[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-14117

Non-Argument Calendar

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DELTA DANIELLE HARRIS, 

Plaintiff-Appellant,

versus

SECRETARY, U.S. DEPARTMENT OF THE INTERIOR, 

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 2:20-cv-14195-RLR

____________________

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2 Opinion of the Court 21-14117

Before GRANT, BRASHER, and MARCUS, Circuit Judges.

PER CURIAM:

Delta Danielle Harris appeals the district court’s grant of the 

Department of the Interior’s (“DOI”) motion to dismiss her lawsuit, which raised claims of discrimination and retaliation under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e-2(a)(1), 2000e-

(3)(a), and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. On 

appeal, Harris argues that: (1) the Federal Circuit Court of Appeals 

erred in transferring her case to the United States District Court for 

the Southern District of Florida because her discrimination claims 

were untimely; (2) the district court abused its discretion in refusing to re-transfer her case to the Federal Circuit, where her nondiscrimination claims were timely filed; and (3) the district court erred 

in refusing to equitably toll the statutory time limit for filing her 

discrimination claims because she diligently pursued her claims for 

review of the Merit Systems Protection Board’s (“MSPB”) final order and the DOI was not prejudiced by her untimely filing. After

careful review, we affirm.

I.

In March 2018, a DOI supervisor issued a notice of proposed 

removal of Harris for cause from her position as a Fish and Wildlife 

Biologist, for being absent without leave, failure to follow leave 

procedures, lack of candor, misuses of a government vehicle, and

inappropriate conduct. Based on the factors laid out in Douglas v.

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21-14117 Opinion of the Court 3

Veterans Administration, 5 M.S.P.B. 313 (1981), the supervisor determined that removal was the appropriate penalty for Harris’s 

misconduct. The DOI agreed and removed Harris effective April 

20, 2018. Harris then filed an Equal Employment Opportunity 

(“EEO”) complaint alleging she was terminated based on her disabilities and in discrimination for her prior EEO activity. In February 2019, the DOI issued a final decision finding that Harris had not

been subjected to employment discrimination, and informed her

that she had the right to appeal the decision to the MSPB within 30 

days or to file a civil action in the appropriate district court within 

30 days, which was her only avenue if her claim arose under the 

Civil Rights Act. Harris appealed to the MSPB, challenging her removal; the MSPB affirmed the DOI’s action, noted that the decision would become final on December 23, 2019 and informed her 

of the deadlines for an appeal.1

On February 21, 2020, Harris filed a petition for review of 

the MSPB’s decision with the Federal Circuit. Because her filings 

indicated that she sought to pursue a discrimination claim that 

she’d raised as an affirmative defense before the MSPB, the Federal 

1 Specifically, the MSPB explained that Harris had three avenues to appeal. 

First, Harris could appeal to the Federal Circuit by petitioning for review 

within 60 days of the date of the final decision. Second, Harris could file a civil 

action in an appropriate district court within 30 days of the date of the final

decision, if she was claiming that she was affected by an action that was appealable to the MSPB and that the action was based, in whole or in part on 

unlawful discrimination. Third, Harris could file in the Federal Circuit within 

60 days if her claim concerned whistleblower protection.

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Circuit entered an order advising that the properforum for discrimination cases was the district court. The order directed the parties 

to show cause why the case should not be transferred to a district 

court and asked which court would be most appropriate. 

Harris responded that she intended to pursue her discrimination claims, agreed with the Federal Circuit that her case should 

be transferred to a district court, and urged that it be transferred to 

the United States District Court for the Southern District of Florida. On June 18, 2020, the Federal Circuit transferred Harris’s case 

to the Southern District of Florida.

Once in district court, the DOI moved for dismissal, arguing 

that Harris’s suit was untimely. It said that the MSPB decision became final on December 23, 2019, and that judicial review had to 

be sought with the Federal Circuit within 60 days if the claim did 

not involve an allegation of discrimination or with a district court 

within 30 days if the claim involved discrimination. Because Harris 

had not met these deadlines and had offered no justification for her 

late filing, a magistrate judge issued a report and recommendation 

(“R&R”), recommending that the DOI’s motion to dismiss be 

granted. After reviewing Harris’s objections to the R&R, the district court granted the DOI’s motion to dismiss.

