United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued December 4, 2019            Decided February 14, 2020

                        No. 18-5180

                     GARY L. JACKSON,
                       APPELLANT

                              v.

   THOMAS B. MODLY, ACTING SECRETARY, THE UNITED
          STATES DEPARTMENT OF THE NAVY,
                     APPELLEE


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:16-cv-02186)


     Anthony F. Shelley, appointed by the court, argued the
cause as amicus curiae in support of appellant. With him on
the briefs was Dawn E. Murphy-Johnson.

    Gary L. Jackson, pro se, was on the briefs for appellant.

     Jane M. Lyons, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Jessie K. Liu, U.S.
Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Rhonda L. Campbell, Assistant U.S. Attorney, entered an
appearance.
                               2
   Before: HENDERSON and PILLARD, Circuit Judges, and
SENTELLE, Senior Circuit Judge.

    Opinion for the Court filed by Circuit Judge HENDERSON.

     KAREN LECRAFT HENDERSON, Circuit Judge: Gary L.
Jackson served in the United States Marine Corps from 1977
to 1991. Almost thirty years after his honorable discharge from
the Marine Corps, Jackson filed a pro se complaint against the
Secretary of the Navy (Secretary) alleging that toward the end
of his military career, his supervising officers discriminated
against him because of his race and sex (he is a black male) in
violation of Title VII of the Civil Rights Act of 1964 (Title
VII), 42 U.S.C. §§ 2000e et seq. In addition to Jackson’s Title
VII claim, the district court inferred other claims from his pro
se complaint, including one under the Administrative
Procedure Act (APA), 5 U.S.C. § 706(2)(A), and another under
the Military Pay Act, 37 U.S.C. § 204. The district court
ultimately dismissed all of Jackson’s claims and Jackson now
appeals.

     As detailed below, we join the unanimous rulings of our
sister circuits, concluding that Title VII does not apply to
uniformed members of the armed forces, and therefore affirm
the dismissal of Jackson’s Title VII claim. We also affirm the
dismissal of Jackson’s APA claim because it is untimely and
the facts alleged in the complaint are insufficient to apply
equitable tolling. In so holding, we also recognize that our
long-standing interpretation of the six-year statute of
limitations in 28 U.S.C. § 2401(a) as jurisdictional is no longer
correct in light of the United States Supreme Court’s decision
in United States v. Kwai Fun Wong, 

(2015). And,
last, we conclude that we lack jurisdiction to review the
dismissal of Jackson’s Military Pay Act claim.
                                3
                    I.   BACKGROUND

     This case involves Jackson’s claims of discrimination that
he allegedly suffered toward the end of his service with the
United States Marine Corps. Jackson served from 1977 until
his honorable discharge on January 15, 1991. His complaint
alleges that in 1988, while he was stationed at Henderson Hall,
Marine Corps Headquarters in Arlington, Virginia, assigned to
the Warehouse Chief position, he began to experience
discrimination, harassment and retaliation from his superiors.
For example, Jackson alleges that one of his superiors relocated
him to another section of the warehouse stating that he
“preferred that the number of Blacks not exceed the number of
whites in any one section of the Warehouse.” Compl. 9. He
also alleges that, among other things, his superiors intentionally
delayed responding to his request to attend a training academy,
placed false accusations in his military record and went to
extraordinary lengths to prevent his reenlistment. Jackson
alleges that, upon his discharge, one of his superiors said to
another, “we finally got Staff Sergeant Jackson . . . That’s one
less Black Staff Sergeant.” 

discharge, Jackson
alleges that he filed applications with the Board for Correction
of Naval Records multiple times from 1990 until 2000 to
remove derogatory material from his fitness record and thus
make him eligible for reenlistment but his attempts were
unsuccessful.

     On November 19, 2014, Jackson filed a charge of
discrimination with the Equal Employment Opportunity
Commission (EEOC) against the Marine Corps. The EEOC
responded that it lacked jurisdiction because Jackson’s
complaint was against a branch of the military and therefore
had to be filed initially with the Marines Corps. On December
9, 2014, Jackson filed his employment discrimination claim
with the Equal Employment Opportunity Office of the Marine
                                4
Corps (EEO Office). The EEO Office dismissed his complaint
under 29 C.F.R. § 1614.103(d)(1), stating that uniformed
military personnel of any branch of the armed forces are not
covered by Title VII. Jackson then appealed to the EEOC. The
EEOC affirmed the EEO Office’s decision on July 19, 2016,
also relying on § 1614.103(d)(1), and denied Jackson’s
subsequent request for reconsideration.

     On November 2, 2016, Jackson filed a pro se complaint in
district court, alleging employment discrimination against the
Secretary under Title VII. The Secretary moved to dismiss
Jackson’s complaint under Federal Rule of Civil Procedure
12(b)(1) and Rule 12(b)(6). The district court granted the
motion, dismissing Jackson’s claims under Rule 12(b)(1) for
lack of subject matter jurisdiction. Jackson v. Spencer, 313 F.
Supp. 3d 302, 311 (D.D.C. 2018). Construing Jackson’s pro se
complaint in the most favorable light, the district court inferred
additional claims under the Military Whistleblower Protection
Act, the Administrative Procedure Act (APA), the Military Pay
Act and the Federal Tort Claims Act (FTCA). 

The
district court dismissed all of Jackson’s claims, holding that
Title VII did not apply to uniformed members of the armed
forces, that the Military Whistleblower Protection Act does not
contain a private right of action and that his other claims were
untimely. 

     Jackson appealed pro se. We appointed counsel as amicus
to address whether Title VII applies to uniformed members of
the armed forces. Amicus for Jackson (Amicus) raises
arguments supporting Jackson’s Title VII, APA and Military
Pay Act claims. 1



    1
        We thank Amicus for the outstanding effort—both on brief
and in argument—and have found it to be of great assistance.
                                   5
                          II. ANALYSIS

                            A. Title VII

     We begin with the district court’s dismissal of Jackson’s
Title VII claim. Although the district court dismissed
Jackson’s Title VII claim for lack of subject matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1), the
district court should have dismissed the case for failure to state
a claim pursuant to Rule 12(b)(6). 2 We review the district
court’s dismissal for failure to state a claim under Rule 12(b)(6)
de novo, “taking as true the allegations of the complaint.” True
the Vote, Inc. v. IRS, 

, 555 (D.C. Cir. 2016).

