Opposition Brief — Stuart R. Harrow, Petitioner v. Department of Defense

No. 23-21

In the Supreme Court of the United States

STUART R. HARROW, PETITIONER

v.

DEPARTMENT OF DEFENSE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

PATRICIA M. MCCARTHY

FRANKLIN E. WHITE, JR.

GALINA I. FOMENKOVA

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 Merits

Systems Protection Board, 5 U.S.C. 7703(b)(1)(A), is jurisdictional and therefore not subject to equitable tolling.

(I)

ADDITIONAL RELATED PROCEEDINGS

United States Court of Appeals (Fed. Cir.):

Harrow v. Department of Defense, No. 2022-2254

(Feb. 14, 2023)

Harrow v. Department of Defense, No. 2022-2254

(Apr. 17, 2023) (denying rehearing)

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 7

Conclusion ................................................................................... 21

TABLE OF AUTHORITIES

Cases:

Boechler, P.C. v. Commissioner,

142 S. Ct. 1493 (2022) ............................................. 12, 18, 19

Bowen v. City of New York, 476 U.S. 467 (1986) ................ 15

Bowles v. Russell, 551 U.S. 205 (2007) ...................... 8, 11, 13

Boyd v. Department of Veterans Affairs,

141 S. Ct. 1739 (2021) ........................................................... 7

Brown v. Nuclear Regulatory Comm’n,

644 F.3d 726 (8th Cir. 2011) ............................................... 13

Council Tree Investors, Inc. v. FCC,

739 F.3d 544 (10th Cir. 2014) ............................................. 12

Federal Educ. Ass’n—Stateside Region v.

Department of Def., 898 F.3d 1222 (Fed. Cir. 2018),

cert. denied, 139 S. Ct. 2616 (2019) ................................... 16

Fedora v. MSPB:

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

583 U.S. 1091 (2018) .................................... 5, 7, 14, 15

583 U.S. 1091 (2018) .......................................................... 7

Fort Bend Cnty. v. Davis, 139 S. Ct. 1843 (2019) ..... 9, 15, 16

Garcia v. DHS, 437 F.3d 1322 (Fed. Cir. 2006) .................... 2

Gonzalez v. Thaler, 565 U.S. 134 (2012) .............................. 10

Gossage v. MSPB, 142 S. Ct. 218 (2021) ............................... 7

(III)

IV

Cases—Continued:

Page

Graviss v. Department of Defense, 139 S. Ct. 2616

(2019) ...................................................................................... 7

Hamer v. Neighborhood Hous. Servs.,

138 S. Ct. 13 (2017) ....................................................... 11, 12

Henderson v. Shinseki, 562 U.S. 428 (2011) ............ 11-13, 15

Intel Corp. Inv. Policy Comm. v. Sulyma,

140 S. Ct. 768 (2020) ........................................................... 20

Irwin v. Department of Veterans Affairs,

498 U.S. 89 (1990) ............................................................... 18

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

552 U.S. 130 (2008)........................................................ 13, 14

Jones v. HHS, 139 S. Ct. 359 (2018) ...................................... 7

Kloeckner v. Solis, 568 U.S. 41 (2012) ......................... 2, 3, 17

Lara v. OPM, 566 U.S. 974 (2012) ......................................... 7

Lindahl v. OPM, 470 U.S. 768 (1985) .................... 8, 9, 13, 17

Martin v. Office of Special Counsel,

819 F.2d 1181 (D.C. Cir. 1987) ............................................. 2

Matson Navigation Co. v. United States Dep’t of

Transp., 895 F.3d 799 (D.C. Cir. 2018) ............................. 12

Menominee Indian Tribe of Wis. v. United States,

577 U.S. 250 (2016).............................................................. 20

Monzo v. Department of Transp.,

735 F.2d 1335 (Fed. Cir. 1984) ................................. 5, 10, 16

Musselman v. Department of the Army,

583 U.S. 1097 (2018).............................................................. 7

Nunnally v. MacCausland, 996 F.2d 1 (1st Cir. 1993) ..... 18

Nutraceutical Corp. v. Lambert,

139 S. Ct. 710 (2019) ..................................................... 18, 19

Oja v. Department of the Army,

405 F.3d 1349 (Fed. Cir. 2005) ............................... 11, 16, 18

V

Cases—Continued:

Page

Owner-Operator Indep. Drivers Ass’n v. United

States Dep’t of Transp., 858 F.3d 980

(5th Cir. 2017)...................................................................... 12

Perry v. MSPB, 582 U.S. 420 (2017)................................ 3, 17

Reed Elsevier, Inc. v. Muchnick,

559 U.S. 154 (2010).................................................. 10, 15, 16

Thomas v. GSA, 794 F.2d 661 (Fed. Cir. 1986) .................... 2

United States v. Kwai Fun Wong,

575 U.S. 402 (2015).......................................................... 8, 10

Vocke v. MSPB, 583 U.S. 1091 (2018) .................................... 7

Wilkins v. United States, 143 S. Ct. 870 (2023) .............. 9, 12

Constitution, statutes, regulations, and rules:

