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 Court2 -------------------- 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 Ut ah 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 jurisd ictional 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 subm it a proposed implementation plan to the Environmental Protection Agency. Utah comp lied, but the EPA rejected parts of the plan. The State of Utah and other aggrieved pa rties could obtain judicial review under 42 U.S.C. § 7607(b)(1) by fili ng a petition within 60 days. See Clean Air Act, 42 U.S.C. § 7607(b)(1) (2012).3 The State of Utah and PacifiCorp miss ed the deadline, prompting our court to order briefing on appellate ju risdiction in light of the 60-day deadline. Utah and PacifiCorp responded that th e petitions were timely but neve r addressed the jurisdictional nature of the deadline. We ultimately held that the petitions we re untimely and that the defect was jurisdictional. Now, for the first time, Ut ah and PacifiCorp argu e that the statutory deadline is not jurisdictional, complaining that the pane l should have more fully explained its conclusion. II. The Jurisdictional Nature of the 60-Day Deadline With the benefit of the parties’ newly pr esented arguments, we revisit whether the statutory deadline is jurisdictional. Ultimat ely, however, we adhere to the conclusion stated in the panel opinion: The dead line 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 Cong ress’s stated intention. Id. When Congress clearly states that a deadline is jurisdictiona l, 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 clearl y, we focus on the legal character of the deadline, as shown through its text, c ontext, and historical treatment. See Reed Elsevier, Inc. v. Muchnick , 559 U.S. 154, 166 (2010) (“[T]he jurisdictional an alysis must focus on the ‘legal character’ of the requi rement, which we discerned [in Zipes v. Trans World4 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 ne ed not go so far as to use the magic word ‘jurisdiction,’ but mu st 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. 81 7, 825-26 (2013) (stating that the words “shall” and “notice of appeal” carry “jurisdictional impor t” in connection with the statutory deadline for appeals from district courts). Congress us ed this terminology because it regarded the 60-day deadline as jurisdictional. In 1970, Congress amende d the Clean Air Act to impose a 30-day deadline for citizen suits. Clean Air Act, 42 U.S.C. § 1 857h-5(b)(1) (1970). In amending the statute, Congress recognized that if a petition was filed after 30 da ys, the court could consider the matter only if “significant new information [h ad] 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, cour ts characterized th e 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 appro ach when confrontin g a similar deadline in the Glass-Steagall Act, suggesting that clai mants 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 alar med 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 Inte rstate and Foreign Co mmerce explained its concern over this court decision and emphasized the inflexible nature of the statutory deadline in the Cl ean Air Act: “What is of concern to the committee is the possible application of dictum in that case [ Investment Company Institu te v. Board of Governors ] to the Clean Air Act. The dictum which is of concern states that, with an undefined legitimate excuse, the statut ory deadline (and the underlyi ng 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 le ngthened the deadline (from 30 days to 60 days) in the Clean Air Act. Pub. L. No. 95-95, 91 St at. 685, 776 (1977). Though Congress lengthened the period for suit, the House Committee on Interstate and Foreign Commerce stressed the juri sdictional nature of th e new 60-day deadline:6 In extending to 60 days the time within which a pa rty may file a petition for review of certain EPA actions, the comm ittee 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 commi ttee 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 challe nge 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 on ly supplies a deadline bu t also serves as the jurisdictional basis for petiti ons like the ones here. See Oklahoma v. EPA , 723 F.3d 1201, 1204 (10th Cir. 2013) (stating that th e 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 juri sdiction 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 jurisdicti on under [42 U.S.C. § 7607(b)(1)]”). 1 Without § 7607(b)(1), we would lack jurisdiction because the federal government would have enjoyed sove reign 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 a nd 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 so vereign 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 fe deral agencies from su it). 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 d eadline. Through this deadline, § 7607(b)(1) serves a jurisdictional function by restricting the congressiona l 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 lim itations, 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 que stioned 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. 19 99). But a later Ninth Circuit panel acknowledged that Block remains good law after the decision in Irwin

. Fidelity Exploration & Pr od. Co. v. United States , 506 F.3d 1182, 1 186 (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 ha ve 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 gran t of jurisdiction required claimants to sue w ithin 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 conf erral of jurisdiction to the court. Id. at 846. Based on the statutory cont ext, 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 ju risdiction-stripping provision, and . . . the specific provision conferring juri sdiction 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 f iles suit within the 60-day limitations period. By operation of the genera l 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 1 158. In reaching this conclusi on, 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’ fro m the grant of jurisdiction, it may be non-jurisdictional.” Id. at 1156.9 1156 (“Historically, certain types of rest rictions have long been held to be jurisdictional

― the epitome of these are time restri ctions 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 Amer ican law for well over a century.”). Section 7607(b )(1), governing appeals to artic le III courts, illustrates the type of deadline long cons idered jurisdictional. The Petitioners suggest that the Suprem e 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 Regi onal Medical Center , __ U.S. __, 133 S. Ct. 817 (2013). But PacifiCorp and Ut ah read too much into these cases.
