Harrow v. Department of Defense

Issues 

Does 5 U.S.C. § 7703(b)(1)(A), which sets a 60-day limit for a federal employee to appeal to the U.S. Court of Appeals for the Federal Circuit for a final decision rendered by the Merit Systems Protection Board, set a jurisdictional limit for the Federal Circuit?

Oral argument: 
March 25, 2024

This case asks the court to interpret whether the 60-day time limit for a federal employee to appeal to the U.S. Court of Appeals for the Federal Circuit imposed by U.S.C. § 7703(b)(1)(A) amounts to a jurisdictional requirement that strictly bars claims brought after 60 days. Stuart Harrow maintains that the language in 28 U.S.C. § 1295, which grants jurisdiction to claims “pursuant to” § 7703(b)(1)(A), is simply a cross-reference and not conditional. Harrow further argues that Congress likely did not intend to create such a harsh bar when enacting § 7703(b)(1)(A), considering that many federal employee claims are brought without a lawyer. The Department of Defense counters that “pursuant to” should mean “conforming to,” which sets a conditional requirement, not a reference. The Department of Defense further notes that the Court’s precedents have already decided that § 7703(b)(1)(A) is a jurisdictional requirement; and, Harrow is attempting to artificially parse the statute to reach a favorable result. The case’s outcome will significantly impact methods of Congressional intent interpretations and federal appeal procedures.

Questions as Framed for the Court by the Parties 

Whether the 60-day deadline in 5 U.S.C. § 7703(b)(1)(A) for a federal employee to petition the U.S. Court of Appeals for the Federal Circuit to review a final decision of the Merit Systems Protection Board is jurisdictional.

Facts 

Stuart R. Harrow (“Harrow”) was an employee of a sub-agency of the United States Department of Defense (“DOD”). Harrow v. Department of Defense, 2022 WL 1495611, 1 (Merit Systems Protection Bd.). In 2013, a governmental budget sequester occurred, furloughing Harrow and leaving him unpaid for six days. Id. He requested a financial hardship exception but was denied, and his six-day furlough occurred. Id. at 2. He appealed to the agency, seeking back pay and arguing that the furlough did not “promote the efficiency of the service.” Id. Representing himself, Harrow lost at the agency level and sought an appeal to an administrative law judge (“ALJ”). Id. In 2016, the ALJ found the agency had “satisfied the burden” in demonstrating that the furlough promoted the “efficiency of the service,” further denying Harrow relief. Id.

Following the ALJ’s decision, Harrow had two options to appeal. Id. at 5. First, he could appeal to the Merit Systems Protection Board (“MSPB”), an independent federal agency that adjudicates employment disputes. Secondly, Harrow could appeal directly to the Court of Appeals for the Federal Circuit. Id. The Federal Circuit, the newest of the thirteen US Court of Appeals, services a specialized subject matter including patent law appeals, appeals from specific government agencies, appeals from the Court of Federal Claims, etc. Court of Appeals for the Federal Circuit, LII Wex (last accessed Mar 6, 2024).

In 2016, Harrow chose to appeal to the MSPB, however, during his appeal, the MSPB lost its quorum. Brief for Respondent, Department of Defense at 7-8. When the MSPB regained its quorum in 2022, five years after Harrow’s case was brought to it, it reaffirmed the agency’s denial. Id. The MSPB’s decision could then be appealed to the Federal Circuit, so long as the appeal was lodged within 60 days of the board’s final decision under 5 U.S.C. § 7703(b)(1)(A). Harrow, 2022 WL 1495611 at 5.

During the pendency of the proceedings, Harrow’s email address and selected correspondence medium for his case had changed. Brief for Petitioner, Stuart R. Harrow at 8. Harrow mistakenly believed his new email would receive forwarded emails from his previous email. Id. Due to this mistake, Harrow was not notified of the MSPB’s final decision until 120 days after the decision only through searching on the agency website. Brief for Respondent at 8. Eight days later, Harrow moved for an extension on his appeal, eventually filing his appeal to the federal circuit ten days after that and eighteen days after his initial notification. Id.

