Laurene L. Widstrand v. Office of Personnel Management

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAURENE L. WIDSTRAND, DOCKET NUMBER
Appellant, SF-0845-16-0090-I-1
v.
OFFICE OF PERSONNEL DATE: September 14, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Laurene L. Widstrand, Quartz Hill, California, pro se.
Karla W. Yeakle, 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 final decision of the Office of Personnel Management (OPM) that
dismissed her request for reconsideration as untimely. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 By letter dated April 1, 2015, OPM informed the appellant that she had
been overpaid $58,879.92 in disability annuity benefits under the Federal
Employees’ Retirement System from August 4, 2009, through March 30, 2015,
caused by her receiving Social Security Administration disability insurance
benefits during that time period. Initial Appeal File (IAF), Tab 4 at 8-12. OPM’s
letter informed the appellant of her right to request reconsideration of the
decision or waiver of the overpayment by May 1, 2015, and the circumstances
under which it could grant an extension of this time limit. Id. at 9-10. The
appellant did not request reconsideration until June 26, 2015, almost 2 months
after the deadline. Id. at 13-17. On September 21, 2015, OPM issued a final
decision denying the appellant’s request for reconsideration as untimely, noting
that she offered no explanation to justify an extension of the filing deadline. Id.
at 6-7.
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¶3 The appellant filed an appeal with the Board. IAF, Tab 1. After holding a
telephonic hearing, the administrative judge issued an initial decision affirming
OPM’s final decision. IAF, Tab 13, Initial Decision (ID). The administrative
judge found that the appellant had received OPM’s letter notifying her of the
overpayment sometime prior to the end of April 2015, and thus, failed to show
that she was not notified of the time limit or otherwise unaware of it. ID at 2-3.
The administrative judge further determined that the appellant’s testimony that
she was stressed and experiencing financial hardship did not constitute
circumstances beyond her control that prevented her from making a timely
request. ID at 3.
¶4 The appellant has filed a petition for review in which she contends the
administrative judge misconstrued testimony concerning when she received
OPM’s April 1, 2015 letter. Petition for Review (PFR) File, Tab 1 at 3. The
agency has filed a response in opposition to the appellant’s petition. PFR File,
Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 By regulation, a request for reconsideration of an OPM decision finding that
an individual has been overpaid in annuity benefits must be postmarked within
30 calendar days of the date of the initial decision. 5 C.F.R. § 831.1304(b)(1).
OPM may extend the time limit for filing a request for reconsideration when the
individual shows that she was not notified of the time limit and was not otherwise
aware of it, or that she was prevented by circumstances beyond her control from
making the request within the time limit. Id.; 5 C.F.R. § 831.109(e)(2); see
Cerezo v. Office of Personnel Management, 94 M.S.P.R. 81, ¶ 7 (2003).
¶6 The Board will reverse an OPM decision denying reconsideration only if it
finds that OPM’s denial was unreasonable or an abuse of discretion. Meister v.
Office of Personnel Management, 52 M.S.P.R. 508, 513 (1992). If the appellant
fails to show that she was not notified of the time limit and was not otherwise
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aware of it, or that she was prevented by circumstances beyond her control from
making the request within the time limit, the Board will not reach the issue of
whether OPM was unreasonable or abused its discretion in denying her untimely
request for reconsideration. Cerezo, 94 M.S.P.R. 81, ¶ 9.
¶7 Here, the administrative judge found that the appellant offered conflicting
testimony concerning the reason for her untimely request for reconsideration in
that the appellant claimed both that she did not receive OPM’s April 1, 2015
letter because her mail was being held as a result of her moving from Lancaster,
California to Palmdale, California, and also that her moving to Palmdale,
California, was necessitated by the fact that she had received OPM’s letter and
determined that she could no longer afford to live at her residence in Lancaster,
California. ID at 2. The administrative judge instead credited testimony of the
appellant’s mother and son that the appellant had received OPM’s letter prior to
moving from Lancaster, California to Palmdale, California, at the end of April
2015. ID at 2-3. On review, the appellant contends that this is incorrect and that
her mother, son, and she all testified that she received OPM’s letter after she
moved into her Palmdale, California residence at the end of April 2015. 2 PFR
File, Tab 1 at 3.
¶8 We have reviewed the hearing testimony and discern no error with the
administrative judge’s findings. As the administrative judge determined, the
2
The appellant also contends that the administrative judge failed to mention her
testimony concerning her subsequent move from Palmdale, California to Quartz Hill,
California, and her testimony concerning her mail carrier handing her a letter from
OPM. PFR File, Tab 1 at 3-4. However, an administrative judge’s failure to mention
all of the evidence of record does not mean that she did not consider it in reaching her
decision. See Marques v. Department of Health & Human Services, 22 M.S.P.R. 129,
132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). On review, the appellant
also references a document she received from OPM on September 22, 2015, which
appears to be OPM’s September 21, 2015 final decision. PFR File, Tab 1 at 4; see IAF,
Tab 1 at 5. The date the appellant received OPM’s final decision, however, is
immaterial to the issue of whether she has shown that the regulatory time limit in
5 C.F.R. § 845.204(b)(1) should be waived.
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appellant’s mother and son both testified that the appellant had received OPM’s
letter prior to moving to Palmdale, California, at the end of April 2015. ID at
2-3; IAF, Tab 12, Hearing Compact Disc. Thus, we agree with the administrative
judge that the appellant failed to show that she was not notified of the time limit
and was not otherwise aware of it. ID at 3. In addition, we agree with the
administrative judge that the appellant’s assertions that she was experiencing
stress and financial hardship did not demonstrate that circumstances beyond her
control prevented her from making a timely request for reconsideration. 3 ID at 3;
see Meister, 52 M.S.P.R. at 515-16 (affirming OPM’s denial of an appellant’s
request for reconsideration as untimely wherein he proved that his medical
problems interfered with his ability to file on time but not that he was prevented
from doing so within the meaning of 5 C.F.R. § 831.109(e)(2)). Accordingly, we
affirm 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:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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Because the appellant did not show that she was unaware of the time limit or that she
was prevented by circumstances beyond her control from making the request within the
time limit, the administrative judge should not have reached the issue of whether OPM
was unreasonable or abused its discretion. Cerezo, 94 M.S.P.R. 81, ¶ 9. To the extent
the administrative judge found that OPM’s decision was not unreasonable or an abuse
of discretion, ID at 3, any such error does not provide a basis for reversal, see Panter v.
Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory
error that is not prejudicial to a party’s substantive rights provides no basis for reversal
of an initial decision).
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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 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 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.