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United States Court of Appeals for the Federal Circuit



                                      04-3030



                                 ROBERT K. OJA,

                                                          Petitioner,

                                         v.

                          DEPARTMENT OF THE ARMY,

                                                          Respondent.



      Marianne Dugan, Facaros & Dugan, of Eugene, Oregon, argued for petitioner.

       Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, argued for
respondent. On the brief were Peter D. Keisler, Assistant Attorney General; David M.
Cohen, Director; James M. Kinsella, Deputy Director; and, Brent M. McBurney,
Attorney. Of counsel was John H. Williamson.

Appealed from: United States Merit Systems Protection Board
 United States Court of Appeals for the Federal Circuit


                                         04-3030


                                    ROBERT K. OJA,

                                                                      Petitioner,

                                            v.

                            DEPARTMENT OF THE ARMY,

                                                                      Respondent.

                            ___________________________

                            DECIDED: April 28, 2005
                            ___________________________


Before NEWMAN, CLEVENGER, and GAJARSA, Circuit Judges.

Opinion for the court filed by Circuit Judge CLEVENGER. Dissenting opinion filed by
Circuit Judge NEWMAN.

CLEVENGER, Circuit Judge.


       Robert K. Oja appeals the November 22, 2002, order of the Merit Systems

Protection Board ("Board" or "MSPB"), which adopted the initial decision of the

administrative judge ("AJ") that denied Mr. Oja's petition for enforcement of a settlement

agreement between him and the United States Army Corps of Engineers ("agency").

See Oja v. Dep't of the Army, No. SE0752990003-C-1 (MSPB Nov. 22, 2002) ("Final

MSPB Decision"). Because Mr. Oja did not file a petition for review with this court within

60 days of the date he first received notice of the final order of the Board, see 5 U.S.C.

§ 7703(b)(1) (2000), we dismiss Mr. Oja's appeal for lack of jurisdiction.
                                            I

      On August 25, 1998, Mr. Oja was removed from his position as Chief of the

Regulatory Branch of the Construction and Operations division for the Anchorage

District of the United States Army Corps of Engineers.      In a Standard Form 50-B

Notification of Personnel Action, the agency cited as reasons for the removal "excessive

absences and failure to follow leave procedures." In October, Mr. Oja filed an appeal

with the Merit Systems Protection Board, alleging an adverse employment action under

the Civil Service Reform Act of 1978 ("CSRA"), Pub. L. No. 95-454, 92 Stat. 1111, and

discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C.

§ 2000e (2000) and Section 501 of the Rehabilitation Act of 1973 ("Rehabilitation Act"),

29 U.S.C. § 791 (2000). Mr. Oja's appeal was a so-called "mixed-case" appeal—"an

appeal to the Board from an adverse personnel action, coupled with an allegation that

the action was based on prohibited discrimination."     Austin v. Merit Sys. Prot. Bd.,

136 F.3d 782, 783 (Fed. Cir. 1998).

      In March 1999, the parties entered into an agreement in settlement of the appeal.

The settlement agreement stated in relevant part:

      2. The U.S. Army Corps of Engineers, Alaska District . . . agrees to:
      a. Convert the basis for removal of the Appellant from one of excessive
         absence and failure to follow leave procedures to "continued absence
         due to illness" with an effective date of September 5, 1998. . . .
      c. Purge the Appellant's Official Personnel File (OPF) and Management
         Employees' Relations file (MER) regarding any reference to Appellant's
         removal based on grounds other than "continued absence due to
         illness." . . .
      f. Allow Appellant two years from the effective date of his removal, to
         exercise relocation entitlement pursuant to a transportation agreement
         he signed in 1985.




04-3030                                 2
(J.A. at 53-55.) On April 5, an AJ approved the agreement and dismissed Mr. Oja's

mixed-case appeal.     See Oja v. Dep't of the Army, No. SE0752990003-I-2 (MSPB

Apr. 5, 1999) (approving the settlement agreement).

       Subsequently, the agency took several actions thought by Mr. Oja to be

breaches of the settlement agreement. First, on June 2, 1999, Mr. Oja submitted a

request for authorization of travel from Alaska to Oregon and reimbursement for real

estate expenses. The agency approved the request on June 9. Mr. Oja sold his home

in Alaska and purchased a home in Oregon.          On April 11, 2000, he submitted an

"Application for Reimbursement of Expenses Incurred by DoD Civilian Employee Upon

Sale or Purchase (Or Both) of Residence Upon Change of Duty Station," wherein he

sought reimbursement for approximately $13,600 in real estate transaction expenses

associated with his move to Oregon. In a June 23, 2000, letter, the agency denied

Mr. Oja reimbursement for real estate expenses because the agency's Joint Travel

Regulations did not allow for the reimbursement of real estate expenses associated with

a return to the continental United States for purposes of separation. The agency noted

in the letter that the prohibition against such real estate expenses was discussed with

Mr. Oja's attorneys prior to the March 1999 settlement. The agency later characterized

its June 9, 1999, approval of real estate expenses as an error.

       Second, on August 14, 1999, a Washington Post reporter posed ten questions

via electronic mail regarding the agency's activities in Alaska, including one inquiring as

to whether Mr. Oja quit on his own accord or was fired. The agency responded in

another electronic mail that "Mr. Oja stopped coming to work on October 23, 1997, and

failed to provide information about the likelihood of returning to work.          Effective



04-3030                                   3
September 5, 1998, Mr. Oja was removed from his position for excessive absence due

to illness." (J.A. at 93.) On September 7, 2000, the agency posted its statement about

Mr. Oja's removal on the Internet.

       Believing that with these actions the agency breached paragraphs 2(a), (c) and

(f) of the settlement agreement, Mr. Oja filed a petition on September 8, 2001, with the

MSPB to enforce the agreement. On January 15, 2002, the AJ determined that neither

the agency's response to the Washington Post reporter's inquiry about the status of Mr.

Oja's departure nor the agency's subsequent Internet posting rose to the level of bad

faith or negated any of the other actions taken by the agency to comply with the specific

provisions   of   the   settlement   agreement.       Oja     v.   Dep't   of   the   Army,

No. SE0752990003-C-1, at 12 (MSPB Jan. 15, 2002) (finding no breach of the

settlement agreement).     The AJ further determined that the settlement agreement

specifically guaranteed Mr. Oja the right "to exercise relocation entitlement pursuant to a

transportation agreement he signed in 1985," and that the 1985 agreement did not

provide for the recovery of the expenses sought. Id. at 14.

       After finding no breach, the AJ advised Mr. Oja of his right to a review of the AJ's

decision by the full Board and ultimately by the Court of Appeals for the Federal Circuit.

Id. at 18-19. The AJ specifically noted that any petition for review by the Federal Circuit

"must be received by the court no later than 60 calendar days after the date this initial

decision becomes final." Id. at 19. Mr. Oja subsequently filed a petition for review by

the full Board. On November 22, 2002, the Board denied the petition. See Final MSPB

Decision. The Board reminded Mr. Oja that

       [y]ou have the right to request the United States Court of Appeals for the
       Federal Circuit to review this final decision. . . . The court must receive

04-3030                                  4
        your request for review no later than 60 calendar days after your receipt of
        this order. . . . If you choose to file, be very careful to file on time. The
        court has held that normally it does not have the authority to waive this
        statutory deadline and that filings that do not comply with the deadline
        must be dismissed.

