[00:00:00] Speaker 03:
Our first case this morning is Stuart Harrow versus the Department of Defense, 2022-2254. Ms. Giboney. Good morning, Your Honors, and may it please the Court.

[00:00:18] Speaker 01:
Kyla Giboney from Berger Montague on behalf of Petitioner Stuart Harrow, who is with us in the Court today.

[00:00:26] Speaker 01:
In its unanimous decision in this case, the Supreme Court held that Section 7703B1A's 60-day deadline is not jurisdictional, but an ordinary claim processing rule. Like other claim processing rules, it is presumptively subject to equitable tolling, and a party seeking to overcome that presumption, like the department here, must contend with a high bar.

[00:00:56] Speaker 01:
The court also recounted the extraordinary circumstances surrounding Mr. Harrow's case.

[00:01:03] Speaker 03:
The five-year delay in the... The mistake was his, right?

[00:01:07] Speaker 03:
It wasn't a governmental mistake. It was his mistake. The... And why is... Therefore, why does equitable tolling apply? Why?

[00:01:18] Speaker 01:
So, Your Honor, in these extraordinary circumstances of the Board losing a quorum for five years and Mr. Harrow not receiving the decision for seven... But that's because we didn't update his e-mail. Yes, Your Honor. Yes, and Mr. Harrow should have updated his e-mail with the e-filing system for the Board. We do not argue that. And had he done so, he would not be seeking...

[00:01:49] Speaker 01:
asking this court in equity to toll the deadline. But we do think that based on the extraordinary circumstances here, that even with that mistake, he should be entitled to tolling.

[00:02:04] Speaker 04:
What about our OHA decision? I mean, if I were to read that decision as holding two separate grounds for demanding that this timing deadline be mandatory and not subject to equitable tolling, then we would have to go and bonk to reverse that second part of OHA, which relied on the federal rules of appellate procedure.

[00:02:36] Speaker 04:
Is that right?

[00:02:39] Speaker 01:
We do not believe that this court is bound by what Your Honor refers to as the second holding in OHA, We think that that is dicta, and because the majority of this court in OHA made its decision based on Section 7703B1A's deadline being jurisdictional, citing to Lonzo, this court's earlier decision, that the language that the department cites is dicta, and that this court is not bound by it, and And to the extent that this court does believe that it would need to go and bonk to formally overrule OHA, we think that it would be appropriate for the court to do so in light of the Supreme Court's decision in this case.

[00:03:32] Speaker 02:
What do you think – assuming that we were to get to the merits – How would you distinguish the Einboden case, which seems to be one that gives very broad discretion to the agency with respect to the question of whether the efficiency of the government is served, particularly with respect to firmers?

[00:03:57] Speaker 01:
Yes, Your Honor. Thank you for that question. We believe that the Einboden decision that... The board did not faithfully apply this court's Einboden decision, and in particular, the three requirements that this court articulated in Einboden. And in order to meet the efficiency of the service standard in the furlough context, which is that there is a cause for the furlough, sort of a trigger, which in this case is the budgetary deficit that the department... But that's clearly satisfied here, right?

[00:04:31] Speaker 01:
Yes, yes. Okay. And then we think that there... But we do think that there is this second requirement, which is that the furloughing agency, the department here, show that its decision is a reasonable management decision. And this court in Einboden also referred to that as the nexus requirement, that there is this second requirement that, in this case, the board simply...

[00:04:59] Speaker 01:
skipped that step.

[00:05:01] Speaker 02:
What would that step entail? I mean, there's a suggestion that Mr. Harrow was a particularly effective employee, saving the government a lot of money. Would that be a pertinent factor that should be considered? And if so...

[00:05:24] Speaker 02:
Are we in a position, or is, for that matter, the board in a position to start saying, well, Mr. Harrow was more effective than Mr. Jones or Mr. Bryson, and therefore he should not be furloughed, but one of them should instead? That strikes me, and I think the tone of Einboden was, that's the kind of inquiry that we really are not equipped to make.

