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Federal Education Association -Stateside Region v. Department of Defense

United States Court of Appeals, Federal Circuit

December 3, 2018

FEDERAL EDUCATION ASSOCIATION -STATESIDE REGION, KAREN GRAVISS, Petitioners
v.
DEPARTMENT OF DEFENSE, DOMESTIC DEPENDENTS ELEMENTARY AND SECONDARY SCHOOL, Respondent

          Petition for review of an arbitrator's decision in No. 14-1024-00182-7 by Steven G. Hoffmeyer.

          DOROTHY LOUISE LEE, Federal Education Association Stateside Region, Dublin, OH, filed a petition for rehearing en banc for petitioner Karen Graviss. Also represented by BRIAN WOLFMAN, Georgetown Law Appellate Courts Immersion Clinic, Washington, DC.

          TARA K. HOGAN, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, filed a response to the petition for respondent. Also represented by CLAUDIA BURKE, ROBERT E. KIRSCHMAN, JR., JOSEPH H. HUNT.

          Before Prost, Chief Judge, Newman, Plager [*] , Lourie, Dyk, Moore, O'Malley, Reyna, Wallach, Taranto, Chen, Hughes, and Stoll, Circuit Judges.

         ON PETITION FOR REHEARING EN BANC

          ORDER

          PER CURIAM.

         Petitioner Karen Graviss filed a petition for rehearing en banc. A response to the petition was invited by the court and filed by respondent Department of Defense, Domestic Dependent Elementary and Secondary Schools. The petition was first referred as a petition for rehearing to the panel that heard the appeal, and thereafter the petition for rehearing en banc and the response were referred to the circuit judges who are in regular active service. A poll was requested, taken, and failed.

         Upon consideration thereof, It Is Ordered That:

         The petition for panel rehearing is denied.

         The petition for rehearing en banc is denied.

         The mandate of the court will issue on December 10, 2018.

          Wallach, Circuit Judge, with whom Newman and O'Malley, Circuit Judges, join, dissenting from the denial of the petition for rehearing en banc.

         The Supreme Court has "held that procedural rules, including time bars, cabin a court's power only if Congress has clearly stated as much." United States v. Kwai Fung Wong, 135 S.Ct. 1625, 1632 (2015) (internal quotation marks, brackets, and citation omitted). In recognizing the "harsh consequences" associated with holding a time bar to be jurisdictional, the Supreme Court has "made plain that most time bars are nonjurisdictional." Id. (emphasis added). This appeal raises the issue of whether 5 U.S.C. § 7703(b)(1)(A) (2012), which provides that "any petition for review shall be filed within [sixty] days after the [Merit Systems Protection Board ('MSPB')] issues notice of the final order or decision," is jurisdictional.

         The majority held § 7703(b)(1)(A)'s sixty-day filing deadline is jurisdictional in the belief that another statute in a different title of the U.S. Code setting forth our exclusive jurisdiction "of an appeal from a final order or final decision of the [MSPB], pursuant to [§] 7703(b)(1) and [§] 7703(d) of title 5," 28 U.S.C. § 1295(a)(9) (2012), provides "a clear statement that our jurisdiction is dependent on the statutory time limit" in § 7703(b)(1)(A), Fed. Educ. Ass'n v. Dep't of Def. (FEA), 898 F.3d 1222, 1225 (Fed. Cir. 2018) (emphasis added). The majority, therefore, dismissed Petitioner Karin Graviss's appeal because her petition for review was received one day late and, on that basis, refused to consider her request for ...


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