case law update

Two Employees Petition the Supreme Court to Hear Appeal Deadline Cases

On October 6, 2017, two petitions for writs of certiorari were filed with the United States Supreme Court, asking the Court to determine whether the time period for a federal employee to appeal a final order of the Merit Systems Protection Board to the United States Court of Appeals for the Federal Circuit is purely jurisdictional, and therefore cannot be “equitably tolled” under any circumstances.

“Equitable tolling” refers to a principle of law wherein a statute of limitations is relaxed, and does not completely bar a claim where an individual, despite exercising due diligence, could not or did not discovery an injury until after the expiration of the statute of limitations. The two cases, Vocke v. Merit Systems Protection Board and Fedora v. Merit Systems Protection Board, were both decided in February 2017, one day apart, by the United States Court of Appeals for the Federal Circuit. Those appeals court decisions both dismissed the employee appeals of MSPB orders for lack of jurisdiction due to the 5 U.S.C. §7703(b)(1)(A) requirement that appeals must be filed within 60 days after the Board issues notice of the final order or decision of the Board.

In Vocke, the employee argued to the appeals court that he filed his appeal 57 days after he received the final order of the Board, and was therefore timely. But the appeals court noted that the statutory language changed in 2012, removing language that gave petitioners “60 days after the date the petitioner received notice of the final order or decision” and changing it to “60 days after the Board issues notice of the final order or decision.” The appeals court therefore approached the employee’s request as a request for equitable tolling, and found that the employee had raised “compelling factual arguments on this front” including the fact that the appeals court’s own “Guide for Pro Se Petitioners and Appellants” had out-of-date language that did not reflect the statutory change.

The appeals court also found that there were potential legal arguments to be made to support equitable tolling of this particular filing deadline, but held that it (the appeals court) was “bound, however, by our prior precedent which unequivocally states that ‘the time period of section 7703(b)(1) is not subject to equitable tolling.’” The appeals court in Vocke stated that any such urging for equitable tolling should be done in a petition for rehearing en banc, and the employee filed such a petition, which was denied on July 20, 2017, setting the employee up to petition the Supreme Court for certiorari.

In Fedora, a split panel decision found that the appeals court was bound by the same precedent to dismiss the employee’s appeal since it was received after the statutory 60-day deadline (but within 60 days of the employee’s receipt of the Board’s order). The appeals court also noted that the employee mailed the petition for review prior to the expiration of the deadline, but that it was not received by the appeals court until after the deadline passed. In a lengthy dissent, Judge Plager argued that the precedent cited by the majority was no longer good law, and that the ruling of the majority “does not do justice to the complexities of the issue.” Plager’s dissent argued that not all statutory conditions imposing a time limit should be considered jurisdictional, citing recent Supreme Court cases like United States v. Kwai Fun Wong, 575 U.S. __ (2015), that “add up to a significant rethinking of the ‘jurisdictional’ bar to equitable tolling.”

In his dissent in Fedora, Judge Plager urged rebriefing before an en banc court. The employee petitioned for rehearing and rehearing en banc, but was denied. The employee then petitioned the Supreme Court for certiorari.

On November 13, 2017, amicus curiae briefs were filed with the Supreme Court in both Vocke and Fedora by the National Treasury Employees Union, Federal Circuit Bar Association, the American Federation of Government Employees (AFGE), and the National Veterans Legal Services Program and National Organization of Veterans’ Advocates.

Read the full petition for Vocke: Vocke v. Merit Systems Protection Board

Read the full petition for Fedora: Fedora v. Merit Systems Protection Board


This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.






Posted in Case Law Update

Tags: Supreme Court, MSPB


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