U.S. Const.:

Art. I ................................................................................. 12

Art. III .............................................................................. 12

All Circuit Review Act, Pub. L. No. 115-195,

132 Stat. 1510:

§ 2(a), 132 Stat. 1510 ......................................................... 4

§ 2(b), 132 Stat. 1510 ......................................................... 4

All Circuit Review Extension Act,

Pub. L. No. 113-170, § 2, 128 Stat. 1894 ............................. 4

Civil Service Reform Act of 1978, Pub. L. No. 95-454,

Tit. II, § 205, 92 Stat. 1143-1144 .......................................... 3

§ 205, 92 Stat. 1143 ...................................................... 3, 13

Federal Courts Improvement Act of 1982,

Pub. L. No. 97-164, Tit. I, § 144, 96 Stat. 45....................... 3

Hobbs Act, 28 U.S.C. 2342 .................................................... 12

28 U.S.C. 2344 .................................................................. 12

Tucker Act, ch. 359, 24 Stat. 505 (28 U.S.C. 1491) ............. 13

28 U.S.C. 2501 .................................................................. 13

VI

Statutes, regulations, and rules—Continued:

Page

Whistleblower Protection Enhancement Act of 2012,

Pub. L. No. 112-199, Tit. I, § 108, 126 Stat. 1469 ... 4, 11, 20

5 U.S.C. 7512(a) ....................................................................... 2

5 U.S.C. 7701(a) ....................................................................... 2

5 U.S.C. 7701(a)(1) ................................................................... 2

5 U.S.C. 7701(a)(2) ................................................................... 2

5 U.S.C. 7701(b)(1) (1982) ....................................................... 9

5 U.S.C. 7701(e)(1) ................................................................... 2

5 U.S.C. 7702 ............................................................................ 3

5 U.S.C. 7703(b)(1) (2010) ..................................................... 20

5 U.S.C. 7703(b)(1) ............................................ 8-14, 16, 17, 20

5 U.S.C. 7703(b)(1)(A) ................................ 4, 5, 7, 8, 11, 13-20

5 U.S.C. 7703(b)(1)(B) ............................................................. 4

5 U.S.C. 7703(b)(2) ....................................................... 3, 17, 18

5 U.S.C. 7703(d) ................................................................... 3, 8

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

28 U.S.C. 1295(a)(9) ................................................. 3, 8, 10, 16

28 U.S.C. 1331 ........................................................................ 17

42 U.S.C. 2000e-16(c) ............................................................ 18

5 C.F.R.:

Section 1201.14(e)(1) ......................................................... 6

Section 1201.14(e)(6) ......................................................... 6

Section 1201.41 .................................................................. 2

Section 1201.72 .................................................................. 2

Section 1201.111(a) ............................................................ 2

Section 1201.111(b)(1)-(3) ................................................. 2

Section 1201.114 ................................................................ 2

Section 1201.115(a)-(c) ...................................................... 2

Section 1201.117(a) ............................................................ 3

Section 1201.117(c) ............................................................ 3

VII

Rules—Continued:

Page

Fed. R. App. P:

Rule 26 .............................................................................. 19

Rule 26(b) ................................................................. 7, 8, 19

Rule 26(b)(2) .................................................................. 5, 6

Miscellaneous:

Office of the Clerk of the Board, MSPB,

Notice To Parties With A Pending Petition

For Review Or Case Before The Full Board,

https://www.mspb.gov/Notice_about_contact_

information.pdf (last visited Oct. 6, 2023) .......................... 7

In the Supreme Court of the United States

No. 23-21

STUART R. HARROW, PETITIONER

v.

DEPARTMENT OF DEFENSE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-3a)

is not published in the Federal Reporter, but is available at 2023 WL 1987934. The final order of the Merit

Systems Protection Board (Pet. App. 1c-16c) is not published in the Merit Systems Protection Board Reporter,

but is available at 2022 WL 1495611.

JURISDICTION

The judgment of the court of appeals was entered on

February 14, 2023. A petition for rehearing was denied

on April 17, 2023 (Pet. App. 1b-2b). The petition for a

writ of certiorari was filed on July 3, 2023. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. “A federal employee subjected to an adverse ‘personnel action’ ”—including a discharge, demotion, or

(1)

2

furlough of 30 days or less—“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. 7512(a) and 7701(a). “ The Board is an independent, quasi-judicial federal administrative agency,”

Garcia v. DHS, 437 F.3d 1322, 1327 (Fed. Cir. 2006) (en

banc), charged with adjudicative functions that “track

those of the civil courts,” Martin v. Office of Special

Counsel, 819 F.2d 1181, 1188 (D.C. Cir. 1987).