[00:05:50] Speaker 01:
Yes, Your Honor. So we don't, first, we don't think that the court need decide today what exactly would satisfy the reasonable management decision requirement, because in this case, the board simply did not address it. It found no evidence to support it, and the and the department did not put forward any evidence that that requirement had been satisfied. And we don't necessarily think that it need be an individualized inquiry that goes... What kind of inquiry do you envision?

[00:06:22] Speaker 01:
Yes. So we think that the inquiry that it must, that the department or the furloughing agency needs to address efficiency. We think that is a critical part of the efficiency of the service standard that Congress intended to apply to 7513A.

[00:06:43] Speaker 01:
And so that could be something as simple as an indication that the department has considered whether it is going to apply an across-the-board furlough because that is the most efficient manner of... I guess it's undisputed that in this case, the decision was made not to furlough the military...

[00:07:04] Speaker 02:
but to furlough civilian employees. Now, why isn't that sufficient to get across the line of efficiency of the government, a judgment that the Department of Defense was entitled to make?

[00:07:18] Speaker 01:
So we don't think that that meets the department's burden here because it's not related to efficiency.

[00:07:26] Speaker 02:
And that is the term that... Well, their idea of efficiency is we should keep the military, which is the core function of the Department of Defense, in place, but not the civilian employees at the department. Why isn't that a form of determination of efficiency?

[00:07:43] Speaker 01:
So, Your Honor, that... It may be. The department did not put forward that argument. It did not submit evidence of that below. The board did not... in its decision did not look at that determination by the department in addressing the efficiency of the service standard. It simply said that it had the ALJ in the initial decision said, I have no doubt that the department continued to face a budget shortfall.

[00:08:16] Speaker 01:
Therefore, its decision to furlough petitioner Stuart Harrow was a reasonable management decision and met the efficiency of the service standard.

[00:08:26] Speaker 04:
I'm struggling still to understand what the level of inquiry is that you think is required for making a finding of a reasonable management solution.

[00:08:38] Speaker 04:
I thought your argument below was a very individual-based one for Mr. Harrow, how there are financial difficulties for him personally, how he personally provides uniquely, I suppose, some kind of value to the department.

[00:08:57] Speaker 04:
And for those reasons, he personally shouldn't be furloughed any number of days.

[00:09:03] Speaker 04:
You seem to not be advancing that today. And in response to Judge Bryson's question, I didn't quite hear exactly what is it that you're looking for, given that the idea of making a distinction between the the civilian, non-civilian people is not good enough for you.

[00:09:24] Speaker 01:
Yes, Renner. So we do not necessarily believe that an individual, you know, an employee-by-employee determination needs to be made. And we actually think that that is not – that the department attacked sort of a straw man in arguing that that was what Mr. Harrow's... So what's your proposal here, then? Our proposal would be that the department must come forward with, must stop and think about whether furloughing all of its employees across agencies...

[00:10:07] Speaker 01:
if that's the manner that it chooses to undertake the furlough, is reasonable in light of efficiency and that there must be some showing.

[00:10:16] Speaker 04:
But isn't there evidence here that the department was taking all kinds of measures before doing the furlough? I don't know, cutting back on travel and training and maybe cutting temporary employees, all other things before getting to the furlough step. Yeah.

[00:10:36] Speaker 04:
I mean, why isn't there, at least on this record, a clear logical sequence of trying to throw everything overboard before we get to the furloughs?

[00:10:46] Speaker 01:
Yes, Your Honor, we acknowledge that, and that is articulated in the record, but that goes to that first requirement, that there be a cause for the furlough, that after making those claims, that the Department continued to face a budget shortfall. We think that goes to the first requirement, but not the second, that the furloughs are a reasonable management decision.

[00:11:11] Speaker 01:
Thank you.

[00:11:12] Speaker 03:
You enter your rebuttal, and apparently you wish to save it.

