Stuart R. Harrow v. Department of Defense

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
STUART R. HARROW,
Petitioner
v.
DEPARTMENT OF DEFENSE,
Respondent
______________________
2022-2254
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0752-13-3305-I-1.
______________________
Decided: June 18, 2026
______________________
K YLA JENNY G IBBONEY , Berger Montague PC, San
Francisco, CA, argued for petitioner. Also represented by
JOSHUA P. D AVIS .
G ALINA I. FOMENKOVA, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent. Also represent-
ed by PATRICIA M. MCCARTHY, BRETT SHUMATE , FRANKLIN
E. WHITE, JR.
______________________
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HARROW v. DEFENSE 2
Before LOURIE, BRYSON , and CHEN , Circuit Judges.
BRYSON , Circuit Judge.
Stuart Harrow petitions for review of a decision by the
Merit Systems Protection Board affirming his six-day
furlough from his civilian position with the Department of
Defense. The Board issued a final decision in 2022, but
we dismissed Mr. Harrow’s appeal to this court for lack of
jurisdiction because he missed the 60-day deadline to
appeal. See 5 U.S.C. § 7703(b)(1). The Supreme Court
later held the filing deadline in section 7703(b)(1) to be
non-jurisdictional and remanded the case to this court for
further proceedings. Harrow v. Dep’t of Def., 601 U.S.
480, 489 (2024). In this remand proceeding, we assume
that Mr. Harrow is entitled to equitable tolling of the
filing deadline, and we address the merits of his claim.
On the merits, Mr. Harrow fails to persuade us that the
Board committed error in upholding the agency’s furlough
decision.
I
This case began thirteen years ago when a sequestra-
tion of funds required by the Balanced Budget and Emer-
gency Deficit Control Act led to the furlough of eighty-five
percent of the civilian employees of the Department of
Defense. App’x 2 (“Final Decision”), 16 (“Initial Deci-
sion”). Mr. Harrow was one of the employees subject to
the furlough. When Mr. Harrow received notice of his
proposed furlough, he requested an exemption because
the furlough “would pose an undue financial hardship
upon myself and family.” Id. at 16–17 (citation omitted).
After reviewing Mr. Harrow’s request, the deciding official
denied his requested exception. Id. at 35–37. Mr. Harrow
appealed his furlough to the Board. Id. at 17–18.
In an Initial Decision in July 2016, a Board adminis-
trative judge found that the furlough had a “factual basis”
and “that it promoted the efficiency of the service.” App’x
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HARROW v. DEFENSE 3
25. While acknowledging the “regrettable financial
hardship” to Mr. Harrow, the administrative judge none-
theless found that “the agency demonstrated that fur-
loughing the appellant promoted the efficiency of the
service because it represented a reasonable management
solution to the financial restrictions confronting it during
the second half of Fiscal Year 2013.” App’x 23 (citation
omitted).
Mr. Harrow petitioned for full Board review of the In-
itial Decision. The Board, however, lacked a quorum at
that time and for the next five years, which made it
impossible for the Board to act on Mr. Harrow’s petition.
Harrow, 601 U.S. at 482. When the Board entered a
Final Decision on May 11, 2022, it affirmed the adminis-
trative judge’s Initial Decision and denied Mr. Harrow’s
petition for review. Harrow v. Dep’t of Def., No. PH-0752-
13-3305-I-1, 2022 WL 1495611 (M.S.P.B. May 11, 2022).
While Mr. Harrow’s petition was pending before the
Board, Mr. Harrow’s work email address changed, but Mr.
Harrow failed to advise the Board of his new email ad-
dress. As a result, Mr. Harrow explains that he did not
become aware of the Board’s final decision until August
30, 2022, after the expiration of the 60-day deadline to file
a petition for review with this court. Mr. Harrow filed a
petition for review on September 16, 2022. We denied his
petition because, under our precedent at that time, we
considered the deadline to be a “jurisdictional require-
ment and ‘not subject to equitable tolling.’” Harrow v.
Dep’t of Def., No. 2022-2254, 2023 WL 1987934, at *1
(Fed. Cir. Feb. 14, 2023) (citing Fedora v. Merit Sys. Prot.
Bd., 848 F.3d 1013, 1016 (Fed. Cir. 2017)).
Mr. Harrow then filed a petition for a writ of certiora-
ri from the Supreme Court. The Court granted the peti-
tion and reversed this court’s decision. In so doing, the
Court held that the 60-day deadline to appeal a Board
decision is non-jurisdictional. Harrow, 601 U.S. at 489.
