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No Equitable Tolling for Judicial Review of MSPB Decisions: Federal Circuit
Practical Law Legal Update w-006-4716 (Approx. 4 pages)
No Equitable Tolling for Judicial Review of MSPB Decisions: Federal Circuit
by Practical Law Labor & Employment
| Law stated as of 21 Feb 2017 • USA (National/Federal) |
In Fedora v. Merit Systems Protection Board, the US Court of Appeals for the Federal Circuit held that the statutory deadline for filing a petition for judicial review of a final MSPB decision or order is mandatory and may not be equitably tolled.
On February 16, 2017, in Fedora v. Merit Systems Protection Board, the US Court of Appeals for the Federal Circuit held that the statutory deadline for filing a petition for judicial review of a final MSPB decision or order is mandatory and a jurisdictional requirement that cannot be equitably tolled ( (Fed. Cir. Feb. 16, 2017)).
Background
Laurence Fedora worked as a mail handler for the US Postal Service until his retirement in August 2012. In April 2013, Fedora filed an appeal with the Merit Systems Protection Board (MSPB) alleging that his retirement was involuntary and was effectively a constructive discharge. In August 2013, an administrative judge (AJ):
- Found that Fedora failed to make a non-frivolous allegation that his retirement was involuntary.
- Dismissed Fedora's appeal for lack of jurisdiction.
On August 15, 2014, the MSPB issued a final order that:
- Affirmed the AJ's initial decision.
- Notified Fedora he had 60 days to file a petition for review of the MSPB's decision with the Federal Circuit.
Fedora received the MSPB's order on August 19, 2014 and mailed a pro se petition for review to the Federal Circuit on October 11, 2014. The court received the petition on October 20, 2014, more than 60 days after the MSPB issued the order. Fedora argued that the court should excuse his late filing because he mailed it within the 60-day deadline and it was filed within 60 days of receiving the MSPB's order. He also pointed to the Federal Circuit's written guidance for pro se petitioners, which stated that petitioners may file within 60 days of receiving an MSPB order.
Outcome
The Federal Circuit:
- Held that the statutory deadline requiring that a petition for judicial review of a final MSPB decision or order file within 60 days of the MSPB issuing its decision or order is:
- mandatory;
- a prerequisite to the Federal Circuit having jurisdiction over the petition; and
- not subject to being equitably tolled.
- Dismissed Fedora's petition for lack of jurisdiction.
The Federal Circuit noted that:
- Although a prior version of the statute governing petitions for judicial review provided that a petition for review must be filed within 60 days after the date "the petitioner received notice" of the MSPB's final order or decision, the Whistleblower Protection Enhancement Act of 2012 amended Section 7703(b)(1) to require filing within 60 days of the MSPB "issuing notice of the final order or decision" (5 U.S.C. § 7703(b)(1)).
- The US Supreme Court held in Bowles v. Russell that statutory deadlines and time limits for filing appeals with Article III courts are mandatory, jurisdictional, and not subject to equitable tolling (551 U.S. 205, 209-14 (2007)).
- The Supreme Court has distinguished between:
- statutory time limits for filing appeals to Article III courts as being jurisdictional (such as the one in Bowles which involved filing a timely notice of appeal in a civil action under 28 U.S.C. § 2107(c)); and
- time limits for filing appeals to Article I courts as not being jurisdictional (such as a time limit for filings appeals to the Court of Appeals for Veterans Claims).
The Federal Circuit found that:
- Fedora had until October 14, 2014 (60 days after the MSPB's order on August 15, 2014) to file his appeal, but that the court must receive the petition by the filing deadline, and his petition was filed six days late on October 20, 2014.
- Fedora's reliance on the Federal Circuit's own "Guide for Pro Se Petitioners and Appellants," which incorrectly stated that petitioners could file a petition for review with the Federal Circuit within 60 days of receiving the MSPB's order was unavailing because the Federal Circuit lacks authority to equitably toll the filing deadline in Section 7703(b)(1).
- In any event, the MSPB's order clearly stated that:
- the 60-day period for filing an appeal with the Federal Circuit would begin on the date the final order was issued;
- he should be "be very careful to file on time" as the court had to receive his request for review no later than 60 calendar days after the order date; and
- cited Section 7703(b)(1)(A) while noting that it had been revised in December 2012.
Judge Plager dissented at length, noting that the majority's decision:
- Did not square with Supreme Court precedent and incorrectly concluded that Bowles was the controlling decision.
- Was fundamentally unfair.
Practical Implications
The Federal Circuit's decision in Fedora sends a simple message to federal employees who seek judicial review of an order or decision by the MSPB:
- Be aware of the applicable statutory deadlines, and from when those deadlines begin to run.
- Do not rely on outside guidance, even from a court itself.
- File on time.