, 29

Lambert v. Nutraceutical Corp.,

No. 17-1094 (argued Nov. 27, 2018) ................... 34

Landgraf v. USI Film Prods.,

511 U.S. 244 (1994) .............................................. 16

Lindahl v. Office of Personnel Management,

470 U.S. 768 (1985) ........................................ 20, 21

Medical Waste Inst. and Energy Recovery

Council v. EPA,

645 F.3d 420 (D.C. Cir. 2011) .............................. 31

Monzo v. Dep’t of Transportation,

735 F.2d 1335 (Fed. Cir. 1984) ............................ 20

Musacchio v. United States,

136 S. Ct. 709 (2016) ............................................ 16

Musselman v. Dep’t of the Army,

868 F.3d 1341 (Fed. Cir. 2017),

cert. denied, 138 S. Ct. 739 (2018) ........... 21, 33, 35

Oja v. Dep’t of Army,

405 F.3d 1349 (Fed. Cir. 2005) ............................ 21

viii

Reed Elsevier, Inc. v. Muchnick,

559 U.S. 154 (2010) ............................... 5, 6, 16, 29

Scarborough v. Principi,

541 U.S. 401 (2004) ................................. 14, 27, 29

Sebelius v. Auburn Reg’l Med. Ctr.,

568 U.S. 145 (2013) .................................... 4, 14, 28

Sierra Club v. EPA,

895 F.3d 1 (D.C. Cir. 2018) ................................. 31

Sierra Club de Puerto Rico v. EPA,

815 F.3d 22 (D.C. Cir. 2016) ............................... 31

Smiley v. Citibank (S.D.) N.A.,

517 U.S. 735 (1996) .............................................. 20

Stone v. FDIC,

179 F.3d 1368 (Fed, Cir. 1999) .............................. 9

Torres v. Oakland Scavenger Co.,

487 U.S. 312 (1988) .............................................. 29

United States v. Kwai Fun Wong,

135 S. Ct. 1625 (2015) ............. 7, 10, 11, 14, 15, 16,

...................................................... 17, 18, 22, 28, 34

Utah v. EPA,

765 F.3d 1257 (10th Cir. 2014) ............................ 31

Utility Air Regulatory Group v. EPA,

744 F.3d 741, 751 (D.C. Cir. 2014 ....................... 31

Vocke v. MSPB,

680 F. App’x 944 (Fed. Cir. 2017), cert.

denied, 138 S. Ct. 755 .................................... 33, 35

Zipes v. Trans World Airlines, Inc.,

455 U.S. 385 (1982) ................... 4, 6, 15, 18, 19, 29

Statutes

5 U.S.C. § 7121 ........................................................ 2, 8

5 U.S.C. § 7121(e) ........................................................ 8

5 U.S.C. § 7121(f) ..................................................... 7, 8

5 U.S.C. § 7703 ...................................................... 8, 30

5 U.S.C. § 7703(b)(1) ............ 1, 7, 11, 12, 13, 19, 20, 22

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

5 U.S.C. § 7703(b)(2) ...................................... 12, 19, 25

5 U.S.C. § 7703(d) ...................................................... 22

28 U.S.C. § 1254(1) ...................................................... 1

28 U.S.C. § 1291 ........................................................ 24

28 U.S.C. § 1295 .................. 2, 4, 11, 12, 22, 23, 26, 32

28 U.S.C. § 1295(a) ........................ 7, 11, 12, 24, 25, 30

28 U.S.C. § 1295(a)(6) .......................................... 25, 31

28 U.S.C. § 1295(a)(7) .......................................... 25, 31

28 U.S.C. § 1295(a)(8) ................................................ 25

28 U.S.C. § 1295(a)(9) ................... 7, 10, 11, 12, 13, 19,

.................................... 20, 22, 23, 24, 25, 26, 30, 33

28 U.S.C. § 1295(a)(10) .................................. 25, 26, 31

28 U.S.C. § 1295(a)(11) .............................................. 25

28 U.S.C. § 1295(a)(12) .............................................. 25

28 U.S.C. § 1295(a)(13) .............................................. 25

28 U.S.C. § 1295(a)(14) .............................................. 25

28 U.S.C. § 2107 .......................................................... 6

28 U.S.C. § 2107(c) .................................................... 16

28 U.S.C. § 2253(c)(1) .................................... 17, 19, 23

28 U.S.C. § 2253(c)(3) .................................... 19, 23, 24

41 U.S.C. § 7107(a)(1) ................................................ 26

41 U.S.C. § 7107(a)(2) ................................................ 26

42 U.S.C. § 405(g) ...................................................... 15

42 U.S.C. § 2000e-5(e) ............................................... 19

42 U.S.C. § 2000e-5(f) ................................................ 19

42 U.S.C. § 7607(b)(1) ................................................ 31

Federal Courts Improvement Act, Pub. L. No.

97-164, 96 Stat. 25 (1982) .................................... 24

Other Authorities

S. Rep. No. 97-275 (1982) .......................................... 24

U.S. Merit Sys. Prot. Bd., Congressional

Budget Justification FY 2019 (Feb. 2018),

https://www.mspb.gov/MSPBSEARCH

/viewdocs.aspx?docnumber=1488641&vers

ion=1494222&application=ACROBAT

[https://perma.cc/Q94Q-BKZ2] ............................ 30

U.S. Merit Sys. Prot. Bd.,Jurisdiction,

https://www.mspb.gov/About/jurisdiction.

htm [https://perma.cc/K6RN-JR2U] .................... 30

U.S. Office of Pers. Mgmt., Employment of Veterans

in the Federal Executive Branch, Fiscal

Year

2016

(June

2017),

https://www.fedshirevets.gov/veteranscouncil/veteran-employment-data/

employment-of-veterans-in-the-federalexecutive-branch-fy2016.pdf

[https://perma.cc/3NPY-FK4E] ............................ 30

PETITION FOR A WRIT OF CERTIORARI

Petitioner Karen Graviss respectfully petitions for

a writ of certiorari to review the judgment of the

United States Court of Appeals for the Federal Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Federal Circuit (Pet. App. 1a) is published at

898 F.3d 1222. The Federal Circuit’s order denying

rehearing en banc and panel rehearing (Pet. App. 30a)

is published at 909 F.3d 1141. The Federal Circuit’s

earlier order granting rehearing en banc (Pet. App.

24a) is published at 873 F.3d 903. The Federal

Circuit’s order dissolving the en banc court and

remanding to the panel (Pet. App. 28a) is published at

889 F.3d 1385.

JURISDICTION

The judgment of the court of appeals was entered

on August 6, 2018. Pet. App. 1a. A timely petition for

rehearing en banc was denied on December 3, 2018.

Pet. App. 30a. This Court has jurisdiction under 28

U.S.C. § 1254(1).

RELEVANT STATUTORY PROVISIONS

5 U.S.C. § 7703(b)(1) provides in relevant part:

(A) Except as provided in subparagraph

(B) and paragraph (2) of this subsection,

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. § 7121 provides in relevant part:

(f) In matters covered under sections

4303 and 7512 of this title which have

been raised under the negotiated

grievance procedure in accordance with

this section, section 7703 of this title

pertaining to judicial review shall apply

to the award of an arbitrator in the same

manner and under the same conditions

as if the matter had been decided by the

Board.

28 U.S.C. § 1295 provides in relevant part:

(a) The United States Court of Appeals

for the Federal Circuit shall have

exclusive jurisdiction …

(9) of an appeal from a final order or final

decision of the Merit Systems Protection

Board, pursuant to sections 7703(b)(1)

and 7703(d) of title 5[.]

INTRODUCTION

This Court should grant review because, as the

dissenting judges below observed, the Federal Circuit

“majority’s holding [is] directly contrary to binding

Supreme Court precedent” on “a question of

exceptional importance.” Pet. App. 43a.

