The Supreme Court ruled unanimously on May 16 that a furloughed Department of Defense (DOD) employee who was forced to wait five years for an understaffed government board to decide on his compensation claim is entitled to move forward with an appeal of the decision denying him benefits.
The legal issue in the case was whether a filing deadline was “jurisdictional,” in legal parlance. When a legal rule is deemed jurisdictional, that status can significantly limit litigants’ options in a case.
“Jurisdictional defects are absolutely fatal to a claim,” the legal journal stated.
In a ruling that was a defeat for the Biden administration, the Supreme Court found that a 60-day filing deadline for federal employees to petition the U.S. Court of Appeals of the Federal Circuit to review a final decision of the Merit Systems Protection Board (MSPB) was not jurisdictional. The board adjudicates federal employment disputes.
Stuart Harrow argued that his appeal, which has dragged on for 11 years, should be allowed even though circumstances caused him to miss a key filing deadline.
The complex case goes back to 2013, when the longtime DOD employee was furloughed for six days as a result of funding cutbacks. Mr. Harrow asked to be exempted from the furlough on the grounds of financial hardship.
Acting as his own attorney, he challenged the employment decision before an administrative judge. In 2016, the judge upheld the furlough, finding that it was “regrettable” but not “improper.” Still, without legal representation, he appealed to the MSPB.
While the appeal was pending, on Jan. 8, 2017, the board lost its quorum of members, so it could neither conduct business nor resolve appeals. The board didn’t regain a quorum until May 11, 2022, when it rejected the appeal and affirmed the judge’s ruling.
In the intervening five-year period, the DOD changed email servers, and Mr. Harrow failed to notify the board of his new email address. Because the board served its final decision in the case on him solely by email, he did not learn about the unfavorable ruling until Aug. 30, 2022, 111 days after the decision was made.
Mr. Harrow continued to represent himself and asked the Federal Circuit on Sept. 16, 2022, to review the board’s decision.
In some cases, federal employees are permitted 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, a deadline Mr. Harrow missed.
The Federal Circuit had previously 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 precedent when it denied Mr. Harrow’s appeal.
The circuit court found that it was obligated to dismiss the appeal because, in its view, the 60-day deadline was a “jurisdictional requirement” and was therefore “not subject to equitable tolling.” Although Mr. Harrow’s situation was “sympathetic,” it was irrelevant.
Because the deadline was jurisdictional, the court held that it did not have the power to “excuse a failure to timely file based on individual circumstances.”
The legal issue before the Supreme Court was whether the 60-day deadline specified in Section 7703 was actually jurisdictional.
Section 7703 provides that a federal employee who experiences an adverse personnel action is entitled to complain to the board and, if it finds against him, to appeal that determination to the Federal Circuit “within 60 days,” Justice Kagan wrote.
“The question presented is whether that 60-day limit is ‘jurisdictional,’ and therefore precludes equitable exceptions. We hold that the limit, like most filing deadlines, is not jurisdictional,” she wrote.
The procedural requirements laid down by Congress are rarely as strict as they seem, according to Justice Kagan.
“Most of those rules read as categorical commands (e.g., a person ‘shall file in this court,’ ‘shall file by that time,’ ‘shall include the following documents’). But Congress legislates against the backdrop of judicial doctrines creating exceptions, and typically expects those doctrines to apply,” she wrote.
This means that a court will not enforce a procedural rule against a noncompliant litigant if his opponent has forfeited or waived an exception, and a court may be able to excuse the litigant’s failure to comply on equitable grounds, she wrote.
This flexibility does not apply when a rule is jurisdictional, so a court has to enforce the rule even if no party has cited it and “even if equitable considerations would support” excusing its violation.
“Mindful of those repercussions, this Court will ‘treat a procedural requirement as jurisdictional only if Congress ‘clearly states’ that it is,” Justice Kagan wrote.
No language in the time limitation that Mr. Harrow violated suggests that the rule was jurisdictional, she said.
Section 7703 by itself does not deprive the Federal Circuit of authority to hear Mr. Harrow’s appeal.
“Not even the Government, which defends the view that the 60-day limit is jurisdictional, argues otherwise,” instead resting its case on 28 U.S.C. Section 1295, which lays out the Federal Circuit’s subject-matter jurisdiction, according to Justice Kagan. That law gives that court jurisdiction of an appeal from a final order or final decision of the board “pursuant to” Section 7703.
The government maintains that “pursuant to” can only mean in “conformance to” or in “compliance with” and that complying with Section 7703, including its 60-day appeal filing deadline, falls under the jurisdiction of the Federal Circuit and therefore becomes a “jurisdictional prerequisite.”
The problem is that the government’s reading of Section 1295 is “more strained than clear.”
“‘Pursuant to’ is one of those little phrases that can mean a raft of things,” Justice Kagan wrote.
It can mean that one thing is strictly in compliance with another, or it can function as “a legalese synonym for ‘under.’”
“It identifies the provision that served as the basis for the filing, but without addressing whether the latter conformed to the former’s every requirement,” she wrote.
“We have almost never treated the sort of routine rules swept up in the Government’s ‘pursuant to’ reading as absolute bars to judicial action, neither subject to forfeiture nor excusable for equitable reasons,” Justice Kagan wrote.
The Supreme Court vacated the judgment of the Federal Circuit and remanded the case to that court “for further proceedings consistent with this opinion.”
