Samuel G. McDaniel v. Office of Personnel Management

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SAMUEL G. MCDANIEL, DOCKET NUMBER
Appellant, SF-0831-16-0017-I-1
v.
OFFICE OF PERSONNEL DATE: August 16, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Samuel G. McDaniel, Victorville, California, pro se.
Roxann Johnson, 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 the appeal for failure to prosecute. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
¶2 The appellant separated from his employment with the U.S. Postal Service
in 1995. Initial Appeal File (IAF), Tab 1 at 5, Tab 4 at 4, 9. He filed a
profanity‑laced appeal in which he checked boxes indicating that he sought to
appeal both his removal and a failure to restore, but he indicated that he had
received the agency’s final decision letter in the matter at issue on September 9,
2015, and also wrote an Office of Personnel Management (OPM) retirement case
docket number, CSA 2 4111739, next to that date on his appeal form. IAF, Tab 1
at 1, 3. He included with his appeal a copy of a letter bearing the same date and
CSA number in which OPM told him of its determination that he was not eligible
for an annuity, noting both his March 9, 1995 request for a refund of his
retirement contributions and his September 5, 1995 separation from service. Id.
at 9-10. In its letter, OPM informed the appellant that, because he was no longer
employed by the Federal Government and had received a refund of his retirement
contributions, he was neither entitled to an annuity, nor eligible to make a
redeposit of the refund he had received. Id. The appellant also included a copy
of his signed March 9, 1995 application for a refund of his retirement
contributions, on which he had written a narrative in the margins and on the
reverse side. Id. at 12-13.
¶3 The administrative judge issued an acknowledgment order in which, among
other things, he informed the appellant of his burden to establish jurisdiction over
his appeal. IAF, Tab 2. The appellant did not respond. OPM submitted its file
on the matter, in which it again explained that, because the appellant had received
a refund of his retirement contributions and had not since been reemployed by the
Federal Government such that he would be allowed to redeposit those funds, he
was ineligible for a deferred annuity. IAF, Tab 4 at 4. The administrative judge
2
CSA is an abbreviation for Civil Service Annuity.
3
then issued a hearing order in which he ordered the parties to make their
prehearing submissions and set a time for the prehearing conference. IAF, Tab 5.
¶4 Because the appellant failed to file his prehearing submissions or to appear
for the prehearing conference, the administrative judge issued a show cause order
in which he ordered the appellant to advise him in writing whether he wished to
continue his appeal against OPM regarding its 2015 decision to deny him
retirement benefits and he rescheduled the prehearing conference. IAF, Tab 6.
While the appellant did not respond in writing by December 1, as directed, he
called in to participate in the previously-scheduled telephonic hearing and the
administrative judge gave him an extension of time in which to file his prehearing
submissions. IAF, Tab 8. The appellant responded with another profanity‑laced
tirade regarding his 1995 removal; he reiterated his request for a hearing, but, for
the second time, failed to file his prehearing submissions. IAF, Tab 9. Moreover,
he failed to address what the administrative judge determined was “the sole issue”
in this appeal, OPM’s denial of the appellant’s application for an annuity based
on the refund of retirement contributions he received. IAF, Tabs 6, 9.
¶5 The administrative judge then issued a second show cause order in which he
recounted the appellant’s failure to submit his prehearing submissions or to
participate in either prehearing conference as ordered. IAF, Tab 12. The
administrative judge also explained once again how this appeal was solely about
OPM’s decision to deny his application for retirement benefits and not about the
appellant’s 1995 removal from the U.S. Postal Service, an appeal of which was
dismissed previously as withdrawn. Id.; see McDaniel v. U.S. Postal Service,
MSPB Docket No. SF-0752-95-0403-I-1, Initial Decision (May 10, 1995).