Petitioner Karen Graviss was removed from her

federal employment following proceedings that she

maintains violated her due-process rights. After an

arbitrator rejected Graviss’s due-process argument,

she filed a petition for review in the U.S. Court of

Appeals for the Federal Circuit. After briefing and oral

argument, Graviss vindicated her due-process claim

before a panel of the Federal Circuit.

The Federal Circuit then granted the

Government’s petition for rehearing en banc on the

due-process issue. After full merits briefing, the en

banc court, on its own initiative, asked the parties to

address whether Graviss’s petition for review was

timely under 5 U.S.C. § 7703(b)(1)(A), which gives

federal employees 60 days to seek review in the

Federal Circuit of an adverse employment decision. By

then, Graviss had been litigating her claim in the

Federal Circuit for 33 months, and the Government

had never challenged the timeliness of her petition.

After further briefing, the en banc court remanded the

timeliness issue to the panel.

Over Graviss’s objection that the Government had

long ago forfeited any timeliness defense, the panel

held, in a split decision, that Section 7703(b)(1)(A)

erects an absolute jurisdictional bar. It therefore

dismissed Graviss’s petition for lack of jurisdiction

because it had been filed one day late. In doing so, the

panel majority brushed aside this Court’s sustained

efforts to distinguish between jurisdictional rules,

which when violated deprive a court of authority over

the case and necessitate dismissal, and claimprocessing rules, which “are less stern” and “may be

waived or forfeited.” Hamer v. Neighborhood Hous.

Servs. of Chi., 138 S. Ct. 13, 17 (2017).

Filing deadlines “are quintessential claimprocessing rules,” Henderson v. Shinseki, 562 U.S.

428, 435 (2011), and are presumed nonjurisdictional

unless Congress “clearly states” otherwise, Arbaugh v.

Y & H Corp., 546 U.S. 500, 515-16 (2006). Claim-

processing rules “seek to promote the orderly progress

of litigation,” but branding a rule jurisdictional “alters

the normal operation of our adversarial system” and

may result in “waste of judicial resources” and

“unfair[] prejudice.” Henderson, 562 U.S. at 434.

Graviss’s predicamentdismissal of her dueprocess claim after nearly three years of litigation and

victory on the merits before the panelis a perfect

example of the “drastic” consequences that may occur

when a rule is labeled “jurisdictional.” Henderson, 562

U.S. at 435. Those consequences should not have

occurred here because Congress has not clearly stated

that the time limit in Section 7703(b)(1)(A) is

jurisdictional, as Congress must before a court may

say it is. See Sebelius v. Auburn Reg’l Med. Ctr., 568

U.S. 145, 153 (2013). That is so because Section

7703(b)(1)(A) “does not speak in jurisdictional terms or

refer in any way to the jurisdiction” of the Federal

Circuit. See Zipes v. Trans World Airlines, Inc., 455

U.S. 385, 394 (1982).

This Court should grant this petition to consider

whether Section 7703(b)(1)(A)’s time limit is

jurisdictional or, rather, is a claim-processing rule

subject to exceptions such as forfeiture. That question

is important. It potentially affects the rights of

thousands of federal employees who may seek review

of adverse employment decisions only in the Federal

Circuit. And because the Federal Circuit’s ruling

below is based on an interpretation of 28 U.S.C.

§ 1295, the statute giving the Federal Circuit

jurisdiction over myriad tribunals and subject

matters, unless this Court intervenes, the decision

below will be felt far beyond the federal employment

context.

STATEMENT OF THE CASE

I. Legal background

A litigant’s failure to satisfy a claim-processing

rule generally is not a jurisdictional bar to suit.

Instead, it is an affirmative defense that is forfeited

when, as here, it is not timely raised by the litigant’s

opponent. We first review the Court’s precedent on

this topic and then describe the relevant statutes.

A. Congress may (and sometimes does) place

jurisdictional limits on a court’s adjudicatory

authority. More frequently, however, it prescribes

procedural rules for claim processing that, though

perhaps mandatory when properly invoked, do not

limit the court’s jurisdiction. Among these are “filing

deadlines,” which “are quintessential claim-processing

rules.” Henderson v. Shinseki, 562 U.S. 428, 435

(2011).

Courts “have sometimes mischaracterized claimprocessing rules” as “jurisdictional limitations.” Reed

Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161 (2010).

This Court’s recent decisions, however, have sought to

correct these mischaracterizations and “bring some

discipline to the use” of the term “jurisdictional.”

Henderson, 562 U.S. at 435.

This Court’s general approach to distinguish

claim-processing rules from jurisdictional bars follows

a “readily administrable bright line”:

If the Legislature clearly states that a

threshold limitation on a statute’s scope

shall count as jurisdictional, then courts

and litigants will be duly instructed and

will not be left to wrestle with the issue.

… But when Congress does not rank a

statutory limitation on coverage as

jurisdictional, courts should treat the

restriction as nonjurisdictional in

character.

Arbaugh v. Y & H Corp., 546 U.S. 500, 515-516 (2006)

(emphasis added) (citation and footnote omitted).

Congress can make a clear statement when a statute

“speak[s] in jurisdictional terms or refer[s] in any way

to the jurisdiction” of the courts. See Zipes v. Trans

World Airlines, Inc., 455 U.S. 385, 394 (1982).

This Court’s historical treatment of a statutory

prescription “is relevant to whether a statute ranks a

requirement as jurisdictional.” Reed Elsevier, 559 U.S.

at 167-68, (2010). In Bowles v. Russell, 551 U.S. 205

(2007), this Court held that the statutory time period

to appeal from a district court to a court of appeals—

found in 28 U.S.C. § 2107—is jurisdictional because of

“a century’s worth of precedent” to that effect. Bowles,

551 U.S. at 209. At the same time, however, the Court

has cautioned against reading Bowles broadly.

Recently, this Court observed that “[s]everal Courts of

Appeals … have tripped over [the] statement in

Bowles that the ‘taking of an appeal within the

prescribed time is mandatory and jurisdictional.’”

Hamer v. Neighborhood Hous. Servs. of Chi., 138 S.

Ct. 13, 21 (2017) (citing Bowles, 551 U.S. at 209). The

“mandatory and jurisdictional” language in Bowles is

“left over” from when this Court was “less than

meticulous” in its use of the term “jurisdictional.” Id.

(citation and quotation marks omitted).

“Bowles did not hold” “that all statutory

conditions imposing a time limit should be considered

jurisdictional.” Reed Elsevier, 559 U.S. at 167. Quite

the contrary, “[i]n cases not involving the timebound

transfer of adjudicatory authority from one Article III

court to another,” this Court has “made plain that

most statutory time bars are nonjurisdictional.”

Hamer, 138 S. Ct. at 20 n.9 (quoting United States v.

Kwai Fun Wong, 135 S. Ct. 1625, 1632 (2015))

(brackets omitted).

B. Several statutory provisions concerning review

from the Merit Systems Protection Board (MSPB or

Board) or agency arbitrators are involved here. The

relevant time limit is found in 5 U.S.C. § 7703(b)(1)(A),

which states 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” within

60 days of issuance of the Board’s final decision.

Section 7703(b)(1)(A) applies here because 5 U.S.C.

§ 7121(f) provides that certain unionized federal

employees, like petitioner, seeking Federal Circuit

review of an arbitration decision shall proceed under

Section 7703 as if they were seeking review of an

MSPB decision. Finally, 28 U.S.C. § 1295(a), enacted

in 1982 at the Federal Circuit’s inception, lists all the

tribunals and case types within the Federal Circuit’s

exclusive jurisdiction. Section 1295(a)(9), which the

panel majority below thought relevant to the question

presented, provides that the Federal Circuit has

exclusive jurisdiction over an appeal taken under

Section 7703(b)(1).

