U.S. Supreme Court Amicus Brief of Law Professors in Support of Petitioner, Graviss v. Department of Defense Domestic Dependent Elementary and Secondary Schools, No. 18-1061

Abstract

This brief was filed by law professors and legal scholars with expertise in civil procedure, federal jurisdiction, and related subjects. In recent years, Supreme Court has frequently addressed whether treat certain litigation requirements as jurisdictional conditions or as nonjurisdictional claim-processing rules. It has laudably strived to bring some discipline over-classification of litigation requirements as It has justifiably criticized drive-by jurisdictional rulings that have mischaracterized claim-processing rules or elements of a cause of action as jurisdictional limitations. The Federal Circuit's decision below exemplifies problem. Disregarding letter and spirit of Supreme Court's precedent, Federal Circuit mistakenly treated as jurisdictional 60-day deadline for filing a petition for review of decisions by Merit Systems Protection Board (MSPB). See 5 U.S.C. § 7703(b)(1)(A). That Karen Graviss may have filed her petition one day beyond 60-day window was not raised for nearly three years after her petition was filed. She and government had litigated her due process claim on merits in Federal Circuit, and neither government nor initial panel asserted a failure comply with 60-day deadline. The panel ruled in Ms. Graviss's favor on merits, and government sought en banc rehearing in Federal Circuit - -again without asserting that petition was time-barred. It was en banc Federal Circuit that raised issue for first time, eventually concluding that difference between 61 days and 60 days deprived it of subject-matter jurisdiction. This result confounds Supreme Court's 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 be jurisdictional can thwart fair and efficient adjudication of disputes in federal system. And Court has clarified that time requirements like one at issue in this case -- which does not involve the transfer of adjudicatory authority from one Article III court 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 § 7703(b)(1)'s 60-day deadline is jurisdictional, Supreme Court should grant certiorari and reverse Federal Circuit's decision below.