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Harrow v. Department of Defense

Oral argument transcript · No. 23-21 · October Term 2023 · argued March 25, 2024 · the petitioner won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

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From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument next in Case 23-21, Harrow versus the Department of Defense. Mr. Davis. ORAL ARGUMENT OF JOSHUA P. DAVIS ON BEHALF OF THE PETITIONER

Joshua P. Davis: Mr. Chief Justice, and may it please the Court: Over the past 20 years or so, this Court has clarified the law to prevent ordinary procedural rules like filing deadlines from being misinterpreted as jurisdictional, contrary to congressional intent. The clear statement rule governs that analysis. That rule demands a clear statement from Congress on par with explicit language to establish a jurisdictional requirement. At issue here is whether 5 U.S.C. Section 7703(b)(1)(A)'s filing deadline is jurisdictional. Nothing in the text of (b)(1)(A) suggests that it is. That can end the inquiry. That conclusion is confirmed by the text of the relevant jurisdictional statute, 28 Official 1 U.S.C. Section 1295(a). As relevant here, Section 1295(a)(9) creates jurisdiction in the Federal Circuit over appeals "pursuant to" Section 7703(b)(1). "Pursuant to" is a notoriously ambiguous phrase. Nevertheless, the government claims that the only plausible interpretation of "pursuant to" is as necessitating that all the requirements of (b)(1)(A) are satisfied. But "pursuant to" can mean invoking (b)(1), not satisfying its filing deadline. That is how this Court interpreted interlocutory appellate jurisdiction in -- in removal cases in BP P.L.C. in 2021. It held that "pursuant to" means invoking a particular statutory provision, not satisfying its requirements. Using this compelling interpretation or a similar one, (b)(1)(A)'s filing deadline is not jurisdictional. That interpretation is at least plausible. So, under the clear statement rule, (b)(1)(A)'s filing deadline is a mere claims processing rule. I would welcome any questions from the Court.

Justice Thomas: Going back to that Official 1 provision, why isn't it -- 7703, why isn't this controlled by Lindahl?

Joshua P. Davis: It's not controlled by Lindahl for a few reasons. One, Lindahl did not specifically address at all the filing deadline provision. It spoke only in loose jurisdictional terms. And so -- and this Court, in Wilkins and Santos-Zacaria, has asked for a much more specific ruling in order for the -- an inference that the clear statement rule is -- is satisfied. In addition, Lindahl didn't impose a jurisdictional requirement at all. It actually read the jurisdiction of the Federal Circuit broadly. It interpreted the relevant statute to say that not only the employees and applicants for employment are able to bring claims under 7703(b)(1)(A), but so are retirees, even though they're not mentioned explicitly. So, 1985, Lindahl is not -- it doesn't specifically address this provision or a filing deadline whatsoever. And, in -- in addition, it is the sort of loose jurisdictional language that the clear statement rule is designed to clean up. Official

Chief Justice Roberts: Well, we know that one area where jurisdiction is enforced rigorously is from one level of a court to another, right, from the district court to a court of appeals. Why does it -- it make sense to have a totally different rule when it's from an agency to the court of appeals?

Joshua P. Davis: A couple -- a couple of reasons. First of all, in Bowles, the reason that the Court adopted this approach was a long history of this type of notice of appeal from an Article III court to an Article III court. Now this Court has repeatedly said that Bowles and that general rule should not be read beyond the Article III to Article III context, including in Hamer and in Fort Bend -- Fort Bend County. And then, more generally, it's -- there's not only a different statute at play here, one of much more recent vintage, but also there's a very different jurisdictional posture. One of the things this Court has said repeatedly in interpreting filing deadlines and other potentially jurisdictional provisions is to look at the nature of the litigation process that it's coming from. Official 1 And the MSPB process, much like this Court -- like the veterans approach in Henderson or like the adversarial approach in -- for the IRS in Boechler, is a much more lenient approach. It is adversarial, but it is not in the same way that an Article III litigation is. And so context is important here. And given that context and also the precedential reading of the clear statement rule, I would submit that the clear statement rule should apply kind of ab initio here, and then the burden is on the government to show that the only plausible reading --

Justice Sotomayor: There's no history that you can point to where Congress has always spoken in jurisdictional terms of an agency appealing to an Article III court, correct?

Joshua P. Davis: That's -- that's -- that's precisely right.

Justice Sotomayor: And, in fact, there are some statutes that clearly on their face provide for equitable tolling in that situation?

Joshua P. Davis: That's right, and --

Justice Sotomayor: So that defeats Official 1 any history?

Joshua P. Davis: I think that's right.

Justice Sotomayor: All right. Could -- one other argument the government raised was that courts of appeals are ill suited to handle the factual basis of this kind of finding. Do you agree with that argument and, if you don't, why not?

Joshua P. Davis: I -- I don't agree with that argument. And if I may say first of -- first, before that, that argument conflates two separate issues. One is whether this requirement is jurisdictional, and the other is whether it's mandatory. And so it is at least possible -- the only issue before this Court today is, is the filing deadline jurisdictional. But this Court could or the lower court would be in the first instance the right place to -- to address it, is if the lower court feels that it -- the -- that having a filing deadline subject to equitable tolling is not appropriate, it could say that the -- that the filing deadline is not jurisdictional but also is mandatory and not subject to -- equitable tolling. Official 1 Having said that, to answer Your Honor's question more directly, we don't agree for a series of reasons. I mean, one of them is that appellate courts often engage in similar kinds of limited factual inquiries. Standing is an example. So is Federal Rule of Civil Procedure 23, where an appellate court is asked whether class certification would ring the death knell for litigation. These are kinds of narrowly constrained procedural questions that a court is fully able to handle and an appellate court is fully able to handle. And so it would be the same thing here. The facts are not actually all that disputed. They're relatively narrow. Here, the real question is a legal judgment, and that is the kind of legal judgment a -- a court of appeals is -- is fully capable of making.