Upon receipt of Harrow’s appeal, the Federal Circuit issued an order for an explanation of Harrow’s untimely filing, adding that the governing statute prohibits equitable tolling of the filing deadline. Harrow v. Department of Defense, 2023 WL 1987934, 1 (Fed. Cir. 2023). Harrow replied, explaining there was an “excusable neglect” in not notifying the agency of his new email address, given the MSPB’s lengthy delay. Id.

The Federal Circuit rejected his explanation, arguing the statute prohibited such an exception of the “fixed” 60-day appeal deadline. Id. The court explained that the appeal deadline was jurisdictional, in that it limited the reach of the court itself and is thus not reviewable. Id. The dissenting opinion, however, noted that the majority failed to look to congressional intent, given the informal nature of the administrative process leading to the appeal, including allowing for equitable exceptions to deadlines. Brief for Petitioner at 6.

Analysis 

STATUTORY LANGUAGE AND CONSTRUCTION

Stuart Harrow argues that the plain language of 28 U.S.C. § 1295 shows that 5 U.S.C. § 7703(b)(1)(A) is not a jurisdictional requirement. Brief for Petitioner, Stuart R. Harrow at 11. Harrow posits that although § 1295 grants jurisdiction to federal courts in enumerated situations, § 1295 merely references § 7703(b)(1)(A), containing the 60-day time limit. Id. at 14. Harrow elaborates that such a reference within a jurisdictional statute does not transform § 7703(b)(1)(A) into a jurisdictional requirement itself. Id. at 14. Specifically, Harrow asserts that the phrase “pursuant to” found in § 1295 in relation to § 7703(b)(1)(A) is a cross-reference to § 7703(b)(1)(A) because the plain meaning of “pursuant to” means “under,” which does not constitute a conditional and binding requirement but rather a reference to another relevant section of the law. Id. Harrow maintains that “pursuant to” is different from using “unless” or “if,” which courts have agreed that clearly sets a conditional boundary for granting jurisdiction. Id. at 15. Harrow thus argues that the plain language of § 1295 and § 7703(b)(1)(A) indicates that the 60-day limit does not act as a jurisdictional bar and Harrow’s claim was therefore timely. Id. at 15.

DOD counters that the plain language of § 1295 does not encompass filings that have been delayed beyond the 60-day limit, thus creating a jurisdictional bar of claims brought after the 60-day limit. Brief for Respondent, Department of Defense at 13, 30. Specifically, DOD focuses on the phrase that the appeal must be “pursuant to” § 7703(b)(1). Id. at 14. DOD argues that the plain meaning of “pursuant to” means “conforming to.” Id. at 14-15. DOD argues that when the term “pursuant to” references another statute, it sets the other statute as a prerequisite because the law dictionary interprets it as a restrictive term. Id. at 15. Further, DOD contends that the Supreme Court’s history of statutory interpretation has adopted a restrictive interpretation of “pursuant to,” which requires complying fully with the subsequent sentences. Id. at 16. Based on this restrictive understanding, DOD argues that the Federal Circuit has no jurisdiction to hear a claim filed after 60 days because it is a conditional prerequisite. Id. at 16-17. DOD concludes that the Court should reject Harrow’s claim because he failed to file his claim within the required 60-day period under § 7703(b)(1) and meet the jurisdictional requirement. Id. at 16, 18.

CONGRESSIONAL INTENT

Harrow argues that there is no clear evidence that Congress intended to set § 7703(b)(1)(A) as a jurisdictional requirement. Brief for Petitioner at 11. Harrow points out that Congress has used clear language in other instances, such as stating “within the time and in the manner prescribed” when it granted jurisdiction for the Federal Circuit. Id. at 15-16. Instead, Harrow posits that the language here is mundane and functions to supply an ordinary deadline, not to condition the jurisdiction upon a certain timeframe. Id. at 17-18. Harrow further argues that a jurisdictional requirement is a harsh standard that does not permit equitable remedies, and therefore Congress must state the requirement in clear terms. Id. at 11. Harrow asserts that Congress is unlikely to have intended a strict jurisdictional requirement in §7703(b)(1), especially considering that many federal employees bring a claim under Merit Systems Protection Board (“MSPB”) proceedings pro se. Id. at 20-21. Harrow maintains that given the informal nature of MSPB proceedings, where many cases involve a flexible operation where lawyers do not accompany claimants, imposing a harsh jurisdictional requirement would be anomalous. Id. Harrow thus concludes that such cross-references cannot substitute clear language for setting a precondition for granting jurisdiction. See Id. at 20-21, 16-17.

