NOTE: This order is nonprecedential.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 TARANTO, MAYER, and STOLL, Circuit Judges.

PER 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 Department of Defense has not responded.

On May 11, 2022, the Merit Systems Protection Board 

issued its final decision affirming the agency’s furlough action. The decision informed Mr. Harrow that to seek judicial review in this court, the court had to receive a petition 

for review from him “within 60 calendar days of the date of 

Case: 22-2254 Document: 9 Page: 1 Filed: 02/14/2023
2 HARROW v. DEFENSE

issuance of this decision.” ECF No. 6 at 35 (emphasis omitted). 

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 cannot extend the deadline for seeking review in another forum, 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 decision 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 deadline. 

Mr. Harrow contends that his failure to timely file his 

petition for review is excusable, stating that he did not become aware of the decision until August 30, 2022, as a result 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 specifically authorized by law”). 

To the extent that Mr. Harrow contends that the Board 

had authority to extend the time to file a petition for review, we likewise reject that argument. “[A]dministrative

agencies are generally limited to the exercise of powers delegated 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 Appellate 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, 

 IT IS ORDERED THAT: 

(1) The petition for review is dismissed.

(2) Each side shall bear its own costs. 

February 14, 2023 

 Date

FOR THE COURT

/s/ Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

Case: 22-2254 Document: 9 Page: 3 Filed: 02/14/2023