Six-Day Furlough of Defense Department Employee Leads to Unanimous Supreme Court Decision

The Supreme Court issued a unanimous decision in an unusual situation involving a federal employee’s appeal case.

The case is Harrow v Department of Defense (U.S.S.C. No. 23-21, May 16, 2024).

Stuart Harrow was a long-term Defense employee when he was furloughed from work for six days in 2013. He objected and timely took his case, as was his right, to the Merit Systems Protection Board (MSPB). This is the agency responsible for deciding federal employment disputes, such as removals, suspensions, demotions, and furloughs.

Several months later in 2016 the MSPB judge, calling the furlough “‘regrettable’” but not “‘improper,’” upheld Mr. Harrow’s six-day furlough. Again as was his right, Mr. Harrow appealed this initial decision to the full Board.

Along with many other cases, the 3-person Board ceased to have a quorum (from 2017 until 2022) and could not rule on pending cases, including Mr. Harrow’s. When the quorum finally arrived with appointment of a new member of the Board, the MSPB affirmed the law judge’s initial decision and it became the final Board decision.

Meanwhile, back at his agency, Harrow’s email had changed and the Board decision was sent to a long-defunct email that was no longer forwarding mail to him. He claimed that he never got that notice of decision.

On his own he searched the Board’s website a few months after the fact and discovered the decision had been issued. The notice spelled out the 60-day deadline for him to petition the appeals court under the civil service law.

Needless to say he missed the deadline, filing his appeal some six months after the decision had issued. Harrow asked the court to excuse the delay, explaining what had caused it. 

The appeals court “believed it had an absolute obligation to dismiss his appeal,…” the the 60-day deadline in the law was jurisdictional and “not subject to equitable tolling.” (Opinion p. 2)

To the surprise of many practitioners, the U.S. Supreme Court agreed to hear Mr. Harrow’s petition for certiorari. It has now reached a unanimous decision in an opinion written by Justice Kagan and issued on May 16, 2024. The issue is simple: is the 60-day deadline to appeal a MSPB decision jurisdictional? 

As Justice Kagan writes, “We hold that it is not.” The judgment of the appeals court has been vacated and the case has been remanded for further consideration. As Justice Kagan writes, “We therefore leave the matter (including any waiver issues involved) to the Federal Circuit on remand. And if that court finds equitable tolling available, it should decide whether, on the facts here, Harrow is entitled to that relief.” (P. 9)

This case has important implications for federal employee appeals. The 60-day limit has long been treated as jurisdictional with no exceptions allowed. This important case for the federal community now means that a good, well argued and explained excuse for missing this deadline could lead the appeals court to excuse the filing delay.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.