Justice Sotomayor: We look at facts in mootness, in standing, the statutes that give us directly equitable tolling permission. The one thing about a mandatory claim processing is that it can't be sua sponte decided by a court below. It has to be raised by the opposing Official 1 party, correct?

Joshua P. Davis: I believe that's generally correct. That's right, that --

Justice Sotomayor: And was that the case here?

Joshua P. Davis: It was the case here. Here, in fact, the government below never raised the deadline issue at all. The Federal Circuit raised it sua sponte. And then, when the Federal Circuit -- it issued an order to show cause asking for briefing, my client, Mr. Harrow, addressed the issue in briefing and the government did not file a brief addressing that issue. So it was entirely from the government -- from -- from that perspective sua sponte that the Federal Circuit raised it on its own.

Justice Jackson: Well, isn't -- is --

Justice Alito: What's the -- what is the authority for the proposition that a mandatory claims processing rule cannot be raised sua sponte by a court?

Joshua P. Davis: I -- I would say that -- a couple of issues. I would say, one, it is -- generally speaking, that has been the approach, Official 1 but it is -- that's not an issue here today. And it is also possible, there's at least one case, Day versus McDonough, which indicates that that kind of mandatory claims processing rule could at least potentially. That is not -- so I -- I wouldn't -- we are not resting our case on the proposition that if the -- that if this filing deadline is not jurisdictional, then the Court is necessarily unable to raise it sua sponte. The indication here, though, is what we would ask is at least that the Federal Circuit be given the opportunity on remand to decide whether it would raise it sua sponte. What was clear in the reasoning below is the court felt that it had to because the issue was jurisdictional. And so we would like to brief the issue at the least on remand, that -- that in this circumstance either the Court can't or it just might not.

Justice Alito: Why would the government be precluded from raising the question if we were to send the case back? They -- before they even had a -- my understanding is that before they even had an Official 1 opportunity to respond, the court sua sponte issued an order to show cause, right?

Joshua P. Davis: That is correct, yes. So I -- I would say two things. One, we would request that that issue be reserved for remand as well. For all we know, the government may or may not raise this issue at all. It may, 11 years into this pro -- mostly pro se litigation, the government just allow -- might allow Mr. Harrow to proceed on the merits with his appeal. But the -- the basis for forfeiture would be not so much the issuance -- issuance of the order to show cause but the fact that after the Federal Circuit issued its order to show cause, the government chose not to submit a brief. And that has not been an issue that's been briefed, the forfeiture issue, but we would suggest that in the first instance the Federal Circuit should address that.

Justice Jackson: Am I wrong that the Federal Circuit has precedent that looks at this very deadline and holds that it's not subject to equitable forfeiture?

Joshua P. Davis: Yes, you're right. I Official 1 apologize. You're right.

Justice Jackson: I'm right.

Joshua P. Davis: Yeah. You -- you're right.

Justice Jackson: I'm sorry, I asked the -- the question in a weird way.

Joshua P. Davis: No, no, no, entire -- entirely my fault. But -- so, yes, so -- so there's precedent that goes back almost exactly, I believe, 40 years in the Federal Circuit that treats this filing deadline as jurisdictional and, therefore, not subject to forfeiture and not subject to equitable tolling. Having said that, this Court has repeatedly held, as early as 2006 in Arbaugh and as recently -- excuse me, as 2023, I believe, in Santos-Zacaria, that lower court precedent are not enough by themselves to establish -- to satisfy the clear statement rule.

Justice Jackson: Yes. I'm just -- I guess I'm just wondering whether the equitable tolling finding is bound up with their jurisdictional finding such that if we said you're right, it's not jurisdictional and sent it back, would the Federal Circuit be bound to Official 1 say: Well, it's mandatory anyway, and your client doesn't get any relief?

Joshua P. Davis: Oh, thank you, Your Honor. So two -- two -- two -- so three -- three pieces, I would say. One, I -- I believe it is -- those two are bound up. I don't think the Federal Circuit had occasion to decide what would happen with equitable tolling if the -- if the filing deadline were non-jurisdictional because the --

Justice Jackson: I see.

Joshua P. Davis: -- equitable tolling issue is subsumed within the determination that the filing deadline is jurisdictional.

Justice Jackson: I see.

Joshua P. Davis: Having said that, there is the issue of forfeiture, so our client still might get relief. And then there's also the issue of whether the government on remand might or might not choose to pursue this issue and might allow Mr. Harrow, who has proceeded for 11 years seeking $3,000 of compensation and interest, to just get his day in court in the Federal Circuit on the merits.

Justice Gorsuch: It -- it is Official 1 extraordinary, the lengths to which this case has gone, seven years waiting and then the email and all that, but I -- I just have a question on background. Both sides agree that we have a clear statement rule with respect to whether a statute's jurisdictional or a mandatory claims processing rule. I'm just curious what -- what you think the justification for that clear statement rule is, what you're understanding of its background?

Joshua P. Davis: Sure. I think there's a -- a couple of justifications as I understand it. One is that in the first instance, courts have at times used the word "jurisdiction" loosely when -- with implications that Congress probably never intended, and so it's a -- it's a rule of fidelity to congressional intent in that sense. I think there is a second justification that has now arisen which explains in part why lower court decisions are not enough, which is having this Court at least since 2006 having articulated the clear Official 1 statement rule, Congress should be presumed to -- to legislate with that background in mind. And so it's sort of double fidelity to congressional intent.

Justice Gorsuch: Yeah, it's a little awkward, though, isn't it, because, I mean, you could say: Well, they -- there have been a lot of drive-by jurisdictional rulings, don't -- don't do that anymore, stop and -- and just faithfully interpret statutes. But this Court's gone further and -- and said clear statement rule.

