Idahosa v. Army

Case: 25-1770 Document: 25 Page: 1 Filed: 09/10/2026

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________ ROBERT O. IDAHOSA, Petitioner v. DEPARTMENT OF THE ARMY, Respondent ______________________ 2025-1770 ______________________ Petition for review of the Merit Systems Protection Board in No. AT-1221-19-0535-W-1. ______________________ Decided: September 10, 2026 ______________________ ROBERT O. IDAHOSA, Columbus, GA, pro se.

STEPHANIE FLEMING, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, for respondent. Also represented by ELIZABETH MARIE HOSFORD, PATRICIA M. MCCARTHY, BRETT SHUMATE. ______________________ Before TARANTO, HUGHES, and CUNNINGHAM, Circuit Judges.

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PER CURIAM.

Robert O. Idahosa served as an Equal Employment Op- portunity (EEO) specialist with the Department of the Army (agency) until 2018, when the agency removed him from his position. Mr. Idahosa sought relief from the Merit Systems Protection Board (Board), alleging that the agency took several adverse personnel actions against him, includ- ing his removal, in retaliation for his whistleblowing activ- ities and disclosures protected under 5 U.S.C. § 2302(b)(8)– (9). The Board, while agreeing that Mr. Idahosa engaged in protected whistleblower activity, denied him relief for want of a prima facie case of retaliation, determining that the activity was not a factor contributing to the challenged personnel actions. See Idahosa v. Department of the Army, No. AT-1221-19-0535-W-1, 2024 WL 3373092 (M.S.P.B.

July 10, 2024) (Final Decision).

Mr. Idahosa petitioned this court for review. But his petition was not received until several months after the 60- day statutory filing period. We now dismiss his petition as untimely. We also conclude that Mr. Idahosa has not shown error in the Board’s determination of no whistle- blower retaliation, so we would affirm the Board if we were not dismissing the petition.

I A In July 2016, the agency initiated an investigation into whether Mr. Idahosa engaged in the unauthorized practice of law or used his public office for private gain. S.

Appx. 39–41; 1 see 5 C.F.R. § 2635.701 et seq. The investi- gating officer found that Mr. Idahosa committed both ac- tions and recommended that he be fired. S. Appx. 44–46.

1 “S. Appx.” refers to the supplemental appendix submitted with the Board’s brief.

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In February 2017, Mr. Idahosa’s first-line supervisor placed him on paid administrative leave for insubordinate conduct. S. Appx. 51.

In March 2017, Mr. Idahosa filed a complaint with the Office of Inspector General, accusing his first-line supervi- sor of falsifying her own time-and-attendance records when stating that she worked for eight hours on certain days when she arrived at work after 8 A.M. S. Appx. 52–53. He also accused her of mismanaging agency resources. S.

Appx. 53.

In April 2017, Mr. Idahosa’s first-line supervisor sub- mitted her annual performance appraisal of Mr. Idahosa, covering the rating period from November 2015 through October 2016. S. Appx. 54–55. In August 2017, she charged Mr. Idahosa with conduct unbecoming a federal employee and proposed his removal, S. Appx. 56–57, and the agency sustained the charge and removed him from his job effective February 6, 2018, S. Appx. 59–60.

Mr. Idahosa then filed a complaint with the Office of Special Counsel (OSC), alleging (as OSC recounted) that he was placed on administrative leave and removed in retali- ation for his complaint to the Inspector General as well as complaints to his second-line supervisor and “EEO com- plaints.” S. Appx. 63; see S. Appx. 62–64. He later amended his OSC complaint to allege other retaliatory acts by the agency (including denying him promotions and fail- ing to provide performance evaluations covering a period after October 2016) and to allege that a complaint he filed with OSC in 2014 was a further basis for retaliation. See Case: 25-1770 Document: 25 Page: 4 Filed: 09/10/2026

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Appx. 60–64. 2 OSC closed that inquiry in April 2019, de- termining that Mr. Idahosa had not provided a sufficient basis to support his allegations. S. Appx. 64–66.

B In June 2019, Mr. Idahosa, then represented by coun- sel, filed an Individual Right of Action (IRA) appeal with the Board pursuant to 5 U.S.C. § 1221. S. Appx. 67–73.

