  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.
                ______________________

               Decided: February 16, 2017
                ______________________

   LAURENCE M. FEDORA, Portland, OR, pro se.

     LINDSEY SCHRECKENGOST, Office of the General Coun-
sel, Merit Systems Protection Board, Washington, DC, for
respondent. Also represented by BRYAN G. POLISUK.

   RUSSELL JAMES UPTON, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for intervenor. Also represented
2                                            FEDORA   v. MSPB



by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
PATRICIA M. MCCARTHY.
               ______________________

       Before DYK, PLAGER, and REYNA, Circuit Judges.
       Opinion for the court filed by Circuit Judge DYK.
      Dissenting opinion filed by Circuit Judge PLAGER.
DYK, Circuit Judge.
     Laurence Fedora petitions for review of a final order
of the Merit Systems Protection Board (“Board”) dismiss-
ing his appeal for lack of jurisdiction. Because Mr. Fedora
failed to timely file his petition for review with this court
within 60 days after the Board issued notice of its final
order, we dismiss his petition for review for lack of juris-
diction. See 5 U.S.C. § 7703(b)(1)(A).
                       BACKGROUND
    Mr. Fedora began his employment with the United
States Postal Service in 1980. He was employed as a Mail
Handler in the Portland Processing and Distribution
Center at the time of his retirement on August 31, 2012.
On April 27, 2013, Mr. Fedora filed an appeal with the
Board alleging that his retirement was involuntary and
amounted to constructive discharge. He claimed that he
was forced to perform work in violation of his medical
restrictions, was harassed, and was improperly threat-
ened with removal and loss of his pension.
     On August 12, 2013, the administrative judge (“AJ”)
found that Mr. Fedora had failed to make a non-frivolous
allegation that his retirement was involuntary and dis-
missed his appeal for lack of jurisdiction. Mr. Fedora then
filed a petition for review by the Board.
    On August 15, 2014, the Board issued a final order af-
firming the initial decision by the AJ. The Board’s final
order stated that Mr. Fedora had “the right to request
FEDORA   v. MSPB                                           3



review of [its] final decision by the United States Court of
Appeals for the Federal Circuit” and that the “court must
receive [his] request for review no later than 60 calendar
days after the date of [the Board’s] order.” App. 36. He
filed a petition for review in this court on October 20,
2014. His petition for review was filed within 60 days of
his receipt of the order (August 19, 2014), 1 but not within
60 days of issuance of the notice (August 15, 2014).
                        DISCUSSION
                              I
    This court has jurisdiction to review final decisions by
the Board pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C.
§ 7703(b)(1)(A). However, this jurisdiction is circum-
scribed by the terms of § 7703(b)(1)(A), which provides:
“[n]otwithstanding any other provision of law, any peti-
tion for review shall be filed within 60 days after the
Board issues notice of the final order or decision of the
Board.” We have previously held that the requirements of
this provision are “statutory, mandatory, [and] jurisdic-
tional,” Monzo v. Dep’t of Transp., 735 F.2d 1335, 1336
(Fed. Cir. 1984), and that “[c]ompliance with the filing
deadline of 5 U.S.C. § 7703(b)(1) is a prerequisite to our
exercise of jurisdiction,” Oja v. Dep’t of the Army, 405 F.3d
1349, 1360 (Fed. Cir. 2005).
    The dissent suggests that these cases are no longer
good law because the Supreme Court in recent years has
recognized that not all statutory time limits are properly
characterized as jurisdictional. We think that those cases
do not undermine our holdings that the appeal period of
§ 7703(b)(1) is jurisdictional. Many of the Supreme
Court’s cases cited by the dissent hold generally that


    1  Since 60 days from August 19, 2014 would end on
October 18, 2014, a Saturday, the period would run until
Monday, October 20, 2014. See Fed. R. App. P. 26(a)(1).
4                                             FEDORA   v. MSPB



limitations periods (“claims-processing rules”) are not
jurisdictional. See, e.g., United States v. Kwai Fun Wong,
135 S. Ct. 1625, 1638 (2015) (holding that the time limits
for filing a claim against the United States under the
Federal Tort Claims Act “are nonjurisdictional and sub-
ject to equitable tolling”); Irwin v. Dep’t of Veterans Af-
fairs, 498 U.S. 89, 95–96 (1990) (holding that there is a
rebuttable presumption that the statutory time limit for
filing a Title VII suit against the United States after final
agency action is subject to equitable tolling). Those cases
do not concern appeal periods. Appeal periods to Article
III courts, such as the period in § 7703(b)(1), are con-
trolled by the Court’s decision in Bowles v. Russell, 551
U.S. 205 (2007).
    In Bowles, the Supreme Court reaffirmed that “the
taking of an appeal within the prescribed time is ‘manda-
tory and jurisdictional.’” 551 U.S. at 209 (quoting Griggs
v. Provident Consumer Disc. Co., 459 U.S. 56, 61 (1982)).
The Court recognized that “several . . . recent decisions
have undertaken to clarify the distinction between claims-
processing rules and jurisdictional rules, [but concluded
that] none of them calls into question [the Court’s]
longstanding treatment of statutory time limits for taking
an appeal as jurisdictional.” Id. at 210. Accordingly, the
Court held that compliance with the appeal period pre-
scribed in 28 U.S.C. § 2107(c) is jurisdictional and not
subject to equitable tolling or the unique circumstances
doctrine. Id. at 212–14.
     The Supreme Court’s subsequent opinion in Reed
Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010), explicitly
recognized the distinction between statutory time limits
for filing appeals and time limits or other requirements in
non-appeal contexts. There, the Court stated:
    In Bowles, we considered 28 U.S.C. § 2107, which
    requires parties in a civil action to file a notice of
    appeal within 30 days . . . . After analyzing
FEDORA   v. MSPB                                            5



