Daniel Asprec Novilla v. Department of Agriculture

N OTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DANIEL ASPREC NOVILLA,
Petitioner
v.
DEPARTMENT OF AGRICULTURE,
Respondent
______________________
2023-1118
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0752-19-0220-I-2.
______________________
Before D YK, REYNA, and CHEN, Circuit Judges.
P ER CURIAM .
O R D E R
In response to this court’s show cause order, Daniel
Asprec Novilla argues in support of this court’s jurisdiction.
The Department of Agriculture urges dismissal.
Mr. Novilla appealed his removal from the Department
to the Merit Systems Protection Board, asserting an affirm-
ative defense that the removal was in retaliation for filing
an Equal Employment Opportunity complaint alleging
harassment based on race, national origin, color, and re-
prisal. The Board’s decision affirming the Department’s
Case: 23-1118 Document: 14 Page: 1 Filed: 03/02/2023

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NOVILLA v. DEPARTMENT OF AGRICULTURE 2
removal action became final on October 30, 2020. This
court received Mr. Novilla’s petition for review of that final
decision on October 28, 2022.
We first turn to the Department’s argument that this
appeal falls outside the jurisdiction that Congress estab-
lished for this court. See 5 U.S.C. § 7703; 28 U.S.C. § 1295.
Under 28 U.S.C. § 1295(a)(9), this court has jurisdiction to
review a “final order or final decision” of the Board pursu-
ant to 5 U.S.C. § 7703(b)(1), (d). Section 7703(b)(1) sends
final Board decisions to us for review except for certain
“[c]ases of discrimination subject to [5 U.S.C. § 7702],”
which are instead diverted to district courts.
§ 7703(b)(1)(A); see § 7703(b)(2).
Although Mr. Novilla raised a claim of discrimination
before the Board, “a petitioner’s explicit waiver of h[is] dis-
crimination claims in such a case effectively converts the
case to a standard appeal of the adverse personnel action—
providing this court with jurisdiction to review the Board’s
decision (without considering any discrimination claims).”
Harris v. SEC, 972 F.3d 1307, 1318 (Fed. Cir. 2020); see
§ 7703(b)(1)(A) (diverting only “[c]ases of discrimination” to
district court). And here, Mr. Novilla filed a Statement
Concerning Discrimination indicating that he has aban-
doned his discrimination claims raised before the Board.
See ECF No. 12 at 3.*
Having concluded that this appeal would otherwise be
subject to our jurisdiction, we turn to timeliness. The
timely filing of a petition from the Board to this court is a
jurisdictional requirement and “not subject to equitable
tolling.” Fedora v. Merit Sys. Prot. Bd., 848 F.3d 1013, 1016
* While Mr. Novilla’s response to the court’s show
cause order discussed his discrimination allegations, that
submission was filed before the revised Statement Con-
cerning Discrimination.
Case: 23-1118 Document: 14 Page: 2 Filed: 03/02/2023

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NOVILLA v. DEPARTMENT OF AGRICULTURE 3
(Fed. Cir. 2017). A petition for review of a final decision
“shall be 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); cf. Fed. R. App. P. 26(b)(2) (prohibiting this
court from extending or reopening the time to file the peti-
tion for review “unless specifically authorized by law”).
Here, Mr. Novilla does not dispute that his petition was
filed outside of this statutory deadline. Rather, Mr. Novilla
contends that his failure to timely file his petition for re-
view is excusable because his prior lawyer informed him
“he would file the petition for review” but in fact “never
filed it,” ECF No. 1-2 at 1. While this court is sympathetic
to Mr. Novilla’s situation, we can only consider whether the
petition was timely filed and cannot excuse a failure to
timely file based on individual circumstances. Because the
appeal was untimely, we must dismiss.
Accordingly,
I T I S O RDERED T HAT :
(1) The petition for review is dismissed.
(2) Each side shall bear its own costs.
March 2, 2023
Date
F OR THE COURT
/s/ Peter R. Marksteiner
Peter R. Marksteiner
Clerk of Court
Case: 23-1118 Document: 14 Page: 3 Filed: 03/02/2023

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