Joshua P. Davis: Yes, Your Honor. I -- I actually -- I think either suffices in this instance because I do think the "pursuant to" language isn't strong enough, the explicit language of 7703(b)(1)(A) isn't -- isn't strong enough to infer congressional intent and the like. And -- and -- and so -- and Lindahl really is -- was a drive-by jurisdictional statement. I do agree that the articulation has been stronger than that or the rule has been stronger than that. And I think I would hope that that makes this a relatively easy case, but Official 1 -- so there is a fork in the road, but I would say either path leads --

Justice Gorsuch: Well, what is your understanding as to why the government has resisted your client's case so -- so strongly? I mean, it -- it is -- he -- he spent seven years waiting, five of which were because the government couldn't manage to get a quorum together to resolve it, sent him an email to an old email address, and -- and he acted as quickly as he -- as he could and when he got it, and yet here we are in the Supreme Court of the United States over a $3,000 claim.

Joshua P. Davis: Yes. Yes.

Justice Gorsuch: We're hearing it. You know, we've -- we've -- we've done every other claims processing rule statute on the books. I'm just kind of surprised we're having to do -- the government's making us do this one.

Joshua P. Davis: Right.

Justice Gorsuch: Do you have any insight?

Joshua P. Davis: I don't have insight. I mean, I would say it's a little bit off point, but my client has great reverence for the law. Official 1 In some way, this whole process has been a tremendous honor for him.

Justice Gorsuch: Oh, I don't fault -- I don't fault your client.

Joshua P. Davis: No, no. Yes.

Justice Gorsuch: I'm -- I'm -- I -- I'm just wondering why the government's making us do this.

Joshua P. Davis: I don't know. (Laughter.)

Joshua P. Davis: I mean, so, but it is a sort of form of compensation, that to be here today is an honor for me and an honor for him, and so -- but -- but having said -- having said that --

Justice Gorsuch: It's an honor for all of us. (Laughter.)

Joshua P. Davis: And I -- I --

Justice Alito: I seriously -- I seriously doubt that we have seen every single statute where there is potential jurisdictional versus claims processing rule argument. I'm willing to bet that there are more.

Joshua P. Davis: I -- yeah. Hopefully, a Official 1 clear ruling today in our favor would help to alleviate that issue, but --

Justice Sotomayor: I -- I think the government wants the Court to do the work for it, meaning if -- the Court has to sua sponte assert -- determine jurisdiction, and if the Court doesn't, then they have to do a little work and look at the record and see if, in fact, whether they have an exhaustion claim or not.

Joshua P. Davis: I -- I hesitate to -- to hazard a yes, Your Honor, with a -- a couple of -- a couple of thoughts, I would, is, one, the government didn't raise this below, so it's at least conceivable again that on remand they would let it go.

Justice Sotomayor: No, because the Court was doing it for them. Thank you, counsel.

Joshua P. Davis: Absolutely. And -- and I do think along those similar lines, and I -- I, again, hesitate to be presumptuous, but I think, in some ways, at least some members of the Federal Circuit would welcome this Court's intervention. They seem stuck in a precedent that at least some of them believe is no longer Official 1 consistent with Supreme Court doctrine, but they are abiding by it unless and until they're told otherwise.

Chief Justice Roberts: Thank you, counsel. Justice Thomas? Justice Alito? No? Thank you.

Joshua P. Davis: Thank you, Your Honor.

Chief Justice Roberts: Ms. Brown. ORAL ARGUMENT OF AIMEE W. BROWN ON BEHALF OF THE RESPONDENT

Aimee W. Brown: Thank you, Mr. Chief Justice, and may it please the Court: In Section 1295(a)(9), Congress granted the Federal Circuit jurisdiction over appeals from final MSPB decisions pursuant to Section 7703(b)(1), which includes a deadline for filing an appeal. As this Court has recognized in cases like BP and SAS Institute, the plain meaning of "pursuant to" is "in accordance with" or "in compliance with." By conditioning the Court's jurisdiction on compliance with 7703(b)(1), the Official 1 statutory text provides the clear tie between the appeal deadline and the jurisdictional grant which satisfies this Court's clear statement rule. That view of the text is confirmed by precedent and history. In Lindahl, this Court squarely addressed whether the Federal Circuit had jurisdiction over an appeal from the MSPB and held that such jurisdiction is governed by Section 1295(a)(9) and 7703(b)(1) together, with Section 7703(b)(1) setting the jurisdictional perimeters for the Federal Circuit's review. For the past 40 years, the Federal Circuit has recognized the same thing and has repeatedly held that the time limit here is jurisdictional. Against the backdrop of that settled precedent, Congress has repeatedly reenacted or amended the statute, including specifically the time limit. Petitioner's contrary arguments fail to offer any plausible alternative reading of the statutory text. His argument that none of Section 7703(b)(1) is jurisdictional is directly contrary to Lindahl and would make Section 1295(a)(9)'s grant of jurisdiction incomplete. Official 1 And his alternative argument that the first sentence of 7703(b)(1) is jurisdictional but the second is not creates a distinction that Congress didn't draw. Adopting Petitioner's view would require the Court to read "pursuant to" to mean different things for the different sentences of Section 7703(b)(1). And demanding Congress to speak more -- with more specificity would turn the clear statement rule into the kind of magic words requirement that this Court has repeatedly rejected. Finally, even if the Court were to hold that the filing deadline is not jurisdictional, at a minimum, it's not subject to equitable tolling. Federal Rule of Appellate Procedure 26(b) prohibits extending the deadlines for filing appeals from agency decisions unless authorized by law. Because Congress did not authorize any such extension under either the statute or the Federal Rules, Petitioner's untimely appeal cannot go forward. I welcome the Court's questions.

Justice Thomas: Do you think it's at least plausible that "pursuant to" modifies Official 1 "final order"?

Aimee W. Brown: I don't, and I think the reason for that is that if you were to -- to read the statute that way, it would say that the order or decision needed to be pursuant to or in accordance with, in compliance with, Section 7703(b)(1). But Section 7703(b)(1) doesn't impose any requirements or limitations on the order or decision. I think that's particularly clear if you look at (b)(1)(A) and (b)(1)(B) together, and those two provisions talk -- they -- they sort the cases between either the Federal Circuit exclusively or the Federal Circuit and the regional courts of appeals. And the basis for that sorting is not the scope of the order or decision. It's based on what challenges to the order or decision are brought within the appeal. And so I -- I don't think it's actually possible to read the statute that way.

