United States Court of Appeals 

for the Federal Circuit ______________________ 

FEDERAL EDUCATION ASSOCIATION - 

STATESIDE REGION, KAREN GRAVISS,

Petitioners

v.

DEPARTMENT OF DEFENSE, DOMESTIC 

DEPENDENTS ELEMENTARY AND SECONDARY 

SCHOOL,

Respondent

______________________ 

2015-3173

______________________ 

Petition for review of an arbitrator’s decision in No. 

14-1024-00182-7 by Steven G. Hoffmeyer. 

______________________ 

ON PETITION FOR REHEARING EN BANC

______________________ 

DOROTHY LOUISE LEE, Federal Education Association 

Stateside Region, Dublin, OH, filed a petition for rehearing en banc for petitioner Karen Graviss. Also represented by BRIAN WOLFMAN, Georgetown Law Appellate Courts 

Immersion Clinic, Washington, DC.

 TARA K. HOGAN, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, filed a response to the petition for respondent. 
2 FEDERAL EDUCATION ASSOCIATION v. DEFENSE

Also represented by CLAUDIA BURKE, ROBERT E.

KIRSCHMAN, JR., JOSEPH H. HUNT. 

______________________

Before PROST, Chief Judge, NEWMAN, PLAGER∗, LOURIE,

DYK, MOORE, O’MALLEY, REYNA, WALLACH, TARANTO,

CHEN, HUGHES, and STOLL, Circuit Judges.

WALLACH, Circuit Judge, with whom NEWMAN and

O’MALLEY, Circuit Judges, join, dissents from the denial 

of the petition for rehearing en banc.

PLAGER, Circuit Judge, dissents from the denial of the 

petition for panel rehearing.

PER CURIAM. 

O R D E R

Petitioner Karen Graviss filed a petition for rehearing 

en banc. A response to the petition was invited by the 

court and filed by respondent Department of Defense, 

Domestic Dependent Elementary and Secondary Schools. 

The petition was first referred as a petition for rehearing 

to the panel that heard the appeal, and thereafter the 

petition for rehearing en banc and the response were

referred to the circuit judges who are in regular active 

service. A poll was requested, taken, and failed.

Upon consideration thereof,

IT IS ORDERED THAT: 

The petition for panel rehearing is denied.

The petition for rehearing en banc is denied.

∗ Circuit Judge Plager participated only in the 

decision on panel rehearing.

 
FEDERAL EDUCATION ASSOCIATION v. DEFENSE 3

The mandate of the court will issue on December 10, 

2018. 

 FOR THE COURT

December 3, 2018 /s/ Peter R. Marksteiner 

 Date Peter R. Marksteiner

 Clerk of Court
United States Court of Appeals 

for the Federal Circuit ______________________ 

FEDERAL EDUCATION ASSOCIATION - 

STATESIDE REGION, KAREN GRAVISS,

Petitioners

v.

DEPARTMENT OF DEFENSE, DOMESTIC 

DEPENDENTS ELEMENTARY AND SECONDARY 

SCHOOL,

Respondent

______________________ 

2015-3173

______________________ 

Petition for review of an arbitrator’s decision in No. 

14-1024-00182-7 by Steven G. Hoffmeyer. 

______________________ 

WALLACH, Circuit Judge, with whom NEWMAN and 

O’MALLEY, Circuit Judges, join, dissenting from the denial 

of the petition for rehearing en banc. 

The Supreme Court has “held that procedural rules, 

including time bars, cabin a court’s power only if Congress 

has clearly stated as much.” United States v. Kwai Fung 

Wong, 135 S. Ct. 1625, 1632 (2015) (internal quotation 

marks, brackets, and citation omitted). In recognizing the 

“harsh consequences” associated with holding a time bar 

to be jurisdictional, the Supreme Court has “made plain 

that most time bars are nonjurisdictional.” Id. (emphasis 

added). This appeal raises the issue of whether 5 U.S.C. 
2 FEDERAL EDUCATION ASSOCIATION v. DEFENSE

§ 7703(b)(1)(A) (2012), which provides that “any petition 

for review shall be filed within [sixty] days after the 

[Merit Systems Protection Board (‘MSPB’)] issues notice 

of the final order or decision,” is jurisdictional. 