II. Factual and procedural background

A. For many years, petitioner Karen Graviss was

a special-education teacher employed by respondent

Department of Defense, Domestic Dependent

Elementary and Secondary Schools. In 2010, after an

internal agency removal proceeding, respondent

terminated Graviss from her job for restraining a

screaming student whose arms and legs were flailing.

Fed. Educ. Ass’n − Stateside Region v. Dep’t of Def.,

841 F.3d 1362, 1363 (Fed. Cir. 2016) (FEA).

Graviss’s union challenged her removal by

invoking arbitration. FEA, 841 F.3d at 1364; see 5

U.S.C. § 7121(e)-(f). During discovery in the

arbitration, Graviss learned for the first time of ex

parte communications that occurred prior to her

removal. FEA, 841 F.3d at 1364. These

communications involved, among others, the person

who would later become the deciding official in

Graviss’s removal proceeding and the deciding

official’s supervisor. Id. In one of these ex parte

communications, the supervisor urged that “we need

to try and terminate [Graviss].” Id.

Graviss argued before the arbitrator that these ex

parte communications violated her due-process rights

because they had tainted the fairness of her removal

proceeding. FEA, 841 F.3d at 1364. The arbitrator

found that Graviss’s due-process rights had not been

violated and affirmed Graviss’s termination. Id. at

1365.

B. Graviss petitioned for review in the Federal

Circuit, FEA, 841 F.3d at 1362, as authorized by

5 U.S.C. §§ 7121 and 7703. The case was briefed before

the Federal Circuit on the due-process issue. The

Government “did not object to the timeliness of the

petition.” Pet. App. 3a.

A divided panel of the Federal Circuit reversed on

the merits. It held that Graviss’s due-process rights

had been violated under circuit precedent providing

that when “new and material information has been

conveyed by [an] ex parte communication, ‘then a due

process violation has occurred and the former

employee is entitled to a new constitutionally correct

removal procedure.’” FEA, 841 F.3d at 1366 (quoting

Stone v. FDIC, 179 F.3d 1368, 1377 (Fed. Cir. 1999));

see Pet. App. 2a. The Government sought rehearing en

banc on the due-process issue. Pet. App. 25a. Still, the

Government never suggested that the petition for

review was untimely.

C. The Federal Circuit granted en banc review on

the due-process issue. Pet. App. 25a. After another

round of merits briefing—some 33 months after

Graviss’s petition for review and 16 months after the

panel ruled in her favor on the merits—the en banc

court asked the parties to address whether Graviss’s

petition was timely under 5 U.S.C. § 7703(b)(1)(A),

which provides that “any petition for review shall be

filed within 60 days” after issuance of a final decision.

Pet. App. 3a.

As relevant here, Graviss argued that, even if her

petition was untimely, Section 7703(b)(1)(A) is a

nonjurisdictional claim-processing rule and the

Government forfeited any timeliness defense by not

raising it. See CAFed Doc. 124, at 17. But the en banc

court did not address the issue. Instead, over two

dissents, the en banc court voted to dissolve and

remand to the original panel to consider the timeliness

issue. See Pet. App. 29a.

III.

Federal Circuit rulings below

A. The Federal Circuit panel held, in a split

decision, that Graviss’s petition for review had been

filed one day late and, for that reason, the court lacked

jurisdiction. Pet. App. 6a.

The panel majority began by citing the Federal

Circuit’s decision in Fedora v. MSPB, 848 F.3d 1013

(Fed. Cir. 2017), cert. denied, 138 S. Ct. 755

(2018)which held that Section 7703(b)(1)(A)’s 60-day

filing period is jurisdictional. Pet. App. 4a, 6a. Fedora

had relied on Bowles v. Russell, 551 U.S. 205 (2007),

for the proposition that “the taking of an appeal within

the prescribed time is mandatory and jurisdictional.”

848 F.3d at 1015 (quoting Bowles, 551 U.S. at 209).

Graviss contended that Fedora was inconsistent

with this Court’s recent statement in Hamer v.

Neighborhood Housing Services of Chicago, 138 S. Ct.

13, 20 (2017), that Bowles held only that statutory

time limits governing appeals between two Article III

courts are jurisdictional. The panel majority appeared

to realize that Fedora was no longer sufficient to

justify the conclusion that Section 7703(b)(1)(A) is

jurisdictional.

thus

embraced

Graviss’s

understanding of Bowles and Hamer, observing that

“[i]n cases not involving the timebound transfer of

adjudicatory authority from one Article III court to

another,” this Court has “applied a clear-statement

rule.” Pet. App. 7a (emphasis added) (quoting Hamer,

138 S. Ct. at 20 n.9).

The panel majority next sought to apply the clearstatement rule. It first turned to 28 U.S.C.

§ 1295(a)(9), which provides that “the Federal Circuit

shall have exclusive jurisdiction … 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.”

The majority then considered United States v.

Kwai Fun Wong, 135 S. Ct. 1625 (2015), which held

that the time limit under the Federal Tort Claims Act

(FTCA) for seeking district-court review of an adverse

agency decision is not jurisdictional. There, this Court

noted that “[n]othing [in the FTCA] conditions the

jurisdictional grant on the limitations period, or

otherwise links those separate provisions.” Id. at 1633.

The majority reasoned that because Section 1295(a)(9)

expressly references Section 7703(b)(1), the time limit

found in Section 7703(b)(1)(A) is “linked” to the

jurisdictional grant in Section 1295. Pet. App. 7a-8a.

According to the panel majority, this link

“constitute[d] a clear statement that [the Federal

Circuit’s] jurisdiction is dependent on the statutory

time limit.” Pet. App. 7a.

B. Judge Plager dissented, describing the

majority’s reasoning as “manifestly contrary to

current Supreme Court instructions for determining

when a statutory time bar is jurisdictional.” Pet. App.

9a.

Judge Plager observed that, “as th[is] Court

makes clear,” “most statutory time bars are not

jurisdictional. The two exceptions are (1) [appeals]

from one Article III court to another Article III court,

or (2) [when] Congress has expressly made clear an

intention that the time bar be jurisdictional.” Pet. App.

16a. The first exception did not apply, he explained,

because Graviss appealed an agency decision, not a

decision of an Article III court. Pet. App. 16a.

As for the second exception, Judge Plager rejected

the panel’s new-found theory that, simply by

referencing Section 7703(b)(1) in Section 1295(a)(9),

Congress had made a “clear statement” that Section

7703(b)(1)(A)’s time provision was itself jurisdictional.

He noted that Section 1295(a)(9) is just one of over a

dozen subsections in Section 1295(a) that provide

bases for review in the Federal Circuit. Pet. App. 18a.

Many of these other subsections, he explained,

reference other statutes, several of which “contain the

same ‘pursuant to’ language found in subsection 9

relating to the MSPB,” and others that use “different

phrases,” such as “arising under.” Pet. App. 18a-19a

(quotation marks omitted).

“Reading anything into this mélange of phrasing

that might qualify as a ‘clear statement’” that

Congress intended to render other statutes

jurisdictional, Judge Plager concluded, “requires an

especially creative act of judicial reading.” Pet. App.

19a. Given that Section 1295 makes no express

reference to Section 7703(b)(1)(A)’s time limit, “[w]hat

is clear is that the purpose of § 1295(a) is to state

which cases come to the Federal Circuit, not when they

may come.” Pet. App. 19a.

C. Graviss sought rehearing en banc. “[T]he full

court, after some going back and forth,” denied en banc

review. Pet App. 45a (Plager, J., dissenting). Judge

Wallach, joined by Judges Newman and O’Malley,

dissented, calling “the majority’s holding directly

contrary to binding Supreme Court precedent” on “a

question of exceptional importance.” Pet. App. 43a.