     “Title VII of the Civil Rights Act of 1964 reflects the
American promise of equal opportunity in the workforce and
shields employees from certain pernicious forms of

     2
        In Arbaugh v. Y&H Corp., 

, 514–16 (2006), the
Supreme Court held that Title VII’s threshold requirement that an
“employer” have at least fifteen employees is not jurisdictional but
instead relates to the substance of the plaintiff’s claim for relief. The
Court reasoned that Title VII’s jurisdictional provision merely
requires that a claim be “brought under” that Title and held that, if a
restriction like the fifteen-employee threshold for employers under
Title VII is not “clearly state[d]” as jurisdictional, “courts should
treat the restriction as nonjurisdictional in character.” 

Here, just as the issue of whether a person is an “employer” subject
to the requirements of Title VII is nonjurisdictional, so is the issue of
whether a person is a covered “employee.” Nothing about Title VII’s
definition of employee or its provision extending protection to
federal employees “clearly states” that such provisions are intended
to be jurisdictional. See 

42 U.S.C. §§ 2000e(f),
2000e-16(a). The Secretary’s argument that Jackson is not entitled
to the protections of Title VII as a uniformed member of the armed
forces amounts to an argument that Jackson’s complaint fails to state
a claim for relief.
                               6
discrimination.” Figueroa v. Pompeo, 

, 1082–
83 (D.C. Cir. 2019) (citation omitted). As originally enacted,
Title VII did not apply to the federal government. Barnes v.
Costle, 

, 988 (D.C. Cir. 1977). In 1972, however,
the Congress extended the protections of Title VII to federal as
well as state and local employees in the Equal Employment
Opportunity Act of 1972, Pub. L. No. 92–261, § 11, 86 Stat.
103, 111–13 (codified at 42 U.S.C. §§ 2000e–16). As a result,
Title VII now provides, as relevant here, that “[a]ll personnel
actions     affecting    employees     or     applicants      for
employment . . . in military departments as defined in section
102 of Title 5” and other federal departments “shall be made
free from any discrimination based on race, color, religion, sex,
or national origin.” 42 U.S.C. § 2000e-16(a).

     The issue before us is whether Title VII, specifically, the
provision covering federal employees, § 2000e-16(a), applies
to uniformed members of the armed forces of the United States
military. We have never squarely addressed this issue. But see
Milbert v. Koop, 

, 358 (D.C. Cir. 1987) (assuming
arguendo Title VII does not apply to members of armed
forces). But we note at the outset that every one of our sister
circuits to address this question has concluded—albeit based
on varying rationales and depths of analysis—that the answer
is no. See, e.g., Brown v. United States, 

, 299 (5th
Cir. 2000); Coffman v. Michigan, 

, 59 (6th Cir.
1997); Randall v. United States, 

, 343 (4th Cir.
1996); Stinson v. Hornsby, 

, 1539 (11th Cir.
1987), cert. denied, 

(1988); Roper v. Dep’t of the
Army, 

, 248 (2d Cir. 1987); Salazar v. Heckler,

, 530 (10th Cir. 1986); Gonzalez v. Dep’t of the
Army, 

, 928–29 (9th Cir. 1983); Johnson v.
Alexander, 

, 1224 (8th Cir.), cert. denied 

(1978).
                                7
     With this unanimous precedent from our sister circuits in
mind, we begin our analysis with the text. See S.C. Pub. Serv.
Auth. v. F.E.R.C., 

, 55 (D.C. Cir. 2014) (per
curiam) (“In addressing issues of statutory interpretation, the
court must begin with the text, turning as need be to the
structure, purpose, and context of the statute.”); Janko v. Gates,

, 139–40 (D.C. Cir. 2014). Here, the relevant text
of Title VII provides that “employees or applicants for
employment . . . in military departments as defined in section
102 of Title 5. . . shall be made free from” unlawful
discrimination. 42 U.S.C. § 2000e-16(a).

     At the outset of our textual analysis, we clarify—and
ultimately reject—a textual hook other courts and the Secretary
here erroneously rely upon to reach the conclusion that Title
VII does not include uniformed members of the armed forces—
namely, the term “military departments.” The argument is
based on Title VII’s reference to the definition of military
departments in section 102 of Title 5 of the United States Code,
which organizes the federal government. See 5 U.S.C. §§ 101,
et seq. Title 5 defines “military departments” as “The
Department of the Army. The Department of the Navy. The
Department of the Air Force.” 

Title 10 of the United
States Code—codifying the Congress’s structuring of the
military—has the same definition of “military departments.”
10 U.S.C. § 101(a)(8). Both Title 5 and Title 10 separately
define the “armed forces” as “the Army, Navy, Air Force,
Marine Corps, and Coast Guard.” 5 U.S.C. § 2101(2); 10
U.S.C. § 101(a)(4). Thus, other courts and the Secretary here
conclude that, because the Congress treats “military
departments” and “armed forces” as distinct terms, uniformed
members of the armed forces are not covered by Title VII. See,
e.g., 

(“The two differing definitions
show that Congress intended a distinction between ‘military
departments’ and ‘armed forces,’ the former consisting of
                                  8
civilian employees,        the   latter   of   uniformed      military
personnel.”). 3

      In fact, a quick review of the Congress’s structuring of the
military in Title 10 shows that uniformed members of the
armed forces are within the umbrella of the military
departments. Several Title 10 provisions make clear that the
term “armed forces” refers to the uniformed fighting forces
within the three “military departments.”                  See 10
U.S.C. § 101(a)(6) (defining “‘department,’ when used with
respect to a military department” as including, inter alia, “the
executive part of the department and all . . . forces”);

(“[T]he Army, within the Department of the
Army, includes land combat and service forces and such
aviation and water transport as may be organic therein.”);

