Vocke v. MSPB (2016-2390)

NOTE: This disposition is nonprecedential.
United States Court of Appeals

for the Federal Circuit
______________________
ROBERT D. VOCKE, JR.,

Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,

Respondent
______________________
2016-2390
______________________
Petition for review of the Merit Systems Protection

Board in No. DC-1221-13-1266-W-1.
______________________
Decided: February 17, 2017

______________________
ROBERT D. VOCKE, JR., Germantown, MD, pro se.
KATHERINE MICHELLE SMITH, Office of the General

Counsel, Merit Systems Protection Board, Washington,
DC, for respondent. Also represented by BRYAN G.
POLISUK.
______________________
Before NEWMAN, MOORE, and OMALLEY, Circuit Judges.

PER CURIAM.
2 VOCKE v. MSPB
Robert Vocke seeks review of the May 2, 2016 decision

of the Merit Systems Protection Board (the Board)
dismissing his whistleblower appeal for lack of jurisdic-
tion. Vocke v. Dept of Commerce, No. 13-1266, 2016 WL
1742994 (M.S.P.B. May 2, 2016). For the foregoing rea-
sons, we dismiss for lack of jurisdiction.
BACKGROUND
Vocke is employed as a Physical Scientist with the
National Institute of Standards and Technology (NIST),
part of the Department of Commerce (the Agency). In
July and August 2012, Vocke sent emails to his supervi-
sors and up his chain of command regarding alleged
improprieties in the Agencys performance pay and bonus
compensation. Specifically, Vocke believed that certain
managers were receiving significantly higher compensa-
tion than performance ratings warranted. Vocke received
no response until August 15, 2012, when his second-level
supervisor, Gregory Turk, sent him a Letter of Counsel-
ing. That letter stated, in relevant part:
You are receiving this counseling memorandum to
address your demonstrated failure to communi-
cate with your supervisors appropriately and to
clarify my expectations for your conduct in the fu-
ture.
...
In each of the above-described emails, I find your
tone to be disrespectful, derisive, and unprofes-
sional. . . .
...
I expect that you will communicate appropriately
with your supervisors in the future and be more
cognizant of your tone in those communications. I
expect that, going forward, you will be profession-
al and courteous at all times. It is your responsi-
VOCKE v. MSPB 3
bility to conduct yourself in a professional man-

ner.
This memorandum is only a counseling and will
not be included in your Official Personnel Folder.
I must remind you that any future misconduct
may result in disciplinary action up to and includ-
ing removal from the Federal Service.
On February 18, 2013, Vocke filed a complaint with the
Office of Special Counsel (OSC), alleging that the Agen-
cy was acting in retaliation against lawful whistleblowing
disclosures. Specifically, Vocke alleged that he had
received a corrective action counseling letter on the
threat of removal from Federal Service in response to his
disclosure of information evidencing a violation of law,
rule, or regulation, gross mismanagement, a gross waste
of funds, and an abuse of authority. Vocke, 2016 WL
1742994, at 3; see generally 5 U.S.C. 2302(b)(8). On
May 30, 2013, OSC informed Vocke that it had terminat-
ed its inquiry into his allegations, and Vocke appealed to
the Board.
Finding no factual dispute bearing on the issue of
jurisdiction, the Administrative Judge (AJ) dismissed
the appeal for lack of jurisdiction without a hearing, on
two grounds. Vocke, 2016 WL 1742994, at 1. First, the
AJ determined that the Letter of Counseling did not rise
to the level of personnel action within the meaning of
2302(b)(8). Second, the AJ determined that the contents
of Vockes disclosures concerned, at best, debatable ex-
penditures rather than illegal or grossly wasteful spend-
ing, making his disclosures not protected under
2303(b)(8). Vocke filed a petition for review to the
Board.
On May 2, 2016, the Board denied Vockes petition for
review, affirming the AJs finding that the Letter of
Counseling did not constitute personnel action, and
vacating the AJs alternative finding as to the protectabil-
4 VOCKE v. MSPB
ity of the contents of Vockes disclosures. Id. That deci-

