[23-21] Harrow v. Department of Defense

Harrow v. Department of Defense

Justia · Docket · oyez.org

Argued on Mar 25, 2024.

Petitioner: Stuart R. Harrow.
Respondent: Department of Defense.

Advocates:

• Joshua P. Davis (for the Petitioner)
• Aimee W. Brown (for the Respondent)

Facts of the case (from oyez.org)

Stuart R. Harrow was a federal employee who was furloughed in 2013. He appealed the furlough decision to the Merit Systems Protection Board (MSPB), but due to short staffing, the MSPB did not rule on Harrow’s appeal for more than five years, during which Harrow changed his email address. On May 11, 2022, the MSPB affirmed the agency’s furlough action and attempted to inform Harrow that he had 60 days to seek judicial review. However, because he had changed email addresses, Harrow did not learn of the MSPB’s denial until after 60 days had elapsed. On September 8, 2022, Harrow moved the Board for an extension of time to appeal, but the Board denied the motion for lack of jurisdiction. The U.S. Court of Appeals for the Federal Circuit affirmed the denial, holding that the timely filing of a petition from the Board's final decision is a jurisdictional requirement and “not subject to equitable tolling.”

Question

Is the 60-day filing deadline in 5 U.S.C. § 7703(b)(1)(A) jurisdictional and thus not subject to equitable tolling?