Shawnte' L. Aaron v. Office of Personnel Management ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHAWNTE' L. AARON, DOCKET NUMBER
Appellant, DE-0845-14-0503-I-1
v.
OFFICE OF PERSONNEL DATE: December 23, 2014
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Charles L. Firestein, Esquire, Scottsdale, Arizona, for the appellant.
Cynthia Reinhold, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal of an Office of Personnel Management (OPM)
reconsideration decision as untimely filed without good cause. Generally, we
grant petitions such as this one only when: the initial decision contains erroneous
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the judge’s rulings during either the course of the appeal or
the initial decision were not consistent with required procedures or involved an
abuse of discretion, and the resulting error affected the outcome of the case; or
new and material evidence or legal argument is available that, despite the
petitioner’s due diligence, was not available when the record closed. See Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, and based on the following
points and authorities, we conclude that the petitioner has not established any
basis under section 1201.115 for granting the petition for review. Therefore, we
DENY the petition for review and AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 On April 10, 2014, OPM issued a reconsideration decision that denied the
appellant's request for a waiver of an overpayment of annuity benefits under the
Federal Employees’ Retirement System (FERS). Initial Appeal File (IAF), Tab 4
at 6-10. On April 16, 2014, the appellant received the reconsideration decision,
which informed her of her right to appeal the denial of her request to the Board
within 30 days after the date of the decision, or 30 days after receipt of the
decision, whichever is later. 2 IAF, Tab 4 at 10-12. Sometime thereafter, the
appellant erroneously filed a pro se appeal dated May 2, 2014, with OPM. IAF,
Tab 1 at 1, 6. Based on the record, it is not clear when or how the appellant
actually filed her appeal with OPM. On July 17, 2014, OPM forwarded the
2
Although the appellant’s appeal indicates that she received OPM’s reconsideration
decision on April 15, 2014, the U.S. Postal Service tracking confirmation indicates that
it was delivered to the appellant on April 16, 2014. IAF, Tab 1 at 4, Tab 4 at 12.
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appeal to the Denver Field Office where it was received on July 28, 2014. Id. at
1.
¶3 After OPM filed a motion to dismiss the appellant’s appeal as untimely
filed, the administrative judge issued a timeliness order informing the appellant
that her appeal appeared to be untimely and directing her to file evidence and
argument to prove either that her appeal was timely or that good cause existed for
her untimely filing. IAF, Tab 4 at 4; IAF, Tab 5. The administrative judge
further ordered OPM to submit evidence regarding the date it received the
appellant’s appeal. IAF, Tab 5 at 3. The appellant did not respond to the
administrative judge’s order. IAF, Tab 7, Initial Decision (ID) at 3. OPM filed a
response indicating that it did not have a date-stamped document demonstrating
when it received the appellant’s appeal. IAF, Tab 6 at 3.
¶4 In an initial decision, issued without holding the appellant’s requested
hearing, the administrative judge dismissed the appellant’s appeal as untimely
filed without good cause for the delay. ID. The administrative judge found that
the appellant failed to prove by preponderant evidence that she timely filed her
appeal with OPM because she failed to respond to the timeliness order and the
mere fact that her appeal is dated May 2, 2014, did not constitute preponderant
evidence that it was timely mailed to OPM on that date. ID at 5.
¶5 The appellant, by counsel, has filed a petition for review in which she
appears to argue that the administrative judge erred in dismissing her appeal as
untimely filed because the fact that the appeal is dated May 2, 2014 alone was
sufficient to establish that it was timely filed with OPM prior to the filing
deadline of May 16, 2014. Petition for Review (PFR) File, Tab 1 at 7. OPM has
filed a response in opposition to the appellant’s petition. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 Generally, an appeal must be filed with the Board no later than 30 days
after the effective date of the agency’s action, or 30 days after the date of the
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appellant’s receipt of the agency’s decision, whichever is later. 5 C.F.R.
§ 1201.22(b)(1). An appellant bears the burden of proof on the issue of
timeliness. 5 C.F.R. § 1201.56(a)(2)(ii). If an appellant fails to timely submit her
appeal, it will be dismissed as untimely filed absent a showing of good cause for
the delay in filing. 5 C.F.R. § 1201.22(c). To establish good cause for the
untimely filing of an appeal, a party must show that she exercised due diligence
or ordinary prudence under the particular circumstances of the case. Marcantel v.