MSPB proceedings are “adversarial.” Martin, 819

F.2d at 1188. Employees proceeding before the Board

have statutory rights “to be represented by an attorney

or other representative” and “to a hearing for which a

transcript will be kept.” 5 U.S.C. 7701(a)(1) and (2); see

5 C.F.R. 1201.72 (authorizing discovery). The Board’s

administrative judges possess the authority to conduct

hearings. 5 C.F.R. 1201.41. And following the opportunity for a hearing, the administrative judge must

“prepare an initial decision” containing “[f ]indings of

fact and conclusions of law,” “[t]he reasons or bases for

those findings and conclusions,” and “[a]n order” providing for “appropriate relief.” 5 C.F.R. 1201.111(a) and

(b)(1)-(3); see Thomas v. GSA, 794 F.2d 661, 664 (Fed.

Cir. 1986) (MSPB is a “quasi-judicial tribunal[]” issuing

decisions “on the basis of an adversary, litigated record”).

A federal employee may seek the full Board’s review

of an administrative judge’s adverse initial decision, or

the Board may grant such review sua sponte. 5 U.S.C.

7701(e)(1); see C.F.R. 1201.114. The full Board reviews

the administrative judge’s initial decision for legal error, an abuse of discretion, or “erroneous findings of

material fact,” giving deference to any demeanor-based

credibility determinations, 5 C.F.R. 1201.115(a)-(c), in a

3

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. See 5 C.F.R. 1201.117(c).

b. Once the Board’s decision is final, the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454,

Tit. II, § 205, 92 Stat. 1143-1144, establishes two paths

for judicial review.

First, a federal employee aggrieved by the Board’s

final decision in a “ ‘mixed case’ ”—that is, a case involving both “a personnel action serious enough to appeal to

the MSPB and ” an allegation “that the action was based

on discrimination”—“shall” file an action “in district

court.” Kloeckner, 568 U.S. at 44, 49-50; see Perry v.

MSPB, 582 U.S. 420 (2017); 5 U.S.C. 7702 and 7703(b)(2).

A district court action in a mixed case “must be filed

within 30 days after the date the individual filing the

case received notice of the judicially reviewable action.”

5 U.S.C. 7703(b)(2).

Second, and most relevant here, for all other cases,

the CSRA provides for judicial review directly in the

courts of appeals. In 1978, upon passage of the Act,

such review was vested in either the Court of Claims or

the regional courts of appeals. CSRA § 205, 92 Stat.

1143. In 1982, Congress created the Federal Circuit

and gave that court “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.” 28 U.S.C. 1295(a)(9);

Federal Courts Improvement Act of 1982, Pub. L. No.

4

97-164, Tit. I, § 144, 96 Stat. 45. Section 7703(b)(1)(A)

provides in relevant part:

[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 2012, Congress reinstated the option of review in

the regional circuits for non-mixed cases involving allegations of whistleblower retaliation; those appeals can

now be brought in either the Federal Circuit or “any

court of appeals of competent jurisdiction.” 5 U.S.C.

7703(b)(1)(B); Whistleblower Protection Enhancement

Act of 2012 (WPEA), Pub. L. No. 112-199, Tit. I, § 108,

126 Stat. 1469. Like appeals in other non-mixed cases,

appeals in whistleblower-retaliation actions must 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)(B).1

2. Petitioner was employed by the Defense Contracting Management Agency, a component of the Department of Defense. Pet. App. 2c. In 2013, petitioner

was furloughed for six days under a Department-wide

furlough order. Id. at 2c-3c.

When petitioner received notice of the proposed furlough, he requested that the agency exempt him due to

Congress initially provided regional-circuit review for whistleblower claims for only two years. WPEA § 108, 126 Stat. 1469. Congress later extended the period to five years, and in 2018, made such

review permanent. See All Circuit Review Extension Act, Pub. L.

No. 113-170, § 2, 128 Stat. 1894; All Circuit Review Act, Pub. L. 115195, § 2(a) and (b), 132 Stat. 1510.

1

5

financial hardship. Pet. App. 3c. That request was denied, and petitioner filed a timely appeal of his furlough

to the MSPB. Ibid. An administrative judge held a

hearing and issued an initial decision affirming the furlough. Id. at 5c.

3. Petitioner sought the Board’s review. In January

2017, while petitioner’s case was pending, the Board lost

its quorum. See Pet. 2-3. His petition therefore could

not be resolved until after a quorum was restored in

March 2022. Ibid.

The Board issued its final order on May 11, 2022,

denying the petition for review and affirming the initial

decision as the Board’s final decision. Pet. App. 1c-16c.

