Argument Preview / Supreme Court Activity

On Monday, March 25, the Supreme Court will hear oral argument in Harrow v. Department of Defense. In this case, the Court will review the Federal Circuit’s resolution of an appeal from a judgment of the Merit Systems Protection Board. In particular, the Supreme Court will consider whether the statutory deadline to file an appeal from the MSPB is jurisdictional. The statutory provision in question is 5 U.S.C. § 7703(b)(1)(A). This is our argument preview.

In his opening merits brief, Harrow makes two arguments. First, he argues the filing deadline is not clearly jurisdictional based on methods of statutory interpretation. Second, he argues the Supreme Court’s precedent “has never issued a ‘definitive earlier interpretation of [the] statutory provision as jurisdictional.’”

Harrow’s first argument centers on the assertion that the Supreme Court “treats a requirement as jurisdictional ‘only if Congress clearly states that it is.’” Turning to the text, Harrow argues “Section 7703(b)(1)(A)’s text is indistinguishable from the language of deadlines held nonjurisdictional in other cases.” Additionally, Harrow maintains, “[n]othing in that provision clearly and unmistakably marks the deadline as jurisdictional.” Looking to Title 28 of the United States Code, Harrow argues,

Section 1295(a)(9) does give the Federal Circuit exclusive jurisdiction over ‘an appeal from a final order or final decision of the Merit Systems Protection Board, pursuant to section 7703(b)(1) and 7703(d).’ But this reference does not make the deadline in Section 7703(b)(1)(A) also jurisdictional. A mere cross-reference is not enough to bring a requirement within the jurisdictional fold.

According to Harrow, “[h]ad Congress wished to condition Section 1295(a)’s grant of jurisdiction on all the operational details of Section 7703(b)(1), it would have used language clearly doing so.” Turning to MSPB proceedings in particular, Harrow contends that, in “[r]ecognizing that employees generally are unsophisticated, deadlines in proceedings before the MSPB are flexible, and technical requirements are routinely excusable.” Thus, the “[r]igid jurisdictional treatment of the deadline in Section 7703(b)(1)(A) would ‘clash sharply with this scheme.’” 

Harrow’s second argues is that, “[f]or a ‘definitive earlier interpretation’ to control,” it “must be of the precise provision at issue” and “must be a jurisdictional holding that actually ‘turn[ed] on that characterization.’” Harrow looks to Lindahl v. Office of Personnel Management, an earlier Supreme Court opinion, asserting it is “[t]he only possible source for such a ‘definitive earlier interpretation.’” According to Harrow, “[t]he question in Lindahl was not about timeliness . . . but about what issues and decisions the Federal Circuit could hear.” Harrow asserts, moreover, that “nothing in Lindahl turns on the deadline or its jurisdictional character” and, thus, “Lindahl cannot constitute a ‘definitive earlier interpretation’ that would displace the clear-statement framework.”

In its merits brief, the government argues two main points. First, the government argues Section 7703(b)(1) is jurisdictional based on methods of statutory interpretation. Second, the government asserts that, ““[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.”

Related to its first point, the government argues “text, precedent, and history . . . make clear that timely filing is a jurisdictional prerequisite here.” Looking first to the text, the government asserts “Section 1295(a)(9) grants the Federal Circuit jurisdiction over appeals of final MSPB decisions, ‘pursuant to section[] 7703(b)(1).’” The government maintains “[t]he phrase ‘pursuant to’ unambiguously ties the Federal Circuit’s jurisdiction to the requirements of Section 7703(b)(1), including its time limit.” Turning to the ordinary meaning of this phrase, the government argues that, “[b]ecause an appeal is not . . . ‘in compliance with’ . . . Section 7703(b)(1)(A) unless it is filed within that 60-day limit, timely filing is a jurisdictional prerequisite for such an appeal.”

Looking next to the Supreme Court’s precedent, the government, like Harrow, looks to Lindahl v. Office of Personnel Management. According to the government, the Supreme Court in that case held that Section 1295(a)(9) grants the Federal Circuit jurisdiction over certain appeals ‘pursuant to section[] 7703(b)(1).’” Thus, the government argues, “[c]onsistent with that understanding, the Federal Circuit has long held that Section 7703(b)(1)’s time limit for filing a petition for review is ‘jurisdictional’ and therefore not subject to equitable tolling.” According to the government,

although Lindahl did not specifically discuss Section 7703(b)(1)’s time limit . . . that condition is necessarily one of the ‘jurisdictional perimeters of § 7703(b)(1)’ that Lindahl recognized as defining the Federal Circuit’s ‘power to adjudicate.’

