                                                                   FILED
                                                       United States Court of Appeals
                                    PUBLISH                    Tenth Circuit

                      UNITED STATES COURT OF APPEALS       September 3, 2014

                                                          Elisabeth A. Shumaker
                                TENTH CIRCUIT                 Clerk of Court


STATE OF UTAH, on behalf of the Utah
Department of Environmental Quality,
Division of Air Quality,

              Petitioner,

       v.                                       No. 13-9535

UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, and GINA
McCARTHY, Administrator, United
Stated Environmental Protection Agency,

                 Respondents.
--------------------

UTAH ASSOCIATED MUNICIPAL
POWER SYSTEM,

               Intervenor.


PACIFICORP,

               Petitioner,
      v.                                        No. 13-9536

UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY, and GINA
McCARTHY, Administrator, United
States Environmental Protection Agency,

               Respondents.
 --------------------

 UTAH ASSOCIATED MUNICIPAL
 POWER SYSTEM, STATE OF UTAH,
 DEPARTMENT OF
 ENVIRONMENTAL QUALITY AND
 DIVISION OF AIR QUALITY,

        Intervenors.




                        OPINION DENYING PANEL REHEARING



Before BACHARACH, SEYMOUR, and MURPHY, Circuit Judges.


BACHARACH, Circuit Judge.


        In a previous opinion, we dismissed Utah and PacifiCorp’s petitions for review

based on a lack of jurisdiction. We lack jurisdiction because Utah and PacifiCorp filed

their petitions after the expiration of a jurisdictional deadline. The Petitioners apply for

panel rehearing, and we deny the applications.

I.      The Petitioners’ Earlier Arguments & Our Panel Opinion

        The Clean Air Act required Utah to submit a proposed implementation plan to the

Environmental Protection Agency. Utah complied, but the EPA rejected parts of the

plan. The State of Utah and other aggrieved parties could obtain judicial review under 42

U.S.C. § 7607(b)(1) by filing a petition within 60 days. See Clean Air Act, 42 U.S.C.

§ 7607(b)(1) (2012).

                                              2
       The State of Utah and PacifiCorp missed the deadline, prompting our court to

order briefing on appellate jurisdiction in light of the 60-day deadline. Utah and

PacifiCorp responded that the petitions were timely but never addressed the jurisdictional

nature of the deadline.

       We ultimately held that the petitions were untimely and that the defect was

jurisdictional. Now, for the first time, Utah and PacifiCorp argue that the statutory

deadline is not jurisdictional, complaining that the panel should have more fully

explained its conclusion.

II.    The Jurisdictional Nature of the 60-Day Deadline

       With the benefit of the parties’ newly presented arguments, we revisit whether the

statutory deadline is jurisdictional. Ultimately, however, we adhere to the conclusion

stated in the panel opinion: The deadline in § 7607(b)(1) is jurisdictional.

       Filing deadlines can be jurisdictional or non-jurisdictional. To decide which

deadlines are jurisdictional, we apply a “bright-line” rule. See Sebelius v. Auburn Reg’l

Med. Ctr., __ U.S. __, 133 S. Ct. 817, 824 (2013).

       This rule focuses on Congress’s stated intention. Id. When Congress clearly

states that a deadline is jurisdictional, we regard it as jurisdictional. Id. To make its

intention “clear,” however, Congress need not use any particular words. Id. Thus, when

we determine whether Congress has spoken clearly, we focus on the legal character of the

deadline, as shown through its text, context, and historical treatment. See Reed Elsevier,

Inc. v. Muchnick, 559 U.S. 154, 166 (2010) (“[T]he jurisdictional analysis must focus on

the ‘legal character’ of the requirement, which we discerned [in Zipes v. Trans World

                                              3
Airlines, Inc., 455 U.S. 385, 395 (1982)] by looking to the condition’s text, context, and

relevant historical treatment.” (citation omitted)).

       Following this framework, we focus on § 7607(b)(1)’s text, context, and historical

treatment to determine whether the 60-day deadline is jurisdictional.

       We first look to the statutory text. “[A] statutory restriction need not go so far as

to use the magic word ‘jurisdiction,’ but must use ‘clear jurisdictional language.’”

United States v. McGauhy, 670 F.3d 1149, 1156 (10th Cir. 2012) (quoting Gonzalez v.

Thaler, ___ U.S. ___, 132 S. Ct. 641, 649 (2012)).