The Board’s order included a section entitled “ NOTICE

OF APPEAL RIGHTS ,” which stated that “an appellant

seeking judicial review of a final Board order must file

a petition for review with the U.S. Court of Appeals for

the Federal Circuit, which must be received by the

court within 60 calendar days of the date of issuance of

this decision. 5 U.S.C. § 7703(b)(1)(A).” Id. at 11c-12c.

4. Petitioner filed his petition with the Federal Circuit on September 16, 2022, 128 days after the Board’s

final decision. Pet. App. 2a.

a. Before any briefing was due, the Federal Circuit

issued an order to show cause why the petition should

not be dismissed as untimely. Pet. App. 1a; see C.A.

Doc. 7 (Nov. 21, 2022). The order cited Fedora v.

MSPB, 848 F.3d 1013 (Fed. Cir. 2017), cert. denied, 583

U.S. 1091 (2018), which reaffirmed the Federal Circuit’s

longstanding holding that Section 7703(b)(1)(A)’s timing requirement is jurisdictional and not subject to equitable tolling. See id. at 1016; see also Monzo v. Department of Transp., 735 F.2d 1335, 1336 (Fed. Cir.

1984). The order also cited Federal Rule of Appellate

6

Procedure 26(b), which provides that a court may not

extend the time to file a petition for review of a decision

by an administrative agency “unless specifically authorized by law.” Fed. R. App. P. 26(b)(2).

In response to the order to show cause, petitioner did

not “dispute that he filed his petition for review outside

of th[e] statutory deadline.” Pet. App. 2a. Instead, petitioner contended that his untimely filing was “excusable” because “he did not become aware of the [Board’s]

decision until August 30, 2022,” a month and a half after

the deadline for seeking review in the Federal Circuit.

Ibid. When the Board decided petitioner’s case, it served

him with notice via the email address it had on file. But

petitioner explained that his email address had changed

during the pendency of the case and that he had failed to

notify the Board of that change—apparently because he

“mistakenly believed that the emails addressed to the

old address would be forwarded to his current email address.” Pet. C.A. Response to Order to Show Cause 8.

Petitioner acknowledged that “[s]ince the inception

of his case,” he had used the Board’s “e-Appeal Online

system.” Pet. C.A. Response to Order to Show Cause

7-8. The regulations governing that system provide

that “[r]egistration as an e-filer constitutes consent to

accept electronic service of pleadings filed by other registered e-filers and documents issued by the MSPB.”

5 C.F.R. 1201.14(e)(1). Accordingly, the regulations

state that “[e]ach e-filer must notify the MSPB and

other participants of any change in his or her e-mail address.” 5 C.F.R. 1201.14(e)(6). In light of the period in

which the Board lacked a quorum, the Board also issued

a notice as a public courtesy on May 5, 2022—six days

before its final order in petitioner’s case—reminding

parties with pending cases before the full Board to

7

update their contact information. Office of the Clerk of

the Board, MSPB, Notice To Parties With A Pending

Petition For Review Or Case Before The Full Board,

https://www.mspb.gov/Notice_about_contact_information.

pdf.

b. The Federal Circuit dismissed the petition for review. Pet. App. 1a-3a. The court explained that under

its longstanding precedent, “[t]he timely filing of a petition from the Board’s final decision is a jurisdictional

requirement and ‘not subject to equitable tolling.’ ” Id.

at 2a (quoting Fedora, 848 F.3d at 1016). The court also

cited Rule 26(b), noting that the rule’s prohibition on

extending the time to petition for review deprived the

court of any authority to “excuse a failure to timely file

based on individual circumstances.” Ibid.

ARGUMENT

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. That holding does not conflict with any decision of this Court or of any other court of appeals. This

Court has recently and repeatedly denied petitions for

writs of certiorari raising the same question. See

Gossage v. MSPB, 142 S. Ct. 218 (2021) (No. 21-38);

Graviss v. Department of Defense, 139 S. Ct. 2616

(2019) (No. 18-1061); Jones v. HHS, 139 S. Ct. 359

(2018) (No. 17-1610); Fedora v. MSPB, 583 U.S. 1091

(2018) (No. 17-557); Vocke v. MSPB, 583 U.S. 1091

(2018) (No. 17-544); Musselman v. Department of the

Army, 583 U.S. 1097 (2018) (No. 17-570); see also Boyd

v. Department of Veterans Affairs, 141 S. Ct. 1739

(2021) (20-1090); Lara v. OPM, 566 U.S. 974 (2012) (No.

11-915). The same result is warranted here. Indeed,

this case would be an especially poor vehicle in which to

8

consider Section 7703(b)(1)(A)’s jurisdictional status

because the court of appeals’ decision is independently

supported by its conclusion that equitable tolling is

foreclosed by Federal Rule of Appellate Procedure

26(b)—which petitioner does not address—and because

petitioner would not be entitled to equitable tolling even

if it were otherwise available.

