FEDERAL EDUCATION ASSOCIATION -STATESIDE REGION, KAREN GRAVISS, Petitioners
DEPARTMENT OF DEFENSE, DOMESTIC DEPENDENTS ELEMENTARY AND SECONDARY SCHOOLS, Respondent
Petition for review of an arbitrator's decision in No.
14-1024-00182-7 by Steven G. Hoffmeyer.
Dorothy Louise Lee, Dublin, OH, argued for petitioner Karen
K. Hogan, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
for respondent. Also represented by Benjamin C. Mizer, Robert
E. Kirschman, Jr., Claudia Burke.
Matthew Whitmore Milledge, Office of General Counsel,
American Federation of Government Employees, Washington, DC,
for amicus curiae American Federation of Government
Employees. Also represented by David A. Borer, Andres Myles
Katherine Michelle Smith, Office of the General Counsel,
Merit Systems Protection Board, Washington, DC, for amicus
curiae Merit Systems Protection Board.
Dyk, Plager, and Reyna, Circuit Judges.
panel initially held that the agency had violated
petitioner's procedural due process rights in connection
with her discharge from federal service. See Fed. Educ.
Ass'n-Stateside Region v. Dep't of Def., 841
F.3d 1362 (Fed. Cir. 2016). The en banc court granted review
and vacated the panel opinion. 873 F.3d 903 (Fed. Cir. 2017)
(en banc) (per curiam). This case returns to the panel after
an order by the en banc court "to dissolve the en banc
court . . . and refer [the case] to the original
panel." Dkt. 133. We now hold that the petition for
review was untimely and dismiss the petition.
Graviss was removed by the agency from her position as a
teacher working for the Department of Defense Domestic
Dependent Elementary and Secondary Schools. Ms. Graviss
sought review by an arbitrator, as allowed by the applicable
collective bargaining agreement. The arbitrator sustained the
removal in a decision dated April 20, 2015. See J.A.
2. It was mailed on the following day. On June 23, 2015, more
than 60 days after the arbitration award was mailed, Ms.
Graviss petitioned for review of the arbitrator's
decision. The government did not object to the timeliness of
panel initially reversed the arbitrator's decision. Then
the full court granted en banc review and vacated the panel
decision. Shortly before the scheduled en banc oral argument,
the court discovered that there was a question as to the
timeliness of petitioner's petition for review to this
court. En banc oral argument, held on March 8, 2018, was
directed to the timeliness issue. The court then ordered
supplemental briefing "to address this court's
jurisdiction under 5 U.S.C. § 7703(b)(1)." 884 F.3d
1349, 1349-50 (Fed. Cir. 2018) (en banc) (per curiam). After
receiving supplemental briefing, the en banc court dissolved
en banc status and "referred [the case] to the original
panel" to consider this court's jurisdiction in the
§ 7703(b)(1), "any petition for review shall be
filed within 60 days after the [Merit Systems Protection]
Board issues notice of the final order or decision of the
Board." Instead of appealing an adverse personnel action
to the Board, an employee who is a member of a
collective-bargaining unit may choose to challenge the action
through arbitration, as provided in the collective-bargaining
agreement. 5 U.S.C. § 7121(e). When an employee pursues
arbitration, the statute specifies that "judicial review
shall apply to the award of an arbitrator in the same
manner and under the same conditions as if the matter
had been decided by the Board." Id. §
7121(f) (emphasis added); accord S. Rep. 95-969, at
111 (1978) ("In applying the provisions of [§ 7703]
the word 'arbitrator' should be read in place of the
words 'Merit Systems Protection Board.'"),
reprinted in 1978 U.S.C.C.A.N. 2723, 2833; see
also Cornelius v. Nutt, 472 U.S. 648, 661 n.16 (1985);
Klees-Wallace v. FCC, 815 F.3d 805, 808 (Fed. Cir.
2016). Therefore, the statutory requirement that any petition
for review must be filed within 60 days after the Board
"issues notice" of a final decision applies with
equal force to arbitration decisions. We have held that the
time limit is jurisdictional. Fedora v. Merit Sys. Prot.
Bd., 848 F.3d 1013, 1014-16 (Fed. Cir.), petition
for rehearing en banc denied, 868 F.3d 1336 (Fed. Cir.
2017) (en banc) (per curiam).
the arbitrator's decision is dated April 20, 2015, and
contains a written post mark of April 21, 2015. The decision
was received by Ms. Graviss on April 27, 2015. Dkt. 1, at 2.
Ms. Graviss's petition for review was received by this
court on June 23, 2015. Id. at 1. Under the
statutory scheme, Ms. Graviss's petition was timely filed
if the start date for the limitations period for the time to
appeal began on the date she received the decision, but her
petition was not timely if the start date is the date of the
decision or the date of the post mark.
Board issues notice in one of two ways-either electronically
or by first-class certified mail. If a party signs up for
e-filing, the Board provides service of a decision by sending
an email that notifies the party that a decision has been
issued and provides a link to view and download the decision.
