United States Court of Appeals
for the Federal Circuit
______________________
LAURENCE M. FEDORA,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
UNITED STATES POSTAL SERVICE,
Intervenor
______________________
2015-3039
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-13-0433-I-1.
______________________
ON PETITION FOR REHEARING EN BANC
______________________
ERIC SHUMSKY, Orrick, Herrington & Sutcliffe LLP,
Washington, DC, filed a petition for rehearing en banc for
petitioner Laurence M. Fedora. Also represented by
THOMAS MARK BONDY, HANNAH GARDEN-MONHEIT;
CHRISTOPHER J. CARIELLO, New York, NY.
JEFFREY GAUGER, Office of the General Counsel, Merit
Systems Protection Board, Washington, DC, filed a re-
sponse to the petition for respondent Merit Systems
2 FEDORA v. MSPB
Protection Board. Also represented by BRYAN G. POLISUK,
KATHERINE M. SMITH.
RUSSELL JAMES UPTON, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, filed a response to the petition
for intervenor United States Postal Service. Also repre-
sented by CHAD A. READLER, ROBERT E. KIRSCHMAN, JR.,
PATRICIA M. MCCARTHY.
Before PROST, Chief Judge, NEWMAN, PLAGER ∗, LOURIE,
DYK, MOORE, O’MALLEY, REYNA, WALLACH, TARANTO,
CHEN, HUGHES, and STOLL, Circuit Judges.
WALLACH, Circuit Judge, with whom NEWMAN and
O’MALLEY, Circuit Judges, join, dissent from the denial of
the petition for rehearing en banc.
STOLL, Circuit Judge, dissents without opinion from the
denial of the petition for rehearing en banc.
PLAGER, Circuit Judge, dissents from the denial of panel
rehearing.
PER CURIAM.
ORDER
Petitioner Laurence M. Fedora filed a petition for
rehearing en banc. A response to the petition was invited
by the court and filed by intervenor United States Postal
Service and respondent Merit Systems Protection Board.
The court requested supplemental briefing in light of the
Supreme Court’s holding in Perry v. Merit System Protec-
tion Board, 137 S. Ct. 1975 (2017), regarding our jurisdic-
tion to hear this appeal. Mr. Fedora responded,
indicating that he elects to abandon his discrimination
∗
Circuit Judge Plager participated only in the
decision on panel rehearing.
FEDORA v. MSPB 3
claims to avoid the jurisdictional concern addressed in
that case. Pet’r’s Resp. to Suppl. Authority, ECF No. 78.
The government agrees that with this waiver, we have
jurisdiction over his appeal.
The petition was first referred as a petition for rehear-
ing to the panel that heard the appeal, and thereafter the
petition for rehearing en banc and the responses were
referred to the circuit judges who are in regular active
service. A poll was requested, taken, and failed.
Upon consideration thereof,
IT IS ORDERED THAT:
The petition for panel rehearing is denied.
The petition for rehearing en banc is denied.
The mandate of the court will issue on July 27, 2017.
FOR THE COURT
July 20, 2017 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court
United States Court of Appeals
for the Federal Circuit
______________________
LAURENCE M. FEDORA,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
UNITED STATES POSTAL SERVICE,
Intervenor
______________________
2015-3039
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-13-0433-I-1.
______________________
WALLACH, Circuit Judge, with whom NEWMAN and
O’MALLEY, Circuit Judges, join, dissenting from the denial
of the petition for rehearing en banc.
The Supreme Court has recognized that its “recent
cases evince a marked desire to curtail . . . drive-by juris-
dictional rulings, which too easily can miss the critical
differences between true jurisdictional conditions and
nonjurisdictional limitations on causes of action.” Reed
Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161 (2010)
(internal quotation marks, brackets, and citations omit-
ted); see Scarborough v. Principi, 541 U.S. 401, 413 (2004)
(“Courts, including this Court, . . . have more than occa-
2 FEDORA v. MSPB
sionally misused the term jurisdictional to describe em-
phatic time prescriptions in claim processing rules . . . .”
