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Supreme Court Hears Harrow Challenge to MSPB Appeal Deadline, Debates Jurisdictional Reading and Rule 26 Tolling
Summary
At oral argument in Harrow v. Department of Defense, counsel disputed whether the MSPB appeal deadline in 5 U.S.C. §7703(b)(1)(A) is jurisdictional or a claims‑processing rule and whether Federal Rule of Appellate Procedure 26(b) bars equitable tolling for agency appeals.
Petitioner’s counsel, Mister Davis, told the Supreme Court the filing deadline in 5 U.S.C. §7703(b)(1)(A) is a claims‑processing rule, not a jurisdictional bar, arguing that "b(1)(A)'s filing deadline is a mere claims processing rule." He urged the Court to apply its clear‑statement framework and treat the phrase "pursuant to" as invoking the statute rather than imposing a jurisdictional requirement.
The government’s counsel, Miss Brown, responded that Congress tied the Federal Circuit’s jurisdiction to §7703(b)(1) through 28 U.S.C. §1295(a)(9) and that the statutory text and history support a jurisdictional reading. "By conditioning the court's jurisdiction on compliance with §7703(b)(1), the statutory text provides the clear tie between the appeal deadline and the…
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