Harrow v. Department of Defense
The Supreme Court unanimously ruled that the 60-day window for federal employees to appeal a civil service board ruling to a federal court is not a hard jurisdictional limit — meaning a court can at least consider excusing a missed deadline when the circumstances warrant.
The decision opens the door for employees like Stuart Harrow, who missed the deadline only because a five-year government backlog and an email address change left him unaware the ruling had been issued, to ask a court for flexibility rather than face automatic dismissal.
How it got here: Harrow filed his Federal Circuit appeal more than 60 days late; the Federal Circuit dismissed it as jurisdictionally barred; the Supreme Court agreed to hear his challenge to that ruling.
The Case in Depth
What happened
Stuart Harrow, a longtime Defense Department employee, was furloughed for six days in 2013 and challenged the decision before the Merit Systems Protection Board, an independent agency that handles federal employment disputes. The Board lost its quorum for over five years, and by the time it ruled against Harrow in May 2022, his work email address had changed and he never received the notice. He discovered the ruling on his own — after the 60-day appeal window had already closed — and filed his appeal more than 60 days late.
The question before the Court
Can a federal employee ask a court to excuse a missed appeal deadline when he never received official notice of the ruling he needed to appeal?
The Court's answer
No — the 60-day filing window is not a jurisdictional requirement. Ordinarily, courts can excuse a missed deadline through equitable tolling (a judge-made doctrine that forgives a late filing when the circumstances are fair), and most procedural rules — including time limits — work this way. A filing deadline becomes a hard jurisdictional bar, with no exceptions whatsoever, only when Congress clearly writes that it is one. Neither the statute creating the 60-day deadline nor the separate statute granting the Federal Circuit power to hear these appeals contains that kind of clear statement, so the deadline does not strip the court of all authority to act when a filer is late.
The Court did not decide whether Harrow himself is entitled to have his late filing excused. That question — including whether the Government can defeat even the presumption that the deadline allows for tolling — goes back to the Federal Circuit on remand.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Federal employees who miss the 60-day window to appeal a Merit Systems Protection Board ruling — say, because they never received official notice — can now ask a court to excuse the delay instead of having their case automatically thrown out. Courts still decide whether the circumstances justify leniency; the ruling only ensures judges are allowed to consider the question.
What changes now
The case returns to the Federal Circuit, which must decide two questions it previously skipped: first, whether the government can rebut the usual presumption that non-jurisdictional deadlines allow for equitable tolling; and second, if tolling is available, whether Harrow's particular circumstances — never receiving official notice because his email address changed — are enough to excuse the more-than-60-day delay. Harrow could still lose on remand.
What this does not decide
The Court did not decide whether Harrow's specific situation entitles him to have his late filing excused, or whether the government can show that this particular deadline — though non-jurisdictional — still bars equitable tolling. Both questions are open on remand. The ruling also does not address other agency-appeal deadlines beyond the one at issue.
How the Court got there
The legal reasoning, step by step
- The Court began with a fundamental distinction: most procedural rules, including filing deadlines, are not truly absolute — courts can excuse non-compliance under doctrines like equitable tolling or waiver. But a 'jurisdictional' requirement is categorically different: missing it deprives a court of all power to act, with no exceptions, no matter how compelling the circumstances.
- Because treating a rule as jurisdictional has such drastic consequences, the Court applies a 'clear statement' rule: a procedural requirement becomes jurisdictional only if Congress plainly said so in the text. Meeting this high bar requires more than mandatory phrasing like 'shall be filed' — it requires some reference to the court's actual authority over untimely cases.
- The statute Harrow missed, 5 U.S.C. §7703(b)(1), says appeals from the Board 'shall be filed within 60 days' in the Federal Circuit. That phrasing is mandatory, but the Court has repeatedly held that mandatory language alone is not enough. The provision says nothing about the Federal Circuit's jurisdiction, so it doesn't strip the court of power on its own.
- The government argued that a separate statute — 28 U.S.C. §1295(a)(9) — closes the gap by granting the Federal Circuit jurisdiction over Board appeals made 'pursuant to' §7703(b)(1), which the government read as requiring full compliance with the deadline. The Court rejected this, reading 'pursuant to' as a common legal shorthand meaning 'invoking this section as the basis for the appeal,' not 'complying with every procedural requirement in it.' Adopting the government's reading would make a sweeping range of other procedural rules across §1295 jurisdictional too — a result the Court found untenable.
- The Court distinguished Bowles v. Russell (2007), in which it held that deadlines for appeals between two federal courts are jurisdictional even without a clear statement. That exception is narrow: it covers only court-to-court appeals. Because Harrow appealed from a federal agency — not from another court — the Bowles exception does not apply, and the normal clear-statement rule governs.
- Because the deadline is non-jurisdictional, it is presumptively subject to equitable tolling. Whether the government can rebut that presumption — and whether Harrow's specific facts justify tolling — are questions the Court left for the Federal Circuit to address on remand.
Doctrinal impact
Cases affected by this decision
Distinguishes Bowles v. Russell (551 U.S. 205)
Its rule that appeal deadlines are jurisdictional applies only to appeals between federal courts, not appeals from agencies.
Reaffirms Boechler v. Commissioner (596 U.S. 199)
The clear-statement rule requiring Congress to explicitly call a requirement jurisdictional before courts treat it as such.