Henrietta M. Morris v. Office of Personnel Management ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HENRIETTA M. MORRIS, DOCKET NUMBER
Appellant, CH-844E-16-0040-I-1
v.
OFFICE OF PERSONNEL DATE: April 13, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Henrietta M. Morris, Danville, Illinois, pro se.
Linnette Scott, 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
dismissed her appeal of a final decision from the Office of Personnel
Management (OPM) as untimely filed without good cause shown for the delay.
Generally, we grant petitions such as this one only when: the initial decision
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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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contains erroneous 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 administrative 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, 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 February 2, 2015, OPM issued a reconsideration decision that
disallowed the appellant’s application for disability retirement under the Federal
Employees’ Retirement System. Initial Appeal File (IAF), Tab 5 at 8-9.
According to the appellant, she received the reconsideration decision on that date,
and it informed her of her right to appeal the denial of her application for
disability retirement to the Board within 30 days after the date of the decision, or
30 days after receipt of the decision, whichever was later. IAF, Tab 1 at 5, Tab 5
at 9. The appellant filed her appeal on October 15, 2015. IAF, Tab 1 at 1. The
administrative judge issued a timeliness order informing the appellant that there
was a question whether her appeal was filed within the time period required by
the Board’s regulations. IAF, Tab 3. The administrative judge ordered the
appellant to file evidence and argument that her appeal was timely filed or that
good cause existed for the filing delay. Id. at 3. The appellant did not respond to
the timeliness order.
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¶3 In the initial decision, the administrative judge dismissed the appeal,
finding that it was untimely filed without good cause shown for the delay. IAF,
Tab 6, Initial Decision (ID). Specifically, the administrative judge found that the
appellant filed her appeal more than 7 months after the filing deadline date of
March 4, 2015, and, despite explicit instructions in the timeliness order, she
did not show that her appeal was timely filed or that good cause existed for
waiving the filing deadline. ID at 2‑3.
¶4 The appellant has filed a petition for review in which she argues that the
administrative judge erred in dismissing her appeal as untimely filed because her
doctor submitted her appeal papers and medical evidence on May 19, 2015, and
that she responded to the administrative judge. Petition for Review (PFR) File,
Tab 1 at 5. OPM has filed a response in opposition to the appellant’s petition.
PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 The Board’s regulations provide that 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 appellant’s receipt of the agency decision, whichever is later.
5 C.F.R. § 1201.22(b). 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); Alonzo v. Department of Air Force,
4 M.S.P.R. 180, 184 (1980). To determine whether an appellant has shown good
cause, the Board will consider the length of the delay, the reasonableness of her
excuse and her showing of due diligence, whether she is proceeding pro se, and
whether she has presented evidence of the existence of circumstances beyond her
control that affected her ability to comply with the time limits or of unavoidable
casualty or misfortune that similarly shows a causal relationship to her inability
to timely file her appeal. Marcantel, 121 M.S.P.R. 330, ¶ 10.
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¶6 OPM issued its reconsideration decision disallowing the appellant’s
application for disability retirement on February 2, 2015, and, as noted, the
appellant conceded that she received the decision on that day. IAF, Tab 5
at 8‑10. OPM properly informed the appellant of her right to appeal the decision
to the Board and that any appeal had to be filed “within 30 calendar days after the
date of this decision, or 30 days after the receipt of this decision, whichever is
later.” Id. at 9. In addition, the appellant does not dispute that OPM’s decision
informed her of the Board’s 30-day filing limit. ID at 3. Therefore, the agency
informed the appellant of the Board’s 30-day filing limit and that she had until
March 4, 2015, to timely file an appeal. Id.
¶7 The administrative judge found that the appellant failed to respond to his
October 22, 2015 order to provide evidence and argument regarding the
timeliness of the petition for appeal or the existence of good cause for the filing
delay. ID at 2. On review, the appellant asserts that she responded by facsimile
transmittal “a week later in [October] 2015.” PFR File, Tab 1 at 6. The Board’s
records do not contain such a submission. Moreover, the appellant fails to
provide documentation demonstrating transmittal or receipt of the document, and
she provides no explanation of the details surrounding the purported submission
of her response, including where precisely she sent the submission. PFR File,
Tab 1. Thus we find no error in the administrative judge’s finding that she failed
to respond. See Bryant v. Department of the Navy, 59 M.S.P.R. 70, 72 (1993)
(“[I]n the absence of any statement from the appellant as to the specific date on
which he ostensibly filed his petition for review, or any other evidence tending to
show that he timely filed his initial petition, we find that he has not made such
a showing.”).
¶8 As a general rule, the Board will not consider an argument raised for the
first time in a petition for review absent a showing that it is based on new and
material evidence not previously available despite the party’s due diligence.
Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). Thus, we
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need not consider the arguments submitted by the appellant for the first time on
review. Even if we were to consider the arguments presented by the appellant in
her petition for review, they fail to show that she timely filed her appeal or that
good cause exists for the filing delay.
¶9 On review, the appellant asserts that on May 19, 2015, she witnessed her
doctor submit her appeal papers and medical evidence to the Board by facsimile
transmittal. PFR File, Tab 1 at 5. The appellant argues that she did not receive a
response confirming the Board’s receipt of these documents, and, as a result, she
followed up with the Board in October 2015. Id. At this time, the appellant
explains that the Board informed her that it never received these documents and
sent her “more appeal papers.” Id. According to the appellant, she completed the
appeal papers and sent them to the Board via facsimile transmittal in October. 2
Id. Even if we were to find that the appellant properly had filed her Board appeal
on May 19, 2015, however, such an appeal would have been filed more than
2 months late, and the appellant has failed to present any evidence—either below
or on review—to support a finding that good cause exists for her untimely filing.
¶10 For these reasons, we affirm the administrative judge’s decision to dismiss
the appeal as untimely filed with no showing of good cause for the delay.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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
2
The record shows that the appellant faxed her appeal to the Board on October 15,
2015. IAF, Tab 1.
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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 U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law and other sections of the U.S. 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 U.S. 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.