Importantly, the administrative judge informed the appellant that the sanction of
dismissal with prejudice may be imposed for his repeated failure to respond to
multiple Board orders, and he ordered the appellant to file evidence and argument
to advise the administrative judge if he wanted to proceed with his appeal of
OPM’s final decision “or to otherwise show cause why the appeal should not be
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dismissed for failure to prosecute.” IAF, Tab 12 at 3-4. The appellant failed to
respond, and the administrative judge dismissed the appeal for failure to
prosecute. IAF, Tab 13, Initial Decision (ID).
¶6 In his untimely petition for review, the appellant claims that he is entitled to
retirement benefits because the U.S. Postal Service “failed to properly maintain
and manage my personnel records of my health and job injuries.” Petition for
Review (PFR) File, Tab 1 at 2. The Clerk of the Board (Clerk) informed the
appellant that, because the regional office issued an initial decision in his case on
January 25, 2016, his petition for review was untimely filed because it was not
postmarked or received by the Board on or before February 29, 2016, the 35th
day following the issuance of the initial decision. PFR File, Tab 2; 5 C.F.R.
§ 1201.114(e). The Clerk also informed the appellant that the Board’s regulations
therefore require him to file a motion to accept the filing as timely and/or waive
the time limit for good cause and that his motion must include a sworn affidavit
showing either that his petition was timely filed or that there is good cause for the
late filing. PFR File, Tab 2. The appellant has not filed the required motion or
otherwise responded to the Clerk’s letter. The agency responded in opposition to
the appellant’s petition for review. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 The Board’s regulations require that a petition for review be filed within
35 days after the date of the issuance of the initial decision, or, if a party shows
that he received the initial decision more than 5 days after it was issued, within
30 days after his receipt of the initial decision. E.g., Palermo v. Department of
the Navy, 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e). The Board will
waive the filing deadline for a petition for review only upon a showing of good
cause for the untimely filing. Palermo, 120 M.S.P.R. 694, ¶ 4; 5 C.F.R.
§ 1201.114(g). The party who submits an untimely petition for review has the
burden of establishing good cause for the untimely filing by showing that he
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exercised due diligence or ordinary prudence under the particular circumstances
of the case. Palermo, 120 M.S.P.R. 694, ¶ 4. To determine whether a party has
shown good cause, the Board will consider the length of the delay, the
reasonableness of his excuse and the party’s showing of due diligence, whether he
is proceeding pro se, and whether he has presented evidence of the existence of
circumstances beyond his control that affected his ability to comply with the time
limits or of unavoidable casualty or misfortune that similarly shows a causal
relationship to his inability to timely file his petition. Id.¶8 The deadline for filing a petition for review in this matter was February 29,
2016. ID at 5; 5 C.F.R. § 1201.114(e). The initial decision informed the
appellant that the decision would become final unless a petition for review was
filed by that date. ID at 5. His petition for review was nevertheless postmarked
on March 4, 2016, making it 4 days late. PFR File, Tab 1 at 3; 5 C.F.R.
§ 1201.114(e). The appellant has not alleged that he received the initial decision
more than 5 days after the administrative judge issued it, and he has not offered
any reason for his delay in filing the petition for review. PFR File, Tab 1.
Although the Clerk afforded the appellant the opportunity to show good cause for
the untimely filing, PFR File, Tab 2, the appellant failed to respond to the Clerk’s
notice on the untimeliness of his petition for review.
¶9 The appellant’s late petition does not meet the requirements of 5 C.F.R.
§ 1201.114(g), because it is not accompanied by a motion for waiver and either an
affidavit or a statement signed under penalty of perjury, stating why he believes
there is good cause for his untimely filing. Although the appellant is proceeding
pro se and the 4-day filing delay was minimal, the Board will not waive its
regulatory filing deadline where a good reason for the delay is not shown. See,
e.g., Cabarloc v. Department of Veterans Affairs, 112 M.S.P.R. 453, ¶ 10 (2009).
The appellant has not acknowledged the lateness of his petition for review nor
provided any reason whatsoever for the delay. Thus, we find that the appellant
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has failed to demonstrate good cause for the untimeliness of his petition for
review.
¶10 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 application for retirement benefits.
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
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.
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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.