SCOTUS: Although the procedural rules that govern the litigation process are often phrased in mandatory terms, they are generally subject to exceptions. Image: Ritu Manoj Jethani/Shutterstock.com
By: FEDweek StaffIn a rare case in which the U.S. Supreme Court directly addressed a question of federal employment law, the high court has ruled that there is flexibility in the 60-day deadline for employees to challenge MSPB rulings against them into federal appeals court.
At issue in Harrow v. Department of Defense, No. 23-21, was whether that deadline absolutely must be met or whether missing it can be excused if a good reason is shown.
In ruling that it had no jurisdiction to hear an appeal from an Army employee who missed the deadline, the Federal Circuit Court of Appeals had cited a section of law stating “any petition for review shall be filed within 60 days after the Board issues notice of the final order or decision of the Board.”
However, in a unanimous decision, the high court said that “Although the procedural rules that govern the litigation process are often phrased in mandatory terms, they are generally subject to exceptions . . . most time bars are nonjurisdictional, even when framed in mandatory and emphatic terms.” In contrast, it said, “when Congress enacts a jurisdictional requirement, it marks 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.”
The case involved a challenge to DoD’s refusal to grant an employee’s request for a waiver, on financial hardship grounds, from unpaid furloughs triggered by the “sequestration” budget limits in 2013. An MSPB hearing officer ruled in favor of DoD but before the three-member merit board could consider the employee’s appeal of that ruling, the board lost its quorum and was unable to issue decisions for five years.
After the board quorum was restored early in 2022, it upheld the hearing officer in an order that included a notice of the filing deadline. But in the meantime, the employee’s email had changed and he did not learn of that decision until after the deadline had passed.
The employee argued that courts have allowed flexibility in meeting the deadline of another section of federal employment law that uses similar language. The Justice Department had responded that those sections of law are distinct and that every court that has considered the section at issue has agreed with the Federal Circuit’s interpretation.
Said the Supreme Court opinion, “The procedural requirements that Congress enacts to govern the litigation process are only occasionally as strict as they seem. Most of those rules read as categorical commands. But Congress legislates against the backdrop of judicial doctrines creating exceptions, and typically expects those doctrines to apply . . . a court may be able to excuse the party’s noncompliance for equitable reasons.”
It said that while the law does speak of the deadline in mandatory terms, “What matters instead is whether a time bar speaks to a court’s authority to hear a case” and that section of the law does not.
“There is no mention of the Federal Circuit’s jurisdiction, whether generally or over untimely claims. So [that section] on its own, does not deprive the Federal Circuit of power to hear Harrow’s appeal,” it said in sending the case back to that court to decide if the circumstances merited an exception to the deadline.
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