Id. at 2.

        Mr. Oja received the final decision of the Board on December 9, 2002.           On

January 23, 2003, Mr. Oja did not request a review by this court but instead filed a

petition for review with the Equal Employment Opportunity Commission ("EEOC"). In

the petition, Mr. Oja claimed that a "partial sentence" in the materials enclosed with the

Board's final order provided that he could "proceed in a district court or the [EEOC]."

Mr. Oja also stated in the petition that he contacted the MSPB "at their commercial

telephone number in Washington, D.C." and was told that he could seek review by the

EEOC of the Board's final order. The EEOC ultimately declined to consider the petition,

stating that it lacked jurisdiction because "the MSPB did not address any allegations of

discrimination, but rather concluded that the settlement agreement had not been

breached." Oja v. Dep't of the Army, No. 03A30030 (EEOC Mar. 6, 2003).

        On April 4, 2003, Mr. Oja filed a complaint in the United States District Court for

the District of Oregon, asserting claims for breach of the settlement agreement under

the CSRA and unlawful discrimination under Title VII and the Rehabilitation Act.1       The

agency subsequently filed a motion to dismiss. A Magistrate Judge issued findings and

a recommendation wherein he concluded that because Mr. Oja did not assert a claim

for discrimination in the September 8, 2001, petition for enforcement to the MSPB and



        1
             Though Mr. Oja was not represented by counsel during his efforts to
enforce the settlement agreement before the MSPB and the EEOC, he was represented
by counsel during proceedings before the district court.
04-3030                                   5
instead only complained of the alleged breaches of the settlement agreement, Mr. Oja's

petition was not a mixed-case complaint and thus should have been brought before the

Federal Circuit. See Oja v. U.S. Army Corps of Eng'rs, No. 03-6074-TC, at 7-8 (D. Or.

Sept. 8, 2003) (recommending a transfer to the Federal Circuit). The Magistrate Judge

also concluded that Mr. Oja did not exhaust his administrative remedies with respect to

the discrimination claim brought before the district court because he did not properly

assert the claim before the agency's equal employment opportunity office, the EEOC or

the MSPB. Id. at 8-9. Recognizing "some question as to whether [Mr. Oja] could have

brought the action before the Federal Circuit at the time it was filed in [the district

court]," the Magistrate Judge nonetheless recommended transferring the case to the

Federal Circuit, pursuant to 28 U.S.C. § 1631, and noted that "there may be grounds for

equitable tolling." Id. at 9.

       The district court adopted the Magistrate Judge's findings and recommendation

in its entirety and transferred Mr. Oja's claim for breach of the settlement agreement to

this court. See Oja v. U.S. Army Corps of Eng'rs, No. 03-6074-TC (D. Or. Oct. 22,

2003) ("District Court Order"). Mr. Oja subsequently filed a "notice of appeal/petition for

review." We thus consider Mr. Oja's appeal as we would an appeal directly from the

Board's final order and review it pursuant to 5 U.S.C. § 7703(b)(1) and 28 U.S.C.

§ 1295(a)(9).

                                             II

       Our authority to review the Board's final decision is circumscribed by 5 U.S.C.

§ 7703. Accordingly, assuming jurisdiction properly lies, we must set aside findings or

conclusions of the Board that we find to be arbitrary, capricious, an abuse of discretion,



04-3030                                  6
or otherwise not in accordance with law; obtained without procedures required by law,

rule or regulation having been followed; or unsupported by substantial evidence.

5 U.S.C. § 7703(c) (2000).

                                              III

      The MSPB's power to adjudicate a dispute is limited to those matters over which

the MSPB's jurisdiction is specifically provided for by law, rule or regulation.          See

5 U.S.C. § 1204(a)(1) (2000). Though a claim of discrimination alone is not sufficient to

invoke the MSPB's jurisdiction, see Cruz v. Dep't of Navy, 934 F.2d 1240, 1245 (Fed.

Cir. 1991) (en banc), Congress has provided that the Board may adjudicate a claim of

discrimination when it forms the basis for an agency action over which the Board would

otherwise have jurisdiction, i.e., an appealable action pursuant to section 1204(a)(1).

See 5 U.S.C. § 7702(a)(1)(A)-(B) (2000); see also King v. Reid, 59 F.3d 1215, 1218

(Fed. Cir. 1995). Section 7702 thus provides the MSPB with statutory authority to hear

a mixed-case appeal—"an appeal filed with the MSPB that alleges that an appealable

agency action was effected, in whole or in part, because of discrimination on the basis

of race, color, religion, sex, national origin, handicap or age."                 29 C.F.R.

§ 1614.302(a)(2) (2004).

      The procedures setting forth the proper means for appealing a final decision by

the MSPB are described in 5 U.S.C. § 7703. The relevant subsections—7703(b)(1) and

(b)(2)—state:

              (b)(1) Except as provided in paragraph (2) of this subsection, a
      petition to review a final order or final decision of the Board shall be filed in
      the United States Court of Appeals for the Federal Circuit. Notwithstanding
      any other provision of law, any petition for review must be filed within 60
      days after the date the petitioner received notice of the final order or
      decision of the Board.

04-3030                                   7
             (2) Cases of discrimination subject to the provisions of section 7702
      of this title shall be filed under section 717(c) of the Civil Rights Act of
      1964 (42 U.S.C. 2000e-16(c)), section 15(c) of the Age Discrimination in
      Employment Act of 1967 (29 U.S.C. 633a(c)), and section 16(b) of the Fair
      Labor Standards Act of 1938, as amended (29 U.S.C. 216(b)), as
      applicable. Notwithstanding any other provision of law, any such case filed
      under any such section must be filed within 30 days after the date the
      individual filing the case received notice of the judicially reviewable action
      under such section 7702.

5 U.S.C. § 7703.

      A federal employee may thus file a petition with the EEOC for review of an

adverse ruling from the MSPB regarding the employee's mixed-case appeal. See id.

§ 7702(b). If the EEOC concurs in the final decision of the Board, the Board's decision

becomes judicially reviewable in federal district court.    See id. § 7702(b)(5)(A).   A

federal employee also may appeal directly to this court any ruling by the Board

regarding the employee's adverse employment action claim, provided that a petition to

review the final decision of the MSPB is filed by the employee with this court within 60

days of the date the employee first received notice of the MSPB's final decision. See id.

§ 7703(b)(1).   However, if an employee "wishes to appeal to this court from an

unfavorable decision in a mixed case, he must abandon his discrimination claim and

proceed before us solely with respect to the adverse personnel action." See Lang v.

Merit Sys. Prot. Bd., 219 F.3d 1345, 1347 n.2 (Fed. Cir. 2000).

      With this statutory framework in mind, we recognize that this case now comes to

us by way of a tangled procedural path—first to the MSPB, then to the EEOC, then to

the district court, and now to this court. Mr. Oja asserts that his September 8, 2001,

petition to enforce the settlement agreement initiated a mixed case, such that his

ultimate appeal to the district court was proper. He requests that we determine this to



04-3030                                  8
be a mixed-case appeal and transfer the case back to the district court pursuant to

28 U.S.C. § 1631. In the alternative, he requests that we accept jurisdiction pursuant to

transfer under section 1631 and reverse the decision of the Board with award of

damages to Mr. Oja for the agency's breach of the settlement agreement. We address

each in turn.

