dissenting.
I respectfully dissent from my colleagues’ holding that 5 U.S.C. § 7703(b)(1) is never subject to equitable tolling. I cannot agree that equity can provide no relief in a case such as this, where a seriously wronged person, relying on gov*1362ernment misinformation, diligently attempts to navigate the maze of employment law and procedure, seeking to stem the agency’s breach of the settlement agreement. Mr. Oja has yet to receive review of the Board’s denial of his claim, despite efforts in three tribunals.
I
The settlement agreement required the Army Corps of Engineers to purge Mr. Oja’s personnel files and to show the basis for his removal as, simply, “continued absence due to illness.” Thereafter, the Army told a reporter for the Washington Post, and posted on the Army’s internet site, that Mr. Oja stopped coming to work without explanation and that he was removed for excessive absence due to illness. These statements were not in accordance with the settlement agreement. Mr. Oja states that these public statements caused him to lose several employment opportunities. He sought compliance with the settlement agreement, first before the MSPB. The MSPB refused to order enforcement, holding that the agreement had not been violated.
Mr. Oja’s petition for enforcement of the settlement agreement contained allegations that the Army’s actions and statements were due to discrimination. He understood, correctly, that the Federal Circuit can not receive discrimination appeals, and in “mixed cases” requires waiver of any discrimination claim. Unwilling to abandon his discrimination claim, he consulted with the MSPB and the EEOC by telephone and was told that his case was appropriate for EEOC review. Mr. Oja filed an appeal to the EEOC. On March 6, 2003, the EEOC refused to “consider” the case, holding that it had no jurisdiction to enforce a settlement agreement. The EEOC applied statute and regulation applicable to mixed cases, stating that Mr. Oja’s petition was governed by 29 C.F.R. § 1614.303 (EEOC regulation concerning petitions to the EEOC from MSPB decisions on mixed cases and appeals), which is grounded on 5 U.S.C. § 7702 (procedure for review of mixed cases).
The EEOC informed Mr. Oja that he “had the right to file a civil action in an appropriate United States District Court” for review of the MSPB decision within thirty days of the EEOC’s refusal to consider the case. Relevant statutes are:
5 U.S.C. § 7703(b)(2). Cases of discrimination subject to ... section 7702 ... must be filed within 30 days ... of the judicially reviewable action under such section 7702.
5 U.S.C. § 7702(a)(3). Any decision of the Board ... shall be a judicially reviewable action as of — (A) the date of issuance of the decision if the employee ... does not file a petition with the Equal Employment Opportunity Commission ... or (B) the date the Commission determines not to consider the decision ....
The conditions of § 7703(b)(2) and § 7702(a)(3) existed, for the EEOC decided not to “consider” the petition, rendering the Board’s decision “judicially reviewable” as of March 6, 2003.
Mr. Oja filed with the district court on April 4, 2003, within the statutory thirty days of 5 U.S.C. § 7703(b)(2). The district court concluded, however, that these appeal criteria do not apply to a petition to enforce a settlement agreement, and transferred the case to the Federal Circuit under 28 U.S.C. § 1631. The district court was aware that the time for appeal from the MSPB to the Federal Circuit (sixty days from the MSPB decision) had passed, and suggested that this court could equitably toll the deadline in view of the circumstances. The sixty-day period is codified as follows:
*13635 U.S.C. § 7703(b)(1). Except as provided in paragraph (2) of this subsection, a petition to review a final order or final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit. Notwithstanding any other provision of law, any petition for review must be filed within 60 days after the date the petitioner received notice of the final order or decision of the Board.
My colleagues on this panel agree that the Federal Circuit is the proper forum. However, ruling that for a transfer from the district court to the Federal Circuit, the date of filing in the district court must meet the deadline for filing in the Federal Circuit, my colleagues refuse to credit the filing date in the EEOC, which was within the 60-day limit, and rule that the filing date in the district court is too late because it was after the 60-day limit. However, the filings in both the EEOC and the district court were timely in those tribunals. Neither of these filings was late, and the transfer to the Federal Circuit from the district court was in accordance with the applicable transfer statute. On these criteria, without more, the filing in the Federal Circuit was in accordance with law and not untimely.
