NOTE: This order is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

DANIEL ASPREC NOVILLA,

Petitioner

v.

DEPARTMENT OF AGRICULTURE,

Respondent

______________________

2023-1118

______________________

Petition for review of the Merit Systems Protection 

Board in No. CH-0752-19-0220-I-2.

______________________

Before DYK, REYNA, and CHEN, Circuit Judges.

PER CURIAM.

O R D E R

In response to this court’s show cause order, Daniel 

Asprec Novilla argues in support of this court’s jurisdiction. 

The Department of Agriculture urges dismissal.

Mr. Novilla appealed his removal from the Department 

to the Merit Systems Protection Board, asserting an affirmative defense that the removal was in retaliation for filing 

an Equal Employment Opportunity complaint alleging 

harassment based on race, national origin, color, and reprisal. The Board’s decision affirming the Department’s

Case: 23-1118 Document: 14 Page: 1 Filed: 03/02/2023
2 NOVILLA v. DEPARTMENT OF AGRICULTURE

removal action became final on October 30, 2020. This 

court received Mr. Novilla’s petition for review of that final 

decision on October 28, 2022.

We first turn to the Department’s argument that this 

appeal falls outside the jurisdiction that Congress established for this court. See 5 U.S.C. § 7703; 28 U.S.C. § 1295. 

Under 28 U.S.C. § 1295(a)(9), this court has jurisdiction to 

review a “final order or final decision” of the Board pursuant to 5 U.S.C. § 7703(b)(1), (d). Section 7703(b)(1) sends 

final Board decisions to us for review except for certain 

“[c]ases of discrimination subject to [5 U.S.C. § 7702],”

which are instead diverted to district courts.

§ 7703(b)(1)(A); see § 7703(b)(2). 

Although Mr. Novilla raised a claim of discrimination 

before the Board, “a petitioner’s explicit waiver of h[is] discrimination claims in such a case effectively converts the 

case to a standard appeal of the adverse personnel action—

providing this court with jurisdiction to review the Board’s 

decision (without considering any discrimination claims).” 

Harris v. SEC, 972 F.3d 1307, 1318 (Fed. Cir. 2020); see

§ 7703(b)(1)(A) (diverting only “[c]ases of discrimination” to 

district court). And here, Mr. Novilla filed a Statement 

Concerning Discrimination indicating that he has abandoned his discrimination claims raised before the Board.

See ECF No. 12 at 3.* 

Having concluded that this appeal would otherwise be 

subject to our jurisdiction, we turn to timeliness. The 

timely filing of a petition from the Board to this court is a 

jurisdictional requirement and “not subject to equitable 

tolling.” Fedora v. Merit Sys. Prot. Bd., 848 F.3d 1013, 1016 

* While Mr. Novilla’s response to the court’s show 

cause order discussed his discrimination allegations, that 

submission was filed before the revised Statement Concerning Discrimination. 

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NOVILLA v. DEPARTMENT OF AGRICULTURE 3

(Fed. Cir. 2017). A petition for review of a final decision 

“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); cf. Fed. R. App. P. 26(b)(2) (prohibiting this 

court from extending or reopening the time to file the petition for review “unless specifically authorized by law”). 

Here, Mr. Novilla does not dispute that his petition was 

filed outside of this statutory deadline. Rather, Mr. Novilla 

contends that his failure to timely file his petition for review is excusable because his prior lawyer informed him 

“he would file the petition for review” but in fact “never 

filed it,” ECF No. 1-2 at 1. While this court is sympathetic 

to Mr. Novilla’s situation, we can only consider whether the 

petition was timely filed and cannot excuse a failure to 

timely file based on individual circumstances. Because the 

appeal was untimely, we must dismiss. 

Accordingly, 

 IT IS ORDERED THAT: 

(1) The petition for review is dismissed.

(2) Each side shall bear its own costs.

 March 2, 2023 

Date

FOR THE COURT

/s/ Peter R. Marksteiner

Peter R. Marksteiner

Clerk of Court

 

Case: 23-1118 Document: 14 Page: 3 Filed: 03/02/2023