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HARROW v. DEFENSE 4
The Court noted that “nonjurisdictional [timing rules] are
presumptively subject to equitable tolling,” and it re-
manded the case to this court to determine whether
equitable tolling is available for petitions filed after the
deadline in section 7703(b)(1) and, if so, whether Mr.
Harrow has shown an entitlement to equitable tolling on
the facts of his case. Id. at 489–90 (quoting Boechler P.C.
v. Comm’r, 596 U.S. 199, 209 (2022)) (alteration in origi-
nal).
II
In reviewing a decision of the Merit Systems Protec-
tion Board, we “hold unlawful and set aside any agency
action, findings, or conclusions found to be-- (1) arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed;
or (3) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c).
We review the Board’s “determinations of law for cor-
rectness without deference” and “findings of fact for
substantial evidence.” Brenner v. Dep’t of Veterans Affs.,
990 F.3d 1313, 1322 (Fed. Cir. 2021) (citations omitted).
In challenging a Board decision, the petitioner has “the
burden of establishing error.” Id. (citations omitted).
III
A
At the outset, we are presented with the question
whether the non-jurisdictional 60-day deadline for filing a
petition under section 7703(b)(1)(A) is subject to equitable
tolling and, if so, whether Mr. Harrow’s failure to meet
that deadline may be excused. Because the time limit in
section 7703(b)(1)(A) has been held to be non-
jurisdictional, we are free to exercise our discretion to
assume, for purposes of this case, that the 60-day dead-
line is not mandatory and that Mr. Harrow has shown
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HARROW v. DEFENSE 5
that he is entitled to the benefits of equitable tolling.
Rather than pausing over those procedural issues, we
address the merits of Mr. Harrow’s challenge to the
furlough in his case.1
On the merits, Mr. Harrow argues that neither the
agency nor the Board applied the “efficiency of the ser-
vice” standard required by 5 U.S.C. § 7513(a). Pet’r Br.
30. Under section 7513(a), an agency may take certain
actions regarding an employee “only for such cause as will
promote the efficiency of the service.” That provision
applies to “a furlough of 30 days or less,” among other
actions. 5 U.S.C. § 7512. Mr. Harrow argues that “his
furlough decreased the Department’s efficiency in terms of
money and time spent.” Pet’r Br. 30. As a result, he
contends that his furlough did not serve “the efficiency of
the service.” See id. at 29–31.
1 In the two years since the Supreme Court’s deci-
sion in Harrow, we have frequently exercised our discre-
tion to assume, without deciding, that equitable tolling is
available to such petitioners, and we have addressed the
merits of the petitioners’ claims. See Carroll-Harris v.
Dep’t of Veterans Affs., No. 2024-2213, 2026 WL 1256148,
at *2 (Fed. Cir. May 7, 2026); Rose v. Dep’t of the Air
Force, No. 2025-1120, 2025 WL 2554576, at *2 n.3 (Fed.
Cir. Sept. 5, 2025); Nance v. Off. of Pers. Mgmt., No. 2024-
1827, 2025 WL 400218, at *2 (Fed. Cir. Feb. 5, 2025); Lee
v. Dep’t of the Army, No. 2024-2096, 2025 WL 227554, at
*1 (Fed. Cir. Jan. 17, 2025); Aguirre v. Dep’t of Defense,
No. 2024-1349, 2024 WL 4562878, at *2 (Fed. Cir. Oct. 24,
2024); Sanders v. Merit Sys. Prot. Bd., No. 2023-2243,
2024 WL 4131859, at *2 (Fed. Cir. Sept. 10, 2024); Long v.
Dep’t of Veterans Affs., No. 2023-2406, 2024 WL 3770715,
at *1 (Fed. Cir. Aug. 13, 2024); Murphy v. Off. of Pers.
Mgmt., No. 2023-2019, 2024 WL 3617025, at *2 (Fed. Cir.
Aug. 1, 2024).
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HARROW v. DEFENSE 6
The government responds that what Mr. Harrow is
“actually disputing is what ‘efficiency of the service’
means in the context of a furlough action.” Resp’t Br. 25.
Mr. Harrow’s argument is that his furlough did not pro-
mote the efficiency of the service because his inability to
provide cost savings while he was furloughed would
disserve the agency’s mission. Id. at 30. The sequestra-
tion, however, required the Department of Defense to
balance its priorities and, as Mr. Harrow’s proposed
furlough notice explained, the Department concluded that
the furlough of civilian employees within the Department
was necessary to “protect wartime operations funding for
our troops in harm’s way.” App’x 32.