(internal quotation marks, brackets, and citation omit-
ted)). In Monzo v. Department of Transportation, a panel
of this court stated that the predecessor statute to 5
U.S.C. § 7703(b)(1)(A) (2012) is “statutory, mandatory,
[and] jurisdictional.” 735 F.2d 1335, 1336 (Fed. Cir. 1984)
(citation omitted). Nearly two decades later, we con-
firmed the jurisdictional nature of the statute, see Oja v.
Dep’t of Army, 405 F.3d 1349, 1356–60 (Fed. Cir. 2005),
which provides that “any petition for review [to this court]
must be filed within 60 days after the [Merit Systems
Protection Board (“MSPB”)] issues” its final decision, 5
U.S.C. § 7703(b)(1)(A). By holding that the statutory
provision implicated this court’s subject matter jurisdic-
tion, the panel decision foreclosed the possibility of grant-
ing a petitioner equitable tolling of the filing deadline in
appeals from MSPB final decisions. See Oja, 405 F.3d at
1356 (“The question [on whether the filing period of
§ 7703(b)(1) can be equitably tolled] was squarely ad-
dressed and decided . . . in Monzo . . . .”).
Laurence M. Fedora petitions this court to review en
banc whether the filing deadline in § 7703(b)(1)(A) is
properly defined as a jurisdictional requirement. See
Fedora v. Merit Sys. Prot. Bd., No. 2015-3039, Docket No.
63 at 9–20 (Fed. Cir. Mar. 27, 2017). A panel majority
applied the Supreme Court’s decision in Bowles v. Russell,
551 U.S. 205 (2007), and our decision in Oja, held that
§ 7703(b)(1)(A) is jurisdictional, and rejected Mr. Fedora’s
petition for untimely filing. See Fedora v. Merit Sys. Prot.
Bd., 848 F.3d 1013, 1016 (Fed. Cir. 2017). Judge Plager
dissented, summarizing the evolution of the Supreme
Court case law on the distinction between jurisdictional
and claims processing rules and offering strong reasons
why review of Monzo and its progeny is warranted. See
id. at 1017−26 (Plager, J., dissenting). Because this issue
is sufficiently debatable and exceptionally important, see
FEDORA v. MSPB 3
Fed. R. App. P. 35(a)(2); Fed. Cir. Internal Operating
Procedure #13(2), I dissent from the court’s refusal to
reconsider it en banc. 1
The Fedora majority errs because (1) Bowles is not
dispositive; and (2) in stating that Bowles controls the
inquiry, Fedora applied an incomplete framework for
review of the jurisdictional question. I discuss these
points in turn.
I. Bowles Is Not Dispositive
Fedora holds “[a]ppeal periods to Article III courts,
such as the period in § 7703(b)(1), are controlled by the
Court’s decision in Bowles,” 848 F.3d at 1015, which held
that “the taking of an appeal within the prescribed time is
‘mandatory and jurisdictional,’” id. (quoting Bowles, 551
U.S. at 209). Thus, Fedora distinguishes prior Supreme
Court precedent solely on whether the case refers to
“appeal periods to Article III courts” or to “time limits or
other requirements in non-appeal contexts.” Id. at 1016,
1015; see id. at 1015−16 (discussing United States v. Kwai
Fun Wong, 135 S. Ct. 1625, 1638 (2015); Henderson v.
Shinseki, 562 U.S. 428, 436–38 (2011); Reed Elsevier, 559
U.S. at 168; Irwin v. Dep’t of Veterans Affairs, 498 U.S.
89, 95–96 (1990)). The distinctions may not be that
simple.
Factually, Fedora presents a different scenario than
Bowles. Bowles involved an appeal from an Article III
district court to an Article III appeals court, 551 U.S. at
207; Fedora an appeal from an administrative tribunal to
an Article III appeals court, 848 F.3d at 1014. Neither
1 My opinion here applies with equal force to the
orders issued concurrently today denying en banc rehear-
ing and initial hearing en banc in Vocke v. Merit Systems
Protection Board, No. 2016-2390, and Musselman v.
