United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 17, 2023 Decided June 16, 2023
No. 22-5093
ADAM ROBINSON,
APPELLANT
v.
DEPARTMENT OF HOMELAND SECURITY OFFICE OF INSPECTOR
GENERAL,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-02021)
Ciara Cooney, Student Counsel, argued the cause for
appellant. With her on the briefs were Charles Tucker, Jr.,
Brian Wolfman, Esthena L. Barlow, Madeline Meth, and
Matthew Calabrese, Holly Petersen, Nathan Winshall, Rachel
Danner, and Chun Hin Tsoi, Student Counsel. Lauren Lang
and Ezer Smith, Student Counsel, entered appearances.
Jane M. Lyons, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief was R. Craig Lawrence,
Assistant U.S. Attorney. April D. Seabrook, Assistant U.S.
Attorney, entered an appearance.
2
Before: HENDERSON, MILLETT and CHILDS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Adam
Robinson sought judicial review of the Merit Systems
Protection Board’s (MSPB) final decision affirming his
removal from the Department of Homeland Security (DHS) but
filed his complaint in the district court one day after the
statutory deadline prescribed in 5 U.S.C. § 7703(b)(2). The
district court dismissed his complaint as untimely, relying on
our decision in King v. Dole, 782 F.2d 274, 275–76 (D.C. Cir.
1986) (per curiam), holding that the thirty-day filing deadline
contained in section 7703(b)(2) is a jurisdictional requirement.
Robinson v. Dep’t of Homeland Sec., 2022 WL 715466, at *2–
3 (D.D.C. March 10, 2022). The district court held in the
alternative that Robinson had not presented facts to warrant
equitable tolling. Id. at *3–4. In light of the combined weight
of intervening United States Supreme Court authority and the
decisions of the other circuits interpreting section 7703(b)(2)
as a nonjurisdictional claims-processing rule since King, we
now hold that section 7703(b)(2)’s thirty-day filing deadline is
a nonjurisdictional claims-processing rule. See infra note 1.
Nevertheless, we affirm the district court’s dismissal on the
alternative ground that Robinson failed to show that he is
entitled to equitable tolling.
I.
In June 2018, Robinson’s supervisors in the Office of the
DHS Inspector General informed him that his work as a
Program Analyst was unacceptable and provided him thirty
days to demonstrate acceptable performance. Robinson
contacted a DHS equal employment opportunity officer and
3
lodged a complaint alleging that his supervisors had
discriminated against him in their performance evaluations
based on his race and sex. Robinson’s supervisors learned of
his complaint in July but continued to propose his removal
because he had not sufficiently improved his performance. The
DHS issued a final removal decision to Robinson in February
2019 for failure to perform at an acceptable level. See 5 U.S.C.
§ 4303(a); 5 C.F.R. § 432.105.
Robinson appealed his removal pro se to the MSPB,
alleging that he had not been provided a reasonable opportunity
to demonstrate acceptable performance under the Civil Service
Reform Act (CSRA), 5 U.S.C. § 4303; 5 C.F.R. § 432.104, that
the DHS’s decision to remove him was based at least in part on
his race and sex in violation of Title VII, 42 U.S.C. § 2000e-
16(a), and that his removal was effected as a retaliatory action
for the Title VII complaint he had filed against his supervisors,
see Weber v. Battista, 494 F.3d 179, 184 (D.C. Cir. 2007)
(citing Ethnic Emps. of the Libr. of Cong. v. Boorstin, 751 F.2d
1405, 1415 n.13 (D.C. Cir. 1985)) (holding 42 U.S.C. § 2000e-
16 prohibits retaliation against federal employee invoking Title
VII). Robinson’s appeal was categorized as a “mixed” case
because his removal was appealable to the MSPB under the
CSRA, 5 U.S.C. § 4303(e), and because he asserted that his
removal was motivated, in whole or in part, by discrimination
or by retaliation for his Title VII complaint. See 5 U.S.C.
§ 7702(a)(1) (authorizing the MSPB to decide both CSRA and
discrimination claims in a mixed case within 120 days of the
filing of the appeal); 29 C.F.R. § 1614.302(a)(2) (“A mixed
case appeal is an appeal filed with the MSPB that alleges that
an appealable agency action was effected, in whole or in part,
because of discrimination on the basis of race . . . [or] sex.”).