In the Initial Decision, the administrative judge found
that “the agency demonstrated that furloughing the
appellant promoted the efficiency of the service because it
represented a reasonable management solution to the
financial restrictions confronting it during the second half
of Fiscal Year 2013.” App’x 23. In its Final Decision, the
Board denied Mr. Harrow’s petition for review and af-
firmed the Initial Decision, holding that the Initial Deci-
sion applied the correct standard for reviewing furlough
cases such as this one. Id. at 2, 7–8.
B
Mr. Harrow’s case is indistinguishable from this
court’s decision in Einboden v. Dep’t of the Navy, 802 F.3d
1321, 1323 (Fed. Cir. 2015). In that case, Mr. Einboden, a
civilian employee of the Navy, was subject to the same
2013 furlough resulting from sequestration as Mr. Har-
row. Mr. Einboden appealed his six-day furlough to the
Merit Systems Protection Board, and after the Board
upheld his furlough, he petitioned this court for review.
Id. at 1323–24. We agreed with the Board that the re-
quirement of section 7513(a) to “promote the efficiency of
the service” was met by “a reasonable management solu-
tion to the financial restrictions placed on the agency” in
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HARROW v. DEFENSE 7
which the “agency determine[d] which employees to
furlough in a fair and even manner.” Id. at 1325 (citation
omitted). In affirming the Board’s decision, we also
underscored that “[i]t is not our role to second guess
agency decisions as to how to prioritize funding when
faced with a budget shortfall.” Id. at 1325 (citing Berlin v.
Dep’t of Labor, 772 F.3d 802, 894–95 (Fed. Cir. 2014)).
“Management decisions as to which individual employees
to furlough in the face of budget shortfalls are within the
sound discretion of agency officials.” Id. at 1326.
We see no reason to depart from Einboden. Mr. Har-
row argues that “Einboden is no longer good law” because
its holding rests on the deference afforded to agency
interpretations of statutes prior to the Supreme Court’s
decision in Loper Bright Enterprises v. Raimondo, 603
U.S. 369 (2024). Reply Br. 23. Mr. Harrow’s argument is
that the Einboden decision cited this court’s decision in
Berlin, which in turn cited Chevron, U.S.A., Inc. v. Natu-
ral Resources Defense Council, Inc., 467 U.S. 837 (1984),
which was overruled in Loper Bright. But the Einboden
decision was supported by a different rationale and did
not rest, directly or indirectly, on Chevron.
Loper Bright stands for the proposition that the inter-
pretation of statutes is primarily the responsibility of
courts and that courts should not defer to agency inter-
pretations of ambiguous statutes simply because the
agency interpretations are permissible. See 603 U.S. at
400. In this case, however, this court in Einboden inter-
preted the “efficiency of the service” requirement in
section 7513 to give agencies broad latitude in making
furlough decisions based on financial constraints. This is
not a case of abdication of judicial responsibility. Instead,
it reflects the court’s understanding of Congress’s intent
to leave such decisions principally to the agencies faced
with the need to make difficult policy decisions in allocat-
ing appropriated funds. See Loper Bright, 603 U.S. at 394
(“In a case involving an agency, of course, the statute’s
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HARROW v. DEFENSE 8
meaning may well be that the agency is authorized to
exercise a degree of discretion.”).
Prior to this court’s decision in Einboden, the Board in
Chandler v. Department of the Treasury, 120 M.S.P.R. 163
(2013), employed the same analysis of the “efficiency of
the service” requirement in a different furlough case
related to sequestration. The Board held that “[a]n agen-
cy need not show that its furlough-related decisions were
the best decisions.” Id. at 175. Indeed, an agency need
only show that “the furlough was a reasonable manage-
ment solution to the financial restrictions placed on it and
that the agency applied its determination as to which
employees to furlough in a ‘fair and even manner.’” Id. at
171 (quoting Clark v. Off. of Pers. Mgmt., 24 M.S.P.R. 224,
225 (1984)). In other words, “the agency is required to
treat similar employees similarly and to justify any
deviations with legitimate management reasons.” Id.
(citation omitted).
Mr. Harrow does not allege that he was treated differ-
ently from similarly situated employees. Thus, in light of
Einboden and Chandler, the Department only needed to
show that the furlough imposed by the Department on
most of its civilian employees was a “reasonable manage-
ment solution” to the fiscal shortfall that faced the De-
partment due to the sequestration.
