                                       PRECEDENTIAL


      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                 __________

                     No. 18-2471
                     __________

               JOHN F. GUERRA, JR.,
                            Appellant

                          v.

CONSOLIDATED RAIL CORPORATION (CONRAIL)
               __________

    On Appeal from the United States District Court
            for the District of New Jersey
              (D.C. No. 2-17-cv-06497)
        District Judge: Hon. Claire C. Cecchi
                     __________

                Argued June 13, 2019

Before: HARDIMAN, PORTER, COWEN, Circuit Judges

               (Filed: August 21, 2019)
                     __________
Robert E. Myers
Lawrence A. Katz [ARGUED]
COFFEY KAYE MYERS & OLLEY
Two Bala Plaza, Suite 718
Bala Cynwood, PA 19004

       Counsel for Appellant

Robert S. Hawkins
Joseph P. Sirbak, II [ARGUED]
COZEN O’CONNOR
1650 Market Street, Suite 2800
Philadelphia, PA 19103

       Counsel for Appellee


                          __________

                  OPINION OF THE COURT
                        __________

PORTER, Circuit Judge.

        The Federal Railway Safety Act (“FRSA”) provides
that railroad carriers may not retaliate against employees who
blow the whistle on certain safety violations. If a carrier breaks
this rule, the aggrieved employee may seek relief by filing a
complaint with the Occupational Safety and Health
Administration (“OSHA”) “not later than 180 days” after the
alleged      retaliation    occurred.     See       49      U.S.C.
§ 20109(d)(2)(A)(ii). The Secretary of Labor then has 210 days
to issue a “final decision” on the matter. If the Secretary takes
too long, “the employee may bring an original action … for de
novo review in the appropriate district court of the United
States.” Id. § 20109(d)(3).

       This case asks whether FRSA’s 180-day limitations
period is “jurisdictional.” That is, if an employee fails to file a
timely complaint with OSHA, does that divest a district court
of subject matter jurisdiction? Or is the limitations period
simply a claim-processing rule, the breach of which may defeat


                                2
an employee’s claim, but not a district court’s jurisdiction to
hear the case?

        After considering the text, context, and history of the
provision, and mindful of the Supreme Court’s decisions in this
area, we hold that FRSA’s 180-day limitations period in 49
U.S.C. § 20109(d)(2)(A)(ii) is a nonjurisdictional claim-
processing rule. The District Court assumed otherwise, but we
will affirm the District Court’s decision on other grounds.

                               I

                               A

       Congress enacted FRSA in 1970 “to promote safety in
every area of railroad operations and reduce railroad-related
accidents and incidents.” 49 U.S.C. § 20101. Ten years later,
Congress added an anti-retaliation provision to the statute,
protecting “employees who alerted authorities about a
violation of federal safety regulations.” Norfolk S. Ry. Co. v.
Perez, 778 F.3d 507, 509 (6th Cir. 2015) (citing Pub. L. No.
96-423, § 10, 94 Stat. 1811 (1980)). Under the amended law,
employees who thought themselves the victims of retaliation
could seek relief through mandatory arbitration under the
Railway Labor Act before the National Railroad Adjustment
Board. Id. at 510. Except in narrow circumstances, the decision
of the Adjustment Board was final and mostly unreviewable by
courts. See Union Pac. R.R. Co. v. Sheehan, 439 U.S. 89, 94
(1978) (“Congress considered it essential to keep these so-
called ‘minor’ disputes within the Adjustment Board and out
of the courts.” (citation omitted)).

        In 2007, Congress amended FRSA again, untangling its
retaliation-dispute-resolution scheme from the Railway Labor
Act and giving it to the Secretary of Labor, subject to expanded
judicial oversight. See Implementing Recommendations of the
9/11 Commission Act of 2007, Pub. L. No. 110-53, § 1521,
121 Stat. 266 (2007). The point of this was to “expand the
protections for railroad employees” and to “enhance
employees’ administrative and civil remedies.” Perez, 778
F.3d at 510 (internal quotation marks and citation omitted).



                               3
        Today, FRSA and its accompanying regulations provide
for a straightforward, multi-step adjudication process for
retaliation complaints.

        First, if an employee thinks she has been wronged in
violation of the Act, she must file a complaint with OSHA “not
later than 180 days after the date on which the alleged violation
… occurs.” 49 U.S.C. § 20109(d)(2)(A)(ii), (d)(1); 29 C.F.R.
§§ 1982.103–104.1 OSHA will then investigate the claims and
issue written findings and a preliminary order “as to whether
or not there is reasonable cause to believe that the respondent
has retaliated against the complainant in violation of …
FRSA.” 29 C.F.R. §§ 1982.105(a), 1982.104.

