Kenneth O. Wynn v. Department of the Army

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KENNETH O. WYNN,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2024-1979
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-19-0203-C-1.
______________________
Decided: March 10, 2025
______________________
K ENNETH ORLANDO WYNN, Enterprise, AL, pro se.
COLLIN T. M ATHIAS, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by BRIAN M.
BOYNTON, ELIZABETH MARIE H OSFORD, PATRICIA M.
M C CARTHY.
______________________
Before LOURIE , TARANTO, and S TOLL, Circuit Judges.
Case: 24-1979 Document: 30 Page: 1 Filed: 03/10/2025

-- 1 of 6 --

WYNN v. ARMY 2
PER CURIAM.
Dr. Kenneth O. Wynn appeals a decision of the Merit
Systems Protection Board (Board) denying his petition for
enforcement of his settlement with the Army. For the fol-
lowing reasons, we dismiss.
BACKGROUND
The Army employed Dr. Wynn as a dentist until De-
cember 2018. At that time, the Army provided Dr. Wynn a
notice of removal. Dr. Wynn appealed his removal to the
Board. Before a hearing, however, Dr. Wynn and the Army
agreed to a settlement.
The terms of the settlement agreement required
Dr. Wynn to waive “any and all claims . . . arising from, or
relating in any way to [his] former employment with the
[Army],” and “fully release[d] . . . the [Army] . . . of any and
all claims or liabilities concerning former employment with
the [Army].” ECF No. 19 at 81.1 In exchange, the Army
“allow[ed] [Dr. Wynn] to resign,” agreed to “remove all re-
moval related personnel actions from [Dr. Wynn’s] person-
nel File,” and agreed to “pay [Dr. Wynn] a global
settlement amount of $60,000.” Id. at 82. Pertinent to
Dr. Wynn’s appeal, the settlement also recited
that: (1) Dr. Wynn would be responsible for “disbursement
for attorney fees,” (2) the Army would report the payment
“to the Internal Revenue Service (IRS),” and (3) “the ques-
tion of tax liability, if any, as a result of such payment is a
matter to be resolved solely between [Dr. Wynn] and the
IRS.” Id.
1 ECF No. 19 is Dr. Wynn’s Informal Brief and Ap-
pendix. Because neither is numbered, we cite to the ECF
system’s PDF pagination.
Case: 24-1979 Document: 30 Page: 2 Filed: 03/10/2025

-- 2 of 6 --

WYNN v. ARMY 3
In October 2019, the Administrative Judge received
the signed settlement agreement, entered the settlement
into the record, and dismissed Dr. Wynn’s appeal.
In November 2019, the Defense Finance Accounting
Service (DFAS) issued Dr. Wynn a payment, but the DFAS
processed the settlement payment as wages instead of a
lump sum. As a result, Dr. Wynn received $39,883.98
($20,116.02 withheld); not a lump sum of $60,000.
Dr. Wynn notified the Army of the perceived error, and the
Army paid Dr. Wynn a lump sum of $60,000 in December
2019. He repaid DFAS the $39,883.98.
Following the exchange of payments, DFAS sent
Dr. Wynn his Form W-2 for the 2019 tax fiscal year. That
W-2 was incorrect. Following discussions between the par-
ties, DFAS issued Dr. Wynn a Form W-2 C which correctly
reported the payments he received that year. The Army
also sent Dr. Wynn a copy of the Form 1099-MISC it filed
with the IRS reporting the settlement payment of $60,000.
Although Dr. Wynn received his W-2 C before the ex-
tended 2020 tax deadline, he elected not to file his taxes—
because he believed that the W-2 C was incorrect. Accord-
ing to Dr. Wynn, because the Army reported his settlement
payment to the IRS via the 1099-MISC, the Army should
not have also reported the payment on his W-2. Because
Dr. Wynn believed the combination of the W-2 C and 1099-
MISC incorrectly reported his income, in November 2020,
Dr. Wynn’s counsel emailed the AJ who had originally
overseen his case requesting her involvement. The AJ con-
sidered that email to be a petition for enforcement of
Dr. Wynn’s settlement.
After briefing from both parties, the AJ issued her ini-
tial decision denying Dr. Wynn’s petition for enforcement.
The AJ noted that Dr. Wynn alleged that the Army “has
failed to comply with the [settlement] agreement because
Case: 24-1979 Document: 30 Page: 3 Filed: 03/10/2025

