USCA11 Case: 21-14117 Date Filed: 10/24/2022 Page: 1 of 12
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14117
Non-Argument Calendar
____________________
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 law-
suit, which raised claims of discrimination and retaliation under Ti-
tle 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 refus-
ing to re-transfer her case to the Federal Circuit, where her nondis-
crimination 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 or-
der 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 de-
termined 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 disa-
bilities and in discrimination for her prior EEO activity. In Febru-
ary 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 re-
moval; the MSPB affirmed the DOI’s action, noted that the deci-
sion 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 ap-
pealable 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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4 Opinion of the Court 21-14117
Circuit entered an order advising that the proper forum for discrim-
ination 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 discrimi-
nation 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 Flor-
ida. 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 be-
came 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 dis-
trict 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. Ad-
ams 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 lim-
itations is reviewed de novo. United States v. Henco Holding
Corp.,
985 F.3d 1290, 1296 (11th Cir. 2021). We also review a dis-
trict 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 liti-
gants, 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 oth-
erwise deficient pleading in order to sustain an action.” Campbell
v. Air Jam., Ltd.,
760 F.3d 1165, 1168–69 (11th Cir. 2014) (quota-
tions 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 er-
ror.” United States v. Brannan,
562 F.3d 1300, 1306 (11th Cir.
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6 Opinion of the Court 21-14117
2009). “[T]he doctrine of invited error is implicated when a party
induces or invites the district court into making an error.”
Id. (quo-
tations omitted).
III.
First, we lack jurisdiction to review the Federal Circuit’s or-
der transferring Harris’s case to the United States District Court for
the Southern District of Florida. The procedure for a federal em-
ployee to seek protection from adverse personnel actions was es-
tablished by the Civil Service Reform Act (“CSRA”). Kloeckner v.
Solis,
568 U.S. 41, 44 (2012). A serious personnel action, like re-
moval, may be appealed to the MSPB.
Id. A complaint that alleges
a serious personnel action and that the action was based on discrim-
ination 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 ad-
ministrative record using an arbitrary and capricious standard. Kel-
liher 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 ac-
cordance 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 commit-
ted maliciously, the employee’s potential for rehabilitation, the ef-
fect of the action on the employee’s ability to perform her duties,
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21-14117 Opinion of the Court 7
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 consid-
erable 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 conscien-
tiously 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 un-
lawful discrimination must be filed in an appropriate district court
within 30 days.
Id. § 7703(b)(2). The Federal Circuit has no author-
ity 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 re-
view 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 transfer-
ring a case to a district court within this Circuit. Cf. Corley, 965
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8 Opinion of the Court 21-14117
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 cir-
cuit”); 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 trans-
fer and advised the Federal Circuit that her case should be trans-
ferred to the Southern District of Florida. See Brannan,
562 F.3d at
1306. For these reasons, we are unable to review this issue on ap-
peal.
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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21-14117 Opinion of the Court 9
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 nondiscrim-
ination claim of wrongful termination that should have been re-
transferred 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 discrimina-
tion claims under the “Wrongful Termination” heading. Further,
throughout the complaint, she consistently alleged that her re-
moval 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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10 Opinion of the Court 21-14117
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 involv-
ing 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 dis-
trict 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 ex-
pired 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 re-
quires the party seeking tolling to prove (1) she has diligently pur-
sued her rights, and (2) an extraordinary circumstance has pre-
vented her from meeting a deadline. Villarreal v. R.J. Reynolds To-
bacco Co.,
839 F.3d 958, 971 (11th Cir. 2016) (en banc). Equitable
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21-14117 Opinion of the Court 11
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]ar-
den-variety negligence” is also insufficient to warrant tolling.
Chang, 839 F.3d at 996 (quotations omitted). Nor is “lack of preju-
dice 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 dis-
missal 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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12 Opinion of the Court 21-14117
Here, regardless of whether equitable tolling is available un-
der § 7703(b)(2), the district court did not err in refusing to equita-
bly 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 dis-
crimination 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, with-
out more, does not establish the extraordinary circumstances nec-
essary 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 discrimi-
nation 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.