       Second, any unsatisfied party may object to OSHA’s
findings or preliminary order within 30 days and request a
hearing before an administrative law judge (“ALJ”). Id.
§ 1982.106.2 The ALJ may conduct a hearing on the record and
must issue a decision containing “appropriate findings,
conclusions, and an order pertaining to … remedies.” Id.
§ 1982.109(a); see id. § 1982.107(b).

      Third, within 14 days of the ALJ’s decision, any party
may petition for review from the Administrative Review Board
(“ARB”). Id. § 1982.110(a). If the ARB accepts the case, it has

       1
           49 U.S.C. § 20109(d)(1) provides:

                An employee who alleges
                discharge, discipline, or other
                discrimination in violation of
                subsection (a), (b), or (c) of this
                section, may seek relief in
                accordance with the provisions of
                this section, with any petition or
                other request for relief under this
                section to be initiated by filing a
                complaint with the Secretary of
                Labor.
       2
        If no party objects, then OSHA’s preliminary findings
become the “final decision of the Secretary.” 29 C.F.R.
§ 1982.106(b).
                                4
120 days to issue a final decision for the Secretary. Id.
§ 1982.110(c). If the ARB rejects a case, the ALJ’s decision
becomes the Secretary’s final order. Id. § 1982.110(b).

        Finally, any person “adversely affected or aggrieved”
by the Secretary’s final decision as issued by the ARB3 may,
within 60 days, “obtain review of the order in the United States
court of appeals for the circuit in which the violation, with
respect to which the order was issued, allegedly occurred or the
circuit in which the complainant resided on the date of such
violation.” 49 U.S.C. § 20109(d)(4).

       This process is what happens if the agency is
expeditious. But if the agency takes too long to issue a final
decision, FRSA provides a so-called “kick-out” option for
claimants to seek “de novo review” in federal district court.

              De novo review.—With respect to
              a complaint under paragraph (1), if
              the Secretary of Labor has not
              issued a final decision within 210
              days after the filing of the
              complaint and if the delay is not
              due to the bad faith of the
              employee, the employee may bring
              an original action at law or equity
              for de novo review in the
              appropriate district court of the
              United States, which shall have
              jurisdiction over such an action
              without regard to the amount in
              controversy, and which action
              shall, at the request of either party
              to such action, be tried by the court
              with a jury.



       3
         If nobody objects to OSHA’s preliminary order,
making that decision the “final decision of the Secretary,” the
parties may not later seek judicial review. See 29 C.F.R.
§ 1982.106(b). The same goes for an unappealed order of an
ALJ. Id. § 1982.110(b).
                               5
Id. § 20109(d)(3). This kick-out provision and the 180-day
limitations period are the focus of this case.

                               B

        John Guerra, Jr. worked as a conductor and brakeman
for Consolidated Rail Corporation (“Conrail”). He alleges that,
in late 2015, Conrail urged him to cut corners and ignore safety
regulations to increase productivity. When he refused, Conrail
threatened him and eliminated certain incidental perks of his
job. Guerra reported this alleged retaliation to Conrail’s
compliance office, which told him that his complaints would
be “handled in a confidential manner.” App. 29. But Conrail
did nothing to alleviate his concerns. Instead, he says, he was
told that he needed to “play ball” with the company and that, if
he kept reporting safety issues, there would be “undesirable
consequences.” App. 29–30. Likewise, in early 2016, Guerra
filed six complaints about allegedly defective braking systems
in two Conrail locomotives. Yet again, he says, the only
response was that he needed to toe the company line for his
own good.

       Shortly after that, a train Guerra was operating failed to
brake properly and ran through a railroad switch. Conrail
investigated the incident and, on April 6, 2016, notified Guerra
that he would be suspended for 45 days. As Guerra tells it, a
supervisor informed him this should “be a lesson to him” and
that Guerra should “be more cooperative.” App. 31.

       On May 10, 2016, Guerra’s attorney, Lawrence Katz,
allegedly “filed a FRSA complaint with the Secretary of
Labor’s Region II [OSHA] Whistleblower Office.” Guerra v.
Consol. Rail Corp., No. 17-cv-6497, 2018 WL 2947857, at *2
(D.N.J. June 13, 2018). Six months passed by. Seeing no
response from OSHA, on November 28, 2016, Katz followed
up with OSHA by email and attached a copy of the complaint.