MSPB Amicus Br. 8. Alternatively, if the party has not
registered for e-filing, the Board serves the decision by
mailing the decision to the address of record. Id.
The date that the Board sends this notice- either by email or
regular mail-is the date that the Board issues notice, as we
held in Fedora. 848 F.3d at 1016.
Graviss contends that the arbitrator did not "issue
notice" until she received the arbitration award because
the arbitration award was not available to her until it was
received. Unlike electronically issued Board decisions that
are made available on the same day that they are issued, in
general, no mechanism exists for electronic issuance of
arbitrator decisions. We reject Ms. Graviss's argument.
amended § 7703(b)(1) in 2012 from requiring a petition
to be filed within 60 days after the date "petitioner
received notice" to within 60 days after "the Board
issues notice." See 5 U.S.C. § 7703(b)(1)
(1998); Whistleblower Protection Enhancement Act of 2012,
Pub. L. No. 112-199, sec. 108(a), § 7703(b)(1), 126
Stat. 1465, 1469. By its plain terms, this amendment changed
the 60-day clock to begin on the date the Board or other
deci-sionmaker issues notice, not the date the petitioner
receives notice or could receive notice of the decision.
term "issues notice" suggests the date of issuance
is the date the decisionmaker distributes notice of the
decision whether or not the decision is received or could be
received by electing to receive notice electronically on that
date. Black's Law Dictionary defines the verb
"issue" as "to send out or distribute
officially." Issue, Black's Law
Dictionary (10th ed. 2014). Moreover, Webster's
Dictionary defines the verb "issue" as
"to go out or come out or flow out."
Issue, Webster's Third International
Dictionary (2002). We conclude that the date on which
the decisionmaker "issues notice" is the date on
which it sends the parties the final decision, whether
electronically, by regular mail, or by other means.
the arbitrator issued notice on April 21, 2015- the date of
the post mark. Because 60 days from this date was a Saturday,
the petition for review was due on Monday, June 22, 2015.
Graviss's petition, received on June 23, 2015, was
therefore untimely under § 7703(b)(1).
Graviss argues that her delay in filing is subject to
equitable tolling. However, timeliness of the petition for
review is a jurisdictional issue. Fedora, 848 F.3d
at 1014-16; Oja v. Dep't of the Army, 405 F.3d
1349, 1360 (Fed. Cir. 2005); Monzo v. Dep't of
Transp., 735 F.2d 1335, 1336 (Fed. Cir. 1984).
dissent urges that the Supreme Court's recent decision in
Hamer v. Neighborhood Housing Services of Chicago,
138 S.Ct. 13 (2017), effectively overrules our earlier
decision in Fedora, finding the 60-day time limit is
jurisdictional. We disagree.
concerns an appeal from one Article III court to another, and
found that the time limit was not jurisdic-tional because it
was not in a statute. The Court stated, "If a time
prescription governing the transfer of adjudica-tory
authority from one Article III court to another appears in a
statute, the limitation is jurisdictional, . . . otherwise,
the time specification fits within the claim-processing
category." Id. at 20. This was followed by a
footnote that stated in relevant part, "In cases not
involving the timebound transfer of adjudicatory authority
from one Article III court to another, we have additionally
applied a clear-statement rule: 'A rule is jurisdictional
'[i]f the Legislature clearly states that a threshold
limitation on a statute's scope shall count as
jurisdictional.''" Id. at 20 n.9.
provision giving this court jurisdiction over decisions of
the MSPB is titled "Jurisdiction of the United States
Court of Appeals for the Federal Circuit" and states
that "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 Protection Board, pursuant to sections 7703(b)(1) and
7703(d) of title 5." 28 U.S.C. § 1295. This
constitutes a clear statement that our jurisdiction is
dependent on the statutory time limit. This result is
supported by United States v. Kwai Fun Wong, 135
S.Ct. 1625 (2015), which found a time-limit for appeal to a
district court from an agency nonjurisdictional. In that
case, the statutory provision granting jurisdiction made no
reference to the statutory provision containing the time bar.
The Supreme Court noted, "Nothing conditions the
jurisdic-tional grant on the limitations period, or otherwise
links those separate provisions." Id. at 1633;
see also Henderson v. Shinseki, 562 U.S. 428, 439-40
(2011); Reed Elsevier, Inc. v. Muchnick, 559 U.S.
154, 164-65 (2010); Arbaugh v. Y&H Corp., 546
U.S. 500, 515 (2006); Zipes v. Trans World Airlines,
Inc., 455 U.S. 385, 393-94 (1982). Here, the statutory
provisions are explicitly "linked." The
jurisdictional grant is expressly linked to the statutory
section imposing the time bar. The Court's decision in
Hamer thus supports our earlier holding in
Fedora that "this court lacks jurisdiction over
petitions for review that fail to comply with the
requirements of § 7703(b)(1)(A)." 848 F.3d at 1016.
this petition for review is dismissed for lack of
Plager, Circuit ...