                                               A

       Mr. Oja first argues that the petition that he filed with the MSPB to enforce the

settlement agreement constitutes a mixed-case appeal, such that jurisdiction properly

lies not with this court but with the district court.      Mr. Oja asks that the case be

transferred back to the district court pursuant to 28 U.S.C. § 1631.            Section 1631

provides that

       [w]henever a civil action is filed in a court . . . or an appeal, including a
       petition for review of administrative action, is noticed for or filed with such
       a court and that court finds that there is a want of jurisdiction, the court
       shall, if it is in the interest of justice, transfer such action or appeal to any
       other such court in which the action or appeal could have been brought at
       the time it was filed or noticed, and the action or appeal shall proceed as if
       it had been filed in or noticed for the court to which it is transferred on the
       date upon which it was actually filed in or noticed for the court from which
       it is transferred.

28 U.S.C. § 1631 (2000). We cannot transfer Mr. Oja's case back to the district court

pursuant to section 1631, however, because that court is not authorized to receive it.

See Hill v. Dep't of the Air Force, 796 F.2d 1469, 1470 (Fed. Cir. 1986).

       "[T]he judicially reviewable action by the MSPB which makes an appeal a case of

discrimination under § 7703(b)(2) that can be filed in district court is that the MSPB has

decided both the issue of discrimination and the appealable action . . . ." Ballentine v.

Merit Sys. Prot. Bd., 738 F.2d 1244, 1246 (Fed. Cir. 1984) (quotation omitted)



04-3030                                    9
(emphasis added). The district court here observed that the former was not present and

that Mr. Oja's petition for enforcement of the settlement agreement did not implicate the

underlying claims of discrimination. District Court Order at 42. The court concluded

that Mr. Oja did not present a mixed case. Id. We agree, but for a different reason.

         Our law on this issue is clear. "[A] claim of discrimination contained in a petition

to enforce a settlement agreement does not give rise to mixed case status." See King,

59 F.3d at 1219. This is so because a breach by the agency is not an action appealable

to the Board pursuant to 5 U.S.C. § 1204(a)(1) and is therefore not an action described

in 5 U.S.C. § 7702(a)(1)(A) as that needed to support a mixed case. Id. at 1218.

Instead, the Board maintains jurisdiction over a settlement agreement made part of the

record pursuant to its power under 5 U.S.C. § 1204(a)(2) to enforce its own orders. Id.

Mr. Oja's petition for enforcement of the settlement agreement therefore could not give

rise to a mixed case and cannot now support an exercise of jurisdiction by the district

court.

         Because the district court is not authorized to receive an appeal from the Board's

decision regarding Mr. Oja's claims for breach of the settlement agreement, section

1631 does not allow for the transfer of the case back to the district court.

                                                B

         Mr. Oja next argues that the MSPB erred in holding that the agency did not

breach the settlement agreement between the parties.            Our review of the Board's

determination that there has been no breach is governed by 5 U.S.C. § 7703(b)(1),

which provides for a 60-day filing period to commence after the date upon which Mr. Oja

first received notice of the Board's final order. Mr. Oja concedes that he first received



04-3030                                    10
notice of the Board's decision on December 9, 2002.            Thus, pursuant to section

7703(b)(1), Mr. Oja's petition for review was due in this court within 60 days of

December 9, i.e., on or before February 7, 2003. Mr. Oja did not file a complaint with

the district court until April 4, 2003, and the district court did not order his case

transferred to this court until October 22. Therefore, even after according Mr. Oja the

benefit of the April 4, 2003, district court filing date pursuant to 28 U.S.C. § 1631, he

clearly has not satisfied the 60-day requirement of section 7703(b)(1).2

       Mr. Oja now alleges that the EEOC and the MSPB led him to believe that his

claim was being addressed as a mixed-case appeal and thus properly brought before

the EEOC and the district court. Our resolution of this case thus depends on whether

the filing period of section 7703(b)(1) can be equitably tolled due to the alleged

misrepresentations.3 The question was squarely addressed and decided by this court in

Monzo v. Department of Transportation, 735 F.2d 1335 (Fed. Cir. 1984).



       2
               The dissent would accord Mr. Oja the benefit of his EEOC filing date. We
decline to do so. First, Mr. Oja's EEOC filing by itself cannot be considered a petition
for review by the Federal Circuit, as it does not request our review and instead implies
the opposite—that Mr. Oja specifically sought to avoid review by this court. (J.A. at 120
("Since receiving the final order last month from MSPB, I have spent considerable time
trying to obtain clarification of my rights apart from filing with the U.S. Court of Appeals
for the Federal Circuit.").)
        Second, the EEOC did not, and indeed cannot, transfer under section 1631,
which, as previously discussed, permits a transfer only when an action is "filed in the
wrong court." Section 1631 defines "court" by reference to 28 U.S.C. § 610. Section
610 specifies that "courts" include the district courts of the United States and various
other judicial bodies. The EEOC, though perhaps quasi-judicial in nature, is not among
those listed in section 610. We thus do not accord Mr. Oja the benefit of the
January 23, 2003, EEOC filing date and instead accord him the earliest filing date
allowed by statute—the April 4, 2003, district court filing date.
       3
              The dissent assumes as a matter of fact that Mr. Oja was "misdirected" by
the EEOC and the MSPB, and as a result was untimely in appealing to this court. This
court "sits as a court of review and is ill-suited for making factual determinations in
04-3030                                   11
      In Monzo, Robert Monzo, Jr., sought judicial review of a final order of the MSPB

affirming a decision of the Federal Aviation Administration to remove him from his

position as an air traffic controller on the grounds that he had participated in a strike

against the United States and that he was absent without leave. Mr. Monzo received

the Board's final order on October 11, 1983.         This court received Mr. Monzo's

subsequent petition for review of the final order on November 14, 1983, more than 30

days later. Id. at 1336. The Department of Transportation subsequently filed a motion

to dismiss Mr. Monzo's appeal on the ground that it was barred by what then in section

7703(b)(1) was a 30-day time period for filing such an appeal.4 Id. Mr. Monzo argued

that the 30-day time period for filing should not be measured from the date he received

the Board's final order, but instead should be measured from the date his counsel

received the final order. If measured from the date of counsel's receipt, Mr. Monzo's

petition for review in this court would have been timely. In addition, in the event the

court rejected Mr. Monzo's argument that the 30-day time period ran from notice to



issues not faced initially by a trial court." La Van v. United States, 382 F.3d 1340,
1350 (Fed. Cir. 2004); see also Bailey v. West, 160 F.3d 1360, 1371 (Fed. Cir. 1998)
(Michel, J., concurring) ("Unlike trial courts, we as a Court of Appeals lack adequate
mechanisms to find contested or complex facts."). However, for deciding the legal issue
before us, we may assume that Mr. Oja's allegations regarding his communications with
the MSPB and the EEOC are true.
      4
              In 1982, our predecessor court, the Court of Claims, recognized that the
30-day period for appealing under 5 U.S.C. § 7703(b)(1) must be "strictly observed."
Ramos v. United States, 683 F.2d 396, 397 (Ct. Cl. 1982). In a concurring opinion,
Judge Nichols expressed concern with the harshness of the 30-day period and noted
that to avoid uneven results, "the time-dishonored 30-day appeal period of the old
Standard Disputes Clause for contract cases has been extended to 90 by 41 U.S.C.
§ 606, or under § 609, 12 months in a 'direct access' case in this court." Id. at 399.
Similarly, Congress amended section 7703(b)(1) in 1998 by lengthening from 30 to 60
days the time period for filing an appeal from an adverse MSPB decision. See Federal
Employees Life Insurance Improvement Act, Pub. L. No. 105-311, 112 Stat. 2950.
04-3030                                  12
counsel, Mr. Monzo's Brief in Opposition to Resondent's Motion to Dismiss Appeal

specifically argued that equitable tolling of the filing deadline should be granted:

