Featured / Supreme Court Activity

Last week, the Supreme Court granted petition for certiorari in Harrow v. Department of Defense. In this case, the petitioner asked the Court to consider whether the deadline to file a petition for the Federal Circuit to review a decision of the Merit Systems Protection Board is jurisdictional. This matters because, as it stands, the Federal Circuit has concluded that the deadline is jurisdictional and, as a result, not subject to equitable tolling. Here are the details.

In his petition, Harrow highlighted how “hundreds of federal employees each year, many proceeding pro se, face an anomalous jurisdictional deadline . . . used to keep claims of unlawful agency personnel actions out of federal court.” Harrow, however, argued the Federal Circuit’s precedent interpreting the relevant statutory provision, 5 U.S.C. 7703(b)(1)(A), “conflicts with decisions of other circuits and of this Court.” According to Harrow, moreover, because “the Federal Circuit is the only court to whom the deadline in Section 7703(b)(1)(A) applies” and “the Federal Circuit has repeatedly relied upon . . . precedent characterizing Section 7703(b)(1)(A) as jurisdictional, this Court is the only realistic judicial recourse.”

In its brief in opposition, the government asserted previous Supreme Court decisions recognize that Section 7703(b)(1) confers “the operative grant of jurisdiction” on the Federal Circuit. Thus, the government maintained, the “timely filing of a petition from the Board’s final decision is a jurisdictional requirement.”

In his reply brief, Harrow asserted the Court “treats a requirement as jurisdictional ‘only if Congress clearly states that it is.’” And, according to Harrow,  because Section 7703(b)(1)(A) “does not expressly refer to subject-matter jurisdiction or speak in jurisdictional terms,” it simply instructs “parties [to] take certain procedural steps at certain specified times.” Furthermore, Harrow argued, “the characterization of Section 7703(b)(1)(A)’s deadline as jurisdictional conflicts with decisions holding [5 U.S.C. §] 7703(b)(2)’s deadline to be nonjurisdictional.” According to Harrow, the “two deadlines are textually indistinguishable.”

As mentioned, last week the Supreme Court agreed with Harrow that the Federal Circuit’s treatment of the relevant statutory provision as jurisdictional warrants review.

We will continue to keep track of this case and report on developments.