DOD counters that congressional intent favors interpreting § 7703(b)(1)(A)’s 60-day limit as jurisdictional. Brief for Respondent at 27. DOD argues that before § 7703(b)(1)(A) was created with the enactment of the Civil Service Reform Act of 1978 (“CSRA”), the method by which a federal employee could seek review of employment actions was by filing with the Court of Claims, and such an appeal was limited by a jurisdictional time limit. Id. DOD elaborates that when Congress enacted CRSA and then established the Federal Circuit, Congress granted the Federal Circuit the jurisdiction previously given to the Court of Claims but notably did not alter the time limit for filing a petition for review, indicating that Congress intended for the time limit to remain jurisdictional. Id. at 27-28. DOD further contends that § 7703(b)(1)(A)’s time limit became more stringent over time, indicating congressional intent for the 60-day limit to be jurisdictional. Id. at 44. DOD specifies that the limit originally began when the employee received notice, but Congress changed the limit to begin when MSPB issues the notice, meaning its intent for the time limit to be interpreted harshly and for § 7703(b)(1)(A) to be a jurisdictional limit. Id.

PAST PRECEDENTS INTERPRETING § 7703(b)(1)

Harrow argues that the time limit of § 7703(b)(1) does not impose a jurisdictional requirement because the statute does not connect it to a jurisdictional limitation. Brief for Petitioner at 18. Harrow cites Kloeckner v. Solis, in which the Court interpreted § 7703(b)(2), a statute containing a similar 30-day limitation. Id. At 18-19. Harrow argues that in Kloeckner, the Court found that a filing deadline does not determine whether district courts could hear the case. Id. at 18-19. Harrow contends that there was no precedential case history interpreting a time limit as a jurisdictional limitation because Kloeckner labeled it as a filing deadline. Further, Harrow disputes DOD’s argument that there is a definitive interpretation regarding § 7703(b)(1). Id. at 21-22. Harrow argues that for a court’s interpretation to control, it must concern the same provision and must show that the court interpreted it as jurisdictional. Id. Harrow argues that DOD’s interpretation of Lindahl v. OPM is misguided because the case did not concern the deadline of §7703(b)(1). Id. at 23. Harrow contends that Lindahl only interpreted what types of cases the Federal Circuit had the power to hear and only referenced the time limit in the decision. Id. Further, Harrow maintains that DOD even acknowledges the time limit was not an issue in Lindahl, and therefore it does not have precedential value here.

DOD counters that a history of cases has interpreted § 7703(b)(1)’s time limit as a jurisdictional requirement that grants or denies federal courts the power to hear claims. Brief for Respondent at 19. DOD disputes Harrow’s interpretation of Kloeckner, arguing that the time limit as a jurisdictional component was not an issue in the case. Id. at 34. DOD contends that the only question the court in Kloeckner addressed is whether the time limit affects its status as a “mixed” case that belongs in the district court, not that the time limit is non-jurisdictional. Further DOD argues that in Lindahl, the court definitively interpreted that § 7703(b)(1) is a jurisdictional requirement. Id. Specifically, DOD argues that the court defined § 7703(b)(1) as granting the Federal Circuit jurisdiction over certain appeals and refused to construe it as a mere venue provision. Id. at 20-21. DOD disputes Harrow’s position that the court did not decide upon the time limit at issue, since Lindahl considered whether the entire language of § 7703(b)(1) grants or limits the Federal Circuit’s “power to adjudicate.” See Id. at 21. Further, DOD contends that Harrow cannot separate § 7703(b)(1)’s time limit from its other sentences defining jurisdictional limits because the court provided no basis for doing so. Id. at 22.