       In § 7607(b)(1), Congress used jurisdictional terminology: “shall” and “petition

for review.” Clean Air Act, 42 U.S.C. § 7607(b)(1) (2012); see Sebelius v. Auburn Reg’l

Med. Ctr., __ U.S. __, 133 S. Ct. 817, 825-26 (2013) (stating that the words “shall” and

“notice of appeal” carry “jurisdictional import” in connection with the statutory deadline

for appeals from district courts). Congress used this terminology because it regarded the

60-day deadline as jurisdictional.

       In 1970, Congress amended the Clean Air Act to impose a 30-day deadline for

citizen suits. Clean Air Act, 42 U.S.C. § 1857h-5(b)(1) (1970). In amending the statute,

Congress recognized that if a petition was filed after 30 days, the court could consider the

matter only if “significant new information [had] become available.” S. Rep. No. 91-

1196, pp. 65-66 (1970), reprinted in U.S. Sen. Comm. on Pub. Works, A Legislative

History of the Clean Air Amendments of 1970 465-66 (1974).

       With this statutory amendment, courts characterized the 30-day deadline as

jurisdictional. E.g., Nat’l Ass’n of Demolition Contractors, Inc. v. Costle, 565 F.2d 748,

                                              4
750 n.2 (D.C. Cir. 1977); Sears, Roebuck & Co. v. EPA, 543 F.2d 359, 361 (D.C. Cir.

1976) (per curiam); Natural Res. Def. Council, Inc. v. EPA, 483 F.2d 690, 692 n.1 (8th

Cir. 1973).

       One appeals court took a different approach when confronting a similar deadline

in the Glass-Steagall Act, suggesting that claimants might be able to avoid the deadline if

they had a legitimate excuse. Inv. Co. Inst. v. Bd. of Governors, 551 F.2d 1270, 1281-82

(D.C. Cir. 1977) (dicta). This language alarmed many in Congress, who hoped to dispel

any notion that the Clean Air Act’s deadline could be avoided if the claimant had an

“excuse.” Thus, the House Committee on Interstate and Foreign Commerce explained its

concern over this court decision and emphasized the inflexible nature of the statutory

deadline in the Clean Air Act: “What is of concern to the committee is the possible

application of dictum in that case [Investment Company Institute v. Board of Governors]

to the Clean Air Act. The dictum which is of concern states that, with an undefined

legitimate excuse, the statutory deadline (and the underlying policies of expedition and

finality) may be circumvented.” H.R. Rep. No. 95-294, at 322 (1977), reprinted in 4 U.S.

Sen. Comm. on Env’t & Pub. Works, A Legislative History of the Clean Air Act

Amendments of 1977 2789 (1979).

       Notwithstanding this concern, Congress lengthened the deadline (from 30 days to

60 days) in the Clean Air Act. Pub. L. No. 95-95, 91 Stat. 685, 776 (1997). Though

Congress lengthened the period for suit, the House Committee on Interstate and Foreign

Commerce stressed the jurisdictional nature of the new 60-day deadline:



                                             5
       In extending to 60 days the time within which a party may file a petition for
       review of certain EPA actions, the committee wishes to reaffirm its intent
       to strictly limit section 307 challenges to those which are actually filed
       within that time. The only instance in which the committee intends that
       later challenges may be entertained by the court of appeals are those in
       which the grounds arise solely after the 60th day. Thus, unless a petitioner
       can show that the basis for his challenge did not exist or was not reasonably
       to be anticipated before the expiration of 60 days, the court of appeals is
       without jurisdiction to consider a petition filed later than 60 days after the
       publication of the promulgated rule.

H.R. Rep. No. 95-294, at 322 (1977) (emphasis added), reprinted in 4 U.S. Sen. Comm.

on Env’t & Pub. Works, A Legislative History of the Clean Air Act Amendments of 1977

2789 (1979). Thus, the statutory language reflects Congress’s explicit recognition that

the 60-day deadline is jurisdictional.

       Like the statutory language, the context of § 7607(b)(1) supports the conclusion

that it is jurisdictional. This section not only supplies a deadline but also serves as the

jurisdictional basis for petitions like the ones here. See Oklahoma v. EPA, 723 F.3d

1201, 1204 (10th Cir. 2013) (stating that the court had jurisdiction under 42 U.S.C.

§ 7607(b)(1)); La. Pub. Serv. Co. v. United States EPA, 562 F.3d 1116, 1118 (10th Cir.

