Armelle Guerrier v. Office of Personnel Management ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ARMELLE M. GUERRIER, DOCKET NUMBER
Appellant, NY-0843-17-0194-I-1
v.
OFFICE OF PERSONNEL DATE: March 20, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Armelle M. Guerrier , Brooklyn, New York, pro se.
Jo Bell , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
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 her application for payment of a lump sum death benefit. For the
reasons set forth below, the appellant’s petition for review is DISMISSED as
untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g).
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
The appellant filed a Board appeal of OPM’s reconsideration decision
denying her application for payment of a lump sum death benefit based on the
Federal service of a former annuitant. Initial Appeal File (IAF), Tab 1, Tab 8
at 6-8. On November 16, 2017, the administrative judge issued an initial decision
affirming OPM’s reconsideration decision. IAF, Tab 16, Initial Decision (ID).
The initial decision stated it would become final on December 21, 2017, unless a
petition for review was filed by that date. ID at 4.
The appellant filed an initial appeal document with the Board’s
Northeastern Regional Office on February 10, 2018. Petition for Review (PFR)
File, Tabs 1, 3. Thereafter, the Office of the Clerk of the Board contacted the
appellant to clarify the intent of her filing. PFR File, Tab 3 at 1. Following the
telephone call, the Board docketed the February 10, 2018 pleading as a petition
for review and advised the appellant that it was untimely filed. Id. at 2. The
appellant has not provided a response to the Board’s acknowledgement letter, and
the agency has not responded to the petition for review.
DISCUSSION OF ARGUMENTS ON REVIEW
The Board’s regulations provide that a petition for review must be filed
within 35 days after the issuance of the initial decision or, if the appellant shows
that the initial decision was received more than 5 days after the day of issuance,
within 30 days after the date she received the initial decision. 5 C.F.R.
§ 1201.114(e). The appellant bears the burden of proof regarding timeliness,
which she must establish by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(ii).
Here, the record reflects that the initial decision was sent by electronic mail
to the appellant on November 16, 2017—the date it was issued. IAF, Tab 17 at 1;
IAF, Tab 3 at 2; see 5 C.F.R. § 1201.14(e)(1) (2018) (stating that registration as
an e-filer constitutes consent to accept electronic service of pleadings filed by
other registered e-filers and documents issued by the Board). Thus, the petition
3
for review had to be filed within 35 days after the date of issuance of the initial
decision, or by December 21, 2017. See 5 C.F.R. § 1201.114(e). However, the
appellant filed a petition for review on February 10, 2018, almost 2 months past
the filing deadline. PFR File, Tab 1.
The Board will excuse the late filing of a petition for review on a showing
of good cause for the delay. 5 C.F.R. § 1201.114(g). To establish good cause for
an untimely filing, a party must show that she 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). 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 misfortunate that similarly shows a causal
relationship to her inability to timely file her 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).
In an acknowledgement letter, the Office of the Clerk of the Board
informed the appellant that her petition for review was untimely filed and that she
could file a motion with the Board to accept her filing as timely or to waive the
time limit for good cause. PFR File, Tab 3. The letter also provided the
appellant a blank copy of the form motion for her to complete in order to satisfy
the requirement and stated that the motion must be sent by April 27, 2018. Id.
at 2. The appellant, however, failed to respond to the Office of the Clerk’s notice
regarding timeliness and did not otherwise attempt to explain the delay in filing
her petition for review. 2 The appellant’s arguments regarding the merits of her
case do not establish good cause for a late filing. See Guevara v. Department of
2
Although the appellant is acting pro se on review, the filing delay is significant. See
Alvarado v. Defense Commissary Agency , 88 M.S.P.R. 46, ¶¶ 4-5 (2001) (finding that a
filing delay of almost 2 months was significant).
4
the Navy, 112 M.S.P.R. 39, ¶ 7 (2009). In light of the foregoing, we find that the
appellant has set forth no grounds for finding good cause for a waiver of the
filing deadline. See Wright v. Department of the Treasury, 113 M.S.P.R. 124,
¶¶ 7-8 (2010) (dismissing the petition for review as untimely filed with no good
cause shown when the petition for review was silent as to the reason for the delay
and the appellant provided no explanation for the late filing in response to the
Clerk’s notice); Mitchell v. Broadcasting Board of Governors, 107 M.S.P.R. 8,
¶ 8 (2007) (dismissing the petition for review as untimely filed without good
cause shown when the appellant filed her petition for review 2 months late and
did not respond to the Clerk’s notice to establish good cause for the delay).
Accordingly, we dismiss the petition for review as untimely filed without
good cause shown. This is the final decision of the Merit Systems Protection
Board regarding the timeliness of the petition for review. The initial decision
remains the final decision of the Board regarding this appeal.
NOTICE OF APPEAL RIGHTS 3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
3
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
5
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
6
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
7
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
8
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.