The majority held § 7703(b)(1)(A)’s sixty-day filing 

deadline is jurisdictional in the belief that another statute 

in a different title of the U.S. Code setting forth our 

exclusive jurisdiction “of an appeal from a final order or 

final decision of the [MSPB], pursuant to [§] 7703(b)(1) 

and [§] 7703(d) of title 5,” 28 U.S.C. § 1295(a)(9) (2012), 

provides “a clear statement that our jurisdiction is dependent on the statutory time limit” in § 7703(b)(1)(A), 

Fed. Educ. Ass’n v. Dep’t of Def. (FEA), 898 F.3d 1222, 

1225 (Fed. Cir. 2018) (emphasis added). The majority, 

therefore, dismissed Petitioner Karin Graviss’s appeal 

because her petition for review was received one day late

and, on that basis, refused to consider her request for 

equitable tolling of the sixty-day filing deadline. Id. at 

1225–26. I respectfully submit that this interpretation of 

the filing deadline as jurisdictional is inconsistent with 

Supreme Court precedent.

DISCUSSION

I. Congress Must Clearly State that a Filing Deadline Is 

Jurisdictional

The Supreme Court recently addressed the distinction 

between jurisdictional and nonjurisdictional filing deadlines. “If a time prescription governing the transfer of 

adjudicatory authority from one Article III court to another appears in a statute, the limitation is jurisdictional; 

otherwise, the time specification fits within the claimprocessing category.” Hamer v. Neighborhood Hous. 

Servs. of Chi., 138 S. Ct. 13, 20 (2017) (citations and 

footnote omitted). However, “[i]n cases not involving the 

timebound transfer of adjudicatory authority from one 

Article III court to another,” as is the case here, the 

Supreme Court has “applied a clear-statement rule,” 
FEDERAL EDUCATION ASSOCIATION v. DEFENSE 3

holding “[a] rule is jurisdictional if the Legislature clearly 

states that a threshold limitation on a statute’s scope 

shall count as jurisdictional.” Id. at 20 n.9 (internal 

quotation marks, brackets, and citation omitted).1

“To determine whether Congress has made the necessary clear statement, we examine the ‘text, context, and 

relevant historical treatment’ of the provision at issue.” 

Musacchio v. United States, 136 S. Ct. 709, 717 (2016) 

(citation omitted). While “magic words” are not required, 

“traditional tools of statutory construction must plainly 

show that Congress imbued a procedural bar with jurisdictional consequences.” Kwai Fun Wong, 135 S. Ct. at

1632 (emphasis added). Under the clear-statement rule, 

“most time bars are nonjurisdictional.” Id.; see id. (“Time 

and again, we have described filing deadlines as ‘quintessential claim-processing rules,’ which ‘seek to promote the 

orderly progress of litigation,’ but do not deprive a court of 

authority to hear a case.” (quoting Henderson ex rel. 

Henderson v. Shinseki, 562 U.S. 428, 435 (2011))).

1 To the extent the majority’s opinion relies on our 

pre-Hamer case law, see FEA, 898 F.3d at 1225 (first 

citing Fedora v. Merit Sys. Prot. Bd., 848 F.3d 1013, 1014–

16 (Fed. Cir. 2017); then citing Oja v. Dep’t of the Army, 

405 F.3d 1349, 1360 (Fed. Cir. 2005); then citing Monzo v. 

Dep’t of Transp., 735 F.2d 1335, 1336 (Fed. Cir. 1984)), 

the Supreme Court’s unanimous Hamer decision leaves no 

doubt that it is time to revisit our pre-Hamer precedent, 

see Fedora v. Merit Sys. Prot. Bd., 868 F.3d 1336, 1339–40 

(Fed. Cir. 2017) (Wallach, J., dissenting from the denial of 

the petition for rehearing en banc).