(“The Department of the Navy is composed
of . . . [t]he entire operating forces, including naval aviation, of
the Navy and of the Marine Corps, and the reserve components
of those operating forces.”). For example, the “Department of
the Army” contains both civilian employees as well as the
“Army”—defined as “combat and service forces.” 4 See

7062(b). Thus, the military departments
contain both civilian employees and the armed forces, see

(“The great ‘military

     3
        It appears that other courts took the Ninth Circuit’s erroneous
textual distinction in 

, at face value without
conducting their own textual analysis and based their decisions at
least in part on that reasoning. See, e.g., 

;

n.3; 

.
     4
        “The Marine Corps is an organization within the Department
of the Navy, which is one of the ‘military departments’ which
Congress has defined. The Coast Guard is a military service and one
of the armed forces of the United States which serves as a component
of the Navy in time of war or when the President so directs.”

n.5.
                                9
departments’. . . referred to in 5 U.S.C. § 102 include not only
uniformed personnel of various ranks and grades but also of
thousands of men and women employed in civilian
capacities.”), and, accordingly, that term on its own, contrary
to what other courts have concluded, in fact supports an
interpretation that Title VII covers uniformed members of the
armed forces.

     Nevertheless, our analysis does not stop with the term
“military departments.” The Congress specifically chose to say
“employees . . . in military departments as defined in section
102 of Title 5.” 42 U.S.C. § 2000e-16(a) (emphases added).
The reference to section 102 of Title 5 is significant. First, the
Congress explained that the civil-service legislation creating
section 102, along with the rest of Title 5, was enacted to codify
“the general and permanent laws relating to the organization of
the Government of the United States and to its civilian officers
and employees.” Act of Sept. 6, 1966, Pub. L. No. 89-554, 80
Stat. 378 (emphasis added). The Congress could have chosen
to define “military departments” with reference to section 101
of Title 10 that organized the United States military several
years earlier, see Act of Aug. 10, 1956, Pub. L. No. 1028, 70A
Stat. 1, 3–4, 84 Cong. Ch. 1041, but instead it chose to
reference the title that was codified to organize the civilian
officers and employees of the United States government. This
choice, albeit not conclusive, is one indication that the
Congress was referring to civilian employees within the
military departments by referencing Title 5.

     Second, and more importantly, in the same legislation that
defined “military departments” under section 102 of Title 5, the
Congress also defined “employees” under that title.
See § 2105, 80 Stat. at 409. It defined “employee” as “an
officer and an individual who is—(1) appointed in the civil
service” by one of the various persons listed under that
                                10
provision. 5 U.S.C. § 2105(a). It defined “civil service” as
consisting of “all appointive positions in the executive, judicial,
and legislative branches of the Government of the United
States, except positions in the uniformed services.”

(emphasis added). “[U]niformed services”
means “the armed forces, the commissioned corps of the Public
Health Service, and the commissioned corps of the National
Oceanic and Atmospheric Administration.” 

(emphasis added). Putting all of these provisions together, we
believe the Congress provided that “employees” in the “civil
service” of the United States do not include the “armed forces.”
Therefore, when the Congress amended Title VII against this
backdrop six years later, § 11, 86 Stat. at 111–13, and
specifically referenced section 102 of Title 5, it extended Title
VII protections only to federal civilian employees within the
military departments, not members of the armed forces that it
considered to be outside the definition of employees in the
federal civil service.

     It is true that Title VII has its own definition of
“employee,” which it generally defines as “an individual
employed by an employer.” 42 U.S.C. § 2000e(f). The
Congress did not amend that definition in 1972 when it added
federal employees to Title VII. But it likely saw no need to
make a change. As manifested by Title 5’s definitions, it did
not consider members of the armed forces to be federal
employees within the civil service. Moreover, looking to Title
5’s definition of employee to determine whether the Congress
intended to include uniformed members of the armed forces
under Title VII does not change the broad general definition of
employee under Title VII; rather, it indicates that the Congress
did not consider a uniformed member of the armed forces to be
“an individual employed by an employer” within that general
definition in setting Title VII’s scope. 

argues that our reliance on Title 5’s definition of
employee is barred by our decision in Spirides v. Reinhardt,

(D.C. Cir. 1979). Not so. In Spirides, we
considered whether the plaintiff, who worked as a foreign
language broadcaster for the Greek Service (a division of the
United States International Communication Agency), was an
“employee” covered by Title VII or an independent contractor.

In doing so, we rejected the defendant’s
exclusive reliance on the definition of employee found in the
civil service laws of Title 5 because independent-contractor
status “calls for application of the general principles of the law
of agency.” 

There is no assertion here, however,
that Jackson is an independent contractor, nor was Spirides a
member of the armed forces. In this case, we look to the
definition of employee in Title 5 not to displace the test for
distinguishing independent contractors from employees but to
determine whether “employees” in § 2000e-16(a) encompass
uniformed servicemembers.             Crucially, the Congress
specifically chose to reference the civil service laws for
“employees or applicants for employment . . . in military
departments.” 42 U.S.C. § 2000e-16(a). Thus, Title VII
defines military departments by express reference to the civil
service laws. Put differently, unlike in Spirides, here we have
reason to look to the definition of employee in Title 5 because
the Congress explicitly directed us there.