    § 2107’s specific language and this Court’s histori-
    cal treatment of the type of limitation § 2107 im-
    poses (i.e., statutory deadlines for filing appeals),
    we concluded that Congress had ranked the statu-
    tory condition as jurisdictional. . . . Bowles em-
    phasized that this Court had long treated such
    conditions as jurisdictional, including in statutes
    other than § 2107, and specifically in statutes that
    predated the creation of the courts of appeals.
Id. at 168 (citations omitted).
    Relying on Henderson v. Shinseki, 562 U.S. 428
(2011), which concerned the time limit for filings appeals
to the Court of Appeals for Veterans Claims, an Article I
court, the dissent suggests that Bowles does not govern
“judicial review of administrative decisions.” Id. at 437. In
Henderson, the Court held that the appeal period was not
jurisdictional because of the “unique administrative
scheme” that is “unusually protective of claimants.” Id. at
437–38 (internal quotation marks omitted). To be sure,
Henderson initially distinguished Bowles on the ground
that it “concerned an appeal from one court to another
court [and t]he ‘century’s worth of precedent and practice
in American courts’ on which Bowles relied involved
appeals of that type.” Id. at 436 (quoting Bowles, 551 U.S.
at 209–10). But the Court went on to discuss at length
judicial review of administrative agencies, citing to Stone
v. INS, 514 U.S. 386, 405 (1995), which held that the
deadline for seeking judicial review of final removal
orders by the Board of Immigration Appeals is jurisdic-
tional. The Henderson Court also noted that lower courts
uniformly treat the time limit for review of certain final
agency decisions under the Hobbs Act as jurisdictional.
Henderson, 562 U.S. at 437. The Court eventually con-
cluded that none of its prior cases required that the
appeal period from the Veterans Administration to an
Article I court be jurisdictional since “[a]ll of those cases
involved review by Article III courts.” Id. (emphasis add-
6                                            FEDORA   v. MSPB



ed). The Henderson Court thus made clear that appeal
periods to Article III courts are jurisdictional.
    Since this case concerns the timeliness of Fedora’s ap-
peal to this court, an Article III court, Bowles—not Hen-
derson—is the governing authority. Accordingly, this
court lacks jurisdiction over petitions for review that fail
to comply with the requirements of § 7703(b)(1)(A).
    As the Supreme Court also made clear in Bowles, the
jurisdictional nature of the timeliness requirement pre-
cludes equitable exceptions. 551 U.S. at 213–14. Our own
prior decisions have likewise held that § 7703(b)(1) is not
subject to equitable tolling. Oja, 405 F.3d at 1357–60; see
also Marandola v. United States, 518 F.3d 913, 914–15
(Fed. Cir. 2008) (holding that the filing requirements of
28 U.S.C. § 2107(b), Fed. R. App. P. 4(a)(1)(B), and R. Fed.
Cl. 58.1 are “mandatory and jurisdictional” and cannot be
waived or equitably tolled).
                             II
    A prior version of § 7703(b)(1) provided that “any peti-
tion for review must be filed within 60 days after the date
the petitioner received notice of the final order or decision
of the Board.” See 5 U.S.C. § 7703(b)(1) (1998) (emphasis
added). But, in 2012, this provision was amended to
require “fil[ing] within 60 days after the Board issues
notice of the final order or decision of the Board.” Whistle-
blower Protection Enhancement Act of 2012, Pub. L. No.
112-199, § 108(a), 126 Stat. 1465, 1469 (2012) (emphasis
added). By its plain terms, § 7703(b)(1)(A) as amended
begins the 60-day clock on the date the Board issues
notice of its final order, not the date the petitioner re-
ceives notice of that decision. Here, notice of the final
decision was issued on August 15, 2014. This court did not
receive the petition until October 20, 2014, 6 days after
the 60-day period had run.
FEDORA   v. MSPB                                           7



                             III
     Mr. Fedora thus failed to timely file his petition for
review within the 60-day period required by
§ 7703(b)(1)(A). Under § 7703(b)(1)(A) Mr. Fedora was
required to file his petition for review “within 60 days
after” August 15, 2014—i.e., by October 14, 2014. Since
filing requires actual receipt by the court, not just timely
mailing, see Pinat v. Office of Pers. Mgmt., 931 F.2d 1544,
1546 (Fed. Cir. 1991); Fed. R. App. P. 25(a)(2)(A), Mr.
Fedora missed the October 14, 2014 filing deadline. 2
     Mr. Fedora points out that the Board’s final order di-
rected him to this court’s “Guide for Pro Se Petitioners
and Appellants,” which incorrectly instructed that a
petitioner “may file a petition for review in this court
within 60 days of receipt of the Board’s decision.” App. 5.
Mr. Fedora claims to have relied on this guidance in filing
his petition for review. But as previously stated, we do not
have the authority to equitably toll the filing require-
ments of § 7703(b)(1)(A). See Bowles, 551 U.S. at 213–14;
Oja, 405 F.3d at 1357–60. Moreover, the Board’s final
order gave notice to Mr. Fedora regarding his rights for
further review and specifically stated that the 60-day
period would begin on the date the final order was issued.
It imparted the importance of the filing deadline, caution-
ing to “be very careful to file on time” since the “court
must receive [the] request for review no later than 60
calendar days after the date of [the] order.” App. 36 (citing
5 U.S.C. § 7703(b)(1)(A) and noting the revision effective
December 27, 2012). Unfortunately for Mr. Fedora, he
failed to follow these instructions and missed the October
14, 2014 deadline.