Justice Kagan: Do you lose if "pursuant to" just means "under"?

Aimee W. Brown: I don't think so. As we said in our brief, if "under" were used in this Official 1 -- in this context specifically, it would have the exact same meaning that it -- that "pursuant to" has here. That's the same meaning that the Court gave to "under" in cases like Pereira. I think that the easiest way to -- to understand that is to -- to -- to think about how this -- how this scheme would work or how this statute would --

Justice Kagan: I guess I meant "under" as in "go bring an appeal under" that section. "Go file an order under" that section.

Aimee W. Brown: So do you -- "under" as kind of like an invoking, it means to invoke? Okay. So I -- the reason I don't think that that --

Justice Kagan: I mean, it just doesn't have anything to do with whether you've satisfied every jot and tittle of whatever requirements might apply --

Aimee W. Brown: The --

Justice Kagan: -- to that section.

Aimee W. Brown: I -- the reason that I think that that interpretation is unavailable here is because of what the first sentence of Section 7703(b)(1) does require. And I think Official 1 that it has to be the case that that part is jurisdictional and -- and is required by the -- the -- the reading here because, if you imagine, for example, that the Petitioner here had brought discrimination claims, and so the case is a mixed case, and he brought that case in the -- in the court of appeals, in this -- in the Federal Circuit in the first instance, and asserted that he was invoking 7703(b)(1), I don't think that anyone here is suggesting that that case would then be able to proceed in the Federal Circuit because the Petitioner had asserted or invoked or relied on 7703(b)(1). It belongs in the district court under (b)(2). And so I think, because that interpretation of the statute and interpretation of "pursuant to" is mandated for that sentence, the same thing has to be true for the second sentence and for the time limit.

Justice Barrett: Ms. Brown, I want to give you a chance to respond to Justice Gorsuch and Justice Sotomayor's points about, you know, why is the government here, why as a practical matter -- I mean, this is apart from the merits of your reading of the statute, right, but as a Official 1 practical matter, why does the government care so much whether this is jurisdictional or claims processing?

Aimee W. Brown: So I -- I think that the reason that we are here, we -- we take very seriously this Court's rulings in this area and its efforts to bring discipline to the use of jurisdiction, and we're not trying to fight against the application of the clear statement rule. We do think that this case is quite different from many of the cases that the Court has looked at before. In almost every other case, the suit fell within a clear jurisdictional grant, and the question was just whether the -- there was another provision in another requirement that displaced that jurisdictional grant with respect to certain -- certain cases or in certain instances. So I think it's really only this case and Boechler that have dealt with the interpretation of a provision that's clearly -- has something to do with jurisdiction, and then the question there is just what is the scope of that jurisdictional grant. Official 1 And so I think we are still kind of working through and fleshing out and figuring out how this Court's clear statement rules do apply to that particular circumstance. And I think, in this case, that we think we have a very strong argument as to why reading this -- this jurisdictional provision should lead to the result that the clear statement rule -- that even with the clear statement rule, the time limit here is jurisdictional, because we do have that clear tie with the "pursuant to" language that was lacking in -- in Boechler itself.

Justice Barrett: Do you have -- does the government have a position on the question Justice Alito asked you about whether a court can raise the mandatory claims processing rule sua sponte?

Aimee W. Brown: Yes. We -- we do think that that is permissible under the Court's decision in Day versus McDonough, and we think it's very clear that that's what the court of appeals, the Federal Circuit, was doing here. Both in its order to show cause and in its order dismissing the case for lack of jurisdiction, the court relied on Rule 26. Official 1 We also think that a remand here would be somewhat unnecessary, in -- in part because the Federal Circuit does have binding precedent holding that -- the equitable tolling does not apply specifically to Rule -- to Section 7703(b)(1). And that -- that case, which is Oja versus Department of Army, specifically says, even if we were wrong and Section 7703(b)(1) is not jurisdictional, we still think that equitable tolling does not apply. And so I don't think it's the case that it's bound up in its decision, its determination about the jurisdictionality of the provision.

Justice Gorsuch: At the very least, though, the government could waive, right?

Aimee W. Brown: Yes, the government could choose to waive if it -- if it were to choose that.

Justice Gorsuch: Yeah. So a remand wouldn't be wholly pointless.

Aimee W. Brown: I suppose that's correct. I mean, I do think that we have already raised --

Justice Gorsuch: I mean -- and -- and Official 1 -- and -- and, gosh, I mean, waiting seven years to rule on this fellow's claim and then sending it -- him an email and to an old email address and he acted as fast as he could, I mean, it's not wholly inconceivable the government might, in its magnanimity, choose to waive this defect?

Aimee W. Brown: Sure. So, I -- I mean, I do want to address the delay here, which I don't think is really attributable to the -- the executive branch because the -- the board members' terms expired and there were lags in time with the nomination and confirmation of --

Justice Gorsuch: Well, it was two years --

Aimee W. Brown: -- the new board members.

Justice Gorsuch: -- two years on the executive and five on Congress if you want to be specific, right?

Aimee W. Brown: Sure. Yes.

Justice Gorsuch: Okay.

Aimee W. Brown: Yes. And then the board acted as quickly --

Justice Gorsuch: But it wasn't --

Aimee W. Brown: -- as possible after that, and there was an obligation -- Official

Justice Gorsuch: -- it wasn't Mr. Harrow's fault by any stretch.

Aimee W. Brown: He did have an obligation to keep his email address updated, but, certainly, the delay -- (Laughter.)

Aimee W. Brown: -- I'm not trying to suggest that the -- the delay here was -- was -- was his fault.

Justice Gorsuch: All right. And you -- I -- I -- I'd ask you the same question I asked your friend on the other side about, what do you understand the justification for this clear statement rule to be?