     The Congress’s incorporation of the civil service
definition of employee in Title 5, which does not cover
uniformed members of the armed forces, comports with the
unique nature of the armed forces as composed of
“individual[s]” not “employed by an employer” within the
meaning of Title VII. 42 U.S.C. § 2000e(f). When compared
to traditional civilian employment, military service differs
substantially. Those differences show that, at least in the
                                 12
context of Title VII, uniformed members of the armed forces
are not “employees” as defined by the statute. See 

manner in which uniformed members of the
armed forces and the military terminate the work relationship
is different from normal employment. 5 Uniformed members
of the armed forces are not free to leave their positions in the
military in most instances. See 

n.4
(“An enlisted man in the Army, for example, is not free to quit
his ‘job,’ nor is the Army free to fire him from his
employment.”). If an enlisted serviceman or a commissioned
officer attempts to leave the military or refuses to work before
the required time of service is completed, he can be punished
by court-martial. See, e.g., 10 U.S.C. §§ 886, 890, 892. Such
a court-martial can result in imprisonment, see e.g., Ortiz v.
United States, 

, 2168 (2018) (“Courts-martial
try service members . . . and can impose terms of imprisonment
. . .”); United States v. Sanchez-Cortez, 

, 358–59
(5th Cir. 2008) (per curiam) (criminal defendant had previously
been convicted and imprisoned by court-martial for 114 days’
confinement for being absent without leave in violation of 10
U.S.C. § 886 (Art. 86 of the Uniform Code of Military
Justice)), and, during times of war, desertion or attempted


     5
       In this discussion, we borrow two factors we have previously
used to distinguish between employees and independent
contractors—the manner in which the work relationship is
terminated and the intention of the parties—to emphasize the
uniqueness of military service when compared to civilian
employment. See 

. Of course, for the
reasons 

, the employee versus independent
contractor analysis in Spirides is different from the issue before us.
Nevertheless, we find two of the factors from that analysis
particularly helpful here to highlight how military service differs
from the typical employment relationship.
                                  13
desertion can even result in the death penalty, 6 10
U.S.C. § 885(c). We can think of no other occupation in which
these types of restrictions are placed upon terminating the work
relationship. 7 See Brown v. Glines, 

, 354 (1980)
(“The military is, ‘by necessity, a specialized society separate
from civilian society.’” (quoting Parker v. Levy, 

,
743 (1974))).

     Second, the parties here—service members and the
government—intend their relationship to be distinct from
traditional employment. Members of the armed forces
volunteer to serve in the military, understanding that they must
complete their service with all of its burdens, sacrifices and
duties or face possible loss of liberty. Likewise, the
government expects that uniformed members will complete
their duties and follow orders and will not hesitate to enforce
the consequences of members failing to do so. 

that they always are capable of performing their mission

     6
        The last time the United States executed a soldier for desertion
was 1945. See Lieutenant Commander Rich Federico, The Unusual
Punishment: A Call for Congress to Abolish the Death Penalty
Under the Uniform Code of Military Justice for Unique Military,
Non-Homicide Offenses, 18 Berkeley J. Crim. L. 1, 21 (2013) (“The
last soldier executed for desertion was Private Eddie Slovik in
1945.”). Still, the fact remains that unlike other jobs, if a soldier
attempts to leave the military in certain contexts, the consequence
can be loss of freedom or even life.
     7
        Amicus argues that professional basketball star LeBron James
is not free to leave one team and play for another under the National
Basketball Association’s rules and that federal employees can be
required to work during government shutdowns. But Amicus misses
the point. It is the threatened loss of liberty—or even life—that
makes the relationship between uniformed members and the
government in military service unique. LeBron James may be
contractually barred from joining another team but he will not be
jailed for walking off the court.
                               14
promptly and reliably, the military services ‘must insist upon a
respect for duty and a discipline without counterpart in civilian
life.’” 

v. Councilman, 

,
757, (1975))).

     Other aspects of military service make it unique from
traditional employment.        Although uniformed members
currently volunteer to serve, were the government to re-
institute the draft pursuant to the Selective Service Act,
individuals could be forced to join the military. See United
States v. Nugent, 

, 9 (1953) (“The Selective Service
Act is a comprehensive statute designed to provide an orderly,
efficient and fair procedure to marshal the available manpower
of the country, to impose a common obligation of military
service on all physically fit young men.”). Additionally,
members of the armed forces are subject to a different set of
laws and justice system from those governing civilian
employees. See 

n.4 (“[T]he soldier
is subject not only to military discipline but also to military
law.”); 

–52 (discussing “very
significant differences between military law and civilian law
and between the military community and the civilian
community” under Uniform Code of Military Justice). We
therefore agree with the Eighth Circuit’s reasoning that,
because military service “differs materially” from “ordinary
civilian employment,” uniformed members of the armed forces
are not employed by the government within the meaning of
Title VII. 

–24.

     We do not, of course, hold today that, because military
service is distinct from traditional employment, the military is
free to discriminate. Indeed, pursuant to Marine Corps Order
(MCO) 5354.1E, the military is prohibited from engaging in
unlawful discrimination, including in the employment
                                  15
context. 8 See MCO 5354.1E vol. 2, ¶ 0108 (June 15, 2018).
Likewise, we do not hold that, because military service is
unique, uniformed members of the armed forces can never be
considered “employees” of the federal government. The
Congress is free to so define them. Here, it has not done that.
In fact, it has done the opposite—the text, structure and context
of § 2000e-16(a) demonstrate that the Congress did not intend
uniformed members of the armed forces to come within the
protections of Title VII.

     Apart from the text and structure of Title VII, we also must
take into account that every circuit court of appeals to address

    8
        MCO 5354.1E provides in relevant part:

               0108 UNLAWFUL DISCRIMINATION
               Any conduct whereby a Service member or
         DOD employee knowingly and wrongfully and
         without proper authority but with a nexus to military
         service treats another Service member or DOD
         employee adversely or differently based on race,
         color, national origin, religion, sex (including
         gender identity), or sexual orientation [constitutes
         unlawful discrimination]. Unlawful discrimination
         includes actions or efforts that detract from equal
         opportunity, with respect to the terms, conditions, or
         privileges of military service including, but not
         limited to, acquiring, assigning, promoting,
         disciplining, scheduling, training, compensating,
         discharging, or separating. This definition excludes
         justifiable conduct that discriminates on the basis of
         characteristics (including, but not limited to, age,
         height, and weight) that serve a proper military or
         other governmental purpose as set forth in other
         military policies.

    MCO 5354.1E vol. 2, ¶ 0108 (June 15, 2018).
                                 16
this issue since 1978 has held that uniformed members of the
armed forces are not included within the protections of Title
VII, 9 see, e.g., 

n.3 (collecting cases);
in addition, the Congress has never amended Title VII to add
uniformed members of the armed forces to the statute. The
Supreme Court has held that “Congress’ failure to disturb a
consistent judicial interpretation of a statute may provide some
indication that ‘Congress at least acquiesces in, and apparently
affirms, that [interpretation].’” Monessen Sw. Ry. Co. v.
Morgan, 

, 338 (1988) (quoting Cannon v. Univ.
of Chicago, 

, 703 (1979))). This indication is
particularly strong if evidence exists of the Congress’s
awareness of and familiarity with such an interpretation. See
Bob Jones Univ. v. United States, 

, 599–602
(1983).