The MSPB assigned Robinson’s appeal to an
administrative law judge (ALJ) who held a two-day hearing
4
before sustaining the agency’s removal action for unacceptable
performance and rejecting Robinson’s Title VII allegations on
April 15, 2020. See 5 U.S.C. § 7701(b)(1) (the MSPB may
refer an appeal to an ALJ). The ALJ’s decision served as the
MSPB’s initial decision and informed Robinson that, unless he
petitioned the MSPB for review of the decision, it would
become the MSPB’s final decision on May 20, 2020. The initial
decision also stated that “you may obtain judicial review of this
decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district
court (not the U.S. Court of Appeals for the Federal Circuit),
within 30 calendar days after this decision becomes final.”
J.A. 55; see 5 U.S.C. § 7703(b)(2). Having received no petition
from Robinson, the ALJ’s initial decision indeed became the
MSPB’s final decision on May 20, 2020.
On June 15, 2020, twenty-six days after the MSPB
decision became final, Robinson, still acting pro se, called the
Office of the Clerk of the United States District Court for the
District of Columbia “to ask about the processing of mail
during the Covid-19 outbreak.” Robinson Decl. 11, Nov. 8,
2021 (J.A. 70). According to Robinson, the clerk personnel
“informed [him] that filing deadlines during this period were
not being strictly enforced due to the pandemic and the clerk’s
office [was] operating on a modified schedule where Court
clerks were only on-site two days per week to process filings.”
Id. The personnel also advised Robinson “it was more
important to just file rather than to worry about meeting a strict
deadline.” Robinson Decl., Apr. 22, 2021 (J.A. 59).
At the time Robinson called the Clerk’s Office in June
2020, the district court was operating under a standing order
that adjusted court procedures in response to the COVID-19
pandemic. See In Re: Further Extension of Postponed Court
Proceedings in Standing Order 20-9 and Limiting Court
5
Operations in Exigent Circumstances by the COVID-19
Pandemic, Standing Order No. 20-29 (BAH) (D.D.C. May 26,
2020). The Standing Order directed a pro se litigant to submit
a filing to the Court: “(1) by sending the filing via email to the
Court’s email address: dcdml_intake@dcd.uscourts.gov; or (2)
by date-stamping and depositing papers in drop boxes located
at the entrance to the Courthouse.” Id. at 9. It also explicitly
provided that it did “not toll any applicable statute of
limitations.” Id. at 8.
Robinson alleges that he mailed his complaint by standard
mail on June 15, four days before the June 19, 2020 deadline.
Robinson included a check to pay the filing fee for his
complaint, which check he post-dated for June 17, 2020, the
date he claims the complaint should have been delivered. His
complaint was posted to the Court’s docket on June 20, 2020,
one day after the filing deadline.
After filing an amended complaint on May 7, 2021 in
response to the DHS’s April 2, 2021 motion to dismiss,
Robinson hired counsel to represent him. The DHS then moved
to dismiss Robinson’s amended complaint under Federal Rules
of Civil Procedure 12(b)(1) and 12(b)(6). The district court
granted the DHS’s motion to dismiss on March 10, 2022. The
district court held that it was without authority to equitably toll
Robinson’s complaint under the King v. Dole holding that
section 7703(b)(2)’s thirty-day time limit to seek judicial
review of a MSPB decision is a jurisdictional requirement.
Robinson, 2022 WL 715466, at *2–3. Alternatively, the district
court held that Robinson was not entitled to equitable tolling
on the record before it. Robinson timely appealed.
6
II.
A.
Neither Robinson nor the DHS disputes that the Clerk’s
Office docketed Robinson’s complaint on June 20, 2020, one
day after the filing deadline. Nor does Robinson argue here that
the district court received his complaint earlier than the date it
was docketed. They do disagree, however, regarding whether
section 7703(b)(2)’s 30-day deadline is a jurisdictional
deadline.
Because Robinson appeals a mixed case, see 5 U.S.C.
§ 7702, his appeal is governed by 5 U.S.C. § 7703(b)(2). See
Kloeckner v. Solis, 568 U.S. 41, 56 (2012) (“A federal
employee who claims that an agency action appealable to the
MSPB violates an antidiscrimination statute listed in
§ 7702(a)(1) should seek judicial review in district court.”).
Section 7703(b)(2) provides:
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.
7
5 U.S.C. § 7703(b)(2). The longstanding rule in this Circuit set
out in King v. Dole is that the thirty-day filing deadline of
section 7703(b)(2) is a jurisdictional requirement. See 782 F.2d
at 275–76.
Three years after King was decided, however, the Supreme
Court held that the filing deadline in 42 U.S.C. § 2000e-16(c),
one of the three listed causes of action in section 7703(b)(2), is
nonjurisdictional and that “the same rebuttable presumption of
equitable tolling applicable to suits against private defendants
should also apply to suits against the United States.” Irwin v.
