Harrow v. Department of Defense

P R E L I M I N A R Y P R I N T
Volume 601 U. S. Part 2
Pages 480–490
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
May 16, 2024
REBECCA A. WOMELDORF
reporter of decisions
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480 OCTOBER
TERM, 2023
Syllabus
HARROW v. DEPARTMENT OF DEFENSE
certiorari
to the united states court of appeals for
the federal circuit
No. 23–21. Argued March 25, 2024—Decided May 16, 2024
When the Department of Defense furloughed petitioner Stuart Harrow for
six days, he challenged that decision before the Merit Systems Protec-
tion Board. After a fve-year delay, the Board ruled against him. Har-
row had the right to appeal that decision to the Court of Appeals for
the Federal Circuit, provided he did so “within 60 days” of the Board's
fnal order. 5 U. S. C. § 7703(b)(1). But Harrow did not learn about the
Board's decision until the 60-day period to appeal had run, and fled his
appeal late. Given the circumstances, Harrow asked the Federal Cir-
cuit to overlook his untimeliness and equitably toll the fling deadline.
But the Circuit, believing that the deadline was an unalterable “jurisdic-
tional requirement,” denied his request.
Held: Section 7703(b)(1)'s 60-day fling deadline is not jurisdictional. Al-
though the procedural rules that govern the litigation process are often
phrased in mandatory terms, they are generally subject to exceptions
like waiver, forfeiture, and equitable tolling. But when Congress
enacts a “jurisdictional” requirement, it “mark[s] 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. Boechler v. Com-
missioner, 596 U. S. 199, 203; United States v. Kwai Fun Wong, 575
U. S. 402, 409. Mindful of those repercussions, the Court will “treat a
procedural requirement as jurisdictional only if Congress `clearly states'
that it is.” Boechler, 596 U. S., at 203. Under that approach, “most
time bars are nonjurisdictional,” even when “framed in mandatory” and
“emphatic” terms. Kwai Fun Wong, 575 U. S., at 410–411.
No language in the provision Harrow violated suggests a different
result. Section 7703(b)(1) states that an appeal “shall be fled within
60 days after the Board issues notice of the fnal order.” Although the
deadline is stated in mandatory terms, this fact is “of no consequence”
to the jurisdictional issue. Id., at 411. “What matters instead” is
whether the time bar speaks to the court's jurisdiction. Ibid. And
§ 7703(b)(1) does not.
The Government rests its case on a different statute spelling out the
Federal Circuit's subject-matter jurisdiction, but that law provides it no
better support. In 28 U. S. C. § 1295(a)(9), Congress granted the Circuit
jurisdiction “of an appeal from a fnal order or fnal decision of the Merit

Cite
as: 601 U. S. 480 (2024)
481
Syllabus
Systems Protection Board, pursuant to section[ ] 7703(b)(1).” The Gov-
er
nment argues that an appeal is “pursuant to” § 7703(b)(1)—and so
within the Federal Circuit's jurisdiction—only if it fully complies with
§ 7703(b)(1)'s requirements, including the time bar. But that interpre-
tation is more strained than clear. When a legal drafter writes that a
fling has been made “pursuant to” a statutory provision, the phrase
often functions as a synonym for “under,” identifying the provision that
served as the basis for the fling but without addressing whether the
latter conformed to the former's every requirement. The Court has
recently used the phrase this way, as has Congress. See BP p.l.c. v.
Mayor and City Council of Baltimore, 593 U. S. 230, 238. So to fle an
appeal “pursuant to” § 7703(b)(1) likely just means to invoke that section
as the basis for the appeal. At the very least, there is no clarity the
other way. And the rest of § 1295 confrms that conclusion. The law
uses the phrase “pursuant to” to reference several other statutes, which
in turn contain a bevy of procedural rules. The Government's interpre-
tation would suggest that all those rules are jurisdictional too. But
the Court has almost never treated rules like these as absolute bars to
judicial action.
The Government cites one kind of time limit that counts as jurisdic-
tional even without a clear statement—deadlines to appeal a district
court decision in a civil case. Bowles v. Russell, 551 U. S. 205. But
this Bowles exception is for appeals from one Article III court to an-
other. As to all other time bars, like the agency appeal here, the clear-
statement rule applies. And for the reasons stated, the 60-day deadline
to appeal Board decisions does not satisfy it. Pp. 483–490.
Vacated and remanded.
Kagan, J., delivered the opinion for a unanimous Court.
Joshua P. Davis argued the cause for petitioner. With
him on the briefs were Scott Dodson, Mark D. Harris, and
John E. Roberts.