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 [MSPB], pursuant to sections 7703(b)(1)

and 7703(d) of title 5.” 28 U.S.C. 1295(a)(9). As relevant

here, Section 7703(b)(1)(A) 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 over petitions

that fail to comply with Section 7703(b)(1)(A)’s 60-day

deadline.

a. This Court has previously recognized that Section

7703(b)(1) is jurisdictional. 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.” The Court continued: “Section 7703(b)(1) confers the operative grant of jurisdiction—the ‘power to

adjudicate.’ ” Id. at 793 (emphasis added); see, e.g.,

Bowles v. Russell, 551 U.S. 205, 213 (2007) (“[T]he

9

notion of subject-matter jurisdiction obviously extends

to classes of cases falling within a court’s adjudicatory

authority.”) (citation, ellipses, and internal quotation

marks omitted). Lindahl expressly rejected the argument that Section 7703(b)(1) was “nothing more than a

venue provision” with no “relat[ion] to the power of a

court.” 470 U.S. at 792, 793 n.30 (citation omitted). Instead, the Court emphasized that “Section 7703(b)(1)

confers the operative grant of jurisdiction”—i.e., it is

what gives the Federal Circuit the “ ‘power to adjudicate’ ” cases that “fall within [the Section’s] jurisdictional perimeters.” Id. at 793. Thus, Lindahl “addressed whether [Section 7703(b)(1)] is technically

jurisdictional—whether it truly operates as a limit on a

court’s subject-matter jurisdiction.” Wilkins v. United

States, 143 S. Ct. 870, 877 (2023) (brackets, citation, and

internal quotation marks omitted). And although Lindahl did not specifically discuss Section 7703(b)(1)’s

timing requirement (which was then 30 days), that condition is necessarily one of the “jurisdictional perimeters” that Lindahl recognized as defining the Federal

Circuit’s power to adjudicate and limiting the statute’s

“jurisdictional grant.” 470 U.S. at 792-793; see 5 U.S.C.

7701(b)(1) (1982).

Section 7703(b)(1)’s time bar thus differs markedly

from other requirements that this Court has held to be

nonjurisdictional. The Court emphasized that those

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,

575 U.S. 402, 412 (2015); see, e.g., Wilkins, 143 S. Ct. at

877 (“The Quiet Title Act’s jurisdictional grant is in 28

U.S.C. § 1346(f ), well afield of § 2409a(g).”); Fort Bend

10

Cnty. v. Davis, 139 S. Ct. 1843, 1850 (2019) (“Separate

provisions” from the jurisdictional grants “contain the

Act’s charge-filing requirement”); Gonzalez v. Thaler,

565 U.S. 134, 145 (2012) (Congress “set off the [ jurisdictional and non-jurisdictional] requirements in distinct

paragraphs”); Reed Elsevier, Inc. v. Muchnick, 559

U.S. 154, 164-165 (2010) (registration requirement 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”).

Here, by contrast, this Court has held that Section

7703(b)(1) itself is part of the relevant jurisdictional

grant. And that conclusion was compelled by the statutory text and structure: Section 1295(a)(9) provides the

Federal Circuit with “jurisdiction” over “an appeal from

a final order or final decision of the [MSPB], pursuant

to section[] 7703(b)(1).” 28 U.S.C. 1295(a)(9) (emphasis

added). The scope of that grant of jurisdiction is thus

defined by Section 7703(b)(1), which both identifies the

covered MSPB decisions—those in non-mixed cases—

and imposes the time bar at issue here. Like the identification of the covered decisions, the time bar is jurisdictional because it is “link[ed]” to Section 1295(a)(9)’s

grant of jurisdiction, Kwai Fun Wong, 575 U.S. at 412,

by an express cross-reference.

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 nearly 40 years. See

Monzo v. Department of Transp., 735 F.2d 1335, 1336

(1984). Before the creation of the Federal Circuit, when

the CSRA provided for review in either the Court of

Claims or the regional courts of appeals, the Eighth,

11

Ninth, and D.C. Circuits also recognized the jurisdictional nature of the statute’s time limitation. See Oja v.

Department of the Army, 405 F.3d 1349, 1357 n.5 (Fed.

Cir. 2005) (collecting decisions).

Congress has left those holdings undisturbed. It did

not alter the jurisdictional rule established by the

Eighth, Ninth, and D.C. Circuits when it channeled appeals of MSPB decisions to the Federal Circuit in 1982.

And in 2012, Congress changed the commencement of

the appeal period to the date of issuance of the MSPB

decision, not its receipt. WPEA § 108(a), 126 Stat. 1469.

