Full text
Graham v. DOJ
Case: 25-1102 Document: 26 Page: 1 Filed: 06/11/2025
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit ______________________
GERY J. GRAHAM, Petitioner
v.
DEPARTMENT OF JUSTICE, Respondent ______________________
2025-1102 ______________________
Petition for review of the Merit Systems Protection Board in No. SF-0752-20-0708-I-2. ______________________
Decided: June 11, 2025 ______________________
GERY J. GRAHAM, Honolulu, HI, pro se.
JOSHUA A. MANDLEBAUM, Commercial Litigation Branch, Civil Division, United States Department of Jus- tice, Washington, DC, for respondent. Also represented by DEBORAH ANN BYNUM, PATRICIA M. MCCARTHY, BRETT SHUMATE. ______________________
Before LOURIE, DYK, and CUNNINGHAM, Circuit Judges. Case: 25-1102 Document: 26 Page: 2 Filed: 06/11/2025 2 GRAHAM v. DOJ
PER CURIAM. Gery J. Graham petitions for review of the final deci- sion of the United States Merit Systems Protection Board (the “Board”). Graham v. Dep’t of Just., No. SF-0752-20- 0708-I-2, 2024 WL 3825054 (M.S.P.B. Aug. 14, 2024) (“Fi- nal Order”); see also Graham v. Dep’t of Just., No. SF-0752- 20-0708-I-2, 2023 WL 3043690 (M.S.P.B. Apr. 18, 2023) (“Initial Decision”), S.A. 8–30. 1 The Board upheld the De- partment of Justice’s (the “DOJ”) decision to suspend Gra- ham for 30 days as a penalty for misuse of his position and a lack of candor. Final Order, at *1. For the following rea- sons, we dismiss. BACKGROUND Graham holds the position of special agent with the DOJ’s Bureau of Alcohol, Tobacco, Firearms and Explo- sives (the “ATF”). Following an investigation, Graham was suspended by the DOJ for 30 days for misuse of official po- sition and a lack of candor. See S.A. 41–50. The misuse of position charge was based on an August 2, 2016 email that Graham sent using his DOJ email account. The email and attached letter were sent to the director of Graham’s son’s school after an enrollment hold was placed on his son for unpaid tuition. Id. at 45, 205. In the communication, Gra- ham identified himself as ATF SA Gery Graham, Firearms Instructor and stated that “due to the strict protocols of my professional career as a Federal Agent for [the ATF], I am unable to accept payment as a football coach” and sug- gested that in return for volunteering, the school could “al- leviate some of the tuition that is owed.” Id. at 45, 205, 207. The lack of candor charge was based on answers Gra- ham provided to the DOJ Office of Inspector General (the “OIG”) investigator on February 27, 2019, where he
Case: 25-1102 Document: 26 Page: 3 Filed: 06/11/2025 GRAHAM v. DOJ 3
stated that he had no meaningful role in his wife’s small business. Id. at 45–46. In subsequent interviews, Graham admitted that he was involved in the business. Id. Graham appealed his 30-day suspension to the Board. In its initial decision, the administrative judge (“AJ”) sus- tained the charges, determining that Graham had “offered no plausible explanation” for identifying himself as an ATF special agent in his email, Initial Decision, at S.A. 14, and that his statements to the OIG investigator were mislead- ing regarding his role in his wife’s small business, id. at S.A. 18. Graham petitioned for review of the AJ’s decision and, on August 14, 2024, the Board denied the petition and affirmed the initial decision, adopting it as the Board’s fi- nal decision. Final Order, at *1. Graham petitioned for review in this court on October 21, 2024. DISCUSSION Under 5 U.S.C. § 7703(b)(1), a petition for review “shall be filed within 60 days after the Board issues notice of the final order or decision of the Board.” Here, the Board is- sued its Final Order on August 14, 2024. Final Order, at *1. Graham’s petition for review was due 60 days later, on Monday, October 14, 2024. We did not receive Graham’s petition until seven days after the deadline, on October 21, 2024. ECF No. 1; see also id. at 5 (showing Graham’s sig- nature dated October 15, 2024, one day after the deadline). While the timing requirement of 5 U.S.C. § 7703(b)(1) is “non-jurisdictional,” Harrow v. Dep’t of Def., 601 U.S. 480, 489–90 (2024), it remains an open question if the tim- ing requirement is subject to equitable tolling. See id. (not- ing that the Supreme Court was “not the right court to now determine whether” the 60-day deadline is subject to equi- table tolling); see Gard v. Off. of Pers. Mgmt., No. 2024- 1711, 2025 WL 272349, at *2 (Fed. Cir. Jan. 23, 2025) (“It
Case: 25-1102 Document: 26 Page: 4 Filed: 06/11/2025 4 GRAHAM v. DOJ
remains an open question after Harrow whether the stat- ute is eligible for equitable tolling.”). We need not decide that issue now because, even if eq- uitable tolling were available, Graham has not met his bur- den to establish its application. “Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights dil- igently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). Graham makes no arguments regarding equitable tolling in his opening brief, instead arguing the merits of his appeal. See Pet’r’s Inf. Br. 4 (arguing that “[n]o reason- able person would read the statement [in his email to the school director] to mean that Graham was using his office to obtain tuition relief”); id. at 5 (arguing that “[h]is an- swers, in the context of the vague and awkwardly worded questions asked by the OIG, were forthright”). Even after the DOJ had raised the issues of untimeliness and equita- ble tolling in its response, see Resp’t’s Inf. Br. 10–13, Gra- ham failed to submit a reply. Graham has therefore failed to demonstrate that the deadline should be equitably tolled, and his petition for review is untimely. We therefore dismiss. DISMISSED COSTS The parties shall bear their own costs.
Footnotes
[1] S.A. refers to the Supplemental Appendix submit- ted by the Respondent.