John D. Battle v. Office of Personnel Management ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOHN D. BATTLE, DOCKET NUMBER
Appellant, DC-0831-15-0048-I-1
v.
OFFICE OF PERSONNEL DATE: June 30, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
John D. Battle, Upper Marlboro, Maryland, pro se.
Cynthia Reinhold, 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), denying his request for reconsideration as untimely filed. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
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).
¶2 On February 21, 2014, OPM issued an initial decision informing the
appellant that it had correctly apportioned his retirement annuity between himself
and his ex-wife pursuant to a court order, which would be honored unless OPM
received a second court order declaring the first order invalid. Initial Appeal File
(IAF), Tab 7. The letter included an attachment titled “Information and
Instructions on Your Reconsideration Rights” that advised the appellant that he
could request reconsideration of OPM’s findings and that his request must be
made no later than 30 calendar days from the date of OPM’s initial decision. Id.
This document also informed the appellant that an untimely request would not be
considered unless he could show that he was unaware of the time limit or was
prevented from responding by a cause beyond his control. Id. The appellant,
instead of filing a request for reconsideration with OPM, erroneously filed a
request with the Board’s Washington Regional Office on May 27, 2014. Id. at 5.
OPM issued a reconsideration decision that denied the appellant’s request because
it was untimely filed. IAF, Tab 1. OPM found that, even if the appellant had
filed his request with the correct agency instead of erroneously filing with the
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Board, it still would have been more than 2 months late, since it was due within
30 calendar days of February 21, 2014, because he filed it with the Board (the
wrong agency) on May 27, 2014. Thus, OPM denied his request for
reconsideration as untimely filed, and it affirmed the initial decision. IAF, Tab 7
at 4.
¶3 On appeal, the appellant raised numerous challenges to the competency of
the attorney he had retained for his divorce and also the competency of another
attorney he retained in 2010 to seek modification of the court order concerning
the calculation of his annuity and the financial hardship caused by paying a
former spouse annuity. Because the appellant did not address the untimeliness of
his request for reconsideration when he filed his Board appeal, the administrative
judge advised the appellant that he had to submit argument and evidence
addressing the timeliness issue. IAF, Tabs 8, 17, 20. The appellant subsequently
filed a response asserting that “the reason my response was not filed in a timely
fashion was because I was going thru [sic] a stage of depression, see attached
letter from my physician dated November 13, 2015. I have episodes from time to
time.” IAF, Tab 19. The appellant attached the following note from his
physician, which stated that the appellant:
[H]as been a patient at this facility since 2-15-2013, and he is
diagnosed with (296.23) or F32.2 Major Depressive Disorder
(moderate severity, single episode) and (300.00) or F41.9 Anxiety
Disorder NOS (not otherwise specified). The patient has had
significant exacerbation of his symptoms due to the issue of
believing that his annuity/retirement has been fraudulently taken by
his ex-wife.
Id. at 3; IAF, Tab 16 at 2. The appellant mentioned in another submission that
he has been seeing a psychiatrist and taking medication since May 2010 “due to
these pertinent matters and proceedings.” IAF, Tab 15 at 3.
¶4 The administrative judge found that the appellant’s evidence did not
establish that a situation beyond his control had prevented him from requesting
reconsideration within the time limit, or that his depression or medication had so
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impaired him throughout the filing period that he could not follow the
instructions in OPM’s initial decision or obtain assistance from a representative,
or request an extension of the filing deadline. IAF, Tab 22, Initial Decision (ID)
at 4. Thus, the administrative judge found that the appellant failed to provide
sufficient evidence to render OPM’s decision not to waive the filing deadline
unreasonable or an abuse of discretion. Therefore, the administrative judge
affirmed OPM’s decision. ID at 4.
¶5 After the issuance of the initial decision, but apparently prior to the
appellant’s receipt of that decision, 2 the appellant filed a pleading with the Board
stating that he had not received any correspondence from the administrative judge
and that he was seeking a decision in his case. Petition for Review (PFR) File,
Tab 1. The appellant’s pleading also addressed the calculation of his annuity. Id.
However, his pleading did not address the untimely filing of his request for
reconsideration. Id. He was notified that his pleading was forwarded to the Clerk
of the Board for processing as a petition for review of the initial decision. 3 PFR
File, Tab 2.
¶6 Because he has raised no arguments challenging the administrative judge’s
findings in the initial decision, he has shown no error by the administrative judge
in affirming OPM’s reconsideration decision. Accordingly, the appellant’s
2
The appellant’s pleading was filed when the Federal Government in the Washington,
D.C. area was closed for most of the week due to inclement weather. This is probably
the reason why the appellant had not yet received the decision in his case.
3
The appellant filed an additional pleading on June 7, 2016, following the close of
record on review. The Board’s regulations do not allow for pleadings on review other
than a petition for review, a cross petition for review, a response to a petition for review
or cross petition for review, and a reply to a response to a petition for review. 5 C.F.R.
§ 1201.114(a). No other pleading will be accepted unless the party files a motion with
and obtains leave from the Clerk of the Board. 5 C.F.R. § 1201.114(a)(5). Here, the
appellant did not obtain leave from the Clerk to file an additional pleading. We find
that the newly submitted pleading is not material to the outcome of this appeal.
Accordingly, we give no further consideration to the appellant’s additional pleading.
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petition for review does not meet the criteria for review under 5 C.F.R.
§ 1201.115. Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133 (1980),
(finding that, before the Board will undertake a complete review of the record, the
petitioning party must explain why the challenged factual determination is
incorrect, and identify the specific evidence in the record that demonstrates the
error), review denied, 669 F.2d 613 (9th Cir. 1982) (per curiam); see Tines v.
Department of the Air Force, 56 M.S.P.R. 90, 92 (1992) (stating that a petition
for review must contain sufficient specificity to enable the Board to ascertain
whether there is a serious evidentiary challenge justifying a complete review of
the record).
¶7 Furthermore, the applicable law and the record evidence support the
administrative judge’s findings that a request for reconsideration of an OPM
initial decision regarding retirement benefits must be received by OPM within 30
calendar days from the date of the initial decision. 5 C.F.R. § 831.109(e)(1).
OPM may extend the time limit when the appellant can prove that he was not
notified of the time limit and was not otherwise aware of it, or that he was
prevented from making the request within the time limit. 5 C.F.R.
§ 831.109(e)(2); see Davis v. Office of Personnel Management, 104 M.S.P.R. 70,
¶ 7 (2006).
¶8 Here, the appellant’s May 27, 2014 request for reconsideration was filed
2 months after the issuance of OPM’s initial decision. Information and
instructions enclosed with that initial decision included the statement that the
request must be received by OPM within 30 calendar days of the date of the
initial decision. IAF, Tab 7 at 7-9. The instructions stated that OPM could
extend the time limit if the appellant could show that he: (1) was not notified of
the time limit and was not otherwise aware of it; or (2) was prevented from
responding by a cause beyond his control. Id.; see 5 C.F.R. § 831.109(e)(2); see
also Azarkhish v. Office of Personnel Management, 915 F.2d 675, 677 (Fed.
Cir 1990). We find that the appellant, by his arguments, has not provided a
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sufficient basis to establish either of these criteria. Accordingly, we conclude
that the appellant has shown no basis upon which to disturb the initial decision.
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:
U.S. 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 U.S. 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 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
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Circuit. The
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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.