Department of the Army, No. 2016-2522, respectively.
4 FEDORA v. MSPB
the Supreme Court nor this court have stated that they
are equivalent. Indeed, the Federal Rules of Appellate
Procedure contain one set of rules for appeals from dis-
trict courts and another for appeals from administrative
agencies. Compare Fed. R. App. P. 3–12 (discussing
appeals from district courts), with Fed. R. App. P. 15–20
(discussing appeals from administrative agencies).
Legally, the Supreme Court has “reject[ed] the major
premise of this syllogism” and has definitively stated that
“Bowles did not hold categorically that every deadline for
seeking judicial review in civil litigation is jurisdictional.
Instead, Bowles concerned an appeal from one court to
another court.” Henderson, 562 U.S. at 436. Moreover,
the Court in Bowen v. City of New York granted equitable
tolling for a sixty-day deadline to obtain review of an
administrative agency’s Social Security benefits decisions
in federal district court. 476 U.S. 467, 487 (1986). Fedora
does not mention Bowen, and I do not think Bowles can
controls the inquiry.
II. The Court Has Analyzed the Question Presented Using
an Incomplete Framework
In 1990, the Supreme Court in Irwin “adopt[ed] a
more general rule to govern the applicability of equitable
tolling in suits against the Government” by “hold[ing]
that the same rebuttable presumption of equitable tolling
applicable to suits against private defendants should also
apply to suits against the United States.” 498 U.S. at 95,
95–96. Subsequent cases have elaborated upon the
means for rebutting this presumption and have employed
a broader review of the jurisdictional/non-jurisdictional
divide. 2 Irwin and cases following Irwin have laid out a
2 Oja held that Irwin did not require concluding
that the filing deadline in § 7703(b)(1)(A) is a claims
processing rule (i.e., the deadline is non-jurisdictional).
FEDORA v. MSPB 5
more inclusive test that should be applied to the review of
§ 7703(b)(1)(A). 3
To determine whether the presumption of equitable
tolling has been rebutted, the Supreme Court “look[s] to
see if there is any clear indication that Congress wanted
the rule to be jurisdictional.” Henderson, 562 U.S. at 436
(internal quotation marks and citation omitted). This
review looks “to the condition’s text, context, and relevant
historical treatment.” Reed Elsevier, 559 U.S. at 1246
(citation omitted). With respect to relevant historical
treatment, one strong indicia that a statute is meant to be
jurisdictional is “a long line of th[e] Court’s decisions left
undisturbed by Congress [that] has treated a similar
requirement as jurisdictional.” Id. at 436 (internal quota-
tion marks and citation omitted). Courts also may con-
sider the sophistication of the average petitioner and
Congress’s intent in enacting the statutory scheme. See
Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 397
See 405 F.3d at 1357–60. As explained below, the Su-
preme Court’s evolving statements on jurisdiction demon-
strate that Oja did not afford the appropriate weight to
Irwin.
3 Fedora does not hold that Bowles overruled Irwin;
rather, it distinguishes Irwin and other cases finding time
limits non-jurisdictional because “[t]hose cases do not
concern appeal periods.” 848 F.3d at 1015. However, the
Supreme Court has stated that its “decisions remain
binding precedent until [it] see[s] fit to reconsider them,
regardless of whether subsequent cases have raised
doubts about their continuing vitality.” Hohn v. United
States, 524 U.S. 236, 252−53 (1998) (citation omitted).
Because the Supreme Court has stated that “seeking
judicial review” does not determine whether language is
jurisdictional or not, Henderson, 562 U.S. at 436, Irwin
cannot be distinguished in that fashion.
6 FEDORA v. MSPB
(1982) (recognizing that Title VII contemplates a “statuto-
ry scheme in which laymen, unassisted by trained law-
yers, initiate the process” in assessing a jurisdictional
prerequisite (internal quotation marks and citation omit-
ted)); see also Henderson, 562 U.S. at 437 (noting certain
administrative schemes that were “unusually protective
of claimants” (internal quotation marks and citation
omitted)); Irwin, 498 U.S. at 102 (discussing scheme in
which “remedial statute[] should be construed in favor of
those whom the legislation was designed to protect”).
