United States Court of Appeals
for the Federal Circuit
______________________
FEDERAL EDUCATION ASSOCIATION -
STATESIDE REGION, KAREN GRAVISS,
Petitioners
v.
DEPARTMENT OF DEFENSE, DOMESTIC
DEPENDENTS ELEMENTARY AND SECONDARY
SCHOOL,
Respondent
______________________
2015-3173
______________________
Petition for review of an arbitrator’s decision in No.
14-1024-00182-7 by Steven G. Hoffmeyer.
______________________
ON PETITION FOR REHEARING EN BANC
______________________
DOROTHY LOUISE LEE, Federal Education Association
Stateside Region, Dublin, OH, filed a petition for rehear-
ing en banc for petitioner Karen Graviss. Also represent-
ed by BRIAN WOLFMAN, Georgetown Law Appellate Courts
Immersion Clinic, Washington, DC.
TARA K. HOGAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, filed a response to the petition for respondent.
2 FEDERAL EDUCATION ASSOCIATION v. DEFENSE
Also represented by CLAUDIA BURKE, ROBERT E.
KIRSCHMAN, JR., JOSEPH H. HUNT.
______________________
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, dissents from the denial
of the petition for rehearing en banc.
PLAGER, Circuit Judge, dissents from the denial of the
petition for panel rehearing.
PER CURIAM.
ORDER
Petitioner Karen Graviss filed a petition for rehearing
en banc. A response to the petition was invited by the
court and filed by respondent Department of Defense,
Domestic Dependent Elementary and Secondary Schools.
The petition was first referred as a petition for rehearing
to the panel that heard the appeal, and thereafter the
petition for rehearing en banc and the response 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.
∗
Circuit Judge Plager participated only in the
decision on panel rehearing.
FEDERAL EDUCATION ASSOCIATION v. DEFENSE 3
The mandate of the court will issue on December 10,
2018.
FOR THE COURT
December 3, 2018 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court
United States Court of Appeals
for the Federal Circuit
______________________
FEDERAL EDUCATION ASSOCIATION -
STATESIDE REGION, KAREN GRAVISS,
Petitioners
v.
DEPARTMENT OF DEFENSE, DOMESTIC
DEPENDENTS ELEMENTARY AND SECONDARY
SCHOOL,
Respondent
______________________
2015-3173
______________________
Petition for review of an arbitrator’s decision in No.
14-1024-00182-7 by Steven G. Hoffmeyer.
______________________
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 “held that procedural rules,
including time bars, cabin a court’s power only if Congress
has clearly stated as much.” United States v. Kwai Fung
Wong, 135 S. Ct. 1625, 1632 (2015) (internal quotation
marks, brackets, and citation omitted). In recognizing the
“harsh consequences” associated with holding a time bar
to be jurisdictional, the Supreme Court has “made plain
that most time bars are nonjurisdictional.” Id. (emphasis
added). This appeal raises the issue of whether 5 U.S.C.
2 FEDERAL EDUCATION ASSOCIATION v. DEFENSE
§ 7703(b)(1)(A) (2012), which provides that “any petition
for review shall be filed within [sixty] days after the
[Merit Systems Protection Board (‘MSPB’)] issues notice
of the final order or decision,” is jurisdictional.
The majority held § 7703(b)(1)(A)’s sixty-day filing
deadline is jurisdictional in the belief that another statute
in a different title of the U.S. Code setting forth our
exclusive jurisdiction “of an appeal from a final order or
final decision of the [MSPB], pursuant to [§] 7703(b)(1)
and [§] 7703(d) of title 5,” 28 U.S.C. § 1295(a)(9) (2012),
provides “a clear statement that our jurisdiction is de-
pendent on the statutory time limit” in § 7703(b)(1)(A),
Fed. Educ. Ass’n v. Dep’t of Def. (FEA), 898 F.3d 1222,
1225 (Fed. Cir. 2018) (emphasis added). The majority,
therefore, dismissed Petitioner Karin Graviss’s appeal
because her petition for review was received one day late
and, on that basis, refused to consider her request for
equitable tolling of the sixty-day filing deadline. Id. at
1225–26. I respectfully submit that this interpretation of
the filing deadline as jurisdictional is inconsistent with
Supreme Court precedent.
DISCUSSION
I. Congress Must Clearly State that a Filing Deadline Is
Jurisdictional
The Supreme Court recently addressed the distinction
between jurisdictional and nonjurisdictional filing dead-
lines. “If a time prescription governing the transfer of
adjudicatory authority from one Article III court to anoth-
er appears in a statute, the limitation is jurisdictional;
otherwise, the time specification fits within the claim-
processing category.” Hamer v. Neighborhood Hous.
