Stuart R. Harrow v. Department of Defense

N OTE: This order is nonprecedential.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.
______________________
Before T ARANTO, MAYER , and STOLL , Circuit Judges.
P ER CURIAM .
O R D E R
In response to this court’s order to show cause, Stuart
R. Harrow argues against dismissal of his case. The De-
partment of Defense has not responded.
On May 11, 2022, the Merit Systems Protection Board
issued its final decision affirming the agency’s furlough ac-
tion. The decision informed Mr. Harrow that to seek judi-
cial review in this court, the court had to receive a petition
for review from him “within 60 calendar days of the date of
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HARROW v. DEFENSE 2
issuance of this decision.” ECF No. 6 at 35 (emphasis omit-
ted).
On September 8, 2022, outside of that 60-day period,
Mr. Harrow moved the Board for an extension of time to
appeal. The Acting Clerk of the Board replied by letter
dated September 12, 2022, explaining that “the Board can-
not extend the deadline for seeking review in another fo-
rum, such as a court.” ECF No. 1-2 at 22. Mr. Harrow then
filed this petition on September 16, 2022, 128 days after
the Board’s final decision.
The timely filing of a petition from the Board’s final de-
cision is a jurisdictional requirement and “not subject to
equitable tolling.” Fedora v. Merit Sys. Prot. Bd., 848 F.3d
1013, 1016 (Fed. Cir. 2017). A petition from a final decision
“shall be filed within 60 days after the Board issues notice
of the final order or decision of the Board.” 5 U.S.C.
§ 7703(b)(1)(A). Here, Mr. Harrow does not dispute that he
filed his petition for review outside of this statutory dead-
line.
Mr. Harrow contends that his failure to timely file his
petition for review is excusable, stating that he did not be-
come aware of the decision until August 30, 2022, as a re-
sult of his “fail[ure] to notify [the Board] of his new email
address,” Resp. at 7. While we may be sympathetic to Mr.
Harrow’s situation, this court can only consider whether
the petition was timely filed and cannot excuse a failure to
timely file based on individual circumstances. Cf. Fed. R.
App. P. 26(b)(2) (prohibiting the court from extending or
reopening the time to petition for review “unless specifi-
cally authorized by law”).
To the extent that Mr. Harrow contends that the Board
had authority to extend the time to file a petition for re-
view, we likewise reject that argument. “[A]dministrative
agencies are generally limited to the exercise of powers del-
egated them by Congress.” Tokyo Kikai Seisakusho, Ltd.
v. United States, 529 F.3d 1352, 1359 (Fed. Cir. 2008). Mr.
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HARROW v. DEFENSE 3
Harrow has identified no source of law that grants the
Board authority to extend the deadline to petition this
court for review. Mr. Harrow cites to Federal Rule of Ap-
pellate Procedure 4(a)(5), but that only permits district
courts to extend the time to appeal, consistent with
28 U.S.C. § 2107(c). Mr. Harrow points to no authority,
and we are aware of none, that would authorize the Board
to extend the jurisdictional deadline in § 7703(b)(1)(A).
Accordingly,
I T I S O RDERED T HAT :
(1) The petition for review is dismissed.
(2) Each side shall bear its own costs.
February 14, 2023
Date
F OR THE COURT
/s/ Peter R. Marksteiner
Peter R. Marksteiner
Clerk of Court
Case: 22-2254 Document: 9 Page: 3 Filed: 02/14/2023

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