 
4 FEDERAL EDUCATION ASSOCIATION v. DEFENSE

II. Congress Has Not Clearly Stated that § 7703(b)(1)(A)’s 

Sixty-Day Filing Deadline Is Jurisdictional 

A. Section 7703(b)(1)(A)’s Text

Section 7703(b)(1)(A)’s sixty-day filing deadline does 

not contain the hallmarks of a jurisdictional statute. 

Section 7703(b)(1)(A) includes two sentences. The first 

sentence states: “[e]xcept as provided in [§ 7703(b)(1)(B) 

and § 7703(b)(2)], a petition to review a final order or final 

decision of the [MSPB] shall be filed in the United States 

Court of Appeals for the Federal Circuit.” 5 U.S.C. 

§ 7703(b)(1)(A). The second sentence reads: 

“[n]otwithstanding any other provision of law, any petition 

for review shall be filed within [sixty] days after the 

[MSPB] issues notice of the final order or decision of the 

[MSPB].” Id. (emphasis added). While the first sentence 

defines which cases may be filed, the second sentence 

simply identifies when these cases ordinarily should be 

filed. See id. Section 7703(b)(1)(A) does not limit our 

“authority to hear untimely suits” or cabin our “equitable 

power[]” to toll the filing deadline. Kwai Fun Wong, 135 

S. Ct. at 1633; see id. at 1632 (“Congress must do something special, beyond setting an exception-free deadline, 

to tag a statute of limitations as jurisdictional and so 

prohibit a court from tolling it.”). Instead, the second 

sentence reads as a claim-processing rule, even though it 

sets forth the sixty-day filing deadline by using the mandatory phrase “shall be filed.” 5 U.S.C. § 7703(b)(1)(A); 

see Kwai Fun Wong, 135 S. Ct. at 1632 (explaining that

“even when the time limit is important (most are) and 

even when it is framed in mandatory terms (again, most 

are),” filing deadlines are considered claim-processing 

rules, rather than jurisdictional prerequisites, no matter 

“how[] emphatically expressed those terms may be” 

(internal quotation marks, brackets, and citation omitted)). 
FEDERAL EDUCATION ASSOCIATION v. DEFENSE 5

The majority errs by reading § 7703(b)(1)(A)’s two 

sentences as together imposing a jurisdictional requirement. For instance, in Kloeckner v. Solis, the Supreme 

Court addressed whether another filing deadline in 

§ 7703(b), specifically in subsection (b)(2), should be 

considered jurisdictional and held the filing deadline is 

nonjurisdictional. See 568 U.S. 41, 52–53 (2012). Section 

7703(b)(2) has a two-sentence structure, with its first 

sentence identifying pursuant to which statutory sections 

“[c]ases of discrimination subject to the provisions of

[§] 7702 of this title shall be filed.” 5 U.S.C. § 7703(b)(2). 

Section 7703(b)(2)’s second sentence provides that 

“[n]otwithstanding any other provision of law, any such 

case filed under any such section must be filed within 

[thirty] days after the date the individual filing the case 

received notice of the judicially reviewable action under 

such [§] 7702.” Id. (emphasis added). Rather than merge 

these two separate sentences in interpreting § 7703(b)(2), 

the Supreme Court treated them as separate for jurisdictional purposes. Kloeckner, 568 U.S. at 53. The Supreme 

Court explained that, although “[t]he first sentence defines which cases should be brought in district court[] 

rather than in the Federal Circuit,” “[t]he second sentence . . . states when those cases should be brought[,]”

and the second sentence “does not . . . further define 

which timely-brought cases belong in district court.” Id. 

The Supreme Court held that the “second sentence” “is 

nothing more than a filing deadline” and therefore not a 

jurisdictional requirement. Id. at 52. 

Section 7703(b)(1)(A) employs the same two-sentence 

structure as § 7703(b)(2), with the first sentence authorizing which cases may be brought and the second sentence 

establishing when those cases should be brought. Compare 5 U.S.C. § 7703(b)(1)(A), with id. at § 7703(b)(2). 

