SCOTUS: Untimely Federal Circuit Appeals May Not Be Doomed, After All

In a unanimous decision delivered by Justice Elena Kagan, the Supreme Court in Harrow v. Department of Defense held that the 60-day deadline to appeal a decision of the Merit Systems Protection Board (“MSPB” or “Board”) to the U.S. Court of Appeals for the Federal Circuit is not jurisdictional. Because it is non-jurisdictional, a federal employee’s failure to meet that deadline does not prevent the Federal Circuit from hearing the case if the employee can show good cause for the delayed petition. This decision in overturns decades of Federal Circuit precedent characterizing the 60-day appeals period in 5 U.S.C. § 7703(b)(1) as jurisdictional, requiring automatic dismissal were they not met.

The case involves a longtime employee of the Department of Defense (“DOD”) who was furloughed for six days in 2013. He challenged his furlough, which was affirmed by an administrative judge in 2016. The Appellant sought review of that decision before the full Board, but the Board lost its quorum for over five years while Appellant’s action was pending. In May 2022, after the Board’s quorum was restored, the Board affirmed the administrative judge’s decision.

However, that delay indirectly caused Appellant to miss his deadline to petition for review in the Federal Circuit within 60 days of the Board’s final order in 2022, pursuant to § 7703(b)(1). Appellant explained that during his years-long wait for the Board’s decision, his work email address changed and he never received the email containing the Board’s order. It was not until September 2022, after the 60-day deadline had passed, that the Appellant learned of the Board’s order from the Board’s website.

After submitting an untimely appeal, the Federal Circuit dismissed Appellant’s appeal and reasoned that since the 60-day deadline in § 7703(b)(1) is jurisdictional, the Federal Circuit had no authority to extend the 60-day deadline based on Appellant’s individual circumstances. Appellant’s petition for writ of certiorari to the Supreme Court followed.

Rejecting the Federal Circuit’s reasoning, the Supreme Court held that the 60-day deadline in § 7703(b)(1), like most filing deadlines, is not jurisdictional. The Court reasoned that Congress’s enacted procedural requirements are only occasionally as strict as they seem, and Congress typically expects judicially created exceptions to those requirements (like equitable tolling) to apply. Because the Court views most deadlines as non-jurisdictional, it will treat a deadline as jurisdictional only “if Congress clearly states that it is.” And that treatment has repercussions— a jurisdictional requirement “‘mark[s] the bounds’ of a court's power: A litigant's failure to follow the rule ‘deprives a court of all authority to hear a case.’”

Here, the Court concluded that § 7703(b)(1) is non-jurisdictional, as nothing in the statute’s language suggests the deadline is jurisdictional. The Court has repeatedly held that even when a deadline is stated in mandatory terms (e.g., “shall be filed”), that fact “is of no consequence” to the jurisdictional issue. What matters instead is “whether a time bar speaks to a court’s authority to hear a case,” which is absent from § 7703(b)(1).

The Court also discussed the availability of equitable tolling—a judicial doctrine granting a court discretion to extend a deadline as a result of circumstances preventing an individual from complying, despite reasonable diligence. The Court highlighted that non-jurisdictional timing rules are presumptively subject to equitable tolling, but remanded the case to determine whether the deadline in § 7703(b)(1) is subject to equitable tolling and whether Appellant is entitled to that relief.

Read the full case: Harrow v. Department of Defense