               Finally, any delay in filing the Petition for Review in this matter,
       resulted, at least in part, from the reliance of Petitioner's counsel on
       notice, from the Clerk of this Court, that all proceedings in appeals of Air
       Traffic Controllers had been stayed by Order of this Court. Certainly, this
       "suspension order" created a unique situation which clouded the
       applicability of any of the normal rules governing appeals, and renders
       inappropriate any strict, limiting construction of those rules which would
       prevent consideration of the merits of the Petition for Review in this
       matter. Under these circumstances, dismissal of Petitioner's Appeal
       would clearly be inequitable and inappropriate, and this Court has
       jurisdiction to relieve Petitioner from any failure, if such there was, to file
       his Petition for Review within the period prescribed by 5 U.S.C. Section
       7703(b)(1).

(Citations omitted.)

       By precedential decision on April 6, 1984, we concluded that the 30-day time

period for review is measured from the earlier date of receipt by the party or counsel of

the Board's final decision, and that the time specified by statute is "statutory, mandatory,

jurisdictional and bars the claim here."5 Monzo, 735 F.2d at 1336 (emphasis added).

We necessarily rejected Mr. Monzo's alternative argument, for had we accepted his plea

for equitable tolling, we could not have barred the claim outright, as we did.           Mr.

Monzo's petition for rehearing of the April 6, 1984, decision was denied in a

nonprecedential order on April 23, 1984.




       5
               Prior to a 1982 amendment to section 7703(b)(1), which conveyed to the
Federal Circuit exclusive jurisdiction over all appeals brought pursuant to that section,
several other courts of appeals also held that the time period in section 7703(b)(1) was
jurisdictional. See Devine v. White, 697 F.2d 421, 429 (D.C. Cir. 1983); Boehm v.
Foster, 670 F.2d 111, 113 (9th Cir. 1982); Lewis v. IRS, 691 F.2d 858, 859 (8th Cir.
1982).


04-3030                                    13
       As we are bound by prior precedent unless and until overturned en banc,

Sacco v. Dep't of Justice, 317 F.3d 1384, 1386 (Fed. Cir. 2003), we must now hold per

Monzo that the time period prescribed by section 7703(b)(1) cannot be tolled.6 Even

were we not so bound, however, we think it clear that the time period of section

7703(b)(1) is not subject to equitable tolling for other reasons.

                                               C

       Six years after Monzo was decided, the Supreme Court in Irwin v. Department of

Veterans Affairs indirectly altered the section 7703 landscape, and indeed the general

presumption of sovereign immunity, by holding that "the same rebuttable presumption of

equitable tolling applicable to suits against private defendants should also apply to suits

against the United States" and that Title VII filing deadlines are thus subject to equitable

tolling. 498 U.S. 89, 95-96 (1990). The Irwin decision ultimately sparked a split among

the various courts of appeals over whether or not section 7703(b)(2), which generally

describes procedures for the review of a mixed-case appeal, is subject to equitable

tolling. Most of the circuit courts that have addressed the issue have held that section

7703(b)(2) is subject to equitable tolling because it incorporates 42 U.S.C. § 2000e-

16(c), a provision of Title VII. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir.

2002); Blaney v. United States, 34 F.3d 509, 512-13 (7th Cir. 1994); Nunnally v.

MacCausland, 996 F.2d 1, 4 (1st Cir. 1993); Williams-Scaife v. Dep't of Def. Dependent

Sch., 925 F.2d 346, 348 (9th Cir. 1991). However, the Sixth Circuit has concluded that




       6
              Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991),
is consistent with Monzo. In Pinat, we rejected jurisdiction over a late-filed appeal from
the Board, stating "[t]his is not a case in which the doctrine of equitable tolling applies."
Id. at 1546 n.2.
04-3030                                   14
Irwin did not overrule prior Sixth Circuit precedent holding section 7703(b)(2) to be

strictly jurisdictional and not subject to tolling. See Dean v. Veterans Admin. Reg'l

Office, 943 F.2d 667, 670 (6th Cir. 1991), vacated and remanded on other grounds,

503 U.S. 902 (1992).

       Even if we assume without deciding that the Supreme Court in Irwin mandates

that section 7703(b)(2) is subject to equitable tolling, that assumption alone does

nothing to alter the decision we reached in Monzo. Though the obvious relationship

between Title VII and section 7703(b)(2) may very well support the equitable tolling of

section 7703(b)(2) in light of Irwin, section 7703(b)(1) in no way implicates 42 U.S.C.

§ 2000e-16(c) and its placement alongside section 7703(b)(2) in the Code is of no

concern.   There is simply no equivalent relationship between Title VII and section

7703(b)(1) such that Irwin might support the equitable tolling of the time period in

section 7703(b)(1).

       That being said, we recognize that the applicability of Irwin expands beyond the

Title VII context. See Bailey v. West, 160 F.3d 1360, 1368 (Fed. Cir. 1998) (holding that

equitable tolling is available to avoid time limitations in the statutory provisions

governing veterans benefits).     In United States v. Brockamp, the Supreme Court

assumed for purposes of argument that the Irwin presumption of "equitable tolling"

applies in a tax refund suit and noted that ordinarily, "limitations statutes use fairly

simple language, which one can often plausibly read as containing an implied 'equitable

tolling' exception," but that Congress can overcome the presumption by setting forth the

time limitation in "unusually emphatic form."     519 U.S. 347, 350 (1997).       In United

States v. Beggerly, the Court held that the 12-year statute of limitations for suits against



04-3030                                   15
the United States under the federal Quiet Title Act, 28 U.S.C. § 2409(g), was not subject

to tolling because of the "unusually generous" length of the time limitation and because

the statute provided that the limitations period would begin to run from the date the

plaintiff "knew or should have known of the claim of the United States." 524 U.S. 38,

48-49 (1998). As correctly noted by the dissent, Irwin and its progeny thus place a

general burden on Congress to avoid the presumption that particular time limitations

can be tolled. We think that Congress satisfied that burden here.

       It is, of course, beyond cavil that the provisions of 28 U.S.C. § 2107 and Fed. R.

App. P. 4(a)—which require a notice of appeal in a civil case in a United States District

Court to be filed within 30 days of the entry of judgment unless the district court extends

the appeal period under Rule 4(a)(5) or reopens the appeal period under Rule 4(a)(6)—

are "mandatory and jurisdictional" and not subject to equitable tolling. See Browder v.