     Although we recognize the limited value of congressional
acquiescence as an interpretive tool, see Cent. Bank of Denver,
N.A. v. First Interstate Bank of Denver, N.A., 

, 186
(1994), we nevertheless find the Congress’s inaction for over
forty years particularly significant for a couple of reasons.
First, the Congress has amended various parts of Title VII over
the years, including the specific provision at issue here, 42
U.S.C. § 2000e-16(a), see Pub. L. No. 104–1, § 201, 109 Stat.
3 (1995); Pub. L. No. 105–220, § 341, 112 Stat. 936 (1998),
but has never sought to override our sister circuits’
determination that uniformed members of the armed forces are
not included under Title VII. 10 See Merrill Lynch, Pierce,

     9
        The only court to conclude otherwise was the Eastern District
of New York in Hill v. Berkman, 

, 1238 (E.D.N.Y.
1986). That decision was later reversed by the Second Circuit. See

.
     10
         We also note that our sister circuits have interpreted other
federal anti-discrimination laws in addition to Title VII not to apply
to uniformed members of the armed forces. See Coffman, 

Fenner & Smith, Inc. v. Curran, 

, 382 n.66 (1982)
(“Congress is presumed to be aware of an administrative or
judicial interpretation of a statute and to adopt that
interpretation when it re-enacts a statute without change.”
(quoting Lorillard v. Pons, 

, 580–581 (1978))). 11

     Second, aware of the growing body of circuit decisions
consistently holding Title VII inapplicable to uniformed
servicemembers, the Congress has legislated close and
systematic oversight of the military’s substitute system for
addressing race and sex discrimination in the armed forces. See
10 U.S.C. § 481. In 1994 it required the Department of Defense
to conduct a biennial survey and report to include “the
effectiveness of current processes for complaints on and
investigations into racial and ethnic discrimination” in the

at 59 (Americans with Disabilities Act); Baldwin v. U.S. Army, 

, 101 (2d Cir. 2000) (same); Spain v. Ball, 

, 63
(2d Cir. 1991) (Age Discrimination in Employment Act); Helm v.
California, 

, 509 (9th Cir. 1983) (same); Kawitt v.
United States, 

, 953–54 (7th Cir. 1988) (same); Doe v.
Garrett, 

, 1461–62 (11th Cir.1990) (Rehabilitation
Act).
      11
         We have recognized that this interpretive canon based on the
Congress’s ratification of an interpretation is of limited usefulness if
the Congress has neither re-enacted a statute nor amended the
specific provision at issue. See Pub. Citizen, Inc. v. U.S. Dep’t of
Health & Human Servs., 

, 668 (D.C. Cir. 2003). Here,
however, the Congress has amended the specific provision to make
clarifications and add specific government agencies such as the
Government Printing Office and the Smithsonian Institution. See
Pub. L. No. 104–1, § 201, 109 Stat. 3 (1995); Pub. L. No. 105–220,
§ 341, 112 Stat. 936 (1998). We have also noted that for the canon
to carry any weight, there must be “some evidence of (or reason to
assume)” that the Congress is familiar “with the . . . interpretation at
issue.” Pub. 

. As explained infra, we have
reason to assume the Congress’s awareness.
                                   18
armed forces. National Defense Authorization Act for Fiscal
Year 1995, Pub. L. No. 103-337, § 554(a), 108 Stat. 2773
(1994).     Through four amendments, the Congress has
intensified its attention to the special Equal Employment
Opportunity processes and standards that apply to the armed
forces. It acted first to add gender discrimination and make the
surveys annual, Pub. L. No. 104-201, § 571(c), 110 Stat. 2532
(1996), second, to create four separate quadrennial surveys on
race and sex discrimination in the active and reserve forces,
Pub L. No. 107-314, § 561(a), 116 Stat. 2553 (2002), third, to
add “harassment” and “assault” as subjects of interest in
addition to “discrimination,” Pub. L. No. 112-239, § 570, 126
Stat. 1752 (2013), and, last, to further define “assault” as
“(including unwanted sexual contact),” Pub. L. No. 116-
92, § 591, 133 Stat. 1198 (2019). The Department of Defense
is required periodically to submit “Armed Forces Workplace
and Equal Opportunity Surveys” to the Congress. 10
U.S.C. § 481(d)-(e). The Congress’s engagement with the
efficacy of the military’s internal systems to combat sex and
race discrimination provides added assurance of its awareness
and approval of the inapplicability of Title VII itself to the
armed forces. 12


     12
         We also find significant the Congress’s efforts to clarify
whether members of the Public Health Service Commissioned Corps
(PHSCC) were covered by Title VII. See Middlebrooks v. Leavitt,

, 345 (4th Cir. 2008) (explaining that courts disagreed
about whether the PHSCC was covered under Title VII and that
“Congress responded to this debate by enacting the [HPEPA of
1998], which added subsection (f) to 42 U.S.C. § 213 (2000)”). To
effect this clarification, the Congress chose the following language:
“Active service of commissioned officers of the [PHSCC] shall be
deemed to be active military service in the Armed Forces of the
United States for purposes of all laws related to discrimination on
the basis of race, color, sex, ethnicity, age, religion, and disability.”
                                 19
     Nevertheless, Amicus argues that our conclusion here is
controlled by our decision in Cummings v. Department of the
Navy, 

(D.C. Cir. 2002). We disagree. In
Cummings we held that members of the armed forces could sue
the military for damages under the Privacy Act. 