       OSHA notified Guerra in early 2017 that his claim was
dismissed as untimely because his complaint had been filed
more than 180 days after the alleged violation. According to
the agency’s letter, Conrail’s alleged retaliation against Guerra
happened on April 6, 2016, but OSHA first received Guerra’s


                               6
complaint on November 28, 2016—237 days later. As for
Guerra’s supposed May 10 complaint:

              There is no evidence that such a
              complaint was filed with the
              Regional Office. Furthermore,
              previous complaints filed by
              Complainant’s attorney in other
              matters were faxed or sent by
              tracked delivery. There is nothing
              to indicate this complaint was ever
              filed with OSHA or circumstances
              to allow tolling.

App. 57.

       Guerra objected to OSHA’s dismissal and requested a
hearing before an ALJ. He submitted affidavits from his
attorneys that detailed their normal procedures for preparing
and mailing complaints to OSHA. These affidavits, Guerra
argued, provided enough evidence to invoke the common-law
mailbox rule’s presumption of delivery. But the ALJ thought
otherwise, finding that Guerra’s “self-serving affidavits”
nowhere revealed “who drafted the complaint, who dictated the
complaint, and most importantly, who mailed the complaint.”
App. 117. So the ALJ held that the mailbox rule did not apply
and dismissed Guerra’s claim for untimeliness.

       Guerra initially appealed the ALJ’s decision to the
ARB, but then opted to kick out his claim to federal court
because more than 210 days had elapsed since OSHA had
received his complaint. See In re: Guerra v. Consolidated Rail
Corp., (Conrail), ARB No. 2017-069, 2018 WL 6978223
(DOL Admin. Rev. Bd. June 29, 2018).4 Conrail moved to


       4
         The ARB accepted the case and issued a briefing
schedule, but Guerra failed to file his opening brief as ordered.
In re: Guerra, 2018 WL 6978223, at *1. Guerra also
apparently failed to notify the ARB that he had filed a
complaint in federal court. Id. at *1 n.4; 29 C.F.R.
§ 1982.114(c). In any event, after the District Court issued its
decision, the ARB dismissed Guerra’s case for lack of
                               7
dismiss for lack of subject matter jurisdiction under Rule
12(b)(1), asserting that Guerra’s failure to file a timely
complaint with OSHA deprived the District Court of
jurisdiction over the case. Conrail also moved in the alternative
under Rule 56 for summary judgment on the grounds that the
record refuted Guerra’s only theory of timeliness. In response,
Guerra agreed that the District Court would lack jurisdiction if
his complaint had been untimely filed, but asserted that, under
the mailbox rule, his attorneys had timely mailed his complaint
to OSHA on May 10.

      The District Court accepted without scrutiny the parties’
agreement that the Court would lack jurisdiction if Guerra had
untimely filed his complaint with OSHA. And finding that
Guerra’s evidence was not enough to invoke the presumption
of the common-law mailbox rule, the Court dismissed his
complaint for lack of jurisdiction. Guerra timely appealed.

                                II

        The District Court had putative jurisdiction under 28
U.S.C. § 1331 and 49 U.S.C. § 20109(d)(3). We have putative
jurisdiction under 28 U.S.C. § 1291. And we “always [have]
jurisdiction to determine [our] own jurisdiction.” White-Squire
v. United States Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010)
(citation omitted).

        At the outset, the District Court erred by accepting
without scrutiny the parties’ accord on its supposed lack of
jurisdiction. The Court had “an independent obligation to
determine whether subject-matter jurisdiction exist[ed], even
in the absence of a challenge from any party.” Hartig Drug Co.
Inc. v. Senju Pharm. Co. Ltd., 836 F.3d 261, 267 (3d Cir. 2016)
(quoting Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006)).
So even though both sides agreed that jurisdiction would not
exist over an untimely complaint, the District Court was still
obliged to make sure the parties were right. Id. And because,
as we explain below, the parties were wrong, the Court, by
accepting their agreement, also failed its “strict duty to exercise
the jurisdiction that [was] conferred upon [it] by Congress.”

jurisdiction “on the ground that Guerra ha[d] removed it to
district court.” In re: Guerra, 2018 WL 6978223, at *1.
                                8
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996)
(“[F]ederal courts ‘have no more right to decline the exercise
of jurisdiction which is given, than to usurp that which is not.’”
(quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404
(1821))).

