UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VONDELISE JONES, DOCKET NUMBER
Appellant, CH-0831-20-0072-I-1
v.
OFFICE OF PERSONNEL DATE: January 24, 2023
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Vondelise Jones, Stow, Ohio, pro se.
Tiffany Slade, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision,
which affirmed the reconsideration decision issued by the Office of Personnel
Management (OPM), denying her request for a former spouse survivor annuity .
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
BACKGROUND
¶2 On November 8, 2019, the appellant filed an appeal challenging OPM’s
reconsideration decision denying her request for a former spouse survivor
annuity. Initial Appeal File (IAF), Tab 1 at 4, 11-14. After affording the
appellant her requested hearing, the administrative judge issued a n initial decision
on June 24, 2020, affirming OPM’s reconsideration decision. IAF, Tab 23, Initial
Decision (ID) at 2, 6-7. The initial decision included instructions that it would
become final on July 29, 2020, unless a petition for review was filed by that date.
ID at 7.
¶3 On October 4, 2021, the Clerk of the Board received a letter from the Equal
Employment Opportunity Commission (EEOC) denying the appellant’s petition
for review of the initial decision referenced above. PFR File, Tab 1.
Subsequently, on October 20, 2021, the Clerk of the Board received a submission
from the appellant that included the EEOC letter via U.S. mail, postmarked
October 19, 2021. Petition for Review (PFR) File, Tab 2. She confirmed via
telephone on November 1, 2021, that her submission was a petition for review of
the June 24, 2020, initial decision. PFR File, Tabs 2, 3. The Acting Clerk of the
Board issued an acknowledgment letter, advising the appellant that her petition
for review was untimely filed and informing her that she must establish good
cause for the untimely filing. PFR File, Tab 3 at 1-3. To assist the appellant, the
Acting Clerk of the Board attached a form “Motion to Accept Filing as Timely
and/or to Ask the Board to Waive or Set Aside the Time Limit. Id. at 2, 7-8.
The appellant filed the required motion. PFR File, Tab 4. The agency has not
responded to the petition for review.
3
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 The Board’s regulations provide that a petition for review must be filed
within 35 days after the date of the issuance of the initial decision, or, if the
petitioner shows that the initial decision was received more than 5 days after the
date of issuance, within 30 days after the date the petitioner received the initial
decision. See 5 C.F.R. § 1201.114(e); see also Palermo v. Department of the
Navy, 120 M.S.P.R. 694, ¶ 3 (2014). Here, the administrative judge issued the
initial decision on June 24, 2020, and correctly informed the appellant that she
was required to file any petition for review no later than July 29, 2020. ID at 1,
7. The appellant filed her petition for review on October 19, 2021. PFR File,
Tab 2 at 8; Tab 3 at 1. As such, we find that the petition for review is untimely
filed by over 1 year and 2 months.
¶5 The Board may waive its timeliness regulations only upon a showing of
good cause for the untimely filing. Palermo, 120 M.S.P.R. 694, ¶ 4; 5 C.F.R.
§§ 1201.12, 1201.114(g). The party who submits an untimely petition for review
has the burden of establishing good cause by showing that she exercised due
diligence or ordinary prudence under the particular circumstances of the case.
Palermo, 120 M.S.P.R. 694, ¶ 4; 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 reas onableness of her
excuse and her showing of due diligence, whether she is proceeding pro se,
and whether she has presented evidence of the existence of circumstances beyond
her control that affected her ability to comply with the time limits or of
unavoidable casualty or misfortune which similarly shows a causal relationship to
her inability to timely file her petition. Palermo, 120 M.S.P.R. 694, ¶ 4;
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). The Board may decline to excuse a pro se
appellant’s minimal delay when she fails to establish that she acted with due
4
diligence. See, e.g., Lockhart v. Office of Personnel Management , 94 M.S.P.R.
396, ¶¶ 7-8 (2002).
¶6 Although the appellant is pro se, the remaining factors disfavor finding that
good cause exists for her delay in filing. Her filing delay of over 1 year and
2 months is significant. See Wirzberger v. Department of the Treasury,
101 M.S.P.R. 448, ¶ 8 (noting that a 1-year delay in filing a petition for review
was significant, even when considering her pro se status), review dismissed,
212 F. App’x 965 (Fed. Cir. 2006). We have also considered the appellant’s
assertion that the filing deadline should be waived because of her various
physical and mental health conditions. PFR File, Tab 4 at 6-9. The Board will
find good cause for an untimely filing when a party demonstrates that
she suffered from an illness or medical condition that affected her ability to file
on time. See Pirkkala v. Department of Justice, 123 M.S.P.R. 288, ¶ 19 (2016).
