Supreme Court Will Hear Pentagon Employee’s Appeal Against Furlough Decision

A longtime federal employee says a delay in filing an appeal wasn’t his fault and shouldn’t be held against him.
Supreme Court Will Hear Pentagon Employee’s Appeal Against Furlough Decision
The Pentagon in Arlington, Va., on Dec. 26, 2011. The Department of Defense has failed to get a passing grade on an auditing of its accounting for the sixth year in a row. (STAFF/AFP via Getty Images)
Matthew Vadum

The Supreme Court has agreed to hear the appeal of a furloughed Department of Defense employee who waited five years for a decision from an understaffed government board that couldn’t resolve his appeal promptly.

The Supreme Court granted the petition for certiorari, or review, in an unsigned order in Harrow v. Department of Defense late in the business day on Dec. 8. No justices dissented. The court didn’t explain its decision. At least four of the nine justices have to vote in favor of granting the petition for the case to move forward.

The case dates to 2013 when Stuart Harrow, a longtime Department of Defense (DOD) employee, was furloughed for six days as a result of funding cutbacks mandated by the Balanced Budget and Emergency Deficit Control Act, according to the petition he filed with the Supreme Court on July 3. He asked to be exempted from the furlough on the grounds of financial hardship.

Acting without a lawyer, he challenged the employment decision before an administrative judge who ruled against him. Still without legal representation, he appealed to the U.S. Merit Systems Protection Board (MSPB).

The board describes itself on its website as “an independent, quasi-judicial agency in the Executive branch that serves as the guardian of Federal merit systems.”

Congress created the board in 1979, replacing the Civil Service Commission with three new independent agencies: the Office of Personnel Management (OPM), which manages the federal workforce; the Federal Labor Relations Authority, which oversees federal labor-management relations; and the MSPB.

The MSPB “assumed the employee appeals function of the Civil Service Commission and was given new responsibilities to perform merit systems studies and to review the significant actions of OPM.”

While the appeal was pending, on Jan. 8, 2017, the board lost its quorum of members and couldn’t conduct business and resolve appeals. The board didn’t regain a quorum until May 11, 2022, when it rejected the appeal and affirmed the administrative judge’s ruling.

In the intervening five-year period, the DOD changed email servers and Mr. Harrow failed to notify the MSPB of his changed email address. Because the board served its final decision in the case on him only by email, he didn’t learn about the unfavorable ruling until Aug. 30, 2022, 111 days after the decision was made.

Mr. Harrow continued representing himself and asked the U.S. Court of Appeals for the Federal Circuit on Sept. 16, 2022, to review the board’s decision.

In some cases, federal employees are allowed to appeal unfavorable board decisions to the Federal Circuit, but the law provides that any petition for review must be filed within 60 days after the board’s final decision.

The Federal Circuit ruled in Fedora v. MSPB in 2017 that the deadline to file an appeal under Section 7703 of 5 U.S. Code was jurisdictional. It cited the 2017 precedent when it denied Mr. Harrow’s appeal.

The legal issue now before the Supreme Court is whether the 60-day deadline specified in Section 7703 for a federal employee to ask the Federal Circuit to review a final decision of the board is jurisdictional, a status that can significantly limit litigants’ options in a case.

Legal rules are classified as either “jurisdictional” or “nonjurisdictional,” according to the Stanford Law Review.

If a rule is deemed jurisdictional, “courts will interpret and apply it rigidly, literally, and mercilessly.”

“Jurisdictional defects are absolutely fatal to a claim,“ Stanford Law Review stated. ”Moreover, parties [can] neither waive jurisdictional requirements nor consent to noncompliance with them. Parties can raise jurisdictional defects at any time in the litigation, including for the first time on appeal, and courts are obliged to raise such defects ... even after litigation on the merits. Finally, courts may not consider using equitable doctrines to bend jurisdictional rules under any circumstances.”

In a brief filed on Oct. 6, the U.S. Department of Justice (DOJ) argued that Mr. Harrow was out of luck.

Mr. Harrow didn’t “dispute that he filed his petition for review outside of [the] statutory deadline” but argued the untimely filing was “excusable” because “he did not become aware of the [board’s] decision” until more than a month after the deadline for seeking review in the Federal Circuit.

He explained that while the case was pending he had failed to notify the board of his new email address because he “mistakenly believed that the emails addressed to the old address would be forwarded to his current email address.”

“The court of appeals correctly held that Section 7703(b)(1)(A)’s 60-day deadline for seeking Federal Circuit review of an order or decision of the Board is jurisdictional,” the government brief reads.

“That holding does not conflict with any decision of this Court or of any other court of appeals. This Court has recently and repeatedly denied petitions for writs of certiorari raising the same question.”

Mr. Harrow’s attorney, Scott Dodson, a law professor at the University of California Law School in San Francisco, said by email that he was pleased with the Supreme Court’s decision to accept the appeal.

“For decades now, the Federal Circuit’s treatment of the 60-day statutory deadline has prevented aggrieved federal employees just like Mr. Harrow from having their cases heard on the merits in federal court,” Mr. Dodson said.

“We are excited that Mr. Harrow will have the opportunity to seek relief from the Supreme Court, and we look forward to explaining to the Supreme Court why the Federal Circuit should be reversed.”

DOJ officials didn’t respond by press time to a request by The Epoch Times for comment.

Oral arguments in the case haven’t yet been scheduled but are expected to take place in the new year. A decision would likely follow by June 2024.