Vocke v. Merit Systems Protection Board
680 F. App'x 944
| Fed. Cir. | 2017Background
- Robert Vocke, a NIST Physical Scientist, sent emails in 2012 alleging improper performance pay/bonuses for managers.
- A second-level supervisor issued a Letter of Counseling (Aug 2012) criticizing Vocke’s tone and warning that future misconduct could lead to removal.
- Vocke filed a whistleblower complaint with the Office of Special Counsel (OSC) in Feb 2013 alleging retaliation for protected disclosures; OSC closed its inquiry and Vocke appealed to the MSPB.
- An MSPB Administrative Judge dismissed the appeal for lack of jurisdiction, finding the counseling letter was not a "personnel action" under 5 U.S.C. § 2302(b)(8); the AJ also alternatively held Vocke’s disclosures were not protected.
- The full Board affirmed the jurisdictional dismissal (May 2, 2016) and Vocke filed a petition for review to the Federal Circuit received on July 7, 2016.
- The Federal Circuit found the petition untimely because the governing statute requires filing within 60 days after the Board issues notice (statutory deadline began May 2, 2016), and precedent bars equitable tolling of that deadline.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Federal Circuit has jurisdiction because Vocke’s petition was timely | Vocke argued his petition was timely because it was filed 57 days after he received the Board’s decision and sought equitable tolling for any misunderstanding | Agency argued the statutory 60-day filing period runs from the Board’s issuance date, not receipt, and the petition was late | Held: Petition untimely; jurisdiction lacking because filing deadline runs from Board issuance and is not equitably tolled |
| Whether the Letter of Counseling constituted a "personnel action" under § 2302(b)(8) | Vocke implied the counseling was retaliatory personnel action for protected disclosures | Agency/Board maintained counseling did not rise to the level of a "personnel action" | Held: Board previously determined counseling was not a personnel action; court did not reach merits due to lack of jurisdiction |
Key Cases Cited
- Oja v. Dep’t of the Army, 405 F.3d 1349 (Fed. Cir. 2005) (holding compliance with 5 U.S.C. § 7703(b)(1) filing deadline is a prerequisite to the court’s jurisdiction and rejecting equitable tolling of that deadline)
- Monzo v. Dep’t of Transp., 735 F.2d 1335 (Fed. Cir. 1984) (describing the filing deadline under 5 U.S.C. § 7703(b)(1) as statutory, mandatory, and jurisdictional)