The Supreme Court seemed sympathetic on March 25 to the argument of a furloughed U.S. Department of Defense (DOD) employee who waited five years for an understaffed government board to decide on his compensation claim.
The employee argued that his case, which has dragged on for 11 years, should be allowed even though his claim missed a filing deadline.
Acting as his own counsel, he challenged the employment decision before an administrative judge who ruled against him. Still without legal representation, he appealed to the U.S. Merit Systems Protection Board (MSPB). The board describes itself on its website as “an independent, quasi-judicial agency in the Executive branch that serves as the guardian of Federal merit systems.”
While the appeal was pending, on Jan. 8, 2017, the board lost its quorum of members and couldn’t conduct business and resolve appeals. The board didn’t regain a quorum until May 11, 2022, when it rejected the appeal and affirmed the administrative judge’s ruling.
In the intervening five-year period, the DOD changed email servers and Mr. Harrow failed to notify the MSPB of his changed email address. Because the board served its final decision in the case on him only by email, he didn’t learn about the unfavorable ruling until Aug. 30, 2022, 111 days after the decision was made.
Mr. Harrow continued representing himself and asked the U.S. Court of Appeals for the Federal Circuit on Sept. 16, 2022, to review the board’s decision.
In some cases, federal employees are allowed to appeal unfavorable board decisions to the Federal Circuit, but the law provides that any petition for review must be filed within 60 days after the board’s final decision.
The Federal Circuit ruled in Fedora v. MSPB in 2017 that the deadline to file an appeal under Section 7703 of 5 U.S. Code was jurisdictional. It cited the 2017 precedent when it denied Mr. Harrow’s appeal.
The legal issue now before the Supreme Court is whether the 60-day deadline specified in Section 7703 for a federal employee to ask the Federal Circuit to review a final decision of the board is jurisdictional—a status that can significantly limit litigants’ options in a case.
Legal rules are classified as either “jurisdictional” or “nonjurisdictional,” according to the Stanford Law Review.
If a rule is deemed jurisdictional, “courts will interpret and apply it rigidly, literally, and mercilessly.”
“Jurisdictional defects are absolutely fatal to a claim,” Stanford Law Review stated. “Moreover, parties [can] neither waive jurisdictional requirements nor consent to noncompliance with them. Parties can raise jurisdictional defects at any time in the litigation, including for the first time on appeal, and courts are obliged to raise such defects … even after litigation on the merits. Finally, courts may not consider using equitable doctrines to bend jurisdictional rules under any circumstances.”
Mr. Harrow’s attorney, Joshua P. Davis, told the justices during oral arguments on March 25 that, over the past two decades, the Supreme Court has clarified the law so that, according to the wishes of Congress, ordinary procedural rules would not be misinterpreted as jurisdictional.
“The clear statement rule governs that analysis. That rule demands a clear statement from Congress on par with explicit language to establish a jurisdictional requirement.”
“At issue here is whether 5 U.S.C. Section 7703(b)(1)(A)’s filing deadline is jurisdictional. Nothing in the text of (b)(1)(A) suggests that it is. That can end the inquiry. That conclusion is confirmed by the text of the relevant jurisdictional statute, 28 U.S.C. Section 1295(a).”
That section gives jurisdiction to the Federal Circuit over appeals “pursuant to” Section 7703(b)(1), Mr. Davis said.
But “‘pursuant to’ is a notoriously ambiguous phrase,” the lawyer said. Despite this, the government claims the phrase means all the requirements of (b)(1)(A) have been satisfied.
The problem is “pursuant to” can also mean invoking (b)(1), not satisfying its filing deadline, he said.
This is how the Supreme Court interpreted interlocutory appellate jurisdiction in a 2021 case, finding that “pursuant to” meant invoking a specific statutory provision, not satisfying its requirements, he said. Interlocutory means given provisionally in the course of a legal proceeding.
Based on this interpretation, (b)(1)(A)’s filing deadline is not jurisdictional, he said.
“Under the clear statement rule, (b)(1)(A)’s filing deadline is a mere claims processing rule,” he added.
The clear statement rule is a guideline for interpreting statutes, which directs courts not to construe a statute in such a way that will lead to specific consequences unless the statute is unambiguously clear that those consequences are what the statute seeks to achieve.
U.S. Department of Justice attorney Aimee W. Brown said Congress gave the Federal Circuit jurisdiction over appeals from final MSPB decisions, including deadlines for filing an appeal.
As the Supreme Court has recognized, “the plain meaning of ‘pursuant to’ is ‘in accordance with’ or ‘in compliance with,’” she said.
Justice Clarence Thomas asked if it was “at least plausible that ‘pursuant to’ modifies ‘final order’?”
Ms. Brown replied that it was not.
A Long Fight
Several justices, including Justice Neil Gorsuch, questioned why the government has been fighting Mr. Harrow’s claim—which amounts to $3,000 plus interest—for so hard, so long.“It is extraordinary the lengths to which this case has gone; seven years waiting and then the email and all that,” he said.
Justice Gorsuch asked Mr. Davis why the government has resisted his client’s case “so strongly.”
“He spent seven years waiting, five of which were because the government couldn’t manage to get a quorum together to resolve it, sent an email to an old email address … and he acted as quickly … as he could when he got it, and yet here we are in the Supreme Court of the United States over a $3,000 claim,” the justice said.
Justice Sonia Sotomayor added, “I think the government wants the court to do the work for it.”
Mr. Davis said some members of the Federal Circuit may welcome the Supreme Court intervening in the case.
“They seem stuck in a precedent that at least some of them believe is no longer consistent with Supreme Court doctrine, but they are abiding by it unless and until they’re told otherwise,” the lawyer said.
Justice Amy Coney Barrett asked Ms. Brown why the government cared “so much whether this is jurisdictional or claims processing.”
The attorney replied, “the reason that we are here … we take very seriously this court’s rulings in this area and its efforts to bring discipline to the use of jurisdiction, and we’re not trying to fight against the application of the clear statement rule.”
After the oral argument, Mr. Davis told The Epoch Times that he thought his argument went “very well.”
“I’m optimistic that at the end of the day, it’ll go our way,” he said in a brief interview.
“I thought the government lawyer did a fantastic job. But I think the clear statement rule is pretty darn clear and its application here is probably pretty darn clear.”
The lawyer said he sensed frustration on the court “that the rule is clear but the lower courts are not abiding by it as much as they should.”
The Supreme Court is expected to rule on the case, Harrow v. Department of Defense, by the end of June.