Servs. of Chi., 138 S. Ct. 13, 20 (2017) (citations and
footnote omitted). However, “[i]n cases not involving the
timebound transfer of adjudicatory authority from one
Article III court to another,” as is the case here, the
Supreme Court has “applied a clear-statement rule,”
FEDERAL EDUCATION ASSOCIATION v. DEFENSE 3
holding “[a] rule is jurisdictional if the Legislature clearly
states that a threshold limitation on a statute’s scope
shall count as jurisdictional.” Id. at 20 n.9 (internal
quotation marks, brackets, and citation omitted). 1
“To determine whether Congress has made the nec-
essary clear statement, we examine the ‘text, context, and
relevant historical treatment’ of the provision at issue.”
Musacchio v. United States, 136 S. Ct. 709, 717 (2016)
(citation omitted). While “magic words” are not required,
“traditional tools of statutory construction must plainly
show that Congress imbued a procedural bar with juris-
dictional consequences.” Kwai Fun Wong, 135 S. Ct. at
1632 (emphasis added). Under the clear-statement rule,
“most time bars are nonjurisdictional.” Id.; see id. (“Time
and again, we have described filing deadlines as ‘quintes-
sential claim-processing rules,’ which ‘seek to promote the
orderly progress of litigation,’ but do not deprive a court of
authority to hear a case.” (quoting Henderson ex rel.
Henderson v. Shinseki, 562 U.S. 428, 435 (2011))).
1 To the extent the majority’s opinion relies on our
pre-Hamer case law, see FEA, 898 F.3d at 1225 (first
citing Fedora v. Merit Sys. Prot. Bd., 848 F.3d 1013, 1014–
16 (Fed. Cir. 2017); then citing Oja v. Dep’t of the Army,
405 F.3d 1349, 1360 (Fed. Cir. 2005); then citing Monzo v.
Dep’t of Transp., 735 F.2d 1335, 1336 (Fed. Cir. 1984)),
the Supreme Court’s unanimous Hamer decision leaves no
doubt that it is time to revisit our pre-Hamer precedent,
see Fedora v. Merit Sys. Prot. Bd., 868 F.3d 1336, 1339–40
(Fed. Cir. 2017) (Wallach, J., dissenting from the denial of
the petition for rehearing en banc).
4 FEDERAL EDUCATION ASSOCIATION v. DEFENSE
II. Congress Has Not Clearly Stated that § 7703(b)(1)(A)’s
Sixty-Day Filing Deadline Is Jurisdictional
A. Section 7703(b)(1)(A)’s Text
Section 7703(b)(1)(A)’s sixty-day filing deadline does
not contain the hallmarks of a jurisdictional statute.
Section 7703(b)(1)(A) includes two sentences. The first
sentence states: “[e]xcept as provided in [§ 7703(b)(1)(B)
and § 7703(b)(2)], a petition to review a final order or final
decision of the [MSPB] shall be filed in the United States
Court of Appeals for the Federal Circuit.” 5 U.S.C.
§ 7703(b)(1)(A). The second sentence reads:
“[n]otwithstanding any other provision of law, any petition
for review shall be filed within [sixty] days after the
[MSPB] issues notice of the final order or decision of the
[MSPB].” Id. (emphasis added). While the first sentence
defines which cases may be filed, the second sentence
simply identifies when these cases ordinarily should be
filed. See id. Section 7703(b)(1)(A) does not limit our
“authority to hear untimely suits” or cabin our “equitable
power[]” to toll the filing deadline. Kwai Fun Wong, 135
S. Ct. at 1633; see id. at 1632 (“Congress must do some-
thing special, beyond setting an exception-free deadline,
to tag a statute of limitations as jurisdictional and so
prohibit a court from tolling it.”). Instead, the second
sentence reads as a claim-processing rule, even though it
sets forth the sixty-day filing deadline by using the man-
datory phrase “shall be filed.” 5 U.S.C. § 7703(b)(1)(A);
see Kwai Fun Wong, 135 S. Ct. at 1632 (explaining that
“even when the time limit is important (most are) and
even when it is framed in mandatory terms (again, most
are),” filing deadlines are considered claim-processing
rules, rather than jurisdictional prerequisites, no matter
“how[] emphatically expressed those terms may be”
(internal quotation marks, brackets, and citation omit-
ted)).