-- 3 of 6 --

WYNN v. ARMY 4
it has failed to issue a corrected [W-2].” SAppx2.2 But the
AJ agreed with the Army that “there are no additional
steps [the Army] can take to issue amended tax forms,” and
“that any pending tax matters lie with Dr. Wynn and the
IRS.” SAppx3. The AJ relied on language from the settle-
ment agreement reciting that “the question of tax liabil-
ity . . . is a matter to be resolved solely between [Dr. Wynn]
and the IRS.” SAppx2.
Dr. Wynn filed a petition for review of the AJ’s initial
decision with the Board. In his petition, Dr. Wynn asked
the Board to reverse the AJ’s initial decision “and order the
[Army] to reimburse [Dr. Wynn] for his additional attor-
ney’s fees . . . and any tax penalties.” SAppx32. Dr. Wynn
contended that “it is unfair for [him] to bear the burden of
paying said tax penalties and additional attorney’s fees
that he would not have incurred” if the Army had given him
a W-2 that he believed correctly reported his 2019 income.
Id. Dr. Wynn noted that he incurred “at least an additional
$3,500 to $4,500 in attorney’s fees” over the course of the
enforcement litigation. SAppx30.
The Board denied Dr. Wynn’s petition and affirmed the
AJ’s initial decision for two reasons: (1) Dr. Wynn had
failed to establish any reason under 5 C.F.R. § 1201.115 to
grant his petition for review, and (2) Dr. Wynn had not
challenged the Army’s compliance with the settlement, but
rather argued that the Army’s “delay in complying caused
[Dr. Wynn] to incur tax penalties,” ECF No. 19 at 29. On
March 8, 2024, the AJ’s initial decision became the Board’s
final order. Dr. Wynn received the final decision on
March 13, 2024.
Dr. Wynn appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1).
2 “SAppx” refers to the Supplemental Appendix sub-
mitted by the Respondent at ECF No. 21.
Case: 24-1979 Document: 30 Page: 4 Filed: 03/10/2025

-- 4 of 6 --

WYNN v. ARMY 5
D ISCUSSION
On appeal, Dr. Wynn continues to argue that the Army
failed to give him a correct W-2 C and that, as a result, he
incurred tax penalties and additional attorney and ac-
countant fees to correct the Army’s mistake. ECF No. 19
at 1–25.
We do not reach the merits of Dr. Wynn’s arguments,
however, because we agree with the Army that this appeal
is untimely and dismissal is appropriate. Under 5 U.S.C.
§ 7703(b)(1), an appeal “shall be filed within 60 days after
the Board issues notice of the final order or decision of the
Board.” The Board issued its final order on March 8, 2024.
ECF No. 19 at 28. Dr. Wynn’s appeal was therefore due by
May 7, 2024, but we did not receive his appeal until
June 14, 2024—38 days after the appeal deadline. ECF
No. 1 at 5; see also Fed. R. App. P. 26(a).
The timing requirement of 5 U.S.C. § 7703(b)(1) “is not
jurisdictional.” Harrow v. Dep’t of Def., 601 U.S. 480, 482
(2024). It remains an open question after Harrow, how-
ever, whether the statute is eligible for equitable tolling.
Id. at 489–90; Gard v. OPM, No. 24-1711, 2025 WL
272349, at *2 (Fed. Cir. Jan. 23, 2025). But, even if equi-
table tolling were to apply, Dr. Wynn has not carried his
burden to establish eligibility for tolling of 5 U.S.C.
§ 7703(b)(1)’s timing requirement.
To establish equitable tolling, Dr. Wynn “bears the
burden of establishing two elements: (1) that he has been
pursuing his rights diligently, and (2) that some extraordi-
nary circumstance stood in his way.” Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005). Dr. Wynn has not shown that he
has been pursuing his rights diligently, or that he faced an
extraordinary circumstance. In fact, Dr. Wynn provides no
explanation for his filing delay in his reply brief, see ECF
No. 24, despite the Army’s argument that “Dr. Wynn can-
not rely on equitable tolling in this case, and his appeal
should be dismissed as untimely filed,” ECF No. 21 at 9.
Case: 24-1979 Document: 30 Page: 5 Filed: 03/10/2025

-- 5 of 6 --

WYNN v. ARMY 6
Because diligence and extraordinary circumstances are re-
quired to establish equitable tolling, we conclude Dr. Wynn
has not carried his burden of establishing a basis for equi-
table tolling, and therefore his appeal is untimely under
5 U.S.C. § 7703(b)(1).
CONCLUSION
We have considered Dr. Wynn’s remaining arguments
and find them unpersuasive. For reasons above, we dis-
miss Dr. Wynn’s appeal as untimely.
DISMISSED
COSTS
No costs.
Case: 24-1979 Document: 30 Page: 6 Filed: 03/10/2025

-- 6 of 6 --