[00:11:15] Speaker 01:
I do, yes. Thank you. Oh, yes, unless there are any further questions.

[00:11:18] Speaker 03:
Thank you. Ms. Bowman-Covert.

[00:11:37] Speaker 00:
Good morning, Your Honors. May it please the Court. I want to start with the timeliness issue. I think there's no dispute, obviously, that the appeal was filed not timely, and so the question is just whether or not equitable tolling is theoretically possible and been established on – the facts of Mr. Harrow's case.

[00:11:57] Speaker 02:
And then you also make an argument with respect to the mandatory nature of the filing requirement.

[00:12:03] Speaker 00:
Yes, exactly.

[00:12:05] Speaker 02:
Could you address the question that Judge Chen asked about the status of OHA?

[00:12:12] Speaker 00:
Yes, so I think OHA is still binding precedent in this court, and if the court wants to reverse it, it would require an en banc panel of the court to do so.

[00:12:20] Speaker 02:
Do you think that the language of at the end of the Harrow Supreme Court decision, tells us something about the state of play with respect to the mandatory requirement. Because they say that, at least to reinforce, I would think, is a fair way to put it, the notion that non-jurisdictional timing rules are presumptively subject to equitable talk.

[00:12:50] Speaker 02:
And that's the language they used. Does that not at least undercut what OHA had to say?

[00:12:58] Speaker 00:
I don't think so, Your Honor, because OHA acknowledged and responded to that very standard. So the OHA court sort of took Irwin, which is where sort of the origins of that presumption, and looked at whether or not that presumption has been rebutted in the context of 7703, concluded first that that deadline was mandatory.

[00:13:21] Speaker 02:
This is saying this presumption seems to be applied in this case. That language that I'm reading from at the end of the Harrow case doesn't seem to me, at least, to admit of a situation in which you can say, well, with respect to this kind of case, the mandatory argument is applicable.

[00:13:46] Speaker 00:
Well, so I think it's sort of the situation is that there is this presumption of tolling, and sometimes it can be rebutted, and where it's rebutted, then that becomes a mandatory deadline. And that's the analysis that the OHA court undertook, right?

[00:14:01] Speaker 02:
I'm confused now. Are you saying that the mandatory notion is just a subset and effect of equitable tolling, such that if you find that equitable tolling is not justified, that it's mandatory?

[00:14:19] Speaker 00:
No.

[00:14:19] Speaker 02:
That's what I took away from your last question.

[00:14:22] Speaker 00:
Sorry. So I think we used to have two categories of deadlines. They were mandatory and jurisdictional, or they were not jurisdictional and then not mandatory and open to tolling. I think in recent years, the Supreme Court has split that first category into two. And so now we have three categories of deadlines. We have jurisdictional, which are necessarily mandatory because they're jurisdictional. We have non-jurisdictional but still mandatory, and so no equitable tolling is possible no matter what the facts are.

[00:14:50] Speaker 02:
I guess the question, though, is with respect to that second category, does that still exist? What case from the Supreme Court actually recognizes and applies that second category?

[00:15:03] Speaker 00:
Sure. Most explicitly, that's the nutraceutical case at the Supreme Court that specifically recognizes the existence of a non-jurisdictional but mandatory and not subject to equitable tolling deadline.

[00:15:19] Speaker 02:
And I think it's also... Did the court in that case actually apply that doctrine?

[00:15:23] UNKNOWN:
Yeah.

[00:15:24] Speaker 00:
Yes. Nutraceutical, it was... And what was the nature of the...

[00:15:30] Speaker 02:
Was there a statute in that case?

[00:15:32] Speaker 00:
So it wasn't a statute. It was Rule 23F. It was in a class action, I think maybe interlocutory appeal context.

[00:15:42] Speaker 00:
But they held that that was a non-jurisdictional, because it's not in a statute, but nevertheless mandatory rule, and therefore that deadline was not subject to equitable tolling.