“Section 7703(b)(1)(A)’s sixty-day filing deadline does

not contain the hallmarks of a jurisdictional statute,”

Judge Wallach maintained, but instead “reads as a

claim-processing rule.” Pet. App. 36a. Section

1295(a)(9)’s “cross-reference [to Section 7703(b)(1)]

hardly constitutes a clear statement by Congress that

the sixty-day deadline is jurisdictional.” Pet. App. 40a.

Further, because this Court has described the similar

sixty-day time limit in Section 7703(b)(2) as “nothing

more than a filing deadline,” Judge Wallach reasoned,

Pet. App. 38a (quoting Kloeckner v. Solis, 568 U.S. 41,

52 (2012)), “historical treatment does not favor

treating

the

sixty-day

filing

deadline

jurisdictional,” Pet. App. 42a.

Judge Plager, who has senior status, did not

participate in rehearing en banc, but dissented from

the denial of panel rehearing. Echoing his dissent from

the panel decision, he observed that “we once again

invite the Supreme Court to correct our errors.” Pet.

App. 45a.

REASONS FOR GRANTING THE WRIT

The Federal Circuit’s holding that Section

7703(b)(1)(A)’s 60-day time limit creates an absolute

jurisdictional bar is wrong and warrants this Court’s

review. Section 7703(b)(1)(A) itself contains no clear

statement that its time limit is jurisdictional. Nor does

Section 1295(a)(9)’s reference to Section 7703(b)(1)

amount to a clear statement. Because the time

provision is a claim-processing rule, not a

jurisdictional bar, and the Government never raised

timelinesseven after nearly three years of litigation

on the meritsthe Government has forfeited any

timeliness defense.

The principal question presented is important

because all petitions for review from the MSPB are

currently subject to the Federal Circuit’s erroneous

interpretation of this Court’s precedent. Review here

would also afford this Court an opportunity to

eliminate judicial confusion over whether a time limit

governing an appeal from an agency to an Article III

court is presumptively nonjurisdictional.

This case is an especially suitable vehicle for

resolving the questions presented. There are no

predicate issues that could prevent the Court from

answering these questions. And deciding whether

Section

7703(b)(1)(A)’s

time

prescription

jurisdictional or a claim-processing rule would be

outcome determinative. If it is the former, Graviss’s

case is over, and, if it is the latter, the Government

indisputably forfeited any timeliness defense.

The decision below is wrong and defies this

Court’s precedent.

A. Section 7703(b)(1)(A)’s time limit is a

nonjurisdictional, claim-processing rule.

1. The 60-day period for seeking review from an

MSPB decision is nonjurisdictional because Congress

has not clearly stated otherwise.

This Court has repeatedly held that most

congressional time prescriptions are nonjurisdictional

claim-processing rules. 1 To determine whether a

provision is nevertheless jurisdictional, this Court has

generally “applied a clear-statement rule: ‘A rule is

jurisdictional ‘[i]f the Legislature clearly states that a

threshold limitation on a statute’s scope shall count as

jurisdictional.’’” Hamer, 138 S. Ct. at 20 n.9 (quoting

Gonzalez v. Thaler, 565 U.S. 134, 141 (2012) (in turn

quoting Arbaugh, 546 U.S. at 515)).

See Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct.

13, 20 & n.9 (2017); United States v. Kwai Fun Wong, 135 S. Ct.

1625, 1632 (2015); Sebelius v. Auburn Reg. Med. Ctr., 568 U.S.

145, 154 (2013); Henderson v. Shinseki, 562 U.S. 428, 435 (2011);

Arbaugh v. Y & H Corp., 546 U.S. 500, 510 (2011); Scarborough

v. Principi, 541 U.S. 401, 413-14 (2004); Kontrick v. Ryan, 540

U.S. 443, 455 (2004); Irwin v. Dep’t of Veterans Affairs, 498 U.S.

89, 95-96 (1990).

To be sure, statutory time limits governing

appeals “from one Article III court to another” are

presumptively jurisdictional, see Hamer, 138 S. Ct. at

20-21 & n.9, based on the “long held” tradition of

treating those limits as such, Bowles v. Russell, 551

U.S. 205, 209 (2007). That exception does not apply

here because no similar tradition exists for treating

appeals from an agency to an Article III court as

jurisdictional. See, e.g., Bowen v. City of New York,

476 U.S. 467, 478 (1986) (holding nonjurisdictional the

time period to seek district-court review of a decision

of the Secretary of Health and Human Services under

42 U.S.C. § 405(g)); Kwai Fun Wong, 135 S. Ct. at

1632-33 (holding nonjurisdictional the FTCA’s time

period for seeking district-court review from agency

decisions).

In sum, Section 7703(b)(1)(A) is jurisdictional only

if it contains a clear congressional statement of

jurisdictional intent. As we now explain, it does not.

2. Because “most time bars are nonjurisdictional,”

generally “Congress must do something special,

beyond setting an exception-free deadline, to tag” a

time bar as “jurisdictional.” Kwai Fun Wong, 135 S.

Ct. at 1632. As this Court has said many times,

Congress tags a statute as jurisdictional when it

“speak[s] in jurisdictional terms or refer[s] … to the

jurisdiction of the [relevant] courts.” Zipes v. Trans

World Airlines, Inc., 455 U.S. 385, 394 (1982); see also

Arbaugh, 546 U.S. at 515; Gonzalez, 565 U.S. at 143;

Henderson, 562 U.S. at 438; Kwai Fun Wong, 135 S.

Ct. at 1633. Congress has not done so here.

a. The time prescription here is contained in the

second sentence of Section 7703(b)(1)(A), which

provides that “any petition for review shall be filed

within 60 days” of a final decision. Nothing in it speaks

in jurisdictional terms. Although Congress “need not

use magic words in order to speak clearly,” Henderson,

562 U.S. at 436, using the word “jurisdiction” is the

simplest and clearest way to designate a provision as

jurisdictional, see, e.g., Arbaugh, 546 U.S. at 515 n.11;

Musacchio v. United States, 136 S. Ct. 709, 717 (2016).

Section 7703(b)(1)(A) never mentions “jurisdiction.”

And it does not “define a federal court’s jurisdiction

over … claims generally, address its authority to hear

untimely suits, or in any way cabin its usual equitable

powers.” Kwai Fun Wong, 135 S. Ct. at 1633.

b. Nor does Section 7703(b)(1)(A) “speak to the

power of the court.” Reed Elsevier Inc. v. Muchnik, 559

U.S. 154, 161 (2010) (quoting Landgraf v. USI Film

Prods., 511 U.S. 244, 274 (1994)). Congress sometimes

demonstrates its intent to make a time limit

jurisdictional by referring to the court as an actor and

describing the court’s actions, but Section

7703(b)(1)(A) does not do those things. It prescribes

only the process for a litigant to file a claim (“any

petition for review shall be filed”). Contrast the

situation here with the provision the Court found

jurisdictional in Bowles, 551 U.S. at 208, 213. That

provision, 28 U.S.C. § 2107(c), speaks to actions taken

by the district court concerning its power to hear a case

(“the district court may reopen the time for appeal …”).

Bowles, 551 U.S. at 208. This language describes the

actor (the district court) and an action related to the

court’s adjudicatory authority (reopening the time to

appeal).

Gonzalez v. Thaler, 565 U.S. at 142-44, further

illustrates the distinction between a jurisdictional bar

addressing the court’s authority to hear a case and a

claim-processing rule simply describing the process for

obtaining review. Gonzalez found jurisdictional one

provision of the federal habeas statute, 28 U.S.C.