In imposing a less petitioner-friendly triggering date

for the appeal period in Section 7703(b)(1), Congress did

nothing to alter the long-established 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. Cf. 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, 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. The Court reiterated that holding in Hamer v. Neighborhood Housing Services, 138

S. Ct. 13 (2017), explaining that “an appeal filing

12

deadline prescribed by statute will be regarded as ‘jurisdictional,’ meaning that late filing of the appeal notice necessitates dismissal of the appeal.” Id. at 16 (citation omitted).2

c. The courts of appeals’ treatment of the Hobbs

Act’s time bar further supports the decision below. The

Hobbs Act, ch. 537, 60 Stat. 420, has a similar structure

to Sections 1295(a)(9) and 7703(b)(1). One provision of

the Hobbs Act (28 U.S.C. 2342) provides that “[t]he

court of appeals * * * has exclusive jurisdiction” over

certain agency actions, and that “[ j]urisdiction is invoked by filing a petition as provided by section 2344 of

this title.” Section 2344, in turn, states that “[a]ny party

aggrieved by” an agency’s final, reviewable order “may,

within 60 days after its entry, file a petition to review

the order in the court of appeals wherein venue lies.” 28

U.S.C. 2344. The courts of appeals have uniformly held

that Section 2344’s time limit for court-of-appeals review of agency decisions under the Hobbs Act is jurisdictional. See Henderson, 562 U.S. at 437; see also, e.g.,

Matson Navigation Co. v. United States Dep’t of

Transp., 895 F.3d 799, 804 (D.C. Cir. 2018); OwnerOperator Indep. Drivers Ass’n v. United States Dep’t of

Transp., 858 F.3d 980, 982-983 (5th Cir. 2017); Council

In Henderson, this Court held that the deadline for filing an appeal to the U.S. Court of Appeals for Veterans Claims is not jurisdictional, but emphasized that the case involved “review by an Article I tribunal as part of a unique administrative scheme” rather than

“review by Article III courts.” 562 U.S. at 437-438. And the Court’s

recent decisions holding other statutory time limits nonjurisdictional likewise did not involve appeals to an Article III tribunal. See

Wilkins, 143 S. Ct. at 881 (statute of limitations for filing a Quiet

Title Act suit in district court); Boechler, P.C. v. Commissioner,

142 S. Ct. 1493, 1501-1502 (2022) (time to petition for review to the

Article I Tax Court).

2

13

Tree Investors, Inc. v. FCC, 739 F.3d 544, 551, 554 (10th

Cir. 2014); Brown v. Nuclear Regulatory Comm’n, 644

F.3d 726, 727-728 (8th Cir. 2011) (per curiam).

d. The origins of Section 7703(b)(1)(A) likewise support the conclusion that the provision is jurisdictional.

Cf. Pet. 11 (agreeing that “statutory context” is “relevant”). Before the CSRA’s enactment, federal employees could seek review of employment-related actions in

the Court of Claims pursuant to the Tucker Act, ch. 359,

24 Stat. 505 (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. 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 judicial-review provision. Lindahl, 470

U.S. at 774 (quoting CSRA § 205, 92 Stat. 1143). As the

courts of appeals agree, the Hobbs Act’s time bar, like

the Tucker Act’s, is jurisdictional. See pp. 12-13, supra.

Thus, Section 7703(b)(1) replaced judicial review provisions for which the applicable time bar has been held to

be jurisdictional in nature. That history further supports the conclusion that Congress intended Section

7703(b)(1)(A)’s filing deadline, too, to be jurisdictional.

Cf. Henderson, 562 U.S. at 436.

e. Finally, “[ j]urisdictional treatment” of the time

limit in Section 7703(b)(1)(A) “makes good sense.”

Bowles, 551 U.S. at 212. Congress has good practical

reason to enact jurisdictional time limitations where, as

here, a claimant seeks direct review of an agency action

in the court of appeals. As a general matter, it will be

more cumbersome for a court of appeals, as opposed to

14

a district court, to adjudicate a litigant’s claim that his

is the rare case in which a deadline should be equitably

tolled. 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). A jurisdictional time limitation forecloses that inquiry.

Nor does treating Section 7703(b)(1) as jurisdictional

raise the “risk of disruption and waste.” Wilkins, 143

S. Ct. at 876. When the Board issues a decision, it emphatically warns would-be petitioners of the deadline

for seeking further review. For example, petitioner’s

MSPB decision included the following notice:

As a general rule, an appellant seeking judicial

review of a final Board order must file a petition for

review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this

decision.

Pet. App. 12c (emphases in original); see id. at 14c-15c

(same with respect to whistleblower-retaliation appeals). And as demonstrated by this case (and others

petitioner cites, see Pet. 15), the Federal Circuit actively enforces this deadline, preventing the time and

expense of unnecessary briefing.

