Background
Robert O. Idahosa worked as an Equal Employment Opportunity specialist for the Department of the Army. After an investigation found that he had engaged in the unauthorized practice of law and used his public office for private gain, the Army charged him with conduct unbecoming a federal employee and removed him effective February 6, 2018. Idahosa alleged that his removal and several other personnel actions were retaliation for protected complaints, including a March 2017 complaint to the Office of Inspector General accusing his supervisor of time-record falsification and resource mismanagement.
In an Individual Right of Action appeal, the Merit Systems Protection Board concluded that the Inspector General complaint was protected activity under 5 U.S.C. § 2302(b)(9)(C), but that Idahosa failed to prove it contributed to his removal or other challenged personnel actions. The Board issued and mailed its final decision on July 10, 2024. That mailing was returned as undeliverable, and the Board remailed the decision on March 3, 2025, after obtaining Idahosa’s correct address. The Federal Circuit did not receive his mailed petition for review until May 12, 2025.
The Court’s Holding
The Federal Circuit dismissed the petition as untimely under 5 U.S.C. § 7703(b)(1)(A). The 60-day filing period began when the Board issued notice of its decision, and a petition sent by mail was filed only when the court received it. Because the court received Idahosa’s petition 245 days after the original deadline, it was late.
The court assumed without deciding that equitable tolling was legally available, but held that Idahosa had not established diligence and extraordinary circumstances. He did not show that he timely notified the Board of his address change, and he did not explain why the court received his petition 70 days after the Board remailed the decision. The court also concluded that, even if it reached the merits, it would affirm because substantial evidence supported the Board’s finding that Idahosa’s protected activity was not a contributing factor in the personnel actions.
Key Takeaways
- The 60-day period for seeking Federal Circuit review of an MSPB decision runs from the date the Board issues notice, not the date the petitioner receives it.
- A petition submitted by mail is filed when the Federal Circuit clerk receives it, not when the petitioner signs or mails it.
- Even assuming equitable tolling applies, a petitioner must demonstrate diligent pursuit of appellate rights and an extraordinary circumstance that prevented timely filing.
- An IRA appeal addresses alleged reprisal for protected activity, not the underlying merits or reasonableness of the agency’s personnel action.
Why It Matters
The nonprecedential decision underscores the practical importance of keeping the MSPB informed of address changes and ensuring that a mailed petition reaches the Federal Circuit within the statutory period. Delayed receipt of an MSPB decision will not, by itself, establish equitable tolling.
The opinion also illustrates the limits of whistleblower IRA review: once the Board found no causal connection between protected activity and the challenged personnel actions, it did not need to evaluate the Army’s same-action defense or apply the Carr factors.