C
Mr. Harrow argues that this court’s decision in Ein-
boden and the Board’s decision in Chandler failed to apply
the statutory requirement that a furlough of less than 30
days be supported by a showing that the action is taken
“for such cause as will promote the efficiency of the ser-
vice.” 5 U.S.C. § 7513(a)(1); see Pet’r Br. 38–40. Specifi-
cally, Mr. Harrow argues that the Department did not
satisfy that standard because “the record evidence shows
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HARROW v. DEFENSE 9
that the furlough in general, and Mr. Harrow’s furlough
in particular, was inefficient.” Pet’r Br. 40–41.2
Contrary to Mr. Harrow’s contention, we find that
substantial evidence supports the administrative judge’s
finding that there was a “factual basis for the furlough
and that it promoted the efficiency of the service.” App’x
25. The administrative judge based that finding on
documentary evidence, including a furlough memoran-
dum by the Secretary of Defense containing “the reason-
ing that led [the Secretary] to this difficult decision,”
together with affidavits supporting that decision. Id. at
23, 299–309, 310–12, 320–21. As in Synder v. Dep’t of
Navy, 854 F.3d 1366, 1374 (Fed. Cir. 2017), we find that
evidence sufficient to support a finding by the Board that
the furlough in Mr. Harrow’s case was a “reasonable
management solution.”
Section 7513(a) does not impose an affirmative re-
quirement on the Department to justify the decision to
furlough Mr. Harrow (or any other particular employee)
on an individual basis in order to satisfy the “efficiency of
2 As support for his position, Mr. Harrow points to
the exclusion of reductions-in-force and furloughs of more
than thirty days in section 7512 from the “efficiency of the
service” requirement of section 7513(a). Pet’r Br. 38–39;
see 5 U.S.C. § 7512 (5), (B). While Congress’s reason for
including short furloughs (but not long furloughs or
reductions-in-force) under section 7512 is unclear, there is
no basis for inferring that the proof of the “efficiency of
the service” that must be demonstrated in the case of a
furlough of numerous agency employees for fiscal reasons
must be of the same character as the proof of the “efficien-
cy of the service” that is required to justify the kinds of
individualized actions that are covered by section 7513(a),
i.e., removal, suspension, a reduction in grade, and a
reduction in pay. See 5 U.S.C. § 7512 (1)–(5).
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HARROW v. DEFENSE 10
the service” standard. Aside from instances of disparate
treatment of similarly situated individuals, the decisions
in Einboden and Chandler recognize that it would be
impracticable, if not impossible, to weigh the relative
“efficiency of the service” associated with the contribu-
tions of each individual employee in determining which
employees to furlough. See also Nat’l Fed’n of Fed. Emps.,
Loc. 1442 v. Dep’t of the Army, 810 F.3d 1272, 1280 (Fed.
Cir. 2015) (When faced with sequestration, “it was rea-
sonable for DOD to consider its budget situation holisti-
cally,” rather than isolating the situation of each
individual component. (citation omitted)).3
Nor would it be appropriate for the Board (or this
court) to substitute its judgment for that of the agency.
The Board acknowledged in Chandler that “[t]here are
many ways in which agency management could have
structured the furlough, and it is not the Board’s place to
select from among them.” 120 M.S.P.R. at 179. The
Department’s decision to furlough Mr. Harrow was direct-
ly related to its war-fighting mission in light of the lim-
ited funding available because of the sequestration. See
App’x 32 (Notice of Proposed Furlough) (“DoD will need
funding in other accounts that can be used to provide the
warfighters with what they need to protect national
security and fight this war.”). There was therefore no
3 Presumably most, if not all, agency employees
could show that furloughing them would be disadvanta-
geous to the agency as compared to having their services
during the furlough period. But in a case in which fur-
loughs are mandated by fiscal constraints such as seques-
tration, measures that “promote the efficiency of the
service” may be suboptimal choices that are the least
damaging to the agency’s mission. In such situations, the
agency cannot be required to show that it would be better
off without the employee than with him.
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HARROW v. DEFENSE 11
error in the Board’s decision that the furlough was a
“reasonable management solution.” App’x 2 (Final Deci-
sion), 23 (Initial Decision).
IV
“We give wide berth to agency decisions as to what
type of adverse action is necessary to ‘promote the effi-
ciency of the service,’ provided that the agency’s decision
bears some nexus to the reason for the adverse action.”
Einboden, 802 F.3d at 1325–26 (citation omitted). We
uphold the Board’s findings that Mr. Harrow was treated
in a “fair and even manner,” and that the Department’s
decision to furlough him when facing the budget con-
straints of sequestration represented a “reasonable man-
agement solution.” Id. at 1325. Under those
circumstances, we will not second-guess the Department’s
furlough decision.
AFFIRMED
COSTS
No costs.
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