Featured / Supreme Court Activity

As we previously reported, last week the Supreme Court issued its opinion in Harrow v. Department of Defense. In this case, the Supreme Court reviewed a judgment of the Federal Circuit in a case originally decided by the Merit Systems Protection Board. The Federal Circuit had held that the 60-day statutory deadline for Harrow to file his petition for review in the Federal Circuit is a “jurisdictional requirement” and therefore “precludes equitable exceptions.” The Supreme Court, in a unanimous decision authored by Justice Kagan, vacated and remanded the judgment of the Federal Circuit. The Court held that the 60-day deadline is not a jurisdictional requirement and therefore does not preclude equitable exceptions. This is our opinion summary.

Justice Kagan began by highlighting the procedural and factual background of the case:

This case began in 2013, when Stuart Harrow, a longtime employee of the Department of Defense, filed a claim with the Merit Systems Protection Board objecting to a six-day furlough. The Board is an independent agency established to adjudicate federal employment disputes. It referred the case, as is usual, to an administrative judge for an initial decision. In 2016, the judge upheld the furlough, finding it “regrettable” but not “improper.” . . . Harrow sought review of that conclusion before the full Board, as the law allows. But in early 2017— with Harrow’s action still pending—the Board lost its quorum, and so its ability to resolve cases. That state of affairs lasted for over five years. It was not until May 2022 that the Board, with a quorum finally restored, affirmed the administrative judge’s decision. That long delay led Harrow to miss his next deadline. Under 5 U.S.C. § 7703(b)(1), Harrow was supposed to petition for review in the Federal Circuit “within 60 days” of the Board’s final order. . . . But Harrow did not submit his petition until September 2022—more than 120 days after the Board’s order issued. In an associated filing, Harrow offered an excuse for his lateness. During his years-long wait for the Board’s decision, Harrow explained, his work email address had changed—and the old address at some point stopped forwarding to the new one. . . . So when the Board sent notice of its order to the email address it had on file, Harrow never got the message. He learned of the decision only from a search he did of the Board’s website, after the 60-day period had run. Given the “extenuating circumstances,” Harrow urged, the Federal Circuit should overlook his petition’s untimeliness. . . . The Court of Appeals declined Harrow’s request for equitable consideration, believing it had an absolute obligation to dismiss his appeal. The court reasoned that the 60-day statutory deadline is a “jurisdictional requirement,” and therefore “not subject to equitable tolling.” . . . “Harrow’s situation” might be “sympathetic,” the court stated, but it was also irrelevant. Ibid. Given the deadline’s jurisdictional nature, the court lacked the capacity to “excuse a failure to timely file based on individual circumstances.”

Justice Kagan started the Supreme Court’s analysis by examining how procedural rules are typically viewed under the law. “The procedural requirements that Congress enacts to govern the litigation process are only occasionally as strict as they seem,” she explained. While “[m]ost of those rules read as categorical commands (e.g., a person ‘shall file in this court,’ ‘shall file by that time,’ ‘shall include the following documents’),” she continued, “Congress legislates against the backdrop of judicial doctrines creating exceptions, and typically expects those doctrines to apply.” She also noted that “a court may be able to excuse the party’s noncompliance for equitable reasons. She then highlighted the question before the court. She explained that a court is able to excuse a party’s noncompliance for equitable reasons “[e]xcept—and this ‘except’ is important—in a small set of cases, where the procedural rule counts as ‘jurisdictional.’”

Justice Kagan explained that, “[w]hen Congress enacts a jurisdictional requirement, it ‘mark[s] the bounds’ of a court’s power: A litigant’s failure to follow the rule ‘deprives a court of all authority to hear a case.’” For jurisdictional requirements, she continued, “a court must enforce the rule even if no party has raised it.” Moreover, she explained, “a court must adhere to the rule ‘even if equitable considerations would support’ excusing its violation.” Given the gravity of these “repercussions,” she highlighted, the Court “will ‘treat a procedural requirement as jurisdictional only if Congress ‘clearly states’ that it is.’” She explained this is a “high bar” to clear, leading to “most time bars [being] nonjurisdictional.”

Justice Kagan next applied this logic to the language in the time-bar provision violated by Harrow. The Court concluded that “[n]o language” in it suggests that it is jurisdictional. While the “deadline is stated in mandatory terms . . . . that fact is ‘of no consequence’ to the jurisdictional issue.” Justice Kagan emphasized that what matters “is whether a time bar speaks to a court’s authority to hear a case.” And, she concluded, “nothing in § 7703(b)(1) does: There is no mention of the Federal Circuit’s jurisdiction, whether generally or over untimely claims.” As a result, she explained, “§ 7703(b)(1), on its own, does not deprive the Federal Circuit of power to hear Harrow’s appeal.” Justice Kagan went on to reject “the Government’s reading” of another statutory provision, 28 U.S.C. § 1295(a)(9),” calling it “more strained than clear.”

The Court concluded its analysis by stating that “the time limit Harrow missed when he filed [his] appeal does not satisfy our clear-statement test.”

Notably, the Court declined to rule on the government’s argument that the 60-day limit is not subject to equitable tolling. Justice Kagan noted that the government “did not broach the issue below; the Federal Circuit did not address it; and it is not included in the question presented.” As a result, the Court left “the matter (including any waiver issues involved) to the Federal Circuit on remand.”

As a result of the Court’s analysis, the Court vacated the judgment of the Federal Circuit and remanded the case.