Joshua D. Shandler v. Office of Personnel Management

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOSHUA D. SHANDLER,
Petitioner
v.
OFFICE OF PERSONNEL MANAGEMENT,
Respondent
______________________
2024-2323
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-844E-19-0163-I-1.
______________________
Decided: June 4, 2026
______________________
L AWRENCE BERGER , Mahon & Berger, Esqs., Glen
Cove, NY, for petitioner.
MOLLIE L ENORE G ROPP , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
CLAUDIA BURKE, P ATRICIA M. M CCARTHY , Y AAKOV ROTH .
______________________
Before REYNA, MAYER , and HUGHES , Circuit Judges.
Case: 24-2323 Document: 45 Page: 1 Filed: 06/04/2026

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SHANDLER v. OPM 2
REYNA, Circuit Judge.
Joshua D. Shandler petitions for review of a final deci-
sion of the Merit Systems Protection Board (“Board”) af-
firming Office of Personnel Management’s denial of
disability retirement annuity benefits. For the following
reasons, we dismiss Mr. Shandler’s petition to review as
untimely.
Pursuant to 5 U.S.C. § 7703(b)(1), Mr. Shandler had 60
days to file a petition to review to this court from the date
of the Board’s decision, or the Board’s notice of the final
order. The Board issued its final decision on July 12, 2024.
As Office of Personnel Management (“OPM”) points out,
Mr. Shandler filed his petition to review with this court on
September 12, 2024—62 days later. ECF No. 1. Mr. Shan-
dler does not dispute this delay.
The Supreme Court held in Harrow v. Department of
Defense that this 60-day deadline is not jurisdictional.
601 U.S. 480, 489–90 (2024). This court, however, has not
yet spoken to whether the 60-day deadline is mandatory or
subject to equitable tolling. See id.; Resp. Br. 22. But even
assuming the latter, we determine that Mr. Shandler has
failed to establish any sufficient basis for equitable tolling.
A litigant is entitled to equitable tolling of a statute of
limitations only upon a showing that (1) “he has been pur-
suing his rights diligently,” and (2) “some extraordinary
circumstance stood in his way and prevented timely filing.”
Menominee Indian Tribe of Wisconsin v. United States,
577 U.S. 250, 255 (2016) (internal quotations omitted).
The second prong is met “only where the circumstances
that caused a litigant’s delay are both extraordinary and
beyond its control.” Id. at 257 (emphasis in original).
Mr. Shandler does not address his untimely appeal in
his opening brief. On reply, Mr. Shandler simply argues
that he has “diligently pursued this appeal since [its] in-
ception on June 14, 2016,” and therefore he “should be
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SHANDLER v. OPM 3
allowed to proceed and argue the case.” Reply Br. 1. Thus,
Mr. Shandler, at best, provides one conclusory sentence
about the first prong. He does not attempt to explain that
“extraordinary circumstance[s]” prevented him from filing
his petition to review by the 60-day deadline. This showing
is insufficient to establish entitlement to equitable tolling.
For these reasons, we dismiss Mr. Shandler’s petition as
untimely.
CONCLUSION
Accordingly, we dismiss Mr. Shandler’s petition for re-
view before this court.
DISMISSED
COSTS
No costs.
Case: 24-2323 Document: 45 Page: 3 Filed: 06/04/2026

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