Supreme Court to Determine Whether Administrative Appeal Deadline Is Jurisdictional

In Harrow v. Dept. of Defense, the Supreme Court will decide whether the 60-day deadline to appeal a decision of the Merit Systems Protection Board (MSPB) under 5 U.S.C. § 7703(b)(1)(A) is jurisdictional or non-jurisdictional.

Stuart Harrow, an employee of the Department of Defense, was furloughed in 2013. He challenged his furlough on grounds of financial hardship before an administrative judge, who affirmed the department’s decision. Harrow then appealed the administrative judge’s decision to the MSPB. While the appeal was pending, the MSPB lost its quorum of members, resulting in a five-year period in which it did not resolve any appeals. In 2022, after regaining a quorum, the MSPB issued a final action in Harrow’s appeal, affirming the administrative judge’s decision.

But because of how much time had elapsed, Harrow’s email address had changed and he did not receive the MSPB’s final action notice until after the 60-day deadline. When Harrow received the notice, he promptly petitioned for review of the MSPB’s decision with the Federal Circuit. But the Federal Circuit dismissed Harrow’s petition as untimely, holding that the 60-day deadline requirement is jurisdictional.

In his Supreme Court briefing, Harrow argued that nothing in the text of 5 U.S.C. § 7703(b)(1)(A) makes the 60-day requirement jurisdictional and that the statute aligns with non-jurisdictional requirements found in other statutes. In its briefing, the department argued that 28 U.S.C. § 1295(a)(9), which grants the Federal Circuit jurisdiction over appeals from final MSPB decisions “pursuant to” 5 U.S.C. § 7703(b)(1), uses restrictive language requiring a jurisdictional approach. The department also argued that other statutory deadlines for appeals are generally jurisdictional. Finally, the department argued that even if the 60-day requirement is not jurisdictional, equitable tolling should not be allowed.

During oral argument, Chief Justice Roberts questioned whether it made sense to have a different rule when an appeal is from an agency rather than from a court. Justice Sotomayor questioned whether Congress has ever expressed an intention for all agency appeals to be strictly jurisdictional. Justice Jackson questioned whether any equitable tolling finding was tied to the jurisdictional question, or whether the Federal Circuit could be inclined to find the 60-day deadline mandatory regardless of the jurisdictional question.

The case was argued on March 25, 2024 A decision is expected later in the term. Stay tuned for Dykema’s client alert discussing the Court’s forthcoming opinion.

For more information, please contact Chantel Febus, James Azadian, Cory Webster, Christopher Sakauye, Monika Harris, Puja Valera, A. Joseph Duffy, IV., or Heming Xu.