Only by merging the two sentences in § 7703(b)(1)(A)—

the opposite of what Supreme Court did in Kloeckner—

can the sixty-day filing deadline be read as jurisdictional. 
6 FEDERAL EDUCATION ASSOCIATION v. DEFENSE

See 568 U.S. at 53. Read properly, however, it is clear 

that the filing deadline in § 7703(b)(1)(A) “does not speak 

in jurisdictional terms or refer in any way to [our] jurisdiction.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 

394 (1982) (footnote omitted). Thus, § 7703(b)(1)(A)’s text 

does not treat the sixty-day filing deadline as jurisdictional. 

B. Statutory Context

The statutory context and legislative history favor interpreting § 7703(b)(1)(A) as a claim-processing rule, 

rather than as imposing a jurisdictional requirement. 

Section 7703(b)(1)(A) is found in chapter 77 of title 5 of 

the U.S. Code, which is entitled “Appeals” and contains 

provisions on the procedures to submit an appeal to the 

MSPB, see 5 U.S.C. § 7701; the process by which to seek 

review of actions involving discrimination before both the 

MSPB and the Equal Employment Opportunity Commission, see id. at § 7702; and the means to seek judicial 

review of an MSPB decision, see id. § 7703. Placement of 

the sixty-day deadline in a chapter involving the process 

to obtain additional review highlights the filing deadline’s 

claim-processing nature. Further, § 7703’s mention of 

judicial review, alone, is not sufficient to render the entire 

section jurisdictional. See, e.g., Bowen v. City of N.Y., 476 

U.S. 467, 480 (1986) (granting equitable tolling, even 

where a statutory subsection titled “[j]udicial review” 

provided a sixty-day deadline to obtain review of an 

agency’s Social Security benefits decision in federal court); 

see also 42 U.S.C. § 405(g) (“Judicial review”). In addition, the statute that confers upon us jurisdiction over 

appeals from the MSPB, i.e., § 1295(a)(9), is housed in an 

entirely different title of the U.S. Code, thereby implying 

a “structural divide built into the statute.” Kwai Fun 

Wong, 135 S. Ct. at 1633; see id. (“Congress’s separation of 

a filing deadline from a jurisdictional grant indicates that 

the time bar is not jurisdictional.”). The legislative history of § 1295 confirms that the purpose of this statute is to 
FEDERAL EDUCATION ASSOCIATION v. DEFENSE 7

identify which cases, by subject matter, are within our 

jurisdiction, rather than which timely-brought cases are 

within our jurisdiction. See, e.g., S. Rep. No. 97-275, at 3 

(1981), as reprinted in 1982 U.S.C.C.A.N. 11, 13 (explaining that “the Federal Circuit differs from other [f]ederal 

courts of appeal . . . in that its jurisdiction is defined in 

terms of subject matter rather than geography,” and 

mentioning, in the same paragraph, that we have jurisdiction over appeals from the MSPB).

The majority contends § 7703(b)(1)(A)’s sixty-day 

deadline is imbued with jurisdictional qualities because 

§ 1295(a)(9) cross-references that section, see FEA, 898 

F.3d at 1225–26, by stating that “the Federal Circuit shall 

have exclusive jurisdiction . . . of an appeal from a final 

order or final decision of the [MSPB], pursuant to

[§] 7703(b)(1) and [§] 7703(d),” 28 U.S.C. § 1295(a) (emphasis added). However, this cross-reference hardly 

constitutes a clear statement by Congress that the sixtyday deadline is jurisdictional. Cf. Gonzalez v. Thaler, 565 

U.S. 134, 145 (2012) (finding a statutory subsection “does 

not speak in jurisdictional terms,” where that subsection 

included a cross-reference to a jurisdictional subsection, 

because “Congress set off the requirements in distinct 

paragraphs and, rather than mirroring their terms, 

excluded the jurisdictional terms in one from the other”). 

The sixty-day deadline is mentioned in one sentence of 

the two cross-referenced provisions, i.e., § 7703(b)(1) and 

§ 7703(d), with the cross-referenced provisions containing 

two subsections each and a total of fourteen sentences. 