    2   The fact that Mr. Fedora mailed his petition on
October 11, 2014, within the 60-day period, is irrelevant
since the court did not receive it until October 20, 2014.
8                           FEDORA   v. MSPB



                DISMISSED
                  COSTS
    No costs.
  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.
    In the case before us, the majority, having labelled the
time bar “mandatory and jurisdictional,” proceeded to rule
that “this court lacks jurisdiction over petitions for review
that fail to comply with the [statutory deadline for filing].”
Because that conclusion does not do justice to the com-
plexities of the issue Mr. Fedora presents, is inconsistent
with current Supreme Court guidance, and in my view
probably results in a wrong conclusion that is based
neither on good law nor fundamental fairness, I respect-
fully dissent.
2                                            FEDORA   v. MSPB



                             1.
    Mr. Fedora asks this court to review a decision of the
Merit Systems Protection Board (“MSPB” or “Board”). In
that decision, the MSPB affirmed a determination by its
administrative judge that Mr. Fedora had failed to state a
Board-reviewable claim of involuntary, i.e., forced, re-
tirement from the Postal Service, and that therefore the
MSPB could not help him. Upon receipt of the Board’s
order, Mr. Fedora’s attempt to appeal to this court for
review of that decision ran into two procedural hurdles.
First, by fully following the official printed instructions,
provided by this appellate court, regarding filing dead-
lines, he missed the statutory deadline for filing his
petition for review by several days—the instructions were
in error. Second, by using the Postal Service to send in
his petition as our procedures authorize, his former
employer, in a bit of irony, apparently delivered his
petition to the court in Washington after an unexplained
delay—it was stamped received by this court nine days
after it was mailed from Portland. As a result, his appeal
petition was considered received six days late. The ques-
tion is whether there is anything that can be done about
the fact of his late filing, which would otherwise preclude
his appeal.
    Citing a 1984 decision of this court, Monzo v. Depart-
ment of Transportation, 735 F.2d 1335 (Fed. Cir. 1984),
the majority decides this case by invoking the old shibbo-
leth that the time bar is “mandatory [and] jurisdictional.”
As the Supreme Court itself has recently emphasized, see
the discussion below, the term “jurisdiction” is one of the
most misused and ambiguous terms in the legal vocabu-
lary.
    When used correctly, the term “jurisdiction,” for ex-
ample when used in the phrase “subject-matter jurisdic-
tion,” refers to a well-understood characteristic of judicial
process: the authority of a court to exercise judicial power
FEDORA   v. MSPB                                          3



over a case before it. To illustrate: by statute this court
has subject-matter jurisdiction to review final decisions
rendered by the Board. See 28 U.S.C. § 1295(a)(9) (“The
United States Court of Appeals for the Federal Circuit
shall have exclusive jurisdiction—(9) of an appeal from a
final order or final decision of the Merit Systems Protec-
tion Board, pursuant to sections 7703(b)(1) and 7703(d) of
title 5 . . . .”). 1 Indeed, our subject-matter jurisdiction
over this class of decisions is exclusive—no other court of
appeals may hear and decide these appeals.
    When used in other contexts, the term “jurisdiction”
can be used as a conclusory label to support a result, often
with little if any analysis. An example is the lead case the
majority cites as authority for the outcome in this case.
Monzo, like this case, involved a petition for review of an
MSPB decision adverse to the petitioner. The statute at
issue provided that any petition for review “must be filed
within 30 days after the date the petitioner received
notice of the final order or decision of the Board.” 5
U.S.C. § 7703(b)(1) (1982). The evidence in the case
indicated that petitioner received notice of the decision on
October 11, 1983, and his attorney received it on October
14. The petition for review was received by the court on
November 14. The court held that the date the attorney
received notice was irrelevant; the statute refers only to
the petitioner. The court in a one paragraph Order an-
nounced that “[t]he 30-day period for appeal is statutory,
mandatory, jurisdictional, and bars the claim here.” 735
F.2d at 1336.