Amicus relies on the fact that we construed the term “military
department” in the Privacy Act to include uniformed members
of the armed forces, see 

that we must likewise
interpret Title VII’s use of that term to include uniformed
members. First, the Privacy Act’s language does not refer to
employees of the military departments like Title VII; it defines
the term “agency” to include, among other things
“any . . . military department” for the purpose of the Privacy
Act. See 5 U.S.C. § 552(f)(1). Second, in Cummings, we noted
that the Privacy Act contained specific exemptions that “would
be unnecessary if military servicepersons were excluded from
the Privacy Act 

(quoting
Cummings v. Dep’t of the Navy, 

, 78 n.5
(D.D.C. 2000)). For example, it included one exemption for
“evaluation material used to determine potential for promotion
in the armed services.” 

(quoting 5 U.S.C.
§ 552a(k)(7)).       Title VII contains no such provision
demonstrating an intent to protect uniformed members of the
armed forces. Thus, Cummings is distinguishable and does not
control our decision here.


42 U.S.C. § 213(f) (emphasis added). The Congress could have
simply said that the PHSCC officers are not covered by anti-
discrimination laws but, instead, it specifically chose to ground the
amendment in the term “Armed Forces” to delineate that such forces
are not covered by the nation’s anti-discrimination laws. This
legislation appears not only to recognize what circuit courts have
held but also to go further, explicitly ratifying the view that
uniformed members of the armed forces are not covered by anti-
discrimination statutes like Title VII.
                               20
     Before concluding, we also note that some courts that
reached the same conclusion we reach today have done so
based on rationales that we decline to use. First, some courts
have based their Title VII conclusion on the “Feres doctrine,”
which doctrine originated in Feres v. United States, 

(1950). See, e.g., Hodge v. Dalton, 

, 710 (9th
Cir. 1997). In Feres, the Supreme Court held that “the
Government is not liable under the Federal Tort Claims Act for
injuries to servicemen where the injuries arise out of or are in
the course of activity incident to 

,
despite language in the FTCA defining “employee of the
government” to include “members of the military or naval
forces of the United States.” 28 U.S.C. § 2671. Although
Feres remains good law, it has been severely criticized. See
United States v. Johnson, 

, 700–01 (1987) (Scalia,
J., dissenting) (“Feres was wrongly decided and heartily
deserves the ‘widespread, almost universal criticism it has
received.’” (quoting In re “Agent Orange” Prod. Liab. Litig.,

, 1246 (E.D.N.Y. 1984))); Lanus v. United
States, 

(2013) (Thomas, J., dissenting from denial
of certiorari) (“There is no support for [Feres’s] conclusion in
the text of the statute, and it has the unfortunate consequence
of depriving servicemen of any remedy when they are injured
by the negligence of the Government or its employees.”).
Because we find sufficient independent bases to conclude that
Title VII does not apply to uniformed members of the armed
forces, we do not rely on Feres to reach our conclusion. For
this reason, we do not extend the doctrine to Title VII. See
Lombard v. United States, 

, 233 (D.C. Cir. 1982)
(Ginsburg, J., concurring in part and dissenting in part) (“While
lower courts are bound by the Supreme Court’s decision in
Feres, they are hardly obliged to extend the limitation . . . .”).

     Second, some courts have relied on the EEOC’s regulation
interpreting Title VII to exclude uniformed members of the
                               21
armed forces to deny such members’ claims under Title VII,
basing their decision on the EEOC’s authority to promulgate
rules interpreting 42 U.S.C. § 2000e-16(a). See 

–08; 

. The EEOC regulation
states that its general prohibition against discrimination under
Title VII, the ADEA, the Rehabilitation Act, the Equal Pay Act,
and the Genetic Information Nondiscrimination Act “does not
apply to: (1) Uniformed members of the military departments
referred to in paragraph (b)(1) of this section.”             29
C.F.R. § 1614.103(a), (d)(1). Amicus raises procedural and
substantive challenges to the EEOC’s regulation treating Title
VII as inapplicable to “uniformed members of the military
departments” but we do not credit those arguments because the
Commission’s reading is compelled by the statutory text. See

.

     Therefore, based on the text, structure and context of 42
U.S.C. § 2000e-16(a) as well as the Congress’s subsequent
actions in light of the unanimous circuit precedent on the issue,
we hold that Title VII does not apply to uniformed members of
the armed forces. As such, we affirm the district court’s
dismissal of Jackson’s Title VII claim.

                       B. APA Claim

     Amicus also appeals the district court’s dismissal of
Jackson’s APA claim. The district court inferred an APA claim
challenging the decisions of the Board for Correction of Naval
Records regarding Jackson’s fitness records and his
reenlistment code. 

. We first
note that, despite the Secretary’s arguments to the contrary, the
APA claim is properly before us. The district court liberally
construed Jackson’s pro se complaint to include claims beyond
Title VII. Indeed, the Secretary himself suggested in his
motion to dismiss that Jackson could be raising an APA claim.
                              22
Def.’s Mem. Supp. Mot. Dismiss 18. Moreover, although we
appointed Amicus principally to address the Title VII claim,
we did not otherwise limit the arguments or claims he could
raise on appeal on Jackson’s behalf. Order No. 1762275 at 1
(No. 18-5180) (D.C. Cir. Nov. 30, 2018).

                              1.

     The parties do not dispute that Jackson’s APA claim is
time-barred by the six-year statute of limitations in 28 U.S.C.
§ 2401(a) for all civil actions commenced against the United
States. Instead, they dispute whether § 2401(a)’s statute of
limitations is a jurisdictional bar—thereby divesting the court
of jurisdiction as well as its ability to consider an equitable
tolling argument—or whether it is non-jurisdictional.

