Petitions / Supreme Court Activity

Here is an update on recent activity at the Supreme Court in cases decided by the Federal Circuit. With respect to granted cases, the petitioner’s reply brief was filed in Harrow v. Department of Defense, a case concerning the Merit Systems Protection Board and whether a filing deadline is jurisdictional or allows for equitable tolling. With respect to petitions, one new petition was filed with the Court in a pro se case and a waiver of right to respond was filed in another pro se case. Here are the details.

Granted Cases

In Harrow v. Department of Defense, Harrow submitted his reply brief. In this case, the Court will review “whether the 60-day deadline in [5 U.S.C.] Section 7703(b)(1)(A) is jurisdictional.”

In its merits brief, the government argued “Section 1295(a)(9)’s plain text . . . incorporates Section 7703(b)(1)’s time limit as a jurisdictional prerequisite.” Further, the government asserted, the Supreme Court “has already held that Section 7703(b)(1) establishes ‘the jurisdictional perimeters’ of the Federal Circuit’s ‘power to adjudicate.’” Moreover, according to the government “[e]ven if this Court holds that Section 7703(b)(1)’s deadline is nonjurisdictional, it should affirm on the ground that the deadline is mandatory and thus not subject to equitable tolling” because “equitable tolling would require courts of appeals to engage in factfinding outside the agency or trial-court record.” 

Now, in his reply, Harrow asserts “[t]he Government agrees that only clear and unmistakable evidence can overcome the presumption that the filing deadline . . . is not jurisdictional.” Yet, according to Harrow, the government “relies on an ambiguous phrase located in a different title of the U.S. Code, on a prior opinion from [the Supreme] Court that does not discuss the deadline, and on lower-court opinions interpreting different statutes.” According to Harrow, “[t]he Government’s contrary interpretation—that ‘pursuant to’ renders the entirety of Sections 7703(b)(1) and (d) jurisdictional— is inconsistent with [the Supreme] Court’s past construction of linking terms.” In response to the Government’s assertion that “Section 7703(b)(1)(A)’s deadline, even if nonjurisdictional, is not subject to equitable tolling,” Harrow argues “[t]he Government forfeited [this] argument by failing to raise it before the Federal Circuit.”


New Petitions

In Golden v. Samsung Electronics America, Inc., a pro se petitioner filed a petition with the Court.

Waiver of Right to Respond

The government waived its right to respond to the petition in Brock v. Department of Transportation, another pro se case.