   1     Another necessary ingredient for the exercise of
judicial power in a given case is personal jurisdiction over
the parties. This involves quite different considerations
from those affecting subject-matter jurisdiction, and is not
at issue in this case. See, e.g., Daimler AG v. Bauman,
134 S. Ct. 746 (2014).
4                                             FEDORA   v. MSPB



    The only explanation offered for that conclusion was a
cite to Ramos v. United States, 683 F.2d 396 (Ct. Cl.
1982), in which the Claims Court held that receipt by
petitioner’s wife of the decision of the Board constituted
notice to petitioner within the meaning of the statute.
The Ramos majority emphasized that “statutes of limita-
tions” are a condition on the sovereign’s consent to suit,
and must be strictly construed. The concurring judge
suggested he would not construe the statute so strictly if
given “any reasonable handle for doing so,” but since Mr.
Ramos did not offer one, he concluded his only alternative
was “a weary shrug and a turn aside to more agreeable
objects of contemplation.” Id. at 399.
    The second case on which the majority bases its result
here is the more recent case of Oja v. Department of the
Army, 405 F.3d 1349 (Fed. Cir. 2005). Mr. Oja sought
enforcement by the MSPB of a settlement agreement he
had with the Army Corps of Engineers, the outcome of a
contentious dispute involving his performance and subse-
quent removal from his office in the Corps. The Federal
Circuit’s opinion is considerably more detailed than
Monzo; as the opinion noted, the case came to this court
by way of “a tangled procedural path—first to the MSPB,
then to the EEOC, then to the district court, and now to
this court.” Id. at 1354.
    The opinion discusses at length a number of issues
raised by this ‘tangled procedural path,’ but for purposes
of our case here, the only relevant point is that the Oja
majority concluded that, “even if . . . the filing limit of
section 7703(b)(2) [is] subject to equitable tolling, an issue
we need not decide, [that] . . . does not likewise affect
section 7703(b)(1) and does not change this court’s bind-
ing holding in Monzo that section 7703(b)(1) is not subject
to equitable tolling.” Id. at 1361. The court then dis-
missed the appeal for “lack of jurisdiction.” Id. (I note in
passing that Oja was decided before any of the Supreme
Court’s later opinions discussed below.)
FEDORA   v. MSPB                                          5



    Oja’s reliance on Monzo for the proposition that the
statute at issue is not “subject to equitable tolling” is
curious, since the words “equitable tolling” do not appear
in the Monzo opinion; its legal point was limited to the
statement that the statute was “mandatory [and] jurisdic-
tional.” Which raises the interesting question—what is
the relationship between jurisdiction and equitable toll-
ing?
                             2.
    The answer to that question is that these are two sep-
arate and distinct legal issues. Subject-matter jurisdic-
tion is granted by Congress to courts it creates under
Article III of the Constitution, pursuant to Congress’s
Constitutional powers. 2      Subject-matter jurisdiction
describes the kinds of disputes a particular court is em-
powered to decide. Constitutionally, if a court lacks
subject-matter jurisdiction over a case, the court is with-
out power to grant any remedy, no matter how warranted;
that necessarily includes equitable tolling of a statutory
deadline. 3



   2     This statement is strictly true only for the lower
federal courts, the district and appellate courts created by
congressional act. With the exception of the Supreme
Court, federal courts, both trial and appeal, are depend-
ent on congressional authorization for their structure and
subject-matter jurisdiction. The Supreme Court, estab-
lished by the Constitution itself, has assigned to it by the
Constitution certain exclusive subject-matter areas. See
generally U.S. Const. art. III.
    3    In the felicitous phrasing of Justice Breyer, con-
curring in Steel Co. v. Citizens for a Better Environment,
523 U.S. 83, 111 (1998), determining a court’s subject-
matter jurisdiction at the outset of a case “helps better to
restrict the use of the federal courts to those adversarial
6                                            FEDORA   v. MSPB



    Assuming, however, that a court has subject-matter
jurisdiction over the cause, the question of whether a
statutory condition, such as a time bar, is “jurisdictional,”
and thus determinative of eligibility for equitable tolling
of an otherwise apparently mandatory deadline, is a
question the Supreme Court’s cases have wrestled with in
the last decade or so. And this is a question on which I
find the majority demonstrates insufficient understanding
of these recent cases from the Supreme Court.
    As the comment from the Ramos case, supra, indicat-
ed, at an earlier time the general view espoused by the
Supreme Court among others was that if Congress im-
posed a statutory deadline for seeking judicial relief,
Congress intended that deadline to be strictly enforced.
Hence the almost religious repetition in the early cases of
the phrase about “mandatory and jurisdictional.”
    “Jurisdictional” in that context did not mean that the
court somehow lost subject-matter jurisdiction, i.e., the
authority to decide the kind of dispute at issue. Instead,
it was a shorthand way of saying that the court had had
its power to adjudicate this particular case withdrawn,
because Congress intended that the adjudicative power be
withdrawn when the time-filing requirement was not met.
That was then; then came Irwin.
    In 1990, Irwin v. Department of Veterans Affairs 4
turned the law of “mandatory and jurisdictional” and its
concomitant equitable tolling doctrine on its head, or so it
was thought. Shirley Irwin was fired from his job with
the Veterans Administration. Pursuant to the Civil
Rights Act of 1964 5 (“the Act”), he first sought help from



disputes that Article III defines as the federal judiciary’s
business.”
    4  498 U.S. 89 (1990).
    5  Pub. L. 88-352, 78 Stat. 241 (1964), as amended.
FEDORA   v. MSPB                                           7



