UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANGELA D. HAYDEN, DOCKET NUMBER
Appellant, SF-0843-21-0521-I-1
v.
OFFICE OF PERSONNEL DATE: February 27, 2023
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Angela D. Hayden, Lancaster, California, pro se.
Alison Pastor, 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 dismissed as untimely filed her appeal from a final decision issued by the
Office of Personnel Management (OPM). Generally, we grant petitions such as
this one only in the following circumstances: the initial decision contains
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 argu ment 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).
BACKGROUND
¶2 On May 1, 2021, OPM issued a final decision finding the appellant
ineligible for survivor or death benefits under the Federal Employees’ Retirement
System (FERS) because of the death of her former spouse. Initial Appeal File
(IAF), Tab 1 at 10. OPM’s final decision notice advised that a Board appeal
could be filed contesting the disposition within 30 calendar days after the date of
the decision or 30 calendar days after receipt of the decision, whichever was later.
Id.; see 5 C.F.R. § 1201.22(b).
¶3 On July 19, 2021, the appellant filed a Board appeal challenging OPM’s
final decision. 2 IAF, Tab 1. She indicated on her appeal form that she received
the final decision on June 28, 2021. Id. at 4. The administrative judge issued
orders informing the appellant that her appeal appeared to be untimely, apprising
2
The appellant mailed her appeal, postmarked July 19, 2021, to OPM rather than the
Board, and OPM forwarded the appeal to the Board. IAF, Tab 1 at 1-2. The appeal
was docketed on August 23, 2021, and the Board acknowledged her filing date as
July 19, 2021. IAF, Tabs 1, 3.
3
her of her burden to prove timeliness, and seeking clarification as to when
she received OPM’s final decision. IAF, Tab 3 at 1-2, Tab 8 at 3-4. He also
noted a discrepancy between the address listed for the appellant on OPM’s
decision and her Board appeal. IAF, Tab 8 at 4. Thus, he ordered her to file
evidence and argument demonstrating that her appeal was timely filed or that
good cause existed for her delay in filing. IAF, Tab 3 at 2-4; Tab 8 at 3-4.
Without addressing when she received OPM’s final decision, the appellant
responded that she filed her appeal late because her father died and she had issues
securing legal representation. IAF, Tab 4 at 3, Tab 9 at 2.
¶4 The administrative judge issued an initial decision, without holding the
appellant’s requested hearing, dismissing the appeal as untimely filed.
IAF, Tab 1 at 3, Tab 12, Initial Decision (ID) at 1, 6. In so holding,
the administrative judge reasoned that she failed to prove by preponderant
evidence that she received OPM’s final decision more than 5 days after its
mailing. ID at 5. He also found that, absent any explanation that she pursued her
appeal rights with due diligence and there were circumstances beyond her control,
she failed to establish good cause to waive the filing deadline. Id.
¶5 The appellant has filed a timely petition for review. 3 Petition for Review
(PFR) File, Tabs 1, 3. The agency filed a nonsubstantive response. PFR File,
Tab 5.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 The parties do not dispute the administrative judge’s finding that the appeal
was untimely filed, and we decline to disturb this finding on review. 4 PFR File,
3
The appellant incorrectly asserts on review that she untimely filed her petition for
review. Petition for Review (PFR) File, Tab 3 at 2. The initial decision indicated that
it would become final on November 17, 2021, unless she filed a petition for review by
that date. ID at 6. The appellant’s petition for review is postmarked October 30, 2021,
and the Board acknowledged that as the filing date. PFR File, Tab 1 at 16, Tab 2 at 1.
Thus, her petition for review is timely filed.
4
Tab 3 at 2-3, 9, 13; ID at 1, 6. The appellant asserts on review that she does not
believe the initial decision misapplied the law but that she would not know.
PFR File, Tab 3 at 3. Instead, she appears to argue that the administrative judge
erred in declining to find good cause for her untimely filing. ID at 5-6; PFR File,
Tab 3 at 2-3, 9, 13. For the reasons explained below, we disagree.
The administrative judge correctly found that the appellant untimely filed her
appeal.
¶7 An appellant bears the burden of proving by preponderant evidence that her
appeal has been timely filed. 5 C.F.R. § 1201.56(b)(2)(i)(B). The Board’s
regulations provide that an appeal must be filed with the Board no later than
30 days after the effective date of the agency’s action, or 30 days after the date of
the appellant’s receipt of the agency decision, whichever is later. Pirkkala v.
Department of Justice, 123 M.S.P.R. 288, ¶ 13 (2016); 5 C.F.R. § 1201.22(b)(1).
In the absence of evidence to the contrary, an appellant is presumed to have
received an agency’s final decision 5 calendar days after the decision was issued.
Williamson v. U.S. Postal Service, 106 M.S.P.R. 502, ¶ 7 (2007). Here, the
administrative judge found that the appellant failed to rebut the presumption that
she received the final decision letter 5 days after the agency placed it in the mail
stream. ID at 5. We agree.