        Thus, on appeal, “regardless of the acquiescence or
wishes of the parties, we must question whether the District
Court properly treated [FRSA’s statute of limitations] as a
jurisdictional issue under Rule 12(b)(1).” Hartig, 836 F.3d at
267. We exercise de novo review over that legal conclusion.
Id. at 267 n.8.

                               III

        This case presents two questions. First, does an
untimely administrative complaint under FRSA’s 180-day
statute of limitations deprive a district court of subject matter
jurisdiction? Second, did Guerra timely file his complaint with
OSHA?

                                A

       The first question presented “concerns the distinction
between two sometimes confused or conflated concepts:
federal-court ‘subject-matter’ jurisdiction over a controversy;
and the essential ingredients of a federal claim for relief.”
Arbaugh, 546 U.S. at 503. To keep these concepts distinct, the
Supreme Court has classified statutory requirements (for
example, FRSA’s 180-day limitations rule) as either
“jurisdictional conditions” or “claim-processing rules.” See
Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161 (2010). The
distinction between these types “can be confusing in practice,”
so we must conduct a “close analysis” of the provision at issue.
Id.

       “Jurisdiction,” properly defined, refers to a court’s
“adjudicatory authority.” Kontrick v. Ryan, 540 U.S. 443, 455
(2004). This authority—the “judicial Power”—flows from
Article III of the Constitution, U.S. Const. art. III, § 1, but
Congress, under Article I, has nearly “plenary” power to shape
its scope by statute. See Patchak v. Zinke, 138 S. Ct. 897, 906
(2018) (plurality op.); Bowles v. Russell, 551 U.S. 205, 212

                                9
(2007) (“Within constitutional bounds, Congress decides what
cases the federal courts have jurisdiction to consider.”). A
statute is thus “jurisdictional” if it “delineat[es] the classes of
cases (subject-matter jurisdiction) [or] the persons (personal
jurisdiction) implicating that authority.” Muchnick, 559 U.S. at
160–61 (internal quotation marks and citation omitted).

       Claim-processing rules, by contrast, “seek to promote
the orderly progress of litigation by requiring that the parties
take certain procedural steps at certain specified times.”
Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435
(2011). Rules of this sort, even if important and mandatory,
“do[] not reduce the adjudicatory domain of a tribunal.” Union
Pac. R.R. Co. v. Bhd. of Locomotive Eng’rs & Trainmen Gen.
Comm. of Adjustment, Cent. Region, 558 U.S. 67, 81 (2009);
see United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1632
(2015).

         The difference between these categories is not mere
semantics. Among other things, although our adversarial legal
system generally adheres to the principle of party
presentation,5 as noted above, “federal courts have an
independent obligation to ensure that they do not exceed the
scope of their jurisdiction[.]” Henderson, 562 U.S. at 434. So
if a statutory condition is jurisdictional, a court must “raise and
decide” whether that condition has been satisfied, even if the
parties overlooked or elected not to press the issue. Id.;
Arbaugh, 546 U.S. at 514; Fort Bend Cty. v. Davis, 139 S. Ct.
1843, 1849 (2019). Likewise, jurisdictional defects cannot be
forfeited or waived by the parties and are not subject to
equitable tolling, while the opposite is true of claim-processing
defects. See Arbaugh, 546 U.S. at 514; Union Pac., 558 U.S.
at 81–82; see also United States v. Kalb, 891 F.3d 455, 459–60
(3d Cir. 2018). As a result, “[j]urisdictional rules may also
result in the waste of judicial resources and may unfairly
prejudice litigants.” Henderson, 562 U.S. at 434; see Arbaugh,
546 U.S. at 508–09 (explaining that the defendant first raised a
supposed jurisdictional defect two weeks after trial).

       5
        “That is, we rely on the parties to frame the issues for
decision and assign to courts the role of neutral arbiter of
matters the parties present.” Greenlaw v. United States, 554
U.S. 237, 243 (2008).
                                10
        Because of these “harsh consequences” that flow from
labeling a statute “jurisdictional,” we apply a bright-line test,
looking for whether Congress has “clearly state[d]” that this
treatment is appropriate. See Davis, 139 S. Ct. at 1849–50
(citations omitted); Arbaugh, 546 U.S. at 515–16. This is not a
matter of magic words. Yet absent a clear indication that
Congress intended to imbue a condition with jurisdictional
significance, we will “treat the restriction as nonjurisdictional
in character.” Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S.
145, 153–54 (2013) (internal quotation marks and citations
omitted); Davis, 139 S. Ct. at 1850. We look for a clear
statement in the statute’s “text, context, and relevant historical
treatment.” Kalb, 891 F.3d at 460 (quoting Muchnick, 559 U.S.
at 166).

