Harrow v. Department of Defense

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.