Dep’t of Veterans Affs., 498 U.S. 89, 95–96 (1990). Since
Irwin, all but one of our sister circuits that have interpreted
section 7703(b)(2)’s thirty-day filing deadline have held that it
is nonjurisdictional. See Montoya v. Chao, 296 F.3d 952, 957
(10th Cir. 2002) (“We find that the language of § 7703(b)(2)
is . . . insufficient to show that Congress intended to make
equitable tolling unavailable to plaintiffs.”); Blaney v. United
States, 34 F.3d 509, 513 (7th Cir. 1994) (“[A] time limit like
the one in § 7703(b)(2) is not jurisdictional.”); Nunnally v.
MacCausland, 996 F.2d 1, 4 (1st Cir. 1993) (per curiam)
(“[W]e join those courts which have held, under the authority
of Irwin, that the limitations period in 5 U.S.C. § 7703(b)(2)
may be subject to equitable tolling in an appropriate case.”);
Washington v. Garrett, 10 F.3d 1421, 1437 (9th Cir. 1993)
(similar); see also Ware v. Frank, 1992 WL 19861 at *2 (E.D.
Pa. Jan. 30, 1992), aff'd without op., 975 F.2d 1552 (3d Cir.
1992) (similar). But see Dean v. Veterans Admin. Reg’l Off.,
943 F.2d 667, 670 (6th Cir. 1991), vacated and remanded on
other grounds, 503 U.S. 902 (1992) (holding section
7703(b)(2) is jurisdictional even after Irwin but noting “[i]f we
were writing on a clean slate, we might well be persuaded”
otherwise).
8
In the years since Irwin, the Supreme Court has
consistently emphasized that jurisdiction “is a word of many,
too many, meanings,” Arbaugh v. Y & H Corp., 546 U.S. 500,
510 (2006) (quoting Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 90 (1998)), and warned that “[c]ourts, including
this Court, have more than occasionally misused the term
‘jurisdictional’ to refer to nonjurisdictional prescriptions,”
Wilkins v. United States, 143 S. Ct. 870, 877 (2023) (alteration
in original) (quoting Fort Bend Cnty v. Davis, 139 S. Ct. 1843,
1848 n.4 (2019)). Jurisdictional “requirements mark the
bounds of a ‘court’s adjudicatory authority,’” Boechler, P.C. v.
Comm’r, 142 S. Ct. 1493, 1497 (2022) (quoting Kontrick v.
Ryan, 540 U.S. 443, 455 (2004)), but nonjurisdictional claims-
processing rules “simply instruct ‘parties [to] take certain
procedural steps at certain specified times’ without
conditioning a court’s authority to hear the case on compliance
with those steps,” id. (alteration in original) (quoting
Henderson v. Shinseki, 562 U.S. 428, 435 (2011)).
This Supreme Court precedent, followed by all but one of
our sister circuits, casts doubt on the soundness of King. See
supra p. 7; see also Brookens v. Acosta, 297 F. Supp. 3d 40,
47–49 (D.D.C. 2018) (“It may well be that the D.C. Circuit will
conclude at some point that King is no longer good law.”);
Becton v. Pena, 946 F. Supp. 84, 86–87 (D.D.C. 1996)
(“Numerous courts (although not yet the Court of Appeals for
this Circuit) have adopted Irwin’s reasoning and concluded that
equitable tolling also applies to the 30–day limitation period set
forth in § 7703(b)(2).” (citing Nunnally, 996 F.2d at 4)). We
now address that doubt and hold that section 7703(b)(2)’s
statute of limitations is instead a nonjurisdictional claims-
processing rule.1
1
“[W]e cannot overrule a prior panel’s decision, except via an
Irons footnote or en banc review.” United States v. Emor, 785 F.3d
9
The Supreme Court has “‘repeatedly held that procedural
rules, including time bars, cabin a court’s power’ to hear a
case—i.e., subject matter jurisdiction— ‘only if Congress has
‘clearly state[d]’ as much.’” Jackson v. Modly, 949 F.3d 763,
776 (D.C. Cir. 2020) (alteration in original) (quoting United
States v. Wong, 575 U.S. 402, 409 (2015)). A court reviewing
whether a statutory deadline contains a “clear statement”
evaluates whether the provision’s text “clearly mandate[s] the
jurisdictional reading,” Boechler, 142 S. Ct. at 1498, as the
Congress “must do something special, beyond setting an
exception-free deadline, to tag a statute of limitations as
jurisdictional and so prohibit a court from tolling it.” Wong,
575 U.S. at 410. As a result, “most time bars are
nonjurisdictional,” Wilkins, 143 S. Ct. at 877, and the
“traditional tools of statutory construction must plainly show
that Congress imbued a procedural bar with jurisdictional
consequences.” Id. at 876 (quoting Wong, 575 U.S. at 410).