Aimee W. Brown argued the cause for respondent. On
the brief were Solicitor General Prelogar, Principal Deputy
Assistant Attorney General Boynton, Deputy Solicitor Gen-
eral Fletcher, Frederick Liu, and Galina I. Fomenkova.*
*Briefs of amici curiae urging reversal were fled for the American
Federation of Government Employees by Andres M. Grajales and David
A. Borer; for the Federal Circuit Bar Association by John C. O'Quinn and
William H. Burgess; for Law Professors by Stanley C. Blackmon; for the
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482 HARROW
v. DEPARTMENT OF DEFENSE
Opinion of the Court
Justice Kagan delivered the opinion of the Court.
A
federal employee subjected to an adverse personnel ac-
tion may complain to the Merit Systems Protection Board.
If the Board rules against him, he may appeal to the Court of
Appeals for the Federal Circuit “within 60 days.” 5 U. S. C.
§ 7703(b)(1). The question presented is whether that 60-day
limit is “jurisdictional,” and therefore precludes equitable
exceptions. We hold that the limit, like most fling dead-
lines, is not jurisdictional.
I
This case began in 2013, when Stuart Harrow, a longtime
employee of the Department of Defense, fled a claim with
the Merit Systems Protection Board objecting to a six-day
furlough. The Board is an independent agency established
to adjudicate federal employment disputes. It referred the
case, as is usual, to an administrative judge for an initial
decision. In 2016, the judge upheld the furlough, fnding it
“regrettable” but not “improper.” No. 22–2254 (CA Fed.),
ECF Doc. 6, p. 19. Harrow sought review of that conclusion
before the full Board, as the law allows. But in early 2017—
with Harrow's action still pending—the Board lost its quo-
rum, and so its ability to resolve cases. That state of affairs
lasted for over fve years. It was not until May 2022 that
the Board, with a quorum fnally restored, affrmed the ad-
ministrative judge's decision.
That long delay led Harrow to miss his next deadline.
Under 5 U. S. C. § 7703(b)(1), Harrow was supposed to peti-
tion for review in the Federal Circuit “within 60 days” of the
Board's fnal order. See ibid. (stating that the petition
“shall be fled” within that time). But Harrow did not sub-
mit his petition until September 2022—more than 120 days
after the Board's order issued. In an associated fling, Har-
National Treasury Employees Union by Julie M. Wilson, Paras N. Shah,
and Allison C. Giles; and for the National Veterans Legal Services Pro-
gram by Benjamin C. Block.
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Cite
as: 601 U. S. 480 (2024)
483
Opinion of the Court
row offered an excuse for his lateness. During his years-
long
wait for the Board's decision, Harrow explained, his
work email address had changed—and the old address at
some point stopped forwarding to the new one. See ECF
Doc. 8, at 7–8. So when the Board sent notice of its order
to the email address it had on fle, Harrow never got the
message. He learned of the decision only from a search he
did of the Board's website, after the 60-day period had run.
Given the “extenuating circumstances,” Harrow urged, the
Federal Circuit should overlook his petition's untimeliness.
Id., at 7.
The Court of Appeals declined Harrow's request for equi-
table consideration, believing it had an absolute obligation
to dismiss his appeal. The court reasoned that the 60-day
statutory deadline is a “jurisdictional requirement,” and
therefore “not subject to equitable tolling.” App. to Pet. for
Cert. 2a. “Harrow's situation” might be “sympathetic,” the
court stated, but it was also irrelevant. Ibid. Given the
deadline's jurisdictional nature, the court lacked the capacity
to “excuse a failure to timely fle based on individual circum-
stances.” Ibid.
We granted certiorari to decide whether, as the Federal
Circuit held, the 60-day deadline to appeal a Board decision
is jurisdictional. 601 U. S. ––– (2023). We hold it is not.
II
The procedural requirements that Congress enacts to gov-
ern the litigation process are only occasionally as strict as
they seem. Most of those rules read as categorical com-
mands (e. g., a person “shall fle in this court,” “shall fle by
that time,” “shall include the following documents”). But
Congress legislates against the backdrop of judicial doctrines
creating exceptions, and typically expects those doctrines to
apply. See Minerva Surgical, Inc. v. Hologic, Inc., 594 U. S.