§ 2253(c)(1), which speaks of the court as an actor in

issuing a certificate of appealability (“unless a circuit

justice or judge issues a certificate of appealability”)

about an action flowing from the court’s power to

adjudicate (“an appeal may not be taken to the court

of appeals”). 565 U.S. at 142. But Gonzalez found

nonjurisdictional a clause in the same statutory

subsection that describes only the process for filling

out a certificate of appealability. Id. at 143 (“The

certificate … shall indicate which specific issue or

issues satisfy the showing required”); see also Kwai

Fun Wong, 135 S. Ct. at 1632 (finding “[m]ost

important” in holding a provision nonjurisdictional

that the “text speaks only to a claim’s timeliness, not

to a court’s power”).

c. Congress’s use in Section 7703(b)(1)(A) of

“shall” instead of an arguably less “stringent” word

does not “manifest a different congressional intent”

concerning whether the 60-day time period is

jurisdictional. See Irwin, 498 U.S. at 95. “Time

prescriptions, however emphatic,” generally “are not

properly typed ‘jurisdictional.’” Arbaugh, 546 U.S. at

510 (2006) (quotation marks omitted). As this Court

put it in Kwai Fun Wong, “filing deadlines [are]

quintessential claim-processing rules … even when

the time limit is important (most are) and even when

it is framed in mandatory terms (again, most are).”

135 S. Ct. at 1632 (quotation marks omitted); see also

Irwin, 498 U.S. at 95 (case-by-case analysis of whether

purportedly mandatory language such as “shall” is

jurisdictional has “the disadvantage of continuing

unpredictability without the corresponding advantage

of greater fidelity to the intent of Congress”).

Section 7703(b)(1)(A)’s time prescription is

certainly no more emphatic than the language found

nonjurisdictional in Hamer, 138 S. Ct. at 19-20 (“No

extension … may exceed 30 days”); in Kwai Fun Wong,

135 S. Ct. at 1639 (“A tort claim against the United

States shall be forever barred unless it is presented…

within two years”); in Henderson, 562 U.S. at 438 (an

aggrieved party “shall file a notice of appeal … within

120 days”); or in Zipes, 455 U.S. at 394 n.10 ( “A charge

under this section shall be filed within one hundred

and eighty days”) (emphases added throughout). This

type of “mandatory” language means, at its most

restrictive, that the court “must address the [asserted]

defect” only when there is a “timely objection,”

Gonzalez, 565 U.S. at 146.

d. No language adjacent to Section 7703(b)(1)(A)’s

time provision suggests any intent to make that

provision jurisdictional. The 60-day filing period is, as

noted earlier, in its own sentence (sentence two), and

it does not refer to any other provision. Section

7703(b)(1)(A)’s other sentence (sentence one) 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.” Notably, that

sentence does not mention “jurisdiction” or speak to

the Federal Circuit’s adjudicatory authority and so is

not itself jurisdictional. Indeed, Congress placed the

jurisdictional grant to the Federal Circuit to hear

appeals from the MSPB “in an entirely different title

of the U.S. Code.” Pet. App. 39a (Wallach, J.,

dissenting from denial of reh’g en banc) (citing 28

U.S.C. § 1295(a)(9)); see Pet. App. 18a (Plager, J.,

dissenting).

Even assuming (incorrectly) that the first

sentence of Section 7703(b)(1)(A) is jurisdictional, it

would not render the 60-day time period in the second

sentence jurisdictional. As this Court found when

analyzing Section 7703(b)(1)’s similarly-structured

neighbor, 5 U.S.C. § 7703(b)(2), a time limit contained

in its own separate sentence, making no reference to

other subsections, is not jurisdictional; rather, it “is

nothing more than a filing deadline.” Kloeckner v.

Solis, 568 U.S. 41, 52 (2012); see Pet. App. 38a, 42a

(Wallach, J., dissenting from denial of reh’g en banc).

That is because “[m]ere proximity” to a

jurisdictional provision “will not turn a rule that

speaks in nonjurisdictional terms into a jurisdictional

hurdle.” Gonzalez, 565 U.S. at 147. The jurisdictional

clause in Gonzalez, which premises jurisdiction on

issuance of a certificate of appealability, 28 U.S.C.

§ 2253(c)(1), did not render jurisdictional the

requirements for filling out the certificate in Section

2253(c)(3), even though (c)(3) and (c)(1) are located in

the same statutory subsection and (c)(3) expressly

references (c)(1). Id. Similarly, in Zipes, 455 U.S. 385,

the Court considered neighboring subsections of Title

VII, 42 U.S.C. § 2000e-5(e) and -5(f), containing the

time limit and the jurisdictional grant, respectively,

and the Court found that timely filing was not a

jurisdictional requirement. The time limit, this Court

said, “appears as an entirely separate provision, and it

does not speak in jurisdictional terms.” Id. at 394.

Here, Section 7703(b)(1)(A)’s time prescription lacks

not only “jurisdictional terms” but also any cross

reference to a jurisdictional provision like this Court

found insufficient in Gonzalez.

e. The disagreement within the Federal Circuit

casts a cloud over the panel majority’s view that the

relevant statutes provide a clear statement of

jurisdictional intent. See Smiley v. Citibank (S.D.)

N.A., 517 U.S. 735, 739 (1996) (noting that it is

“difficult indeed” to find a statutory term

unambiguous when appellate judges disagree about

its meaning). Four Federal Circuit judges disagree

with the panel’s ruling below that Section

7703(b)(1)(A)’s time prescription is jurisdictional. See

Pet. App. 27a (Wallach, Newman, and O’Malley, JJ.,

dissenting from denial of reh’g en banc); Pet. App. 38a

(Plager, J., dissenting from denial of panel reh’g);

Fedora v. MSPB, 868 F.3d 1336 (Fed. Cir. 2017) (same

dissenters). A clear congressional statement would not

engender so much disagreement.

f. In opposing en banc review below, the

Government relied on language from this Court’s

decision in Lindahl v. Office of Personnel Management

to the effect that “Sections 1295(a)(9) and 7703(b)(1)

together appear to provide for exclusive jurisdiction

over MSPB decisions in the Federal Circuit.” 470 U.S.

768, 792 (1985). See CAFed Doc. 144, at 6-7. The

Government badly overreads Lindahl, which the

Federal Circuit itself has never cited in any of its

decisions holding Section 7703(b)(1)(A) jurisdictional. 2

The Federal Circuit precedent finding Section

7703(b)(1)(A) jurisdictional originates in Monzo v. Department of

Transportation, 735 F.2d 1335, 1336 (Fed. Cir. 1984), a oneparagraph decision that simply proclaimed Section 7703(b)(1)(A)

For starters, Lindahl was decided before this

Court’s push to “bring some discipline” to the term

“jurisdictional.” Henderson, 562 U.S. at 435. And the

language on which the Government relies clarified

only that the Federal Circuit had exclusive

jurisdiction over petitions for review from MSPB

disability retirement decisions. Lindahl, 470 U.S. at

791-92. Most importantly, in Lindahl, this “Court did

not decide the question of whether the filing deadline

is jurisdictional.” Pet. App. 40a (Wallach, J.,

dissenting from denial of reh’g en banc). Indeed,

Lindahl never mentioned Section 7703(b)(1)(A)’s time

provision or any other purported limit on the Federal

Circuit’s jurisdiction, and Lindahl’s core holding

answered entirely different questions—involving the

availability of judicial review of federal retirees’

disability claims—from the one presented here. See

Lindahl, 470 U.S. at 792-94.

3. As shown above, Section 7703(b)(1)(A) nowhere

contains a clear congressional statement that the

period for seeking Federal Circuit review is

jurisdictional. The panel majority seemed to

acknowledge as much because it made no attempt to

show that Section 7703(b)(1)(A) speaks in

jurisdictional terms or refers to the power of the

courts. See Pet. App. 7a-8a. Indeed, the panel majority

abandoned any reliance on Section 7703(b)(1)(A) itself.

jurisdictional without any reasoning. Later, in Oja v. Department

of Army, the Federal Circuit summarily held, “per Monzo,” that

Section 7703(b)(1)(A) is jurisdictional. 405 F.3d 1349, 1357 (Fed.

