Harrow v. Department of Defense
The Supreme Court unanimously ruled that the 60-day deadline for federal employees to appeal personnel rulings to the Federal Circuit is not a rigid jurisdictional barrier, meaning courts can consider whether unusual circumstances excuse a late filing.
The decision opens the door for federal workers who missed the window through no real fault of their own — like never receiving notice of the decision — to ask a court for more time, rather than facing automatic dismissal.
“The jumble of procedural rules to which § 1295 points cannot turn on and off the Federal Circuit's power.”
The Court explaining why the government's broad reading of the jurisdiction statute would produce an absurd result.
How it got here: The Merit Systems Protection Board ruled against Harrow; the Federal Circuit dismissed his late appeal as jurisdictionally barred; the Supreme Court agreed to hear whether the deadline was truly jurisdictional.
The Case in Depth
What happened
Stuart Harrow, a longtime Department of Defense employee, was furloughed for six days and challenged that decision before the Merit Systems Protection Board. The Board took over five years to rule against him — years during which the Board lost its quorum entirely. When it finally issued its decision in May 2022, the notice went to an old email address Harrow no longer monitored. He learned of the ruling only after searching the Board's website, by which point the 60-day appeal window had already closed. He filed his appeal more than 120 days late and asked the court to excuse the delay.
The question before the Court
Is the 60-day window for a federal worker to appeal a government employment board's ruling to federal court a hard, unbreakable limit — or can courts make exceptions when the worker had no real chance to file on time?
The Court's answer
No — the 60-day deadline is not a hard jurisdictional limit. The Court held that Congress did not clearly designate this filing window as a boundary on court power, so courts retain the ability to consider exceptional circumstances when a worker files late. The deadline's mandatory phrasing ("shall be filed") carries no special weight on the jurisdictional question; what would matter is whether the rule expressly addresses the court's authority to hear a case, and this one does not. The government's attempt to use a separate jurisdiction statute — which grants the Federal Circuit authority over board appeals "pursuant to" § 7703(b)(1) — also failed, because "pursuant to" most naturally means "invoking as the basis for," not "in strict compliance with every requirement of."
The Court did not, however, decide whether equitable tolling — the legal doctrine that can pause or extend a deadline when circumstances make timely filing impossible — is actually available under this statute, or whether Harrow himself qualifies. Those questions go back to the Federal Circuit to answer first.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Federal employees who miss the 60-day appeal deadline after a Merit Systems Protection Board ruling — because a notice went to a wrong email address, for example — can now ask a court to excuse the delay rather than being automatically shut out. Courts must still weigh whether each worker's situation actually qualifies, but they can no longer treat the deadline as an absolute bar with zero flexibility.
What changes now
The case returns to the Federal Circuit with two questions still open: first, whether equitable tolling is available under this statute at all (a question the government argued below only after the Supreme Court granted review), and second, if it is available, whether Harrow's specific circumstances — receiving no notice of the Board's decision because his email changed — actually entitle him to relief. The Supreme Court's ruling is final on the jurisdictional question only.
What this does not decide
The Court did not decide whether the 60-day deadline can actually be extended by equitable tolling, or whether Harrow personally qualifies for that relief. Both questions were left for the Federal Circuit to resolve on remand. The ruling also does not address filing deadlines for appeals between federal courts, which remain jurisdictional under Bowles v. Russell.
How the Court got there
The legal reasoning, step by step
- The Court started with the framework for 'jurisdictional' requirements: when Congress makes a rule jurisdictional, a court has zero authority to hear a case that violates it — no exceptions for fairness, no excusing late filers, no flexibility at all. Because those consequences are so severe, the Court will treat a procedural rule as jurisdictional only if Congress clearly said so.
- The Court looked at the text of § 7703(b)(1) — the 60-day deadline provision — and found no signal that Congress intended it to define the boundaries of court power. The deadline uses mandatory language ('shall be filed'), but the Court has repeatedly held that mandatory phrasing alone is 'of no consequence' to the jurisdictional question. What matters is whether the rule speaks to the court's authority to hear a case — and this one does not.
- The government argued that a separate law, 28 U.S.C. § 1295(a)(9), filled the gap by granting the Federal Circuit jurisdiction only over appeals filed 'pursuant to' § 7703(b)(1) — meaning, the government said, in full compliance with it, including the deadline. The Court rejected this as 'more strained than clear.' The phrase 'pursuant to' in legal writing most commonly means 'under' or 'invoking as the basis for,' not 'in strict conformance with every requirement of.'
- The Court reinforced this by looking at how 'pursuant to' is used elsewhere in the same jurisdictional statute, § 1295. That provision uses the phrase to reference a handful of other laws, each loaded with its own procedural rules — service requirements, notification duties, payment obligations. The government's reading would make all those rules jurisdictional too, a result the Court called 'untenable.'
- The government pointed to one recognized exception — Bowles v. Russell (2007), which treated the deadline for appealing a civil case from one federal court to another as jurisdictional. The Court distinguished that ruling as a narrow carve-out limited to appeals between Article III courts. Because Harrow appealed from a federal agency (not a court), the Bowles exception did not apply, and the ordinary clear-statement rule governed.
- Having found the deadline non-jurisdictional, the Court noted a backup argument by the government — that even if non-jurisdictional, the deadline still cannot be extended through equitable tolling. The Court declined to resolve that question because the government never raised it below and it was not part of the question the Court agreed to hear. That issue, and whether Harrow personally qualifies for relief, goes back to the Federal Circuit.
Doctrinal impact
Cases affected by this decision
Reaffirms Boechler v. Commissioner (596 U.S. 199)
The clear-statement rule — Congress must explicitly mark a rule as jurisdictional — remains the governing standard.
Reaffirms United States v. Kwai Fun Wong (575 U.S. 402)
Filing time limits are generally not jurisdictional, even when phrased in mandatory or emphatic terms.
Distinguishes Bowles v. Russell (551 U.S. 205)
Bowles's jurisdictional treatment of appeal deadlines applies only between Article III courts, not to agency appeals.