       Finally, we consider these principles against the
backdrop that Congress has granted federal district courts
“original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C.
§ 1331. FRSA “surely is a law of the United States.” Arbaugh,
546 U.S. at 505 (internal quotation marks and citation omitted).
So “[t]he question, then, is not whether [FRSA’s 180-day
statute of limitations] confers jurisdiction, but whether [it]
removes the jurisdiction given to the federal courts.” Whitman
v. Dep’t of Transp., 547 U.S. 512, 514 (2006).

                                1

        The plain text of FRSA’s 180-day statute of limitations
nowhere shows that it bears jurisdictional weight. See 49
U.S.C. § 20109(d)(2)(A)(ii). On the contrary, it “speaks only
to a claim’s timeliness, not to a court’s power.” Kwai Fun
Wong, 135 S. Ct. at 1632. Put differently, “it does not speak in
jurisdictional terms or refer in any way to the jurisdiction of
the district courts.” Zipes v. Trans World Airlines, Inc., 455
U.S. 385, 394 (1982).

       To be sure, Congress used mandatory language—“[a]n
action … shall be commenced not later than 180 days….”
§ 20109(d)(2)(A)(ii) (emphasis added). But emphatic words
are not enough to make a statute jurisdictional. See Kwai Fun
Wong, 135 S. Ct. at 1632 (explaining that a filing deadline is
rarely jurisdictional, “even when the time limit is important

                               11
(most are) and even when it is framed in mandatory terms
(again, most are)”); Henderson, 562 U.S. at 439 (“[W]e have
rejected the notion that ‘all mandatory prescriptions, however
emphatic, are ... properly typed jurisdictional.’” (quoting
Union Pac., 558 U.S. at 81)). In short, the question is whether
Congress intended to limit courts’ “adjudicatory authority,”
not whether Congress intended to bar untimely claims. See
Davis, 139 S. Ct. at 1851 (“[A] prescription does not become
jurisdictional whenever it promotes important congressional
objectives.” (internal quotation marks and citation omitted)).

                                2

       Nor does the provision’s context speak in jurisdictional
terms. Indeed, subsection (d)(2) is titled simply “Procedure,”
which “suggests Congress regarded the [180]-day limit as a
claim-processing rule.” Henderson, 562 U.S. at 439; 49 U.S.C.
§ 20109(d)(2). And none of the procedures listed in subsection
(d)(2) have even a slight jurisdictional tinge.

        Conrail argues otherwise, relying on a series of linking
inferences between three other subsections. First, subsection
(d)(1) requires that “any petition or other request for relief …
be initiated by filing a complaint with the Secretary of Labor.”
§ 20109(d)(1). Next, subsection (d)(2)(A)(ii)—the “statute of
limitations”—applies to “[a]n action under paragraph (1)”
(referring to subsection (d)(1)). Id. § 20109(d)(2)(A)(ii). And
last, subsection (d)(3)—the kick-out provision (Conrail’s
supposed jurisdictional hook)—states that it applies “[w]ith
respect to a complaint under paragraph (1).” Id. § 20109(d)(3).
Construed together, Conrail says, these provisions mean that,
“[i]f a complainant does not file a valid [i.e., timely] complaint
under paragraph 1 … then there is simply no predicate
‘complaint under paragraph (1)’ over which § 20109(d)(3)
could confer jurisdiction to the district court.” Appellee’s
Supp. Letter Br. 4 (“Construing this language as a whole
demonstrates Congress’[s] intent to confer jurisdiction,
through § 20109(d)(3), only over complaints satisfying the
mandatory limitations period of § 20109(d)(2)(A)(ii).”).

       But this interpretation reads a non-existent modifier into
§ 20109(d)(3). Nothing in that subsection’s text states that it
applies only to “valid” or “timely” complaints. Nor does the

                               12
limitations rule’s textual proximity to the kick-out provision
show jurisdictional purpose. See Auburn, 568 U.S. at 155 (“A
requirement we would otherwise classify as nonjurisdictional
… does not become jurisdictional simply because it is placed
in a section of a statute that also contains jurisdictional
provisions.”); Gonzalez v. Thaler, 565 U.S. 134, 147 (2012)
(“Mere proximity will not turn a rule that speaks in
nonjurisdictional terms into a jurisdictional hurdle.”). And
more: Conrail’s argument disregards the “structural divide
built into the statute” between the various subsections. Kwai
Fun Wong, 135 S. Ct. at 1633 (“Congress’s separation of a
filing deadline from a jurisdictional grant indicates that the
time bar is not jurisdictional.”).

