Harrow & the Non-Jurisdictionality of the MSPB Appeal Deadline
In Harrow v. Department of Defense, the Supreme Court held that the 60-day deadline for appealing decisions from the Merit System Protection Board is not jurisdictional. It’s a solid decision. It also raises questions about how Federal Rule of Appellate Procedure 26(b) applies to the equitable tolling of administrative appeals.
The Late Appeal in Harrow
The case involved a Department of Defense employee that had been furloughed. An administrative law judge upheld the furlough, after which the employee sought review before the Merit Systems Protection Board. But the Board did not decide the appeal for several years. When it finally did, notice of the decision went to the employee’s old email address, and he did not receive notice of the decision until about four months later.
Shortly after learning of the decision, the employee sought review of the Board’s decision in the Federal Circuit. But under 5 U.S.C. § 7703(b)(1), the employee had only 60 days to seek review. The employee’s petition for review—filed about 120 days after the Board’s decision—was thus untimely.
The Federal Circuit also said that it could not equitably toll this 60-day deadline. The Federal Circuit has long held that § 7703(b)(1)’s deadline is jurisdictional. That means parties cannot waive or forfeit objections to a late petition. It also means that courts cannot create equitable exceptions—such as equitable tolling—to the deadline.
Another Non-Jurisdictional Rule
The Supreme Court unanimously reversed. It explained that procedural requirements like appeal deadlines are jurisdictional only if Congress “clearly states” as much. And nothing in § 7703 suggested a jurisdictional treatment. Granted, the deadline is couched in mandatory terms. But that’s not enough for a requirement to be jurisdictional. Instead, a statute must speak to a court’s authority to hear a case. There’s nothing like that in § 7703.
The Court also rejected the government’s reliance on 28 U.S.C. § 1295—the main statute governing the Federal Circuit’s jurisdiction. Section 1295(a)(9) says that the Federal Circuit has jurisdiction to review Board decisions “pursuant to section[] 7703(b)(1).” As the government saw things, this “pursuant to” language meant that an appeal must conform with § 7703(b)(1), including the 60-day deadline, for the Federal Circuit to have jurisdiction.
The Supreme Court rejected this argument, noting that “pursuant to” is a phrase of many meanings. Lots of statutes require that things be done “pursuant to” other provisions. And sometimes that language requires only that things be done “under” that other provision.
That was the case with § 7703(b)(1). To appeal “pursuant to” that paragraph required only that a litigant “invoke that section as the basis for the appeal,” not “comply with its associated time limit.”
The Supreme Court left the remaining issues—whether § 7703(b)(1) permits equitable tolling, and whether the employee was entitled to tolling—for the Federal Circuit on remand.
Thoughts on Harrow & Rule 26(b)
Harrow looks like another solid rejection of jurisdictional treatment. I had only one follow-up thought: how does Federal Rule of Appellate Procedure 26(b) apply to this case?
Rule 26(b) says that a court of appeals “may not extend the time to file . . . a notice of appeal from or a petition to enjoin, set aside, suspend, modify, enforce, or otherwise review an order of an administrative agency, board, commission, or officer of the United States, unless specifically authorized by law.” Section 7703(b)(1) sets a time to seek review of an administrative agency order. One reading of Rule 26(b) would thus prohibit equitable tolling of the 60-day deadline. But it’s unclear how Rule 26(b) interacts with things like equitable tolling. In fact, if memory serves me, there is a cert petition on this issue that is currently pending.
This Rule 26(b) thing will be interesting to watch going forward.
Harrow v. Department of Defense, 2024 WL 2193874 (May 16, 2024), available at the Supreme Court and Westlaw
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