Debra Lubert v. United States Postal Service ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEBRA J. LUBERT, DOCKET NUMBER
Appellant, PH-3443-19-0069-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: July 18, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Debra J. Lubert , Northumberland, Pennsylvania, pro se.
Lori A. Markle , Esquire, and Roderick Eves , St. Louis, Missouri,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her retirement benefits appeal for lack of jurisdiction. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
On November 27, 2018, the appellant filed a Board appeal indicating that
she had “purchased [her] military time in 2008” but was not given credit for this
time for purposes of her retirement benefits under the Federal Employees’
Retirement System (FERS). Initial Appeal File (IAF), Tab 1 at 3. The appellant
requested a hearing on the matter. Id. at 2. Without holding the appellant’s
requested hearing, the administrative judge issued a February 14, 2019 initial
decision dismissing the appeal for lack of jurisdiction. IAF, Tab 11, Initial
Decision (ID) at 1, 4. In so doing, the administrative judge found, among other
things, that the agency, the appellant’s former employer, was not a proper party to
the appeal. ID at 4. The administrative judge notified the appellant that the
initial decision would become final on March 21, 2019, unless a petition for
review was filed by that date. ID at 5.
On February 13, 2020, the appellant filed a petition for review. Petition for
Review (PFR) File, Tab 1. In her petition, the appellant states that she is making
“a sympathetic plea . . . asking for review due to family medical emergency
problems.” Id. at 3. She also avers that she “did not receive emails as stated
from the agency.” Id. The appellant also provides documentary evidence, the
majority of which was not included in the record before the administrative judge.
Id. at 5-17.
The Office of the Clerk of the Board notified the appellant that her petition
for review was untimely and explained that she must file a motion asking the
Board to accept the petition for review as timely and/or to waive the time limit
for good cause. PFR File, Tab 2 at 1-2. The appellant did not respond. The
agency has responded to the appellant’s petition for review, arguing that it is
untimely filed and that she has not shown good cause for her untimeliness. PFR
File, Tab 3 at 4-6.
3
DISCUSSION OF ARGUMENTS ON REVIEW
A petition for review must be filed within 35 days after the issuance of the
initial decision, or, if the petitioner shows that she received the initial decision
more than 5 days after the date of the issuance, within 30 days after the date she
received the initial decision. 5 C.F.R. § 1201.114(e). Here, the initial decision
was issued on February 14, 2019, and served on the appellant via email the same
day. IAF, Tab 12 at 1. The appellant does not allege that she did not receive the
initial decision within 5 days of its issuance. Accordingly, her petition for review
is untimely by approximately 11 months. PFR File, Tab 1; see 5 C.F.R.
§ 1201.114(e).
The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To
establish good cause for an untimely filing, the appellant 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).
In determining whether there is good cause, the Board considers the length of the
delay, the reasonableness of the excuse and showing of due diligence, whether the
appellant 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 file a timely petition. See Wyeroski v.
Department of Transportation, 106 M.S.P.R. 7, ¶ 7, aff’d, 253 F. App’x 950 (Fed.
Cir. 2007).
We find that the appellant has not demonstrated good cause for the
untimely filing of her petition for review. Although the appellant is pro se, her
11-month delay in filing is significant, and she failed to respond to the notice
affording her the opportunity to file a motion to accept the filing as timely and/or
to waive the time limit for good cause. See Groesbeck v. Office of Personnel
Management, 109 M.S.P.R. 1, ¶ 4 (2008) (finding that the appellant failed to
4
show good cause when her petition for review was untimely filed by 6 months
and she failed to respond to the notice regarding timeliness); see also
Trachtenberg v. Department of Defense, 104 M.S.P.R. 640, ¶ 9 (2007) (stating
that a delay of 9 months is not minimal).
In her petition for review, the appellant asserts that family medical issues
contributed to her filing delay; however, this assertion does not establish good
cause. PFR File, Tab 1 at 3; see Minor v. Department of the Air Force,
109 M.S.P.R. 692, ¶¶ 5, 7 (2008) (finding that personal difficulties, including ill
family members, did not constitute good cause for a filing delay in the absence of
a specific showing of how they affected the appellant’s ability to timely file a
petition or a request for an extension of time). The appellant also contends that
she “purchased [her] military time and did not receive proper [retirement] credit;”
however, this merit-based contention does not constitute good cause for her
untimeliness. PFR File, Tab 1 at 3; see Guevara v. Department of the Navy,
112 M.S.P.R. 39, ¶ 7 (2009) (finding that the appellant failed to establish good
cause for his untimely filed petition for review when he merely argued the merits
of his Board appeal).
The appellant also provides numerous documents, including emails, with
her petition for review. PFR File, Tab 1 at 5-17. However, all of the documents
seemingly predate the initial decision, and apart from a vague assertion that she
“did not receive” certain emails due to “poor communications,” id. at 3, she does
not allege, and nothing in her petition for review suggests, that the documents
constitute new evidence that was unavailable to her prior to the close of the
record, see Agbenyeke v. Department of Justice, 111 M.S.P.R. 140, ¶ 12 (2009)
(explaining that the discovery of new evidence may establish good cause for the
untimely filing of a petition for review if, among other things, the evidence was
not readily available before the close of the record). Indeed, all of the appellant’s
arguments appear to be based on information previously available to her such that
she could have timely filed a petition for review on these bases . See Wilson v.
5
General Services Administration, 15 M.S.P.R. 45, 47 (1983) (finding that the
appellant had not shown good cause for his untimeliness because, among other
things, he failed to show that the “new” information on which he relied was
unavailable, despite due diligence, before the record closed).
Accordingly, we dismiss the petition for review as untimely filed. 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 the appellant’s retirement benefits appeal. 2
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.
2
On December 19, 2019, the appellant filed a separate Board appeal alleging that the
Office of Personnel Management (OPM) had failed to give her credit for her military
service for purposes of her retirement under FERS. Lubert v. Office of Personnel
Management, MSPB Docket No. PH-0841-20-0118-I-1, Initial Appeal File (0118 IAF),
Tab 1 at 4-5. Thereafter, on June 5, 2020, OPM issued a redetermination letter, wherein
it recalculated the appellant’s total Federal service and her annuity. 0118 IAF, Tab 10
at 4. Shortly following these recalculations, the appellant withdrew her appeal.
0118 IAF, Tab 11, Initial Decision at 2.
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.
6
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
7
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.
8
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
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.
9
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.