Fedora v. MSPB, 15-3039

Laurence M. Fedora appealed the Merit Systems Protection Board (MSPB) final decision to the Federal Circuit but filed his petition after the 60‑day deadline in 5 U.S.C. § 7703(b)(1)(A).
The panel held § 7703(b)(1)(A)’s 60‑day appeal period is jurisdictional and denied Fedora’s late filing; Judge Plager dissented at the panel stage.
Fedora petitioned for rehearing en banc; the court invited supplemental briefing after the Supreme Court’s decision in Perry v. MSPB and accepted Fedora’s waiver of discrimination claims to resolve a jurisdictional concern.
The en banc petition was denied; Judges Wallach and Plager dissented from the denial, arguing the court should revisit whether § 7703(b)(1)(A) is jurisdictional.
The dissenters argue the panel relied too narrowly on Bowles v. Russell and failed to apply the broader Irwin/Henderson framework assessing whether a deadline rebuts the presumption of equitable tolling.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 7703(b)(1)(A)’s 60‑day filing deadline is jurisdictional	Fedora: Deadline is non‑jurisdictional; equitable tolling may apply; Bowles does not control here	MSPB/USPS: Deadline is jurisdictional under Bowles; court lacks power to toll	Panel/en banc denial: Court treated the deadline as jurisdictional and denied rehearing en banc (dissent argues otherwise)
Whether Bowles controls appeals from administrative tribunals to Article III courts	Fedora: Bowles is not dispositive for agency→court appeals; Irwin/Henderson framework should govern	Respondents: Bowles governs appeal periods to Article III courts and supports jurisdictional characterization	Dissent: Bowles was applied too narrowly; the question is sufficiently debatable to warrant en banc review (court denied rehearing)
Proper analytical framework for deciding jurisdictional vs. claims‑processing	Fedora: Apply Irwin presumption of equitable tolling and consider text, context, history, and Congressional intent	Respondents: Rely on precedent treating the 60‑day rule as jurisdictional (Monzo, Oja)	Dissent: Court should use Irwin/Henderson/Reed Elsevier multifactor analysis and revisit Monzo/Oja; en banc review refused

Bowles v. Russell, 551 U.S. 205 (2007) (holding timely filing of an appeal between courts is "mandatory and jurisdictional")
Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990) (presumption of equitable tolling applies to suits against the Government)
Henderson v. Shinseki, 562 U.S. 428 (2011) (Bowles concerned court‑to‑court appeals; courts should look for clear congressional intent before treating a rule as jurisdictional)
Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010) (analyze text, context, and historical treatment when deciding jurisdictional character)
Monzo v. Department of Transportation, 735 F.2d 1335 (Fed. Cir. 1984) (earlier Federal Circuit decision treating the predecessor filing deadline as jurisdictional)
Oja v. Department of the Army, 405 F.3d 1349 (2005) (Federal Circuit reaffirming jurisdictional nature of § 7703(b)(1)(A))
Bowen v. City of New York, 476 U.S. 467 (1986) (granting equitable tolling for an administrative review deadline)
John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008) (consideration of historical treatment can rebut presumption of equitable tolling)
Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (distinguishing jurisdictional rules from claim‑processing rules using statutory text and context)
Hohn v. United States, 524 U.S. 236 (1998) (precedent remains binding until Supreme Court revisits it)