Last week, the D.C. Circuit decided Simmons v. Rubio, a case about the deadline to seek review of a decision of the Foreign Service Grievance Board. The plaintiff is a foreign service officer who filed a grievance about her treatment at work. The Foreign Service Act permits officers to file a complaint in district court “not later than 180 days after the final action of the Secretary or the Board.” 22 U.S.C. § 4140(a).

In an opinion by Judge Rogers, the court reaffirmed its longstanding rule from Outland v. Civil Aeronautics Board that “[w]here a motion for rehearing is . . . filed there is no final action until the rehearing is denied.” The government’s argument relied on Artis v. District of Columbia, a 2018 Supreme Court decision holding that “toll[ing]” under 28 U.S.C. § 1367(d) refers to a pause in the running of the limitations period. The D.C. Circuit distinguished Artis as a case about the limitations period for claims refiled in state court after dismissal in federal court. For its part, the district court relied on United States v. Ibarra, a 1991 Supreme Court decision explaining that equitable tolling “usually” pauses the limitations period. But the D.C. Circuit noted that the Supreme Court in 2019 treated a motion for reconsideration in district court as resetting, rather than pausing, the limitations period.