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Harrow v. Department of Defense (US 23–21 per curiam 5/16/24) Merit Systems Protection Board | Appeal Deadline Not Jurisdictional

By May 16, 2024June 30th, 2024Uncategorized

When the Department of Defense furloughed petitioner Stuart Harrow for six days, he challenged that decision before the Merit Systems Protection Board. After a five-year delay, the Board ruled against him. Harrow had the right to appeal that decision to the Court of Appeals for the Federal Circuit, provided he did so “within 60 days” of the Board’s final order. 5 U. S. C. §7703(b)(1). But Harrow did not learn about the Board’s decision until the 60-day period to appeal had run, and filed his appeal late. Given the circumstances, Harrow asked the Federal Circuit to overlook his untimeliness and equitably toll the filing deadline. But the Circuit, believing that the deadline was an unalterable “jurisdictional requirement,” denied his request.

Held: Section 7703(b)(1)’s 60-day filing deadline is not jurisdictional. Although the procedural rules that govern the litigation process are often phrased in mandatory terms, they are generally subject to exceptions like waiver, forfeiture, and equitable tolling. But when Congress enacts a “jurisdictional” requirement, it “mark[s] the bounds” of a court’s power, and a litigant’s failure to follow the rule “deprives a court of all authority to hear a case,” with no exceptions. Boechler v. Commissioner, 596 U. S. 199, 203. Mindful of those repercussions, the Court will “treat a procedural requirement as jurisdictional only if Congress ‘clearly states’ that it is.” Ibid. Under that approach, “most time bars are nonjurisdictional,” even when “framed in mandatory” and “emphatic” terms. United States v. Kwai Fun Wong, 575 U. S. 402, 410–411.

No language in the provision Harrow violated suggests a different result. Section 7703(b)(1) states that an appeal “shall be filed within 60 days after the Board issues notice of the final order.” Although the deadline is stated in mandatory terms, this fact is “of no consequence” to the jurisdictional issue. Id., at 411. “What matters instead” is whether the time bar speaks to the court’s jurisdiction. Ibid. And §7703(b)(1) does not.

The Government rests its case on a different statute spelling out the Federal Circuit’s subject-matter jurisdiction, but that law provides it no better support. In 28 U. S. C. §1295(a)(9), Congress granted the Circuit jurisdiction “of an appeal from a final order or final decision of the Merit Systems Protection Board, pursuant to section[ ] 7703(b)(1).” The Government argues that an appeal is “pursuant to” §7703(b)(1)— and so within the Federal Circuit’s jurisdiction—only if it fully complies with §7703(b)(1)’s requirements, including the time bar. But that interpretation is more strained than clear. When a legal drafter writes that a filing has been made “pursuant to” a statutory provision, the phrase often functions as a synonym for “under,” identifying the provision that served as the basis for the filing but without addressing whether the latter conformed to the former’s every requirement. The Court has recently used the phrase this way, as has Congress. See BP p.l.c. v. Mayor and City Council of Baltimore, 593 U. S. 230, 238. So to file an appeal “pursuant to” §7703(b)(1) likely just means to invoke that section as the basis for the appeal. At the very least, there is no clarity the other way. And the rest of §1295 confirms that conclusion. The law uses the phrase “pursuant to” to reference several other statutes, which in turn contain a bevy of procedural rules. The Government’s interpretation would suggest that all those rules are jurisdictional too. But the Court has almost never treated rules like these as absolute bars to judicial action.

The Government cites one kind of time limit that counts as jurisdictional even without a clear statement—deadlines to appeal a district court decision in a civil case. Bowles v. Russell, 551 U. S. 205. But this Bowles exception is for appeals from one Article III court to another. As to all other time bars, like the agency appeal here, the clear-statement rule applies. And for the reasons stated, the 60-day deadline to appeal Board decisions does not satisfy it.

Pp. 3–9. Vacated and remanded.

KAGAN, J., delivered the opinion for a unanimous Court.