Timmie Pernell Owens v. Department of the Army

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TIMMIE PERNELL OWENS,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2025-1738
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-23-0188-I-1.
______________________
Decided: February 10, 2026
______________________
TIMMIE PERNELL OWENS, Canton, MS, pro se.
TATE NATHAN WALKER, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by PATRICIA
M. MCCARTHY, CORINNE ANNE NIOSI, BRETT SHUMATE.
______________________
Case: 25-1738 Document: 21 Page: 1 Filed: 02/10/2026

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OWENS v. ARMY 2
Before LOURIE, CHEN, and STOLL, Circuit Judges.
PER CURIAM.
Timmie Owens petitions for review of a final order of
the Merit Systems Protection Board (“the Board”), which
affirmed the Department of the Army’s decision to remove
Mr. Owens from his position with the agency. S.A. 40–41
(“Final Order”) (adopting the initial decision, S.A. 1–39
(“Initial Decision”), as the Board’s final decision).1 For the
following reasons, we dismiss Mr. Owens’ appeal as un-
timely.
BACKGROUND
Until his removal in January 2023, Mr. Owens was a
Motor Vehicle Operator for the Operations Division, Rivers
Operation Branch for the Department of the Army. Initial
Decision, S.A. 1–2. Mr. Owens often reported purported
employee and agency misconduct to his management,
sometimes using an alias email address. Id. at 2. On two
occasions, he disclosed information about a coworker, “Em-
ployee 1,”2 to third parties, which ultimately resulted in his
removal. Id.
First, in August 2022, Mr. Owens used his agency-is-
sued laptop to send, from his alias email address, copies of
a restricted investigation file pertaining to Employee 1 to
U.S. Army Corps of Engineers officials and news outlets
without Employee 1’s consent. Id. at 4. The agency deter-
mined that this conduct violated security regulations and
was therefore a basis for removal. Id. at 3–9. Second, in
May 2019, Employee 1 was involved in a car crash result-
ing in a civilian’s death; the agency determined that Mr.
1 “S.A.” refers to the supplemental appendix filed by
the government.
2 The Board and the parties use the name “Employee
1” to maintain the coworker’s anonymity. We do the same.
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OWENS v. ARMY 3
Owens called the victim’s father and told him that Em-
ployee 1 was responsible for his son’s death. Id. at 13. The
victim’s father visited Employee 1 at his home and, though
the interaction resulted in no violence, the agency feared
that it could have. Id. at 13–14. The agency determined
that Mr. Owens’ conduct caused a hostile work environ-
ment and therefore constituted another basis for removal.3
Id. at 12–18.
The Board sustained the two charges, then evaluated
Mr. Owens’ two proffered affirmative defenses: retaliation
for protected whistleblowing and reprisal for protected
Equal Employment Opportunity (“EEO”) activity. Regard-
ing whistleblower retaliation, the Board determined that
Mr. Owens established that he engaged in protected whis-
tleblower disclosures, one of which was a contributing fac-
tor in his removal, id. at 19–27, but that the agency showed
that it would have removed Mr. Owens even if he had not
made a protected disclosure, id. at 27–31. Regarding the
EEO reprisal, the Board determined that Mr. Owens failed
to show that any protected activity was a motivating factor
in his removal. Id. at 31–33. The Board finally determined
that the penalty of removal did not exceed the maximum
limits of reasonableness and affirmed the agency’s decision
to remove Mr. Owens. Id. at 33–39.
Mr. Owens now petitions for review by this court, but
the agency asks us to dismiss the appeal as untimely. Our
jurisdiction is governed by 28 U.S.C. § 1295(a)(9).
3 The agency also purported to remove Mr. Owens
based on charges of other alleged misconduct. See Initial
Decision, S.A. 9–12. However, the Board sustained his re-
moval based on only the two mentioned charges. Id. at 3–
18. We discuss only those two charges.
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OWENS v. ARMY 4
DISCUSSION
We agree with the agency that Mr. Owens’ appeal is
untimely. Under 28 U.S.C. § 1295(a)(9), we have jurisdic-
tion to hear “an appeal from a final order or final decision
of the Merit Systems Protection Board, pursuant to sec-
tions 7703(b)(1) and 7703(d) of title 5.” Under 5 U.S.C.
§ 7703(b)(1)(A), “any petition for review shall be filed
within 60 days after the Board issues notice of the final or-
der or decision of the Board.” The Board issued its final
order on February 26, 2025, Final Order, S.A. 40–41, and
we received Mr. Owens’ petition more than 60 days later,
on April 29, 2025, S.A. 42.4 Mr. Owens’ petition was there-
fore untimely.
But our analysis does not end there. The Supreme
Court has recently “held that § 7703(b)(1)’s deadline is non-
jurisdictional” and therefore may be subject to equitable
tolling. Harrow v. Dep’t of Def., 601 U.S. 480, 489 (2024).
We do not decide now whether § 7703(b)(1) is in fact subject
to equitable tolling; even if it is, Mr. Owens has made no
showing that equitable tolling should apply in this case.
See Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (“Gener-
ally, a litigant seeking equitable tolling bears the burden
of establishing two elements: (1) that he has been pursuing
his rights diligently, and (2) that some extraordinary cir-
cumstance stood in his way.”). Therefore, even if equitable
tolling can apply to § 7703(b)(1), Mr. Owens has not carried
his burden to show that it should apply in his case.
4 Mr. Owens dated his petition to this court April 21,
2025. S.A. 42. But petitions for review are considered
“filed” when received by the clerk of the court, not when
dated by the petitioner. Pinat v. Off. of Pers. Mgmt.,
931 F.2d 1544, 1546 (Fed. Cir. 1991); Fed. R. App. P.
25(a)(2)(A)(i) (“[F]iling is not timely unless the clerk re-
ceives the papers within the time fixed for filing.”).
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OWENS v. ARMY 5
CONCLUSION
For the above reasons, we dismiss Mr. Owens’ appeal
as untimely.
DISMISSED
COSTS
No costs.
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