2009) (stating that jurisdiction existed under 42 U.S.C. § 7607(b)(1)); see also Harrison

v. PPG Indus., Inc., 446 U.S. 578, 593 (1980) (stating that “Congress . . . vested the

courts of appeals with jurisdiction under [42 U.S.C. § 7607(b)(1)]”).1

       Without § 7607(b)(1), we would lack jurisdiction because the federal government

would have enjoyed sovereign immunity in suits against the EPA. See Sierra Club v.

Whitman, 268 F.3d 898, 901 (9th Cir. 2001) (“Suits against the EPA, as against any

1
       In their opening briefs, PacifiCorp and Utah cited § 7607(b)(1) as a basis for
jurisdiction. PacifiCorp’s Opening Br. at 3; Utah’s Opening Br. at 12.
                                              6
agency of the United States, are barred by sovereign immunity, unless there has been a

specific waiver of that immunity.”); see also FDIC v. Meyer, 510 U.S. 471, 475 (1994)

(stating that sovereign immunity shields federal agencies from suit). Congress waived

sovereign immunity through § 7607(b)(1). See Royster-Clark Agribusiness, Inc. v.

Johnson, 391 F. Supp. 2d 21, 25-26 (D. D.C. 2005).

       Though § 7607(b)(1) waives sovereign immunity, the waiver contains limitations,

including the 60-day deadline. Through this deadline, § 7607(b)(1) serves a jurisdictional

function by restricting the congressional waiver of sovereign immunity. See Block v.

North Dakota ex rel. Bd. of Univ. & School Lands, 461 U.S. 273, 287 (1983) (“When

waiver legislation contains a statute of limitations, the limitations provision constitutes a

condition on the waiver of sovereign immunity.”).2 This jurisdictional function suggests

that the 60-day deadline is itself jurisdictional. See Miller v. FDIC, 738 F.3d 836, 845-46




2
        In 1995, a Ninth Circuit panel questioned the continued viability of Block’s
jurisdictional holding in light of a later Supreme Court decision, Irwin v. Dep’t of
Veterans Affairs, 498 U.S. 89 (1990). Fadem v. United States, 52 F.3d 202, 205-06 (9th
Cir. 1995), vacated, 520 U.S. 1101 (1997) (mem.), reinstated, 113 F.3d 167, 168 (9th
Cir.), withdrawn on other grounds, 172 F.3d 648 (9th Cir. 1999). But a later Ninth
Circuit panel acknowledged that Block remains good law after the decision in Irwin.
Fidelity Exploration & Prod. Co. v. United States, 506 F.3d 1182, 1186 (9th Cir. 2007).

                                              7
(7th Cir. 2013); 3 see also United States v. McGauhy, 670 F.3d 1149, 1156 (10th Cir.

2012).4

       We consider not only the text and context, but also the historical treatment of the

provision. For example, filing deadlines have long been considered jurisdictional when

they involve appeals to article III courts. See United States v. McGauhy, 670 F.3d at


3
        In Miller, a statute generally stripped the courts of jurisdiction except as otherwise
provided in the same statute. 738 F.3d at 844 (quoting 12 U.S.C. § 1821(d)(13)(D)). The
statute provided that claimants could sue over claims disallowed by the FDIC. See id.
(citing 12 U.S.C. § 1821(d)(6)(A)). But this statutory grant of jurisdiction required
claimants to sue within 60 days. See id. (quoting 12 U.S.C. § 1821(d)(6)(A)).

       The court considered the context of this statutory scheme to determine whether the
60-day deadline was jurisdictional. The appeals court regarded the deadline as
jurisdictional because it qualified the conferral of jurisdiction to the court. Id. at 846.
Based on the statutory context, the court explained:

                Both the language and structure of the statutory text clearly indicate
       that the 60-day limitations period is a jurisdictional prerequisite. The
       interplay between . . . the general jurisdiction-stripping provision, and . . .
       the specific provision conferring jurisdiction over certain claims, is clear
       enough: No court has jurisdiction to entertain actions asserting claims
       against failed banks unless a provision in [the statute] expressly provides
       for it, and [the statute] expressly confers federal jurisdiction over claims
       . . ., but only when the claimant files suit within the 60-day limitations
       period. By operation of the general jurisdictional bar and the carefully
       delimited language of the exception, [the statute’s] 60-day time limit has
       jurisdictional effect.

