David B. Nolan, Sr. v. Department of Energy

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAVID B. NOLAN, SR.,
Petitioner
v.
DEPARTMENT OF ENERGY,
Respondent
______________________
2023-2242
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-1221-17-0681-W-1.
______________________
ON MOTION
______________________
Before L OURIE, M AYER, and STARK, Circuit Judges.
P ER CURIAM .
O R D E R
In response to this court’s August 30, 2023, order to
show cause, the Department of Energy urges dismissal of
this petition for review as untimely. David B. Nolan, Sr.,
responds and moves “for a U.S. Supreme Court referral,”
ECF No. 11 at 1, and summary judgment, ECF No. 12.
Case: 23-2242 Document: 17 Page: 1 Filed: 11/06/2023

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NOLAN v. ENERGY 2
In 2001, the Merit Systems Protection Board rejected
Mr. Nolan’s challenge to his removal from the Department,
including Mr. Nolan’s assertion that the agency action was
the result of discrimination. Nolan v. Dep’t of Energy, No.
DC-0752-01-0289-I-1, 2001 WL 1620680 (M.S.P.B. May 17,
2001). In 2017, Mr. Nolan filed the present action at the
Board, alleging retaliation for whistleblowing activity. The
Board docketed the action as an individual right of action
(“IRA”) appeal and issued its final decision dismissing the
action on May 25, 2023. On July 28, 2023, this court re-
ceived Mr. Nolan’s petition.
Under 5 U.S.C. § 7703(b)(1)(B), a petition for this
court’s review of a final decision by the Board in an IRA
appeal must be filed “within 60 days after the Board issues
notice of the final . . . decision.” The court has found iden-
tical language in § 7703(b)(1)(A), for appeals to this court
from the Board in other types of cases, to provide a deadline
that is mandatory and jurisdictional, and thus cannot be
waived or equitably tolled. Fedora v. Merit Sys. Prot. Bd.,
848 F.3d 1013, 1016 (Fed. Cir. 2017). Here, we received the
petition outside of that deadline, and we conclude dismissal
is appropriate. We also see no reason to certify a question
to the Supreme Court under 28 U.S.C. § 1254(2). See Ruth-
erford v. Am. Med. Ass’n, 379 F.2d 641, 644–45 (7th Cir.
1967).*
* Mr. Nolan’s suggestion that this is a “mixed case”
generally subject to review in federal district court, see
Perry v. Merit Sys. Prot. Bd., 582 U.S. 420 (2017), conflates
this action with his prior 2001 case. The Board treated the
present matter solely as an IRA appeal and not a direct ap-
peal from the removal action. Thus, as this matter has
come to us on review, it is not a mixed case. See Ash v. Off.
of Pers. Mgmt., 25 F.4th 1009, 1011 (Fed. Cir. 2022)
Case: 23-2242 Document: 17 Page: 2 Filed: 11/06/2023

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NOLAN v. ENERGY 3
Accordingly,
I T I S O RDERED T HAT :
(1) The case is dismissed.
(2) All pending motions are denied.
(3) Each side shall bear its own costs.
November 6, 2023
Date
F OR THE COURT
(“Individual Right of Action appeals cannot be mixed
cases . . . .”).
Case: 23-2242 Document: 17 Page: 3 Filed: 11/06/2023

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