Aimee W. Brown: So the way that this Court has always framed it is that it's intended to get at what Congress -- what we think Congress is actually doing in these cases. And we think that normally Congress doesn't make a lot of separate requirements jurisdictional, and so, when Congress does want to do so, we've asked for Congress or the Court has -- has suggested that Congress will speak clearly.

Justice Gorsuch: And do you think this is a sound clear statement rule? Does the Official 1 government believe it's a sound clear statement rule?

Aimee W. Brown: That the clear statement rule itself, in general, is a sound principle?

Justice Gorsuch: Mm-hmm.

Aimee W. Brown: I think -- I think, yes, we haven't disputed that the clear statement rule should apply here or -- or is an appropriate use of this Court's authority. I do think that expanding the clear statement rule in the way that I think you might have to in order to rule for the Petitioner here would be a problem, and I think there are kind of two reasons for that. I think that in order to rule for the Petitioner here, you would have to say either that there is something like a magic words requirement in the -- in the context of a jurisdictional grant in order to give a time limit jurisdictional consequences and also that -- or, in the alternative, I guess, that the Court would be saying that there are some kinds of extra-textual considerations like the kinds of things that the judiciary thinks should or should not be jurisdictional that can be Official 1 privileged over the clear meaning of the text.

Justice Kavanaugh: I --

Aimee W. Brown: I think that if either of those principles are adopted, then that really extends the clear statement rule beyond what the justification for --

Justice Kavanaugh: What -- if -- if you were to lose here, what would provide the most clarity, do you think, for the government and for the courts of appeals and district courts, the affected courts, on these kinds of matters? Maybe it is a magic words requirement would be better, because it seems silly to keep having this debate.

Aimee W. Brown: I -- I suppose that for purposes of clarity, a magic words requirement would -- would be clear, but I don't think that it would be appropriate because, at that point, then you are mandating that Congress speak in a particular way in -- in -- particularly in this context.

Justice Kavanaugh: Well, maybe "magic words" is loading the dice. Maybe just speaks directly to jurisdiction.

Aimee W. Brown: Sure, but I guess we think Official 1 that this provision would comply with that because it -- this is a jurisdictional grant. We -- we know that this is a jurisdictional grant, and no one is disputing that. And in that context, generally, when this Court is interpreting a jurisdictional grant, it hews very closely to the text in an effort to avoid either expanding or contracting the courts' jurisdiction because of the separation-of-powers concerns that come with that as -- as an Article III court. And so I think, at least in the context of interpreting what is a clear jurisdictional grant, a magic words requirement could raise some -- some concerns there in -- in putting too much of a burden on Congress --

Justice Jackson: Can I ask you about the clear jurisdictional grant here and the implications of your view?

Aimee W. Brown: Yes.

Justice Jackson: So I'm looking at 1295(a)(9), and it not only cross-references 7703(b)(1), which is at issue here, but also 7703(d). So is it the government's position that all of the parts and expectations that come Official 1 out of 7703(d) are also jurisdictional?

Aimee W. Brown: So it -- it is our position that, of course, because the same language attaches 7703(d) to 1295(a) and to the jurisdictional grant, that the requirements for bringing an appeal that are encompassed within (d) are also jurisdictional. And -- and that is how OPM has treated them. That's how the -- the Board has treated them as well. And I recognize that there's some kind of raised eyebrows from some at the idea that the director's determination that this particular issue was one that should be appealed would be jurisdictional, but I actually don't think that that issue or that requirement being jurisdictional is that far afield from some of the other kinds of gatekeeping requirements for appeals that this Court has already held to be jurisdictional and there are --

Justice Jackson: But what about the procedural oddity of the Federal Circuit having an affirmative obligation to sua sponte make this determination in these kinds of cases if it was a jurisdictional provision?

Aimee W. Brown: So I -- I think that Official 1 that's also not particularly odd or -- or particularly difficult for the -- for the Federal Circuit to do. It's going to be apparent on the face of the petition itself, the Federal Circuit has discretionary jurisdiction over OPM petitions for -- for review. And so OPM files something that basically looks like a cert petition and includes within that a statement of jurisdiction that will say the director has made the determination that this is a case that qualifies. And then I think, because that's a discretionary determination on the part of the director, the Federal Circuit is just looking for whether that determination was made and isn't actually analyzing the substance of that.

Justice Jackson: Well, I guess also kind of stepping back a bit, buried in your argument is the notion that both sentences in 7703(b) or 77 -- both sentences have to be jurisdictional -- sorry, in 1295 -- no.

Aimee W. Brown: In 7703.

Justice Jackson: In 7703.

Aimee W. Brown: Yeah.

Justice Jackson: And I'm just Official 1 wondering how you square that with the sort of holding and reasoning in Santos-Zacaria, where the -- the Court suggested that you didn't have to read a provision like that in -- in totality.

Aimee W. Brown: So I think that the reason this is different from Santos-Zacaria is because we have the "pursuant to" that connects the jurisdictional grant to 7703(b)(1) as a whole. I think we would have a much harder argument and maybe an impossible argument if we were just looking at 7703(b)(1) out of the context of --

Justice Jackson: But why is that --

Aimee W. Brown: -- that grant.

Justice Jackson: -- different? Santos-Zacaria had "in accordance with this section" and the government made the argument that is very similar to this one.

Aimee W. Brown: So I think that the difference there is that that provision in Santos-Zacaria, which I -- it says notwithstanding any other provision of law, a petition for review filed with an appropriate court of appeals, in accordance with this section, shall be the sole and exclusive means for judicial review, that provision is not the Official 1 jurisdictional grant, and so it's not conditioning the Court's jurisdiction on appeals filed or orders filed in accordance with this section. There's another section of 1252 that granted jurisdiction. So I think we would have a much harder argument and, again, maybe an impossible one if the Court had rejected our reading of a provision that said something like the court of appeals shall have jurisdiction to review removal orders in accordance with this section. But that's not how the Court read that provision and that's not how the provision is written.

