Is the Statutory 60-Day Deadline for Filing a Petition for Review of a Final MSPB Order Jurisdictional?

Abstract

Case at a Glance: The Department of Defense (DOD) furloughed employee Stuart R. Harrow in 2013. Harrow timely challenged DOD’s decision before an administrative judge, who affirmed it. Harrow timely appealed the judge’s decision to the Merit System Protection Board (MSPB or “Board”), which could not act on the appeal for over five years because it lacked a quorum. On May 11, 2022, the MSPB issued a final order, affirming the judge’s decision. However, Harrow did not learn of the decision until August 30. Harrow promptly filed a petition to review the Board’s order with the Federal Circuit, which denied the petition on grounds that Harrow missed the statutory 60-day filing deadline. This case presents the question of whether the statute’s filing deadline is jurisdictional and therefore not subject to equitable tolling.

Keywords: employment law, SCOTUS, Department of Defense, DOD, furlough, Merit System Protection Board, MSPB

JEL Classification: K00, K10