Gery J. Graham v. Department of Justice

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GERY J. GRAHAM,
Petitioner
v.
DEPARTMENT OF JUSTICE,
Respondent
______________________
2025-1102
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-20-0708-I-2.
______________________
Decided: June 11, 2025
______________________
G ERY J. G RAHAM , Honolulu, HI, pro se.
J OSHUA A. MANDLEBAUM , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
D EBORAH A NN BYNUM , P ATRICIA M. MC CARTHY , BRETT
SHUMATE.
______________________
Before L OURIE, D YK, and CUNNINGHAM , Circuit Judges.
Case: 25-1102 Document: 26 Page: 1 Filed: 06/11/2025

-- 1 of 4 --

GRAHAM v. DOJ 2
P ER CURIAM .
Gery J. Graham petitions for review of the final deci-
sion of the United States Merit Systems Protection Board
(the “Board”). Graham v. Dep’t of Just., No. SF-0752-20-
0708-I-2, 2024 WL 3825054 (M.S.P.B. Aug. 14, 2024) (“Fi-
nal Order”); see also Graham v. Dep’t of Just., No. SF-0752-
20-0708-I-2, 2023 WL 3043690 (M.S.P.B. Apr. 18, 2023)
(“Initial Decision”), S.A. 8–30.1 The Board upheld the De-
partment of Justice’s (the “DOJ”) decision to suspend Gra-
ham for 30 days as a penalty for misuse of his position and
a lack of candor. Final Order, at *1. For the following rea-
sons, we dismiss.
BACKGROUND
Graham holds the position of special agent with the
DOJ’s Bureau of Alcohol, Tobacco, Firearms and Explo-
sives (the “ATF”). Following an investigation, Graham was
suspended by the DOJ for 30 days for misuse of official po-
sition and a lack of candor. See S.A. 41–50. The misuse of
position charge was based on an August 2, 2016 email that
Graham sent using his DOJ email account. The email and
attached letter were sent to the director of Graham’s son’s
school after an enrollment hold was placed on his son for
unpaid tuition. Id. at 45, 205. In the communication, Gra-
ham identified himself as ATF SA Gery Graham, Firearms
Instructor and stated that “due to the strict protocols of my
professional career as a Federal Agent for [the ATF], I am
unable to accept payment as a football coach” and sug-
gested that in return for volunteering, the school could “al-
leviate some of the tuition that is owed.” Id. at 45, 205,
207. The lack of candor charge was based on answers Gra-
ham provided to the DOJ Office of Inspector General
(the “OIG”) investigator on February 27, 2019, where he
1 S.A. refers to the Supplemental Appendix submit-
ted by the Respondent.
Case: 25-1102 Document: 26 Page: 2 Filed: 06/11/2025

-- 2 of 4 --

GRAHAM v. DOJ 3
stated that he had no meaningful role in his wife’s small
business. Id. at 45–46. In subsequent interviews, Graham
admitted that he was involved in the business. Id.
Graham appealed his 30-day suspension to the Board.
In its initial decision, the administrative judge (“AJ”) sus-
tained the charges, determining that Graham had “offered
no plausible explanation” for identifying himself as an ATF
special agent in his email, Initial Decision, at S.A. 14, and
that his statements to the OIG investigator were mislead-
ing regarding his role in his wife’s small business, id. at
S.A. 18. Graham petitioned for review of the AJ’s decision
and, on August 14, 2024, the Board denied the petition and
affirmed the initial decision, adopting it as the Board’s fi-
nal decision. Final Order, at *1.
Graham petitioned for review in this court on October
21, 2024.
D ISCUSSION
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.” Here, the Board is-
sued its Final Order on August 14, 2024. Final Order, at
*1. Graham’s petition for review was due 60 days later, on
Monday, October 14, 2024. We did not receive Graham’s
petition until seven days after the deadline, on October 21,
2024. ECF No. 1; see also id. at 5 (showing Graham’s sig-
nature dated October 15, 2024, one day after the deadline).
While the timing requirement of 5 U.S.C. § 7703(b)(1)
is “non-jurisdictional,” Harrow v. Dep’t of Def., 601 U.S.
480, 489–90 (2024), it remains an open question if the tim-
ing requirement is subject to equitable tolling. See id. (not-
ing that the Supreme Court was “not the right court to now
determine whether” the 60-day deadline is subject to equi-
table tolling); see Gard v. Off. of Pers. Mgmt., No. 2024-
1711, 2025 WL 272349, at *2 (Fed. Cir. Jan. 23, 2025) (“It
Case: 25-1102 Document: 26 Page: 3 Filed: 06/11/2025

-- 3 of 4 --

GRAHAM v. DOJ 4
remains an open question after Harrow whether the stat-
ute is eligible for equitable tolling.”).
We need not decide that issue now because, even if eq-
uitable tolling were available, Graham has not met his bur-
den to establish its application. “Generally, a litigant
seeking equitable tolling bears the burden of establishing
two elements: (1) that he has been pursuing his rights dil-
igently, and (2) that some extraordinary circumstance
stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005). Graham makes no arguments regarding equitable
tolling in his opening brief, instead arguing the merits of
his appeal. See Pet’r’s Inf. Br. 4 (arguing that “[n]o reason-
able person would read the statement [in his email to the
school director] to mean that Graham was using his office
to obtain tuition relief”); id. at 5 (arguing that “[h]is an-
swers, in the context of the vague and awkwardly worded
questions asked by the OIG, were forthright”). Even after
the DOJ had raised the issues of untimeliness and equita-
ble tolling in its response, see Resp’t’s Inf. Br. 10–13, Gra-
ham failed to submit a reply. Graham has therefore failed
to demonstrate that the deadline should be equitably
tolled, and his petition for review is untimely. We therefore
dismiss.
DISMISSED
COSTS
The parties shall bear their own costs.
Case: 25-1102 Document: 26 Page: 4 Filed: 06/11/2025

-- 4 of 4 --