¶8 The date of the letter advising the appellant of the agency’s decision finding
her ineligible for FERS survivor or death benefits was May 1, 2021. IAF, Tab 1
at 10. She claimed on the appeal form that she received the decision letter on
June 28, 2021, fifty-nine days after its issuance. IAF, Tab 1 at 4. On August 26
and September 28, 2021, the administrative judge ordered the appellant to file
4
Although the appellant claims that she received documents after the due date because
of an incorrect mailing address, PFR File, Tab 1 at 9, 13, she is not addressing her
receipt of OPM’s final decision. Instead, it appears that she is conflating the
October 12, 2021 filing deadline in the administrative judge’s order dated
September 28, 2021, and initial decision dated October 13, 2021, that she received on
October 15, 2021. Id. at 14; ID at 1; IAF, Tab 13.
5
evidence and argument showing either that her appeal was timely filed or that
good cause existed for the delay. IAF, Tabs 3, 8. The administrative judge
acknowledged that she indicated that she received the final decision late,
there were discrepancies in her mailing address, and she addressed the good cause
for her delay. ID at 5; IAF, Tab 8 at 3-4. However, he requested additional
details and evidence to prove when she received the decision. IAF, Tab 8 at 4.
The appellant, however, resubmitted her previous response that only addressed
the good cause for her delay and not when she received the final decision. IAF,
Tab 9. Therefore, the appellant cannot meet her burden on timeliness.
Hubbard v. Merit Systems Protection Board, 605 F.3d 1363, 1366 (Fed. Cir.
2010) (finding that the pro se appellant’s failure to respond to an order “directing
her to ‘file evidence and argument demonstrating that the appeal was timely filed
or that good cause existed for the delay’ justified the administrative judge’s
conclusion that her appeal was untimely and should be dismissed ”). Thus, the
administrative judge properly presumed that she received the final decision on
May 6, 2021. ID at 5. Consequently, the deadline for filing this appeal was
June 7, 2021. 5 See 5 C.F.R. § 1201.22(b). The appellant filed her appeal on
July 19, 2021, approximately 42 days late. IAF, Tab 1. Therefore, we discern no
basis to disturb the administrative judge’s finding that the appeal was untimely
filed.
The appellant has not established good cause for her untimeliness.
¶9 As the administrative judge correctly noted, an untimely appeal will be
dismissed as untimely filed unless good cause for the delay is shown, and the
appellant has the burden of establishing by preponderant evidence that h er appeal
was timely filed or that good cause existed for the belated filing. 5 C.F.R.
§§ 1201.22(c), 1201.56(2)(i)(B). To establish good cause for the untimely filing
5
The 30th day from May 6, 2021, was Saturday, June 5, 2021. Thus, to be timely, the
appellant’s appeal had to be filed by Monday, June 7, 2021. See 5 C.F.R. § 1201.23.
6
of an appeal, a party must show that she exercised due diligence or ordinary
prudence under the particular circumstances of the case. Pirkkala, 123 M.S.P.R.
288, ¶ 13. To determine whether an appellant has shown good cause, the Board
will consider the length of the delay, the reasonableness of h er 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. 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).
¶10 Applying the relevant factors set forth in Moorman, we find that the
appellant has not made a showing of good cause. Although the appellant was pro
se, a 42-day delay in filing is significant. Dow v. Department of Homeland
Security, 109 M.S.P.R. 633, ¶ 8 (2008) (finding a pro se appellant’s delay of more
than 1 month significant). Further, we find that the appellant’s inability to secure
an attorney is not good cause for an untimely filing. IAF, Tab 4 at 3, Tab 9 at 2;
see Houghton v. Department of the Army, 55 M.S.P.R. 682, 684 (1992) (finding
the inability to secure legal counsel does not establish good cause for an untimely
filing).
¶11 The appellant also reasserts on review that the death of her father and her
subsequent grief were factors in her untimeliness and constitute good cause.
PFR File, Tab 4 at 1-2; IAF, Tab, 4 at 3, Tab 9 at 2. Specifically on review
she claims that “[she] was a mental wreck. . . .[and] incapacitated for 6 weeks and
incapable of dealing with anything else.” PFR File, Tab 3 at 3. However,
she also states on review that her father died on July 16, 2021, which was 39 days
after the filing deadline and just 3 days before she filed her appeal. PFR File,
Tab 3 at 13; IAF, Tab 1 at 2. While we are sympathetic toward her situation,
her father’s death and her subsequent grief does not show how the appellant was
unable to meet the June 7, 2021 filing deadline. Thus, under the circumstances of
7
this case, we find that the appellant has failed to show that she exercised due
diligence or ordinary prudence that would justify waiving the filing deadline.
¶12 Accordingly, we deny the appellant’s petition for review and affirm the
initial decision, which dismissed her appeal as untimely filed without good cause
shown.
NOTICE OF APPEAL RIGHTS 6
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 case s 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
6
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.
8
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. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision befor e
9
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
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
10
(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. 7 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.
7
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.
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.
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.