FEDERAL EDUCATION ASSOCIATION v. DEFENSE 5
The majority errs by reading § 7703(b)(1)(A)’s two
sentences as together imposing a jurisdictional require-
ment. For instance, in Kloeckner v. Solis, the Supreme
Court addressed whether another filing deadline in
§ 7703(b), specifically in subsection (b)(2), should be
considered jurisdictional and held the filing deadline is
nonjurisdictional. See 568 U.S. 41, 52–53 (2012). Section
7703(b)(2) has a two-sentence structure, with its first
sentence identifying pursuant to which statutory sections
“[c]ases of discrimination subject to the provisions of
[§] 7702 of this title shall be filed.” 5 U.S.C. § 7703(b)(2).
Section 7703(b)(2)’s second sentence provides that
“[n]otwithstanding any other provision of law, any such
case filed under any such section must be filed within
[thirty] days after the date the individual filing the case
received notice of the judicially reviewable action under
such [§] 7702.” Id. (emphasis added). Rather than merge
these two separate sentences in interpreting § 7703(b)(2),
the Supreme Court treated them as separate for jurisdic-
tional purposes. Kloeckner, 568 U.S. at 53. The Supreme
Court explained that, although “[t]he first sentence de-
fines which cases should be brought in district court[]
rather than in the Federal Circuit,” “[t]he second sen-
tence . . . states when those cases should be brought[,]”
and the second sentence “does not . . . further define
which timely-brought cases belong in district court.” Id.
The Supreme Court held that the “second sentence” “is
nothing more than a filing deadline” and therefore not a
jurisdictional requirement. Id. at 52.
Section 7703(b)(1)(A) employs the same two-sentence
structure as § 7703(b)(2), with the first sentence authoriz-
ing which cases may be brought and the second sentence
establishing when those cases should be brought. Com-
pare 5 U.S.C. § 7703(b)(1)(A), with id. at § 7703(b)(2).
Only by merging the two sentences in § 7703(b)(1)(A)—
the opposite of what Supreme Court did in Kloeckner—
can the sixty-day filing deadline be read as jurisdictional.
6 FEDERAL EDUCATION ASSOCIATION v. DEFENSE
See 568 U.S. at 53. Read properly, however, it is clear
that the filing deadline in § 7703(b)(1)(A) “does not speak
in jurisdictional terms or refer in any way to [our] juris-
diction.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
394 (1982) (footnote omitted). Thus, § 7703(b)(1)(A)’s text
does not treat the sixty-day filing deadline as jurisdic-
tional.
B. Statutory Context
The statutory context and legislative history favor in-
terpreting § 7703(b)(1)(A) as a claim-processing rule,
rather than as imposing a jurisdictional requirement.
Section 7703(b)(1)(A) is found in chapter 77 of title 5 of
the U.S. Code, which is entitled “Appeals” and contains
provisions on the procedures to submit an appeal to the
MSPB, see 5 U.S.C. § 7701; the process by which to seek
review of actions involving discrimination before both the
MSPB and the Equal Employment Opportunity Commis-
sion, see id. at § 7702; and the means to seek judicial
review of an MSPB decision, see id. § 7703. Placement of
the sixty-day deadline in a chapter involving the process
to obtain additional review highlights the filing deadline’s
claim-processing nature. Further, § 7703’s mention of
judicial review, alone, is not sufficient to render the entire
section jurisdictional. See, e.g., Bowen v. City of N.Y., 476
U.S. 467, 480 (1986) (granting equitable tolling, even
where a statutory subsection titled “[j]udicial review”
provided a sixty-day deadline to obtain review of an
agency’s Social Security benefits decision in federal court);
see also 42 U.S.C. § 405(g) (“Judicial review”). In addi-
tion, the statute that confers upon us jurisdiction over
appeals from the MSPB, i.e., § 1295(a)(9), is housed in an
entirely different title of the U.S. Code, thereby implying
a “structural divide built into the statute.” Kwai Fun
Wong, 135 S. Ct. at 1633; see id. (“Congress’s separation of
a filing deadline from a jurisdictional grant indicates that
the time bar is not jurisdictional.”). The legislative histo-
ry of § 1295 confirms that the purpose of this statute is to
FEDERAL EDUCATION ASSOCIATION v. DEFENSE 7
identify which cases, by subject matter, are within our
jurisdiction, rather than which timely-brought cases are
within our jurisdiction. See, e.g., S. Rep. No. 97-275, at 3
(1981), as reprinted in 1982 U.S.C.C.A.N. 11, 13 (explain-
ing that “the Federal Circuit differs from other [f]ederal
courts of appeal . . . in that its jurisdiction is defined in
terms of subject matter rather than geography,” and
mentioning, in the same paragraph, that we have juris-
diction over appeals from the MSPB).