                                 3

        Nor do the provision’s history or purpose display any
clear congressional intent to create a jurisdictional bar. And
without such a clear statement, we refuse to divine the
legislative history. See Kwai Fun Wong, 135 S. Ct. at 1633
(“[E]ven assuming legislative history alone could provide a
clear statement (which we doubt), none does so here.”).

       This lack of jurisdictional pedigree distinguishes this
case from Bowles v. Russell, 551 U.S. 205 (2007). There,
because of its “longstanding treatment” of Article III appellate
deadlines as jurisdictional, the Supreme Court held that a
party’s failure to timely appeal a district court judgment
divested jurisdiction from the court of appeals. Bowles, 551
U.S. at 210–11; Union Pac., 558 U.S. at 82 (explaining that
Bowles “rel[ied] on a long line of this Court’s decisions left
undisturbed by Congress”). No such “longstanding treatment”
exists here.

         Instead, FRSA’s statute of limitations is simply another
example of the Supreme Court’s admonition that “most time
bars are nonjurisdictional.” Kwai Fun Wong, 135 S. Ct. at
1632; see Auburn, 568 U.S. at 154 (“[W]e have repeatedly held
that filing deadlines ordinarily are not jurisdictional.” (citations
omitted)); Henderson, 562 U.S. at 435 (“Filing deadlines, such
as the 120–day filing deadline at issue here, are quintessential
claim-processing rules.”); Scarborough v. Principi, 541 U.S.
401, 413–14 (2004); Kontrick, 540 U.S. at 455–56; see also T

                                13
Mobile Ne. LLC v. City of Wilmington, 913 F.3d 311, 324 (3d
Cir. 2019) (“Caution is indeed warranted because statutes of
limitations and other filing deadlines ordinarily are not
jurisdictional.” (internal quotation marks and citation
omitted)). Overall, these cases emphasize that “Congress must
do something special, beyond setting an exception-free
deadline, to tag a statute of limitations as jurisdictional[.]”
Kwai Fun Wong, 135 S. Ct. at 1632.

        So too here. Congress has not clearly stated that FRSA’s
statute of limitations is jurisdictional. Not only are we the first
federal appellate court to address this specific question, but
agency filing deadlines are typically nonjurisdictional. So the
provision has no longstanding jurisdictional pedigree. See
Bowles, 551 U.S. at 210–11. We thus decline to read a
jurisdictional bar into the statute.

                                4

      Conrail makes two arguments in rebuttal. Neither is
persuasive.

       First, Conrail says that, “because the administrative
process under FRSA is designed to fully adjudicate an
employee’s claim, … district court jurisdiction is narrowly
drawn and the filing of an administrative complaint under
FRSA carries jurisdictional significance.” Appellee’s Supp.
Letter Br. 3. Conrail thus compares FRSA to “statutory
schemes that channel certain claims to administrative agency
adjudication first, followed by judicial review in a federal
court.” Davis, 139 S. Ct. at 1851 (citing Elgin v. Dep’t of
Treasury, 567 U.S. 1 (2012), and Thunder Basin Coal Co. v.
Reich, 510 U.S. 200 (1994)).

       But this argument falters from the start because it is
nowhere “fairly discernible in the statutory scheme” that
Congress intended “to preclude district court jurisdiction.”
Adorers of the Blood of Christ v. FERC, 897 F.3d 187, 195 (3d
Cir. 2018) (citing Thunder Basin, 510 U.S. at 207). On the
contrary, at issue is FRSA’s kick-out provision, which
effectively allows an employee to start her case over from
scratch in a federal district court, bringing “an original action


                                14
at law or equity for de novo review.” 49 U.S.C. § 20109(d)(3)
(emphasis added).