The panel majority faults Mr. Oja for not knowing what his advisors at the MSPB and the EEOC apparently did not know: that despite his allegations of discrimination in the agency action and in the agency’s breach of the agreement, his petition for enforcement could not be reviewed by either the EEOC or the district court. Thus the panel majority refuses to equitably allow the tardy filing. Yet at every step along this convoluted trail, blazed in part by incorrect advice from the government tribunals themselves, Mr. Oja exhibited diligence in pursuing his claim) filing within the deadlines that appeared to be applicable. He is surely entitled to consideration of whether he meets the criteria for equitable tolling, even if he is not accorded the benefit of the EEOC filing date. See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (time limits applicable to government employees are subject to equitable tolling in the same way as for private sector employees).
Courts have applied equitable tolling in a variety of circumstances where the claimant filed in the wrong venue. See, e.g., Burnett v. N.Y. Cent. R.R., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965) (equitable tolling appropriate where employee filed FELA action in state court of improper venue); Herb v. Pitcairn, 325 U.S. 77, 65 S.Ct. 954, 89 L.Ed. 1483 (1945) (equitable tolling appropriate where employee filed FELA action in state court without jurisdiction); Valenzuela v. Kraft, 801 F.2d 1170 (9th Cir.1986) (fifing of discrimination complaint in state court without jurisdiction equitably tolled fifing requirement). Courts have also tolled fifing deadlines when the lapse was due to the other party. See, e.g., Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959) (misrepresentation by adversary caused plaintiff to let fifing period lapse); Holmberg v. Armbrecht, 327 U.S. 392, 66 S.Ct. 582, 90 L.Ed. 743 (1946) (same). In Irwin the Court summarized, “We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by fifing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary’s misconduct into allowing the fifing deadline to pass.” 498 U.S. at 96, 111 S.Ct. 453 (citations omitted).
Mr. Oja filed in the wrong venue, upon receiving advice from both the EEOC and the MSPB that fifing in the EEOC was proper. The EEOC then directed him to the district court, by then after the Feder*1364al Circuit’s 60-day limit. The district court duly transferred the case to the Federal Circuit. Mr. Oja has been bounced and misdirected, through no fault of his own, and has yet to receive review of the merits of his claim.
II
My colleagues hold that equitable tolling is not available. This holding departs from precedent and congressional intent. The distinction that the panel majority draws between § 7703(b)(1) and § 7703(b)(2) — holding that Irwin is primarily relevant to § 7703(b)(2) — is not supported by the Court’s decisions or by post-Irwin Federal Circuit decisions. In Martinez v. United States, 333 F.3d 1295, 1316 (Fed.Cir.2003) (en banc), this court stated that although statutes of limitations for actions against the government are “jurisdictional in nature” that does not bar equitable tolling, for “the Court has made clear that whether equitable tolling is available in suits against the government turns on congressional intent.” There is no hint that Congress intended to preclude equitable tolling in actions under § 7703(b)(1) while permitting it in actions under § 7703(b)(2). Such a distinction is unsupported by any statutory term or legislative history. See Zipes v. TWA, 455 U.S. 385, 394, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) (considering legislative history of § 2000e-5 in assessing availability of equitable tolling).
Congress recognized that equity may be invoked to remedy statutory rigor, to avoid injustice. The Report of the Joint Committee of the House and Senate recognized the procedural complexity of cases containing allegations of discrimination, noting at least “eight different times” when an employee may bring suit, and stating that if “suit is brought in district court, the rules of equity provide that minor procedural irregularities in the administrative process for which the employee is responsible should not predetermine the outcome of the case.” H.R. Conf. Rep. No. 95-1717, pt. 2, at 141-42 (1978). The Report refers to the time limits placed on the employing agency, the MSPB, and the EEOC as “mandatory — not discretionary,” emphasizing the rights of employees to have matters resolved as quicMy as possible, yet states that it is “not intended” that these government entities “would automatically lose jurisdiction for failing to meet these time frames.” Id. at 141. Congress made clear that it was preserving “the rules of equity” in employment cases.
The Conference Report manifests a consistent congressional intent to ensure that the claim of a federal employee will be heard in a timely manner, and that the claim will be determined on the merits and not by procedural irregularities. Thus the objectives of the Civil Service statute include: “To strengthen the protection of legitimate employee rights” and “reduce the redtape and costly delay in the [prior] personnel system.” Civil Service Reform Act of 1978: Report of the Comm, on Post Office and Civil Service on H.R. 11280, 95th Cong. 3 (1978). The House Report observed that the prior system was “a bureaucratic maze which ... mire[d] every personnel action in redtape, delay and confusion.” Id. at 2. The line that my colleagues today draw between § 7703(b)(1) and § 7703(b)(2) is not in accord with this clearly stated congressional intent.