Neither the text nor the structure of section 7703(b)(2)
manifests that the Congress intended the thirty-day filing
deadline to be a jurisdictional one. See id. First, the text of the
filing deadline “does not speak in jurisdictional terms or refer
in any way to the jurisdiction of the district courts.” Wong,
575 U.S. at 411 (quoting Arbaugh, 546 U.S. at 515). The
provision merely instructs an individual litigant that he has
671, 682 (D.C. Cir. 2015). “In an Irons footnote, named after the
holding in Irons v. Diamond, 670 F.2d 265, 267–68 & n.11 (D.C.
Cir. 1981), the panel ‘seek[s] for its proposed decision the
endorsement of the en banc court, and announce[s] that endorsement
in a footnote to the panel’s opinion.’” Oakey v. U.S. Airways Pilots
Disability Income Plan, 723 F.3d 227, 232 n.1 (D.C. Cir. 2013)
(alteration in original) (quoting Policy Statement on En Banc
Endorsement of Panel Decisions 1 (Jan. 17, 1996)). Our holding
today has been approved by the en banc court and thus constitutes
the law of the circuit.
10
thirty days from the date he receives notice of the “judicially
reviewable action” to file for review, “[n]otwithstanding any
other provision of law.” 5 U.S.C. § 7703(b)(2). In a case
presenting a different question regarding section 7703, the
Supreme Court described the relevant language of
section 7703(b)(2) as “nothing more than a filing deadline.”
Kloeckner, 568 U.S. at 52.2 The DHS contends that the
Congress’s inclusion of “[n]otwithstanding any other provision
of law” in the same sentence as section 7703(b)(2)’s filing
deadline is strong evidence that the deadline is jurisdictional.
The Supreme Court has recognized, however, that mandatory
or otherwise emphatic language is common in statutes of
limitation and has “consistently found it of no consequence.”
See Wong, 575 U.S. at 410–11 (holding that 28 U.S.C.
§ 2401(b)’s filing deadline is nonjurisdictional despite
language providing that tort claims against the United States
“shall be forever barred” if filed after the deadline); Wilkins,
143 S. Ct. at 876–77 (holding that 28 U.S.C. § 2409a(g)’s
filing deadline is nonjurisdictional notwithstanding language
that civil actions “shall be barred” if filed after the deadline).
In addition, the “notwithstanding” clause is “ambiguous” in its
meaning. See Greenbaum v. Islamic Republic of Iran, 67 F.4th
428, 432 (D.C. Cir. 2023). Although the DHS argues that
“notwithstanding any other provision” refers to equitable
tolling, it is also plausible that “notwithstanding any other
provision” refers to section 2000e–16(c)’s 90-day time limit for
a Title VII-only suit or section 7703(b)(1)’s 60-day time limit
for a CSRA-only suit. “Where multiple plausible
interpretations exist—only one of which is jurisdictional—it is
2
In Kloeckner v. Solis, the Supreme Court held that a federal
employee seeking judicial review of a MSPB final decision
regarding a “mixed” claim under section 7703 should file in district
court, not the Federal Circuit, whether the MSPB decided the
employee’s claim on a procedural ground or on the merits. 568 U.S.
at 56.
11
difficult to make the case that the jurisdictional reading is
clear.” Boechler, 142 S. Ct. at 1498.
We believe that the structure of section 7703(b)(2)
likewise does not mandate a jurisdictional reading. Language
authorizing the district court to hear mixed appeals from the
MSPB appears in section 7703(b)(2)’s first sentence. 5 U.S.C.
§ 7703(b)(2) (“Cases of discrimination subject to the
provisions of section 7702 . . . shall be filed under . . .