       Second, Conrail analogizes FRSA to the Sarbanes-
Oxley Act of 2002 (“SOX”), Pub. L. No. 107-204, 116 Stat.
745 (2002). SOX’s anti-retaliation provision is very similar to
FRSA’s. Compare 18 U.S.C. § 1514A(b), with 49 U.S.C.
§ 20109(d). Conrail points to a few district court decisions
dismissing SOX claims “for lack of subject matter jurisdiction
where the complainant failed to file a timely administrative
complaint.” Appellee’s Supp. Letter Br. 5 (citing Delmore v.
McGraw-Hill Cos., Inc., No. 12-CV-1306-JPS, 2013 WL
3717741, at *2 (E.D. Wis. July 12, 2013); Mart v. Forest River,
Inc., 854 F. Supp. 2d 577, 599 (N.D. Ind. 2012); Nieman v.
Nationwide Mut. Ins. Co., 706 F. Supp. 2d 897, 907 (C.D. Ill.
2010); Murray v. TXU Corp., 279 F. Supp. 2d 799, 802 (N.D.
Tex. 2003)).

        But these cases are all merely “drive-by jurisdictional
rulings” that easily “miss the critical differences between true
jurisdictional conditions and nonjurisdictional limitations on
causes of action.” Muchnick, 559 U.S. at 161 (internal
quotation marks and citations omitted); see, e.g., King v. Ind.
Harbor Belt R.R., No. 2:15-CV-245-JD-PRC, 2017 WL
9565363, at *7–9 (N.D. Ind. Feb. 1, 2017) (analyzing and
critiquing the haphazard “jurisdictional” language used by
many district courts in the SOX context). In other words, these
decisions are “less than meticulous” with how they “use[] the
label ‘jurisdictional.’” Kontrick, 540 U.S. at 454–55. They
simply assume that SOX’s time limit implicates courts’ subject
matter jurisdiction, without ever applying Arbaugh’s clear-
statement test. So Conrail’s argument-by-analogy fails.

                               B

        Although the District Court incorrectly dismissed
Guerra’s complaint for lack of jurisdiction, Conrail moved in
the alternative before the District Court for summary judgment
under Rule 56. We “may affirm the District Court’s order on
any basis supported by the record,” United States v. Rivera-
Cruz, 904 F.3d 324, 326 (3d Cir. 2018) (internal quotation
marks and citation omitted), and we will do so if “there is no
genuine issue as to any material fact and … [Conrail] is entitled

                               15
to judgment as a matter of law.” Phila. Marine Trade Ass’n-
Int’l Longshoremen’s Ass’n Pension Fund v. Comm’r, 523
F.3d 140, 143 (3d Cir. 2008) (quoting Fed. R. Civ. P. 56(c)).

       As explained above, FRSA’s statute of limitations is
simply a nonjurisdictional claim-processing rule. But it still has
teeth. See 49 U.S.C. § 20109(d)(2)(A)(ii); Kwai Fun Wong,
135 S. Ct. at 1632 (explaining “statute-of-limitations language,
saying only what every time bar, by definition, must: that after
a certain time a claim is barred”). In other words, “any alleged
unfavorable personnel action occurring more than 180 days
before [Guerra] file[d] an OSHA complaint is not actionable.”
Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1211 (10th Cir.
2018); see Mercier v. U.S. Dep’t of Labor, 850 F.3d 382, 388
(8th Cir. 2017) (“[T]he ALJ correctly found that any adverse
employment action that occurred [more than 180 days before
the complaint was filed] would not be actionable due to the
operation of the statute of limitations.”).6

        So we must determine when Guerra first filed his
complaint with OSHA. He says that his lawyers filed it by first-
class mail on May 10, 2016. But OSHA found that it first
received the complaint on November 28, 2016, when Guerra’s
lawyers contacted OSHA by email. The former date would
have been timely, the latter would not. Guerra tries to escape
this pickle by invoking the common-law mailbox rule.

       In general, statutory filing conditions require “actual,
physical delivery.” Phila. Marine, 523 F.3d at 147. Since this
is doable by mail, we apply the common-law mailbox rule “[t]o
help determine when the pertinent document was physically
delivered.” Id. The gist of this rule is that, “if a letter properly
directed is proved to have been either put into the post-office
or delivered to the postman, it is presumed … that it reached
its destination at the regular time, and was received by the

       6
         Guerra has never argued that equitable tolling would
save his otherwise untimely complaint to OSHA. For that
reason, we need not decide whether the FRSA filing deadline
is a “mandatory” claim-processing rule that must be applied if
raised. See Nutraceutical Corp. v. Lambert, 139 S. Ct. 710,
714–15 (2019). We take no position here on whether such
tolling may be available or appropriate in other similar cases.
                                16
person to whom it was addressed.” Lupyan v. Corinthian Colls.
Inc., 761 F.3d 314, 319 (3d Cir. 2014) (internal quotation
marks and citation omitted).