Dir., Ill. Dep't of Corr., 434 U.S. 257, 264-65 (1977). In Browder, the Supreme Court

stated the rationale for Rule 4(a) as follows:

       The purpose of the rule is clear: It is "to set a definite point of time when
       litigation shall be at an end, unless within that time the prescribed
       application has been made; and if it has not, to advise prospective
       appellees that they are freed of the appellant's demands. Any other
       construction of the statute would defeat its purpose."

Id. at 264 (quoting Matton Steamboat Co. v. Murphy, 319 U.S. 412, 415 (1943)). We

see no reason to carve from the applicability of that rationale an exception for section

7703(b)(1) and Fed. R. App. P. 15(a)(1) and 26(b)(2).

       Rule 15(a)(1) provides that "[r]eview of an agency order is commenced by filing,

within the time prescribed by law, a petition for review."     Fed. R. App. P. 15(a)(1)

(emphasis added).     And Rule 26(b)(2) specifically excludes from this court's broad



04-3030                                   16
equitable power to suspend the requirements or provisions of any of the Federal Rules

of Appellate Procedure in a particular case the power to extend the time to file "a notice

of appeal from . . . an administrative agency [or] board . . . unless specifically authorized

by law." Fed. R. App. P. 26(b)(2); see also Fed. R. App. P. 2 (discussing a court's

power to suspend the Rules of Appellate Procedure, "except as otherwise provided in

Rule 26(b)"); Houston v. Lack, 487 U.S. 266, 279-80 (1988).              These rules were

presented to Congress pursuant to 28 U.S.C. § 2074 before going into effect, thus

providing Congress with the opportunity to "legislate any changes in them." Houston,

487 U.S. at 280. Congress did not.

       Indeed, the present case is distinguishable from our en banc decision in Bailey v.

West on this very ground. In Bailey, we read Irwin as we must here, to require that the

applicability of equitable tolling be presumed when available in comparable suits of

private parties, barring an expression of congressional intent to the contrary. Bailey,

160 F.3d at 1366. We expressly endorsed congressional ratification of the Federal

Rules of Appellate Procedure as sufficient to show Congress's intent to override Irwin's

presumption in favor of tolling. Id. at 1367. We then held that equitable tolling is

available to avoid time limitations in the statutory provisions governing an appeal to the

Court of Veterans Appeals. Id. at 1368. In so holding, we observed that the requisite

congressional intent necessary to avoid Irwin's presumption of tolling provided by Rules

4 and 26(b) is absent in the Bailey context because the Court of Veterans Appeals

prescribes its own procedural rules, and those rules are not presented to Congress. Id.

at 1367.   They instead go into effect after public notice and comment pursuant to

28 U.S.C. § 2071(b). Id. Such is not the case here, as Fed. R. App. P. 15(a)(1) and



04-3030                                   17
26(b)(2) surely provide the necessary expression of congressional intent to avoid the

tolling presumption.

       Finally, we note in Stone v. I.N.S. that the Supreme Court stated that statutory

provisions specifying the timing of review are "'mandatory and jurisdictional' . . . and are

not subject to equitable tolling." 514 U.S. 386, 405 (1995) (quoting Missouri v. Jenkins,

495 U.S. 33, 45 (1990)) (citing Fed. R. App. P. 26(b)). In Bailey, we rejected any

distinction between statutes of limitations and statutes specifying the time for review,

160 F.3d at 1367, and we read Stone to mean only "that statutory provisions specifying

the time for review are not subject to equitable tolling, after Irwin, if Congress has so

expressed its intent." Id. at 1366 (emphasis added). Bound as we are to our en banc

decision in Bailey, we do not attempt to resurrect such a distinction now.          To the

contrary, our decision today reiterates that which we first recognized in Bailey—that by

approving of Rules 15(a)(1) and 26(b)(2) without legislating changes to them, Congress

expressed a general intent to withhold the doctrine of equitable tolling from at least

those statutes that specify the time period for review by this court.

       Seeing no specific authorization for the equitable tolling of section 7703(b)(1), we

find that the congressionally approved statements of Rules 15(a)(1) and 26(b)(2) require

the conclusion first reached in Monzo and herein followed. Compliance with the filing

deadline of 5 U.S.C. § 7703(b)(1) is a prerequisite to our exercise of jurisdiction over

this case.

                                               D

       Though Mr. Oja does not raise the issue, we recognize that notwithstanding the

jurisdictional prerequisite that is the 60-day time period of 5 U.S.C. § 7703(b)(1), we



04-3030                                   18
may still be empowered to grant an extension within the confines of the narrow doctrine

of "unique circumstances." The Supreme Court first established the doctrine in Harris

Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215 (1962). Prior to expiration

of the 30-day period within which to appeal a district court's rulings, as was set forth in

then Fed. R. Civ. P. 73(a), the district court in Harris found excusable neglect and

granted the losing party's motion to extend the time to file its notice of appeal. Id. at

216. Finding no excusable neglect and noting that the time requirement of 28 U.S.C.

§ 2107 and Rule 73(a) within which an appeal must be taken is "mandatory and

jurisdictional," the Court of Appeals for the Seventh Circuit dismissed the appeal as

untimely. Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 303 F.2d 609, 611-

12 (7th Cir. 1962). In vacating the decision, the Supreme Court stated that "[i]n view of

the obvious great hardship to a party who relies upon the trial judge's finding of

'excusable neglect' prior to the expiration of the 30-day period and then suffers reversal

of the finding, it should be given great deference by the reviewing court." 371 U.S. at

217. The Court determined that the "unique circumstances" of the case were such that

the court of appeals "ought not to have disturbed the motion judge's ruling." Id.

       Soon after Harris was decided, the Court in Thompson v. I.N.S. expounded on

the "unique circumstances" doctrine by including within its ambit cases wherein a party

does an act deemed proper by the district court, which, if indeed properly done,

postponed the deadline for the filing of the party's appeal and led to an appeal that was

timely under a new but mistaken deadline. 375 U.S. 384, 387 (1964). The Court later

described the doctrine in Osterneck v. Ernst & Whinney as excusing tardiness in filing

"only where a party has performed an act which, if properly done, would postpone the



04-3030                                  19
deadline for filing his appeal and has received specific assurance by a judicial officer

that this act has been properly done." 489 U.S. 169, 179 (1989).

       The various courts of appeals have generally recognized the narrow reach of the

doctrine. See Properties Unlimited, Inc. Realtors v. Cendant Mobility Servs., 384 F.3d

917, 921-22 (7th Cir. 2004) (stating that "it cannot be enough if the district court

announces that it is giving the parties more time than the rules permit, because the

rules then would impose no limits on the court's discretion"); Arnold v. Wood, 238 F.3d

992, 996 (8th Cir. 2001) ("Since the doctrine is equitable in character, we must interpret

it narrowly, and apply it sparingly, lest its operation defeat the statutory scheme of

appellate jurisdiction crafted by Congress."); Pinion v. Dow Chem., U.S.A., 928 F.2d

1522, 1524 (11th Cir. 1991) (stating that a party's failure to read Fed. R. Civ. P. 6(b)

"cannot engender the kind of reasonable reliance contemplated by the Court's narrow

'unique circumstances' exception, especially in light of the mandatory and jurisdictional

nature of the filing rules at issue" (emphasis added)). We, too, have noted that Harris

and Thompson "presented the situation where the trial judge had granted a motion,

believed timely, for an extension of time in which to file the notice of appeal," and have

limited the "unique circumstances" doctrine to that setting. See Sofarelli Assocs., Inc. v.

