Byron C. Farley v. Merit Systems Protection Board

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
BYRON C. FARLEY,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2025-1827
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-1221-25-0189-W-1.
______________________
Decided: January 15, 2026
______________________
BYRON C. F ARLEY , Weslaco, TX, pro se.
STEPHEN F UNG, Office of the General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by K ATHERINE MICHELLE
SMITH .
______________________
Case: 25-1827 Document: 28 Page: 1 Filed: 01/15/2026

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FARLEY v. MSPB 2
Before REYNA and CHEN, Circuit Judges, and F REEMAN,
District Judge.1
P ER CURIAM .
Pro se appellant Byron C. Farley challenges a final or-
der of the Merit Systems Protection Board dismissing his
appeal as untimely and not subject to equitable tolling. We
affirm.
BACKGROUND
In 2010, Mr. Farley was removed from his position at
United States Customs and Border Patrol for failure to co-
operate with an official investigation. On October 21, 2024,
Mr. Farley filed a complaint with the Office of Special
Counsel (“OSC”), alleging his removal was a prohibited
personnel action and retaliation for whistleblowing.
SAppx45–75.2 On November 20, 2024, OSC issued a letter
closing its inquiry into Mr. Farley’s complaint on grounds
that each of his claims was deficient. SAppx76–77.
Sixty-six days later, on January 25, 2025, Mr. Farley
filed an individual right of action (“IRA”) appeal with the
Merit Systems Protection Board (“Board”), again challeng-
ing his removal based on whistleblowing. SAppx28–29.
Without reaching the merits, the Board issued an order on
timeliness, notifying Mr. Farley it “appears that your ap-
peal was filed 1 day late.” SAppx78–81. The order re-
quired Mr. Farley to submit “evidence and/or argument”
showing the filing was timely or that the circumstances
warrant equitable tolling. SAppx80–81.
1 Honorable Beth Labson Freeman, District Judge,
United States District Court for the Northern District of
California, sitting by designation.
2 “SAppx” refers to the supplemental appendix ac-
companying Respondent’s Informal Brief, which is dock-
eted at ECF No. 17.
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FARLEY v. MSPB 3
Mr. Farley submitted a response to the Board’s order
on timeliness. SAppx86–89. In his response, he acknowl-
edged that he “missed the deadline date,” but countered
that he “did everything within [his] power to make the
deadline.” SAppx86. For example, Mr. Farley explained
that he had discussed appealing the OSC decision to the
Board with his same attorneys who handled the OSC pro-
ceedings. SAppx86–87. Mr. Farley claimed that about two
weeks before the deadline, he sent his attorneys a “narra-
tive” to be used in the IRA appeal. SAppx86. His attorneys
acknowledged receipt and stated that they were “working
on [his] response.” SAppx87. Mr. Farley contended that
three days before the filing deadline one of his attorneys
explained that his firm would not “take on” the IRA appeal
because it would likely not prevail, but that Mr. Farley
could file on his own, and that the deadline was in three
days. SAppx87–88. Mr. Farley started working on his ap-
peal and realized he “didn’t have the tools or the infor-
mation” needed to file on time. SAppx88. Mr. Farley
alleged that he tried to contact his attorney but was unable
to reach him until 2:15pm on the filing due date, at which
point his attorney provided “two user guides” for filing an
appeal and Board contact information. SAppx88–89. De-
spite this information, Mr. Farley noted that he “missed
the deadline by 3 hours and 23 minutes.” SAppx89.
The Board rejected Mr. Farley’s arguments and dis-
missed his IRA appeal. SAppx1–4. First, the Board con-
cluded Mr. Farley’s appeal was untimely because he filed
one day late. SAppx2 (citing the sixty-five-day deadline set
by 5 C.F.R. § 1209.5(a)(1)). Second, the Board declined to
equitably toll the filing deadline. SAppx2–4. The Board
acknowledged the filing deadline for IRA appeals can be
equitably tolled based on 5 C.F.R. § 1209.5(b), but found
that Mr. Farley’s justification for his late filing—his attor-
ney’s alleged inaction and unresponsiveness—did not sat-
isfy the limited circumstances for equitable tolling.
