FEDERAL EDUCATION ASSOCIATION -STATESIDE REGION, KAREN GRAVISS, Petitioners
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,
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.
Prost, Chief Judge, Newman, Plager [*] , Lourie, Dyk, Moore, O'Malley,
Reyna, Wallach, Taranto, Chen, Hughes, and Stoll, Circuit
PETITION FOR REHEARING EN BANC
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
consideration thereof, It Is Ordered That:
petition for panel rehearing is denied.
petition for rehearing en banc is denied.
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.
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
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 ...