the Equal Employment Opportunity Commission
(“EEOC”), alleging an unlawful discharge based on race
and disability. After getting a letter from the EEOC
affirming his dismissal, he filed a complaint in the district
court, as provided by the Act. However, his complaint
was not filed within 30 days of the EEOC’s decision,
which was the time deadline stated in the Act.
    At the Government’s urging, the district court held it
was without jurisdiction, a holding affirmed by the Fifth
Circuit Court of Appeals. Id. at 91. The court of appeals
reasoned that the 30-day period operated as an absolute
jurisdictional limit, and that the district court could not
excuse Irwin’s late filing because federal courts lacked
“jurisdiction” over his untimely claim. Id.
     The Supreme Court reversed. The Court first recited,
with due citation, the traditional doctrine that congres-
sional waivers of sovereign immunity (the doctrine, inher-
ited from the Kings of England, that the sovereign, here
the Federal Government, generally is immune from suit
for its wrongful acts) must be strictly construed, and that
a waiver of sovereign immunity cannot be implied but
must be unequivocally expressed.
    But then the Court announced that, once Congress
has made such a waiver—presumably by granting federal
courts subject-matter jurisdiction over a particular class
of cases against the Government—the question of equita-
ble tolling applicable to statutory time bars in a given
case would be decided “in the same way that it is applica-
ble to private suits . . . . We therefore hold that the same
rebuttable presumption of equitable tolling applicable to
suits against private defendants should also apply to suits
against the United States.” Id. at 95.
    Irwin was thus understood to say that once Congress
authorized a suit against the Federal Government in a
particular subject-matter area, the statutory conditions
placed on that suit in the form of a time bar in which suit
8                                             FEDORA   v. MSPB



must be filed were to be presumed to be subject to equita-
ble relief for the same reasons they would be in private
litigation. Thus, unless Congress specifically indicated
otherwise, such time limits were no longer to be consid-
ered “jurisdictional,” that is, intended by Congress to be
automatic and unwaivable withdrawals of a court’s power
to adjudicate.
     Two issues have emerged in the cases, discussed next,
following Irwin—first, has Congress expressed a clear
intention to make a stated condition in a suit against the
Government—such as the time within which a plaintiff
must file the suit in court—a bar to a court’s exercise of
power over a particular case, i.e., a “jurisdictional” bar? If
not, the Irwin presumption is not rebutted, and the stated
condition or bar is subject to equitable relief.
     Second, assuming the condition is one subject to equi-
table relief, is such relief available for a particular plain-
tiff in the particular case? That depends on the particular
facts. For example, in the Irwin case itself, this reversal
of long-standing doctrine dealing with ‘jurisdiction’ did
not help Mr. Irwin. The Court explained that federal
courts “have typically extended equitable relief only
sparingly,” and gave illustrations: a plaintiff who diligent-
ly pursued his remedies by filing within the time limit,
but filed a defective pleading; and a complainant who “has
been induced or tricked by his adversary’s misconduct
into allowing the filing deadline to pass.” Id. at 90. 6
    Concluding that Mr. Irwin’s failure to file timely be-
cause his lawyer was away was “at best a garden variety
claim of excusable neglect,” it was not entitled to equita-




    6   See Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998)
(en banc) for a discussion of factors entitling a petitioner
to equitable tolling.
FEDORA   v. MSPB                                          9



ble intervention. Id. at 96. The judgment of the court of
appeals was affirmed. Id.
    Since the Irwin decision, the Supreme Court, as well
as the lower courts, have wrestled primarily with the first
of these two questions: in a given statutory setting, has
Congress somehow expressed a clear enough intention to
make the failure to comply with a condition to judicial
relief against the Government’s conduct, such as a filing
deadline, an absolute bar? To put it in terms applicable
here, has the “rebuttable presumption of equitable tolling”
of the time bar in this case been rebutted by a clear
congressional expression of its intention to the contrary?
    In reality, Congress is not known to address this issue
in the specific terms of jurisdictional bar vs. equitable
relief. The resolution of the issue has become one of
construing the phrases in which the condition, the time
bar for example, is expressed. This may be seen in such
indicators as where in a complex of statutory provisions
the bar appears vis-à-vis where the court’s basic subject-
matter authorization appears, how the particular bar is
stated, and even how often a court has addressed the
issue without congressional reaction.
    The Supreme Court’s recent cases, despite Irwin’s
stated desire to no longer decide these cases in an ad hoc
manner but rather to “adopt a more general rule to gov-
ern the applicability of equitable tolling suits against the
Government,” id. at 95, have flipped back and forth based
on the various factors the particular opinion seemed to
consider relevant.
                             3.
    The question of jurisdictional vs. nonjurisdictional
statutory conditions to judicial relief has come before the
Supreme Court in both time bar and other statutory
contexts. Arbaugh v. Y&H Corp., 546 U.S. 500 (2006)
raised a somewhat different bar, in that the condition at
10                                           FEDORA   v. MSPB