This timely appeal followed.

II.

We have an obligation to ensure that we have jurisdiction 

to review a case before us. Corley v. Long-Lewis, 965 F.3d 1222, 

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21-14117 Opinion of the Court 5

1227 (11th Cir. 2020). We review jurisdictional issues de novo. Adams v. Monumental Gen. Cas. Co., 541 F.3d 1276, 1277 (11th Cir. 

2008). However, we review for abuse of discretion a district court’s 

decision not to transfer a case. Richardson v. Ala. State Bd. of 

Educ., 935 F.2d 1240, 1247–48 (11th Cir. 1991) (reviewing for abuse 

of discretion the district court’s refusal to transfer the case, under 

28 U.S.C. § 1404(a), to another district court). 

The grant of a motion to dismiss based on the statute of limitations is reviewed de novo. United States v. Henco Holding 

Corp., 985 F.3d 1290, 1296 (11th Cir. 2021). We also review a district court’s ruling on equitable tolling de novo. Booth v. Carnival 

Corp., 522 F.3d 1148, 1149 (11th Cir. 2008). 

While we will liberally construe the pleadings of pro se litigants, Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 

1998), liberal construction of pro se pleadings “does not give a court 

license to serve as de facto counsel for a party, or to rewrite an otherwise deficient pleading in order to sustain an action.” Campbell 

v. Air Jam., Ltd., 760 F.3d 1165, 1168–69 (11th Cir. 2014) (quotations omitted). A district court has discretion to refuse to consider 

arguments that were not raised before the magistrate judge or 

were raised for the first time in objections to a magistrate judge’s 

report and recommendation. Williams v. McNeil, 557 F.3d 1287, 

1292 (11th Cir. 2009).

Moreover, we are precluded “from reviewing an issue raised 

on appeal if it has been waived through the doctrine of invited error.” United States v. Brannan, 562 F.3d 1300, 1306 (11th Cir. 

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2009). “[T]he doctrine of invited error is implicated when a party 

induces or invites the district court into making an error.” Id. (quotations omitted).

III.

First, we lack jurisdiction to review the Federal Circuit’s order transferring Harris’s case to the United States District Court for 

the Southern District of Florida. The procedure for a federal employee to seek protection from adverse personnel actions was established by the Civil Service Reform Act (“CSRA”). Kloeckner v. 

Solis, 568 U.S. 41, 44 (2012). A serious personnel action, like removal, may be appealed to the MSPB. Id. A complaint that alleges 

a serious personnel action and that the action was based on discrimination is a “mixed case.” Id. (quotations omitted).

When a federal employee brings a “mixed case” appealing 

an adverse personnel action from the MSPB and raising claims of 

discrimination, we review the non-discrimination claims on the administrative record using an arbitrary and capricious standard. Kelliher v. Veneman, 313 F.3d 1270, 1274–75 (11th Cir. 2002). The 

MSPB’s findings or conclusions may only be set aside if they are (1)

arbitrary, capricious, 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). The MSPB considers 

factors including whether the offense was intentional or committed maliciously, the employee’s potential for rehabilitation, the effect of the action on the employee’s ability to perform her duties, 

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the mission of the organization, the employee’s past disciplinary 

record, unusual job tensions and any mental impairment. Douglas

v. Vets. Admin., 5 M.S.P.B. at 331–32. The MSPB accords considerable deference to the agency’s penalty determination and may 

modify a penalty only if the agency’s judgment clearly exceeded 

the bounds of reasonableness, or the agency failed to conscientiously consider relevant mitigating factors. Id. at 332–33. 