Id. at 845.
4
       In McGauhy, we concluded that a 14-day deadline in Fed. R. Crim. P. 35 was
jurisdictional. 670 F.3d at 1158. In reaching this conclusion, we stated: “Contextually,
the placement of a restriction within a statute is important. If the restriction is connected
to a grant of jurisdiction, then the restriction is likely meant to qualify that grant; but if
the restriction is ‘set off’ from the grant of jurisdiction, it may be non-jurisdictional.” Id.
at 1156.

                                               8
1156 (“Historically, certain types of restrictions have long been held to be

jurisdictional―the epitome of these are time restrictions for taking an appeal.”); see also

Bowles v. Russell, 551 U.S. 205, 209 n.2 (2007) (“[I]t is indisputable that time limits for

filing a notice of appeal have been treated as jurisdictional in American law for well over

a century.”). Section 7607(b)(1), governing appeals to article III courts, illustrates the

type of deadline long considered jurisdictional.

       The Petitioners suggest that the Supreme Court has overhauled this history by

holding that filing deadlines were not jurisdictional in Henderson v. Shinseki, __ U.S. __,

131 S. Ct. 1197 (2011) and Sebelius v. Auburn Regional Medical Center, __ U.S. __, 133

S. Ct. 817 (2013). But PacifiCorp and Utah read too much into these cases.

       Auburn involved a filing deadline in a statutory section allowing service providers

to obtain a hearing in the Provider Reimbursement Review Board. Social Security Act,

42 U.S.C. § 1395oo(a)(3) (2006), cited in Auburn Reg’l Med. Ctr., 133 S. Ct. at 822.

Henderson involved a deadline for appeals to the Court of Appeals for Veteran Claims.

Veterans’ Judicial Review Act, 38 U.S.C. § 7266(a) (2006), cited in Henderson, 131 S.

Ct. at 1204.

       Auburn and Henderson provide us with a framework for deciding whether a

deadline is jurisdictional. Thus, based on Henderson and Auburn, we examine the text,

context, and historical treatment to determine whether a particular deadline is

jurisdictional. See Auburn Reg’l Med. Ctr., 133 S. Ct. at 824; Henderson, 131 S. Ct. at

1204-05. But the outcome of that examination is not dictated by Auburn or Henderson



                                              9
because those cases lacked the unique combination of textual, contextual, and historical

attributes rendering our 60-day deadline jurisdictional.

       We start with the statutory text, as the Supreme Court did in Auburn and

Henderson. This factor differentiates Auburn because there, the statute lacked words

carrying judicial import, a fact noted and relied upon the by the Supreme Court. Auburn

Reg’l Med. Ctr., 133 S. Ct. at 824.

       In Henderson, the Supreme Court acknowledged that the statutory word “shall”

does not necessarily signal congressional intent to make a deadline jurisdictional. See

Henderson, 131 S. Ct. at 1205. But in that case, contextual considerations drove the

decision in two ways that reveal key differences from our case.

       First, in Henderson, the filing deadline was separated from the statutory language

conferring jurisdiction. See Henderson, 131 S. Ct. at 1205 (relying in part on placement

of the statutory language in a subchapter entitled “Procedure” rather than a separate

subsection entitled “Organization and Jurisdiction”). In our case, however, the deadline

appears in the same subsection containing the grant of jurisdiction (§ 7607(b)(1)).

       Second, the issue in Henderson involved a deadline to appeal to an article I court,

not an article III court—a fact noted and emphasized by the Supreme Court. Henderson,

131 S. Ct. at 1204-05; see also United States v. McGauhy, 670 F.3d 1149, 1156 n.5 (10th

Cir. 2012) (noting that the Henderson Court ultimately “cabined the scope of its analysis

to ‘review by an Article I tribunal as part of a unique administrative scheme’”).

       The historical treatment of our 60-day deadline also differs from the historical

treatment of the deadlines discussed in Henderson and Auburn. Our 60-day deadline

                                            10
exists for appeals to an article III court, which was not the case in Henderson or Auburn.

And in those cases, there was no suggestion of a long-standing practice of treating filing

deadlines as jurisdictional in appeals to the Provider Reimbursement Review Board or the

Court of Appeals for Veteran Claims. In contrast, courts have long regarded filing

deadlines as jurisdictional when they involve appeals to article III courts. See supra pp.

8-9.

       With these differences in the textual, contextual, and historical treatment of the

filing deadlines in Henderson and Auburn, we characterize our deadline as jurisdictional

even though the deadlines discussed in those cases were considered non-jurisdictional.

Accordingly, we adhere to the conclusion stated in our panel opinion: The 60-day

deadline in § 7607(b)(1) is jurisdictional, and we lack jurisdiction over the petitions

because PacifiCorp and Utah filed their petitions late.

