Document Type

Working Paper

Publication Date

4-18-2019

SSRN Discipline

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Abstract

This brief was filed by law professors and legal scholars with expertise in civil procedure federal jurisdiction and related subjects In recent years the Supreme Court has frequently addressed whether to treat certain litigation requirements as jurisdictional conditions or as nonjurisdictional claimprocessing rules It has laudably strived to bring some discipline to the overclassification of litigation requirements as jurisdictional It has justifiably criticized driveby jurisdictional rulings that have mischaracterized claimprocessing rules or elements of a cause of action as jurisdictional limitations brbrThe Federal Circuits decision below exemplifies the problem Disregarding the letter and spirit of the Supreme Courts precedent the Federal Circuit mistakenly treated as jurisdictional the 60day deadline for filing a petition for review of decisions by the Merit Systems Protection Board MSPB See 5 USC § 7703b1A That Karen Graviss may have filed her petition one day beyond the 60day window was not raised for nearly three years after her petition was filed She and the government had litigated her due process claim on the merits in the Federal Circuit and neither the government nor the initial panel asserted a failure to comply with the 60day deadline The panel ruled in Ms Gravisss favor on the merits and the government sought en banc rehearing in the Federal Circuit again without asserting that the petition was timebarred It was the en banc Federal Circuit that raised the issue for the first time eventually concluding that the difference between 61 days and 60 days deprived it of subjectmatter jurisdictionbrbrThis result confounds the Supreme Courts recent guidance on the critical differences between true jurisdictional conditions and nonjurisdictional limitations on causes of action The Court has appropriately acknowledged that deeming a requirement to be jurisdictional can thwart the fair and efficient adjudication of disputes in the federal system And the Court has clarified that time requirements like the one at issue in this case which does not involve the transfer of adjudicatory authority from one Article III court to another can be jurisdictional only if Congress clearly states that it shall count as jurisdictional Because there is no such clear statement by Congress that § 7703b1s 60day deadline is jurisdictional the Supreme Court should grant certiorari and reverse the Federal Circuits decision below

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