In February 2020, the Board-assigned administrative judge (AJ) denied Mr. Idahosa’s request for corrective ac- tion, ruling on the basis of the submitted written evidence, as Mr. Idahosa did not request a hearing. See Idahosa v. Department of the Army, No. AT-1221-19-0535-W-1, 2020 WL 698409 (M.S.P.B. Feb. 7, 2020) (Initial Decision); S. Appx. 21–37. Relevantly, the AJ determined that Mr. Idahosa had exhausted his administrative remedies only with respect to the disclosure associated with his removal.

Initial Decision, at 5 (S. Appx. 25). 3 The AJ concluded, however, that Mr. Idahosa failed on the merits twice over: He had not made a protected disclosure under 5 U.S.C. § 2302(b)(8) in his complaint to the Inspector General; and even if the relied-on disclosure was protected, he did not establish that it was a contributing factor in his removal.

Id. at 6–8 (S. Appx. 26–28).

Mr. Idahosa then petitioned the full Board to review the matter and to reject, in part, the AJ’s evaluation of the evidence. S. Appx. 78–84. On July 10, 2024, the Board

2 “Appx.” refers to the appendix that, with Mr. Ida- hosa’s opening brief, is docketed at ECF No. 13. We cite the page numbers at the top of the pages of ECF No. 13.

3 For the Initial Decision, we cite the native page numbers on the document at S. Appx. 21–37 (along with the corresponding S. Appx. number). For the Final Deci- sion, we give the Westlaw page numbers.

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IDAHOSA v. ARMY 5 denied his petition for review and affirmed the Initial De- cision, albeit with modifications. Final Decision, at *1. The Board found that Mr. Idahosa exhausted his administra- tive remedies with OSC not only with respect to his re- moval but also with respect to three other actions or omissions by the agency—placing him on administrative leave, failing to provide performance evaluations for his work after October 2016, and not selecting him for promo- tions. Id. at *3. The Board further modified the Initial Decision to conclude that Mr. Idahosa’s complaint to the Inspector General was a protected activity under 5 U.S.C. § 2302(b)(9)(C) but that none of his other complaints were protected. Id. at *4–5. The Board, reviewing the submitted evidence, determined that the complaint to the Inspector General was not a contributing factor to any personnel ac- tion. Id. at *5–6.

Mr. Idahosa petitioned this court for review under 5 U.S.C. § 7703(b). We received his petition on May 12, 2025, nearly a year after the Board issued and mailed the Final Decision to Mr. Idahosa. ECF. No. 1; S. Appx. 85. We have jurisdiction under 28 U.S.C. § 1295(a)(9).

II Relief in Mr. Idahosa’s favor is foreclosed on two inde- pendent grounds. First, we dismiss the petition for review to us as having been untimely filed. Second, we conclude that, if we were to reach the merits, Mr. Idahosa has not shown reversible error in the Board’s ruling. We may set aside the Board’s decision only if it is “(1) arbitrary, capri- cious, an abuse of discretion, or otherwise not in accordance with 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).

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A The agency argues that we should dismiss Mr. Ida- hosa’s petition for review as untimely. Board Response Br. at 10–14. 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,” and “the date on which the [Board] ‘issues notice’ is the date on which it sends the final decision, whether electronically, by regular mail, or by other means.” Federal Education Association - Stateside Region v. Department of Defense, Domestic De- pendents Elementary and Secondary Schools, 898 F.3d 1222, 1224–25 (Fed. Cir. 2018), overruled on other grounds by Harrow v. Department of Defense, 601 U.S. 480, 489–90 (2024). What must occur within the 60-day period is a fil- ing: a petition for review must be “filed.” 5 U.S.C. § 7703(b)(1)(A); see also Fed. R. App. P. 15(a)(1) (“Review of an agency order is commenced by filing, within the time prescribed by law. . . .”). Crucially, for a petitioner who files by mail, the “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) (emphasis added); 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.”). In the present matter, this court therefore had to receive a petition from Mr. Idahosa within 60 days after July 10, 2024 (or the first business day after that 60 days). But we did not receive Mr. Idahosa’s petition until May 12, 2025, which was 245 days late.