United States, 716 F.2d 1395, 1396 (Fed. Cir. 1983).

      The present appeal neither includes similar factual circumstances nor arises from

the same procedural context as the appeals considered in Harris and Thompson.

Mr. Oja alleges only that MSPB and EEOC personnel told him after he contacted them

by phone that his complaint was a "mixed-case" complaint and that he could request

review by the EEOC. But even if the doctrine was generally applicable to appeals under



04-3030                                  20
section 7703(b)(1), and even if the alleged phone conversations occurred exactly as

Mr. Oja now reports, they are not sufficient to constitute "unique circumstances" that

would justify an extension of the time period of section 7703(b)(1) when measured

against the MSPB's written instruction to Mr. Oja in its final order to file an appeal with

this court "no later than 60 calendar days after [Mr. Oja's] receipt of this order" and its

admonition to "be very careful to file on time." Final MSPB Decision at 2; see also

Green v. Bisby, 869 F.2d 1070, 1072 (7th Cir. 1989) (noting that even a minute order

that purported to extend the time for filing a motion under Rule 59 does not suffice as a

specific assurance from the court).

       Finally, Mr. Oja concedes that the information he received orally "seemed at

odds" with the written directives from the Board about the place and time in which to

seek review of the decision on his breach of contract claim. Given the clearly official

nature of the written instructions and the more casual nature of the oral advice, surely a

reasonable person has some obligation to inquire further into the apparent

inconsistency of the two sources. Mr. Oja has not asserted that he made any attempt to

reconcile the differing advice he admits to having received. Here, the force of the error,

if any, in the advice received orally cannot be taxed solely to the government. In sum,

we hold that the "unique circumstances" doctrine provides no basis upon which this

court can grant an extension of the jurisdictional time period of 5 U.S.C. § 7703(b)(1).

                                            IV

       In conclusion, we hold that Mr. Oja's petition before the MSPB for the

enforcement of a prior settlement agreement between him and the agency did not

constitute a mixed-case appeal and is not reviewable by the district court. We further



04-3030                                   21
conclude that even if Irwin renders the filing limit of section 7703(b)(2) subject to

equitable tolling, an issue we need not decide, Irwin does not likewise affect section

7703(b)(1) and does not change this court's binding holding in Monzo that section

7703(b)(1) is not subject to equitable tolling.   Monzo, 735 F.2d at 1336.       Because

Mr. Oja failed to file a timely petition for review of the MSPB's decision with this court,

we dismiss his appeal for lack of jurisdiction.

                                          COSTS

       No costs.



                                        DISMISSED




04-3030                                    22
United States Court of Appeals for the Federal Circuit


                                          04-3030



                                     ROBERT K. OJA,

                                                          Petitioner,

                                              v.

                              DEPARTMENT OF THE ARMY,

                                                          Respondent.



NEWMAN, Circuit Judge, dissenting.




       I respectfully dissent from my colleagues' holding that 5 U.S.C. §7703(b)(1) is never

subject to equitable tolling. I cannot agree that equity can provide no relief in a case such

as this, where a seriously wronged person, relying on government misinformation, diligently

attempts to navigate the maze of employment law and procedure, seeking to stem the

agency's breach of the settlement agreement. Mr. Oja has yet to receive review of the

Board's denial of his claim, despite efforts in three tribunals.

                                              I

       The settlement agreement required the Army Corps of Engineers to purge Mr. Oja's

personnel files and to show the basis for his removal as, simply, "continued absence due to

illness." Thereafter, the Army told a reporter for the Washington Post, and posted on the


04-3030                                       1
Army's internet site, that Mr. Oja stopped coming to work without explanation and that he

was removed for excessive absence due to illness. These statements were not in

accordance with the settlement agreement. Mr. Oja states that these public statements

caused him to lose several employment opportunities. He sought compliance with the

settlement agreement, first before the MSPB. The MSPB refused to order enforcement,

holding that the agreement had not been violated.

       Mr. Oja's petition for enforcement of the settlement agreement contained allegations

that the Army's actions and statements were due to discrimination. He understood,

correctly, that the Federal Circuit can not receive discrimination appeals, and in "mixed

cases" requires waiver of any discrimination claim. Unwilling to abandon his discrimination

claim, he consulted with the MSPB and the EEOC by telephone and was told that his case

was appropriate for EEOC review. Mr. Oja filed an appeal to the EEOC. On March 6,

2003, the EEOC refused to "consider" the case, holding that it had no jurisdiction to enforce

a settlement agreement. The EEOC applied statute and regulation applicable to mixed

cases, stating that Mr. Oja's petition was governed by 29 C.F.R. §1614.303 (EEOC

regulation concerning petitions to the EEOC from MSPB decisions on mixed cases and

appeals), which is grounded on 5 U.S.C. §7702 (procedure for review of mixed cases).

       The EEOC informed Mr. Oja that he "had the right to file a civil action in an

appropriate United States District Court" for review of the MSPB decision within thirty days

of the EEOC's refusal to consider the case. Relevant statues are:

       5 U.S.C. §7703(b)(2). Cases of discrimination subject to . . . section 7702 . .
       . must be filed within 30 days . . . of the judicially reviewable action under
       such section 7702.




04-3030                                      2
        5 U.S.C. §7702(a)(3). Any decision of the Board . . . shall be a judicially
        reviewable action as of -- (A) the date of issuance of the decision if the
        employee . . . does not file a petition with the Equal Employment Opportunity
        Commission . . . or (B) the date the Commission determines not to consider
        the decision . . . .

The conditions of §7703(b)(2) and §7702(a)(3) existed, for the EEOC decided not to

"consider" the petition, rendering the Board's decision "judicially reviewable" as of March 6,

2003.

        Mr. Oja filed with the district court on April 4, 2003, within the statutory thirty days of

5 U.S.C. §7703(b)(2). The district court concluded, however, that these appeal criteria do

not apply to a petition to enforce a settlement agreement, and transferred the case to the

Federal Circuit under 28 U.S.C. §1631. The district court was aware that the time for

appeal from the MSPB to the Federal Circuit (sixty days from the MSPB decision) had

passed, and suggested that this court could equitably toll the deadline in view of the

circumstances. The sixty-day period is codified as follows:

        5 U.S.C. §7703(b)(1). Except as provided in paragraph (2) of this
        subsection, a petition to review a final order or final decision of the Board
        shall be filed in the United States Court of Appeals for the Federal Circuit.
        Notwithstanding any other provision of law, any petition for review must be
        filed within 60 days after the date the petitioner received notice of the final
        order or decision of the Board.

        My colleagues on this panel agree that the Federal Circuit is the proper forum.

