Argument Recap / Supreme Court Activity

This past Monday, the Supreme Court heard oral argument in Harrow v. Department of Defense. In this case, the Court is reviewing the Federal Circuit’s dismissal 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. This is our argument recap. 

Joshua P. Davis argued for Harrow. Davis argued “[n]othing in the text” of 5 U.S.C. § 7703](b)(1)(A) “suggests” that its “filing deadline is jurisdictional.” According to Davis, 28 U.S.C. § 1295(a)(9) “creates jurisdiction in the Federal Circuit over appeals ‘pursuant to’ § 7703(b)(1).” Davis, however, asserted “pursuant to” can “mean invoking (b)(1), not satisfying its filing deadline.” Indeed, Davis continued, this is how the Supreme Court has previously “interpreted interlocutory appellate jurisdiction . . . in removal cases.” Thus, Davis maintained, “under the clear statement rule, (b)(1)(A)’s filing deadline is a mere claims processing rule.”

Justice Thomas asked why this case isn’t controlled by Lindahl.” In response, Davis argued “Lindahl did not specifically address . . . the filing deadline provision.” Furthermore, Davis argued, “Lindahl didn’t impose a jurisdictional requirement at all.” It instead “actually read the jurisdiction of the Federal Circuit broadly.” Thus, Davis maintained, Lindahl “is the sort of loose jurisdictional language that the clear statement rule is designed to clean up.”

Chief Justice Roberts asked why it makes sense “to have a totally different rule when [an appeal is] from an agency to the court of appeals.” In response, Davis argued the Supreme Court “has said repeatedly in interpreting filing deadlines and other potentially jurisdictional provisions . . . to look at the nature of the litigation process that it’s coming from.” Turning to MSPB proceedings, Davis highlighted how “[i]t is adversarial, but it is not in the same way that an Article III litigation is.” 

As part of her line of questioning, Justice Sotomayor asked about the government’s argument “that courts of appeals are ill suited to handle the factual basis of this kind of finding.” Davis responded by asserting the government’s “argument conflates two separate issues”: “whether this requirement is jurisdictional” and “whether it’s mandatory.” According to Davis, “the only issue before this Court today is, is the filing deadline jurisdictional.” Furthermore, Davis asserted, “the real question is a legal judgment, and that is the kind of legal judgment a court of appeals is . . . fully capable of making.” 

Justice Gorsuch asked about what Davis viewed as “the justification for [the] clear statement rule” and his “understanding of its background.” Davis contended that “courts have at times used the word ‘jurisdiction’ loosely . . . with implications that Congress probably never intended.” For similar reasons, Davis argued, the Supreme Court “since 2006 [has] articulated the clear statement rule,” and, thus, “Congress should be presumed to . . . legislate with that background in mind.” 

Aimee W. Brown presented the government’s arguments. According to Brown, through “Section 1295(a)(9), Congress granted the Federal Circuit jurisdiction over appeals from final MSPB decisions pursuant to Section 7703(b)(1).” Brown argued the Supreme Court “has recognized” that the “plain meaning of ‘pursuant to’ is ‘in accordance with’ or ‘in compliance with.’” Thus, Brown asserted, “[b]y conditioning the Court’s jurisdiction on compliance with 7703(b)(1), the statutory text provides the clear tie between the appeal deadline and the jurisdictional grant, which satisfies this Court’s clear statement rule.” Additionally, Brown maintained, the government’s “view of the text is confirmed by precedent and history.” Brown argued that, “even if the Court were to hold that the filing deadline is not jurisdictional, at a minimum, it’s not subject to equitable tolling.”

Justice Kagan asked if the government would “lose if ‘pursuant to’ just means ‘under.’” Brown disagreed, arguing that, “if ‘under’ were used in this . . . context specifically, it would have the exact same meaning that . . . ‘pursuant to’ has here.” Regardless, Brown argued “that interpretation is unavailable here . . . because of what the first sentence of Section 7703(b)(1) does require.” 

Justice Jackson sought to clarify how Brown’s argument “square[s] . . . with the sort of holding and reasoning” from a prior Supreme Court decision “where the . . . Court suggested that you didn’t have to read a provision like that in . . . totality.” Brown argued that, in the current case, “we have the ‘pursuant to’ that connects the jurisdictional grant to 7703(b)(1) as a whole.” And, Brown continued, “it is the difference between conditioning jurisdiction and granting jurisdiction with a condition that it . . . has to be in compliance with this section.” As in the prior case, she explained, the statute says “this is the only way you get jurisdiction.”

Turning to the government’s equitable tolling argument, Justice Kavanaugh asked whether Brown thought that the question was “simple enough for [the Court] to resolve here in addition to the main question.” In response, Brown gave three reasons the Court should address this question. First, Brown argued, the text of the relevant rule is “fairly clear here and says that it applies as a background rule . . . in . . . the interpretation of statutes.” Second, Brown referenced “the binding precedent of the Federal Circuit” on point. Lastly, Brown stated, “the third reason just kind of goes to the consequences of the determination that the time limit is not jurisdictional.” 

Justice Barrett asked “if Petitioner’s reading is plausible, do you lose.” In response, Brown argued when the Court “has explained the clear statement rule,” it has not “said that if there is one other plausible definition or interpretation, then it’s not clear.” According to Brown, “[i]f Congress wants to make . . . a certain provision jurisdictional, it has to clearly state that it is.”

In his rebuttal, Davis asserted the Court has “held that even if the first sentence . . . is jurisdictional . . . the filing deadline in the second sentence is not.” Davis argued “the government’s position is directly opposite to the holding” of another case “where the ‘pursuant to’ language was used.” And, responding to the arguments about equitable tolling, Davis maintained “the question presented is, in fact, limited to the jurisdictional nature or not of the filing deadline.”

We’ll report more when the Court decides the case.