559, 571–572 (2021). So a court will not enforce a procedural
rule against a non-complying party if his opponent has for-

484 HARROW
v. DEPARTMENT OF DEFENSE
Opinion of the Court
feited or waived an objection. And more relevant here,
a
court may be able to excuse the party's non-compliance
for equitable reasons. See infra, at 489. Except—and this
“except” is important—in a small set of cases, where the
procedural rule counts as “jurisdictional.” When Congress
enacts a jurisdictional requirement, it “mark[s] the bounds”
of a court's power: A litigant's failure to follow the rule “de-
prives a court of all authority to hear a case.” Boechler v.
Commissioner, 596 U. S. 199, 203 (2022); United States v.
Kwai Fun Wong, 575 U. S. 402, 409 (2015). So a court must
enforce the rule even if no party has raised it. And a court
must adhere to the rule “even if equitable considerations
would support” excusing its violation. Id., at 409.
Mindful of those repercussions, this Court will “treat a
procedural requirement as jurisdictional only if Congress
`clearly states' that it is.” Boechler, 596 U. S., at 203 (quot-
ing Arbaugh v. Y & H Corp., 546 U. S. 500, 515 (2006)). Con-
gress of course need not use “magic words” to convey that
such a requirement confnes a court's authority. 596 U. S.,
at 203. But our demand for a clear statement erects a “high
bar.” Kwai Fun Wong, 575 U. S., at 409. For a procedural
rule to surmount it, “traditional tools of statutory construc-
tion must plainly show that Congress imbued [the rule] with
jurisdictional consequences.” Id., at 410.
And under that approach, “most time bars are nonjurisdic-
tional.” Ibid.; see Sebelius v. Auburn Regional Medical
Center, 568 U. S. 145, 154–155 (2013) (citing cases). That is
true whether or not the bar is “framed in mandatory terms.”
Kwai Fun Wong, 575 U. S., at 410. Consider a provision
closely resembling the one here: A veteran denied benefts
by an agency “shall fle a notice of appeal with the Court [of
Appeals for Veterans Claims] within 120 days.” 38 U. S. C.
§ 7266(a). We viewed the provision as a run-of-the-mill “fl-
ing deadline,” seeking “to promote the orderly progress of
litigation” rather than to demarcate a court's power. Hen-
derson v. Shinseki, 562 U. S. 428, 435 (2011). The time bar,
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485
Opinion of the Court
we explained, “does not speak in jurisdictional terms or refer
i
n any way to the jurisdiction of the Veterans Court.” Id.,
at 438 (alterations omitted). And we made the same point
when discussing a statute of limitations whose phrasing was
even more “emphatic.” Kwai Fun Wong, 575 U. S., at 411.
A “tort claim against the United States shall be forever
barred,” that provision pronounced, unless presented “within
two years.” 28 U. S. C. § 2401(b). Once again, we saw no
sign that Congress meant to give the time bar jurisdictional
consequence. The provision, we reasoned, “does not defne
a federal court's jurisdiction over tort claims generally, ad-
dress its authority to hear untimely suits, or in any way
cabin its usual equitable powers.” Kwai Fun Wong, 575
U. S., at 411. The time limit was “just [a] time limit[ ], noth-
ing more.” Id., at 412.
No language in the time-bar provision Harrow violated
suggests a different result. Section 7703(b)(1) states, as rel-
evant here:
“[A] petition to review a fnal order or fnal decision of
the Board shall be fled in the United States Court of
Appeals for the Federal Circuit. Notwithstanding any
other provision of law, any petition for review shall be
fled within 60 days after the Board issues notice of the
fnal order or decision of the Board.”
The provision thus describes how a litigant can obtain judi-
cial review of the Board's fnal orders. It directs those
appeals—including Harrow's—to the Federal Circuit. And
it sets a deadline: 60 days from when the Board's order is-
sues. That deadline is stated in mandatory terms—“shall
be fled.” But as we have repeatedly held, that fact is “of
no consequence” to the jurisdictional issue. Kwai Fun
Wong, 575 U. S., at 411; see Henderson, 562 U. S., at 439.
“What matters instead” is whether a time bar speaks to a
court's authority to hear a case. Kwai Fun Wong, 575 U. S.,
at 411. And nothing in § 7703(b)(1) does: There is no men-
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486 HARROW
v. DEPARTMENT OF DEFENSE
Opinion of the Court
tion of the Federal Circuit's jurisdiction, whether generally
or
over untimely claims. So § 7703(b)(1), on its own, does
not deprive the Federal Circuit of power to hear Harrow's
appeal. Not even the Government, which defends the view
that the 60-day limit is jurisdictional, argues otherwise.