issue was not a time-bar regarding filing of an appeal, but
rather a condition on whether the statute at issue was
applicable to the defendant employer. The case arose
under Title VII of the Civil Rights Act of 1964 (the “Act”).
The Act required that an employer subject to the Act have
15 or more employees. The defendant had not raised the
issue of whether the employer had the requisite number
of employees—and when later raised there was a disputed
question regarding the issue—until the case was on
appeal. If the issue was simply an element in the plain-
tiff’s claim for relief, the employer’s attempt to raise the
issue as a defense at the appellate stages of the case
would be barred. See Fed. R. Civ. Proc. 12(h)(2) (an
objection under Rule 12(b)(6) may not be asserted post-
trial). On the other hand, if the numerosity requirement
went to the court’s real “jurisdiction,” that would be an
issue that is not too late to raise on appeal, see Fed. R.
Civ. P. 12(h)(3), and indeed since it went to the court’s
power to decide the case, it is one the court must attend to
even if the parties do not. Arbaugh, 546 U.S. at 514.
    The Court recapped the newer thinking about juris-
diction. Justice Ginsburg, writing for a unanimous court,
said: “‘Jurisdiction,’ this Court has observed, ‘is a word of
many, too many meanings.’ This Court, no less than
other courts, has sometimes been profligate in its use of
the term. For example, this Court and others have occa-
sionally described a nonextendable time limit as ‘manda-
tory and jurisdictional.’ But in recent decisions, we have
clarified that time prescriptions, however emphatic, ‘are
not properly typed “jurisdictional.”’” Id. at 510 (citations
omitted).
    The Court described contrary decisions as “unrefined
dispositions,” “‘drive-by jurisdictional rulings’” that
“should be accorded ‘no precedential effect’ on the ques-
tion whether the federal court had authority to adjudicate
the claim in suit.” Id. at 511 (quoting Steel Co., 523 U.S.
at 91). The Court acknowledged that Congress could have
FEDORA   v. MSPB                                         11



made the employee-numerosity requirement “jurisdic-
tional,” but noted that “the 15-employee threshold ap-
pears in a separate provision that ‘does not speak in
jurisdictional terms or refer in any way to the jurisdiction
of the district courts.’” Id. at 515 (citation omitted). The
Court held the numerosity provision to be an element of a
plaintiff’s claim for relief, not a jurisdictional issue.
     In Bowles v. Russell, 551 U.S. 205 (2007), decided but
a year after Arbaugh, the Court came to the opposite
conclusion. Bowles arose in a murder case, involving the
late filing of an appeal from an adverse district court
decision in a habeas appeal. An attempt had been made
to extend the defendant’s time for appeal pursuant to
court rule, but the filing did not comply with the time
limit provided in the statute on which the rule was based.
The court of appeals held that it lacked jurisdiction to
hear the case, holding that the provision allowing a
district court to extend the filing period for fourteen days
for reopening of a case was “jurisdictional.”
     The Supreme Court affirmed, in an opinion that
seemed to refute Irwin and Arbaugh. Justice Thomas,
writing for a five Justice majority, stated that, “Although
several of our recent decisions have undertaken to clarify
the distinction between claims-processing rules and
jurisdictional rules, none of them calls into question our
longstanding treatment of statutory time limits for taking
an appeal as jurisdictional.” Id. at 210. The Irwin pre-
sumption was not mentioned or considered; Arbaugh was
distinguished: “Nor do[es] Arbaugh . . . aid petitioner. In
Arbaugh, the statutory limitation was an employee-
numerosity requirement, not a time limit.” Id. at 211
(citations omitted). The court of appeals was affirmed.
    The stark contrast between the approach taken in Ar-
baugh and that in Bowles did not remain unaddressed
very long. Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154
(2010), decided the following year, turned on a somewhat
12                                           FEDORA   v. MSPB



arcane issue—whether a provision of the Copyright Act
regarding registration precluded appeal in a case arising
from claims of infringement of unregistered works. In
terms relevant here, the issue was whether the require-
ments of the statute were to be treated as “jurisdictional,”
and thus a bar to the appeal. The Court stated the ques-
tion as “whether § 411(a) ‘clearly states’ that its registra-
tion requirement is ‘jurisdictional.’” Id. at 163 (quoting
Arbaugh, 559 U.S. at 515). The Court answered, “It does
not.” Id.
    The Court then explained its decision in Bowles:
“Bowles did not hold that any statutory condition devoid
of an express jurisdictional label should be treated as
jurisdictional simply because courts have long treated it
as such. Nor did it hold that all statutory conditions
imposing a time limit should be considered jurisdictional.
Rather, Bowles stands for the proposition that context,
including this Court’s interpretation of similar provisions
in many years past, is relevant to whether a statute ranks
a requirement as jurisdictional.” Id. at 167–68. The court
of appeals was reversed; the statutory provision was held
nonjurisdictional. It is worth noting that Reed Elsevier,
with its explanation of Bowles, was written by the same
justice who authored Bowles.
    In an opinion concurring in part, Justice Ginsburg,
the authoring Justice in Arbaugh, offered a further expla-
nation: “Bowles and Arbaugh can be reconciled without
distorting either decision, however, on the ground that
Bowles rel[ied] on a long line of this Court’s decisions left
undisturbed by Congress.” Id. at 173.
    Subsequently, in Henderson v. Shinseki, 562 U.S. 428
(2011), the Court addressed directly a statutory time bar
on review from this court. The case involved an appeal
from the Board of Veterans Appeals to the Court of Ap-
peals for Veterans Affairs. To appeal to the Veterans
Court, the appellant must file a notice of appeal with the
FEDORA   v. MSPB                                         13



