10-Year-Old Federal Employee Furlough Case Accepted by Supreme Court

Why would the Supreme Court accept a 10-year old case filed by a federal employee and why did it take 10 years to get there anyway?

The US Supreme Court has granted a petition to review the case of a federal employee involving a furlough action that took place in 2013. While experienced federal employees know it can take a long time to resolve a case, very few ever get to the Supreme Court, and even with the slow-moving apparatus for handling administrative cases, a case involving a small amount of money that is over ten years old is unusual.

How This Case Has Taken 10 Years

On December 8, 2023, the Supreme Court accepted the case. We do not know why the case was accepted, but four of the nine justices have to vote to grant the petition for it to be accepted.

This accepted petition to the Supreme Court was filed on July 3, 2023. In the petition, Stuart R. Harrow, a Department of Defense employee, notes that he was furloughed in 2013 during the sequestration of funds mandated by amendments to the Balanced Budget and Emergency Deficit Control Act. He had requested to be exempted from the furlough due to financial hardship.

After being furloughed, Harrow filed an appeal with an administrative law judge. His appeal to the ALJ was dismissed, and Harrow filed an appeal of the decision with the Merit Systems Protection Board (MSPB). There was not a quorum at the MSPB and his case was not decided for five years.

In the years Harrow’s appeal was pending at the MSPB, the Department of Defense changed email servers. Harrow did not notify the Board of his new email address and the final Board decision was sent to his old address. While the decision was issued on May 11, 2022, Harrow contended he did not learn of the decision until August 30, 2022.

He filed his appeal with the Federal Circuit outside of the 60-day time limit for filing an appeal. In his appeal, he argued he missed the filing deadline but it was not his fault as he did not know about the decision issued by the MSPB.

The Federal Circuit was “sympathetic to Mr. Harrow’s situation” but concluded, “this court can only consider whether the petition was timely filed and cannot excuse a failure to timely file based on individual circumstances.” It dismissed his case on February 14, 2023.

Issue Before the Supreme Court

The appeal to the Supreme Court questions whether the 60-day deadline for a federal employee to petition the U.S. Court of Appeals for the Federal Circuit to review a final decision of the Merit Systems Protection Board is jurisdictional.

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.

What About Other Cases Involving Furloughs During This Time?

This is not the only case that has come about as a result of furloughs in 2013. As noted in Navy Furlough of Civilian Employees Following Sequester Upheld by Court:

First the Merit Systems Protection Board and now the appeals court see no merit in a challenge launched by several Navy employees to their six-day furlough in 2013. (Einboden v. Navy, CAFC No. 2015-3117, 10/1/15) The furloughs were proposed for eleven days, but because Navy was able to come up with savings elsewhere, the actual furlough was for six days.

Employees of the Naval Surface Warfare Center Dahlgren Division appealed, arguing that since their operation is a capital fund activity that is funded by fees charged to other agencies for their services, sequestration was improperly applied to Dahlgren. Therefore their furloughs were inappropriate and should be set aside. (Opinion p. 3)….

This decision probably closes the door to the numerous furlough appeals brought about by the sequestration that was triggered in 2013.

While other cases have been decided, the Harrow case is still hanging around. The issue before the Supreme Court is narrow. Any decision issued will likely be decided within narrow confines. The case will likely address jurisdiction only. Anyone hoping for a change in the 2013 furlough actions will likely be disappointed.

Why Would The Supreme Court Take This Case?

Perhaps the Supreme Court wanted to address a specific issue through this case. It would not be surprising to see a decision come out later this year that addresses the jurisdictional issue that sets the parameters for future cases.

Some may recall a 1983 Supreme Court case involving a federal employee appealing an adverse action. That case, Bush v. Lucas, involved a NASA engineer who sued the Director of the Marshall Space Flight Center in his personal capacity after the NASA Center had taken an adverse action against the engineer.

The acceptance of the case by the Supreme Court was a surprise to many. The Court ruled on a broader issue and upheld the Congressional system of appeals for federal employees.

Thus, we do not decide whether or not it would be good policy to permit a federal employee to recover damages from a supervisor who has improperly disciplined him for exercising his First Amendment rights. As we did in Standard Oil, we decline “to create a new substantive legal liability without legislative aid and as at the common law,” 332 U. S., at 302, because we are convinced that Congress is in a better position to decide whether or not the public interest would be served by creating it.

Bush v. Lucas, 462 US 367 – Supreme Court 1983

It will be interesting to see if the Supreme Court uses the Holloway case to address some broader issues as it did in Bush v. Lucas.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47