SAppx2–3 (citing Irwin v. Dep’t of Veterans Affs., 498 U.S.
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FARLEY v. MSPB 4
89, 96 (1990)). As Mr. Farley did not file a petition for re-
view, the Board’s decision became final. SAppx4.
Mr. Farley petitions for review of the Board’s final or-
der dismissing his appeal. We have jurisdiction under 5
U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9).
S TANDARD OF REVIEW
The Board has “broad discretion to control its own
docket and we will not substitute our judgment for that of
the [B]oard in this regard.” Olivares v. Merit Sys. Prot. Bd.,
17 F.3d 386, 388 (Fed. Cir. 1994). We must affirm a deci-
sion of the Board unless it is: “(1) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with the
law; (2) obtained without procedures required by law, rule,
or regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c)(1)–(3).
D ISCUSSION
The issue on appeal is whether the Board erred in de-
termining that Mr. Farley failed to allege sufficient facts to
equitably toll the filing deadline.
Mr. Farley acknowledges his appeal was untimely.
SAppx86 (stating “I agree, I missed the deadline date”). We
agree. An IRA appeal “must be filed” no later than sixty-
five days after OSC’s written notification that it is termi-
nating its investigation of the appellant’s allegations.
5 C.F.R § 1209.5(a)(1). Here, Mr. Farley filed his appeal
with the Board sixty-six days after OSC notified him that
it was closing its investigation. Compare SAppx28, with
SAppx76.
Next, we consider whether the Board erred in its deter-
mination that equitable tolling does not apply. Equitable
tolling permits a deadline extension “where the appellant,
despite having diligently pursued his or her rights, was un-
able to make a timely filing.” 5 C.F.R. § 1209.5(b). Equi-
table tolling is limited to circumstances in which “a litigant
has pursued his rights diligently but some extraordinary
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FARLEY v. MSPB 5
circumstance prevents him from bringing a timely action.”
Warne v. Merit Sys. Prot. Bd., No. 2025-1258, 2025 WL
3135456, at *1 (Fed. Cir. Nov. 10, 2025) (quoting Lozano v.
Montoya Alvarez, 572 U.S. 1, 10 (2014)). The regulation
provides examples when equitable tolling applies, such as
“cases involving deception or in which the appellant filed a
defective pleading during the statutory period.” 5 C.F.R.
§ 1209.5(b).
Mr. Farley attributes his late filing to his attorney’s
last-minute decision not to take his case, his lack of re-
sources until the filing date, and other issues, like technical
glitches and problems with portal access. SAppx86–89; In-
formal Reply Br. 2–3. Mr. Farley argues that after his at-
torney declined his case, he worked “diligent[ly] to the
point of exhaustion” but was still unable to file on time. In-
formal Reply Br. 3.
The Board addressed Mr. Farley’s reasons for his late
filing. The Board found that alleged attorney misconduct
or miscommunication did not trigger equitable tolling be-
cause Mr. Farley “bears the responsibility for any failings
of his chosen representative.” SAppx3. The Board also de-
termined that Mr. Farley could have investigated how to
file himself instead of waiting for his attorney to provide
resources and that any delay was “simple negligence,”
which the Board noted is not enough to apply equitable toll-
ing. SAppx3–4. We see no error in the Board’s findings.
While we are sympathetic to Mr. Farley’s situation, we see
no reason to disturb the Board’s decision.
CONCLUSION
We have considered Mr. Farley’s remaining arguments
and find them unpersuasive. Accordingly, we affirm the
Board’s final decision dismissing Mr. Farley’s IRA appeal.
AFFIRMED
COSTS
No costs.
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