UC San Francisco Litigation Center Makes Supreme Court Debut

The University of California College of Law San Francisco’s litigation center typically works to educate courts, not argue before them.

But on Monday, it’ll represent a longtime Defense Department employee at the US Supreme Court in his fight against a 60-day deadline to challenge in federal court the agency’s decision to furlough him for six days in 2013. The case is being closely watched for its potential to open or shut courtroom doors to federal workers fighting adverse employment actions.

Not only is the case the Center for Litigation and Courts’ first before the justices, it’ll also be argued by a newcomer. Joshua Davis, a research law professor at the center, will make his debut at the lectern. In addition to teaching, Davis is a shareholder at the plaintiff’s class action firm Berger Montague.

“Our mission is not to represent people,” said center Director Scott Dodson. “Instead it’s to educate courts, which we tend to think is best done in a non-representative, nonpartisan informational way through amicus briefs.”

Stuart Harrow’s case is a rare exception.

“This was a special instance in which Mr. Harrow’s case directly implicated an area of core expertise that the center has,” Dodson said. “No one else was representing Mr. Harrow or willing to represent Mr. Harrow.”

In fact, it was Harrow who found Dodson.

Founded in 2021, the litigation and courts center is focused on all aspects of civil litigation and court operations, and Dodson is an expert on what makes a statute limit a court’s authority.

Wrong Email

Harrow had been representing himself through the administrative proceedings. That process started after he asked an administrative law judge for an exemption due to financial hardship from the DOD-wide furlough, which suspended him for six days without pay. He was denied and then lost his appeal before the US Merit Systems Protection Board (MSPB).

On appeal, the US Court of Appeals for the Federal Circuit tossed his case because it said he had missed the 60-day filing deadline to appeal the MSPB’s decision.

Harrow said his email address had changed and it was no longer the one the MSPB had on file, so he didn’t get notice of the MSPB’s decision in time. He argues there’s no clear statement in the Civil Service Reform Act limiting the Federal Circuit’s authority to only hear appeals filed within the 60-day deadline.

“There’s no precedent for the Supreme Court holding deadlines like this to be jurisdictional,” Dodson said.

The government argues the text of the law, the Supreme Court’s precedent, and history all make clear the Federal Circuit’s authority doesn’t extend to appeals filed outside the 60-day time limit.

For the past 40 years, the Federal Circuit has recognized the time limit on its authority to hear such cases, and Congress has repeatedly re-enacted or amended the statute to leave that intact, the Justice Department told the court in a reply brief.

“There is no sound basis for undoing that status now,” said the Justice Department, which noted Harrow filed his appeal to the Federal Circuit 128 days after the MSPB’s decision was final.

Union Optimism

If the court rules against Harrow, Dodson said his case will be over and will hurt other people in similar positions, many of whom are representing themselves.

“A loss here would really throw the court’s jurisdictionality jurisprudence into some disarray,” Dodson said.

The National Treasury Employees Union (NTEU) is optimistic that won’t happen.

“If the court wanted to shut the door on federal employees, it could have left the lower decision to stand and it chose to accept it, so we’re optimistic as to why the court’s doing that,” said Allie Giles, assistant counsel at the NTEU. The group filed a brief backing Harrow.

The court in 2018 refused to hear a similar challenge to the 60-day deadline in Fedora v. MSPB.

“Hopefully, conservative and liberal justices are going to take an open view of these deadlines when Congress is not clear that they mean for it to be jurisdictional,” she said.

NTEU represents federal employees in 35 departments and agencies, including the Health and Human Services Department, the EPA, and DOD.

Depending on how broadly the court rules, Giles said the case could impact other laws that aren’t clear.

“It is possible the court is maybe looking to expand deadlines in other statutes,” she said.

The case is Harrow v. Dep’t of Defense. , U.S., No. 23-21, arguments 3/25/24.