2. Petitioner offers no persuasive reason to treat

Section 7703(b)(1)(A) as nonjurisdictional.

a. Petitioner contends (Pet. 8-11) that the Federal

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

(2017), cert. denied, 583 U.S. 1091 (2018), misinterpreted Bowles “to set a categorical rule that ‘[a]ppeal

periods to Article III courts’ are jurisdictional.” Pet. 8

(quoting Fedora, 848 F.3d at 1014) (brackets in original). But as petitioner acknowledges, “Bowles stands

15

for the proposition that context * * * is relevant to

whether a statute ranks a requirement as jurisdictional.” Pet. 9 (quoting Reed Elsevier, 559 U.S. at 167168); see Pet. 11 (similar). And as discussed above, several textual and contextual indicators demonstrate that

Section 7703(b)(1)(A)’s deadline is jurisdictional.

Petitioner also errs in arguing (Pet. 8) that the decision below conflicts with Bowen v. City of New York, 476

U.S. 467 (1986). In that case, this Court held that a district court could toll the deadline for obtaining review

of the denial of Social Security benefits. Id. at 479-482.

Thus, the statute at issue in Bowen did not involve direct review in a court of appeals. Moreover, the statute

in Bowen 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. (citation omitted). By contrast, the

framework Congress adopted for MSPB actions has far

more in common with the appeals in “ordinary civil litigation” at issue in Bowles than it does with the scheme

considered in Bowen or the other decisions on which petitioner relies. Henderson, 562 U.S. at 440; see Fedora,

848 F.3d at 1015-1016; pp. 2-3, supra.

b. Petitioner next contends (Pet. 12) that the Federal Circuit’s reliance on “Section 1295(a)(9)’s reference

to Section 7703(b)(1)” conflicts with this Court’s statement that “a nonjurisdictional provision does not metamorphose into a jurisdictional limitation by crossreferencing a jurisdictional provision.” Ibid. (quoting

16

Fort Bend Cnty., 139 S. Ct. at 1851 n.8). But the decision on which petitioner relies rejected an argument

based on a purported “textual[] link[]” between a jurisdictional provision and an entire subchapter. Fort Bend

Cnty., 139 S. Ct. at 1851 n.8 (citation omitted). Petitioner acknowledges that a time bar is jurisdictional if

“Congress has ‘condition[ed]’ the jurisdictional grant on

compliance with the deadline.” Pet. 13 (quoting Reed

Elsevir, 559 U.S. at 165) (brackets in original). And that

is the case here: As Lindahl recognized, Section

1295(a)(9) grants the Federal Circuit “jurisdiction” over

appeals from the MSPB “pursuant to section[]

7703(b)(1),” 28 U.S.C. 1295(a)(9) (emphasis added), and

one cannot determine the scope of that jurisdictional

grant without reference to Section 7703(b)(1). The Federal Circuit thus correctly determined that the express

“link” between the time limit here and the court’s power

to adjudicate demonstrates Section 7703(b)(1)(A)’s jurisdictional nature. Federal Educ. Ass’n—Stateside

Region v. Department of Def., 898 F.3d 1222, 1224

(2018), cert. denied, 139 S. Ct. 2616 (2019).

3. The decision below does not warrant this Court’s

review.

a. As petitioner correctly observes (Pet. 15), because Section 7703(b)(1)(A) applies only in the Federal

Circuit, there is no division of authority with respect to

the question presented. Rather, for four decades, the

Federal Circuit has held that the timing requirement of

Section 7703(b)(1) is “ jurisdictional,” Monzo, 735 F.2d

at 1336, and that “[c]ompliance with [it] is a prerequisite

to [the court of appeals’] exercise of jurisdiction,” Oja,

405 F.3d at 1360. During periods of concurrent jurisdiction, the regional courts of appeal have agreed. See

17

id. at 1357 n.5 (collecting cases from the Eighth, Ninth,

and D.C. Circuits).

Petitioner contends that decisions interpreting “Section 7703(b)(2) as nonjurisdictional conflict with the Federal Circuit’s interpretation of Section 7703(b)(1)(A).”

Pet. 8. That is incorrect. Section 7703(b)(2) governs

“mixed cases”—that is, cases before the Board that also

include claims of discrimination. See Perry v. MSPB,

582 U.S. 420, 425-426 (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).

Unlike Section 7703(b)(1)(A), Section 7703(b)(2) does

not provide jurisdiction in a particular appellate court;

it instead channels mixed cases to the district courts,

which have jurisdiction to hear those cases under 28

U.S.C. 1331 or other provisions that do not reference

Section 7703(b)(2). See Kloeckner v. Solis, 568 U.S. 41,

46 (2012). Section 7703(b)(2) thus does not follow the

structure of Section 7703(b)(1)(A), which combines a jurisdictional grant to the court of appeals with a time limitation. And this Court’s decision in Lindahl—which

stated that Section 7703(b)(1) “confers the operative

18

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 conduct the fact-intensive

inquiries that equitable tolling requires. See pp. 13-14,

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, the First Circuit’s decision in Nunnally v.