The Supreme Court has applied some or all of these
factors in assessing the timeliness of appeals from federal
administrative tribunals to Article III courts, see Hender-
son, 562 U.S. at 435−36, the timeliness of appeals from
federal district courts to federal courts of appeals, see
Bowles, 551 U.S. at 209 n.2 (basing its finding on a “cen-
tury’s worth of precedent” related to similar appeals), and
cases involving “other types of threshold requirements,”
Reed Elsevier, 559 U.S. at 166 (footnote omitted) (finding
statutory registration requirement non-jurisdictional);
see, e.g., Kwai Fun Wong, 135 S. Ct. at 1632−38 (discuss-
ing statute’s text, context, and relevant Supreme Court
treatment to find time limits to initially file tort claims
non-jurisdictional); John R. Sand & Gravel Co. v. United
States, 552 U.S. 130, 137−39 (2008) (holding that well-
settled Supreme Court precedent rebutted the presump-
tion of tolling for deadline to file initial claims at the U.S.
Court of Federal Claims); Arbaugh v. Y&H Corp., 546
U.S. 500, 511−15 (2006) (discussing statute’s text, con-
text, and relevant Supreme Court treatment of similar
requirements to find numerosity requirement to sue non-
jurisdictional). We should review the nature of the filing
deadline in § 7703(b)(1)(A) using this analysis. Because
Fedora and the line of cases stemming from Monzo in-
FEDORA v. MSPB 7
completely analyzed the issue at bar, we should take this
opportunity to reconsider this line of cases. 4
III. Conclusion
It is rare for the issue before us, which more often af-
fects pro se litigants than others, to come to the court
fully briefed with the aid of counsel and with the views of
the interested governmental agencies. Cf. Jones v. Dep’t
of Health & Human Servs., 834 F.3d 1361, 1364–66 (Fed.
Cir. 2016) (addressing appeal from pro se petitioner who
filed the appeal before the filing window in 5 U.S.C.
§ 7703(b)(1)(A) began to run). Because we are the only
circuit with subject matter jurisdiction over appeals from
final orders of the MSPB, we must revisit our precedent
when the circumstances require, both to ensure the
viability of our holdings and to guarantee litigants a full
opportunity to lawful relief. For these reasons and the
reasons stated in Judge Plager’s dissent at the panel
stage, I respectfully dissent.
4 The Supreme Court continues to pay close atten-
tion to whether various rules contain jurisdictional condi-
tions. See Hamer v. Neighborhood Hous. Servs. of Chi.,
855 F.3d 761 (7th Cir. 2016), cert. granted, 85 U.S.L.W.
3409 (U.S. Feb. 27, 2017) (No. 2016-658) (granting certio-
rari as to whether a federal rule of appellate procedure is
jurisdictional). The petition for certiorari in Hamer
identifies a post-Bowles circuit-split on whether a district
court can extend time to file a notice of appeal beyond the
thirty days provided in the Federal Rules of Appellate
Procedure. See Pet. for Writ of Cert., Hamer v. Neighbor-
hood Hous. Servs. of Chi., No. 2016-658, 2016 WL
6833892, at *4−5, *8−11 (U.S. Nov. 15, 2016). It appears
that our sibling circuits have not taken as narrow a road
in interpreting Bowles, even for appeals from federal
district courts to federal appeals courts, as Fedora coun-
sels.
United States Court of Appeals
for the Federal Circuit
______________________
LAURENCE M. FEDORA,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
UNITED STATES POSTAL SERVICE,
Intervenor
______________________
2015-3039
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-13-0433-I-1.
______________________
PLAGER, Circuit Judge, dissenting from the denial of the
petition for panel rehearing.
I dissent from the denial of the petition for panel re-
hearing for the reasons expressed in my dissent to the
panel majority opinion, and for the reasons expressed in
Judge Wallach’s dissent from the denial of the petition for
rehearing en banc.