Thasha A. Boyd v. Department of Veterans Affairs, et al.

The All Circuit Review Act of 2018 (“Act”), pro­ vides that under 5 U.S.C. § 7703, a federal employee aggrieved by a final decision of the Merit Systems Pro­ tection Board (“MSPB”) who raised a claim of reprisal for whistleblowing disclosures and/or other protected activities under 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D) may petition for review within “60 days” of the MSPB’s issuance of the final decision. Additionally, the Act is retroactive to the date of November 26,2017. In this case, Petitioner Thasha Boyd (“Ms. Boyd”), filed a Petition for Permission to Appeal the MSPB’s November 2017 order [that removed her from Federal Service]. The United States Court of Appeals for the Eleventh Circuit dismissed the petition concluding that it was deprived ofjurisdiction because the petition was filed outside of the 60-day timeframe permitted by 5 U.S.C. § 7703(b)(1)(B) and Rule 15 of the Federal Rules of Appellate Procedure (“FRAP”). The Eleventh Circuit also denied Ms. Boyd’s Petition for Rehearing and Rehearing En Banc. The questions presented are as follows: 1. Whether the 60-day deadline for seeking judi­ cial review pursuant 5 U.S.C. § 7703(b)(1)(B) and the FRAP sets a bar to an appeal, as the Eleventh Circuit has concluded, or whether the Act’s retroactive date precludes the enforcement of the deadline thus allow­ ing equitable considerations such as forfeiture, waiver and tolling.