Irina Farquhar v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
IRINA FARQUHAR,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2025-1670
______________________
Petition for review of the Merit Systems Protection
Board in Nos. DC-0432-23-0635-I-1, DC-1221-17-0296-B-1.
______________________
Decided: April 13, 2026
______________________
IRINA FARQUHAR, Burke, VA, pro se.
KELLY WINSHIP, Office of the General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by KATHERINE MICHELLE
SMITH.
______________________
Case: 25-1670 Document: 22 Page: 1 Filed: 04/13/2026

-- 1 of 7 --

FARQUHAR v. MSPB 2
Before TARANTO, CUNNINGHAM, and STARK, Circuit
Judges.
PER CURIAM.
Irinia Farquhar served as an Operations Research An-
alyst with the Department of Army (Department) until the
Department removed her from service in 2017. Ms. Far-
quhar sought relief from the Merit Systems Protection
Board (Board), alleging that the Department wrongfully
removed her because she made whistleblower disclosures
protected under 5 U.S.C. § 2302. After a hearing, the
Board-assigned administrative judge (AJ), treating the ap-
peal as an individual-right-of-action (IRA) appeal, ruled
that Ms. Farquhar had not established a prima facie case
of reprisal, but the Board remanded the matter on proce-
dural grounds, and on remand a second appeal—an appeal
of a performance-based removal—was added to the first.
The AJ ultimately dismissed both cases for failure to pros-
ecute. S. Appx. 11–20.1
Ms. Farquhar petitioned the Board for review, and the
Board joined the two cases and issued a decision affirming
the dismissals. Farquhar v. Department of the Army,
Nos. DC-1221-17-0296-B-1, DC-0432-23-0635-I-1, 2025
WL 458234, at *1 n.2, 2 (M.S.P.B. Feb. 10, 2025) (Final De-
cision). Ms. Farquhar then petitioned this court for review,
but her petition was not received within the sixty-day stat-
utory filing period. ECF No. 1. We now dismiss Ms. Far-
quhar’s petition as untimely.
I
In August 2016, the Department proposed to remove
Ms. Farquhar from her Operations Research Analyst posi-
tion for failure to contribute adequately to the
1 “S. Appx.” refers to the appendix submitted with
the Board’s brief.
Case: 25-1670 Document: 22 Page: 2 Filed: 04/13/2026

-- 2 of 7 --

FARQUHAR v. MSPB 3
Department’s mission. S. Appx. 31. A few days later, Ms.
Farquhar filed a complaint with the Office of Special Coun-
sel, alleging that her proposed removal was retaliation for
protected disclosures that she made in 2015 and 2016. Id.
The Department proceeded with the removal process and
removed her effective January 7, 2017. Id.
In February 2017, Ms. Farquhar appealed her removal
to the Board. Id. The AJ, after initially considering the
appeal as a performance-based removal appeal under 5
U.S.C. § 7701, interpreted the challenge as an IRA appeal
under 5 U.S.C. §§ 1214(a)(3), 1221(a). Id. The AJ held a
hearing and then determined that Ms. Farquhar did not
establish a prima facie case of reprisal because her alleged
disclosures were not protected under 5 U.S.C. § 2302 and
did not contribute to the Department’s removal decision. S.
Appx. 32–33. Ms. Farquhar sought review by the Board,
which ruled that Ms. Farquhar had not been informed of
the mutually exclusive mechanisms for challenging her re-
moval (i.e., the IRA and performance-based-removal
paths). S. Appx. 36–37 (discussing 5 U.S.C. §§ 2302(b)(1),
7121(g), 7701). The Board remanded the appeal “for re-
docketing as an appeal of [Ms. Farquhar’s] performance-
based removal.” S. Appx. 39.
On July 31, 2023, the AJ issued an acknowledgement
order in the IRA appeal case (No. DC-1221-17-0296-B-1)
and docketed the performance-based action case (No. DC-
0432-23-0635-I-1). S. Appx. 28, 42. The AJ also scheduled
a telephonic status conference, covering both cases, for Au-
gust 10, 2023. S. Appx. 17. Ms. Farquhar did not attend
the meeting. S. Appx. 44, 47. The AJ then issued orders
on August 10 in both cases, directing Ms. Farquhar to show
good cause for her absence within seven calendar days, and
scheduled a follow-up status conference for eleven days
later. S. Appx. 44–49. Ms. Farquhar did not respond to the
August 10 orders or attend the meeting. S. Appx. 12–13.
Case: 25-1670 Document: 22 Page: 3 Filed: 04/13/2026

-- 3 of 7 --

FARQUHAR v. MSPB 4
On August 21, 2023, the AJ issued second show cause
orders in both cases, which provided that both cases would
be dismissed with prejudice if she failed to respond within
three calendar days. S. Appx. 50–55. Ms. Farquhar never
responded. S. Appx. 14, 18–19. On August 25, 2023, the
AJ dismissed both cases for failure to prosecute. S. Appx.
11–20.
Ms. Farquhar timely petitioned the Board for review in
October 2023, and, on February 10, 2025, the Board denied
the petition, affirming and adopting the AJ’s decisions. Fi-
nal Decision, at *2. Ms. Farquhar argued that she had
been unable to comply with the AJ’s orders because she
was receiving outpatient care out of state. Id. But the
Board determined Ms. Farquhar had not shown that the
AJ abused his discretion in the dismissals because she
failed to establish that she was incapacitated during the
relevant time period and thus unable to respond to the AJ.
Id. The Board noted that she even “acknowledged that if
she had received the administrative judge’s attempts to
contact her by [tele]phone, she would have been capable of
participating” in the proceedings. Id. The Board issued
notice of its decision to Ms. Farquhar the day of the deci-
sion. Id. at *1, 3–5.
Ms. Farquhar petitioned this court for review under 5
U.S.C. § 7703(b). We received the petition—that is, it was
filed with us—on April 17, 2025, which is sixty-six days af-
ter the Board’s Final Decision was issued. ECF. No. 1. We
have jurisdiction under 28 U.S.C. § 1295(a)(9).
II
We may set aside the Board’s decision only if it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c). Relief in Ms. Farquhar’s favor is fore-
closed on two independent grounds. First, we dismiss the
Case: 25-1670 Document: 22 Page: 4 Filed: 04/13/2026