MacCausland, 996 F.2d 1 (1993) (per curiam), explained

that the provision “is not only similar to, but intersects

with, the * * * provision directly addressed in Irwin [v.

Department of Veterans Affairs, 498 U.S. 89 (1990)],”

42 U.S.C. 2000e-16(c). 996 F.2d at 3. Given the link between the two provisions, the court was unwilling to

treat the deadline the plaintiff faced in that case differently (i.e., as jurisdictional) because of the particular

procedural route she had chosen to take. Ibid.; see Oja,

405 F.3d at 1358. Petitioner’s reliance on cases addressing Section 7703(b)(2) therefore does not demonstrate a

division of authority warranting this Court’s review.

b. In any event, even if Section 7703(b)(1)(A) were

nonjurisdictional, it would not be subject to equitable

tolling. Although “nonjurisdictional limitations periods

are presumptively subject to equitable tolling,” some

such periods are “ ‘mandatory’ ” and cannot be tolled.

Boechler, P.C. v. Commissioner, 142 S. Ct. 1493, 1500

(2022); see Nutraceutical Corp. v. Lambert, 139 S. Ct.

710, 714 (2019). At a minimum, Section 7703(b)(1)(A)

falls within that class.

19

That conclusion is dictated by Federal Rule of Appellate Procedure 26(b), which provides that “the court

may not extend the time to file * * * a notice of appeal

from or a petition to enjoin, set aside, suspend, modify,

enforce, or otherwise review 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). The deadline in Section 7703(b)(1)(A)

falls squarely within the plain text of that directive because it governs the time to file “a petition to review a

final order or final decision” of the MSPB. Accordingly,

“Rule 26(b) says that the deadline for the precise type

of filing at issue here may not be extended.” Nutraceutical Corp., 139 S. Ct. at 715. And as in Nutraceutical

Corp., that means that Section 7703(b)(1)(A) “is not

amenable to equitable tolling” because Rule 26 “express[es] a clear intent to compel rigorous enforcement

of [Section 7703(b)(1)(A)’s] deadline, even where good

cause for equitable tolling might otherwise exist.” Ibid.

The court of appeals specifically cited Rule 26 in both

its order to show cause and its subsequent order dismissing the petition for review. Pet. App. 2a-3a; C.A.

Doc. 7 (Nov. 21, 2022). But petitioner does not even

acknowledge, much less refute, that alternative basis

for the court of appeals’ decision. That by itself would

be a sufficient reason to deny the petition even if the

question presented otherwise warranted this Court’s

review.3

Boechler explained that “mandatory” deadlines may be waived

or forfeited, 142 S. Ct. at 1500, but petitioner does not suggest that

the government waived or forfeited the time bar in this case. The

court of appeals dismissed the case before the government filed any

brief. See C.A. Doc. 7 (order to show cause suspended briefing

schedule).

3

20

c. Finally, this case would be a poor vehicle for resolving the question presented for an additional reason:

Even if equitable tolling were generally available under

Section 7703(b)(1)(A), petitioner could not benefit from

it. As petitioner acknowledges (Pet. 3), he did not receive timely notice of the Board’s decision because, despite having agreed to receive electronic notices and to

update his email address, he “failed to notify the Board

of his changed email address.” Ibid. Those facts would

not permit petitioner to establish either that “he has

been pursuing his rights diligently,” or that “some extraordinary circumstance” “beyond [petitioner’s] control” “prevented timely filing,” as required to obtain equitable tolling. Menominee Indian Tribe of Wis. v.

United States, 577 U.S. 250, 255-257 (2016) (citation

omitted).

The history of Section 7703(b)(1) confirms that tolling would be particularly unwarranted in this case. Before 2012, the trigger for the period to seek the Federal

Circuit’s review was “the date the petitioner received

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

5 U.S.C. 7703(b)(1) (2010) (emphasis added). But in

2012, Congress changed that trigger to the date on

which the “Board issues notice of the final order or decision.” WPEA § 108, 126 Stat. 1469 (emphasis added).

Permitting petitioner to invoke delay in his receipt of

the final decision as a basis to extend the deadline to

seek Federal Circuit review would contravene that specific change in the statute. Cf. Intel Corp. Inv. Policy

Comm. v. Sulyma, 140 S. Ct. 768, 779 (2020) (“When

Congress acts to amend a statute, we presume it intends

its amendment to have real and substantial effect.”) (citation omitted).

21

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

PATRICIA M. MCCARTHY

FRANKLIN E. WHITE, JR.

GALINA I. FOMENKOVA

Attorneys

OCTOBER 2023