42 U.S.C. 2000e-16(c) . . . as applicable.”); see Kloeckner,
568 U.S. at 46, 53 (“The enforcement provisions of the
antidiscrimination statutes listed in this exception all authorize
suit in federal district court.”). Importantly, the Congress
placed the thirty-day filing deadline in section 7703(b)(2)’s
second sentence. See Kloeckner, 568 U.S. at 53 (“The first
sentence defines which cases should be brought in district
court . . . . The second sentence then states when those cases
should be brought.”). The Supreme Court has “often explained
that Congress’s separation of a filing deadline from a
jurisdictional grant indicates that the time bar is not
jurisdictional.” Wilkins, 143 S. Ct. at 877 (quoting Wong,
575 U.S. at 411); cf. Boechler, 142 S. Ct. at 1497–98.
Accordingly, because section 7703(b)(2) lacks a “clear
statement” that the Congress intended to limit the district
court’s jurisdiction through the thirty-day deadline, Boechler,
142 S. Ct. at 1498, we hold that 5 U.S.C. § 7703(b)(2)’s thirty-
day filing deadline is a nonjurisdictional claims-processing rule
and overrule our decisions to the contrary. See, e.g., King,
782 F.2d at 275–76. 3
3
See supra note 1.
12
B.
Having determined that section 7703(b)(2)’s statute of
limitations is not jurisdictional, we nonetheless affirm the
district court’s dismissal because Robinson has not
demonstrated that he is entitled to equitable tolling. We review
the court’s decision denying equitable tolling de novo. Jackson,
949 F.3d at 778.
A party seeking equitable tolling must show: “(1) that he
has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way.” Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005), quoted in Young v.
SEC, 956 F.3d 650, 655 (D.C. Cir. 2020). The second prong
requires a litigant to demonstrate that the “circumstances that
caused a litigant’s delay are both extraordinary and beyond
[his] control.” Menominee Indian Tribe of Wis. v. United
States, 577 U.S. 250, 257 (2016) (emphasis in original).
Equitable tolling is “appropriate only in ‘rare instances where–
due to circumstances external to the party’s own conduct–it
would be unconscionable to enforce the limitation period
against the party and gross injustice would result.’” Head v.
Wilson, 792 F.3d 102, 111 (D.C. Cir. 2015) (quoting Whiteside
v. United States, 775 F.3d 180, 184 (4th Cir. 2014)). It is not
available to a litigant who misses a deadline because of a
“garden variety claim of excusable neglect” or a “simple
‘miscalculation.’” Holland v. Florida, 560 U.S. 631, 651–52
(2010) (first quoting Irwin, 498 U.S. at 96; then citing
Lawrence v. Florida, 549 U.S. 327, 336 (2007)).
Robinson offers two circumstances that “stood in his
way,” thus preventing him from timely filing. See Pace,
544 U.S. at 418. First, he contends that the extraordinary
circumstances brought on by the COVID-19 pandemic caused
logistical hurdles that prevented him from timely filing.
13
Second, Robinson argues that mistaken or misleading advice
from court personnel created an extraordinary circumstance
that prevented him from timely filing his complaint. Neither of
Robinson’s contentions “meet[s] the high threshold for
applying this rare remedy.” Jackson, 949 F.3d at 778. The
district court standing order in effect at the time Robinson
mailed his complaint contained a general observation that
“operations of the Clerk’s Office are continuing but have been
limited to support essential functions.” See In Re: Further
Extension of Postponed Court Proceedings in Standing Order
20-9 and Limiting Court Operations in Exigent Circumstances
by the COVID-19 Pandemic, Standing Order No-20-29 (BAH)
at 8 (D.D.C. May 26, 2020). The order specifically informed
pro se litigants, however, how they were to submit filings, to
wit: “by sending the filing via email to the Court’s email
address: dcdml_intake@dcd.uscourts.gov” or “by date-
stamping and depositing papers in drop boxes located at the
entrance to the Courthouse.” Id. at 9.
Robinson instead chose to mail his complaint, by standard
mail, four days before the statutory deadline. Neither he nor his
eventual counsel explained why he did not use one of the two
options the Standing Order expressly gave him. Robinson
makes no assertion that COVID-19 kept him from delivering
his filing in person to the courthouse drop box, that the court
personnel’s guidance impaired his timely filing, that COVID-
19 prevented his use of overnight delivery of his filing or that
COVID-19 otherwise impeded him from timely filing
electronically. The record instead shows that Robinson chose
to mail his complaint by standard mail four days before the
statutory filing deadline and assumed the risk his complaint
would arrive late. See Houston v. Lack, 487 U.S. 266, 275
(1988) (“[A] civil litigant who chooses to mail a notice of
appeal assumes the risk of untimely delivery and filing.”). On
these facts, Robinson’s decision to use standard mail is a
14
“garden variety claim of excusable neglect” insufficient to
warrant equitable tolling. Irwin, 498 U.S. at 96.
For the foregoing reasons, the district court’s judgment of
dismissal is affirmed.
So ordered.