Auburn involved a filing de adline in a statutory section allowing service providers to obtain a hearing in the Pr ovider 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 dead line 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 framewo rk for deciding whether a deadline is jurisdictional. Thus, based on Henderson and Auburn , we examine the text, context, and historical treatment to de termine 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 Henderson10 because those cases lacked the unique combination of textual, contextual, and historical attributes rendering our 60-d ay 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 a nd relied upon the by the Supreme Court. Auburn Reg’l Med. Ctr. , 133 S. Ct. at 824.
In Henderson , the Supreme Court acknowledged th at the statutory word “shall” does not necessarily signal congressional inte nt to make a deadline jurisdictional. See Henderson , 131 S. Ct. at 1205. But in that cas e, 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 (relyi ng in part on placement of the statutory language in a subchapter entitled “Procedure” rather than a separate subsection entitled “Organizatio n and Jurisdiction”). In our case, however, the deadline appears in the same subsection containing the grant of jurisd iction (§ 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 an d 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 pa rt 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 deadline11 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 practic e 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, c ontextual, and historical treatment of the filing deadlines in Henderson and Auburn , we characterize our deadline as jurisdictional even though the deadlin es 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 la ck jurisdiction over the petitions because PacifiCorp and Utah filed their petitions late. III. The Petitioners’ Other Argument s in the Petitions for Rehearing In the petitions for rehearing, Utah and Pa cifiCorp 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” fo r purposes of 40 C.F.R. § 23.3 (raised by the St ate of Utah and PacifiCorp). 3. The second administrative publica tion was explicit (raised by PacifiCorp). In addition, PacifiCorp rene ws 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 re lied 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 EP A’s reference to the deadlin e 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 administ rative enactment in which the EPA identified the deadline. Instead, we focused on the legal effect of th at enactment. Valid or not, it did not legally change the parties’ deadline. Thus, the newly asse rted “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 acti on” is ordinarily considered filed when published in the Federal Register, but not wh en the EPA explicitly pr ovides otherwise. 40 C.F.R. § 23.3. In respo nding to the show-cause orde r, 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 prom ulgation date when it incorre ctly 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 ac tion appear[ed] in the Federal Register”). The EPA did not do that. The EPA incorre ctly stated the deadline, but it did not explicitly change the date of the notice of its “action” in rejecting the Utah implementation plan. Thus, th e Petitioners’ new argument is invalid for the same reasons discussed in the panel opinion in conn ection with the “promulgation” date. C. The “Explicit” Nature of the EPA’s Action PacifiCorp also argues that the EPA ac ted “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 wa s whether the EPA had explicitly changed the notice date for its “promulgation.” Under the parties’ new argument, th e issue would be whether the EPA had explicitly changed the notice date for the ag ency’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 “acti on.” 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 th e “reopener doctrine.” We analyzed and rejected both argu ments in the panel opinion. Utah v. EPA , 750 F.3d 1182, 1185-86 (10th Cir. 2014). PacifiCorp re news both arguments in its petition for rehearing, 6 but fails to address the panel’s rationa le. 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.