[00:15:52] Speaker 02:
Is there any statutory case in which the court has recognized mandatory as a category?

[00:16:00] Speaker 00:
So I think part of the issue is that HARO was the first time that the Supreme Court held that a Article III Court of Appeals deadline was not jurisdictional. And so obviously Rule 26 is a federal rule of appellate procedure, so we're only talking about Court of Appeals deadlines.

[00:16:21] Speaker 00:
And so I think we're sort of, the Supreme Court has not really had an occasion to think about that aspect of it. because the previous deadlines that it had found to be non-jurisdictional were just not in this context.

[00:16:34] Speaker 00:
But the OHA court did specifically consider whether, as it reflected, that Irwin and its progeny placed a general burden on Congress to avoid the presumption of equitable tolling, and that they think that Congress has satisfied that burden here.

[00:16:54] Speaker 02:
What would be the category of cases, if you could give me a description of the class of cases in which a timing requirement, which is deemed non-jurisdictional, is nonetheless mandatory? How would you describe that category of cases, as opposed to the other category of cases in which you skip from its being non-jurisdictional to saying that equitable tolling applies? Presumptive.

[00:17:20] Speaker 00:
Sure. So I think the best category of cases is the ones that are subject to Federal Rule of Appellate Procedure 26B2. So they would be notices of appeal or petitions to enjoin, set aside, suspend, modify, enforce, or otherwise review an order of an administrative agency, board, commission, or officer of the United States because the court is not allowed to extend the time to file those unless specifically authorized by law. So whether we talk about that as sort of flipping the presumption or rebutting the presumption, for these cases, the court may not extend the time to file unless there is a specific authorization specifically authorized by law.

[00:18:05] Speaker 00:
And then we look at 7703B1, and there is no such authorization.

[00:18:11] Speaker 04:
At most, OHASA, the part you're relying on, is an alternative holding, right?

[00:18:19] Speaker 04:
I'm trying to think through one reason of OHA is that primarily it was simply following this court's precedent in Monzo 7703B1 in its jurisdictional period and then we've got some other backup additional commentary we want to share with you about the nature of crap and how that also lends support to the idea that this is a mandatory deadline, not subject to deadline.

[00:18:51] Speaker 04:
And if that's the case, then maybe it's not truly binding.

[00:19:00] Speaker 00:
So I think part of... So Monzo was a pre-Irwin case, and Ohab was a post-Irwin case. And so I think part of the reason for the analysis was a question of, did the Supreme Court's decision in Irwin sort of change the posture on Monzo? But...

[00:19:20] Speaker 00:
I think even if it is sort of an alternative holding, I think even if they didn't need to sort of go through that analysis, they did go through that analysis, and it is a holding, and they held that it was mandatory, and then capped that off with it being jurisdictional.

[00:19:38] Speaker 00:
I think given the analysis that they did and given that they went through and made this conclusion, that that is part of the court's binding precedent. I think certainly the OHA court did not intend that to be dicta. They intended it to be an integral part of their holding in concluding that that deadline was mandatory.

[00:20:01] Speaker 00:
So the simplest resolution on the equitable tolling is that there is just no equitable tolling available for this deadline, sort of under any circumstances. I think there is sort of two other hurdles that Mr. Harrow has to clear here on the timeliness of his specific petition.

[00:20:20] Speaker 00:
One, of course, is the fact that Congress changed the statute and changed the trigger for running the clock to be from receiving the decision to the issuance of the decision. And his entire argument, sort of his basis for tolling here, is the delay in the receipt of the decision. And so if, sort of, I think by permitting tolling on that basis, that undermines the specific change that Congress made in the statute.

[00:20:50] Speaker 00:
And then second of all, Really, I think what we have here is an example of maybe excusable neglect, but certainly not extraordinary circumstances beyond Mr. Harrow's control.

[00:21:02] Speaker 04:
Could it be a case of detrimental reliance in the sense that the agency set up an automatic email forwarding system to benefit its employees when it changed email services from one thing to the next, and he in fact saw that he was getting his emails from the old account to the new account being automatically forwarded.

