The first question is whether the Authority should reevaluate its determination – first set forth in U.S. Department of HUD (HUD)^[1] – that the thirty‑day period for filing an exception to an arbitration award under § 7122(b) of the Federal Service Labor‑Management Relations Statute (the Statute)^[2] is a jurisdictional requirement that cannot be modified based on equitable considerations. Because subsequent U.S. Supreme Court decisions have undermined HUD’s holding, we overrule HUD and later Authority decisions to the extent that they found that the thirty‑day filing period in § 7122(b) is jurisdictional. And in that regard, we find that the Authority may equitably toll the § 7122(b) filing period in appropriate circumstances.

 

 

 

                The Union filed a grievance alleging that the Agency violated the parties’ collective‑bargaining agreement by failing to compensate the grievant for being on call and performing work outside his regular duty hours. The grievance went to arbitration. At arbitration, the Agency argued that the grievance should be denied because it involved a period of time when the grievant was not a bargaining‑unit member. Although the Arbitrator stated that the Agency’s argument was “untimely,”^[3] he addressed its merits. In particular, the Arbitrator found that the personnel-action notice regarding the grievant’s position for the period in dispute “show‍[‍ed‍] . . . that [‍the grievant‍] remained a member of the bargaining unit,” and there was “no evidence” that he “was no longer considered to be a member of the bargaining unit” during that period.^[4] Thus, the Arbitrator rejected the Agency’s bargaining-unit-status defense and, as relevant here, sustained the grievance.

 

 

 

The Arbitrator served his award on the parties by mail on September 5, 2013. Under § 7122(b) of the Statute and pertinent sections of the Authority’s Regulations, without equitable modification, the period for filing an exception to the award would have ended on October 15, 2013.^[5] Although the Agency did not file its exception until October 18, 2013, the Agency contended that the exception was “timely filed . . . due to the . . . shutdown”^[6] from October 1^[7] through October 16, 2013.^[8] The Union’s opposition did not address the exception’s timeliness. The Authority’s Office of Case Intake and Publication ordered the Agency to show cause why its exception should not be dismissed as untimely, and to address whether the Authority should apply equitable tolling to the filing period. The Agency filed a response to the order. Although the Union had an opportunity to reply to the Agency’s response, the Union did not do so.

 

Section 7122(b) of the Statute states that “‍[‍i‍]‍f no exception to an arbitrator’s award is filed . . . during the [‍thirty‍]‍‑day period beginning on the date the award is served on the party, the award shall be final and binding.”^[9] As mentioned previously, the Authority found in HUD that the thirty‑day filing period is a jurisdictional restriction on the Authority’s power to consider exceptions.^[10] As jurisdictional limits are not subject to modification based on equitable considerations,^[11] the Authority held in HUD that the filing period in § 7122(b) could not be equitably tolled.^[12]

 

But since HUD, the U.S. Supreme Court has clarified the analysis for determining whether a statutory filing deadline is jurisdictional. Specifically, the Court has set forth a “readily administrable” bright-line rule: If Congress “clearly states that a threshold limitation . . . shall count as jurisdictional,” then it will be treated as such.^[13] Otherwise, a limitation should be treated as “non‑jurisdictional in character.”^[14] For example, the Court has stated that, ordinarily, “time prescriptions . . . are not properly typed jurisdictional.”^[15] Further, a “condition should [‍not‍] be ranked as jurisdictional merely because it promotes important congressional objectives.”^[16]

 

In HUD, the Authority concluded that the filing period in § 7122(b) is jurisdictional because the Statute’s structure and legislative history “disclose‍[‍d‍] that Congress’‍[‍s‍] intent regarding the arbitration process is to promote its primacy and finality by limited, expeditious review by the Authority.”^[17] But as the Supreme Court’s precedent since HUD has emphasized, a limitation is not jurisdictional merely because it furthers important policy objectives.^[18] And with regard to the Court’s bright‑line rule for jurisdictional limitations – which, we note, the dissent ignores entirely – the Statute’s text does not contain a clear statement that § 7122(b)’s filing period is jurisdictional.^[19] Rather, the thirty‑day period in § 7122(b) resembles a “filing deadline‍[‍]‍,”^[20] which the Supreme Court has characterized as a “quintessential claim‑processing rule‍[‍]‍,”^[21] rather than a jurisdictional requirement.^[22]

