NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

ROBERT D. VOCKE, JR.,

Petitioner

v.

MERIT SYSTEMS PROTECTION BOARD,

Respondent

______________________ 

2016-2390

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DC-1221-13-1266-W-1.

______________________ 

Decided: February 17, 2017

______________________ 

ROBERT D. VOCKE, JR., Germantown, MD, pro se.

KATHERINE MICHELLE SMITH, Office of the General 

Counsel, Merit Systems Protection Board, Washington, 

DC, for respondent. Also represented by BRYAN G.

POLISUK. 

______________________ 

Before NEWMAN, MOORE, and O’MALLEY, Circuit Judges.

PER CURIAM.
2 VOCKE v. MSPB

Robert Vocke seeks review of the May 2, 2016 decision 

of the Merit Systems Protection Board (“the Board”) 

dismissing his whistleblower appeal for lack of jurisdiction. Vocke v. Dep’t of Commerce, No. 13-1266, 2016 WL 

1742994 (M.S.P.B. May 2, 2016). For the foregoing reasons, we dismiss for lack of jurisdiction. 

BACKGROUND

Vocke is employed as a Physical Scientist with the 

National Institute of Standards and Technology (“NIST”), 

part of the Department of Commerce (“the Agency”). In 

July and August 2012, Vocke sent emails to his supervisors and up his chain of command regarding alleged 

improprieties in the Agency’s performance pay and bonus 

compensation. Specifically, Vocke believed that certain 

managers were receiving significantly higher compensation than performance ratings warranted. Vocke received 

no response until August 15, 2012, when his second-level 

supervisor, Gregory Turk, sent him a Letter of Counseling. That letter stated, in relevant part:

You are receiving this counseling memorandum to 

address your demonstrated failure to communicate with your supervisors appropriately and to 

clarify my expectations for your conduct in the future.

. . . 

In each of the above-described emails, I find your 

tone to be disrespectful, derisive, and unprofessional. . . . 

. . . 

I expect that you will communicate appropriately 

with your supervisors in the future and be more 

cognizant of your tone in those communications. I 

expect that, going forward, you will be professional and courteous at all times. It is your responsi-
VOCKE v. MSPB 3

bility to conduct yourself in a professional manner.

This memorandum is only a counseling and will 

not be included in your Official Personnel Folder. 

I must remind you that any future misconduct 

may result in disciplinary action up to and including removal from the Federal Service. 

On February 18, 2013, Vocke filed a complaint with the 

Office of Special Counsel (“OSC”), alleging that the Agency was acting in retaliation against lawful whistleblowing 

disclosures. Specifically, Vocke alleged that he had

received “a corrective action counseling letter on the 

threat of removal from Federal Service” in response to his 

disclosure of information evidencing a violation of law, 

rule, or regulation, gross mismanagement, a gross waste 

of funds, and an abuse of authority. Vocke, 2016 WL 

1742994, at ¶ 3; see generally 5 U.S.C. § 2302(b)(8). On 

May 30, 2013, OSC informed Vocke that it had terminated its inquiry into his allegations, and Vocke appealed to 

the Board. 

Finding no factual dispute bearing on the issue of 

jurisdiction, the Administrative Judge (“AJ”) dismissed 

the appeal for lack of jurisdiction without a hearing, on 

two grounds. Vocke, 2016 WL 1742994, at ¶ 1. First, the 

AJ determined that the Letter of Counseling did not rise

to the level of “personnel action” within the meaning of 

§ 2302(b)(8). Second, the AJ determined that the contents 

of Vocke’s disclosures concerned, at best, debatable expenditures rather than illegal or grossly wasteful spending, making his disclosures not protected under 

§ 2303(b)(8). Vocke filed a petition for review to the 

Board. 

On May 2, 2016, the Board denied Vocke’s petition for 

review, affirming the AJ’s finding that the Letter of 

Counseling did not constitute personnel action, and 

vacating the AJ’s alternative finding as to the protectabil-
4 VOCKE v. MSPB

ity of the contents of Vocke’s disclosures. Id. That decision stated that “[y]ou have the right to request review of 

this final decision by the U.S. Court of Appeals for the 

Federal Circuit,” and “[t]he court must receive your 

request for review no later than 60 days after the date of 

this order.” Id. at ¶¶ 12–13 (citing 5 C.F.R. § 1201.113). 

Vocke filed a petition for review before this court, 

which we received on July 7, 2016. The Agency, previously the respondent in this case, moved to dismiss Vocke’s 

appeal as untimely. We denied that motion without 

prejudice, and instructed the parties to address the issue 

in their briefs. 

DISCUSSION

Congress has limited this court's review of final decisions of the Board to those petitions “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). Failure to comply 

with that statutory deadline prevents jurisdiction in this 

court. See Oja v. Dep’t of the Army, 405 F.3d 1349, 1360 

(Fed. Cir. 2005) (“Compliance with the filing deadline of

5 U.S.C. § 7703(b)(1) is a prerequisite to our exercise of 

jurisdiction over this case.”); see also Monzo v. Dep’t of 

Transp., 735 F.2d 1335, 1336 (Fed. Cir. 1984) (stating 

that the filing deadline under 5 U.S.C. § 7703(b)(1) is 

“statutory, mandatory [and] jurisdictional”).

“The Board’s filing of its decision . . . start[s] the 60-

day period under § 7703(b)(1)(A).” Hearn v. Dep’t of 

Army, No. 2013-3137, 2016 WL 5746341, at *2 (Fed. Cir. 

Oct. 4, 2016). The Board filed its final decision on May 2, 

2016, resulting in a deadline to petition for review of July 

1, 2016. We received Vocke’s petition on July 7, 2016. 

Vocke appears to contend that his petition was timely 

because it was filed only “57 days after [he] received the 

final order.” Pet. Reply Br. at 4 (emphasis added). To the 

extent Vocke believes that the 60-day period under 
VOCKE v. MSPB 5

§ 7703(b)(1)(A) runs from date of receipt, he is incorrect. 

Vocke appears to be relying on now-amended statutory 

language. Prior to 2012, § 7703(b)(1)(A) stated that 

petitions “must be filed within 60 days after the date the 

petitioner received notice of the final order or decision.” 5 

U.S.C. § 7703(b)(1)(A) (2011) (emphasis added). The 

current language of the statute, which indisputably 

applies here, states that petitions “shall be filed within 60 

days after the Board issues notice of the final order or 

decision.” 5 U.S.C. § 7703(b)(1)(A) (2016) (emphasis 

added). Vocke has not persuaded us that the new statutory language should, counterintuitively, be interpreted 

identically to the old. 

To the extent Vocke is requesting equitable tolling 

due to his misunderstanding of the 60-day period, that 

argument is rejected as well. Vocke raises compelling

factual arguments on this front—including, for example, 

that our own “Guide for Pro Se Petitioners and Appellants” may have had out-of-date language. There are also 

legal arguments which can be made to support application 

of equitable tolling to this particular filing deadline. See 

Fedora v. Merit Sys. Prot. Bd., No. 2015-3039 (Fed. Cir.

Feb. 16, 2017) (Plager, J., dissenting). This panel is 

bound, however, by our prior precedent which unequivocally states that “the time period of section 7703(b)(1) is 

not subject to equitable tolling.” Oja, 405 F.3d at 1357. 

To the extent Vocke wishes to urge equitable tolling, he 

must therefore do so to the en banc court. 

CONCLUSION

Because Vocke’s petition for review is untimely, we do 

not have jurisdiction to address its merits. Accordingly, 

we dismiss.

DISMISSED

Costs

No costs.