Irina Farquhar, a former Operations Research Analyst with the Department of the Army, was removed from her position in 2017. She appealed to the Merit Systems Protection Board (MSPB), alleging that her removal was retaliation for protected whistleblower disclosures. The MSPB administrative judge initially dismissed the case for failure to prosecute after Farquhar missed scheduled status conferences and failed to respond to show-cause orders. Although Farquhar claimed she was receiving outpatient care out of state, the Board affirmed the dismissals, finding she had not proven she was incapacitated or unable to participate. The Board issued its final decision on February 10, 2025. Farquhar then petitioned the Federal Circuit for review, but the court did not receive her petition until April 17, 2025.
The court addressed the timeliness of the petition as a threshold issue. Under 5 U.S.C. § 7703(b)(1)(A), a petition for review must be filed within 60 days after the Board issues notice of its final decision. The court clarified that this period begins on the date the Board issues notice, not the date the petitioner receives it. Citing Federal Education Association-Stateside Region v. Department of Defense, the court noted that for pro se filings, the petition is not timely unless the clerk actually receives the papers within the fixed time. The Board issued notice on February 10, 2025, making the deadline April 11, 2025. Farquhar's petition was received on April 17, 2025, six days late. The court declined to address whether equitable tolling applies to this deadline, noting that the Supreme Court in Harrow v. Department of Defense did not resolve that question and that Farquhar failed to brief the issue or request tolling. The court further explained that even if the petition were timely, Farquhar would not succeed on the merits because she failed to show the Board abused its discretion in dismissing her appeal for failure to prosecute.
The dismissal leaves the MSPB's orders affirming the termination of Farquhar's employment in full effect. The decision reinforces that the 60-day filing window for MSPB appeals is strict regarding the date of receipt by the court clerk. While the court did not definitively rule on the availability of equitable tolling for this specific statute, it signaled that litigants must actively raise and prove such claims, as the burden falls on the petitioner to demonstrate diligence and extraordinary circumstances.
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