Supreme Court rules in favor of federal age discrimination plaintiff

The Supreme Court in this case unanimously holds that an age discrimination plaintiff who is suing the federal government may challenge an adverse administrative determination even after missing the 60-day deadline to file a notice of appeal for review by the Court of Appeals for the Federal Circuit. Plaintiff wins in the Supreme Court because the deadline is not jurisdictional.

The case is Harrow v. Department of Defense, issued on May 16. This is one of those procedural disputes that the Supreme Court will not get tied up in knots about. For that, you'll have to wait until late June, when the Court issues its more controversial rulings. Still, this is an important case for lawyers who represent federal employees in discrimination cases.

After the Merit Systems Protection Board ruled against plaintiff's case (following a five-year wait), he was able to appeal to the U.S. Court of Appeals. But you only have 60 days from the MSPB's final order to do so. But plaintiff did not learn about the Board's final order until after the 60 days had expired. His appeal was therefore filed late. The Court of Appeals said the appeal was untimely because the notice of appeal deadline was jurisdictional, which means the deadline cannot be extended. Jurisdictional deadlines are the kiss of death in the federal system.

The Supreme Court reverses and holds the notice of appeal deadline is not jurisdictional. First, why the delay? The Supreme Court says the delay happened because during the five year wait for a ruling from the MSPB, plaintiff's email address had changed, which mean the MSPB ruling was sent to the wrong email address. Plaintiff found out about the adverse ruling by running a search on the MSPB's website. In other words, he learned about the ruling by accident.

While the deadline rule is strict and uses mandatory language, that does not mean it is jurisdictional. It is only jurisdictional if Congress says that it is. For this reason, most time-bars are not jurisdictional, including the ones with mandatory language. Nothing in the statute suggests Congress wanted a drop-dead rule on this particular deadline. Plaintiff thus wins his appeal in the Supreme Court and the case returns to the Court of Appeals for the Federal Circuit.