Walker v. MSPB
CourtCourt of Appeals for the Federal Circuit
Date FiledNovember 13, 2026
Docket26-1456
StatusPublished
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Full Opinion
Case: 26-1456 Document: 22 Page: 1 Filed: 11/13/2026
United States Court of Appeals
for the Federal Circuit
______________________
KATHRYN WALKER,
Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent
______________________
2026-1456
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-1221-23-0642-W-1.
______________________
Decided: November 13, 2026
______________________
KATHRYN WALKER, Fort Gordon, GA, pro se.
STEPHEN FUNG, Office of the General Counsel, United
States Merit Systems Protection Board, Washington, DC,
for respondent. Also represented by KATHERINE MICHELLE
SMITH.
______________________
Before PROST, TARANTO, and CHEN, Circuit Judges.
PER CURIAM.
This case concerns the deadline for a federal employee
to file an individual right of action (“IRA”) appeal with the
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2 WALKER v. MSPB
Merit Systems Protection Board (“Board”) under 5 U.S.C.
§ 1214(a)(3). The Board dismissed Kathryn Walker’s ap-
peal as untimely. We affirm.
BACKGROUND
Ms. Walker worked for the Department of the Army
(“Agency”) as a Transportation Specialist from December
2021 to April 2025. On January 23, 2023, the Agency pro-
posed suspending her for ten days on the charge of “Con-
duct Unbecoming a Federal Employee.” App’x 27–31. 1
That same day, Ms. Walker filed a whistleblower com-
plaint with the Office of Special Counsel (“Special Coun-
sel”). The Agency adopted the suspension proposal and
implemented the ten-day suspension in May 2023.
On May 31, 2023, the Special Counsel notified
Ms. Walker that it was terminating its investigation and
would not seek corrective action on her behalf. On Au-
gust 24, 2023, Ms. Walker filed an IRA appeal with the
Board. On June 25, 2024, the administrative judge issued
a timeliness order indicating the appeal appeared untimely
and directing Ms. Walker to show timely filing or grounds
for equitable tolling. Ms. Walker responded that her ap-
peal was timely under 5 U.S.C. § 1214(a)(3)(B) and that eq-
uitable tolling was “inapplicable.” App’x 65–69.
On October 23, 2024, the administrative judge issued
an initial decision dismissing the appeal as untimely, find-
ing it was filed 24 days after the 60-day statutory deadline
triggered by the Special Counsel’s notice. Ms. Walker pe-
titioned the Board for review, but because the Board lacked
a quorum, the initial decision became the Board’s final de-
cision.
1 “App’x” refers to the appendix included with Ms.
Walker’s opening brief.
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WALKER v. MSPB 3
Ms. Walker timely petitioned this court for review. We
have jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
We must “affirm the board’s decision to dismiss an un-
timely filed petition for review unless the decision is shown
to have been arbitrary, an abuse of discretion, or otherwise
not in accordance with law.” Olivares v. MSPB, 17 F.3d
386, 388–89 (Fed. Cir. 1994) (cleaned up).
The statutory provision at issue in this appeal, 5 U.S.C.
§ 1214(a)(3), is reproduced below in full, with relevant text
in italics.
(3) Except in a case in which an employee, former
employee, or applicant for employment has the
right to appeal directly to the [Board] under any
law, rule, or regulation, any such employee, former
employee, or applicant shall seek corrective action
from the Special Counsel before seeking corrective
action from the Board. An employee, former em-
ployee, or applicant for employment may seek cor-
rective action from the Board under [§] 1221, if
such employee, former employee, or applicant
seeks corrective action for a prohibited personnel
practice described in [§] 2302(b)(8)[ 2] or
[§] 2302(b)(9)(A)(i), (B), (C), or (D) from the Special
Counsel and—
(A)
(i) the Special Counsel notifies
such employee, former employee,
or applicant that an investigation
concerning such employee, former
2 Ms. Walker’s claim arises under § 2302(b)(8).
App’x 39.