Justice Jackson: Well, that seems exactly backwards to me, but anyway. We'll --

Aimee W. Brown: I -- I just -- I think it is the difference between conditioning jurisdiction and granting jurisdiction -- as -- with a condition that it -- that it has to be in compliance with this section and saying in -- as in Santos-Zacaria, that this is the only way you get jurisdiction, there are no grants of jurisdiction outside of this section, but that that provision doesn't say which provisions or which parts of Section 1252 are themselves Official 1 jurisdictional.

Justice Alito: The only thing in -- in all of these cases, in this rich line of precedent that we have about the clear statement rule, the only legitimate question is what is the meaning of the particular statutory provision that's involved, and what is the meaning of the provision that's involved with respect to certain other questions that are subsumed under the jurisdictional/non-jurisdictional inquiry, such as can the court -- must the court raise it itself? Can the -- can the argument be forfeited? Our cases have gone on -- off on really niggling interpretations of statutory language that doesn't speak at all directly and only very -- in a very loose way indirectly to this question, but part of your argument gets at perhaps something we could read into this which would be more productive, which is to ask what is it likely that Congress intended with respect to a particular type of review, and you're talking about review from an administrative agency to a -- to a court of appeals. Official 1 And that seems like it might be a more -- an inquiry that gets to what Congress likely thought had it given any thought to this question. So could you elaborate on that?

Aimee W. Brown: Sure. So I -- I mean, I do think that that argument is persuasive and very helpful to us here if you look at the category of appeals to Article III courts. And I -- I think, within that category, of course, we have appeals from district courts, which the Court has already addressed in Bowles, and then we have appeals from agency decisions. And those have in -- in a variety of contexts also been treated, the timelines there have also been treated as jurisdictional. And I do think that it makes sense to look at, you know, the court that's actually -- the -- whose jurisdiction is at issue and focus more on that inquiry than where the actual decision is -- is coming from.

Justice Alito: So what are the features of the -- the question as it arises in that context that would make it more likely that Congress would say this is a hard-and-fast rule Official 1 and it -- it has to be raised even by the court?

Aimee W. Brown: So I -- I think --

Justice Alito: What are the features of it? It's the fact that it would put a -- a fact-finding obligation on the -- on the appellate court?

Aimee W. Brown: I do think that that is part of it. Usually we don't think of appellate courts as the courts that are going to be engaging in fact finding in the first instance. Of course, I recognize, as Justice Sotomayor was pointing out, that there are -- there are instances in which that happens, but I think the general rule is that we don't normally see that. I would also think that, you know, the fact that some amount of process has already been undertaken and that the -- the claims have been -- that have -- that have started to be reviewed and there has been a certain amount of -- of -- of that process that has already gone into effect would make -- would indicate that Congress perhaps wants or -- or would be less concerned with imposing kind of harsh consequences because you're already within kind of the review scheme, whereas it might then also Official 1 choose to privilege the idea or the -- the -- the fact that it might -- it wants to ensure efficient administration and resolution of the claims that have been brought and to privilege kind of the -- the finality requirements that -- or the finality interests that -- that arise in that context as well. I also think that this Court in -- on its own has -- has recognized that the same considerations apply to appeals from district courts and to appeals from agency decisions in its adoption of Rule 26. And I know that that is a separate argument that we've made here as well, but -- but even setting the separate argument aside, I think Rule 26, in -- in stating that the presumption is going to be that those deadlines for appeals either from Article III district courts or from agency decisions are not subject to equitable tolling or are not able to be extended unless Congress specifically states that they are, indicates that this Court recognized in adopting that rule that the same kinds of considerations apply and would -- would -- would warrant that kind of rule in both instances. Official 1 If I could speak directly to the history of this particular provision, I think that that provides even a further basis to -- to think that what Congress was doing here was requiring that this rule to be -- is jurisdictional. Prior to the creation of the Federal Circuit, review of MSPB decisions came through the Court of Claims, where the time limit for filing is jurisdictional, as this Court recognized in John R. Sand, or it came through regional courts of appeals through the Hobbs Act, where the time limits are jurisdictional under every circuit's precedent. So I think that it makes perfect sense that Congress would maintain the jurisdictionality of the time limit when it was just shifting review of those matters over to the Federal Circuit. And the Federal Circuit, of course, then held that the deadline was jurisdictional very soon after it was created. Lindahl, I think, likewise, recognized the jurisdictional status of Section 7703(b)(1). And then, with that backdrop, Congress Official 1 has reenacted and amended 7703(b)(1) numerous times, and including with specific reference to the deadline. It changed the deadline from 30 days to 60 days. It changed when the -- time begins to run. So I think Congress really has been quite attentive to the way that the deadlines operate in this area and has never indicated that it disagrees with the jurisdictional status that it's -- that's -- that it's had. And I -- I think, you know, this Court has recognized that in Helsinn a few terms ago that when this Court adopts an interpretation of a statute at least implicitly and the Federal Circuit has exclusive jurisdiction over that statute and then makes explicit what was implicit in the Court's decision, that Congress is then presumed to operate with that in the background and to -- to know that and to, I guess, ratify that when it reenacts and readopts the same statutory language.

Chief Justice Roberts: What -- and at what point along that history did we adopt, you said, they -- the clear statement rule with respect to jurisdictional determinations? Official

Aimee W. Brown: So that was in Arbaugh, which I think is a 2006 decision I want to say. And the statute has been amended before that, but even prior to that, it was also amended. I think there was amendments in 1998 I want to say but -- but again in 2012. And even with all of that in place, and I think and with Lindahl in place importantly, I -- I -- I don't think that there is a reason to question that what the Federal Circuit assumed or what Congress assumed was -- was -- was happening here was that the -- the timeline maintains its jurisdictional status. If I -- if I could talk about Rule 26 just for a moment as well, we do think that the Rule 26 question is -- is presented, it is -- is here before the Court, and we think that the Court should actually go ahead and decide that question for, I would say, I guess three reasons. The first reason is that we think it's a particularly easy question. The plain text of the rule says that Rule 26(b) applies and doesn't permit the extension of deadlines for -- for appeals from agency decisions. I know that Official 1 the Petitioners have argued that it applies only to time limits that are contained in the rules themselves, but that language is not in the particular -- the sentence that prohibits this expansion.

