Harrow v. Department of Defense
Headline: Court says 60‑day appeal deadline for Merit Systems Board decisions is not an absolute jurisdictional bar, allowing some federal employees to seek equitable relief for late filings.
Holding: The Court held that the statute’s 60‑day deadline to appeal Merit Systems Protection Board orders is not jurisdictional, so courts may consider equitable exceptions rather than automatically dismissing late appeals.
- Allows federal employees to seek exceptions when they miss the 60‑day appeal deadline.
- Prevents automatic dismissal of late Board appeals as absolute jurisdictional bars.
- Leaves equitable tolling questions for the lower court to decide.
Summary
Background
A longtime Department of Defense employee, Stuart Harrow, was furloughed for six days and challenged that action before the Merit Systems Protection Board. The Board took over five years to issue a final order because it temporarily lacked a quorum. Harrow did not receive the Board’s emailed notice and learned of the decision only after searching the Board’s website, so he filed an appeal to the Federal Circuit more than 120 days after the order—well past the statute’s 60‑day deadline.
Reasoning
The core question was whether the 60‑day time limit in 5 U.S.C. §7703(b)(1) is “jurisdictional”—meaning it would bar court review entirely with no exceptions. The Court explained that most filing deadlines are not jurisdictional unless Congress clearly says so. The Court found no clear statement in §7703(b)(1) and rejected the Government’s argument that the Federal Circuit’s jurisdictional statute, 28 U.S.C. §1295(a)(9), made the 60‑day rule jurisdictional. The Court noted that the phrase “pursuant to” can mean “under” or “based on” and does not plainly convert routine procedural rules into absolute jurisdictional bars. The Bowles exception for appeals between Article III courts did not apply because this appeal came from an agency.
Real world impact
The Supreme Court vacated the Federal Circuit’s dismissal and held the 60‑day limit non‑jurisdictional. That means courts can consider equitable exceptions or other doctrines instead of automatically dismissing late appeals from Board orders. The Court left for the Federal Circuit on remand the related question whether equitable tolling applies on these facts.
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