The § 7703(b)(1)(A) time limit is not a “jurisdictional” rule, see Harrow, 601 U.S. at 482–89, but as with statutes of limitations generally, dismissal is proper when the filing Case: 25-1770 Document: 25 Page: 7 Filed: 09/10/2026

IDAHOSA v. ARMY 7 is made beyond the time limit—unless “equitable tolling” is legally available for the § 7703(b)(1)(A) time limit and is shown by the tardy filer to be justified in the particular case. As to the legal-availability requirement, the Supreme Court has explained that “nonjurisdictional [timing rules] are presumptively subject to equitable tolling.” Boechler, P.C. v. Commissioner, 596 U.S. 199, 209 (2022) (emphasis added); see Harrow, 601 U.S. at 489–90. The Supreme Court, however, has not decided whether the presumption is overcome for § 7703(b)(1)(A), and our pre-Harrow prece- dent indicates that the presumption is overcome for § 7703(b)(1)(A). See Oja v. Department of Army, 405 F.3d 1349, 1357–58 (Fed. Cir. 2005) (holding that the rebuttable presumption of equitable tolling has been rebutted with re- spect to § 7703(b)(1)(A)); see also Fed. R. App. P. 26(b)(2) (explaining that the court “may not extend the time to file . . . a notice of appeal from . . . an order of an administrative . . . board . . . unless specifically authorized by law”). We need not resolve the issue here. Assuming without decid- ing that equitable tolling is available under § 7703(b)(1)(A), we conclude that Mr. Idahosa has not shown entitlement to equitable tolling in this particular case, as he has not carried the burden of demonstrating “(1) that he has been pursuing his rights diligently, and (2) that some extraordi- nary circumstance stood in his way” and prevented timely filing. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also Baldwin County Welcome Center v. Brown, 466 U.S. 147, 151 (1984) (“One who fails to act diligently cannot in- voke equitable principles to excuse that lack of diligence.”).

Mr. Idahosa, who has not been a registered electronic filer and who filed by mail with both the Board and this court, contends that he could not satisfy the 60-day re- quirement because he did not timely receive the Final De- cision. Idahosa Reply Br. at 3–4. On July 10, 2024, the Board mailed Mr. Idahosa the Final Decision to the ad- dress on record, but the United States Postal Service was Case: 25-1770 Document: 25 Page: 8 Filed: 09/10/2026

8 IDAHOSA v. ARMY unable to deliver it and returned it to the Board on Sep- tember 23, 2024. S. Appx. 20, 85; Returned Final Order, Idahosa v. Department of the Army, No. AT-1221-19-0535- W-1 (M.S.P.B. Sept. 23, 2024), PFR Tab No. 7. Mr. Idahosa asserts that he had filed a change of address form with the postal service and then mailed a copy of it to both the Board and the agency. Idahosa Reply Br. at 4. In February 2025, the Board’s Office of the Clerk emailed Mr. Idahosa re- questing a mailing address to resend the Final Decision, and Mr. Idahosa replied the same day. S. Appx. 85. The Office of the Clerk mailed the Final Decision to Mr. Idahosa on March 3, 2025, id., and Mr. Idahosa confirms receiving it that month, Idahosa Reply Br. at 4. Even so, this court did not receive Mr. Idahosa’s petition to this court until May 12, 2025.

Even if equitable tolling is available, Mr. Idahosa has not met his burden to show that equitable tolling is justi- fied. First, before March 2025, he had an obligation to ap- prise the Board of any new address, but he does not provide evidence of when and how he did so—in particular, that he did so before the 60-day statutory period ended—nor is any such communications apparent from the Board’s docket.

See 5 C.F.R. § 1201.26(a)(2) (“The parties and their repre- sentatives must notify the appropriate Board office and one another, in a pleading, of any changes in their address.”); see also id. §§ 1201.4(b), 1203.13(d). The Board informed Mr. Idahosa of this obligation in the Form he filled out to initiate his appeal to the Board (i.e., before any AJ proceed- ings) and in the Board’s acknowledgment of his petition for review following the AJ’s Initial Decision. S. Appx. 67 (statement accompanying question 2); Acknowledgment of Petition for Review, Idahosa v. Department of the Army, No. AT-1221-19-0535-W-1 (M.S.P.B. Feb. 14, 2024), PFR Tab No. 2, at 2. Second, once the Board received the correct address and remailed its Final Decision on March 3, 2025, Mr. Idahosa does not demonstrate any extraordinary cir- cumstance or diligent efforts that account for why we did Case: 25-1770 Document: 25 Page: 9 Filed: 09/10/2026

IDAHOSA v. ARMY 9 not receive his notice of appeal until May 12, 2025, which was 70 days, and not within 60 days, from when the Board remailed the Final Decision.