Justice Jackson: I'm sorry, why do you think this is encompassed in the question presented in this case?

Aimee W. Brown: So we -- we think that this -- this Court has long held that the Respondent can bring up any alternative basis for affirmance that's apparent in the record here. And so that's what we are -- we're relying on. I -- I recognize that the Petitioner here hasn't framed the question to include equitable tolling, but we do think it's an appropriate exercise of this Court's discretion to -- to address that because it's apparent from the record. And this Court has done so in cases like -- or has recognized that principle in cases like Union Pacific Railroad and others. So I guess, with -- with respect --

Justice Jackson: Would -- would we have to -- would we have to address the Official 1 forfeiture argument that Petitioner raises in order to exercise that discretion in this case?

Aimee W. Brown: I think you -- you would have to raise forfeiture. I'm happy to -- to address that. I don't think that we did forfeit this argument. The order to show cause before the district court -- or before the Federal Circuit came right after the administrative record was filed but before any briefing had occurred. Briefing was then stayed. I think that that order can itself reasonably be -- be viewed as mainly directed toward the Petitioner because it said that the order to show cause was the -- was to show cause why this case should not be dismissed, and it cited Rule 26, and it cited the Federal Circuit's binding precedent. And so, you know, the government didn't really have an interest in explaining the same things that the -- the -- that the Federal Circuit had already recognized there. We did raise Rule 26 in our brief in opposition and we noted that the Petitioner had never said anything about waiver or forfeiture. In the Petitioner's cert reply, he also didn't Official 1 say anything about waiver or forfeiture at that point and instead stated that the Court could address Rule 26 on the merits if it wanted to do so.

Justice Jackson: But the Federal Circuit's order dismissing the case didn't discuss it, did it?

Aimee W. Brown: It did include a citation to Rule 26. I agree that there wasn't any kind of extended discussion of that. But, again, I would -- I would say that Federal Circuit precedent already does make very clear that there -- there is binding precedent on this issue and that Rule 26 applies to 7703(b)(1) and -- and would prohibit extending the deadline there. And, again, that's the Oja case that we've cited in our brief.

Justice Kagan: I -- I -- I wasn't quite sure what argument about Rule 26 your brief was making. I mean, so distinguish between two arguments. One is that Rule 26 independently requires what you think it requires, but another, which is what I took to be the argument in your brief, is that Rule 26 Official 1 should inform our interpretation of 7703(b)(1). And I thought that that was the argument you were making in your brief, not the straight argument about Rule 26.

Aimee W. Brown: Yes. I'm sorry if I was -- if I confused the issue there. It is the latter argument. We do think that Rule 26 informs the reading of 7703(b)(1). It shifts the presumption of equitable tolling and says that it does not -- it does not apply in the context of appeals from agency decisions. And that was a rule that was in place at the time.

Justice Kagan: So, if that's the argument you're making in your brief, and suppose, just suppose, that the Court rejects that argument and says 7703(b)(1) is not jurisdictional, as I read your brief, you don't have a separate Rule 26 argument, is that right?

Aimee W. Brown: No, I -- I don't think that's the case. I think that even if there is no jurisdictional status for this rule, the --

Justice Kagan: Well, I know you're making that argument here, but you didn't make it in your brief. And read against the backdrop of a question presented that doesn't have Official 1 anything to do with Rule 26, and then, in your brief, you only brought up Rule 26 as something that would inform our understanding of the statute, what I'm suggesting is that you don't really have a Rule 26 argument here.

Aimee W. Brown: Okay. I'm sorry. I -- I misunderstood the question. I think our argument in our brief and today is that Rule 26 informs the reading of the statute if it's not jurisdictional on its own. So even if the statute is not jurisdictional under this -- this Court's holding and it reads 1295(a) -- (a)(9) and 7703(b)(1) and says that -- that there is not a jurisdictional rule here, that then leaves open the question whether equitable tolling can apply or whether there can be extensions. And at that point, when there is no language in the statute that speaks to that, then you either have the Irwin presumption on the one hand that would say yes, we assume equitable tolling applies, or you have Rule 26, which displaces that presumption and says no, if Congress hasn't express -- expressly stated otherwise, then equitable tolling does -- does not apply, and that's where we think Rule 26 Official 1 comes into play here.

Justice Kavanaugh: You think that question's simple enough for us to resolve here in addition to the main question?

Aimee W. Brown: We do. We do think that the -- the text of Rule 26 is -- is fairly clear here and -- and says that it applies as a background rule and a background principle in -- in the interpretation of statutes. I -- I -- as I was saying earlier, I think the Petitioner has argued that it only applies to deadlines that appear in the rules themselves. But that is -- that's incorrect. The language of the statute -- of the rules does -- doesn't say that in the provision that actually talks about the prohibition on extending deadlines. That's even clearer if you look at the earlier versions of the rule that were in effect when Section 7703(b)(1) was enacted. We've included those in our appendix on pages 10a and 11a. And, there, it says, "nor may the Court enlarge the time prescribed by law" for appeals or for petitions of review of agency decisions. So we think that's very clear in stating that -- Official 1 that the rule applies even to -- to statutory deadlines as well. And when the language was shifted to its current form in 1998, the submission that the Chief Justice gave to Congress said that this was just a stylistic change. It wasn't meant to alter the substance of the rule. And so I -- we do think that that's an easy question. I guess, to go back again to the second reason that we think that the Court should address Rule 26 here, again, I'll refer to the binding precedent of the Federal Circuit. I think, if this is remanded, it's very clear what the Federal Circuit would do based on that precedent. And then the third reason just kind of goes to the consequences of the determination that the time limit is not jurisdictional, which is an issue that the parties have joined issue on and have -- have discussed. And so we do think it would be appropriate for the Court to -- to make that determination now and it would be efficient to do so.