To establish that an untimely filing was the result of an illness, the party must
(1) identify the time period during which she suffered from the illness, (2) submit
medical evidence showing that she suffered from the alleged illness during that
time period, and (3) explain how the illness prevented her from timely filing her
petition or a request for an extension of time. Lacy v. Department of the Navy,
78 M.S.P.R. 434, 437 (1998). The party need not prove incap acitation, only that
her ability to file was affected or impaired by the medical condition. Id.
¶7 In her motion to waive the time limit for filing a petition for review the
appellant states that “[she] was not [her]self mentally, [and she] didn’t get much
personal care in 2020 cause[sic] of COVID-19.” PFR File, Tab 4 at 8. With her
motion, she provides documentation to support her claim that her conditions
hindered her ability to timely file her petition for review, including an after -visit
summary dated December 14, 2020, a problem list of her physical and mental
health conditions, and what appears to be an appointment list, noting
a lymphedema daily visit on November 11, 2020. Id. at 3-5. The problem list
5
includes, amongst other things, malignant neoplasm of the thyroid gland, primary
hyperparathyroidism, type 2 diabetes mellitus with hyperglycemia, peripheral
nervous system disorder, paranoid schizophrenia, intellectual disability, rectal
bleeding, and lower abdominal pain. Id. at 4.
¶8 Although the appellant generally states that her mental and physical health
prevented her from filing her petition for review in a timely manner, she has not
specifically explained how her conditions prevented her from filing a petition for
review or motion for an extension of time. Id. at 6-9. As noted above,
the appellant’s medical documents identify her various medical conditions;
however, they fail to explain how her illnesses prevented her from timely filing a
petition for review for the duration of the relevant period between the issuance of
the initial decision on June 24, 2020, and the deadline for filing her petition for
review on July 29, 2020. Id. at 3-5; see Pirkkala, 123 M.S.P.R. 288, ¶ 20
(finding that the appellant failed to explain how her shoulder problems affected
her ability to file a timely removal appeal); Stribling v. Department of Education,
107 M.S.P.R. 166, ¶¶ 10-11 (2007) (finding that an appellant failed to establish
good cause for an untimely filing despite her assertion that she suffered from
anxiety and depression because she did not present any evidence that specifically
addressed her condition during the relevant time period, and because she failed to
explain how her medical conditions prevented her from making a timely fili ng or
requesting an extension).
¶9 Accordingly, we conclude that the appellant has failed to show that she
exercised due diligence or ordinary prudence in this case that would warrant a
finding of good cause for the delay in filing her petition for review. See Shiflett
v. U.S. Postal Service, 839 F.2d 669, 670-74 (Fed. Cir. 1988) (noting that the
Board may grant or deny the waiver of a time limit for filing an appeal, in the
interest of justice, after considering all the facts and circumstances of a par ticular
case).
6
¶10 The appellant also motions to submit additional evidence “that was not
readily available when the records closed” in her timeliness motion. 2 PFR File,
Tab 4 at 7, 10-11. The appellant’s evidence addresses the merits of her appeal
and is not relevant to the dispositive timeliness issue. See Brockman v.
Department of Defense, 108 M.S.P.R. 490, ¶ 8 (2008) (observing that
an appellant’s documents submitted for the first time on review and arguments on
the merits of his appeal were not relevant to the untimeliness of his petition for
review). We, therefore, deny the appellant’s motion.
¶11 Consequently, 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 OPM’s denial of the appellant’s request for a former spouse
survivor annuity.
NOTICE OF APPEAL RIGHTS 3
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).
2
In her motion to waive the time limit for filing a petition for review , the appellant
motions to submit the initial decision in the instant appeal and 5 U.S.C. § 8467 as
additional evidence supporting her entitlement to a former spouse survivor annuity.
PFR File, Tab 4 at 7, 10-11. The initial decision is in the record below, IAF, Tab 23;
therefore, it does not constitute new evidence. See Meier v. Department of the Interior,
3 M.S.P.R. 247, 256 (1980). Similarly, the law cited by the appellant is not new and
was in effect when she filed her appeal from OPM’s reconsideration decision. She has
not shown that the provisions contained therein were not otherwise available, despite
her due diligence. See 5 C.F.R. § 1201.115; Grassell v. Department of Transportation,
40 M.S.P.R. 554, 564 (1989). Therefore, as set forth above, we decline to consider this
evidence.
3
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.
7
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
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.
8
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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file 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
9
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
(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
10
competent jurisdiction. 4 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.
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 war rants that
any attorney will accept representation in a given case.
4
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 petitio ns 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.
11
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.