[00:21:27] Speaker 04:
And as far as I can tell from the record, there was no warning given to him that, okay, this automatic forwarding of emails is not going to last forever. It's going to end on date X. So beware of that. And if that's the case, then why isn't this a situation where if he was quite reasonable in relying on this automatic forwarding of email scheme?

[00:21:53] Speaker 00:
Well, one simple answer is that that's not the standard for equitable tolling. Equitable tolling requires extraordinary circumstances beyond Mr. Harrow's control, and it was certainly within his control to log into the MSPB system and update his email address to be the new email address. He was aware that his email address was changed. He knew that he had signed up for electronic service from the MSBB.

[00:22:16] Speaker 04:
I understand all that, but that doesn't get to my little theory of detrimental reliance.

[00:22:24] Speaker 00:
Well, I don't think there is a detrimental reliance sort of aspect to equitable tolling.

[00:22:35] Speaker 00:
So I think that's the simplest answer to that question. because whatever else, he certainly knew that his email address had changed, and the simpler and most prudent thing to do would be to update that in the court filing system where you knew that that's how, the only way that the board was going to contact you, and he certainly had years, I think, to do so before the decision came out.

[00:23:01] Speaker 02:
You say detrimental reliance has no role to play in equitable tolling. That struck me as a little harsh. I mean, suppose that He had called the board every couple of weeks to ask if a decision had been made, and he was told no, when in fact it had been made. You don't think that would be the basis for equitable tolling on the basis of detrimental reliance?

[00:23:28] Speaker 02:
You don't want to take a position as broad as detrimental reliance has nothing to do with equitable tolling, do you, really? No.

[00:23:36] Speaker 00:
I don't think I need to in this case, so I won't.

[00:23:38] Speaker 02:
I'm looking to whether you want to or not.

[00:23:41] Speaker 00:
But I think although even in that hypothetical, that would be, of course, the board is not the respondent in the case. So I don't know how that would play. But I think in this case, it's much simpler that even if the court gets to equitable tolling, these are circumstances that were both ordinary and plainly within Mr. Harrow's control and therefore cannot meet the standard for equitable tolling.

[00:24:05] Speaker 04:
Before you run out of time, could we get quickly to the merits of what does it mean to be a reasonable management solution? I guess what I'm wondering is when it comes to promoting the efficiency of service, why is it so that you can, the management, the agency can do this sort of categorical decision across the board that will apply to maybe thousands of people without looking at any other information on the other side?

[00:24:40] Speaker 00:
So I think I disagree with the not looking at any of the other information on the other side point, but to the first half of the question as to why it's categorical, and I think the best answer is because a furlough is, although an adverse action, is by definition non-disciplinary.

[00:24:58] Speaker 00:
So, it is not the case, you know, and therefore, in fact, Einboden talks about that it has to be applied in a fair and even manner, and I think that sort of necessarily implies some across-the-board support.

[00:25:13] Speaker 00:
And so in this case, the board did look at the underlying facts, and that's at Appendix Page 16 of the decision. And the testimony from then-Under Secretary Hale and also the memorandum from then-Secretary Hagel of all of the things that the department did first and the ways that they tried to address the budget shortfall. And that ultimately, when it came down to, they were faced with this decision of, do we further erode military readiness, or do we furlough the civilian population?

[00:25:54] Speaker 00:
concluded that sort of in that category of difficult and unpleasant choices, that sort of ultimately the department's primary mission was the military readiness.

[00:26:03] Speaker 04:
What would you say? Would you say there's some kind of administrative convenience rationale? Oh, we have to save this block of money, and so we're just going to furlough 10,000 people. Because it would be administratively inconvenient to look at each one of these 10,000 people?

