Opinion

Tracey A Martin v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Aug 16, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TRACEY A. MARTIN, DOCKET NUMBER

Appellant, DC-0845-20-0640-I-1

OFFICE OF PERSONNEL DATE: August 16, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Tracey A. Martin , Potomac, Maryland, pro se.

Alison Pastor , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

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). For the reasons set forth below, the

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

appellant’s petition for review is DISMISSED as untimely filed without good

cause shown. 5 C.F.R. § 1201.114(e), (g).

BACKGROUND

On May 28, 2020, the appellant electronically filed an appeal from a

February 6, 2020 final decision issued by OPM that concluded she was overpaid

civil service annuity benefits under the Federal Employees’ Retirement System.

Initial Appeal File (IAF), Tab 1. The administrative judge issued the initial

decision on June 11, 2020, dismissing the appeal as untimely filed. IAF Tab 4,

Initial Decision (ID). The decision included instructions indicating that it would

become final on July 16, 2020, unless a petition for review was filed by that date.

ID at 4. Because the appellant was a registered e-filer during the adjudication of

the initial appeal, the decision was served on her electronically. IAF, Tab 1

at 1-2, Tab 5.

The appellant filed her petition for review on August 7, 2020, twenty-two

days after the filing deadline. Petition for Review (PFR) File, Tab 1 at 86. The

appellant stated that she did not receive the initial decision until July 29, 2020,

when it was mailed to her home by her U.S. Senator’s office on July 22, 2020.

Id. at 8-9. On August 26, 2020, 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 no later than September 10, 2020. PFR File, Tab 3 at 2. To assist

the appellant, the Acting Clerk of the Board attached a “Motion to Accept Filing

as Timely and/or to Ask the Board to Waive or Set Aside the Time Limit” form.

Id. at 7-8. The appellant did not respond to the acknowledgment letter. The

agency has filed a response to the appellant’s petition for review. PFR File,

Tab 5.

DISCUSSION OF ARGUMENTS ON REVIEW

A petition for review generally must be filed within 35 days after the date

the initial decision is issued or, if the party filing the petition shows that the

initial decision was received more than 5 days after it was issued, within 30 days

after the party received the initial decision. 5 C.F.R. § 1201.114(e). The Board

will waive the time limit for filing a petition for review only upon a showing of

good cause for the delay in filing. 5 C.F.R. § 1201.114(g). The party who

submits an untimely filing has the burden of establishing good cause for the

untimeliness by showing 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 a party has shown

good cause, the Board will consider the length of the delay, the reasonableness of

his excuse and the party’s 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).

On review, the appellant claims that she did not become aware of the

issuance of the initial decision until July 29, 2020, when it was mailed to her

home by her U.S. Senator’s office. PFR File, Tab 1 at 8-9. As a registered

e-filer, however, the appellant consented to accept electronic service of pleadings

filed by other registered e-filers and documents issued by the Board. 5 C.F.R.

§ 1201.14(e)(1) (2020). When Board documents are issued, an email message is

sent to e-filers that notifies them of the issuance and that contains a link to

e-Appeal where the document can be viewed and downloaded; paper copies of

these documents are not ordinarily served on e-filers. 5 C.F.R. § 1201.14(j)(1)

(2020). E-filers are responsible for ensuring that email from @mspb.gov is not

blocked by filters and for monitoring case activity at e-Appeal to ensure that they

have received all case-related documents. 5 C.F.R. § 1201.14(j)(2)-(3) (2020).

Further, Board documents served electronically on registered e-filers are deemed

received on the date of electronic submission. 5 C.F.R. § 1201.14(m)(2) (2020).

When a statute or regulation “deems” something to be done or to have been done,

the event is considered to have occurred whether or not it actually did. Lima v.

Department of the Air Force, 101 M.S.P.R. 64, ¶ 5 (2006). The certificate of

service reflects that the initial decision was electronically served on the appellant

on June 11, 2020. IAF, Tab 5. Therefore, the appellant is considered to have

received the initial decision on June 11, 2020. ID at 1; IAF, Tab 5.