        The record contains affidavits from Guerra’s lawyers—
Lawrence Katz and Robert Myers. Katz verified that his
normal practice was, after preparing a cover letter and
complaint, to instruct his assistant to send them “by both
certified mail and Fax.” App. 141, 159. He also noted that, on
top of certified mail and fax, these documents “would also
sometimes be transmitted by ordinary first-class mail.” Id. But
Katz and Myers conceded that Guerra’s complaint was
supposedly sent only by first-class mail. This discrepancy, they
say, was “due to a clerical oversight.” Appellant’s Br. 9; see id.
at 21.

        This evidence is not enough to invoke the mailbox
rule’s presumption of delivery. To be sure, “receipt can be
proven circumstantially by introducing evidence of business
practices or office customs related to mail,” at least where the
affiant has “personal knowledge of the procedures in place at
the time of the mailing.” Lupyan, 761 F.3d at 319–20 (internal
quotation marks and citations omitted). But Guerra’s
circumstantial evidence of his lawyers’ typical mailing
procedures is irrelevant because, “due to a clerical oversight,”
those procedures were admittedly not followed. So this case is
not like Lupyan, where the sender produced two affidavits,
both of which showed “personal knowledge of [the sender’s]
customary mailing practices,” and one of which was by the
sender’s employee who “swore that she personally prepared
the Letter and placed it in the outgoing mail bin.” Id. at 320.
Nor is it like Philadelphia Marine, where the sender produced
meaningful, relevant circumstantial evidence such as
testimony of an express acknowledgement of receipt and a
computer printout apparently reflecting metadata of the letter’s
drafting date. See 523 F.3d at 153.

       Here, by contrast, we have only Katz’s and Myers’s
bare assertions—artfully phrased in the passive voice—that
Guerra’s complaint “was transmitted” to OSHA by first-class
mail. App. 148, 157; see App. 153. But neither affiant was
involved in the mailing process. We agree with the District


                               17
Court that these unsupported, second-hand accounts cannot
invoke the mailbox rule’s presumption.7

        Guerra protests that this logic is “blatantly
unreasonable” because it puts “such a high evidentiary burden
on the employee.” Appellant’s Br. 25. We disagree. The person
or entity mailing a complaint, letter, notice, or other document
is in the best position to control whether direct evidence exists
later to confirm that mailing if it becomes an issue. See Lupyan,
761 F.3d at 322 (“In this age of computerized communications
and handheld devices, it is certainly not expecting too much to
require businesses that wish to avoid a material dispute about
the receipt of a letter to use some form of mailing that includes
verifiable receipt when mailing something as important as a
legally mandated [complaint].”). Guerra failed to do that here,
and his circumstantial evidence is too thin to create a genuine
issue of material fact.




       7
         Even if Guerra’s evidence were reliable enough to
merit a presumption of delivery, at most, that presumption
would be “very weak.” Lupyan, 761 F.3d at 319–20 (holding
that only a weak presumption exists “where delivery is sent via
regular mail, for which no receipt, or other proof of delivery,
is generated”). Stacked against OSHA’s denial of receipt, that
presumption would disappear. Id. at 320–21. And the
remaining competing evidence would not create a genuine
issue of material fact about whether OSHA “actual[ly],
physical[ly]” received the complaint that could prevent
summary judgment. See Phila. Marine, 523 F.3d at 147. The
dated cover letter Guerra produced at best suggests nothing
more than that it was drafted (not necessarily sent) before the
administrative deadline. App. 161. But unlike the metadata in
Philadelphia Marine, the bare letter does not reliably establish
the date of drafting. And OSHA’s denial of receipt is
strengthened by its practice of tracking correspondence and its
unavailing search for a trace of Guerra’s letter. See Lupyan,
761 F.3d at 322 (“[I]t may be routine business practice to log
incoming mail. In such cases, the absence of an entry in a mail
log near the time that mail would likely have arrived, can be
used to establish that mail was not received.”).
                               18
                               IV

       FRSA’s 180-day statute of limitations is a
nonjurisdictional claim-processing rule. The District Court
thus incorrectly held that it lacked subject matter jurisdiction.
But Guerra’s claim still fails because he has not produced
enough reliable evidence to invoke the common-law mailbox
rule. So his administrative complaint was untimely and his
claim is barred. We will thus affirm the District Court’s
judgment on other grounds.




                               19
