Robert E. Perdue v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERT E. PERDUE,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2025-1997
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-25-0345-I-1.
______________________
Decided: May 12, 2026
______________________
ROBERT E. P ERDUE, Citra, FL, pro se.
ELIZABETH W. F LETCHER , Office of the General Coun-
sel, United States Merit Systems Protection Board, Wash-
ington, DC, for respondent. Also represented by
K ATHERINE M ICHELLE SMITH .
______________________
Before L OURIE, BRYSON, and CHEN, Circuit Judges.
P ER CURIAM .
Case: 25-1997 Document: 50 Page: 1 Filed: 05/12/2026

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PERDUE v. MSPB 2
Robert E. Perdue, a former carrier at the United States
Postal Service (USPS), petitions for review of a final deci-
sion by the Merit Systems Protection Board (Board) dis-
missing his appeal to challenge his removal for lack of
jurisdiction. See Perdue v. United States Postal Serv., No.
AT-0752-25-0345-I-1, 2025 WL 994325, at 1 (M.S.P.B. Mar.
24, 2025) (Initial Decision).1 For the following reasons, we
dismiss the appeal as untimely.
BACKGROUND
The USPS appointed Mr. Perdue to a position as a pref-
erence eligible Rural Carrier on November 16, 2024. See
id. at 2. The USPS removed him on January 8, 2025. See
id. He sought to challenge the USPS’s removal decision
before the Board. Id. The Board dismissed his appeal,
finding that under 5 U.S.C. § 7513(d), he was not an em-
ployee with Board appeal rights “because he has not com-
pleted one year of current continuous service in the same
or similar positions.” Initial Decision, 2025 WL 994325, at
2; see 5 U.S.C. § 7511(a)(1)(B) (defining an “employee” for
“a preference eligible”).
The Board’s initial decision became final on April 28,
2025. Initial Decision, 2025 WL 994325, at 3. We received
Mr. Perdue’s petition for review on July 25, 2025. See ECF
No. 1 at 5. This Court has jurisdiction over Board appeals
under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
On appeal, the USPS asks us to dismiss the appeal as
untimely because Mr. Perdue’s petition was filed more
than 60 days after the Board issued its final decision.
1 Because the online version of the Initial Decision
lacks pagination, we use the pagination employed in the
government’s supplemental appendix. For example, “Ini-
tial Decision, 2025 WL 994325, at 1” corresponds to S.A. 1.
Case: 25-1997 Document: 50 Page: 2 Filed: 05/12/2026

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PERDUE v. MSPB 3
Informal Response Br. at 5–6. Mr. Perdue responds that
we should ignore the USPS’s argument regarding timeli-
ness because he resigned from his job due to safety con-
cerns, among other reasons. See Pet’r’s Informal Reply Br.
2.
We agree with the USPS that Mr. Perdue’s petition is
untimely. For a petition to be timely, it must be “filed
within 60 days after the Board issues notice of the final or-
der or decision of the Board.” 5 U.S.C. § 7703(b)(1)(A).
Mr. Perdue’s petition was received2 on July 25, 2025, after
the 60-day deadline starting on April 28, 2025, the date of
the final decision. Mr. Perdue’s petition was therefore un-
timely.
But our analysis does not end here. The Supreme
Court has recently explained that “§ 7703(b)(1)’s deadline
is non-jurisdictional,” and therefore may be subject to eq-
uitable tolling. Harrow v. Dep’t of Def., 601 U.S. 480, 489
(2024). Here, we do not need to decide whether § 7703(b)(1)
is in fact subject to equitable tolling because Mr. Perdue
has not met his burden to establish its application. See
Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (“Generally,
a litigant seeking equitable tolling bears the burden of es-
tablishing two elements: (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circum-
stance stood in his way.”) (citation omitted). Mr. Perdue
does not argue or offer evidence on either of these points
regarding equitable tolling, and he has therefore failed to
demonstrate that the 60-day deadline should be equitably
tolled.
2 A petition for review is considered filed on the date
it is received by the clerk of the court. Pinat v. Off. of Pers.
Mgmt., 931 F.2d 1544, 1546 (Fed. Cir. 1991); see also F ED.
R. APP . P. 25(a)(2)(A)(i) (“[F]iling is not timely unless the
clerk receives the papers within the time fixed for filing.”).
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PERDUE v. MSPB 4
CONCLUSION
We have considered Mr. Perdue’s remaining argu-
ments, including the arguments raised in his Memoran-
dum in Lieu of Oral Argument, ECF No. 48, and find them
unpersuasive.3 For the foregoing reasons, we dismiss
Mr. Perdue’s appeal as untimely.
DISMISSED
COSTS
No costs.
3 We have considered but deny Mr. Perdue’s pending
motions. For example, we find that Mr. Perdue’s supple-
mental appendix, ECF No. 43, is not responsive to the time-
liness of his petition. For the same reason, we deny his
motion to supplement the record, ECF No. 46.
Case: 25-1997 Document: 50 Page: 4 Filed: 05/12/2026

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