UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EDWARD M. SLOMINSKE, DOCKET NUMBER
Appellant, CH-0845-16-0335-I-1
v.
OFFICE OF PERSONNEL DATE: September 21, 2016
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Edward M. Slominske, Olmsted Township, Ohio, pro se.
Kristopher L. Rogers, 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 his appeal as untimely filed without a showing of good cause for the
filing delay. Generally, we grant petitions such as this one only when: the initial
decision contains erroneous findings of material fact; the initial decision is based
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. Except as
MODIFIED by this Final Order to find that the deadline for filing the appeal was
not Saturday, March 12, 2016, but Monday, March 14, 2016, we AFFIRM the
initial decision.
¶2 In a reconsideration decision dated February 11, 2016, the Office of
Personnel Management (OPM) determined that the appellant had received an
overpayment in benefits under the Federal Employees’ Retirement System and it
announced its intent to begin collecting the overpayment by taking monthly
installments from his annuity payments. Initial Appeal File (IAF), Tab 7 at 7-10.
The reconsideration decision informed the appellant that he had the right to
appeal the decision to the Board within 30 days of the date that the appellant
received the reconsideration decision. Id. at 10. According to his appeal, the
appellant received the reconsideration decision on February 11, 2016. IAF, Tab 1
at 2. Therefore, his appeal was due on March 12, 2016, or rather, on March 14,
2016, because March 12 was a Saturday. 5 C.F.R. § 1201.23. The appellant filed
his appeal on April 8, 2016.
¶3 The administrative judge informed the appellant that his appeal appeared to
be untimely filed and she directed him to file evidence and argument showing that
the appeal was timely or that good cause existed for the delay in filing. IAF,
Tab 3. After considering the parties’ responses, IAF, Tabs 4, 7, the
3
administrative judge dismissed the appeal as untimely filed without a showing of
good cause. IAF, Tab 9, Initial Decision (ID) at 1, 6. The appellant petitions for
review of the initial decision. Petition for Review (PFR) File, Tab 1.
¶4 An appeal from an OPM reconsideration decision must be filed no later than
30 days after the date the appellant received OPM’s decision. Smith v. Office of
Personnel Management, 117 M.S.P.R. 527, ¶ 5 (2012); 5 C.F.R. § 1201.22(b).
The appellant’s appeal, filed on April 8, 2016, was 25 days late. Heath v.
Department of Agriculture, 109 M.S.P.R. 684, ¶ 6 (2008) (finding that a 23-day
filing delay was not minimal); Hodge v. U.S. Postal Service, 88 M.S.P.R. 50, ¶ 6
(2001) (concluding that a 28‑day filing delay was not minimal).
¶5 The Board may waive the time limit for filing an appeal if the appellant
shows good cause for the delay. 5 C.F.R. § 1201.22(c). To establish good cause
for the untimely filing of an appeal, a party must show that he 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). To
determine whether an appellant has shown good cause, the Board will consider
the length of the delay, the reasonableness of his excuse and his 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, which
similarly shows a causal relationship to his inability to timely file his petition.
Moorman v. Department of the Army, 68 M.S.P.R. 60, 62-63 (1995), aff’d,
79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶6 The appellant reiterates on review his argument below that he delayed in
filing his appeal because he had questions about the appeal forms attached to the
reconsideration decision and he called OPM multiple times per day but OPM
did not return his telephone calls. PFR File, Tab 1 at 2; IAF, Tab 4 at 2. We
agree with the administrative judge that the appellant has not shown due diligence
by demonstrating that he sought assistance from OPM. ID at 3-4. OPM’s
4
reconsideration decision informed him that it was OPM’s final decision and that
any further recourse was with the Board. IAF, Tab 7 at 10. OPM also provided
the appellant with clear and straightforward instructions for filing an appeal with
the Board. Id. A general inability to understand instructions and procedures
does not provide a basis for a waiver of the time limit for filing an appeal.
Burgess v. U.S. Postal Service, 78 M.S.P.R. 484, ¶ 7 (1998); Holloway v. Office
of Personnel Management, 54 M.S.P.R. 507, 509 (1992). If the appellant had
difficulty in understanding the Board’s appeal form, it would have been
reasonable for him to contact the Board for assistance rather than OPM. Burgess,
78 M.S.P.R. 484, ¶ 7; Holloway, 54 M.S.P.R. at 510. His failure to do so weighs
against a finding of due diligence or ordinary prudence. Burgess, 78 M.S.P.R.
484, ¶ 7.
¶7 The appellant also repeats on review his assertion below that his appeal is
untimely because he was caring for his wife, who was severely ill with terminal
cancer. PFR File, Tab 1 at 2; IAF, Tab 4 at 1. The administrative judge correctly
noted that the appellant did not provide the dates of his wife’s illness and death.
ID at 5. On review, the appellant provides no further information concerning his
late wife. However, a letter from his therapist, which we discuss in more detail
below, indicates that she died in December 2015, several months before the filing
period began. PFR File, Tab 1 at 8. While the appellant must certainly have been
grieving during the February-March 2016 timeframe, there is no evidence
explaining how the effects of his wife’s death prevented him from meeting the
filing deadline. Pine v. Department of the Army, 63 M.S.P.R. 381, 383 (1994)
(finding that a claim that the appellant was caring for her critically ill mother that
does not specifically account for the period of untimeliness does not constitute
good cause for waiver of the filing deadline); Estate of DePalermo v. Office of
Personnel Management, 53 M.S.P.R. 4, 6 (1992) (stating that a preoccupation
with the death of a parent that occurred 2 years before the filing period began did
not constitute good cause for the untimely filing of a petition for review).
5
¶8 Finally, the appellant alleges that he was unable to timely file his appeal
because the ordeal of his wife’s illness and death placed him in a state of severe
depression. PFR File, Tab 1 at 2; IAF, Tab 4 at 1. To establish that an untimely
filing was the result of an illness, the party must: (1) identify the time period
during which he suffered from the illness; (2) submit medical evidence showing
that he suffered from the alleged illness during that time period; and (3) explain
how the illness prevented him from timely filing his appeal or a request for an
extension of time. Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437 (1998).
To establish good cause for waiver of the Board’s filing deadline based on
physical or mental illness, there is no general incapacitation requirement; rather,
the appellant is required to explain only why his alleged illness impaired his
ability to meet the Board’s filing deadline or seek an extension of time. Lacy,
78 M.S.P.R. at 437 n.*
¶9 The administrative judge correctly found that the appellant did not submit
any evidence below to substantiate his assertion that he was prevented from
timely filing his appeal by his medical condition. ID at 5. On review, the
appellant submits a letter from his therapist that purports to explain why the
appellant was unable to meet the deadline for filing his appeal. PFR File, Tab 1
at 8. The letter is dated after the date the initial decision was issued, but it
appears to be based for the most part on information that was readily available
prior to the close of the record below. 2 Grassell v. Department of Transportation,
40 M.S.P.R. 554, 564 (1989) (determining that, to constitute new and material
evidence, the information contained in the documents, not just the documents
2
The letter states that the appellant has been a patient since April 8, 2015, was most
recently seen on June 20, 2016, and refers to an undated second visit that occurred
towards the beginning of the terminal phase of the appellant’s wife’s illness some
months before her death. PFR File, Tab 1 at 8. There is no mention of whether the
therapist saw the appellant in February or March 2016 and, therefore, it is not clear to
what extent the information contained in the letter reflects the appellant’s condition
during the filing period, which, of course, is the time period relevant in this case.
6
themselves, must have been unavailable despite due diligence when the record
closed). The appellant asserts that he did not submit any medical documentation
below because the administrative judge did not ask for it. PFR File, Tab 1 at 2.
On the contrary, her Order on Timeliness explicitly stated that he was to submit
medical documentation in support of his claim. IAF, Tab 3 at 3-4.
¶10 Under 5 C.F.R. § 1201.115, the Board will not consider evidence submitted
for the first time with the petition for review absent a showing that it was
unavailable before the record was closed despite the party’s due diligence.
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). Here, the
administrative judge placed the appellant on clear notice of what he must show to
establish that his illness prevented him from timely filing his appeal and of the
type of evidence necessary to make that showing. IAF, Tab 3 at 3-4. The
appellant’s failure to follow the administrative judge’s straightforward
instructions to submit medical evidence in support of his claim that he was
prevented from meeting the filing deadline by illness does not reflect due
diligence. Cf. Lewis v. Department of the Navy, 65 M.S.P.R. 28, 32 (1994)
(explaining that the Board will consider evidence submitted for the first time on
petition for review that was available before the record closed below when the
party was not put on notice of the nature of a dispositive issue until the issuance
of the initial decision).
¶11 Even if we were to consider the therapist’s letter, it does not explain how
the appellant’s condition prevented him from meeting the filing deadline. The
letter describes the appellant’s symptoms when he began treatment in April 2015
and up until his wife’s death in December 2015. PFR File, Tab 1 at 8. After that
point, however, the letter merely states that his condition is complicated by
profound grief and that he has difficulty understanding the appeal process. Id.
While we are sympathetic to the appellant’s situation, this letter does not
constitute a substantive explanation of how the appellant’s illness prevented him
7
from meeting the filing deadline. 3 Accordingly, we find that the administrative
judge correctly dismissed the appeal as untimely filed without a showing of good
cause for the delay in filing.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 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.
3
The Board has found good cause when the appellant submitted medical evidence
providing a detailed explanation of how the appellant’s illness affected her ability to
meet the filing deadline, including evidence that she was unable to understand,
remember, and carry out very short, simple instructions; understand, remember, and
carry out detailed instructions; perform activities within a schedule; be punctual within
customary tolerances; and ask simple questions or request assistance. See Smith,
117 M.S.P.R. 527, ¶ 8. The appellant’s evidence does not approach this level of detail.
8
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.