An employee email had changed and he did not learn of a decision until after a deadline for appeal had passed. Image: Valery Evlakhov/Shutterstock.com
By: FEDweek StaffIn a rare instance of the U.S. Supreme Court agreeing to hear a case involving legal protections for federal employees, the high court has accepted an appeal focusing on the deadline for employees to challenge MSPB rulings against them to the Federal Circuit appeals court.
At issue in Harrow v. Department of Defense, No. 23-21, is a section of law stating that “any petition for review shall be filed within 60 days after the Board issues notice of the final order or decision of the Board.” The question is whether that deadline absolutely must be met in order for the appeals court to even have jurisdiction to hear the case, or whether missing the deadline can be excused if a good reason is shown, allowing the case to be heard.
The Federal Circuit had cited its interpretation of that language as setting an absolute deadline in refusing to hear a DoD employee’s challenge to the department’s refusal to grant his request for a waiver, on financial hardship grounds, from furloughs triggered by the “sequestration” budget limits in 2013. An MSPB hearing officer ruled in favor of DoD but before the three-member merit board could consider the employee’s appeal of that ruling, the board lost its quorum and was unable to issue decisions for five years.
After the board quorum was restored early last year it upheld the hearing officer in an order that included a notice of the filing deadline. But in the meantime the employee’s email had changed and he did not learn of that decision until after the deadline had passed. The Federal Circuit then rejected his appeal on jurisdictional grounds, without considering the merits of the case.
In asking the Supreme Court to order the Federal Circuit to allow flexibility in that deadline, the employee argued that courts have allowed flexibility in meeting the deadline of another section of federal employment law that uses similar language. That section relates to cases involving both alleged violations of federal employment rights and protections against discrimination, which can be brought before federal district courts.
The Justice Department had urged the high court to reject the case, arguing that those two sections of law are distinct and that every court that has considered the section at issue has agreed with the Federal Circuit’s interpretation. It also noted that Congress changed that section in 2012 in a way that made the deadline stricter—by starting the measuring period from when MSPB issues a ruling rather than when the individual receives it—and in the process “did nothing to alter the long-established jurisdictional nature of the deadline.”
The Supreme Court has not set a date for hearing oral arguments in the case.
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