Berger Montague Shareholder Joshua Davis Wins Unanimous Supreme Court Ruling in Harrow v. Department of Defense

PHILADELPHIA – Berger Montague is pleased to announce that the United State Supreme Court has ruled 9-0 in favor of Stuart Harrow in Harrow vs Department of Defense, a case argued by Berger Montague shareholder Joshua Davis on behalf of Harrow, a DOD employee who had been fighting for six days of back pay (plus interest) for eleven years – since the 2013 government furlough.

Harrow, 73, a Defense Contract Management Agency employee, had asked to be exempted from a six-day furlough due to a financial hardship. It took the DOD’s Merit Systems Protection Board (MSPB) more than seven years to rule on Harrow’s request, before turning him down. That gave Harrow 60 days to appeal the ruling but because the DOD sent the decision to Harrow’s old email address, he received notice after the 60-day appeals window had passed.

In February 2023, the Federal Circuit refused to hear Harrow’s appeal, saying the deadline was a jurisdictional limit that it could not bypass.

The Supreme Court disagreed with the lower court’s ruling. In delivering the Court’s opinion, Justice Elena Kagan wrote, “We hold that the limit, like most filing deadlines, is not jurisdictional.” The Supreme Court remands the case back to the Federal Circuit.

“This is a wonderful victory for Stuart Harrow, who has been fighting for a long time to get his day in court,” observed Joshua Davis, “and a wonderful victory for government employees more generally, who will have a bit more leeway when they seek appellate review.”

Harrow had been his own advocate for the first decade of his case, writing his own filings. After he was turned down by the Circuit Court, he went to the Center for Litigation and Courts at the University of California College of Law in San Francisco, where Davis is a research professor, and asked for his case to be taken to the Supreme Court. Scott Dodson, who runs the Center, thought the case had merit, and wrote the briefs. Davis argued before the Supreme Court.

The Justices seemed to relish the small stakes and sparred with Davis during his oral argument. Both sides marveled at the government’s unwillingness to settle, and the Court issued its unanimous ruling relatively quickly. 

Berger Montague is one of the nation’s preeminent full-spectrum complex civil litigation, class action, and mass tort law firms, with over 54 years of serving in lead roles in precedent-setting cases that have recovered more than $60 billion in damages in the fields of antitrust, securities, mass torts, civil and human rights, whistleblower cases, employment, and consumer litigation. The firm is headquartered in Philadelphia, and has offices in Chicago, Minneapolis, San Diego, San Francisco, Toronto, Washington, D.C., and Wilmington, Delaware.

Contact: Joshua Davis, 415-215-0962, [email protected].

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Joshua P. Davis

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