The Government instead rests its case on part of a differ-
ent statute—28 U. S. C. § 1295, which spells out the Federal
Circuit's subject-matter jurisdiction. That law lists 14 cate-
gories of cases the court has power to decide. The one rele-
vant here is the ninth. Section 1295(a)(9) grants the Federal
Circuit jurisdiction “of an appeal from a fnal order or fnal
decision of the Merit Systems Protection Board, pursuant to
section[ ] 7703(b)(1).” In the Government's view, the term
“pursuant to” means—indeed, can only mean—in “conform-
ance to” or “compliance with.” Brief for United States 11;
see id., at 38. So (the Government argues) only appeals
fully complying with § 7703(b)(1)—including its 60-day dead-
line—fall within the Federal Circuit's jurisdiction. In that
way, the time limit becomes a “jurisdictional prerequisite.”
Id., at 11.
But the Government's reading of § 1295(a)(9) is more
strained than clear. “Pursuant to” is one of those little
phrases that can mean a raft of things. See B. Garner, Dic-
tionary of Legal Usage 737 (3d ed. 2011) (“Because the
phrase means so many things, it is rarely—if ever—useful”).
Maybe sometimes, as the Government urges, it conveys that
one thing is in strict compliance with another. But that is
not the only—or even the most common—meaning when a
legal drafter writes that some fling has been made “pursu-
ant to” a statutory provision. Then the phrase often func-
tions as a legalese synonym for “under.” See ibid. It iden-
tifes the provision that served as the basis for the fling,
but without addressing whether the latter conformed to the
former's every requirement. Consider two of our own opin-
ions. In one, we stated that a law gave whistleblower pro-
tection to employees of companies that “fle [certain state-
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as: 601 U. S. 480 (2024)
487
Opinion of the Court
ments] pursuant to § 15(d),” even as we observed that the
employees
might be “reporting violations” of that section's
commands. Lawson v. FMR LLC, 571 U. S. 429, 446 (2014).
And similarly in another, we noted that a person had “fled
a petition for a writ of habeas corpus in [district court] pursu-
ant to” 28 U. S. C. § 2254, only to hold three paragraphs later
that he actually “could not satisfy” one of § 2254's require-
ments. Alaska v. Wright, 593 U. S. 152, 153–154 (2021)
(per curiam). In like manner, we today could say that Har-
row fled his appeal “pursuant to” § 7703(b)(1) even though
he failed to satisfy that section's time bar.
And more to the point, we think Congress would agree
with that usage. Consider a different law it drafted about
appellate review, which this Court recently examined. See
BP p.l.c. v. Mayor and City Council of Baltimore, 593 U. S.
230, 237–239 (2021). The provision is part of the statutory
scheme for removing cases from state to federal court.
Under that scheme, a defendant may remove a case by invok-
ing any of several statutory grounds; but the federal court
must remand the case to state court if it fnds that the
ground does not apply. See 28 U. S. C. §§ 1441–1444, 1446(a),
1447(c). For the most part, a remand order is not appeal-
able. But that rule has an exception: An appeal is allowed
when the federal court remands a case that was previously
“removed pursuant to section 1442 or 1443” (which state two
specifc grounds for removal). § 1447(d). What does that
“pursuant to” mean? It cannot mean that a party may ap-
peal only when his removal actually conformed to § 1442 or
§ 1443 (as the Government's argument here would imply).
Whether the removal did so is the very question the appeal
will decide. Instead, as we explained in BP p.l.c., to remove
a case “pursuant to” § 1442 or § 1443 “just means” that the
defendant must have “assert[ed] the case is removable”
under one of those provisions. 593 U. S., at 238. In similar
vein, to fle an appeal from a Board's order “pursuant to”
§ 7703(b)(1) likely just means to invoke that section as the

488 HARROW
v. DEPARTMENT OF DEFENSE
Opinion of the Court
basis for the appeal, rather than to comply with its associated
ti
me limit. At the least, there is no clarity the other way.
Section 1295(a)(9)'s use of the words “pursuant to” does not
“plainly show” that § 7703(b)(1)'s deadline has “jurisdictional
consequences.” Kwai Fun Wong, 575 U. S., at 410.
The rest of § 1295 confrms that conclusion. In listing the
cases over which the Federal Circuit has jurisdiction, that
provision uses the term “pursuant to” several more times.
