Supreme Court Employment Law Cases in 2024: What to Watch for, and Why – Part 2

In this three-part series, we are exploring the major employment law cases that we are keeping an eye on for 2024. Our last article looked at two cases that have been briefed and argued before the U.S. Supreme Court. Now, we are turning our attention to major employment law cases that are awaiting oral argument in the Court, or a decision on whether it will grant a hearing at all. Here are two cases—one just accepted for hearing, the other waiting outside the Court’s door—that could have major effects on the rights of millions of American workers.

Awaiting briefing and oral argument: Harrow

On December 8, 2023, the Court announced it would hear the case of Harrow v. Department of Defense. Stuart Harrow, a longtime Defense Department employee, was furloughed in 2013 due to federal budget cuts. Harrow challenged the furlough (without a lawyer) before a Merit Systems Protection Board administrative judge, and then (still without a lawyer) appealed to the full Board when the judge ruled in the agency’s favor. Years rolled by as Harrow waited for his appeal to be heard, first because of a huge case backlog and then because the Board lost its quorum of members in 2017 and could not decide any appeals. When the Board finally regained a quorum and decided Harrow’s case in May 2022, it sent him only an email notice—but the Defense Department had changed Harrow’s address years earlier, and he did not get the notice until after the 60-day deadline to appeal to the U.S. Court of Appeals for the Federal Circuit. He appealed anyway, but the Federal Circuit dismissed his appeal as untimely, saying the deadline was “jurisdictional,” meaning a late filing barred the court from hearing the case even as to whether Harrow’s late filing should be excused.

In 2019, in a case called Fort Bend County v. Davisthe Court took a more permissive  view of a filing deadline, though under Title VII and not the MSPB statute. The Davis majority opinion, authored by Justice Ruth Bader Ginsburg, held that an employee’s initial deadline to file Title VII administrative complaints was not an absolute “jurisdictional” rule but was a mere “claims processing” rule that could be deemed waived if, for instance, the employer raised the issue unreasonably late. Justice Ginsburg died in 2020 and was immediately replaced by ultra-conservative Justice Amy Coney Barrett. Nevertheless, the reasoning of Davis still stands until the Court decides otherwise, and Mr. Harrow’s arguments under the MSPB statute are in some respects strikingly similar to those that succeeded for Title VII in Davis.