     The long-held rule in our circuit has been “that section
2401(a) creates ‘a jurisdictional condition attached to the
government’s waiver of sovereign immunity.’” P & V Enters.
v. U.S. Army Corps of Eng’rs, 

, 1026 (D.C. Cir.
2008) (quoting Spannaus v. U.S. Dep’t of Justice, 

,
55 (D.C. Cir. 1987)). Recently, however, especially after the
Supreme Court’s decision in Kwai Fun Wong, which held the
two-year statute of limitations in § 2401(b) to be

, the soundness of our
precedent has been called into doubt. See, e.g., Jafarzadeh v.
Nielsen, 

, 37 n.7 (D.D.C. 2018) (“Given the
Supreme Court’s clear strictures on this issue, which have
undermined the foundations of Spannaus and similar cases, the
D.C. Circuit ought to reconsider its § 2401(a) precedents.”).
Since Kwai Fun Wong, the Sixth and Tenth Circuits have held
that, based on the Supreme Court’s opinion in that
case, § 2401(a) is not jurisdictional. 13 Chance v. Zinke, 898

    13
          Even before Kwai Fun Wong, the Ninth Circuit held
that § 2401(a) is not jurisdictional. Cedars–Sinai Med. Ctr. v.
                                  

, 1033 (10th Cir. 2018); Herr v. U.S. Forest Serv.,

, 817–18 (6th Cir. 2015). Although we have
previously “questioned the continuing viability” of our rule
without addressing the issue directly, see Mendoza v. Perez,

, 1018 n.11 (D.C. Cir. 2014) (citing P & V

& n.2; Felter v. Kempthorne, 

, 1260 (D.C. Cir. 2007); Harris v. F.A.A., 

, 1013 n.7 (D.C. Cir. 2004)), we now do so. Accordingly,
we hold today that the Supreme Court’s decision in Kwai Fun
Wong overrules our precedent treating § 2401(a)’s statute of
limitations as jurisdictional. 14



Shalala, 

, 770–71 (9th Cir. 1997). The Fifth Circuit did
the same, see Clymore v. United States, 

, 374 (5th Cir.
2000) (“[T]he doctrine of equitable tolling has potential application
in suits . . . governed by the statute of limitations codified at 28
U.S.C. § 2401(a).”), but subsequent Fifth Circuit precedent is less
clear, compare Doe v. United States, 

, 802 (5th Cir.
2017), as revised (Apr. 12, 2017) (“Although courts may equitably
toll § 2401(a), they do so ‘sparingly.’” (citation omitted) (quoting
Nat’l R.R. Passenger Corp. v. Morgan, 

, 113 (2002))),
and Louisiana v. U.S. Army Corps of Eng’rs, 

, 584 (5th
Cir. 2016) (“Timeliness [under § 2401(a)] does not raise a
jurisdictional issue in this court.”), with Gen. Land Office v. U.S.
Dep’t of the Interior, 

, 318 (5th Cir. 2020) (“[Section
2401(a)’s] timing requirement is jurisdictional, because it is a
condition of the United States’ waiver of sovereign immunity.”).
      14
         “[W]e cannot overrule a prior panel’s decision, except via
an Irons footnote or en banc review . . . .” United States v. Emor, 

, 682 (D.C. Cir. 2015). “In an Irons footnote, named after
the holding in Irons v. Diamond, 

, 267–68 & n. 11 (D.C.
Cir. 1981), the panel ‘seek[s] for its proposed decision the
endorsement of the en banc court, and announce[s] that endorsement
in a footnote to the panel’s opinion.’” Oakey v. U.S. Airways Pilots
Disability Income Plan, 

, 232 n.1 (D.C. Cir. 2013)
(alteration in original) (quoting Policy Statement on En Banc
                                24
     “In recent years,” the Supreme Court has “repeatedly held
that procedural rules, including time bars, cabin a court’s
power” to hear a case—i.e., subject matter jurisdiction—“only
if Congress has ‘clearly state[d]’ as much.” Kwai Fun 

(alteration in original) (quoting Sebelius v.
Auburn Reg’l Med. Cent., 

, 153 (2013)).
Applying this “clear statement rule,” the Court has “made plain
that most time bars are nonjurisdictional.” 

In Kwai
Fun Wong, the Supreme Court explained that “Congress must
do something special, beyond setting an exception-free
deadline, to tag a statute of limitations as jurisdictional and so
prohibit a court from tolling 

. Based on
that rule, the Court held that the FTCA’s statute of limitations
in § 2401(b) was “not a jurisdictional requirement.” 

     Applying the Court’s ruling in Kwai Fun Wong
to § 2401(a), we reach the same conclusion. First, our
precedent treating § 2401(a) as a jurisdictional bar was
grounded in the belief that the provision is “attached to the
government’s waiver of sovereign immunity, and as such must
be strictly construed.” 

. In Kwai Fun
Wong, the Court flatly rejected this 

(“[I]t makes no difference that a time bar conditions a waiver
of sovereign immunity, even if the Congress enacted the
measure        when    different    interpretive     conventions
applied . . . .”). Second, like § 2401(b), § 2401(a) “does not
speak in jurisdictional terms or refer in any way to the
jurisdiction of the district courts”; rather, it “‘reads like an
ordinary, run-of-the-mill statute of limitations,’ spelling out a
litigant’s filing obligations without restricting a court’s
authority.” 

(first quoting 

;

Endorsement of Panel Decisions at 1 (Jan. 17, 1996)). Our resolution
here—recognizing the overruling of our precedent by the Supreme
Court’s decision in Kwai Fun Wong—has been approved by the en
banc court and thus constitutes the law of the circuit.
                                 25
then quoting Holland v. Florida, 

, 647 (2010));
see 28 U.S.C. § 2401(a) (“[E]very civil action commenced
against the United States shall be barred unless the complaint
is filed within six years after the right of action first accrues.”).
Also like § 2401(b), § 2401(a)’s filing deadline appears in a
section separate from the general jurisdictional grant of civil
actions against the federal government, see 28 U.S.C. § 1346;

, which the Supreme Court found to be
an indication “that the time bar is not jurisdictional.” Kwai Fun
Wong, 575 at 411.