court within 120 days after the date when the Board’s
final decision is mailed. 38 U.S.C. § 7266(a). As the
Supreme Court saw it, “[t]he case presents the question
whether a veteran’s failure to file a notice of appeal
within the 120-day period should be regarded as having
‘jurisdictional’ consequences.” Id. at 431. This court had
held that it should be so regarded; the Supreme Court
replied: “We hold that it should not.” Id.
     The Court explained: “The question here . . . is wheth-
er Congress mandated that the 120-day deadline be
‘jurisdictional.’ In Arbaugh, we applied a ‘readily admin-
istrable bright line’ rule for deciding such questions.
Under Arbaugh, we look to see if there is any ‘clear’
indication that Congress wanted the rule to be ‘jurisdic-
tional.’ This approach is suited to capture Congress’
likely intent and also provides helpful guidance for courts
and litigants, who will be ‘duly instructed’ regarding a
rule’s nature.” Id. at 435–36 (citations omitted).
    The Court then took note of the Government’s argu-
ment that Bowles meant that all statutory deadlines for
taking appeals in civil cases are jurisdictional, and since
this is a civil case, the 120-day rule is jurisdictional.
Replied the Court: “We reject the major premise of this
syllogism. Bowles did not hold categorically that every
deadline for seeking review in civil litigation is jurisdic-
tional. Instead, Bowles concerned an appeal from one
court to another court. The ‘century’s worth of precedent
and practice in American courts’ on which Bowles relied
involved appeals of that type.” Id. at 436.
    In response to the Government’s argument that
Bowles’ reasoning nevertheless should be applied to
judicial review of administrative decisions generally, the
Court rejected the comparison to mine-run Hobbs Act
cases, instead analogizing veterans’ cases to Social Secu-
rity disability benefits cases, both involving special ad-
14                                          FEDORA   v. MSPB



ministrative procedures and both being ‘unusually protec-
tive’ to claimants.
    Finally, the Court noted that the deadline-stating
provision does not speak in jurisdictional terms or refer in
any way to the jurisdiction of the Veterans Court. It
contrasted the deadline-stating provision for appeals from
the Veterans Court to this court, which is cast in the same
language as the provision for appeals from the district
courts to the courts of appeal, the latter having long been
held ‘jurisdictional.’ The Court stated that if Congress
intended the same result, it could have stated the provi-
sion in the same terms. The Court concluded that “we do
not find any clear indication that the 120-day limit was
intended to carry the harsh consequences that accompany
the jurisdiction tag.” Id. at 441. The case was remanded
to the Federal Circuit to determine whether it falls within
any exception that calls for equitable tolling. 7
    An even more recent Supreme Court decision, again
dealing with a time bar, must be added to the mix. In
United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015),
the issue was whether the statute for filing a claim under
the Federal Tort Claims Act, 28 U.S.C. § 2401(b), was
subject to tolling. The statute had two specified dead-
lines, one for notifying the appropriate federal agency of
the claim—a two year time limit—and the other—a six
month limit—for filing the claim in court if the agency
made a negative decision on the claim.




     7  On remand, this court vacated the Veterans
Court’s decision and remanded. The Veterans Court
appears to have dismissed for lack of jurisdiction because
Mr. Henderson had died while his appeal was pending
before the Supreme Court and no one sought to be substi-
tuted before the Veterans Court.
FEDORA   v. MSPB                                         15



     Two cases were consolidated for Supreme Court re-
view; in each of the cases the claimant missed one of the
deadlines. The provisions had one thing in common—the
statute was written to say that a tort claim against the
United States “shall be forever barred” unless the dead-
lines are complied with. The Government argued that the
time limits are not subject to tolling as they clearly are
intended to be jurisdictional restrictions. However, on
appeal to the Ninth Circuit, the court of appeals held that
tolling was available in both cases.
    In a split decision, the Supreme Court affirmed the
court of appeals. Unlike all of the cases since Irwin
reviewed above, this time the Court began with a discus-
sion of Irwin. Irwin, said the Court, “sets out the frame-
work for deciding ‘the applicability of equitable tolling in
suits against the Government.’ In Irwin, we recognized
that time bars in suits between private parties are pre-
sumptively subject to equitable tolling. That means a
court usually may pause the running of a limitations
statute in private litigation when a party ‘has pursued his
rights diligently but some extraordinary circumstance’
prevents him from meeting a deadline. We held in Irwin
that ‘the same rebuttable presumption of equitable toll-
ing’ should also apply to suits brought against the United
States under a statute waiving sovereign immunity.” Id.
at 1630–31 (citations omitted).
      The Court added, “the Government must clear a high
bar to establish that a statute of limitations is jurisdic-
tional. In recent years, we have repeatedly held that
procedural rules, including time bars, cabin a court’s
power only if Congress has ‘clearly state[d]’ as much.
. . . And in applying that clear statement rule, we have
made plain that most time bars are nonjurisdictional.
Time and again, we have described filing deadlines as
‘quintessentially claim-processing rules,’ which ‘seek to
promote the orderly progress of litigation,’ but do not
deprive a court of authority to hear a case. [citing, inter
16                                          FEDORA   v. MSPB