Department of Energy, 121 M.S.P.R. 330, ¶ 10 (2014). The Board has also found
good cause for an untimely filing where an appellant mistakenly files an appeal of
an OPM reconsideration decision with OPM instead of the Board when the
following conditions are met: the delay was caused in part by the appellant’s
failure to follow the directions set forth in the reconsideration decision and in part
by OPM’s failure to direct an otherwise timely appeal to the Board; the appellant
clearly intended to seek further review of the reconsideration decision; the
appellant was pro se; and there was no showing of prejudice to OPM by granting
the waiver. See, e.g., Mohammed v. Office of Personnel Management,
108 M.S.P.R. 609, ¶ 10 (2008).
¶7 The appellant received OPM’s reconsideration decision on April 16, 2014,
and therefore had until May 16, 2014, to timely file an appeal. IAF, Tab 4 at 12.
After a careful review of the record, we agree with the administrative judge that
the appellant failed to establish that she timely filed her appeal with OPM.
Although the appellant submitted an appeal dated May 2, 2014, there is no
indication in the record that such a document was timely filed with OPM prior to
May 16, 2014.
¶8 The administrative judge instructed the appellant to file evidence and
argument demonstrating that the appeal was timely filed or that good cause
existed for the delay; however, the appellant failed to respond to the order. IAF,
Tab 5; ID at 5. Under these circumstances, the administrative judge properly
dismissed the appeal as untimely filed. See Hubbard v. Merit Systems Protection
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Board, 605 F. 3d 1363, 1365-66 (Fed. Cir. 2010) (finding the appellant’s failure
to respond to the administrative judge’s order directing her to file evidence and
argument demonstrating that her appeal was timely filed or that good cause
existed for the delay justified the dismissal of the appeal as untimely filed).
¶9 On review, the appellant offers no explanation for her failure to respond to
the administrative judge’s August 22, 2014 order regarding the timeliness of her
appeal. See PFR File, Tab 1; see also IAF, Tab 5; ID at 3. Nor does the appellant
explain her failure to respond to OPM’s submission arguing that her appeal was
untimely filed. See PFR File, Tab 1; see also IAF, Tab 4 at 4; ID at 3. Finally,
the appellant’s only submission on review is a pleading by her representative; she
does not provide a personal statement explaining her filing of the appeal. PFR
File, Tab 1. The statements of a party’s representative do not constitute evidence.
Marcantel, 121 M.S.P.R. 330, ¶ 6 n. 1; Santos v. U.S. Postal Service, 77 M.S.P.R.
573, 577 (1998).
¶10 In any event, the appellant’s petition for review fails to explain how and
when she submitted her appeal to OPM. PFR File, Tab 1. The appellant’s general
assertions, which imply but do not specifically state that her appeal was mailed to
OPM on May 2, 2014, offer no details concerning any such mailing and fall short
of the standard of evidence required to establish that her appeal was timely filed
with OPM. PFR File, Tab 1 at 7; see, e.g., Gaydon v. U.S. Postal Service,
62 M.S.P.R. 198, 202-03 (1994) (the mere assertion that a pleading was prepared
and mailed in a timely fashion without any specific details concerning such
mailing is insufficient to show that the pleading was timely filed); Bryant v.
Department of the Navy, 59 M.S.P.R. 70, 72 (1993) (an explanation of an
untimely filing must contain specific evidence of when the submission was filed).
Nor has the appellant provided any evidence, such as a mail confirmation or
postage receipt, demonstrating that she timely mailed her appeal to OPM. See
Mohammed, 108 M.S.P.R. 609, ¶ 6, 11-12 (finding good cause existed for the
appellant’s untimely appeal that was misfiled with OPM where she asserted that
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she mailed her appeal to OPM within the filing period and submitted a postal
receipt documenting her mailing to OPM). Thus, the appellant has failed to
demonstrate that her appeal was timely, though mistakenly, filed with OPM.
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.
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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
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attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.