See 5 U.S.C. § 7703(b)(1), (d). Although the Supreme 

Court has observed that “[§] 1295(a)(9) and [§] 7703(b)(1) 

together appear to provide for exclusive jurisdiction over 

MSPB decisions in the Federal Circuit” in holding that 

the Federal Circuit is not barred from hearing “disability 

retirement claims,” Lindahl v. Office of Pers. Mgmt., 470 

U.S. 768, 792 (1985), the Supreme Court did not decide 

the question of whether the filing deadline is jurisdiction-
8 FEDERAL EDUCATION ASSOCIATION v. DEFENSE

al and, as discussed above, nothing in § 7703(b)(1)(A)’s 

second sentence clearly indicates that it is, see 5 U.S.C. 

§ 7703(b)(1)(A). 

The majority apparently believes that § 1295(a)(9)’s 

cross-reference transforms the entirety of § 7703(b)(1) and 

§ 7703(d) into jurisdictional requirements, but that cannot 

be the case. For instance, § 7703(d) provides for judicial 

review of an MSPB decision, where it is, inter alia, sought 

“by the Director of the Office of Personnel Management,” 

and explains “[t]he granting of the petition for judicial 

review shall be at the discretion of the Court of Appeals.” 

5 U.S.C. § 7703(d)(1) (emphasis added); see Devine v. Nat’l 

Treasury Emps. Union, 737 F.2d 1031, 1033 (Fed. Cir. 

1984) (describing “our review of the case [a]s discretionary 

under . . . § 7703(d)”). The use of discretionary language 

in allowing judicial review is at odds with the requirement that we hear cases within our jurisdiction. See 

Cohens v. Virginia, 19 U.S. 264, 404 (1821) (“It is most 

true that this Court will not take jurisdiction if it should 

not[;] but it is equally true[] that it must take jurisdiction 

if it should.”). Therefore, I agree with Judge Plager, who 

dissented from the majority’s decision and explained that, 

if § 1295(a)(9) applies, “it logically applies only to the first 

sentence [of § 7703(b)(1)(A)] regarding the jurisdictional 

grant, leaving the second sentence—the time-to-file 

statement”—as nonjurisdictional. FEA, 898 F.3d at 1231

(Plager, J., dissenting). The “[m]ere proximity” of the 

second sentence, which contains the sixty-day deadline, to 

the first sentence is insufficient to “turn a rule that 

speaks in nonjurisdictional terms into a jurisdictional 

hurdle.” Gonzalez, 565 U.S. at 147; see Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 155 (2013) (“A requirement we would otherwise classify as 

nonjurisdicitonal . . . does not become jurisdictional simply because it is placed in a section of a statute that also 

contains jurisdictional provisions.” (citation omitted)). 

Accordingly, the statutory context does not provide the 
FEDERAL EDUCATION ASSOCIATION v. DEFENSE 9

requisite clear statement to treat § 7703(b)(1)(A)’s filing 

deadline as jurisdictional. 

C. Historical Treatment 

The relevant historical treatment of the provision 

does not aid the majority’s interpretation. When considering historical treatment, “a long line of th[e Supreme] 

Court’s decisions[,] left undisturbed by Congress,” that 

“treat[] a similar requirement as jurisdictional” creates a 

presumption “that Congress intended to follow that 

course.” Henderson, 562 U.S. at 436 (internal quotation 

marks and citation omitted); see Bowles v. Russell, 551 

U.S. 205, 209 n.2 (2007) (looking to “a century’s worth of 

precedent” in evaluating historical treatment). Here, the 

majority does not identify a long line of Supreme Court 

precedent to support its interpretation, and there is no 

such precedent addressing whether § 7703(b)(1) is jurisdictional, given that Article III courts did not have jurisdiction to review appeals from the MSPB until it was 

created in 1978. See Civil Service Reform Act of 1978, 

Pub. L. No. 95-454, § 205, 92 Stat. 1111, 1143 (1978). 