Cir. 2005); see also Musselman v. Dep’t of the Army, 868 F.3d

1341 (Fed. Cir. 2017), cert. denied, 138 S. Ct. 739 (2018); Fedora

v. MSPB, 868 F.3d 1336 (Fed. Cir. 2017), cert. denied, 138 S. Ct.

755 (2018).

a. Instead, the majority reached for 28 U.S.C.

§ 1295(a)(9), which gives the Federal Circuit exclusive

jurisdiction over “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.”

The panel majority then hitched Section 1295(a)(9) to

a brand-new, “clear statement” theory, Pet. App. 7a,

which the Government itself had never advanced and

has no basis in the Federal Circuit’s earlier Section

7703(b)(1)(A) decisions. See supra at 20 note 2; Pet.

App. 18a (Plager, J., dissenting) (“The majority’s

theory now is that 28 U.S.C. § 1295(a)(9) alone

constitutes a ‘clear statement’ by Congress that §

7703(b)(1)(A)” is jurisdictional.).

That theory was premised on a negative

implication extrapolated from United States v. Kwai

Fun Wong, 135 S. Ct. 1625 (2015). There, this Court

found a statutory time limit in the FTCA

nonjurisdictional in light of its text. After doing so, the

Court then “confirm[ed] that reading” by noting that

the Act’s jurisdictional grant is located in a different

section of Title 28 than the time limit and that

“[n]othing conditions the jurisdictional grant on the

limitations periods, or otherwise links those separate

provisions.” Id. at 1633.

Seizing on this language, the panel majority

maintained that the reference in Section 1295(a)(9) to

Section 7703(b)(1) was the type of necessary “link”

missing between the jurisdictional statute and the

time limit in Kwai Fun Wong. See Pet. App. 7a-8a.

Because Section 1295 contains a jurisdictional grant,

the majority reasoned, this “link” alone “constitutes a

clear statement that [the Federal Circuit’s]

jurisdiction is dependent on the statutory time limit”

in Section 7703(b)(1)(A). Pet. App. 8a. But this Court

has never held, in Kwai Fun Wong or anywhere else,

that a “link” between a jurisdictional statute and a

threshold limitation in another statute suffices to

render a claim-processing rule jurisdictional.

With or without a “link,” a clear congressional

statement of jurisdictional intent is still required. And

Section 1295(a)(9) is not a clear congressional

statement that Section 7703(b)(1)(A)’s time limit is

jurisdictional because Section 1295 nowhere mentions

that limit, let alone clearly states that Section

7703(b)(1)(A) erects an absolute jurisdictional bar.

Although Congress need not use “magic words” to

clearly state that a time limit is a jurisdictional bar,

Henderson v. Shinseki, 562 U.S. 428, 436 (2011),

surely a clear statement requires at least some words

to that effect.

b. If a cross-reference alone were sufficient to

render another statute jurisdictional, Gonzalez v.

Thaler, 565 U.S. 134 (2012), would have found 28

U.S.C. § 2253(c)(3) jurisdictional. But Gonzalez found

that provision nonjurisdictional. Id. at 137. Section

2253(c)(3)requiring a habeas certificate of

appealability to list the issues involvedexpressly

references Section 2253(c)(1), which requires judicial

issuance of certificates of appealability and which this

Court has found jurisdictional. Gonzalez, 565 U.S. at

142, 145. In holding Section 2253(c)(3) nonjurisdictional, the Court focused on the fact that Section

2253(c)(3) itself, just like Section 7703(b)(1)(A), “does

not speak in jurisdictional terms or refer in any way to

the jurisdiction of the courts.” Id. at 143 (internal

quotation marks and insertion omitted) (quoting

Arbaugh v. Y & H Corp., 546 U.S. 500, 515 (2006)).

The Government maintained in Gonzalez, 565

U.S. at 145, that the link between the two subsections

meant that jurisdiction depended on satisfaction of

Section 2253(c)(3). But this Court responded that “the

statute provides no such thing. Instead, Congress set

off the requirements in distinct paragraphs and,

rather than mirroring their terms, excluded the

jurisdictional terms in one from the other.” 565 U.S. at

145. In Gonzalez, the two provisions were separated

by only a one-sentence subsection. Here, the two

purportedly linked provisions relied on by the panel

majority appear in different titles of the U.S. Code.

And the jurisdictional language of Section 1295(a) is

notably absent from Section 7703(b)(1)(A).

c. Construing Section 1295(a)(9) as imposing its

jurisdictional grant on Section 7703(b)(1)(A)’s gardenvariety time limit misapprehends Section 1295’s

structure and history. The Federal Courts

Improvement Act, Pub. L. No. 97-164, 96 Stat. 25

(1982), established the Federal Circuit to “creat[e] an

appellate forum” with nationwide jurisdiction over

“areas of the law where Congress determines there is

a special need for nationwide uniformity.” S. Rep. No.

97-275, at 2 (1982). Because the Federal Circuit was a

new, specialized circuit court, with its jurisdiction

“defined in terms of subject matter rather than

geography,” id. at 13, Congress could not realize its

vision for that court with a general grant of appellate

jurisdiction like 28 U.S.C. § 1291. Congress instead

had to craft a more reticulated statute detailing the

specific courts, agencies, and case types that would fall

under the Federal Circuit’s purview.

The most practical way to accomplish Congress’s

purpose was for the statutory grant to refer to other

statutes to signify case types and tribunals that

Congress wished to bring within the grant. Section

1295(a)’s fourteen paragraphs contain many such

references. For instance, Section 1295(a)(6) authorizes

review of “final determinations of the United States

International Trade Commission … made under

section 337 of the Tariff Act of 1930,” and Section

1295(a)(7) grants jurisdiction to review “findings of the

Secretary of Commerce under U.S. note 6 to

subchapter X of chapter 98 of the Harmonized Tariff

Schedule of the United States.” 3

This placement of specific kinds of cases within

the Federal Circuit’s purview is exactly what Congress

was doing—and no more—when it wrote Section

1295(a)(9); that is, it intended to give the Federal

Circuit exclusive jurisdiction over most, but not all,

cases appealed from the MSPB. For example, cases

alleging discrimination are reviewed by district courts,

not the Federal Circuit. See 5 U.S.C. § 7703(b)(2).

Therefore, Congress could not simply say “the Federal

Circuit shall have exclusive jurisdiction over appeals

from the MSPB.” Instead, Congress had to specify

which categories of MSPB cases fell within the court’s

exclusive jurisdiction and so used its “pursuant to”

language in Section 1295(a)(9) to carefully exclude

discrimination cases falling under 5 U.S.C.

§ 7703(b)(2).

The next paragraph of Section 1295, Section

1295(a)(10), uses language nearly identical to Section

1295(a)(9), stating that the Federal Circuit has

exclusive jurisdiction over “an appeal from a final

decision of an agency board of contract appeals

See also 28 U.S.C. § 1295(a)(8), (11)-(14).

pursuant to Section 7107(a)(1) of title 41.” Section

7107(a)(1) says that a party may appeal within 120

days from an agency board of contract appeals to the

Federal Circuit, but Section 7107(a)(2) specifies that

decisions of the Tennessee Valley Authority’s board of

contract appeals should instead be appealed within

120 days to a district court. See 41 U.S.C. § 7107(a)(2).

So, much like the “pursuant to” language in Section

1295(a)(9), Section 1295(a)(10) used “pursuant to

Section 7107(a)(1)” to ensure that cases from the

Tennessee Valley Authority remained outside the

Federal Circuit’s authority.

The text and history of Section 1295 thus

“confirms that the purpose of this statute is to identify

which cases, by subject matter, are within [the Federal

Circuit’s] jurisdiction, rather than which timelybrought cases are within [the Federal Circuit’s]

jurisdiction.” Pet. App. 39a (emphasis in original)

(Wallach, J., dissenting from denial of reh’g en banc).