However, ruling that for a transfer from the district court to the Federal Circuit, the date of

filing in the district court must meet the deadline for filing in the Federal Circuit, my

colleagues refuse to credit the filing date in the EEOC, which was within the 60-day limit,

and rule that the filing date in the district court is too late because it was after the 60-day

limit. However, the filings in both the EEOC and the district court were timely in those



04-3030                                          3
tribunals. Neither of these filings was late, and the transfer to the Federal Circuit from the

district court was in accordance with the applicable transfer statute. On these criteria,

without more, the filing in the Federal Circuit was in accordance with law and not untimely.

       The panel majority faults Mr. Oja for not knowing what his advisors at the MSPB and

the EEOC apparently did not know: that despite his allegations of discrimination in the

agency action and in the agency's breach of the agreement, his petition for enforcement

could not be reviewed by either the EEOC or the district court. Thus the panel majority

refuses to equitably allow the tardy filing. Yet at every step along this convoluted trail,

blazed in part by incorrect advice from the government tribunals themselves, Mr. Oja

exhibited diligence in pursuing his claim, filing within the deadlines that appeared to be

applicable. He is surely entitled to consideration of whether he meets the criteria for

equitable tolling, even if he is not accorded the benefit of the EEOC filing date. See Irwin v.

Dep't of Veterans Affairs, 498 U.S. 89 (1990) (time limits applicable to government

employees are subject to equitable tolling in the same way as for private sector

employees).

       Courts have applied equitable tolling in a variety of circumstances where the

claimant filed in the wrong venue. See, e.g., Burnett v. N.Y. Cent. R.R., 380 U.S. 424

(1965) (equitable tolling appropriate where employee filed FELA action in state court of

improper venue ); Herb v. Pitcairn, 325 U.S. 77 (1945) (equitable tolling appropriate where

employee filed FELA action in state court without jurisdiction); Valenzuela v. Kraft, 801 F.2d

1170 (9th Cir. 1986) (filing of discrimination complaint in state court without jurisdiction

equitably tolled filing requirement). Courts have also tolled filing deadlines when the lapse

was due to the other party. See, e.g., Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231


04-3030                                       4
(1959) (misrepresentation by adversary caused plaintiff to let filing period lapse); Holmberg

v. Armbrecht, 327 U.S. 392 (1946) (same). In Irwin the Court summarized, "We have

allowed equitable tolling in situations where the claimant has actively pursued his judicial

remedies by filing a defective pleading during the statutory period, or where the

complainant has been induced or tricked by his adversary's misconduct into allowing the

filing deadline to pass." 498 U.S. at 96 (citations omitted).

       Mr. Oja filed in the wrong venue, upon receiving advice from both the EEOC and the

MSPB that filing in the EEOC was proper. The EEOC then directed him to the district

court, by then after the Federal Circuit's 60-day limit. The district court duly transferred the

case to the Federal Circuit. Mr. Oja has been bounced and misdirected, through no fault of

his own, and has yet to receive review of the merits of his claim.

                                               II

       My colleagues hold that equitable tolling is not available. This holding departs from

precedent and congressional intent. The distinction that the panel majority draws between

§7703(b)(1) and §7703(b)(2) -- holding that Irwin is primarily relevant to §7703(b)(2) -- is

not supported by the Court's decisions or by post-Irwin Federal Circuit decisions. In

Martinez v. United States, 333 F.3d 1295, 1316 (Fed. Cir. 2003) (en banc), this court stated

that although statutes of limitations for actions against the government are "jurisdictional in

nature" that does not bar equitable tolling, for "the Court has made clear that whether

equitable tolling is available in suits against the government turns on congressional intent."

There is no hint that Congress intended to preclude equitable tolling in actions under

§7703(b)(1) while permitting it in actions under §7703(b)(2).           Such a distinction is

unsupported by any statutory term or legislative history. See Zipes v. TWA, 455 U.S. 385,


04-3030                                        5
394 (1982) (considering legislative history of §2000e-5 in assessing availability of equitable

tolling).

         Congress recognized that equity may be invoked to remedy statutory rigor, to avoid

injustice. The Report of the Joint Committee of the House and Senate recognized the

procedural complexity of cases containing allegations of discrimination, noting at least

"eight different times" when an employee may bring suit, and stating that if "suit is brought

in district court, the rules of equity provide that minor procedural irregularities in the

administrative process for which the employee is responsible should not predetermine the

outcome of the case." H.R. Conf. Rep. No. 95-1717, pt. 2, at 141-42 (1978). The Report

refers to the time limits placed on the employing agency, the MSPB, and the EEOC as

"mandatory -- not discretionary," emphasizing the rights of employees to have matters

resolved as quickly as possible, yet states that it is "not intended" that these government

entities "would automatically lose jurisdiction for failing to meet these time frames." Id. at

141. Congress made clear that it was preserving "the rules of equity" in employment

cases.

         The Conference Report manifests a consistent congressional intent to ensure that

the claim of a federal employee will be heard in a timely manner, and that the claim will be

determined on the merits and not by procedural irregularities. Thus the objectives of the

Civil Service statute include: "To strengthen the protection of legitimate employee rights"

and "reduce the redtape and costly delay in the [prior] personnel system." Civil Service

Reform Act of 1978: Report of the Comm. on Post Office and Civil Service on H.R. 11280,

95th Cong. 3 (1978).       The House Report observed that the prior system was "a

bureaucratic maze which . . . mire[d] every personnel action in redtape, delay and


04-3030                                       6
confusion." Id. at 2. The line that my colleagues today draw between §7703(b)(1) and

§7703(b)(2) is not in accord with this clearly stated congressional intent.

       In addition, the legislative history of §7703 states that "the wording [of §7703(a)] is

similar to the general provisions governing the right of review from agency actions found in

Section 702 of the Administrative Procedure Act." S. Rep. No. 969, 95th Cong., 2d Sess.

62; see Reid v. Dep't of Commerce, 793 F.2d 277, 283 (Fed. Cir. 1986). Heed is warranted

to the Court's admonition that "only upon a showing of 'clear and convincing evidence' of a

contrary legislative intent should the courts restrict access to judicial review" of

administrative actions. Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967); see Ballentine

v. Merit Sys. Prot. Bd., 738 F.2d 1244, 1247 (Fed. Cir. 1984) (discussing Abbott Labs. and

interpreting §7703(b)(1) in favor of judicial review of agency decision).

       In the context of this powerful legislative history, the Irwin Court's "rebuttable

presumption of equitable tolling" was established as "a realistic assessment of legislative

intent as well as a practically useful principle of interpretation." 498 U.S. at 95. The Court

adopted this "more general rule" to reduce the unpredictability associated with resolving the

existence of equitable tolling on a statute by statute basis. The Federal Circuit reaffirmed

the vitality of the Irwin rule in Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998) (en banc). In

Bailey we observed that "Irwin states a rule of general applicability for equitable tolling in

suits against the United States," id. at 1366, and "that the doctrine of equitable tolling, when

available in comparable suits of private parties, is available in suits against the United

States, unless Congress has expressed its intent to the contrary." Id.

