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

25 Pages Posted: 18 Apr 2019

See all articles by Adam Steinman

Adam Steinman

University of Alabama - School of Law

Date Written: March 14, 2019


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 claim-processing rules. It has laudably strived "to bring some discipline" to the over-classification of litigation requirements as jurisdictional. 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 the problem. Disregarding the letter and spirit of the Supreme Court's precedent, the Federal Circuit mistakenly treated as jurisdictional the 60-day deadline for filing a petition for review of decisions by the 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 the 60-day 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 60-day deadline. The panel ruled in Ms. Graviss's favor on the merits, and the government sought en banc rehearing in the Federal Circuit - -again without asserting that the petition was time-barred. 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 subject-matter jurisdiction.

This result confounds the 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 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 § 7703(b)(1)'s 60-day deadline is jurisdictional, the Supreme Court should grant certiorari and reverse the Federal Circuit's decision below.

Keywords: Supreme Court, Jurisdiction, Jurisdictional, Nonjurisdictional, Claim-Processing Rules, Federal Circuit, MSPB, Merit Systems Protection Board

JEL Classification: K00, K1, K10, K4, K40, K41

Suggested Citation

Steinman, Adam, 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 (March 14, 2019). U of Alabama Legal Studies Research Paper No. 3357969, Available at SSRN: https://ssrn.com/abstract=3357969 or http://dx.doi.org/10.2139/ssrn.3357969

Adam Steinman (Contact Author)

University of Alabama - School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics