United States Court of Appeals
for the Federal Circuit
__________________________
LINDA S. HUBBARD,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2009-3242
__________________________
Appeal from the Merit Systems Protection Board in
PH844E090317-I-1.
______________________________
Decided: May 27, 2010
______________________________
PAUL VICTOR JORGENSEN, of Middletown, Maryland,
argued for petitioner.
CALVIN M. MORROW, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, argued for respondent. With him on the brief were
JAMES M. EISENMANN, General Counsel, and KEISHA
DAWN BELL, Deputy General Counsel.
__________________________
Before LOURIE, FRIEDMAN, and LINN, Circuit Judges.
HUBBARD v. MSPB 2
FRIEDMAN, Circuit Judge.
The Merit Systems Protection Board (“Board”) dis-
missed, as untimely filed, an appeal from the Office of
Personnel Management (“OPM”)’s denial of an application
for a federal employee’s disability retirement annuity
benefits. We affirm.
I
Following her resignation “[f]or health related rea-
sons” as a secretary after more than twenty years of
federal service, the appellant Linda S. Hubbard applied to
OPM for disability retirement. OPM denied those bene-
fits because Hubbard had “not established that [she had]
a disabling medical condition that meets the criteria for
entitlement to disability retirement benefits.”
OPM denied Hubbard’s request for reconsideration of
that decision. It stated that “we have again concluded
that documentation presented does not show that you
meet the eligibility requirements specified under current
law and regulation.” OPM’s letter to Hubbard informing
her of its decision concluded with the following statement:
You have the right to appeal this decision
to the Merit Systems Protection Board
(MSPB). If you wish to exercise this right,
please note that an appeal must be filed
within 30 calendar days after the date of
this decision, or 30 days after receipt of
this decision, whichever is later.
OPM’s letter to Hubbard was dated November 5, 2008.
Her notice of appeal to the Board was dated March 5,
2009, and shows that the Board received it on that date.
(She was then acting pro se, but is represented by counsel
in this appeal.)
In an order dated April 9, 2009, the Board’s adminis-
trative judge stated that “the appeal may be untimely.”
3 HUBBARD v. MSPB
After noting the factual issues relating to the timeliness
issue and describing the governing criteria, the order
concluded as follows:
Accordingly, the appellant shall file evi-
dence and argument demonstrating that
the appeal was timely filed or that good
cause exists for the delay. OPM shall file
any evidence in its possession relevant to
the issue of timeliness. The parties’ sub-
missions shall be filed to be received by
April 20, 2009.
Hubbard did not reply to that directive.
By order dated April 24, 2009, the administrative
judge dismissed the appeal. In his initial decision, which
became final when Hubbard did not seek Board review of
it, the administrative judge stated:
I issued an order requiring the appellant
to demonstrate that the appeal was timely
filed or show good cause for its untimeli-
ness . . . She did not file a response to the
order. As the appeal appears to have been
untimely, and she submitted no evidence
demonstrating good cause for the delay,
the appeal must be dismissed.
In a footnote, the administrative judge stated that he
had “also ordered OPM to file any evidence in its posses-
sion relevant to the issue of timeliness,” which it still had
not done, but “[b]ecause the appellant herself [had] not
attempted to demonstrate that the appeal should be
considered timely filed, [did] not further pursue the
matter with OPM.”
II
Hubbard contends that since the record does not show
when she received OPM’s order denying reconsideration,
HUBBARD v. MSPB 4
the administrative judge had no basis for ruling that her
appeal was untimely. She relies upon Hamilton v. Merit
Systems Protection Board, 75 F.3d 639 (Fed. Cir. 1996),
and Williams v. Equal Employment Opportunity Commis-
sion, 75 M.S.P.R. 144 (1997). In Hamilton, this court
reversed a Board decision dismissing an appeal as un-
timely because the administrative judge had failed to tell
the employee that he “simply presumed the appealed
decision was received by the employee five days after the
date it bears.” 75 F.3d at 646–47. In Williams, the Board
“adopt[ed]” “as standard procedure for all cases” this
court’s “statement[ ]” in Hamilton that “[b]efore dismiss-
ing an appeal, an administrative judge should inform an
appellant of the date that a document triggering the
running of the appeal period will be presumed to have
been received, in the absence of direct evidence.” 75
M.S.P.R. at 148.
In the present case, unlike Hamilton, nothing in the
record indicates or even suggests that, in determining the
timeliness of the appeal, the administrative judge relied
on any presumption that the employee received OPM’s
decision within a specified time of mailing. To the con-
trary, it appears that the administrative judge dismissed
the appeal as untimely solely because “the appellant
herself has not attempted to demonstrate that the appeal
should be considered timely filed.” As the administrative
judge’s order told Hubbard, “[t]he appellant has the
burden of proof, by a preponderance of the evidence, on
the issue of timeliness. 5 C.F.R. § 1201.56(a)(2)(ii)
(2008).”
The administrative judge’s failure to inform the appel-
lant of his “presumption” of five-day delivery was a criti-
cal factor in the Hamilton decision. As this court there
stated:
The AJ in this case had evidence only of
the filing date, not the date of receipt
5 HUBBARD v. MSPB
which started the period running. Before
dismissal, the AJ could and should have
asked both parties for such evidence. Fur-
ther the AJ must then inform the parties
of the dates on which the AJ intends to
rely to support the dismissal. Only by
knowing those dates before a final order is
issued can an appellant make a meaning-
ful response by way of either challenging
the dates or showing good cause for the
period of delay.
75 F.3d at 646. Here, as distinguished from Hamilton
and Williams the administrative judge did not rely on any
presumption, and therefore did not fail to inform Hubbard
of the time frame upon which he would base his ruling
whether the appeal was timely.
In any event, even if he had committed such an error,
it was harmless. The administrative judge unequivocally
instructed Hubbard to “file evidence and argument dem-
onstrating that the appeal was timely filed or that good
cause exists for the delay.” Hubbard never responded to
this order. Indeed, to this day she has not submitted any
facts showing either that she filed within thirty days of
receiving OPM’s reconsideration decision or that there
was good cause for her failure to do so. In the circum-
stances, the administrative judge could justifiably con-
clude that Hubbard could not factually support either
such claim.
Hubbard contends that the administrative judge’s or-
der did not give her sufficient time to prepare an ade-
quate response. She did not seek additional time to
respond, however, or after the administrative judge had
dismissed her appeal, seek rehearing on the basis of facts
showing either timely filing or a good cause for her filing
delay. This case thus sharply contrasts with Hamilton
where, after the administrative judge had dismissed the
HUBBARD v. MSPB 6
appeal as untimely, Hamilton submitted evidence that
her appeal was timely (which the Board refused to con-
sider).
Hubbard also contends that her medical problems
precluded her from timely responding to the administra-
tive judge’s filing directive. This contention, however,
appears undermined by the fact that, when shortly before
that OPM initially rejected her disability retirement
application and told her she could seek reconsideration
within thirty days, she did so twenty days later. In any
event, this contention should have been raised before the
administrative judge, and not for the first time in this
appeal.
This court has pointed out: “A petitioner who ignores
an order of the Administrative Judge does so at his or her
peril.” Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653
(Fed. Cir. 1992) (en banc). Hubbard’s failure even to
respond to the administrative judge’s order directing her
to “file evidence and argument demonstrating that the
appeal was timely filed or that good cause exists for the
delay” justified the administrative judge’s conclusion that
her appeal was untimely and should be dismissed.
CONCLUSION
The order of the Board dismissing the appeal as un-
timely is
AFFIRMED.