       The majority's opinion offers a quite different perception of Irwin and its progeny. My

colleagues suggest that Irwin has not been universally accepted, stating that Irwin "sparked


04-3030                                        7
a split among the various courts of appeals," and that "most" of the courts have held that

§7703(b)(2) is subject to equitable tolling, maj. op. at 15, while highlighting the Sixth

Circuit's departure from Irwin in Dean v. Veteran's Admin. Reg'l Office, 943 F.2d 667, 670

(6th Cir. 1991). However, as the Tenth Circuit has observed, the Sixth Circuit "stand[s]

alone" among the circuits in its "untenable" approach, in which it "ascertains congressional

intent by parsing too finely the language of limitations statutes." Montoya v. Chao, 296

F.3d 952, 957 (10th Cir. 2002); see Nunnally v. MacCausland, 996 F.2d 1, 4 (1st Cir. 1993)

(stating that the limitations period in 5 U.S.C. §7703(b)(2) is subject to equitable tolling, and

describing the Sixth Circuit's decision in Dean as the only "decision since Irwin which

argues to the contrary"). In addition, as observed by the First Circuit in Nunnally, 996 F.2d

at 4, the Sixth Circuit's ruling on equitable tolling in Dean was not dispositive of the case.

       The panel majority frames the Irwin holding as limited to Title VII, and suggests that

it would be tenuous to apply Irwin to §7703(b)(1) because that section does not directly

reference Title VII. See Maj. op. at 15. However, in Bailey this court rejected the argument

that the "general rule is applicable to some, but not other, time limits that govern suits

against the United States." 160 F.3d at 1366. Both §7703(b)(1) and §7703(b)(2) state time

limits for the filing of claims against the federal employer, and both are directed to judicial

"review" of such claims. Under Irwin, both are subject to the availability of equitable tolling.

       In Zipes, 455 U.S. at 398, the Court held that the deadline for filing a discrimination

claim with the EEOC is like a statute of limitations, and subject to equitable tolling. The

Court rejected an overly technical interpretation of the Title VII timing provision as

"particularly inappropriate in a statutory scheme in which laymen, unassisted by trained

lawyers, initiate the process." Id. at 397 (quoting Love v. Pullman Co., 404 U.S. 522


04-3030                                        8
(1972)). The Court found that the legislative intent of Title VII weighs heavily in favor of

making equitable tolling available when warranted. The Court also examined precedent,

and stated that although the cases contained "scattered references to the timely-filing

requirement as jurisdictional, the legal character of the requirement was not at issue in

those cases, and as or more often in the same or other cases, we have referred to the

provision as a limitations statute." Id. at 395. The Court thus held that "a timely charge of

discrimination . . . is not a jurisdictional prerequisite . . . but a requirement that, like a statute

of limitations, is subject to waiver, estoppel, and equitable tolling." Id.

       There are compelling parallels between Zipes and the present case. First, as

discussed supra, the legislative history weighs heavily in favor of making equitable tolling

available in meritorious situations. And second, precedent supports the availability of

equitable tolling in this case. The panel majority relies heavily on Monzo v. Department of

Transportation, 735 F.2d 1335, 1336 (Fed. Cir. 1984), a case decided before the Court's

decision in Irwin. However in Monzo this court described the 60-day period of §7703(b)(1)

as a "statute of limitations." 735 F.2d at 1336. Such a statutory period is "subject to

waiver, estoppel and equitable tolling." Zipes, 455 U.S. at 398. The Monzo statement that

the provision is "statutory, mandatory, [and] jurisdictional" does not preclude consideration

of equitable tolling in accordance with Zipes and Irwin. The Federal Circuit, sitting en banc

in Bailey, rejected the argument that equitable tolling is unavailable because a statute is

labeled "mandatory and jurisdictional," observing that the statute in Irwin was "mandatory

and jurisdictional." This court stated "We do not think [that Supreme Court precedent] can

be read to mean that statutes specifying the time for review cannot be subject to equitable

tolling because such statutes are mandatory and jurisdictional." Bailey, 160 F.3d at 1366.


04-3030                                           9
       Nonetheless, the panel majority now holds that Monzo held that equitable tolling is

never available under §7703(b)(1), and has exhumed Monzo's appeal brief in purported

support of the argument that the issue was raised, although not mentioned in the court's

opinion. The opinion does not mention equitable tolling, does not recite that it was raised,

and does not rely on or even cite any precedent in which equitable tolling was at issue. In

Monzo the question before the court was whether the 60 days should be counted from the

date the MSPB's order was received by Monzo's attorney, or from the date it was received

by Monzo himself -- a question that the court held to be answered by the text of

§7703(b)(1), which refers specifically to the "date the petitioner received notice." Review of

the Monzo appeal brief shows that its only mention of "equity" is a terse reference to the

"inequity" of dismissal; there is no discussion of equitable tolling of the filing period. Monzo

does not support the panel majority's ruling that equitable tolling of §7703(b)(1) is

unavailable in appeals to the Federal Circuit. Thus, the view that §7703(b)(1) operates as a

statute of limitations and can be tolled is fully consistent with Monzo, and supported by

Zipes and Irwin.

       Concerning the question of whether Irwin may have relevance to Mr. Oja's case, my

colleagues turn to general procedural rules to support the position that equitable tolling is

unavailable under §7703(b)(1), citing Fed. R. App. P. 15(a)(1) and 26(b)(2). The panel

majority reasons that these rules establish that Congress "expressed a general intent to

withhold the doctrine of equitable tolling from at least those statutes that specify the time

period for review by this court." Maj. op. at 18-19. That is, that Congress in essence

overruled the applicability of Irwin to this court. It is not a reasonable interpretation of the

Federal Rules to suggest, as does the panel majority, that because Congress did not


04-3030                                       10
explicitly add the Irwin principle to the Rules, Congress intended to overturn the Court's

decision or rebut the presumption created therein. Irwin clarified the landscape of equitable

tolling, and none of the ensuing decisions citing Irwin suggest that it has been overruled by

act of Congress. Had Congress intended to overrule Irwin or rebut the presumption

created therein, it would necessarily have provided some indication of such intent. See

Bailey, 160 F.3d at 1368 (omission of express language allowing delay is consistent with

the removal of "unnecessary language where common sense would dictate tolling").

Silence cannot overturn a clear and well-accepted decision of the Court, or establish the

"clear contrary intent of Congress" necessary to overcome the presumption that equitable

tolling is available. Bailey, 160 F.3d at 1366.

                                             III

       Since no precedent precludes equitable tolling in Mr. Oja's situation, it remains to be

decided whether Mr. Oja's situation warrants such relief. Mr. Oja diligently sought to

pursue a claim for enforcement of the settlement agreement. His initial filing in the EEOC

was in a venue that held it was without jurisdiction of enforcement proceedings. From

there, he followed the instructions in the EEOC decision and filed in the district court. That

court transferred the case to the Federal Circuit, expressing the view that if the transfer

were deemed tardy, equitable relief could be available.

       My colleagues sound a footnote of chagrin that Mr. Oja took his case first to the

EEOC instead of the Federal Circuit. Maj. op. at 11 n.3. However, his search for a forum

that could consider his discrimination claim does not legally or equitably bar his right to a

hearing in the only forum that appears to have jurisdiction of his compliance claim. This

indirect path did not divest this court of its equitable power. Precedent and justice require


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that the request for equitable tolling be granted, and that Mr. Oja at long last be provided

the judicial review to which he is entitled.




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