Justice Barrett: Ms. Brown, if Official 1 Petitioner's reading is plausible, do you lose?

Aimee W. Brown: So, when this Court has explained the clear statement rule, I don't think right -- up until this point or as of yet, the Court has said that if there is one other plausible definition or interpretation, then it's not clear. The Court in Boechler said that if there are multiple plausible interpretations and only one of them is jurisdictional, it's going to be very hard for the government to prove that the statement is clear. But, thus far, I think the -- the -- the most common formulation of the clear statement rule is just that. If -- if Congress wants to make a certain -- a certain provision jurisdictional, it has to clearly state that it is. And so I -- I don't think the -- the Court has gone that far yet, but if it could do so, I'm sure.

Justice Jackson: Going back to the Rule 26 issue, Mr. Davis suggests, I guess, in conjunction with -- with Justice Gorsuch's questions that this could be a situation in which the government might look the other way regarding its pressing of equitable tolling or Official 1 objecting to it on remand. Do you have a comment?

Aimee W. Brown: I -- I haven't spoken with the -- the agency about what it intends to press on remand if the Court does bring it to -- to that point. I -- I do think that the agency and the government in general has a fairly strong interest in ensuring that Rule 26 is accurately applied and that this doesn't open the door to the potential for equitable tolling in all sorts of other state -- other cases in which --

Justice Jackson: But if it isn't jurisdictional --

Aimee W. Brown: Right. That's correct.

Justice Jackson: -- we could go back and it could possibly go forward, correct?

Aimee W. Brown: Yes, although I think that the Federal Circuit would still have the option of bringing it up sua sponte on its own as well, which it kind of already has done within the order to show cause and the order for -- and the order dismissing the case. But -- but, as I was saying, I -- I do think we have an interest in the correct application of Rule 26. I recognize that Mr. Official 1 Harrow here has some sympathetic circumstances on his side, and so I -- I think that would be a conversation, but I'm -- but I -- I -- I can't represent to you today that -- that we would try to waive the issue.

Chief Justice Roberts: Thank you, counsel. Justice Thomas, anything? Justice Barrett?

Justice Sotomayor: If it's not mandatory, meaning you can waive it --

Aimee W. Brown: So I think --

Justice Sotomayor: -- if you chose?

Aimee W. Brown: I think we think it is mandatory, just not jurisdictional.

Justice Sotomayor: But -- well, but mandatory is still the waivable defense.

Aimee W. Brown: Correct, yes.

Justice Sotomayor: All right.

Chief Justice Roberts: Justice Barrett? Nothing? Thank you, counsel. Rebuttal, Mr. Davis -- or Mr. Brown? No, Mr. Davis. Sorry, excuse me.

Joshua P. Davis: You're the Chief Justice. Official 1 It's Mr. Brown now.

Chief Justice Roberts: -- okay to change your mind.

Joshua P. Davis: Yes, Your Honor. (Laughter.) REBUTTAL ARGUMENT OF JOSHUA P. DAVIS ON BEHALF OF THE PETITIONER

Joshua P. Davis: So just a -- a -- a small number of points on rebuttal. The first one is the analogy, excuse me, to Section 7703(b)(2) where the government argues the first sentence must be jurisdictional. The difficulty for the government by invoking that particular provision is that in Kloeckner, this Court held that even if the first sentence there is juris -- jurisdictional, the very close -- the filing deadline in the second sentence is not. And so, if one is going to rely on that very close parallel textual interpretation, that would actually place the government in a position where it is possible that one of those sentences could have some jurisdictional implications with the other one not. What this Court said in the second Official 1 sentence, which is, again, very closely parallel, 7703(b)(2) and (b)(1), is that the filing deadline is just a filing deadline. So I don't think that analogy helps the government. Second, the government took the position that if there were a mixed case, and so it would go -- would -- would necessarily fit appropriately under 7703(b)(1), no one would contest -- I'm sorry, under (b)(2), no one would contest that there would be a lack of jurisdiction if the Petitioner invoked 7703(b)(1). That's not the only possible interpretation, but, in fact, the government's position is directly opposite to the holding of this case in BP P.L.C. as I understand it, where the "pursuant to" language was used and this Court said that "pursuant to" can be consistent, and it was there consistent with invoking. And the answer to the question of, well, how then can you go forward with a -- a -- a mixed case under (b)(1) is, well, if it's frivolous, then there are other ways to police that, including sanctions and attorney's fees and costs. And nobody here is arguing that Mr. Official 1 Harrow isn't appropriately proceeding under (b)(1). So I think the kind of -- reductio ad absurdum that the government invoked is contrary to at least one Supreme Court precedent. Two -- well, one final point. Oh, I'm sorry, two final points quickly. In terms of the timing of the amending of (b)(1)(A), the most recent amendment was 2012. And in 2012, the clear statement rule was already established, including the statement in Arbaugh in 2006 that lower court precedents by themselves are not enough to satisfy the clear statement rule, so if we are inferring Congress's intent from the amendments to (b)(1)(A), the natural inference would be that Congress was listening to this Court and not to the Federal Circuit precedents that this Court said it should -- it should not listen to. And then the -- the last point I would say is the question presented is, in fact, limited to the jurisdictional nature or not of the filing deadline. I do think that between forfeiture and the complexities at equitable tolling, government discretion on remand not to raise this issue, and the complexities under Official 1 26(b), which include not only that the -- the rule -- it cites to the rules and not statutes, we did not make the complete set of arguments about Federal Rule of Appellate Procedure 26(b). We would like the opportunity if this Court decides the deadline is not jurisdictional to do so on remand. We think, if that issue were to get back up to this Court, the Court would be in a much better position to rule effectively with that sort of background. Thank you.

Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 12:23 p.m., the case was submitted.)