 

In addition, § 7122(b)’s legislative history does not show that the exceptions‑filing period is jurisdictional. Although the congressional conference report on the Statute indicates that § 7122(b)’s purpose is to “make clear that the awards of arbitrators, when they become final, are not subject to further review by any other authority or administrative body, including the Comptroller General,”^[23] that statement does not clearly indicate that § 7122(b) contains a jurisdictional limitation. And even if the conference report were ambiguous, Congress later amended § 7122(b) to clarify its intent that parties enjoy a full thirty days to file exceptions to arbitration awards.^[24] Specifically, Congress changed the starting date for the exceptions‑filing period from the date of the award itself to the date on which the arbitrator served the award on the parties, in order to prevent mailing delays from shortening the filing period.^[25] That amendment shows that Congress did not intend for parties to lose part of the thirty-day filing period due to circumstances beyond their control. This legislative history supports treating § 7122(b)’s deadline as a non‑jurisdictional limit that may be equitably tolled to ensure parties a full thirty days to file exceptions to arbitration awards.

 

For the foregoing reasons, we find that the thirty‑day filing period in § 7122(b) is not a jurisdictional limit, and we overrule HUD and other Authority precedent to the contrary. Moreover, we find that § 7122(b)’s non‑jurisdictional filing period is subject to equitable tolling. In that regard, the dissent’s attempt to distinguish the Supreme Court precedent on which we rely is unpersuasive.^[26] Specifically, the dissent fails to explain why we should not follow the Supreme Court’s repeated instructions that statutory filing deadlines are presumptively claims-processing rules, rather than jurisdictional restrictions.^[27]

 

In finding that HUD should be overruled, we have not overlooked that, under § 2429.23(d) of the Authority’s Regulations, the “‍[‍t‍]‍ime limit‍[‍] established in . . . [‍§ ‍]‍7122(b) may not be extended or waived.”^[28] And we acknowledge that the Authority has sometimes conflated extending or waiving the time limit for filing exceptions with equitably tolling the filing period for exceptions.^[29] But those are distinct concepts. In that regard, the Authority may extend an unexpired filing period for “good cause”^[30] and may waive certain expired time limits in “extraordinary circumstances.”^[31] But in contrast to an extension, equitable tolling operates without the Authority’s advance approval and               (as discussed further below) requires a much higher showing than “good cause.” And in contrast to a waiver, equitable tolling does not excuse an expired time limit but, rather, pauses the running of a filing period so that a time limit does not expire when it otherwise would. Because of these distinctions, § 2429.23(d)’s prohibition on extending or waiving the time limit for filing arbitration exceptions does not preclude applying equitable tolling to § 7122(b)’s filing period, if tolling is otherwise appropriate.

 

                Here, the Agency contends that equitable tolling is warranted due to the shutdown. Based on case law from the U.S. Court of Appeals for the First Circuit, the Authority has previously examined five factors to determine whether to equitably toll a filing deadline.^[32] But the Supreme Court’s decisions regarding equitable tolling do not employ those factors. Rather, the Supreme Court recognizes two basic requirements for equitable tolling: (1) that some extraordinary circumstances stood in a party’s way to “prevent‍[‍] timely filing”; and (2) that the party was “pursuing [‍its‍] rights diligently.”^[33] (Although the dissent implies that equitable tolling should apply only in “very specific situations,” such as those that the dissent identifies,^[34] the Supreme Court’s equitable‑tolling case law does not support the dissent’s implication.) Further, both the Merit Systems Protection Board^[35] and the Equal Employment Opportunity Commission^[36] rely on those two requirements to evaluate requests for equitable tolling. To bring the Authority’s equitable‑tolling case law into accord with the guidance of the Supreme Court and the practices of other administrative agencies, we will rely on the two requirements above to evaluate the Agency’s equitable‑tolling request.

