On May 16, 2024, the Supreme Court unanimously held in Harrow v. Dep’t of Defense that the deadline to appeal a decision by the Merit Systems Protection Board (“MSPB”) is non-jurisdictional and therefore can be subject to equitable considerations. Justice Kagan authored the opinion.
As previously summarized in Dykema’s April 2024 edition of Last Month at the Supreme Court, Stuart Harrow, an employee of the Department of Defense, was furloughed in 2013. After Harrow challenged the furlough and lost, he waited five years for the MSPB’s decision. Once the MSPB eventually issued a decision, Harrow’s email address changed and, consequently, he did not receive the MSPB’s notice until after the 60-day appeal deadline passed. Harrow promptly petitioned for review of the MSPB’s decision with the Federal Circuit once he received notice, but the Federal Circuit dismissed Harrow’s petition as untimely, holding that the 60-day deadline requirement was jurisdictional and not subject to equitable considerations.
In reversing, the Court noted that the procedural requirements in statutes are not often as strict as they seem, pointing out that only a small subset of all procedural rules are jurisdictional. A jurisdictional requirement “mark[s] the bounds” of a court’s power and therefore a procedural requirement can be considered jurisdictional only where Congress “clearly states” it is. Turning to the 60-day deadline for appeal of decisions by the MSPB, the Court found that no language in the statute’s text made it clear that it was meant to be a jurisdictional deadline. The Court rejected the government’s argument that the 60-day deadline was “pursuant to” the Federal Circuit’s subject-matter jurisdiction and therefore was made a jurisdictional deadline under separate statutes. The Court found that the language “pursuant to” was not specific enough to create a jurisdictional deadline.
The Court left open whether Harrow was entitled to equitable tolling of the 60-day deadline.
Takeaways
- Unless specifically stated to be jurisdictional, administrative appeal deadlines (like the deadline to challenge a decision by the MSPB) should be considered non-jurisdictional, and equitable considerations can be argued for tolling the deadline.
- The fact that an administrative appeal deadline is “pursuant to” a different statute that has a jurisdictional element is not enough to “clearly state” that the appeal deadline is jurisdictional.
For more information, please contact Chantel Febus, James Azadian, Cory Webster, Christopher Sakauye, Monika Harris, Puja Valera, or A. Joseph Duffy, IV.