We therefore dismiss Mr. Idahosa’s petition.

B Even if we entertained Mr. Idahosa’s challenge on its merits, we would deny relief.

To secure relief from the Board in an IRA appeal relat- ing to a claim of whistleblowing reprisal, the appellant (in the Board) must have exhausted his administrative reme- dies before OSC. See 5 U.S.C. §§ 1221(e)(1), 1214(a)(3); see also Cahill v. Merit Systems Protection Board, 821 F.3d 1370, 1373 (Fed. Cir. 2016). The appellant also must prove that (1) he made a protected disclosure covered by 5 U.S.C. § 2302(b)(8) or engaged in a protected activity covered by § 2302(b)(9) and (2) his protected disclosure or activity was a contributing factor to the agency’s decision to take a per- sonnel action covered by 5 U.S.C. § 2302(a). See Cahill, 821 F.3d at 1373; Hessami v. Merit Systems Protection Board, F.3d 1362, 1367–70 (Fed. Cir. 2020). To establish the contributing-factor element, the appellant may rely on the “knowledge/timing” test, i.e., prove the decisionmaker’s knowledge of the whistleblowing disclosure or activity and a given temporal relationship of the disclosure or activity to the personnel action. See 5 U.S.C. § 1221(e)(1); Kewley v. Department of Health and Human Services, 153 F.3d 1357, 1361–62 (Fed. Cir. 1998). In the present case, the Board determined that (a) Mr. Idahosa exhausted his ad- ministrative remedies regarding his complaint to the In- spector General, (b) that complaint was a protected activity, but (c) that complaint was not a contributing fac- tor to his adverse personnel actions. See Final Decision, at Case: 25-1770 Document: 25 Page: 10 Filed: 09/10/2026

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*1, *3–4. (The Board did not need to reach any agency de- fense, under 5 U.S.C. § 1221(e)(2), that it would have taken the same actions regardless of the whistleblowing.)

Mr. Idahosa does not present any sufficient reason to disturb the Board’s determination that he failed to meet the contributing-factor requirement by way of the knowledge/timing test. See Idahosa Opening Br. at 15–16.

Mr. Idahosa waived his right to a hearing, and the Board appropriately relied on the declaration of his first-line su- pervisor, whose knowledge was key, as more convincing than the submission of his attorney, who lacked direct per- sonal knowledge of any relevant decisionmaker’s knowledge. Final Decision, at *2, *5–6. And the declara- tion of the first-line supervisor, who served as the propos- ing official of Mr. Idahosa’s removal, stated that she was unaware of either his 2014 OSC complaint or Inspector General complaint when she recommended that Mr. Ida- hosa be removed, noting that the second-line supervisor had not informed her of those complaints. S. Appx. 76–77.

Mr. Idahosa now contends that the Board further erred by not considering declarations of either a co-worker or his second-line supervisor. Idahosa Opening Br. at 10–11; see Appx. 29–39, 88–106. But Mr. Idahosa has not persua- sively shown what statement by either individual could reasonably alter the Board’s knowledge/timing basis for its decision; neither one was either the proposing or deciding official to remove him or directly involved in his other ad- verse personnel actions. See S. Appx. 56–60. Mr. Idahosa’s argument that the adverse personnel actions were retalia- tory is, at best, a request for us to reweigh the evidence on appeal, which we may not do. See Jones v. Department of Health and Human Services, 834 F.3d 1361, 1369 (Fed. Cir. 2016).

Mr. Idahosa’s remaining assertions of Board error are not persuasive.

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Mr. Idahosa claims that the Board failed to consider whether he exhausted his administrative remedies with re- gard to certain additional alleged adverse personnel ac- tions. See Idahosa Opening Br. at 8–10. He has not shown, however, that several of the additional actions are within the definition of a personnel action as protected from retal- iation under 5 U.S.C. § 2302(a)(2)(A), including his allega- tions that his first-line supervisor fraudulently applied his signature, he was denied access to his office, he was ac- cused of breaking into another supervisor’s office, and he endured harassment. Moreover, others that do come within § 2302(a)(2)(A) were nevertheless properly excluded because Mr. Idahosa did not first raise them to OSC, and the Board’s jurisdiction in an IRA appeal is “limited to those issues that have been previously raised with OSC.”