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4 WALKER v. MSPB
employee, or applicant has been
terminated; and
(ii) no more than 60 days have
elapsed since notification was pro-
vided to such employee, former em-
ployee, or applicant for
employment that such investiga-
tion was terminated; or
(B) 120 days after seeking corrective action
from the Special Counsel, such employee,
former employee, or applicant has not been
notified by the Special Counsel that the
Special Counsel shall seek corrective action
on behalf of such employee, former em-
ployee, or applicant. 3
I
As noted above, Ms. Walker filed her whistleblower
complaint with the Special Counsel on January 23, 2023.
App’x 32–43. Under subparagraph (B), 120 days later, on
May 23, 2023, Ms. Walker could have filed her IRA appeal
to the Board without notification from the Special Counsel.
She did not, however, and the Special Counsel issued its
notification about a week later, on May 31, 2023. App’x 68.
Under subparagraph (A), an employee has 60 days after
the Special Counsel’s notification to appeal to the Board.
For Ms. Walker, that deadline was Monday, July 31, 2023.
However, Ms. Walker filed her appeal on August 24,
2023—24 days late. App’x 21–26.
The Board dismissed Ms. Walker’s appeal as untimely
and noted that “she appear[ed] to agree that equitable toll-
ing [was] not applicable.” App’x 5.
3 We do not address every aspect of the statute—only
those raised by the Petitioner.
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WALKER v. MSPB 5
On appeal to this court, Ms. Walker argues that her
IRA appeal to the Board was not untimely because the Spe-
cial Counsel did not provide its notification until after the
120-day time period of § 1214(a)(3)(B). Pet’r’s Br. 8–9,
13–14. In Ms. Walker’s view, if the Special Counsel issues
its decision after the 120 days, the 60-day deadline of sub-
paragraph (A) no longer applies. In other words, Ms.
Walker argues that if the Special Counsel does not issue its
decision within 120 days after the employee files with the
Special Counsel, no statute of limitations applies to filing
an IRA appeal to the Board.
In response, the government primarily relies on King
v. Department of Health & Human Services, 71 M.S.P.R. 22
(M.S.P.B. 1996), in which the Board rejected this same ar-
gument because it led to an “absurd result” and “was in-
consistent with principles of statutory construction and
legislative intent.” Resp’t’s Br. 12–14.
II
The plain language of the statutory provision, the con-
text of the language in the same section, and the fact that
Ms. Walker’s interpretation of 5 U.S.C. § 1214(a)(3) leads
to an absurd result, all dictate that Ms. Walker’s interpre-
tation is incorrect.
A
First, contrary to Ms. Walker’s arguments,
§ 1214(a)(3)(B) does not squarely apply to her case. Sub-
paragraph (B) applies if “such employee . . . has not been
notified by the Special Counsel.” § 1214(a)(3)(B) (emphasis
added). Here, Ms. Walker was notified by the Special
Counsel that it would not take corrective action on her be-
half on May 31, 2023. App’x 68. When the Special Counsel
issued its notification, albeit after 120 days, the timing for
appeal was no longer governed by subparagraph (B), but
subparagraph (A), because “the Special Counsel notifie[d]”
her that its “investigation . . . had been terminated.”
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6 WALKER v. MSPB
§ 1214(a)(3)(A). 4 The purpose served by subparagraph (B)
is to allow an employee who has not received a decision
within 120 days to proceed before she receives such deci-
sion—not to allow unlimited time to appeal to the Board
even after the Special Counsel’s decision issues. 5
B
The context of the surrounding statutory text also fore-
closes Ms. Walker’s interpretation. “It is a fundamental
canon of statutory construction that the words of a statute
must be read in their context and with a view to their place
in the overall statutory scheme.” Roberts v. Sea-Land
Servs., Inc., 566 U.S. 93, 101 (2012); see also Transpacific
Steel LLC v. United States, 4 F.4th 1306, 1322 (Fed. Cir.
2021) (“The whole-text canon calls on the judicial inter-
preter to consider the entire text, in view of its structure
and of the physical and logical relation of its many parts.”
(cleaned up)).
4 Because this case does not involve the scenario of
the Special Counsel never providing notification to an em-
ployee, we do not address the deadline to appeal to the
Board under that fact pattern.