The majority contends § 7703(b)(1)(A)’s sixty-day
deadline is imbued with jurisdictional qualities because
§ 1295(a)(9) cross-references that section, see FEA, 898
F.3d at 1225–26, by stating that “the Federal Circuit shall
have exclusive jurisdiction . . . of an appeal from a final
order or final decision of the [MSPB], pursuant to
[§] 7703(b)(1) and [§] 7703(d),” 28 U.S.C. § 1295(a) (em-
phasis added). However, this cross-reference hardly
constitutes a clear statement by Congress that the sixty-
day deadline is jurisdictional. Cf. Gonzalez v. Thaler, 565
U.S. 134, 145 (2012) (finding a statutory subsection “does
not speak in jurisdictional terms,” where that subsection
included a cross-reference to a jurisdictional subsection,
because “Congress set off the requirements in distinct
paragraphs and, rather than mirroring their terms,
excluded the jurisdictional terms in one from the other”).
The sixty-day deadline is mentioned in one sentence of
the two cross-referenced provisions, i.e., § 7703(b)(1) and
§ 7703(d), with the cross-referenced provisions containing
two subsections each and a total of fourteen sentences.
See 5 U.S.C. § 7703(b)(1), (d). Although the Supreme
Court has observed that “[§] 1295(a)(9) and [§] 7703(b)(1)
together appear to provide for exclusive jurisdiction over
MSPB decisions in the Federal Circuit” in holding that
the Federal Circuit is not barred from hearing “disability
retirement claims,” Lindahl v. Office of Pers. Mgmt., 470
U.S. 768, 792 (1985), the Supreme Court did not decide
the question of whether the filing deadline is jurisdiction-
8 FEDERAL EDUCATION ASSOCIATION v. DEFENSE
al and, as discussed above, nothing in § 7703(b)(1)(A)’s
second sentence clearly indicates that it is, see 5 U.S.C.
§ 7703(b)(1)(A).
The majority apparently believes that § 1295(a)(9)’s
cross-reference transforms the entirety of § 7703(b)(1) and
§ 7703(d) into jurisdictional requirements, but that cannot
be the case. For instance, § 7703(d) provides for judicial
review of an MSPB decision, where it is, inter alia, sought
“by the Director of the Office of Personnel Management,”
and explains “[t]he granting of the petition for judicial
review shall be at the discretion of the Court of Appeals.”
5 U.S.C. § 7703(d)(1) (emphasis added); see Devine v. Nat’l
Treasury Emps. Union, 737 F.2d 1031, 1033 (Fed. Cir.
1984) (describing “our review of the case [a]s discretionary
under . . . § 7703(d)”). The use of discretionary language
in allowing judicial review is at odds with the require-
ment that we hear cases within our jurisdiction. See
Cohens v. Virginia, 19 U.S. 264, 404 (1821) (“It is most
true that this Court will not take jurisdiction if it should
not[;] but it is equally true[] that it must take jurisdiction
if it should.”). Therefore, I agree with Judge Plager, who
dissented from the majority’s decision and explained that,
if § 1295(a)(9) applies, “it logically applies only to the first
sentence [of § 7703(b)(1)(A)] regarding the jurisdictional
grant, leaving the second sentence—the time-to-file
statement”—as nonjurisdictional. FEA, 898 F.3d at 1231
(Plager, J., dissenting). The “[m]ere proximity” of the
second sentence, which contains the sixty-day deadline, to
the first sentence is insufficient to “turn a rule that
speaks in nonjurisdictional terms into a jurisdictional
hurdle.” Gonzalez, 565 U.S. at 147; see Sebelius v. Au-
burn Reg’l Med. Ctr., 568 U.S. 145, 155 (2013) (“A re-
quirement we would otherwise classify as
nonjurisdicitonal . . . does not become jurisdictional simp-
ly because it is placed in a section of a statute that also
contains jurisdictional provisions.” (citation omitted)).
Accordingly, the statutory context does not provide the
FEDERAL EDUCATION ASSOCIATION v. DEFENSE 9
requisite clear statement to treat § 7703(b)(1)(A)’s filing
deadline as jurisdictional.
