United States District Court, W.D. Kentucky, Louisville
Dana L. ABELL PETITIONER
DEPARTMENT OF VETERANS AFFAIRS RESPONDENT
CHARLES R. SIMPSON III, SENIOR JUDGE.
August 17, 2018, this Court ordered the parties to submit
simultaneous briefs addressing whether the petition for
review is time-barred and subject to dismissal. DN 5.
Respondent responded on September 7, 2018. DN 6. Petitioner
did not respond. This matter is now ripe for review. For the
following reasons, the Court finds the petition to be
time-barred, dismisses the petition, and certifies that any
appeal would not be taken in good faith. As a result, the
Court further denies the Petitioner's motion to proceed
in forma pauperis as moot.
Dana L. Abell was hired by the Respondent Department of
Veterans Affairs (VA) on July 31, 2011. DN 3, p. 4.
During her employment, Abell was granted leave under the
Family and Medical Leave Act three times for issues relating
to pregnancy, maternity leave, and medication she was taking.
DN 3, p. 5. She quickly utilized all the time she was
granted. DN 3, p. 5. As an accommodation, the VA approved her
request to take leave without pay. DN 3, p. 5- 6. Abell was
cleared to return to work on April 4, 2016, but never did. DN
3, p. 6. The VA notified Abell that she was acting without
official leave and, on April 25, 2016, she was officially
reprimanded. DN 3, p. 6. On December 9, 2016, Abell was
removed from her position. DN 3, p. 6. In making that
decision, the VA cited 79 instances of her unauthorized
absence. DN 3, p. 6.
filed complaints with the Equal Employment Opportunity
Commission and the Merit Systems Protection Board (MSPB),
alleging that the VA had taken improper personnel action
against her and that such action was discriminatory on the
basis of gender and pregnancy-related disability. DN 3, p.
10, 14. Both agencies found no evidence of wrongdoing. DN 3,
p. 10, 14. The MSPB's order became final on March 6,
2018. DN 3, p. 16. On April 30, 2018, Abell filed a petition
for review against the VA with the United States Court of
Appeals for the Federal Circuit, along with a motion to
proceed in forma pauperis. DN 3, p. 2; DN 4. That
court transferred the case to this Court upon finding that it
lacked jurisdiction over Abell's “mixed”
petition. DN 1.
a final MSPB decision must be appealed to the U.S. Court of
Appeals for the Federal Circuit within sixty days of the
decision becoming final. 5 U.S.C. § 7703(b)(1)(A).
However, there are two exceptions. The first applies to
“mixed cases” where “an employee complains
of a personnel action serious enough to appeal to the MSPB
and alleges that the action was based on
discrimination.” Kloeckner v. Solis, 568 U.S.
41, 44 (2012) (italics in original). See 5 U.S.C.
§ 7703(b)(2). Those cases must be filed with the
appropriate district court within 30 days after the MSPB
decision becomes final. Id. The second requires pure
whistleblower claims to be filed in any court of appeals with
competent jurisdiction within 60 days. 5 U.S.C. §
Abell's claim is a “mixed” claim falling
under § 7703(b)(2). This is clearly evidenced by the way
she filed her petition and her arguments at the MSPB and the
Federal Circuit. In cases involving a petition for review of
a final decision of the MSPB, the Federal Circuit utilizes a
form styled “Petitioner's Fed. Cir. R. 15(c)
Statement Concerning Discrimination.” In Section A of
the form, the petitioner is asked to indicate by checking a
box if she was not making a claim of discrimination by reason
of race, sex, age, national origin, or handicapped condition
(Box 1); or if she was abandoning such a claim (Box 2). On
Abell's form, Section A contains no checked boxes,
indicating she was making a discrimination claim and did not
wish to abandon it. Fed. Cir. DN 3. At the MSPB, she alleged
that “the agency created a hostile work environment
that resulted in her absences from work.” DN 3, p. 9.
Then, on petition for review, the Federal Circuit noted that
Abell “asserted affirmative defenses of gender and
pregnancy-related discrimination” and, in informal
briefing to that court, had “advance[d] her
discrimination claim.” DN 1, p. 1-2.
the petition is a “mixed” petition falling under
§ 7703(b)(2), Abell had 30 days to file in the
appropriate district. These time limits are mandatory,
jurisdictional, and not subject to equitable tolling.
Hilliard v. U.S. Postal Serv., 814 F.2d 325, 327
(6th Cir. 1987) (“the 30 day limitations period for
filing an appeal under 5 U.S.C. § 7703(b)(2) is a
jurisdictional prerequisite to judicial review of an MSPB
decision and cannot be extended”); Johnson v. U.S.
Postal Serv., 64 F.3d 233, 238 (6th Cir. 1995)
(“the doctrine of equitable tolling does not apply to
Section 7703(b)(2).”). The order of the MSPB became
final on March 6, 2018 and the appeal to the Federal Circuit
was not filed until April 30, 2018, 25 days after it was
The petition is, therefore, untimely.
petition filed by Abell is untimely and, as a result, this
Court lacks jurisdiction. Therefore, the Court will dismiss
the petition. As a result of the dismissal, the Court further
denies the Petitioner's motion to proceed in forma
pauperis as moot. The same reasons that cause this Court
to dismiss the case also compel the Court to find that an
appeal would not be taken in good faith. See 28
U.S.C. § 1915(a)(3).
separate order will be entered in accordance ...