sion stated that [y]ou have the right to request review of
this final decision by the U.S. Court of Appeals for the
Federal Circuit, and [t]he court must receive your
request for review no later than 60 days after the date of
this order. Id. at 1213 (citing 5 C.F.R. 1201.113).
Vocke filed a petition for review before this court,
which we received on July 7, 2016. The Agency, previous-
ly the respondent in this case, moved to dismiss Vockes
appeal as untimely. We denied that motion without
prejudice, and instructed the parties to address the issue
in their briefs.
DISCUSSION
Congress has limited this court's review of final deci-
sions of the Board to those petitions filed within 60 days
after the Board issues notice of the final order or decision
of the Board. 5 U.S.C. 7703(b)(1)(A). Failure to comply
with that statutory deadline prevents jurisdiction in this
court. See Oja v. Dept of the Army, 405 F.3d 1349, 1360
(Fed. Cir. 2005) (Compliance with the filing deadline of
5 U.S.C. 7703(b)(1) is a prerequisite to our exercise of
jurisdiction over this case.); see also Monzo v. Dept of
Transp., 735 F.2d 1335, 1336 (Fed. Cir. 1984) (stating
that the filing deadline under 5 U.S.C. 7703(b)(1) is
statutory, mandatory [and] jurisdictional).
The Boards filing of its decision . . . start[s] the 60-
day period under 7703(b)(1)(A). Hearn v. Dept of
Army, No. 2013-3137, 2016 WL 5746341, at *2 (Fed. Cir.
Oct. 4, 2016). The Board filed its final decision on May 2,
2016, resulting in a deadline to petition for review of July
1, 2016. We received Vockes petition on July 7, 2016.
Vocke appears to contend that his petition was timely
because it was filed only 57 days after [he] received the
final order. Pet. Reply Br. at 4 (emphasis added). To the
extent Vocke believes that the 60-day period under
VOCKE v. MSPB 5
7703(b)(1)(A) runs from date of receipt, he is incorrect.

Vocke appears to be relying on now-amended statutory
language. Prior to 2012, 7703(b)(1)(A) stated that
petitions must be filed within 60 days after the date the
petitioner received notice of the final order or decision. 5
U.S.C. 7703(b)(1)(A) (2011) (emphasis added). The
current language of the statute, which indisputably
applies here, states that petitions shall be filed within 60
days after the Board issues notice of the final order or
decision. 5 U.S.C. 7703(b)(1)(A) (2016) (emphasis
added). Vocke has not persuaded us that the new statu-
tory language should, counterintuitively, be interpreted
identically to the old.
To the extent Vocke is requesting equitable tolling
due to his misunderstanding of the 60-day period, that
argument is rejected as well. Vocke raises compelling
factual arguments on this frontincluding, for example,
that our own Guide for Pro Se Petitioners and Appel-
lants may have had out-of-date language. There are also
legal arguments which can be made to support application
of equitable tolling to this particular filing deadline. See
Fedora v. Merit Sys. Prot. Bd., No. 2015-3039 (Fed. Cir.
Feb. 16, 2017) (Plager, J., dissenting). This panel is
bound, however, by our prior precedent which unequivo-
cally states that the time period of section 7703(b)(1) is
not subject to equitable tolling. Oja, 405 F.3d at 1357.
To the extent Vocke wishes to urge equitable tolling, he
must therefore do so to the en banc court.
CONCLUSION
Because Vockes petition for review is untimely, we do
not have jurisdiction to address its merits. Accordingly,
we dismiss.
DISMISSED
Costs
No costs.

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NOTE: This disposition is nonprecedential.

United States Court of Appeals

ROBERT D. VOCKE, JR.,

MERIT SYSTEMS PROTECTION BOARD,

Petition for review of the Merit Systems Protection

Decided: February 17, 2017

ROBERT D. VOCKE, JR., Germantown, MD, pro se.

KATHERINE MICHELLE SMITH, Office of the General

Before NEWMAN, MOORE, and OMALLEY, Circuit Judges.

Robert Vocke seeks review of the May 2, 2016 decision

bility to conduct yourself in a professional man-

ity of the contents of Vockes disclosures. Id. That deci-

7703(b)(1)(A) runs from date of receipt, he is incorrect.

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