Cert grant on appeals from the Merits Systems Protection Board

The US Supreme Court granted certiorari in Harrow v. Department of Defense [Briefs] on December 8.

This case will decide whether the 60-day time limit for seeking Federal Circuit review of an order of the Merits Systems Protection Board is jurisdictional and therefore not subject to equitable tolling.

The Supreme Court has decided cases involving similar statutory deadlines, and found them to be non-jurisdictional. I expect this case will come out that way also.

Oral argument will be in the spring, with a decision just before summer recess.

Here is the formal statement of the issue:

“When a federal employee petitions the U.S. Court of Appeals for the Federal Circuit to review a final decision of the Merit Systems Protection Board, 5 U.S.C. § 7703(b)(1)(A) provides: “Notwithstanding any other provision of law, any petition for review shall be filed within 60 days after the Board issues notice of the final order or decision of the Board.” In the decision below, the Federal Circuit relied on settled circuit precedent holding this filing deadline to be jurisdictional, despite recent opinions from other Circuits and this Court holding analogous filing deadlines to be nonjurisdictional.

“The question presented is whether the 60-day deadline in Section 7703(b)(1)(A) is jurisdictional.”