The Federal Circuit majority rejected this simple—

and historically accurate—understanding of Section

1295. Under the panel majority’s theory, Congress

referred to a wide variety of other statutes in Section

1295 not simply to describe the case types within the

Federal Circuit’s purview, but with the hidden intent

to type the procedural requirements described in each

of those statutes as jurisdictional prerequisites to

appealall without a word to that effect. For the

reasons just explained, that cannot be right.

B. The Government forfeited any timeliness

defense.

“[A] mandatory claim-processing rule [is] subject

to forfeiture if not properly raised by the appellee.”

Hamer v. Neighborhood Hous. Servs. of Chi., 138 S.

Ct. 13, 16 (2017). “The government did not object to

the timeliness of [Graviss’s] petition.” Pet. App. 3a.

Rather, the Federal Circuit raised the timeliness issue

on its own after Graviss’s victory on the merits and

more than 33 months after Graviss sought Federal

Circuit review. Id. Thus, if Section 7703(b)(1)(A) is a

claim-processing rule, the Government forfeited any

timeliness defense it may have had.

Although the forfeiture question here may not be

independently worthy of certiorari, it is “sufficiently

connected to the ultimate disposition of the case that

the efficient administration of justice supports [its]

consideration.” City & Cty. of San Francisco v.

Sheehan, 135 S. Ct. 1765, 1779 (2015) (Scalia, J.,

concurring in part and dissenting in part). Indeed,

after finding a time limit or other prescription

nonjurisdictional, this Court has sometimes

considered whether forbearance was appropriate

under the circumstances. 4

And the Court should do so here. As explained, the

Government’s forfeiture here is plain. Moreover, this

case exemplifies the forfeiture rule’s well-established

rationale: to provide parties with the “incentive to

raise legal objections as soon as they are available.”

Freytag v. Comm’r, 501 U.S. 868, 900 (1991) (Scalia,

J., concurring in part and concurring in the judgment).

Otherwise, judges’ time “would frequently be

expended uselessly, and appellate consideration of

difficult questions would be less informed and less

See, e.g., Scarborough v. Principi, 541 U.S. 401, 414-23

(2004); Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95-96

(1990).

complete.” Id. This Court could have been speaking of

this case when it explained that if a claim-processing

rule is mistaken for an atypical jurisdictional bar

“many months of work on the part of the attorneys and

the court may be wasted.” Henderson v. Shinseki, 562

U.S. 428, 435 (2011). Nothing could have been more

wasteful or unfair than dismissing Graviss’s petition

for review—after briefing, oral argument, and a ruling

on the merits—because her petition arrived a day late.

II. The principal question presented is important

to private litigants, the Government, and the

judiciary, and answering it would help

eliminate confusion in the lower courts.

A. Whether a provision is jurisdictional or a claimprocessing rule is “of considerable practical

importance for judges and litigants.” Henderson v.

Shinseki, 562 U.S. 428, 434 (2011). “Branding a rule”

jurisdictional “alters the normal operation of our

adversarial system” and, as occurred here, can “result

in the waste of judicial resources and may unfairly

prejudice litigants.” Id. “Because the consequences

that attach to the jurisdictional label may be so

drastic,” this Court has “tried in recent cases to bring

some discipline to the use of this term.” Id. at 435. It

has thus granted review repeatedly to consider

whether a statutory time limit or other procedural

proscription is jurisdictional. 5

See, e.g., Fort Bend Cty. v. Davis, No. 18-525 (cert. granted

Jan. 11, 2019); Hamer v. Neighborhood Hous. Servs. of Chi., 138

S. Ct. 13 (2017); United States v. Kwai Fun Wong, 135 S. Ct. 1625

(2015); Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145 (2013);

Gonzalez v. Thaler, 565 U.S. 134 (2012); Henderson, 562 U.S.

That the principal question presented involves a

review provision applicable only in the Federal Circuit

underscores, not mitigates, the need for this Court’s

intervention. The absence of decisions from other

circuits on the status of Section 7703(b)(1)(A) means

that, without this Court’s review, there would be no

“antidote to the risk that the specialized court may

develop” incorrect precedent. See Holmes Grp., Inc. v.

Vornado Air Circulation Sys., 535 U.S. 826, 839 (2002)

(Stevens, J., concurring in part and concurring in the

judgment). Indeed, this Court’s recent effort to curb

misapplication of the “jurisdictional” label includes a

case within the Federal Circuit’s exclusive authority.

See Henderson, 562 U.S. 428; see also Scarborough v.

Principi, 541 U.S. 401 (2004) (reversing Federal

Circuit’s holding that statutory time limit was

jurisdictional).

Determining whether Section 7703(b)(1)(A)’s time

limit is jurisdictional is at least as important as the

questions this Court has considered in similar cases.

See supra at 28 note 5. The MSPB is responsible for

“processing appeals from Federal employees involving,

among others, adverse [employment] actions,

428; Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010); John

R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008);

Bowles v. Russell, 551 U.S. 205 (2007); Arbaugh v. Y & H Corp.,

546 U.S. 500 (2006); Eberhart v. United States, 546 U.S. 12

(2005); Scarborough v. Principi, 541 U.S. 401 (2004); Kontrick v.

Ryan, 540 U.S. 443 (2004); Becker v. Montgomery, 532 U.S. 757

(2001); Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89 (1990);

Torres v. Oakland Scavenger Co., 487 U.S. 312 (1988); Zipes v.

Trans World Airlines, Inc., 455 U.S. 385 (1982).

whistleblower claims and veterans concerns.” 6

“Approximately 2 million Federal employees, or about

two-thirds of the full-time civilian [government] work

force, currently have appeal rights to the Board.” 7 For

many federal employees nationwide, the sole route to

challenge an agency’s adverse employment decision is

through the MSPB. See 5 U.S.C. § 7703. The federal

civilian workforce includes over 600,000 veterans. 8

Answering the principal question presented is

important for another reason. If the decision below

stands, the Federal Circuit will find jurisdictional

“links” to time limits and other prescriptions in the

various statutory regimes referenced by 28 U.S.C.

§ 1295(a)’s thirteen paragraphs in addition to

paragraph (a)(9), all of which designate tribunals and

subject matters within the Federal Circuit’s exclusive

jurisdiction. See supra at 24-26. Put another way, the

decision below creates a slew of new jurisdictional

limits on appeals to the Federal Circuit from decisions

See U.S. Merit Sys. Prot. Bd., Congressional Budget

Justification FY 2019 (Feb. 2018), 1, https://www.mspb.gov/MS

PBSEARCH/viewdocs.aspx?docnumber=1488641&version=1494

222&application=ACROBAT

[https://perma.cc/Q94Q-BKZ2]

(MSPB administrative judges receive “about 6,500-7,000 appeals

and other cases in [MSPB] regional and field offices; and the

Board members will receive approximately 1,350 cases at

headquarters”).

U.S. Merit Sys. Prot. Bd., Jurisdiction, https://www.ms

pb.gov/About/jurisdiction.htm [https://perma.cc/K6RN-JR2U].

See U.S. Office of Pers. Mgmt., Employment of Veterans in

the Federal Executive Branch, Fiscal Year 2016 (June 2017), 2,

https://www.fedshirevets.gov/veterans-council/veteran-employ

ment-data/employment-of-veterans-in-the-federal-executivebranch-fy2016.pdf [https://perma.cc/3NPY-FK4E].

of the U.S. International Trade Commission, the

Secretary of Commerce, and agency boards of contract

appeals, among other tribunals. See, e.g., 28 U.S.C.

§ 1295(a)(6), (7), (10).

B. A grant of certiorari would help eliminate

confusion—made more pronounced by the decision

below—over whether a statutory review period from

an agency to an Article III court is presumptively

nonjurisdictional.