5 To the extent Ms. Walker argues that subpara-
graph (B) asks only whether the employee had been noti-
fied by day 120 and any notice arriving afterward is
irrelevant, the provision also precludes this reading. The
conditions of § 1214(a)(3) must be satisfied when the em-
ployee files her IRA appeal. In subparagraph (A), whether
“no more than 60 days have elapsed since notification was
provided” is necessarily assessed at filing. Subparagraph
(B) is no different. The condition of subparagraph (B) that
the employee “has not been notified” is also assessed at fil-
ing. The “120 day[]” period merely sets the earliest date on
which an employee may invoke subparagraph (B).
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WALKER v. MSPB 7
Immediately following the language at issue,
§ 1214(a)(4) dictates what actions the Special Counsel may
take if the employee elects to appeal to the Board under
subparagraph (B). “If an employee . . . seeks a corrective
action from the Board . . . pursuant to the provisions of par-
agraph (3)(B), the Special Counsel may continue to seek
corrective action personal to such employee . . . only with
the consent of such employee.” § 1214(a)(4). That the Spe-
cial Counsel may “continue to seek corrective action” after
the 120-day time period of subparagraph (B) suggests that
an employee’s IRA appeal to the Board is governed by sub-
paragraph (B) when the Special Counsel has not termi-
nated its investigation. Id. (emphasis added).
In addition, the statute makes clear that the 120-day
time period of subparagraph (B) is not a deadline the Spe-
cial Counsel must meet because § 1214(b)(2)(A)(i) provides
this deadline. The Special Counsel must “make a determi-
nation whether there are reasonable grounds to believe
that a prohibited personnel practice has occurred” within
“240 days.” § 1214(b)(2)(A)(i). If the Special Counsel
chooses to use additional time beyond 120 days, subpara-
graph (B) permits the employee to separately appeal to the
Board while the Special Counsel continues its investiga-
tion. § 1214(a)(4). Ms. Walker’s interpretation improperly
construes the 120-day time period of subparagraph (B) as
a deadline that, if not met, provides an unlimited time to
appeal to the Board. This interpretation is inconsistent
with the remainder of the section. Subparagraph (B) miti-
gates the employee’s wait while the Special Counsel re-
mains silent and at work; it does not indefinitely extend
the employee’s time after the Special Counsel has spoken.
C
Finally, we agree that Ms. Walker’s interpretation of
the statute leads to an absurd result. Resp’t’s Br. 13–14.
“[I]nterpretations of a statute which would produce absurd
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8 WALKER v. MSPB
results are to be avoided if alternative interpretations con-
sistent with the legislative purpose are available.” Griffin
v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982); see
also Milavetz, Gallop & Milavetz, P.A. v. United States,
559 U.S. 229, 252 (2010) (declining to “adopt a view of the
statute that . . . would produce an absurd result”); Dupuch-
Carron v. Sec’y of HHS, 969 F.3d 1318, 1330
(Fed. Cir. 2020). Interpreting legislation to have no statute
of limitations is particularly disfavored. The Supreme
Court emphasized that it “would be utterly repugnant to
the genius of our laws” to allow actions to “be brought at
any distance of time.” Adams v. Woods, 6 U.S. (2 Cranch)
336, 342 (1805); see also Gabelli v. SEC, 568 U.S. 442, 452
(2013).
Accordingly, we conclude that it was not Congress’s in-
tent to provide an unlimited amount of time for employees
to file IRA appeals to the Board simply because the Special
Counsel takes more than 120 days to issue its notification.
In cases where the Special Counsel notifies an em-
ployee that its investigation has been terminated and sup-
plies such notification more than 120 days after the
employee sought corrective action from the Special Coun-
sel, 5 U.S.C. § 1214(a)(3)(A) requires the employee to file
her IRA appeal before the Board within 60 days of the Spe-
cial Counsel’s notification. Once the Special Counsel acts,
the 60-day deadline starts to run. Because Ms. Walker did
not file her IRA appeal to the Board within this 60-day
deadline, her appeal was untimely.
Because we affirm the Board’s decision as to timeli-
ness, we do not reach whether Ms. Walker was entitled to
a hearing before the Board. Pet’r’s Br. 16. We also do not
address equitable tolling because Ms. Walker waived the
argument. Pet’r’s Br. 5 (stating that “the doctrine of equi-
table tolling was inapplicable”).
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WALKER v. MSPB 9
CONCLUSION
We have reviewed Ms. Walker’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm.
AFFIRMED
COSTS
No costs.