Renee Gbruoski v. Office of Personnel Management

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RENEE GBRUOSKI, DOCKET NUMBER
Appellant, DC-0831-22-0515-I-1
v.
OFFICE OF PERSONNEL DATE: November 1, 2023
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Renee M. Gbruoski , Clayton, North Carolina, pro se.
Eva Ukkola , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed as untimely filed her appeal from the Office of Personnel Management
(OPM)’s reconsideration decision, denying the appellant a Federal Employees’
Retirement System (FERS) dependent child annuity benefit. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
contains erroneous 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. 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 The appellant does not challenge, and we discern no basis to disturb, the
administrative judge’s conclusion that her appeal was untimely filed by 9 days.
Petition for Review (PFR) File, Tab 1; Initial Appeal File (IAF), Tab 5, Initial
Decision at 4; see 5 C.F.R. § 1201.22(b)(1). Instead, she asserts, for the first time
on review, that her medical conditions prevented her from meeting deadlines.
PFR File, Tab 1 at 3-4, 16. The Board generally will not consider evidence or
legal argument raised for the first time in a petition for review absent a showing
that it was not previously available despite the party’s due diligence. See
5 C.F.R. § 1201.115(d).
¶3 In any event, we find that the appellant’s assertions and submissions on
review do not warrant a different outcome. The administrative judge informed
the appellant that, to the extent illness prevented her from timely filing her
appeal, she must identify the time period during which she suffered from the
illness, submit medical evidence and any other supporting evidence showing that
she suffered from the illness during the relevant time period, and explain how the
illness prevented her from filing her appeal on time or requesting an extension of
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time to file. IAF, Tab 3 at 3; see Lacy v. Department of the Navy, 78 M.S.P.R.
434, 437 (1998); see also Stribling v. Department of Education, 107 M.S.P.R.
166, ¶ 8 (2007). The appellant alleges on review that she suffers from chronic
pain and physical impairments which limit her in her ability to concentrate, sit for
longer than “5 to 10 minutes” in order to compose pleadings, and bend and search
file boxes in order to locate relevant documents. PFR File, Tab 1 at 3-4, 16.
Although the appellant submitted some medical documentation that confirms that
she suffers from degenerative disc disease, among other conditions, that limit her
mobility and that she experiences chronic pain, it does not reflect that the
appellant’s condition was so severe that she could not file her appeal on time. Id.
at 9, 12-13. Significantly, she does not submit any medical documentation
regarding her medical conditions between the relevant timeframe, i.e., between
her receipt of OPM’s reconsideration decision and her untimely appeal, nor does
she explain why the medical evidence is unavailable. See Cornelius v. National
Credit Union Administration, 87 M.S.P.R. 497, ¶ 8 (2001) (finding that the
appellant failed to establish that his untimely filing was the result of a medical
condition when he failed to demonstrate that he was hospitalized, under
treatment, or otherwise incapacitated during the relevant timeframe).
¶4 The appellant’s remaining arguments that “COVID-19” made it difficult for
her to meet deadlines due to mailing delays, that she was confused by the appeal
process, and that she was waiting for the administrative judge to tell her whether
she was in the proper venue are also insufficient to show good cause for her
untimely filed appeal. PFR File, Tab 1 at 4. Inexperience with legal matters and
unfamiliarity with Board procedures do not warrant waiver of the filing deadline.
Zamot v. U.S. Postal Service, 91 M.S.P.R. 475, ¶ 7 (2002), aff’d, 332 F.3d 1374(Fed. Cir. 2003). Also, a general inability to understand instructions and
procedures does not provide a basis for waiver of the time limit for filing.
Cornelius, 87 M.S.P.R. 497, ¶ 8. A general claim of mail delays is not sufficient
to show good cause for an untimely filed appeal. Suratos v. Office of Personnel
4
Management, 56 M.S.P.R. 201, 203 (1993). Lastly, to the extent the appellant
asserts that she is unable to afford or obtain an attorney, her inability to retain
and/or afford an attorney does not establish good cause for the delay. PFR File,
Tab 1 at 4, 16; see Hawkins v. Department of the Navy, 67 M.S.P.R. 559, 562
(1995). Accordingly, we find no basis to disturb the administrative judge’s
determination to dismiss this appeal as untimely filed without a showing of good
cause.
NOTICE OF APPEAL RIGHTS 2
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.
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
2
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
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
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
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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:
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
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(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. 3 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).
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.
3
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.
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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
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.