This confusion is exemplified by decisions over

whether the time limit for circuit-court review of EPA

rules issued under the Clean Air Act is jurisdictional.

The Act provides that a petition for review “shall be

filed within sixty days” of the rule’s promulgation, 42

U.S.C. § 7607(b)(1). The D.C. Circuit has repeatedly

held that this limit is jurisdictional. See, e.g., Medical

Waste Inst. and Energy Recovery Council v. EPA, 645

F.3d 420, 427 (D.C. Cir. 2011) (reaffirming earlier

precedent). Then-Judge Kavanaugh explained that

these precedents likely are at odds with this Court’s

decisions, see Utility Air Regulatory Group v. EPA,

744 F.3d 741, 751 (D.C. Cir. 2014) (Kavanaugh, J.,

concurring), but the D.C. Circuit continues to adhere

to its position, see Sierra Club v. EPA, 895 F.3d 1, 16

(D.C. Cir. 2018); Sierra Club de Puerto Rico v. EPA,

815 F.3d 22, 26 (D.C. Cir. 2016). The Tenth Circuit has

also found Section 7607(b)(1) jurisdictional. See Utah

v. EPA, 765 F.3d 1257, 1258-62 (10th Cir. 2014).

On the other hand, the Seventh Circuit has applied

the clear-statement rule and held that Section

7607(b)(1)’s time limit is a nonjurisdictional claimprocessing rule. See Clean Water Council of Nw. Wis.,

Inc. v. EPA, 765 F.3d 749, 751-52 (7th Cir. 2014)

(Easterbrook, J.). In doing so, it explained why the

D.C. Circuit’s rule cannot be squared with this Court’s

modern precedents and noted that Bowles v. Russell,

551 U.S. 205 (2007), is limited “to appeals from district

courts.” 765 F.3d at 752.

C. Similar confusion pervades the Federal Circuit’s

understanding that Section 7703(b)(1)(A)’s time limit

is jurisdictional. The panel majority apparently

accepted that Section 7703(b)(1)(A)’s limit is

presumptively a claim-processing rule, following this

Court’s decision in Hamer, see Pet. App. 6a-7a, but

then found a clear statement that it is jurisdictional in

a “link” from Section 1295. See Pet. App. 7a. Yet the

Federal Circuit has not definitively disavowed the

rationale of Fedora v. MSPB, 848 F.3d 1013, 1015

(Fed. Cir. 2017), which held that “[a]ppeal periods to

Article III courts, such as the period in § 7703(b)(1),

are controlled by the Court’s decision in Bowles v.

Russell,” id. at 1015, and are therefore presumptively

jurisdictional. Indeed, the panel majority cited Fedora

with apparent (but paradoxical) approval, see Pet.

App. 6a, which should have rendered the rest of its

analysis unnecessary. This doctrinal confusion is

further reason to grant review.

III. This case is an ideal vehicle for resolving the

questions presented.

A. This case provides an especially suitable

vehicle to resolve the questions presented. Whether

Section 7703(b)(1)(A)’s time limit is jurisdictional was

the only question considered by the panel below, and

no antecedent issues could prevent this Court from

reaching it.

B. We recognize that this Court has recently

denied review in cases that presented the question

whether Section 7703(b)(1)(A) is subject to equitable

tolling. 9 This Court should nonetheless grant review

here for several reasons.

First, the decision below rests on an entirely

different rationale from that employed in the other

cases. In those cases, the Federal Circuit derived a

categorical rule from Bowles that “[a]ppeal periods to

Article III courts, such as the period in § 7703(b)(1)”

are always jurisdictional. See, e.g., Fedora, 848 F.3d at

1015. In the decision below, by contrast, the Federal

Circuit appeared to recognize that Fedora’s rationale

no longer suffices and that this Court’s precedent

requires application of the clear-statement rule to

Section 7703(b)(1)(A)’s time provision. See Pet. App.

6a-7a; supra at 32. Because the other cases were

decided under Fedora’s rationale, this case presents

an opportunity for this Court to review the Federal

Circuit’s new, highly impactful, and, in our view,

erroneous holding that Section 1295(a)(9)’s crossreference to Section 7703(b)(1)(A) is a clear statement

that Section 7703(b)(1)(A)’s time limit is jurisdictional.

See supra at 24-26, 30-31.

Second, the Government argued that the other

petitions for certiorari were poor vehicles for review

because the petitioners there sought relief on

equitable-tolling grounds. The Federal Circuit, the

Jones v. HHS, 702 F. App’x 988 (Fed. Cir. 2017), cert.

denied, 139 S. Ct. 359 (2018); Musselman v. Dep’t of Army, 868

F.3d 1341, cert. denied, 138 S. Ct. 739 (2018); Vocke v. MSPB,

680 F. App’x 944 (Fed. Cir. 2017), cert. denied, 138 S. Ct. 755,

U.S. (2018); and Fedora v. MSPB, 848 F.3d 1013, cert. denied,

138 S. Ct. 755 (2018).

Government maintained, “would not be well-situated

to … evaluate and weigh these competing factors in

the equitable-tolling analysis,” and the cost of

remanding to the MSPB would “outweigh[] any

potential benefit of trying to identify the rare case in

which equitable tolling might in fact be warranted.” 10

We believe these concerns are unjustified. See Irwin v.

Dep’t of Veterans Affairs, 498 U.S. 89, 94-96 (1990).

But right or wrong, they do not apply to a forfeiture

argument, where, as in Graviss’s case, the facts are

clear, and the appellate court easily can determine

whether forfeiture occurred, as appellate courts often

do.

Finally, it is possible that some mandatory time

limits are not subject to equitable tolling. See Hamer

v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 18

n.3 (2017); United States v. Kwai Fun Wong, 135 S.

Ct. 1625, 1631 n.2 (2015); see also Lambert v.

Nutraceutical Corp., No. 17-1094 (argued Nov. 27,

2018) (concerning whether Federal Rule of Civil

Procedure 23(f)’s nonjurisdictional time limit is

subject to equitable tolling). We believe that Section

7703(b)(1)(A) is amenable to equitable tolling. See

Irwin, 498 U.S. at 94-96. But there is no doubt that if

Section 7703(b)(1)(A)’s time limit is nonjurisdictional,

U.S. Opp. 16, Fedora v. MSPB, No. 17-557 (Dec. 14, 2017);

see also U.S. Opp. 16, Musselman v. Dep’t of Army, No. 17-570

(Dec. 15, 2017); U.S. Opp. 17, Vocke v. MSPB, No. 17-544 (Dec.

13, 2017); U.S. Opp. 15, Jones v. HHS, No. 17-1610 (Aug. 30,

2018).

it is “subject to forfeiture if not properly raised by the

appellee.” Hamer, 138 S. Ct. at 16.

C. The decision below and other recent decisions

holding

Section

7703(b)(1)(A)

jurisdictional

demonstrate that the principal question presented

here is not going away. 11

Without an answer to that question, the Federal

Circuit’s insistence that Section 7703(b)(1)(A)’s time

limit is jurisdictional will continue to cause unfairness

to litigants and waste judicial resources, at odds with

congressional intent. This Court should provide that

answer now.

CONCLUSION

The petition for a writ of certiorari should be

granted.

See Jones, 702 F. App’x 988; Fedora, 848 F.3d 1013;

Musselman, 868 F.3d 1341; Vocke, 680 F. App’x 944;

Brenndoerfer v. USPS, 693 F. App’x 904 (Fed. Cir. 2017); see also

Fuerst v. Dep’t of Air Force, No. 3:17-cv-184, 2018 WL 1587454,

at *3 (S.D. Ohio Apr. 2, 2018) (holding 5 U.S.C. § 7703(b)(2)

jurisdictional and refusing to consider tolling argument in

reliance on Federal Circuit’s decision in Fedora).

Respectfully submitted,