In 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...
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