[00:26:25] Speaker 00:
Well, I think more than that, it would be sort of less fair, right? The whole point of a furlough is that it is not a disciplinary action. There's nothing wrong with your work. And sort of all other things being equal, we would love to be able to do the military readiness and keep the civilian population. but all other things are not equal, and therefore, you know, do we prioritize the military readiness? But that means we have to take deeper cuts on the civilian side of our budget, and that's ultimately what is reflected in Secretary Hagel's memorandum, that that was the decision that he made.

[00:27:04] Speaker 00:
And that is a form of efficiency of the service overall.

[00:27:08] Speaker 03:
Counsel, I think you have to be furloughed, at least for purposes of this argument. Thank you very much.

[00:27:20] Speaker 03:
Palin has a little rebuttal time.

[00:27:22] Speaker 01:
Yes. Thank you, Your Honor. There's a few points. So we do think that it is notable in response to Judge Bryson's question that the Supreme Court, in fact, has not and has expressly withheld judgment on whether non-jurisdictional statutory deadlines like 7703B1A are subject to equitable tolling. And That is, I don't believe we cited this case in our briefs.

[00:27:53] Speaker 01:
but that's the Fort Bend County, Texas v. Davis decision in the Supreme Court.

[00:27:58] Speaker 01:
And we think that nutraceutical, the case that the department relies on, is distinguishable for several reasons, the first of which, as Your Honor's noted, is that it is not a statutory deadline. It refers to a deadline that is within the federal rules.

[00:28:15] Speaker 01:
Actually, in my day job, I am an antitrust class action attorney, and we deal with Rule 23F a lot. And that is, you know, it's a seeking permission to appeal. So in its interlocutory, it's also from one Article III court to another Article III court, and the Supreme Court has explicitly carved out that type of deadline as one that should be subject to, should be adhered to more strictly than others. Statutory deadlines, like the one at issue here, the court has not said are need to be subject to that level of adherence.

[00:28:55] Speaker 01:
And we also agree that at the end of the Supreme Court's decision, in this case, the citation in particular to Bockler is notable.

[00:29:06] Speaker 01:
Bockler goes through a number of circumstances when the Supreme Court has said that equitable tolling should be available. sort of factors in different cases, looking at the circumstances of the case to determine whether Congress indicated that tolling should be available. And we go through those in pages 14 through 17 of our opening brief. The department did not respond to any of those factors.

[00:29:39] Speaker 01:
And we think something...

[00:29:43] Speaker 01:
With no guidance from the Supreme Court on this issue, we think that something along the lines of all the factors should be considered when determining whether tolling is available.

[00:29:55] Speaker 01:
Here, we think that all the factors in Bochler weigh in favor of tolling.

[00:30:05] Speaker 01:
And we also note that with regard to FRAP...

[00:30:12] Speaker 01:
26B2, that the department does not cite any other circuit court that has agreed with its interpretation that that rule displaces the availability of tolling, the presumption of tolling.

[00:30:28] Speaker 01:
And in fact, we cite in our brief, we cite to a decision from the Second Circuit that continues to apply the presumption of tolling to statutory, non-jurisdictional statutory deadlines like the one here. And then other circuit courts have more recently addressed this in their decisions that the D.C. Circuit addressed it in a decision we did not cite, but which I'm happy to provide to the court and to the department, squarely addressed this and rejected the argument that the department makes here.

[00:31:06] Speaker 01:
What is that case, if you have it? Oh, yes. So that is Nelson v. Security and Exchange Commission. And I apologize that we didn't put this on the docket, but I have copies of it. You can find it. Yeah. So, and then just briefly on the merits, you know, The language in OHA, if the court goes back and looks at that alternative holding in OHA, we don't think that it's anywhere near as clear as the department would make it out to be. It's sort of a, we surely believe that Rule 26 and Rule 15 would overcome the presumption here.

[00:31:42] Speaker 01:
And so we don't believe that that's a basis to conclude that Congress has evinced a clear intention to overcome the presumption of tolling.

[00:31:52] Speaker 03:
Thank you to both counsel. Thank you. Case is submitted.