Generally, a petition for review of a final order of the MSPB 

must be filed in the Federal Circuit within 60 days of the decision 

becoming final. 5 U.S.C. § 7703(b)(1)(A). Judicial review of a final 

order of the MSPB in an action based, in whole or in part, on unlawful discrimination must be filed in an appropriate district court 

within 30 days. Id. § 7703(b)(2). The Federal Circuit has no authority over discrimination claims, nor does it have authority over 

“mixed cases.” Perry v. Merit Sys. Prot. Bd., 137 S. Ct. 1975, 1979 

(2017).

Whenever a civil action is filed, including a petition for review of an administrative action, and the court in which it is filed 

finds that it lacks jurisdiction, it shall, if it is in the interest of justice, 

transfer the action to any other court in which the action could 

have been brought when it was filed. 28 U.S.C. § 1631. When a 

transfer like this occurs, the action shall proceed as if it had been 

filed in the court to which it is transferred on the date that it is 

transferred. Id. 

However, we lack jurisdiction to review an order transferring a case to a district court within this Circuit. Cf. Corley, 965 

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F.3d at 1232 (stating in the context of a transfer order from a district 

court to a district court in another circuit that “an out-of-circuit 

transfer order is not reviewable on appeal in the transferee circuit”); Murray v. Scott, 253 F.3d 1308, 1314 (11th Cir. 2001) (stating 

that we lacked jurisdiction to review the decision of a district court 

from another circuit transferring a case to a district court in this 

Circuit). 

Our case law is clear that we lack jurisdiction to review the 

Federal Circuit’s order transferring Harris’s case to United States 

District Court for the Southern District of Florida. See Murray, 253 

F.3d at 1314; Corley, 965 F.3d at 1232. But even if we somehow 

had jurisdiction to review the order, we would be precluded from 

considering any challenge to the transfer order under the invited 

error doctrine. As the record reflects, Harris agreed with the transfer and advised the Federal Circuit that her case should be transferred to the Southern District of Florida. See Brannan, 562 F.3d at 

1306. For these reasons, we are unable to review this issue on appeal.

IV.

Next, we find no merit in Harris’s claim that the district 

court abused its discretion in declining to re-transfer her case to the 

Federal Circuit. For starters, Harris argued for re-transfer to the 

Federal Circuit for the first time in her objections to the R&R. She 

did not raise that argument in her response to the DOI’s motion to 

dismiss and did not offer any explanation for why she did not make 

the request earlier. Thus, whether or not the district court 

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considered this argument as part of Harris’s objections to the R&R, 

the district court acted within its discretion in not discussing this 

argument because Harris did not raise it to the magistrate judge. 

See Williams, 557 F.3d at 1292.

Moreover, while Harris says that she asserted a nondiscrimination claim of wrongful termination that should have been retransferred to the Federal Circuit, where it was timely filed, she did 

not actually raise any nondiscrimination claims. In her amended 

complaint -- which included a wrongful termination heading and a 

wrongful discrimination heading -- Harris raised only discrimination claims under the “Wrongful Termination” heading. Further, 

throughout the complaint, she consistently alleged that her removal was due to discrimination and retaliation for her protected 

EEOC activity. As we’ve said many times, courts may not rewrite 

an otherwise deficient pro se pleading. Tannenbaum, 148 F.3d at 

1263; Campbell, 760 F.3d at 1168–69. Because Harris appears to 

have alleged only discrimination claims, there were no claims over 

which the Federal Circuit had authority and there was nothing to 

transfer to the Federal Circuit. Perry, 137 S. Ct. at 1979. 

We recognize that in deciding whether to transfer a case, 

we’ve suggested that one important factor to consider is whether 

dismissal would effectively time-bar the plaintiff from seeking relief 

in the proper court. See ITT Base Servs. v. Hickson, 155 F.3d 1272, 

1276 (11th Cir. 1998). But even though the district court’s refusal 

to re-transfer Harris’s case left it time-barred, Harris had no case to

pursue in the Federal Circuit, and the interest of justice would not 

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have been furthered by re-transferring her case. Id. It’s also worth 

reiterating that Harris specifically asked the Federal Circuit to 

transfer her case to the district court. On this record, the district 

court did not abuse its discretion in refusing to re-transfer Harris’s 

case. See Richardson, 935 F.2d at 1247–48.