McCarthy v. Merit Systems Protection Board, 809 F.3d 1365, 1374 (Fed. Cir. 2016) (internal citation and quotation marks omitted); see Idahosa Opening Br. at 4–5 (Mr. Ida- hosa depicting what was raised to OSC); S. Appx. 63–64; Final Decision, at *2.

Mr. Idahosa also asserts, in several different argu- ments, that the Board did not properly assess evidence sup- porting the charge for conduct unbecoming a federal employee. These assertions focus on whether the investi- gator had a conflict of interest, Mr. Idahosa’s computer use was de minimis, he used his official time for personal gain, he claimed he could practice law, and the adverse person- nel action may have been different had the agency followed its own policies. Idahosa Opening Br. at 10–12, 14, 16. In so doing, Mr. Idahosa fails to appreciate that the jurisdic- tion of an IRA appeal does not include evaluating the mer- its of the agency’s personnel action but instead is “limited to resolving the claim(s) of reprisal for whistleblowing or other protected activity.” 5 C.F.R. § 1209.2(d)(2); see 5 U.S.C. § 1221(e)(1); Cahill, 821 F.3d at 1373. Mr. Idahosa’s argument that the Board erred by not considering the fac- tors outlined in Douglas v. Veterans Administration, 5 Case: 25-1770 Document: 25 Page: 12 Filed: 09/10/2026

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M.S.P.R. 280, 305–06 (1981), which concern the reasona- bleness of the adverse personnel actions, is similarly una- vailing. See Idahosa Opening Br. at 12–13.

Mr. Idahosa further argues that his 2017 complaint is a protected disclosure under 5 U.S.C. § 2302(b)(8) and not exclusively a protected activity under § 2302(b)(9). Ida- hosa Opening Br. at 17. He does not demonstrate, how- ever, how that classification issue could reasonably have altered the Board’s conclusion on the knowledge/timing test. See id. Further, a showing of a protected disclosure required facts giving rise to a reasonable belief that the dis- closure evidenced “any violation of any law, rule, or regu- lation, or . . . gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” 5 U.S.C. § 2302(b)(8)(A); see Ca- hill, 821 F.3d at 1373; Hessami, 979 F.3d at 1370.

“Whether an individual has such a reasonable belief is de- termined by an objective test: whether a disinterested ob- server with knowledge of the essential facts known to and readily ascertainable by the [individual] would reasonably conclude that the actions of the government evidence wrongdoing as defined by the Whistleblower Protection Act.” Young v. Merit Systems Protection Board, 961 F.3d 1323, 1328 (Fed. Cir. 2020). As the AJ here determined, Mr. Idahosa’s allegations of time-card fraud based on what time his first-line supervisor arrived at work do not satisfy the objective test: Without information about what time that supervisor stopped working on each of the days in question, a disinterested observer could not reasonably conclude that she worked less than her required eight hours. See Initial Decision, at 6–7 (S. Appx. 26–27).

Mr. Idahosa seems to complain that he did not have a hearing before the Board. Idahosa Opening Br. at 15. He has not shown error. Mr. Idahosa waived his right to a hearing while represented by counsel. See Withdrawal of Hearing Request, Idahosa v. Department of the Army, Case: 25-1770 Document: 25 Page: 13 Filed: 09/10/2026

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No. AT-1221-19-0535-W-1 (M.S.P.B. Sept. 12, 2019), IA Tab No. 22; see also Final Decision, at *2.

Mr. Idahosa’s final challenges pertain to the Board’s treatment of the factors in Carr v. Social Security Admin- istration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). Idahosa Opening Br. at 18–19. The Board did not abuse its discre- tion by not analyzing the Carr factors to assess whether the agency would have taken the same adverse personnel actions in the absence of his protected activity (the Inspec- tor General complaint) because the Board need not reach this issue unless Mr. Idahosa’s protected activity were a contributing factor to the adverse personnel actions the agency took. See Rickel v. Department of the Navy, 31 F.4th 1358, 1364 (Fed. Cir. 2022). Because we see no re- versible error in the Board’s determination that his pro- tected activity was not a contributing factor, it did not abuse its discretion. See Final Decision, at *7.

III We have considered Mr. Idahosa’s remaining argu- ments and find them unpersuasive. The petition is dis- missed as untimely.

The parties shall bear their own costs.

DISMISSED