Supreme Court Hears Harrow Challenge to MSPB Appeal Deadline, Debates Jurisdictional Reading and Rule 26 Tolling

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 jurisdictional grant," she said, adding that longstanding Federal Circuit precedent has treated the deadline as jurisdictional.

Why it matters: If the Court treats the deadline as jurisdictional, courts must dismiss untimely appeals regardless of equitable‑tolling arguments; if it treats the deadline as nonjurisdictional, Rule 26(b) and equitable‑tolling principles will determine whether late filings may be excused. Miss Brown told justices that even if the provision were nonjurisdictional, Rule 26(b) likely precludes equitable tolling for appeals from agency decisions, meaning "petitioner's untimely appeal cannot go forward."

Important facts and context: The dispute centers on how to read two cross‑referenced provisions — the Federal Circuit’s jurisdictional grant in 28 U.S.C. §1295(a)(9) and the appeal‑deadline provision in 5 U.S.C. §7703(b)(1). Counsel debated how this Court’s precedents (including BP PLC, Lindahl, Kloeckner, and Beckler) and Rule 26 should inform the result. Petitioner noted the Federal Circuit raised the deadline issue sua sponte and that the government did not press it below; the case has an unusual procedural history: the record shows roughly 11 years of litigation and a pro se petitioner seeking about $3,000 in compensation.

Exchanges at argument highlighted two practical questions: (1) whether the Court’s clear‑statement approach requires a single plausible nonjurisdictional reading to defeat a jurisdictional construction, and (2) whether Rule 26(b) should operate as a background rule displacing equitable tolling for agency appeal deadlines. Justices pressed both counsel on consequences for mixed cases, cross‑referenced subsections (e.g., §7703(d)), and the Federal Circuit’s ability to raise mandatory claims‑processing defenses sua sponte.

What happened next: In rebuttal, Mister Davis reiterated that a jurisdictional label is unnecessary and inconsistent with Supreme Court precedent and asked the Court either to adopt his reading or to remand limited procedural questions. The Court submitted the case for decision.

Outlook: The Court’s ruling will clarify whether deadlines for appeals from the Merit Systems Protection Board to the Federal Circuit are treated as jurisdictional limits or as waivable/subject to tolling and will also address the interplay of Rule 26 in agency‑appeal contexts.