Heather A. Boyd v. Department of the Treasury

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HEATHER A. BOYD,
Petitioner
v.
DEPARTMENT OF THE TREASURY,
Respondent
______________________
2025-1128
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-15-0128-I-1.
______________________
Decided: November 6, 2025
______________________
HEATHER A. BOYD, Honolulu, HI, pro se.
BORISLAV K USHNIR, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
ELIZABETH M ARIE HOSFORD, P ATRICIA M. MCCARTHY ,
YAAKOV R OTH .
______________________
Before L OURIE, S TOLL , and STARK, Circuit Judges.
Case: 25-1128 Document: 56 Page: 1 Filed: 11/06/2025

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BOYD V. TREASURY 2
P ER CURIAM .
Former Internal Revenue Service (“IRS”) employee
Heather A. Boyd petitions for review of a final decision of
the Merit Systems Protection Board (“the Board”), which
affirmed the dismissal of her appeal in SF-0752-15-0128-I-
1. S.A. 1–10.1 For the following reasons, we dismiss her
appeal as untimely filed.
BACKGROUND
In October 2012, the Department of the Treasury (“the
agency”) removed Boyd from her position as a Tax
Specialist for the IRS on “charges of failure to follow a
managerial directive and failure to properly secure her
government-issued laptop computer.” Id. at 2. Boyd and
the IRS then entered into a Last Chance Agreement
(“LCA”), converting the removal to a suspension. Id. As
part of the LCA, Boyd agreed to comply with various
conditions, any violation of which could result in her
termination. Id. Notably, she waived her right to appeal
the “procedures or merits” of any future termination action,
id. at 28, but “retain[ed] the right to challenge whether or
not she breached the” LCA, id. at 27. In other words, Boyd
could challenge an agency decision finding that she had
breached the LCA, but she waived her right to challenge
the merits of her termination. See id. at 27–28. The LCA
was to remain in effect from November 2012 through
October 2014. Id. at 2.
In October 2014, Boyd was involved in two incidents
which the agency found to violate the terms of the LCA. Id.
at 3. The agency thus terminated her employment. Id.
She appealed to the Board, arguing that she did not violate
the LCA and should not have been terminated. See id. An
administrative judge (“AJ”) found that Boyd had violated
the LCA and the LCA was not unenforceable. Id. at 16, 18.
1 S.A. refers to the Supplemental Appendix filed with
the agency’s Informal Response Brief.
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BOYD V. TREASURY 3
The AJ then dismissed her appeal for lack of jurisdiction
due to waiver. Id. at 3, 18–19. In September 2015, the
Board issued a final decision affirming the AJ’s
determination. Id. at 2.
Boyd now petitions for review by this court. See ECF
No. 18-2 (“Pet’r Inf. Op. Br.”) at 1. The agency, however,
asks us to dismiss the appeal as untimely. ECF No. 31
(“Inf. Resp. Br.”) at 9–12.
D ISCUSSION
We agree with the agency that Boyd’s appeal is
untimely. Boyd’s petition comes approximately nine years
after the Board’s final decision. See Pet’r Inf. Br. at 1 (Nov.
2024); S.A. at 1 (Sept. 2015). Boyd, however, was required
to file her petition for appeal from the Board within 60 days
from the date the Board issued notice of its decision. See
5 U.S.C. § 7703(b)(1). Because she did not do so, her
petition was untimely. See id.
But our analysis need not end there. The Supreme
Court has determined that section 7703(b)(1)’s timing
requirement is non-jurisdictional, but did not determine if
it is subject to equitable tolling. See Harrow v. Dep’t of Def.,
601 U.S. 480, 489–90 (2024) (holding that section
7703(b)(1)’s deadline is non-jurisdictional, but leaving the
issue of equitable tolling for remand). “[E]quitable tolling
pauses the running of, or ‘tolls,’ a statute of limitations
when a litigant has pursued [her] rights diligently but
some extraordinary circumstance prevents [her] from
bringing a timely action.” Lozano v. Montoya Alvarez,
572 U.S. 1, 10 (2014).
Even if equitable tolling were available for litigants
subject to section 7703(b)(1), a question we do not resolve
on this appeal, Boyd would not have met her burden to
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BOYD V. TREASURY 4
establish its application.2 “Generally, a litigant seeking
equitable tolling bears the burden of establishing two
elements: (1) that [s]he has been pursuing [her] rights
diligently, and (2) that some extraordinary circumstance
stood in [her] way.” Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005). Boyd makes no showing in her Informal Opening
Brief as to the diligent pursuit of her rights or that any
extraordinary circumstances stood in her way from
bringing a timely appeal. Cf. Pet’r Inf. Op. Br. 2–3. In her
Informal Reply Brief, Boyd states that the Board’s final
order “was not delivered until ten years subsequent to the
date of issuance.” ECF No. 49 (“Pet’r Inf. Rep. Br.”) at 14.
She also argues that the MSPB process is “unclear [and]
confusing.” Id. at 3.
Boyd’s arguments are unpersuasive. First, Boyd has
not satisfied her burden that she “has been pursuing [her]
rights diligently,” see Pace, 544 U.S. at 418, as she provides
no evidence of her assertion regarding the ten-year delay
of delivery. Cf. Pet’r Inf. Rep. Br. at 7–13, 16–22. Second,
Boyd’s 60-day clock began on the date the Board issued
notice of its final decision—in September 2015. See
5 U.S.C. § 7703(b)(1)(A) (“any petition for review shall be
filed within 60 days after the Board issues notice of the final
order or decision of the Board” (emphasis added); Fed.
Educ. Ass’n-Stateside Region v. Dep’t of Def., Domestic
Dependents Elementary & Secondary Sch., 898 F.3d 1222,
1224 (Fed. Cir. 2018), overruled on other grounds by
Harrow, 601 U.S. 480 (2024); S.A. at 1. And Boyd was
given clear notice of her appeal rights and timeline in the
Board’s final decision. See S.A. at 9 (giving notice of the
60-day deadline and warning “to be very careful to file on
2 The agency argues our decision in Oja v. Department
of the Army, 405 F.3d 1349 (Fed. Cir. 2005), resolves the
issue of equitable tolling. Given that Boyd cannot satisfy
the requirements of equitable tolling, we do not reach a
conclusion on this argument.
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BOYD V. TREASURY 5
time”). She was also given resources to further assist with
her appeal. See id. (referencing an appeal guide for pro se
petitioners). Accordingly, Boyd’s arguments would not
constitute “extraordinary circumstances” to justify
equitable tolling. See Lozano, 572 U.S. at 10.
CONCLUSION
For the foregoing reasons, we dismiss Boyd’s appeal.
We do not reach the merits.
DISMISSED
COSTS
The parties shall bear their own costs.
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