Harold Dean Hall v. Office of Personnel Management ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HAROLD DEAN HALL, DOCKET NUMBER
Appellant, AT-0831-12-0046-I-1
v.
OFFICE OF PERSONNEL DATE: November 18, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Harold Dean Hall, Garden City, Georgia, pro se.
Roxann Johnson, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) in the appellant’s application for a survivor annuity based on the Federal
service of his deceased spouse. For the reasons set forth below, the appellant’s
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
petition for review is DISMISSED as untimely filed without good cause shown
for the delay. 5 C.F.R. § 1201.114(e), (g).
BACKGROUND
¶2 In a previous appeal, the appellant challenged OPM’s decision denying his
application for a survivor annuity based on the service of his deceased spouse,
who was a Federal retiree. Hall v. Office of Personnel Management, MSPB
Docket No. AT-0831-09-0280-I-1, Initial Decision at 1 (May 11, 2009). The
Board affirmed in part OPM’s reconsideration decision denying his application on
the grounds that he was not married to the decedent at the time of her retirement,
and she had not made a timely election to provide him with a survivor annuity
within 2 years of the date of their marriage. Id. at 2-4. The Board remanded the
appeal to OPM, however, for issuance of an additional reconsideration decision
addressing whether the appellant was entitled to a survivor annuity based on his
possible common-law marriage to the decedent at the time she retired. Id. at 4-5.
The appellant filed a petition for review, which the Board denied. Hall v. Office
of Personnel Management, 112 M.S.P.R. 302 (2009) (Table). He subsequently
sought review in the U.S. Court of Appeals for the Federal Circuit, which
dismissed his appeal as premature because the Board had remanded it to OPM for
further adjudication. Hall v. Office of Personnel Management, 358 F. App’x 152,
153 (Fed. Cir. 2009).
¶3 On March 5, 2011, OPM issued an initial decision finding that the appellant
failed to establish that he and the decedent had a valid common-law marriage
when she retired. Initial Appeal File (IAF), Tab 6, Subtab 2c. The appellant,
who by then was incarcerated, requested reconsideration of the decision. Id.,Subtabs 2b, 2c. OPM issued a reconsideration decision affirming the conclusion
reached in the initial decision. Id., Subtab 2a. The appellant then filed this
appeal. IAF, Tab 1. After a telephonic hearing, the administrative judge affirmed
the reconsideration decision. IAF, Tab 13, Initial Decision (ID) at 1. The initial
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decision was issued on February 10, 2012, with a finality date of March 16, 2012.
ID at 1, 9. The appellant filed this petition for review on or about July 30, 2015.
Petition for Review (PFR) File, Tab 1.
ANALYSIS
¶4 The petition for review is filed late by over 3 years and 4 months. The
Board’s regulations require that a petition for review be filed within 35 days after
the date of the issuance of the initial decision or, if a party shows that he received
the initial decision more than 5 days after it was issued, within 30 days after the
receipt of the initial decision. 5 C.F.R. § 1201.114(e). The Board will excuse the
untimely filing of a petition for review only upon a showing of good
cause. 5 C.F.R. § 1201.114(g). An untimely filed petition for review must be
accompanied by a motion that shows good cause for the untimely filing and an
affidavit or sworn statement that includes a specific and detailed description of
the circumstances causing the late filing. Id.¶5 Here, the Clerk of the Board acknowledged receipt of a petition for review,
but informed the appellant that: (1) the petition was untimely filed; (2) the
Board’s regulations require that a petition that appears to be untimely filed be
accompanied by a motion to accept the filing as timely or to waive the time limit
for good cause; (3) such a motion must be supported by an affidavit or declaration
made under penalty of perjury showing either that the petition was timely filed or
that there is good cause for the late filing; and (4) the Board may dismiss the
petition for review as untimely filed if the appellant did not provide a motion
with an affidavit or declaration. PFR File, Tabs 2-3. The Clerk of the Board
provided the appellant with a copy of a motion to accept the filing as timely or to
waive the time limit for good cause. The motion provided the appellant with
notice on how to establish that an untimely filing was the result of an illness. See
PFR File, Tab 3.
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¶6 The appellant filed a copy of the Board’s motion form. PFR File, Tab 6.
Therein, he explained that he was taken to and from a prison medical facility for
testing because of a head injury and that he had been having vision problems as a
result of the injury. Id. at 4-5. He included with his motion an authorization for
the Board to obtain his medical records from the prison. Id. at 6-7.
¶7 To establish good cause for waiver of the Board’s filing deadline, an
appellant must show that he exercised due diligence or ordinary prudence under
the particular circumstances of the case. Alonzo v. Department of the
Air Force, 4 M.S.P.R. 180, 184 (1980). In considering whether he has shown
good cause, the Board will consider the length of the delay, the reasonableness of
his excuse and his showing of due diligence, whether he is proceeding pro se, and
whether he has presented evidence of the existence of circumstances beyond his
control that affected his ability to comply with the time limits or of unavoidable
casualty or misfortune that similarly shows a causal relationship to his inability to
timely file his petition. Moorman v. Department of the Army, 68 M.S.P.R. 60,
62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶8 The appellant here is pro se, but the delay was a lengthy one. Although he
is incarcerated and alleged some circumstances beyond his control that may have
affected his ability to comply with the time limits, it is difficult to ascertain
whether those circumstances contributed to the delay in filing his petition for
review. We do not know, for example, when the appellant received the initial
decision or was taken to another prison facility for testing. 2 We also do not know
the extent to which his vision was compromised and whether that condition or the
head injury affected his ability to read or comprehend the Board’s
2
In this regard, we note that the Board’s timeliness regulations incorporate a due
diligence requirement and that, pursuant to this requirement, an appellant is responsible
for keeping the Board informed of his mailing address. See 5 C.F.R. § 1201.114(e)
(incorporating the timeliness standard in section 1201.22(b)(3) pertaining to an
appellant’s receipt of a final agency decision).
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correspondence. Although the appellant has authorized release of his medical
records, it is he who bore the burden to produce evidence related to the timeliness
issue. Keatting v. Department of the Navy, 77 M.S.P.R. 642, 645 (1998). He
did not do so and thus failed to establish the existence of circumstances beyond
his control that affected his ability to comply with the time limits or of
unavoidable casualty or misfortune that similarly shows a causal relationship to
his inability to timely file his petition for review.
¶9 Accordingly, we dismiss the petition for review as untimely filed without
good cause shown for the delay. This is the final decision of the Merit Systems
Protection Board regarding the timeliness of the petition for review. The initial
decision, which affirmed OPM’s reconsideration decision, remains the final
decision of the Board.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United States
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
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Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.