LAURENCE M. FEDORA, Petitioner
MERIT SYSTEMS PROTECTION BOARD, Respondent UNITED STATES POSTAL SERVICE, Intervenor
for review of the Merit Systems Protection Board in No.
Laurence M. Fedora, Portland, OR, pro se.
Lindsey Schreckengost, Office of the General Counsel, Merit
Systems Protection Board, Washington, DC, for respondent.
Also represented by Bryan G. Polisuk.
Russell James Upton, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, for intervenor. Also represented by Benjamin C. Mizer,
Robert E. Kirschman, Jr., Patricia M. McCarthy.
Dyk, Plager, and Reyna, Circuit Judges.
Fedora petitions for review of a final order of the Merit
Systems Protection Board ("Board") dismissing his
appeal for lack of jurisdiction. Because Mr. Fedora failed to
timely file his petition for review with this court within 60
days after the Board issued notice of its final order, we
dismiss his petition for review for lack of jurisdiction.
See 5 U.S.C. § 7703(b)(1)(A).
Fedora began his employment with the United States Postal
Service in 1980. He was employed as a Mail Handler in the
Portland Processing and Distribution Center at the time of
his retirement on August 31, 2012. On April 27, 2013, Mr.
Fedora filed an appeal with the Board alleging that his
retirement was involuntary and amounted to constructive
discharge. He claimed that he was forced to perform work in
violation of his medical restrictions, was harassed, and was
improperly threatened with removal and loss of his pension.
August 12, 2013, the administrative judge ("AJ")
found that Mr. Fedora had failed to make a non-frivolous
allegation that his retirement was involuntary and dismissed
his appeal for lack of jurisdiction. Mr. Fedora then filed a
petition for review by the Board.
August 15, 2014, the Board issued a final order affirming the
initial decision by the AJ. The Board's final order
stated that Mr. Fedora had "the right to request review
of [its] final decision by the United States Court of Appeals
for the Federal Circuit" and that the "court must
receive [his] request for review no later than 60 calendar
days after the date of [the Board's] order." App.
36. He filed a petition for review in this court on October
20, 2014. His petition for review was filed within 60 days of
his receipt of the order (August 19, 2014),  but not within 60
days of issuance of the notice (August 15, 2014).
court has jurisdiction to review final decisions by the Board
pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C. §
7703(b)(1)(A). However, this jurisdiction is circumscribed by
the terms of § 7703(b)(1)(A), which provides:
"[n]otwithstanding any other provision of law, any
petition for review shall be filed within 60 days after the
Board issues notice of the final order or decision of the
Board." We have previously held that the requirements of
this provision are "statutory, mandatory, [and]
jurisdictional, " Monzo v. Dep't of
Transp., 735 F.2d 1335, 1336 (Fed. Cir. 1984), and that
"[c]ompliance with the filing deadline of 5 U.S.C.
§ 7703(b)(1) is a prerequisite to our exercise of
jurisdiction, " Oja v. Dep't of the Army,
405 F.3d 1349, 1360 (Fed. Cir. 2005).
dissent suggests that these cases are no longer good law
because the Supreme Court in recent years has recognized that
not all statutory time limits are properly characterized as
jurisdictional. We think that those cases do not undermine
our holdings that the appeal period of § 7703(b)(1) is
jurisdictional. Many of the Supreme Court's cases cited
by the dissent hold generally that limitations periods
("claims-processing rules") are not jurisdictional.
See, e.g., United States v. Kwai Fun Wong,
135 S.Ct. 1625, 1638 (2015) (holding that the time limits for
filing a claim against the United States under the Federal
Tort Claims Act "are nonjurisdictional and subject to
equitable tolling"); Irwin v. Dep't of Veterans
Affairs, 498 U.S. 89, 95-96 (1990) (holding that there
is a rebuttable presumption that the statutory time limit for
filing a Title VII suit against the United States after final
agency action is subject to equitable tolling). Those cases
do not concern appeal periods. Appeal periods to Article III
courts, such as the period in § 7703(b)(1), are
controlled by the Court's decision in Bowles v.
Russell, 551 U.S. 205 (2007).
Bowles, the Supreme Court reaffirmed that "the
taking of an appeal within the prescribed time is
'mandatory and jurisdictional.'" 551 U.S. at 209
(quoting Griggs v. Provident Consumer Disc. Co., 459
U.S. 56, 61 (1982)). The Court recognized that "several
. . . recent decisions have undertaken to clarify the
distinction between claims-processing rules and
jurisdictional rules, [but concluded that] none of them calls
into question [the Court's] longstanding treatment of
statutory time limits for taking an appeal as
jurisdictional." Id. at 210. Accordingly, the
Court held that compliance with the appeal period prescribed
in 28 U.S.C. § 2107(c) is jurisdictional and not subject
to equitable tolling or the unique circumstances doctrine.
Id. at 212-14.
