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Supreme Court Revives Federal Furlough Challenge

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Courts will be more lenient with plaintiffs who miss deadlines to appeal decisions due to reasons beyond their control following a May 16 U.S. Supreme Court decision reviving a federal employee’s challenge of a six-day furlough. Courts must weigh considerations of fairness and not automatically block claims that miss appellate filing deadlines, unless Congress makes clear that the deadlines are jurisdictional. Congress had not done so with the statutes at issue in this case, the Supreme Court ruled.

The case began in 2013, when Stuart Harrow, a longtime employee of the U.S. Department of Defense, filed a claim with the Merit Systems Protection Board objecting to a six-day furlough. The board, which adjudicates federal employment disputes, referred the case to an administrative judge for an initial decision. In 2016, the judge upheld the furlough, finding it “regrettable” but not improper.

Harrow sought review of that conclusion before the full board. But in early 2017—with Harrow’s action still pending—the board lost its quorum and thus its ability to resolve cases. It was not until May 2022 that the board, with a quorum finally restored, affirmed the administrative judge’s decision.

The long delay led to Harrow missing the deadline to petition for review in the Federal Circuit within 60 days of the board’s final order. Harrow did not submit his petition until September 2022—more than 120 days after the board’s order was issued.

Harrow’s reason for his lateness was that during the long wait for the decision, his work email address changed and the old address had stopped forwarding to the new one. So, when the board sent notice of its order to the email address it had on file, Harrow never got the message. He learned of the decision only after he did a search of the board’s website after the 60-day period had run. Given the extenuating circumstances, he urged the Federal Circuit to overlook his petition’s untimeliness.

The appeals court ruled that it had an absolute obligation to dismiss his appeal, declining his request for equitable consideration. The lower court reasoned that the 60-day statutory deadline for appealing is a jurisdictional requirement and not subject to exceptions due to equitable considerations. Harrow’s situation might be “sympathetic,” the appeals court stated, but it ruled that this was irrelevant. Given the deadline’s jurisdictional nature, the lower court determined it lacked the capacity to “excuse a failure to timely file based on individual circumstances.”

In a unanimous decision written by Justice Elena Kagan, the Supreme Court vacated and remanded the case for further proceedings.

The 60-day deadline is not jurisdictional, the court determined in Harrow v. Department of Defense.

“The procedural requirements that Congress enacts to govern the litigation process are only occasionally as strict as they seem,” the court stated. “Congress legislates against the backdrop of judicial doctrines creating exceptions and typically expects those doctrines to apply.” 

A court may be able to excuse a party’s noncompliance for equitable reasons, it determined. “This court will treat a procedural requirement as jurisdictional only if Congress clearly states that it is,” the court stated. “Our demand for a clear statement erects a high bar.”

Even if the 60-day limit is nonjurisdictional, the government argued that the 60-day limit would apply and would not be subject to “equitable tolling.” Noting that the government might have waived this argument by not raising it earlier, the court remanded the case for this matter to be decided.

We’ve gathered articles on the news from SHRM Online and other outlets.

Board Restores Quorum

From January 2017 to March 2022, the three-member Merit Systems Protection Board did not have a quorum of members and could not vote on any petitions for review. The quorum was restored on March 4, 2022, when Raymond Limon and Tristan Leavitt were sworn in. Acting Chairman Cathy Harris was sworn in on June 1, 2022. Leavitt left the board after his term expired on Feb. 28, 2023, so the board currently has a quorum of two members.


Backlog Almost Eliminated

When the board’s quorum was restored two years ago, it faced a backlog of approximately 3,800 appeals cases. The board is coming close to eliminating the backlog.

(Federal News Network)

Government Shutdowns

When the federal government shuts down because of budget battles, many federal employees and federal contractors are furloughed, meaning they must stop work and will not be eligible for pay or certain benefits. Active-duty military staff work through shutdowns without pay, as do many civilian employees at the Department of Defense. Furloughed employees receive retroactive pay after the federal government reopens.

(SHRM Online)


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