In addition, the legislative history of § 7703 states that “the wording [of § 7703(a) ] is similar to the general provisions governing the right of review from agency actions found in Section 702 of the Administrative Procedure Act.” S.Rep. No. 969, 95th Cong, 2d Sess. 62; see Reid v. Dep’t of Commerce, 793 F.2d 277, 283 (Fed.Cir.1986). Heed is warranted to the Court’s admonition that “only upon a showing of ‘clear and convincing evidence’ *1365of a contrary legislative intent should the courts restrict access to judicial review” of administrative actions. Abbott Labs. v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967); see Ballentine v. Merit Sys. Prot. Bd., 738 F.2d 1244, 1247 (Fed.Cir.1984) (discussing Abbott Labs. and interpreting § 7703(b)(1) in favor of judicial review of agency decision).
In the context of this powerful legislative history, the Irwin Court’s “rebuttable presumption of equitable tolling” was established as “a realistic assessment of legislative intent as well as a practically useful principle of interpretation.” 498 U.S. at 95, 111 S.Ct. 453. The Court adopted this “more general rule” to reduce the unpredictability associated with resolving the existence of equitable tolling on a statute by statute basis. The Federal Circuit reaffirmed the vitality of the Irwin rule in Bailey v. West, 160 F.3d 1360 (Fed.Cir.1998) (en banc). In Bailey we observed that “Irwin states a rule of general applicability for equitable tolling in suits against the United States,” id. at 1366, and “that the doctrine of equitable tolling, when available in comparable suits of private parties, is available in suits against the United States, unless Congress has expressed its intent to the contrary.” Id.
The majority’s opinion offers a quite different perception of Irwin and its progeny. My colleagues suggest that Irwin has not been universally accepted, stating that Irwin “sparked a split among-the various courts of appeals,” and that “most” of the courts have held that § 7703(b)(2) is subject to equitable tolling, maj. op. at 1357, while highlighting the Sixth Circuit’s departure from Irwin in Dean v. Veteran’s Admin. Reg’l Office, 943 F.2d 667, 670 (6th Cir.1991). However, as the Tenth Circuit has observed, the Sixth Circuit “standfs] alone” among the circuits in its “untenable” approach, in which it “ascertains congressional intent by parsing too finely the language of limitations statutes.” Montoya v. Chao, 296 F.3d 952, 957 (10th Cir.2002); see Nunnally v. MacCausland, 996 F.2d 1, 4 (1st Cir.1993) (stating that the limitations period in 5 U.S.C. § 7703(b)(2) is subject to equitable tolling, and describing the Sixth Circuit’s decision in Dean as the only “decision since Irwin which argues to the contrary”). In addition, as observed by the First Circuit in Nunnally, 996 F.2d at 4, the Sixth Circuit’s ruling on equitable tolling in Dean was' not dispositive of the case.
The panel majority frames the Irwin holding as limited to Title VII, and suggests that it would be tenuous to apply Irwin to § 7703(b)(1) because that section does not directly reference Title VII. See Maj. op. at 1358. However, in Bailey this court rejected the argument that the “general rule is applicable to some, but not other, time limits that govern suits against the United States.” 160 F.3d at 1366. Both § 7703(b)(1) and § 7703(b)(2) state time limits for the filing of claims against the federal employer, and both are directed to judicial “review” of such claims. Under Irwin, both are subject to the availability of equitable tolling.
In Zipes, 455 U.S. at 398, 102 S.Ct. 1127, the Court held that the deadline for filing a discrimination claim with the EEOC is like a statute of limitations, and subject to equitable tolling. The Court rejected an overly technical interpretation of the Title VII timing provision as “particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process.” Id. at 397, 102 S.Ct. 1127 (quoting Love v. Pullman Co., 404 U.S. 522, 92 S.Ct. 616, 30 L.Ed.2d 679 (1972)). The Court found that the legislative intent of Title VII weighs heavily in favor of making equitable tolling available when warranted. The Court also examined precedent, and stated that although *1366the eases contained “scattered references to the timely-filing requirement as jurisdictional, the legal character of the requirement was not at issue in those cases, and as or more often in the same or other cases, we have referred to the provision as a limitations statute.” Id. at 395, 102 S.Ct. 1127. The Court thus held that “a timely charge of discrimination ... is not a jurisdictional prerequisite .... but, a requirement that, like a statute of limitations, is subject to waiver, estoppel,, and equitable tolling.” Id.