Discussion 

EFFECT ON VULNERABLE LITIGANTS

Law Professors, in support of Harrow, argue that treating the 60-day time limit as a statute of limitations has negative practical consequences on litigants. Brief of Amici Curiae Law Professors at 6-10. The Law Professors argue that treating § 7703(b)(1)(A)’s time limit as a jurisdictional bar would “alter the normal operation of the justice system,” allowing sophisticated litigants to use this provision strategically at the eleventh hour against less sophisticated parties. Id. at 8. The National Veterans Legal Services Program (“NLSP”), also in support of Harrow, notes that this danger is especially notable because at least fifty percent of MSPB claimants appear pro se, without the aid of an attorney. Brief of Amicus Curiae National Veterans Legal Services Program at 15. The NLSP further argues that deeming the § 7703(b)(1) deadline to be jurisdictional would have an outsized impact on veterans, who often make MSPB claims, and it would encourage the government to use procedural hurdles to deprive them of benefits they earned. Id. The NLSP warns that interpreting the 60-day limit as a jurisdictional bar would only further complicate the already overly complex procedural hurdles of MSPB claims. Id.

DOD counters that granting Harrow an extension to the 60-day limit would create an inconsistency with previous interpretations of congressional acts that would negatively affect litigants. Brief for Respondent at 30. DOD elaborates that declaring the 60-day limit to the court’s jurisdiction would result in confusion among litigants, rather than confusion resulting from interpreting §7703(b)(1) as a jurisdictional limit, as Harrow argues. Id. at 38. DOD contends that allowing Harrow an extension would amount to an unprecedented departure from the usual canons of statutory interpretation and that making such a decision against finding the limit to be jurisdictional would cause confusion for litigants by changing the established and understood procedures. Id. at 38, 41. DOD asserts that this departure from the traditional inquiry into statutory intent would ultimately upset the typical procedures of an appellate court, and therefore lead to confusion among the very litigants whom Harrow desires to protect. Id. at 41-43.

EXPECTATIONS OF THE PARTIES

The National Treasuries Employees Union (“NTEU”), in support of Harrow, asserts that finding the deadline jurisdictional would depart from the presumption of equitable tolling against the government, and the principle that remedial statutes, such as the backpay remedy Harrow sought, are generally not jurisdictional. Brief of Amicus Curiae National Treasury Employees Union at 3-4, 6-7. The NTEU elaborates that finding against Harrow would therefore upset the expectations of the parties and future litigants based on reasonable statutory construction. Id. at 6-7. The Federal Circuit Bar Association (“FCBA”), also in support of Harrow, similarly asserts that finding the deadline jurisdictional would amount to an inconsistency with the overall statutory scheme. Brief of Amicus Curiae Federal Circuit Bar Association at 3. FCBA clarifies that due to the nature of the process, often navigated pro se, it would be unfair to impose strict filing deadlines as it would detract from the “informal” nature of the process. Id. at 3-6. FCBA also argues that preventing the tolling of government-inflicted delays, a delay that they argue Harrow experienced, would allow the government to create unfair situations, such as USPS delays causing litigants to miss deadlines in cases where the USPS is the adverse party. Id. at 8.

DOD counters that consistency of historical practice would be upset if the Court found that the 60-day limit is not a jurisdictional bar, contradicting the expectations of the parties. Brief for Respondent at 23. DOD points out that these jurisdictional determinations happen before the appeals court level, either at the district court or administrative agency level. Id. at 24. DOD argues that overturning this historical determination would lead to inconsistencies with other statutes, especially since clear congressional intent notes that review of an agency determination is jurisdictional. Id. at 25. DOD posits that jurisdictional filing deadlines existed even before the federal circuit existed, and a contrary finding would upset this longstanding practice. Id. at 26. DOD concludes that there would ultimately be legal inconsistencies, given that the appeals court has to conduct fact-finding, something they are ill-prepared to conduct, whereas measuring 60 days is simple, and therefore to determine that the 60-day limit does not limit jurisdiction would go against the reasonable expectations of the parties. Id. at 28.

Conclusion 

Written by:

Robert Plafker

Ethan Lee

Edited by:

Ashley Dyer

Acknowledgments 

Additional Resources