alia, Henderson v. Shinseki] . . . 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.” Id. at 1632–33 (citations
omitted).
     After exhaustively reviewing other time bars, includ-
ing those with phrases like “shall be forever barred,” the
Court concluded that the time bar applicable to these
cases contained simply “mundane statute-of-limitations
language,” and that “neither this Court nor any other has
accorded those words talismanic power to render time
bars jurisdictional.” Id. at 1634. In effect, because Irwin
said so. There was a strong dissent, which argued that
“[t]he statutory text, its historical roots, and more than a
century of precedents show that this absolute bar is not
subject to equitable tolling.” Id. at 1639.
                             4.
    I appreciate that this court’s precedents, starting with
Monzo back in 1984, support the outcome reached by the
majority, and provide an easy pathway to the conclusion
they reach. I also appreciate that an uncritical reading of
the Supreme Court’s opinion in Bowles supports that
conclusion. But there is now a more nuanced understand-
ing of the Bowles opinion, by the same authoring Justice
writing in Reed Elsevier: “[n]or did [Bowles] hold that all
statutory conditions imposing a time limit should be
considered jurisdictional.” 559 U.S. at 167. Add to this
the Court’s most recent case, in which a time bar desig-
nated by Congress as one in which a non-complying suit
“shall be forever barred.” The Court held it not a bar to
equitable tolling. Kwai Fun Wong, 135 S. Ct. at 1634.
    In my view, the totality of the Supreme Court’s recent
cases add up to a significant rethinking of the “jurisdic-
tional” bar to equitable tolling. Attempts to distinguish
among the Court’s opinions, on the basis that only some
dealt with time bars while others required that different
FEDORA   v. MSPB                                         17



statutory conditions be met, is misguided. The basic issue
is the same, and the Court itself did not make such back-
ground differences the controlling distinctions.
     Rather, the Court examined the statutory context,
looking for a clear indication that Congress intended that
the Irwin presumption of the availability of equitable
tolling should be considered rebutted. That is why in
addressing the jurisdictional question, among other
things, the Court asked about whether the statutory
requirement “speak[s] in jurisdictional terms,” Arbaugh,
546 U.S. at 515; whether the cases at issue are long-
standing and left undisturbed by Congress, see the con-
curring opinion in Reed Elsevier, 559 U.S. at 173; and
whether the case involves a time bar from one court to
another (more likely to be seen as “jurisdictional”) or
whether it is from an administrative agency to a court,
the latter possibly reflecting a program “‘unusually pro-
tective’ of claimants,” Henderson, 562 U.S. at 436 (citation
omitted).
    Given this backdrop, how should the case before this
court be decided? To do justice to Mr. Fedora’s case, at a
minimum the time bar has to be examined to determine
whether Congress has, in some clear manner, rebutted
the presumption of the availability of equitable tolling.
The burden has been placed on the Government to con-
vince the court that Congress intended that the rebutta-
ble presumption is rebutted.
    Finding congressional intent to rebut the presumption
simply because the time bar is stated in a statute is no
longer appropriate. Even the author of Bowles seems to
have retreated from that proposition. What additional
considerations will persuade that the presumption has or
has not been rebutted depends on the context of a particu-
lar statute. Taking into consideration the criteria sug-
gested in the Court’s opinions, as outlined above, Mr.
Fedora presents a substantial case for the availability of
18                                          FEDORA   v. MSPB



equitable relief—nothing in § 7703(b)(1)(A) speaks in
jurisdictional terms, there is no long-standing line of
decisions on MSPB appeals to this court that suggests
congressional acquiescence, and this is an appeal from an
administrative agency to a court, with considerable sup-
port for the proposition that MSPB proceedings are in-
tended to be specially protective of claimants. 8
    But we should not rush to judgment. The case came
to us as a pro se filing with only an informal brief of
petitioner, and no oral argument. Neither the Govern-
ment in its Respondent’s brief nor the Intervenor, USPS,
in its brief did more than repeat the “mandatory and
jurisdictional” chant in support of their argument that we
are without “jurisdiction” over Mr. Fedora’s appeal
because his filing was untimely.
    Because of the significance of this issue, and because
our court’s precedents have not recognized the current
state of Supreme Court law on the subject, a thorough
examination with competent opposing counsel is called
for. The case should be rebriefed before an en banc court
on the timeliness filing question, with assigned counsel
for Mr. Fedora, and an opportunity for the Government
and Intervenor to address the question of whether there is
any basis for a finding that the presumption under Irwin
of equitable tolling regarding the bar in § 7703(b)(1)(A)
has been rebutted.
    The Government, in the words of the Supreme Court,
“must clear a high bar to establish that a statute of limi-
tations is jurisdictional,” Kwai Fun Wong, 135 S. Ct. at
1632. Because the petitioner was pro se, the Government



     8  See, e.g., 5 U.S.C. § 2301(b)(8) (under governing
merit system principles, employees must be “protected
against arbitrary action, personal favoritism, or coercion
for partisan purposes”).
FEDORA   v. MSPB                                         19



may not have appreciated the situation in which this case
puts it. I respect the argument that the Government has
had its day in court, and obviously failed to make its case,
but in the interest of fairness I favor giving the Govern-
ment an opportunity to attempt to clear that high bar. A
well-argued case, with competent counsel on both sides,
will help this court come to a correct conclusion regarding
the law of the case, a conclusion giving full attention and
respect to the opinions of the Supreme Court.
    Accordingly, I respectfully dissent from any contrary
disposition of this appeal.
