Robert Mulligan, Jr. v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT MULLIGAN, JR.,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2024-2084
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-1221-22-0154-W-1.
______________________
Decided: May 8, 2025
______________________
ROBERT MULLIGAN, J R ., Red Lion, PA, pro se.
K ELLY WINSHIP , Office of the General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by ALLISON J ANE B OYLE,
K ATHERINE M ICHELLE SMITH .
______________________
Before M OORE, Chief Judge, CLEVENGER and CHEN,
Circuit Judges.
Case: 24-2084 Document: 23 Page: 1 Filed: 05/08/2025

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MULLIGAN v. MSPB 2
P ER CURIAM .
Robert Mulligan, Jr. petitions for review of a decision
of the Merit Systems Protection Board (Board) dismissing
his Individual Right of Action appeal for lack of jurisdic-
tion. For the following reasons, we dismiss.
BACKGROUND
Mr. Mulligan is a former employee of the United States
Department of Defense (agency). S. Appx. 18–19.1 After
the agency terminated Mr. Mulligan, he filed a whistle-
blowing reprisal complaint with the United States Office of
Special Counsel (OSC) alleging the agency retaliated
against him for protected disclosures. Id. at 19. OSC sub-
sequently informed Mr. Mulligan it had terminated its in-
quiry into his complaint. Id. Mr. Mulligan appealed to the
Board. Id.
An administrative judge granted the agency’s motion
to dismiss for lack of jurisdiction because it concluded
Mr. Mulligan failed to nonfrivolously allege that he made a
protected disclosure or engaged in protected activity. Id.
at 22–27. Mr. Mulligan filed a petition for review of the
initial decision, which the Board denied. S. Appx. 2.
Mr. Mulligan appeals. We have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1).
D ISCUSSION
The scope of our review of a decision of the Board is
limited. Generally, we must affirm the decision unless we
find it to be “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
1 “S. Appx.” refers to the supplemental appendix at-
tached to Respondent’s Informal Brief.
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MULLIGAN v. MSPB 3
evidence.” 5 U.S.C. § 7703(c). Whether the Board has ju-
risdiction over an appeal is a question of law we review de
novo. Hessami v. Merit Sys. Prot. Bd., 979 F.3d 1362, 1367
(Fed. Cir. 2020).
Mr. Mulligan argues: (1) the Board incorrectly dis-
missed his appeal because he made protected disclosures
and (2) dismissal before completion of discovery violated
his due process rights. Pet’r’s Informal Br. 2–3, 5–7. We
do not reach the merits of Mr. Mulligan’s arguments, how-
ever, because his petition for review is untimely.
Under 5 U.S.C. § 7703(b)(1), a petition for review “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 May 10, 2024. S. Appx. 17. Mr. Mulligan’s
petition for review was due 60 days later on July 9, 2024,
but we did not receive his petition until July 11, 2024—two
days after the deadline. ECF No. 1 at 5–6. While Mr. Mul-
ligan mailed his petition for review on the July 9, 2024 fil-
ing deadline, id. at 26, “filing requires actual receipt by the
court, not just timely mailing.” Fedora v. Merit Sys. Prot.
Bd., 848 F.3d 1013, 1016 (Fed. Cir. 2017).
The timing requirement of 5 U.S.C. § 7703(b)(1) “is not
jurisdictional,” and it remains an open question whether
the timing requirement is subject to equitable tolling. Har-
row v. Dep’t of Def., 601 U.S. 480, 482, 489–90 (2024). Even
if equitable tolling is available, Mr. Mulligan has not car-
ried his burden to establish its application here. “Gener-
ally, a litigant seeking equitable tolling bears the burden
of establishing two elements: (1) that he has been pursuing
his rights diligently, and (2) that some extraordinary cir-
cumstance stood in his way.” Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005). Mr. Mulligan offered no argument in
his opening brief regarding the timeliness of his appeal and
did not file a reply brief after the agency raised the timeli-
ness issue. Resp’t’s Informal Br. 6–9; see generally Pet’r’s
Informal Br.. Nor did Mr. Mulligan’s memorandum in lieu
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MULLIGAN v. MSPB 4
of oral argument, which itself was untimely, address this
issue. See ECF No. 21. Mr. Mulligan’s petition is therefore
untimely.
DISMISSED
COSTS
No costs.
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