Turning to history, the government argues “historical treatment of the type of limitation at issue and the history of Section 7703(b)(1) itself reinforce that Section 7703(b)(1)(A)’s time limit is jurisdictional.” The government maintains “the courts of appeals have uniformly treated the statutory deadline for seeking review of certain agency actions under the Hobbs Act, ch. 537, 60 Stat. 420, as jurisdictional.” The government contends “the jurisdictional framework of the Hobbs Act is similar to that of Sections 1295(a)(9) and 7703(b)(1).” 

Second, the government argues that, “[e]ven if Section 7703(b)(1)’s time limit were not jurisdictional, it would still not be subject to equitable tolling.” According to the government, “[w]hether ‘equitable tolling is available’ under a particular statute ‘is fundamentally a question of statutory intent.’’ The government asserts that under Rule 26(b) “a court may extend such a deadline only if ‘specifically authorized by law.’” And, according to the government, 

[b]ecause Rule 26(b) had displaced the application of common-law equitable-tolling principles to that kind of time limit, the usual presumption that Congress incorporated equitable tolling into the statute does not apply. Instead, the question is whether Congress specifically authorized equitable tolling in Section 7703(b)(1). It did not.

In his reply brief, Harrow emphasizes the “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.” But, according to Harrow, the “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.”

Finally, in response to the government’s contention that “Section 7703(b)(1)(A)’s deadline, even if nonjurisdictional, is not subject to equitable tolling,” Harrow argues the “Government forfeited [this] argument by failing to raise it before the Federal Circuit.” According to Harrow, the Supreme Court “has repeatedly held that ‘an objection based on a mandatory claim-processing rule may be forfeited.’” And, Harrow asserts, the “Government had multiple opportunities to argue that Harrow’s petition was untimely but, on each occasion, failed to do so.” 

Interested parties have submitted numerous amicus briefs to present their perspectives and arguments on the issues in this case.

Five amicus briefs were filed in support of the petitioner:

  • The Federal Circuit Bar Association filed an amicus brief in support of the petitioner. In this brief, the FCBA argues “5 U.S.C. § 7703(b)(1)(A)’s 60-day deadline to appeal from the MSPB to the Federal Circuit is a claim-processing rule, not a jurisdictional requirement.” FCBA asserts “treating the filing deadline as jurisdictional would be inconsistent with the MSPB adjudication process and unfair to many litigants.” Further, according the FCBA, “[t]he numerous cross-references in section 1295(a)’s fourteen subsections reflect only Congress’ intent to state which cases may come to the Federal Circuit.”
  • National Treasury Employees Union filed an amicus brief in support of the petitioner. In this brief, the NTEU asserts “[t]he Federal Circuit used the wrong analytical framework for its ruling that the . . . 60-day deadline to seek judicial review . . . cannot be equitably tolled.” According to NTEU, “[t]he Federal Circuit failed to properly apply [the Supreme] Court’s holding that a rebuttable presumption of equitable tolling applies to suits against the federal government.” Further, NTEU argues “the [Civil Service Reform Act]’s context evinces Congress’s intent to provide federal employees with fair and meaningful redress for wrongful agency actions.”
  • American Federation of Government Employees filed an amicus brief in support of the petitioner. In this brief, the AFGE asserts “[t]he Federal Circuit continues to incorrectly classify the 60-day deadline in 5 U.S.C. § 7703(b)(1)(A) . . . as a jurisdictional requirement rather than a claim-processing rule.” The AFGE maintains that “[n]owhere does the 60-day deadline in Section 7703(b)(1)(A) speak in jurisdictional terms.” Further, according to the AFGE, “[a]ll that Section 1295(a)(9) does is list the types of cases, i.e., the subject matter, over which the Federal Circuit’s jurisdiction is exclusive.”
  • Several law professors filed an amicus brief in support of the petitioner. In this brief, the professors argue “there is no textual, contextual, or historical basis for finding a ‘clear indication that Congress wanted that provision to be treated as having jurisdictional attributes.’” Furthermore, according to the professors, “[t]he lack of a clear statement by Congress means that § 7703(b)(1)’s 60-day filing deadline cannot be treated as jurisdictional . . . ‘even when the time limit is important (most are) and even when it is framed in mandatory terms (again, most are).’” 
  • National Veterans Legal Services Program filed an amicus brief in support of the petitioner. In this brief, the NVLSP asserts “[t]he Federal Circuit’s decision denying equitable tolling for appeals from the MSPB thwarts Congress’s longstanding policy of favorable treatment toward veterans.” The NVLSP maintains “veterans—who often proceed pro se . . . —are left to wrestle with this ‘complicated tapestry’” created by “the enabling statute for the MSPB” which has “procedural processes [that] are complex, confusing, and difficult to navigate.” Thus, according to the NVLSP, “[e]quitable tolling is critical to ensure that these veterans receive the benefits that Congress prescribed.” 

We will continue to follow this case. After Monday’s argument, we will post an argument recap. As always, you can find all of the relevant documents and all of our coverage of this case on our Supreme Court cases page.