While not representing a long line of Supreme Court 

precedent, Kloeckner’s December 2012 interpretation of 

§ 7703(b)(2)’s thirty-day filing deadline as nonjurisdictional is, in my assessment, the most relevant decision, as 

it sheds light on the Supreme Court’s view of an analogous statutory provision. See 568 U.S. at 52–53. Since 

Kloeckner was decided, Congress has twice amended 

§ 7703, without altering § 7703(b)(2). See All Circuit 

Review Act, Pub L. No. 115-195, § 2, 132 Stat. 1510, 1510 

(2018); All Circuit Review Extension Act, Pub. L. No. 113-

170, § 2, 128 Stat. 1894, 1894 (2014). Therefore, 

§ 7703(b)(1)(A)’s historical treatment does not favor 

treating the sixty-day filing deadline as jurisdictional. 

CONCLUSION

The Supreme Court’s “recent cases evince a marked 

desire to curtail . . . drive-by jurisdictional rulings, which 
10 FEDERAL EDUCATION ASSOCIATION v. DEFENSE

too easily can miss the critical differences between true

jurisdictional conditions and nonjurisdictional limitations 

on causes of action.” Reed Elsevier, Inc. v. Muchnick, 559 

U.S. 154, 161 (2010) (internal quotation marks, brackets, 

and citations omitted). The majority improperly erects a 

jurisdictional hurdle and dismisses Ms. Graviss’s Petition

for Review, which was filed only one day late, by refusing 

to recognize that § 7703(b)(1)(A)’s sixty-day filing deadline

is a claim-processing rule. I believe this case raises a 

question of exceptional importance with the majority’s 

holding directly contrary to binding Supreme Court 

precedent, and I respectfully dissent from denial of the 

petition for rehearing en banc. 
United States Court of Appeals 

for the Federal Circuit ______________________ 

FEDERAL EDUCATION ASSOCIATION – 

STATESIDE REGION, KAREN GRAVISS,

Petitioners

v.

DEPARTMENT OF DEFENSE, DOMESTIC 

DEPENDENTS ELEMENTARY AND SECONDARY 

SCHOOL,

Respondent

______________________ 

2015-3173

______________________ 

Petition for review of an arbitrator’s decision in No. 

14-1024-00182-7 by Steven G. Hoffmeyer. 

______________________ 

PLAGER, Circuit Judge, dissenting from the denial of the 

petition for panel rehearing. 

As I have previously noted in dissent, the parties have 

been waiting eight years to resolve this case. After its 

convoluted history in this court, the case is now resolved 

by the panel dismissing the appeal for want of appellate 

jurisdiction, and the full court’s denial of the petition for 

en banc review. 
2 FEDERAL EDUCATION ASSOCIATION v. DEFENSE

In dismissing the appeal, the panel majority relied on 

an earlier case, Fedora v. Merit Systems Protection 

Board,1 in which the panel majority held that the time to 

appeal in these types of cases was per se ‘mandatory and 

jurisdictional.’ But as I explained in my dissent in Fedora

(we were the same three-judge panel in that case as in 

this one), the statutory time requirement to appeal a case 

from an agency to an Article III court is not per se mandatory and jurisdictional—the rule is and has been to the 

contrary. See Hamer v. Neighborhood Housing Services of 

Chicago, 138 S. Ct. 13 (2017), decided after our Fedora

case, unequivocally explaining and confirming the rule. 

Our current approach thus ignores clear instruction 

from the Supreme Court on the treatment of statutory 

time bars. We should follow those instructions and treat 

the applicable time bar in this case as nonjurisdictional, 

and thus subject to equitable tolling, waiver, and forfeiture. And we may not simply ignore the Court’s treatment as nonjurisdictional in years past of similar 

statutory provisions. 

In denying panel rehearing, we failed to apply binding 

Supreme Court precedent to a matter of fundamental, 

threshold importance—this court’s jurisdiction to hear 

cases brought by aggrieved federal employees. Now the 

full court, after some going back and forth, has denied en 

banc review. Thus, regrettably, we once again invite the 

Supreme Court to correct our errors.

For all the reasons explained in greater detail in my 

dissenting opinion, as well as for the reasons expressed in 

Judge Wallach’s well-written dissent from the denial of 

the petition for rehearing en banc, I respectfully dissent 

from the denial of the petition for panel rehearing.

1 848 F.3d 1013 (Fed. Cir. 2017).