-- 4 of 7 --

FARQUHAR v. MSPB 5
petition for review to us as having been untimely filed. Sec-
ond, we conclude that, if we were to reach the merits, we
would hold that Ms. Farquhar has not shown reversible er-
ror in the Board’s ruling.
A
The Board argues that we should dismiss Ms. Far-
quhar’s petition for review as untimely. Board Response
Br. at 6–9. We agree.
The governing statute provides that “any petition for
review shall be filed within 60 days after the Board issues
notice of the final order or decision of the Board.” 5 U.S.C.
§ 7703(b)(1)(A). This filing period “begin[s] on the date the
Board . . . issues notice, not the date the petitioner receives
notice or could receive notice of the decision.” Federal Ed-
ucation Association-Stateside Region v. Department of De-
fense, Domestic Dependents Elementary and Secondary
Schools, 898 F.3d 1222, 1224 (Fed. Cir. 2018), overruled on
other grounds by Harrow v. Department of Defense, 601
U.S. 480, 489–90 (2024). There being no contrary provision
of law applicable to the present case, which involves a pro
se paper filing, “filing [of papers] is not timely unless the
clerk [of this court] receives the papers within the time
fixed for filing.” Fed. R. App. P. 25(a)(2)(A)(i); see Pinat
v. Office of Personnel Management, 931 F.2d 1544, 1546
(Fed. Cir. 1991) (“[A]n appeal is filed when it is received at
the court, not when it was signed by an appellant.”). This
court therefore had to receive a petition from Ms. Farquhar
within 60 days after February 10, 2025, i.e., by April 11,
2025. But we did not receive Ms. Farquhar’s petition until
April 17, 2025, which was six days late. Ms. Farquhar filed
no reply brief in this court to demonstrate timeliness.2
2 On October 21, 2025, Ms. Farquhar moved to ex-
tend the deadline to file a reply brief. ECF. No. 16. In her
motion, she directed the court to a purported timely filed
Case: 25-1670 Document: 22 Page: 5 Filed: 04/13/2026

-- 5 of 7 --

FARQUHAR v. MSPB 6
In this case, we do not need to consider whether equi-
table tolling is available to excuse untimeliness under 5
U.S.C. § 7703(b)(1)(A). The Supreme Court in Harrow did
not decide that question when it held that § 7703(b)(1)(A)
is not a matter of this court’s jurisdiction, while noting that
“‘nonjurisdictional [timing rules] are presumptively subject
to equitable tolling.’” 601 U.S. at 489–90 (quoting Boechler
v. Commissioner, 596 U.S. 199, 209 (2022)). We need not
answer the question here because Ms. Farquhar did not
provide any briefing to this court on the untimeliness prob-
lem of her petition and did not request equitable tolling.
See Petitioner’s Opening Br. at 1–3; Add. 1–20.3 Ms. Far-
quhar thus has not carried her burden of establishing that
equitable tolling is warranted here, i.e., has not shown
“(1) that [she] has been pursuing [her] rights diligently,
and (2) that some extraordinary circumstance stood in
[her] way” of filing on time. Pace v. DiGuglielmo, 544 U.S.
408, 418 (2005).
We therefore dismiss the petition for review.
B
Even if we entertained Ms. Farquhar’s challenge on its
merits, we would deny relief. Ms. Farquhar has not shown
email containing her petition for review. Id. at 15–16. The
court has no record of receiving that purported email. ECF
No. 17 at 4. The court extended the deadline for filing a
reply brief to December 16, 2025, stating that Ms. Far-
quhar could seek to support her email contention in such a
brief (with any needed supplemental appendix). Ms. Far-
quhar never filed a reply brief. Ms. Farquhar thus failed
to provide any independent evidence that her appeal was
timely filed.
3 “Add.” refers to the addendum submitted with the
Petitioner’s brief.
Case: 25-1670 Document: 22 Page: 6 Filed: 04/13/2026

-- 6 of 7 --

FARQUHAR v. MSPB 7
that the Board abused its discretion in affirming the dis-
missals of her appeals.
Under 5 C.F.R. § 1201.43(b), “[i]f a party fails to prose-
cute or defend an appeal, the [administrative] judge may
dismiss the appeal with prejudice or rule in favor of the ap-
pellant.” Ms. Farquhar does not dispute that she failed to
appear for the two scheduled status conferences at issue
and failed to respond to the two show cause orders despite
multiple telephone calls from the AJ. S. Appx. 12–14, 17–
19, 47, 53. She has not shown error in the Board’s rejection
of her proffered reasons for her absences and non-respon-
siveness. She argued that she was undergoing outpatient
care out of state and was unaware of the proceedings and
orders. Final Decision, at *2. But the Board reasonably
determined that Ms. Farquhar had not established that
she was unable to participate in the proceedings. Id. That
is enough even if she was unaware of the relevant proceed-
ings, at least where, as here, there is no showing of due
diligence in trying to remain aware of orders in her own
case.
III
The petition for review is dismissed as untimely.
The parties shall bear their own costs.
DISMISSED
Case: 25-1670 Document: 22 Page: 7 Filed: 04/13/2026

-- 7 of 7 --