Supreme Court's subsequent opinion in Reed Elsevier,
Inc. v. Muchnick, 559 U.S. 154 (2010), explicitly
recognized the distinction between statutory time limits for
filing appeals and time limits or other requirements in
non-appeal contexts. There, the Court stated:
In Bowles, we considered 28 U.S.C. § 2107,
which requires parties in a civil action to file a notice of
appeal within 30 days . . . . After analyzing §
2107's specific language and this Court's historical
treatment of the type of limitation § 2107 imposes
(i.e., statutory deadlines for filing appeals), we
concluded that Congress had ranked the statutory condition as
jurisdictional. . . . Bowles emphasized that this
Court had long treated such conditions as jurisdictional,
including in statutes other than § 2107, and
specifically in statutes that predated the creation of the
courts of appeals.
Id. at 168 (citations omitted).
on Henderson v. Shinseki, 562 U.S. 428 (2011), which
concerned the time limit for filings appeals to the Court of
Appeals for Veterans Claims, an Article I court, the dissent
suggests that Bowles does not govern "judicial
review of administrative decisions." Id. at
437. In Henderson, the Court held that the appeal
period was not jurisdictional because of the "unique
administrative scheme" that is "unusually
protective of claimants." Id. at 437-38
(internal quotation marks omitted). To be sure,
Henderson initially distinguished Bowles on
the ground that it "concerned an appeal from one court
to another court [and t]he 'century's worth of
precedent and practice in American courts' on which
Bowles relied involved appeals of that type."
Id. at 436 (quoting Bowles, 551 U.S. at
209-10). But the Court went on to discuss at length judicial
review of administrative agencies, citing to Stone v.
INS, 514 U.S. 386, 405 (1995), which held that the
deadline for seeking judicial review of final removal orders
by the Board of Immigration Appeals is jurisdictional. The
Henderson Court also noted that lower courts
uniformly treat the time limit for review of certain final
agency decisions under the Hobbs Act as jurisdictional.
Henderson, 562 U.S. at 437. The Court eventually
concluded that none of its prior cases required that the
appeal period from the Veterans Administration to an Article
I court be jurisdictional since "[a]ll of those cases
involved review by Article III courts."
Id. (emphasis add- ed). The Henderson Court
thus made clear that appeal periods to Article III courts are
this case concerns the timeliness of Fedora's appeal to
this court, an Article III court, Bowles-not
Henderson-is the governing authority. Accordingly,
this court lacks jurisdiction over petitions for review that
fail to comply with the requirements of § 7703(b)(1)(A).
Supreme Court also made clear in Bowles, the
jurisdictional nature of the timeliness requirement precludes
equitable exceptions. 551 U.S. at 213-14. Our own prior
decisions have likewise held that § 7703(b)(1) is not
subject to equitable tolling. Oja, 405 F.3d at
1357-60; see also Marandola v. United States, 518
F.3d 913, 914-15 (Fed. Cir. 2008) (holding that the filing
requirements of 28 U.S.C. § 2107(b), Fed. R. App. P.
4(a)(1)(B), and R. Fed.Cl. 58.1 are "mandatory and
jurisdictional" and cannot be waived or equitably
version of § 7703(b)(1) provided that "any petition
for review must be filed within 60 days after the date the
petitioner received notice of the final order or
decision of the Board." See 5 U.S.C. §
7703(b)(1) (1998) (emphasis added). But, in 2012, this
provision was amended to require "fil[ing] within 60
days after the Board issues notice of the final order or
decision of the Board." Whistle-blower Protection
Enhancement Act of 2012, Pub. L. No. 112-199, § 108(a),
126 Stat. 1465, 1469 (2012) (emphasis added). By its plain
terms, § 7703(b)(1)(A) as amended begins the 60-day
clock on the date the Board issues notice of its final order,
not the date the petitioner receives notice of that decision.
Here, notice of the final decision was issued on August 15,
2014. This court did not receive the petition until October
20, 2014, 6 days after the 60-day period had run.
Fedora thus failed to timely file his petition for review
within the 60-day period required by § 7703(b)(1)(A).
Under § 7703(b)(1)(A) Mr. Fedora was required to file
his petition for review "within 60 days after"
August 15, 2014-i.e., by October 14, 2014. Since
filing requires actual receipt by the court, not just timely
mailing, see Pinat v. Office of Pers. Mgmt., 931
F.2d 1544, 1546 (Fed. Cir. 1991); Fed. R. App. P.
25(a)(2)(A), Mr. Fedora missed the October 14, 2014 filing
Fedora points out that the Board's final order directed
him to this court's "Guide for Pro Se Petitioners
and Appellants, " which incorrectly instructed that a
petitioner "may file a petition for review in this court
within 60 days of receipt of the Board's decision."
App. 5. Mr. Fedora claims to have relied on this guidance in
filing his petition for review. But as previously stated, we
do not have the authority to equitably toll the filing
requirements of § 7703(b)(1)(A). See Bowles,
551 U.S. at 213-14; Oja, 405 F.3d at 1357-60.
Moreover, the Board's final order gave notice to Mr.
Fedora regarding his rights for further review and
specifically stated that the 60-day period would begin on the
date the final order was issued. It imparted the importance
of the filing deadline, cautioning to "be very careful
to file on time" since the "court must receive
[the] request for review no later than 60 calendar days after
the date of [the] order." App. 36 (citing 5 U.S.C.
§ 7703(b)(1)(A) and noting the revision effective
December 27, 2012). Unfortunately for Mr. Fedora, he failed
to follow these instructions and missed the October 14, 2014