PUBLISH 

UNITED STATES COURT OF APPEALS 

TENTH CIRCUIT 

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. 

UNITED STATES ENVIRONMENTAL 

PROTECTION AGENCY, and GINA 

McCARTHY, Administrator, United 

States Environmental Protection Agency, 

 Respondents. 

No. 13-9536 

FILED 

United States Court of Appeals 

Tenth Circuit 

September 3, 2014

Elisabeth A. Shumaker 

Clerk of Court
2 

-------------------- 

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). 
3 

 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 
4 

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, 
5 

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 (1977). 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: 
6 

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. 
7 

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). 
8 

(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. 
9 

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
10 

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 
11 

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. 
12 

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). 
13 

 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. 
14 

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.