There are compelling parallels between Zipes and the present case. First, as discussed supra, the legislative history weighs heavily in favor of making equitable tolling available in meritorious situations. And second, precedent supports the availability of equitable tolling in this case. The panel majority relies heavily on Monzo v. Department of Transportation, 735 F.2d 1335, 1336 (Fed.Cir.1984), a case decided before the Court’s decision in Irwin. However in Monzo this court described the 60-day period of § 7703(b)(1) as a “statute of limitations.” 735 F.2d at 1336. Such a statutory period is “subject to waiver, estoppel and equitable tolling.” Zipes, 455 U.S. at 398, 102 S.Ct. 1127. The Monzo statement that the provision is “statutory, mandatory, [and] jurisdictional” does not preclude consideration of equitable tolling in accordance with Zipes and Irwin. The Federal Circuit, sitting en banc in Bailey, rejected the argument that equitable tolling is unavailable because a statute is labeled “mandatory and jurisdictional,” observing that the statute in Irwin was “mandatory and jurisdictional.” This court stated “We do not think [that Supreme Court precedent] can be read to mean that statutes specifying the time for review cannot be subject to equitable tolling because such statutes are mandatory and jurisdictional.” Bailey, 160 F.3d at 1366.
Nonetheless, the panel majority now holds that Monzo held that equitable tolling is never available under § 7703(b)(1), and has exhumed Monzo’s appeal brief in purported support of the argument that the issue was raised, although not mentioned in the court’s opinion. The opinion does not mention equitable tolling, does not recite that it was raised, and does not rely on or even cite any precedent in which equitable tolling was at issue. In Monzo the question before the court was whether the 60 days should be counted from the date the MSPB’s order was received by Monzo’s attorney, or from the date it was received by Monzo himself — a question that the court held to be answered by the text of § 7703(b)(1), which refers specifically to the “date the petitioner received notice.” Review of the Monzo appeal brief shows that its only mention of “equity” is a terse reference to the “inequity of dismissal; there is no discussion of equitable tolling of the filing period. Monzo does not support the panel majority’s ruling that equitable tolling of § 7703(b)(1) is unavailable in appeals to the Federal Circuit. Thus, the view that § 7703(b)(1) operates as a statute of limitations and can be tolled is fully consistent with Monzo, and supported by Zipes and Irwin.
Concerning the question of whether Irwin may have relevance to Mr. Oja’s case, my colleagues turn to general procedural rules to support the position that equitable tolling is unavailable under § 7703(b)(1), citing Fed. R.App. P. 15(a)(1) and 26(b)(2). The panel majority reasons that these rules establish that Congress “expressed a general intent to withhold the doctrine of equitable tolling from at least those statutes that specify the time period for review by this court.” Maj. op. at 1359. That is, that Congress in essence overruled the applicability of Irwin to this court. It is not a reasonable interpretation of the Federal Rules to suggest, as *1367does the panel majority, that because Congress did not explicitly add the Irwin principle to the Rules, Congress intended to overturn the Court’s decision or rebut the presumption created therein. Irwin clarified the landscape of equitable tolling,'and none of the ensuing decisions citing Irwin suggest that it has been overruled by act of Congress. Had Congress intended to overrule Irwin or rebut the presumption created therein, it would necessarily have provided some indication of such intent. See Bailey, 160 F.3d at 1368 (omission of express language allowing delay is consistent with the removal of “unnecessary language where common sense would dictate tolling”). Silence cannot overturn a clear and well-accepted decision of the Court, or establish the “clear contrary intent of Congress” necessary to overcome the presumption that equitable tolling is available. Bailey, 160 F.3d at 1366.
Ill
Since no precedent precludes equitable tolling in Mr. Oja’s situation, it remains to be decided whether Mr. Oja’s situation warrants such relief. Mr. Oja diligently sought to pursue a claim for enforcement of the settlement agreement. His initial filing in the EEOC was in a venue that held it was without jurisdiction of enforcement proceedings. From there, he followed the instructions in the EEOC decision and filed in the district court. That court transferred the case to the Federal Circuit, expressing the view that if the transfer were deemed tardy, equitable relief could be available.
My colleagues sound a footnote of chagrin that Mr. Oja took his case first to, the EEOC instead of the Federal Circuit. Maj. op. at 1356 n. 3. However, his search for a forum that could consider his discrimination claim does not legally or equitably bar his right to a hearing in the only forum that appears to have jurisdiction of his compliance claim. This indirect path did.not divest this court of its equitable power. Precedent and justice require that the request for equitable tolling be granted, and that Mr. Oja at long last be provided the judicial review to which he is entitled.