     Third, we conclude that § 2401(a)’s origins in the Tucker
Act do not make it otherwise jurisdictional. We find the in-
depth analyses and reasoning of the Sixth and Tenth Circuits
on this point—differentiating between the separate provisions
of the Big Tucker Act and the Little Tucker Act—particularly
cogent and persuasive. See 

–17; 

–33. As those courts explained, although the
Supreme Court has affirmed the jurisdictional nature of the Big
Tucker Act’s statute of limitations, see 28 U.S.C. § 2501, its
affirmance was grounded solely in the doctrine of stare decisis;
further, the Congress altered the Little Tucker Act’s statute of
limitations—the provision from which § 2401(a) is derived—
by separating it from the jurisdictional grant and expanding its
reach. See 

–33; 

–17. As the Sixth Circuit explains, this alteration
“demonstrates that § 2401(a) was designed to serve as a
standard, mine-run statute of limitations without jurisdictional
qualities. That leaves us with a statute (§ 2401(a)) that does not
clearly impose a jurisdictional limit.” 

.

    Accordingly, we hold that § 2401(a)’s time bar is
nonjurisdictional and subject to equitable tolling. Our
                                 26
decisions to the contrary, see, e.g., 

,
are thus overruled. 15

                                 2.

     Having determined that § 2401(a)’s statute of limitations
is not jurisdictional, we turn to Jackson’s equitable tolling
argument in support of his APA claim. The district court
considered the merits of Jackson’s equitable tolling argument
and we review its dismissal of Jackson’s APA claim de novo.16
See Chung v. U.S. Dep’t of Justice, 

, 278 (D.C.
Cir. 2003). To demonstrate that he is entitled to the benefit of
equitable tolling, Jackson must show “(1) that he has been
pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Pace v. DiGuglielmo, 

, 418 (2005). We have described the remedy of
“equitable tolling as appropriate only in ‘rare instances
where—due to circumstances external to the party’s own
conduct—it would be unconscionable to enforce the limitation
period against the party and gross injustice would result.’”
Head v. Wilson, 

, 111 (D.C. Cir. 2015) (quoting
Whiteside v. United States, 

, 184 (4th Cir. 2014)).

     On appeal, Amicus argues that equitable tolling is
warranted because Jackson’s “debilitating mental anguish as a
result of the government’s misconduct prevented his timely
filing of the APA claim.” Amicus Br. at 49. Amicus relies on
our holding in Smith-Haynie v. D.C., 

(D.C. Cir.
1998), to argue that Jackson was “non compos mentis,” which
ordinarily means “incapable of handling [one’s] own affairs or

     15
        See supra note 14.
     16
        Because we hold that § 2401(a)’s statute of limitations is not
jurisdictional, the dismissal of Jackson’s APA claim should be
reviewed pursuant to Rule 12(b)(6) for failure to state a claim rather
than Rule 12(b)(1) for lack of subject matter jurisdiction.
                               27
unable to function [in] society.” 

(second alteration
in original).

      Amicus’s equitable tolling argument does not meet the
high threshold for applying this rare remedy. See 

(“The court’s equitable power to toll the statute of limitations
will be exercised only in extraordinary and carefully
circumscribed instances.” (quoting Mondy v. Sec’y of the Army,

, 1057 (D.C. Cir. 1988))). Although Jackson’s
allegations, if true, indicate that he suffered mental and
emotional harm as a result of being discriminated against, they
do not rise to the level of non compos mentis. As we explained
in Smith-Haynie, “[i]mpaired judgment alone is not enough to
toll the statute of 

(quoting Hendel
v. World Plan Exec. Council, 

, 665 (D.C. 1997)).
“The disability of a person claiming to be non compos mentis
must be ‘of such a nature as to show [he] is unable to manage
[his] business affairs or estate, or to comprehend [his] legal
rights or liabilities.’” 

v. Fink, 

, 

, 392 (Md. 1980)). Smith-Haynie references
various facts indicative of non compos mentis, including being
“[un]able to engage in rational thought and deliberate decision
making sufficient to pursue” a legal claim whether “alone or
through counsel” or diagnosed with schizophrenia, “adjudged
incompetent,” or appointed a caretaker or power of attorney.

Nunnally v. MacCausland, 

, 5–6
(1st Cir. 1993); and then quoting Speiser v. U.S. Dep’t of
Health & Human Servs., 

, 385 (D.D.C. 1986),
aff’d, 

(D.C. Cir. 1987)). Jackson’s allegations of
“pain, anger, depression, hopelessness and bewilderment,” the
“divorce from [his] wife caused by [his] difficult emotion [and]
mental state,” “[l]oss of enjoyment of life,” “insomnia, distrust,
depression, anxiety” and “financial hardship” as a result of the
discrimination he suffered, Compl. 12, 17, although serious, do
not rise to the level of non compos mentis such that he was
                               28
unable to manage his own affairs or comprehend his rights or
liabilities.

     Indeed, the allegations in his complaint demonstrate that
Jackson was able to manage his affairs and comprehend his
rights quite well. Jackson alleges that at the time of the alleged
discrimination, he knew that he “had been subjected to
wrongdoing and strongly desired justice.” 

He alleges
that “[f]or an extended period of time, I sought help from the
Department of the Navy, Department of Justice, Attorneys,
congressmen, news media, etc.” 

He describes
these efforts as a “massive undertaking.” 

Indeed,
after being discharged from the military, he filed applications
with the Board for Correction of Naval Records regarding his
fitness record and reenlistment code in 1990, 1991, 1992, 1993,
1994 and 2000. During this time, he sought legal assistance as
well as assistance from others, including a United States
Senator, to reenlist in the Marines. This conduct indicates that
he was capable of filing a timely APA claim. He is not entitled
to equitable tolling, then, and the district court correctly
dismissed his claim.

                     C. Military Pay Act

     Finally, we briefly address Jackson’s Military Pay Act
claim. The district court construed Jackson’s request for
reenlistment with back pay as a claim under the Military Pay
Act, 37 U.S.C. § 204, but held that it lacked jurisdiction of that
claim. Amicus initially appealed the dismissal of the claim but
in its reply brief abandoned the claim on the ground raised by
the Secretary—namely, we lack jurisdiction to hear the appeal
of a Military Pay Act claim because the Court of Appeals for
the Federal Circuit has exclusive jurisdiction of such claims.
Having considered that argument, we agree that we lack
                            29
jurisdiction to review     the   claim   pursuant   to   28
U.S.C. § 1295(a)(2).

    For the foregoing reasons, the judgment of the district
court is affirmed.

                                               So ordered.