III.   The Petitioners’ Other Arguments in the Petitions for Rehearing

       In the petitions for rehearing, Utah and PacifiCorp raise five other arguments. The

first three are new:

       1.     The EPA’s extension of time bears a presumption of regularity (raised by
              the State of Utah).

       2.     The EPA changed the date of its initial “action” for purposes of 40 C.F.R.
              § 23.3 (raised by the State of Utah and PacifiCorp).

       3.     The second administrative publication was explicit (raised by PacifiCorp).

       In addition, PacifiCorp renews two of its prior arguments:

       1.     The action is timely under the “reopener doctrine.”

       2.     We should defer to the EPA’s interpretation of its regulations.

                                             11
We reject these arguments.

       A.     “Presumption of Regularity”

       Prior to its petition for rehearing, Utah relied on the fact that the EPA had told the

parties they could file petitions for review by March 25, 2013. The panel acknowledged

the EPA’s statement, but concluded that it had not legally changed the deadline.

       Utah argues that the EPA’s reference to the deadline bears a presumption of

regularity. For the sake of argument, we can assume that Utah is correct, for we have

never questioned the validity of the administrative enactment in which the EPA identified

the deadline. Instead, we focused on the legal effect of that enactment. Valid or not, it

did not legally change the parties’ deadline. Thus, the newly asserted “presumption of

regularity” would not affect the panel’s earlier analysis.

       B.     The Term “Action” in 40 C.F.R. § 23.3

       Utah and PacifiCorp have relied in part on 40 C.F.R. § 23.3. Under this section,

the EPA’s “promulgation, approval, or action” is ordinarily considered filed when

published in the Federal Register, but not when the EPA explicitly provides otherwise.

40 C.F.R. § 23.3. In responding to the show-cause order, the Petitioners focused on the

term “promulgation,” arguing that the EPA had changed the date of its “promulgation.”

In the panel opinion, we rejected this argument, holding that the EPA had not

“‘explicitly’ change[d] the promulgation date when it incorrectly identified the deadline

as March 25, 2013.” Utah v. EPA, 750 F.3d 1182, 1185 (10th Cir. 2014).




                                             12
       The Petitioners now rely on a different word in § 23.3―“action”―arguing that the

EPA explicitly changed the date of its earlier “action” (rather than “promulgation”). The

new argument is invalid for the same reasons discussed in the panel opinion.

       Under the new argument, we would ask whether the EPA explicitly changed the

date of the notice of its regulatory “action.” See Clean Air Act, 42 U.S.C. § 7607(b)(1)

(2012) (requiring the filing of a petition for review within 60 days of the date that the

“notice of . . . promulgation, approval, or action appear[ed] in the Federal Register”).

The EPA did not do that. The EPA incorrectly stated the deadline, but it did not

explicitly change the date of the notice of its “action” in rejecting the Utah

implementation plan. Thus, the Petitioners’ new argument is invalid for the same reasons

discussed in the panel opinion in connection with the “promulgation” date.

       C.     The “Explicit” Nature of the EPA’s Action

       PacifiCorp also argues that the EPA acted “explicitly” when it set the deadline for

petitions for review.5 For the sake of argument, we can assume that PacifiCorp is correct.

But that was not the issue. The issue was whether the EPA had explicitly changed the

notice date for its “promulgation.”

       Under the parties’ new argument, the issue would be whether the EPA had

explicitly changed the notice date for the agency’s “action.” In a sense, the EPA’s

statement of the deadline was “explicit.” But the EPA did not explicitly change the




5
       The State of Utah joins this argument.

                                             13
notice date for its “promulgation” or “action.” Thus, PacifiCorp’s new argument would

not render the petitions timely.

       D.     Deference to the EPA and the Reopener Doctrine

       The Petitioners earlier argued that: (1) we should defer to the EPA’s interpretation

of its regulations, and (2) the action would be timely under the “reopener doctrine.” We

analyzed and rejected both arguments in the panel opinion. Utah v. EPA, 750 F.3d 1182,

1185-86 (10th Cir. 2014). PacifiCorp renews both arguments in its petition for

rehearing,6 but fails to address the panel’s rationale. We adhere to that rationale in

rejecting PacifiCorp’s renewal of these arguments.

IV.    Disposition

       We deny the petitions for panel rehearing.




6
       Utah joins the argument involving deference to the EPA.
                                             14