In particular, the Circuit can hear appeals from an agency
decision “pursuant to” a statute about public contracts, and
from a district court decision made “pursuant to” certain pat-
ent statutes. § 1295(a)(4)(C), (10). The referenced laws in
turn contain a bevy of procedural rules—not only setting
deadlines (as in § 7703(b)(1)), but also requiring service and
other forms of notifcation, mandating prior government au-
thorization of certain matters, and even compelling the pay-
ment of expenses. See 35 U. S. C. §§ 145, 146; 41 U. S. C.
§ 7107(a)(1)(B). Assuming the phrase “pursuant to” has the
same meaning throughout § 1295—and why should it not?—
all those requirements, too, would become jurisdictional.
That result is untenable. We have almost never treated the
sort of routine rules swept up in the Government's “pursuant
to” reading as absolute bars to judicial action, neither subject
to forfeiture nor excusable for equitable reasons. See
supra, at 483–484. So the wider implications of the Govern-
ment's argument serve to defeat it (were any doubt left).
The jumble of procedural rules to which § 1295 points cannot
turn on and off the Federal Circuit's power.
The Government identifes one kind of time limit that
counts as jurisdictional, but we have already made plain its
exceptional nature. As the Government notes, the Court
held in Bowles v. Russell, 551 U. S. 205 (2007), that the dead-
line for fling an appeal from a district court's decision in a
civil case is jurisdictional, even though the statute setting
that limit does not say as much. See Brief for United States
24. In that decision, we reaffrmed a line of precedents pre-
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as: 601 U. S. 480 (2024)
489
Opinion of the Court
dating our current approach to such matters. See 551 U. S.,
at
209–210, and n. 2. But we have since taken care to
delineate both where Bowles applies and where it does not.
Bowles governs statutory deadlines to appeal “from one Ar-
ticle III court to another.” Hamer v. Neighborhood Hous-
ing Servs. of Chicago, 583 U. S. 17, 25 (2017). As to all other
time bars, we now demand a “clear statement.” Id., at 25,
n. 9. This case falls outside the Bowles exception because
Harrow appealed to the Federal Circuit not from another
court but from an agency. And as we have shown, the time
limit Harrow missed when he fled that appeal does not sat-
isfy our clear-statement test. See supra, at 485–488.*
Hav i ng thus held that § 7703( b)(1)'s deadl i ne is non-
jurisdictional, we encounter a newly raised back-up argu-
ment. Even if non-jurisdictional, the Government urges,
the 60-day limit “would still not be subject to equitable toll-
ing.” Brief for United States 42. In making that claim, the
Government must contend with another high bar. “Because
we do not understand Congress to alter” age-old procedural
doctrines lightly, “nonjurisdictional [timing rules] are pre-
sumptively subject to equitable tolling.” Boechler, 596
U. S., at 209; see supra, at 483–484. The Government says it
can rebut that presumption, but we are not the right court to
*The Government also invokes Lindahl v. Offce of Personnel Manage-
ment, 470 U. S. 768 (1985), in support of its position, but that decision helps
it no more than Bowles. In Lindahl, the Court held that the Federal
Circuit has jurisdiction over Board decisions denying disability retirement
claims. See 470 U. S., at 799. In doing so, we referred to not only § 1295
but also § 7703(b)(1) as “jurisdictional.” Id., at 792–793. But that is just
one more example (our recent decisions have offered many) of how this
Court used to apply the term “jurisdiction” in a “profigate” manner, fail-
ing to distinguish between statutes spelling out a court's power and those
specifying what steps litigants should take. Arbaugh v. Y & H Corp., 546
U. S. 500, 510 (2006); see Kontrick v. Ryan, 540 U. S. 443, 454–455 (2004).
And in any event, Lindahl concerned only the scope of claims that may be
brought to the Federal Circuit; it had nothing to do with time limits—
which, we repeat, are generally non-jurisdictional. See United States v.
Kwai Fun Wong, 575 U. S. 402, 410 (2015); supra, at 484–485.
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490 HARROW
v. DEPARTMENT OF DEFENSE
Opinion of the Court
now determine whether that is so. The Government did not
broach
the issue below; the Federal Circuit did not address
it; and it is not included in the question presented. We
therefore leave the matter (including any waiver issues in-
volved) to the Federal Circuit on remand. And if that court
fnds equitable tolling available, it should decide whether, on
the facts here, Harrow is entitled to that relief.
For the reasons stated, we vacate the judgment of the
Court of Appeals and remand the case for further proceed-
ings consistent with this opinion.
It is so ordered.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 480, line 19: “; United States v. Kwai Fun Wong, 575 U. S. 402, 409.” is
inserted after “203”
p. 480, line 21: “Ibid.” is replaced with “Boechler, 596 U. S., at 203.”