 

As to whether extraordinary circumstances stood in the way of the Agency’s timely filing, we note that the Authority suspended normal operations from October 1 through October 16, 2013, due to the shutdown.^[37] There is no dispute that, during the same period, the Agency’s representative could not perform Agency work and, consequently, could not file an exception with the Authority.^[38] Thus, we find that the shutdown was an extraordinary circumstance that prevented the Agency from filing its exception for sixteen days – specifically, from October 1 through October 16.^[39]

 

Concerning the Agency’s diligence in pursuing its rights, the Agency’s exception was postmarked on October 18, just one day after the President signed into law the Continuing Appropriations Act, 2014,^[40] which permitted normal federal government operations to resume. The Agency’s prompt filing after the end of the shutdown shows diligence and supports applying equitable tolling here.^[41] Moreover, as mentioned earlier, the Authority gave the Union an opportunity to reply to the Agency’s request for equitable tolling, and the Union did not reply to challenge the request. Considering the Agency’s diligent pursuit of its rights, we find that the filing period for the Agency’s exception was equitably tolled from October 1 through October 16.

 

In finding that equitable tolling applies here, we reject the dissent’s contrary approach: insisting that the exceptions‑filing deadline is a jurisdictional limit that cannot be tolled, while simultaneously tolling it.^[42] The dissent attempts to reconcile those two conflicting conclusions based on the purportedly “obvious and simple” theory that the federal government was “frozen in time” during the shutdown.^[43] According to the dissent, because “time stopped” in October 2013, there is no need for any further analysis to find that the exception in this case is timely.^[44] This theory has no basis in law.

 

As mentioned previously, the Arbitrator served his award on the parties by mail on September 5, 2013. After equitably tolling the exceptions‑filing period for the duration of the shutdown, and consistent with the deadline‑calculation methods set forth in § 2429.21 of the Authority’s Regulations,^[45] the Agency had until October 28, 2013, to timely file its exception. And because the Agency’s exception was postmarked October 18, 2013, consistent with the foregoing analysis, the exception was timely filed.

 

 

 

The Agency’s first nonfact argument challenges the Arbitrator’s statement that the Agency’s bargaining‑unit‑status argument was untimely raised. Where an arbitrator states that an argument is untimely but nevertheless addresses that argument on its merits, a challenge to the arbitrator’s timeliness statements does not establish a deficiency in the  award because such statements are mere dicta.^[47] Here, the Arbitrator addressed the Agency’s bargaining‑unit‑status argument on its merits, so the Agency’s challenge to the Arbitrator’s dicta regarding timeliness does not establish a deficiency in the award.^[48]

 

The Agency’s second nonfact argument challenges the Arbitrator’s finding that the grievant was a bargaining‑unit member during the period covered by the grievance. In examining nonfact exceptions, the Authority has long held that disagreement with an arbitrator’s evaluation of evidence, including the determination of the weight to be accorded such evidence, provides no basis for finding an award deficient.^[49] In this dispute, the Arbitrator relied on a personnel-action notice to determine that the grievant was a member of the bargaining unit during the relevant time period, and the Agency’s challenge to the Arbitrator’s evaluation and weighing of that evidence does not establish that the award is deficient.^[50] (We note, moreover, that the dissent’s statement of the law in this area is inaccurate. In stark contrast to the dissent’s central argument, the Authority has held – in              well-established precedent – that an employee may “remain‍[‍] a beneficiary of the protections” of a collective‑bargaining agreement while detailed to a supervisory position.^[51]) Thus, neither the Agency, nor the dissent, has established that the award is based on nonfacts.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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