C. Historical Treatment
The relevant historical treatment of the provision
does not aid the majority’s interpretation. When consider-
ing historical treatment, “a long line of th[e Supreme]
Court’s decisions[,] left undisturbed by Congress,” that
“treat[] a similar requirement as jurisdictional” creates a
presumption “that Congress intended to follow that
course.” Henderson, 562 U.S. at 436 (internal quotation
marks and citation omitted); see Bowles v. Russell, 551
U.S. 205, 209 n.2 (2007) (looking to “a century’s worth of
precedent” in evaluating historical treatment). Here, the
majority does not identify a long line of Supreme Court
precedent to support its interpretation, and there is no
such precedent addressing whether § 7703(b)(1) is juris-
dictional, given that Article III courts did not have juris-
diction to review appeals from the MSPB until it was
created in 1978. See Civil Service Reform Act of 1978,
Pub. L. No. 95-454, § 205, 92 Stat. 1111, 1143 (1978).
While not representing a long line of Supreme Court
precedent, Kloeckner’s December 2012 interpretation of
§ 7703(b)(2)’s thirty-day filing deadline as nonjurisdic-
tional is, in my assessment, the most relevant decision, as
it sheds light on the Supreme Court’s view of an analo-
gous statutory provision. See 568 U.S. at 52–53. Since
Kloeckner was decided, Congress has twice amended
§ 7703, without altering § 7703(b)(2). See All Circuit
Review Act, Pub L. No. 115-195, § 2, 132 Stat. 1510, 1510
(2018); All Circuit Review Extension Act, Pub. L. No. 113-
170, § 2, 128 Stat. 1894, 1894 (2014). Therefore,
§ 7703(b)(1)(A)’s historical treatment does not favor
treating the sixty-day filing deadline as jurisdictional.
CONCLUSION
The Supreme Court’s “recent cases evince a marked
desire to curtail . . . drive-by jurisdictional rulings, which
10 FEDERAL EDUCATION ASSOCIATION v. DEFENSE
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 omitted). The majority improperly erects a
jurisdictional hurdle and dismisses Ms. Graviss’s Petition
for Review, which was filed only one day late, by refusing
to recognize that § 7703(b)(1)(A)’s sixty-day filing deadline
is a claim-processing rule. I believe this case raises a
question of exceptional importance with the majority’s
holding directly contrary to binding Supreme Court
precedent, and I respectfully dissent from denial of the
petition for rehearing en banc.
United States Court of Appeals
for the Federal Circuit
______________________
FEDERAL EDUCATION ASSOCIATION –
STATESIDE REGION, KAREN GRAVISS,
Petitioners
v.
DEPARTMENT OF DEFENSE, DOMESTIC
DEPENDENTS ELEMENTARY AND SECONDARY
SCHOOL,
Respondent
______________________
2015-3173
______________________
Petition for review of an arbitrator’s decision in No.
14-1024-00182-7 by Steven G. Hoffmeyer.
______________________
PLAGER, Circuit Judge, dissenting from the denial of the
petition for panel rehearing.
As I have previously noted in dissent, the parties have
been waiting eight years to resolve this case. After its
convoluted history in this court, the case is now resolved
by the panel dismissing the appeal for want of appellate
jurisdiction, and the full court’s denial of the petition for
en banc review.
2 FEDERAL EDUCATION ASSOCIATION v. DEFENSE
In dismissing the appeal, the panel majority relied on
an earlier case, Fedora v. Merit Systems Protection
Board, 1 in which the panel majority held that the time to
appeal in these types of cases was per se ‘mandatory and
jurisdictional.’ But as I explained in my dissent in Fedora
(we were the same three-judge panel in that case as in
this one), the statutory time requirement to appeal a case
from an agency to an Article III court is not per se manda-
tory and jurisdictional—the rule is and has been to the
contrary. See Hamer v. Neighborhood Housing Services of
Chicago, 138 S. Ct. 13 (2017), decided after our Fedora
case, unequivocally explaining and confirming the rule.
Our current approach thus ignores clear instruction
from the Supreme Court on the treatment of statutory
time bars. We should follow those instructions and treat
the applicable time bar in this case as nonjurisdictional,
and thus subject to equitable tolling, waiver, and forfei-
ture. And we may not simply ignore the Court’s treat-
ment as nonjurisdictional in years past of similar
statutory provisions.
In denying panel rehearing, we failed to apply binding
Supreme Court precedent to a matter of fundamental,
threshold importance—this court’s jurisdiction to hear
cases brought by aggrieved federal employees. Now the
full court, after some going back and forth, has denied en
banc review. Thus, regrettably, we once again invite the
Supreme Court to correct our errors.
For all the reasons explained in greater detail in my
dissenting opinion, as well as for the reasons expressed in
Judge Wallach’s well-written dissent from the denial of
the petition for rehearing en banc, I respectfully dissent
from the denial of the petition for panel rehearing.
1 848 F.3d 1013 (Fed. Cir. 2017).