Nor did the district court err in dismissing Harris’s case as 

untimely. When she filed her case in the Federal Circuit, more than 

30 days had passed from the date the MSPB decision became final. 

And a civil action seeking review of the MSPB’s final order involving discrimination claims must be filed in the district court within 

30 days. 5 U.S.C. § 7703(b)(2). Thus, even had she correctly filed 

in the district court in the first instance, her filing would have been 

untimely. Accordingly, the district court properly dismissed her 

case as time-barred. 

V.

Finally, we are unpersuaded by Harris’s claim that the district court erred in refusing to equitably toll the statutory time limit 

for filing her discrimination claims. Under the equitable tolling 

doctrine, “plaintiffs may sue after the statutory time period has expired if they have been prevented from doing so due to inequitable 

circumstances.” Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 

703, 706 (11th Cir. 1998). The general test for equitable tolling requires the party seeking tolling to prove (1) she has diligently pursued her rights, and (2) an extraordinary circumstance has prevented her from meeting a deadline. Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 971 (11th Cir. 2016) (en banc). Equitable 

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tolling is an extraordinary remedy that should be extended only 

sparingly. Chang v. Carnival Corp., 839 F.3d 993, 996 (11th Cir. 

2016). 

Equitable tolling is not warranted when a plaintiff does not 

timely file her action even though she knew, or was in a position 

reasonably to know, that the limitations period was running, and 

she failed to act with due diligence. Id. Ignorance of the law does 

not usually warrant equitable tolling, and absent more, does not 

meet the “extraordinary circumstances” test. Jackson v. Astrue,

506 F.3d 1349, 1356 (11th Cir. 2007) (quotations omitted). “[G]arden-variety negligence” is also insufficient to warrant tolling.

Chang, 839 F.3d at 996 (quotations omitted). Nor is “lack of prejudice to the defendant . . . nearly enough to show injustice to the 

plaintiff.” Raziano v. United States, 999 F.2d 1539, 1542 (11th Cir. 

1993). Although lack of prejudice may be a factor in deciding

whether to apply equitable tolling, “it is not an independent basis 

for invoking the doctrine.” Id. (quotations omitted).

We have not yet held that equitable tolling applies to the 

time limit found in § 7703(b)(2). However, we’ve affirmed the dismissal of an untimely MSPB appeal when the appellant failed to 

proffer facts that might be grounds for equitable tolling. See Lee v. 

U.S. Postal Serv., 774 F.2d 1067, 1068–69 (11th Cir. 1985). Because 

we held in Lee that the appellant did not establish that equitable 

tolling was warranted, we did not resolve the question of whether 

the timely filing requirement was jurisdictional and not subject to 

equitable tolling. Id.

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Here, regardless of whether equitable tolling is available under § 7703(b)(2), the district court did not err in refusing to equitably toll the statute of limitations for Harris’s appeal of the MSPB’s 

final order. Notably, both the DOI and the MSPB informed Harris

-- in detail -- of the 30-day time limit to file for review of her discrimination claims, and she has not shown that any extraordinary 

circumstance prevented her from timely filing. Villarreal, 839 F.3d 

at 971; Chang, 839 F.3d at 996. To the extent she argues that this 

is a complex area of the law, the DOI and MSPB were very clear 

about the deadlines for an appeal, and ignorance of the law, without more, does not establish the extraordinary circumstances necessary to warrant equitable tolling. Jackson, 506 F.3d at 1356. Nor 

is lack of prejudice to the DOI “nearly enough to show injustice” 

to Harris. Raziano, 999 F.2d at 1542. As for her suggestion that the 

Federal Circuit or the DOI should have told her that her discrimination claims were untimely, she cites no authority imposing this 

requirement on the court or the DOI. On this record, the district 

court did not err in declining to equitably toll the time for Harris 

to file for review of the MSPB’s final order on her discrimination 

claims.

AFFIRMED. 

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