As noted above, the Board will waive the time limit for filing a petition for

review only upon a showing of good cause for the delay in filing. Via v. Office of

Personnel Management, 114 M.S.P.R. 632, ¶ 5 (2010); 5 C.F.R. § 1201.114(g).

Here, we find that the appellant has not shown good cause for the untimely filing

of her petition for review. The appellant’s delay of 22 days, while not a vast

amount of time, is not a de minimis period either. See Hodges v. Office of

Personnel Management, 101 M.S.P.R. 212, ¶ 14 (2006) (holding that an

appellant’s 23-day refiling delay was “not particularly de minimis . . . [and] not

particularly lengthy”); Crozier v. Department of Transportation, 93 M.S.P.R.

438, 441 (2003) (finding a 13-day delay not minimal). Although the appellant’s

pro se status is a factor weighing in her favor, it is insufficient to excuse her

untimeliness. See Allen v. Office of Personnel Management, 97 M.S.P.R. 665,

¶¶ 8, 10 (2004) (declining to excuse a pro se appellant’s 14-day, unexplained

delay in filing a petition for review). The appellant failed to allege any

circumstances beyond her control that prevented her from filing on time. She did

not provide any reasonable explanations for the delay. Further, she failed to

respond to the Clerk’s notice requiring her to explain the delay in filing her

petition for review. Although the appellant stated that she had trouble receiving

mail to her home address, she provided evidence showing that she sent and

received emails from OPM. PFR File, Tab 1 at 8, 12-17. Thus, she should have

received the email message from the Board when the initial decision was issued.

In addition, as an e-filer, it was her responsibility to routinely monitor e-Appeal

for case activity. These combined factors make the delay inexcusable. For the

above reasons, we conclude that the appellant did not establish that she exercised

due diligence or ordinary prudence under the particular circumstances of her case,

and therefore did not establish good cause for the untimely filing of her petition

for review.

Accordingly, 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, which dismissed her appeal of

OPM’s final decision as untimely filed, remains the final decision of the Board. 2

Since filing her petition for review, the appellant sought review of the Board’s initial

decision with the U.S. Court of Appeals for the Federal Circuit. The court found that

the initial decision was final and affirmed the administrative judge’s dismissal of the

appeal as untimely filed without good cause shown. Martin v. Merit Systems Protection

Board, No. 2020-2183, 2021 WL 4130640 (Fed. Cir. Sept. 10, 2021). As such,

assuming that the petition for review had been timely filed or that good cause existed

for the delay, the Board would dismiss the appeal as barred by collateral estoppel.

The Board may find an appeal untimely filed based on collateral estoppel. Peartree v.

U.S. Postal Service, 66 M.S.P.R. 332, 340-41 (1995). Collateral estoppel, or issue

preclusion, is appropriate when: (1) the issue is identical to the one involved in the

prior action; (2) the issue was actually litigated in the prior action; (3) the determination

on the issue in the prior action was necessary to the resulting judgment; and (4) the

party against whom issue preclusion is sought had a full and fair opportunity to litigate

the issue in the prior action, either as a party to the earlier action or as one whose

interests were otherwise fully represented. McNeil v. Department of Defense, 100

M.S.P.R. 146, ¶ 15 (2005). Here, the timeliness issue is identical. Timeliness was

litigated in the court case, and the determination of that issue was necessary to the

decision. Moreover, as a party to that appeal, her interests were fully represented.

Thus, we find the prerequisites for collateral estoppel have been satisfied. Although

collateral estoppel had not been raised as a defense, the Board has held that it may raise

the issue of collateral estoppel sua sponte if it is on notice that the issue was previously

decided, and Board resources have been spent addressing the issue. See Killeen v.

Office of Personnel Management, 106 M.S.P.R. 666, ¶¶ 9-11 (2007), vacated and

remanded on other grounds, 558 F.3d 1318 (Fed. Cir. 2009); see also Stearn v.

Department of the Navy, 280 F.3d 1376, 1380-81 (Fed. Cir. 2002) (holding that raising

a preclusion defense sua sponte might be appropriate in special circumstances, “[m]ost

notably, ‘if a court is on notice that it has previously decided the issue presented, the

court may dismiss the action sua sponte, even though the defense has not been

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).

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:

raised.’”).

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.

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

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

(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. 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