Opinion

Clarence Rivers v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Feb 20, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 34.1%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CLARENCE RIVERS, DOCKET NUMBER

Appellant, AT-844E-23-0604-I-1

OFFICE OF PERSONNEL DATE: February 20, 2025

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Clarence Rivers , Orange Park, Florida, pro se.

Shaquita Stockes and Linnette Scott , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Henry J. Kerner, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed his appeal of the reconsideration decision of the Office of Personnel

Management (OPM) as untimely filed. Generally, we grant petitions such as this

one only in the following circumstances: the initial decision contains erroneous

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 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 and AFFIRM the initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

On June 22, 2023, OPM issued a reconsideration decision, which denied

the appellant’s application for disability retirement benefits. Initial Appeal File

(IAF), Tab 2 at 2-9. The reconsideration decision informed the appellant that he

had 30 days either after the date of the decision or after receipt of the decision,

whichever was later, to appeal to the Board. Id. at 9. The record shows that the

appellant received OPM’s decision at the U.S. post office on June 27, 2023. IAF,

Tab 6 at 14-16. On August 7, 2023, the appellant filed a Board appeal of OPM’s

reconsideration decision and requested a hearing. IAF, Tab 1. The

administrative judge issued a timeliness order that ordered the appellant to show

that his initial appeal was timely filed or that good caused existed for the delay.

IAF, Tab 8. On September 6, 2023, having not received a response to the

timeliness order from the appellant, the administrative judge dismissed the appeal

as untimely filed without good cause shown. IAF, Tab 9, Initial Decision (ID)

at 1-3.

The appellant has submitted an untimely petition for review and a motion

to accept the petition as timely or waive the time limit. Petition for Review

(PFR) File, Tabs 1-3. The agency has not responded.

For the following reasons, we find that the appellant has not established a

basis for disturbing the initial decision. In light of this determination, we do not

reach the issue of the timeliness of his petition for review. To the extent he is

arguing that he did not timely receive the initial decision, such an argument has

no bearing on whether he demonstrated good cause for untimely filing his initial

appeal. PFR File, Tab 3 at 3.

On review, the appellant also argues that he did not receive the

administrative judge’s timeliness order as an explanation for not responding to

the administrative judge. PFR File, Tab 1 at 1-2, Tab 3 at 3. Even assuming this

argument, his substantive rights have not been prejudiced because the Board is

considering all relevant arguments regarding timeliness here.

With exceptions not applicable here, the deadline for filing an appeal is

30 days after the effective date, if any, of the action being appealed, or 30 days

after the date of the appellant’s receipt of the agency’s decision, whichever is

later. 5 C.F.R. § 1201.22(b)(1). It is undisputed that the appellant timely

received the June 22, 2023 reconsideration decision. IAF, Tab 1 at 9. He has not

challenged the agency’s evidence showing delivery of the decision on June 27,

2023. IAF, Tab 6 at 15. Therefore, his appeal was due by July 27, 2023. See

5 C.F.R. § 1201.22(b)(1). Accordingly, the administrative judge correctly

determined that the August 7, 2023 appeal was untimely filed by 11 days.

ID at 2-3.

The Board will dismiss any untimely filed appeal unless 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

appeal. 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).

Despite the appellant’s pro se status at the time he filed his appeal, the

11-day delay was not minimal. Scott v. Social Security Administration,

110 M.S.P.R. 92, ¶ 8 (2008) (finding an 11-day delay in filing was not minimal,

even considering the appellant’s status). Additionally, the appellant’s delay in

filing the appeal to procure medical evidence documentation does not warrant a

waiver of the filing deadline. PFR File, Tab 3 at 3; see Fitzhugh v. Office of

Personnel Management, 54 M.S.P.R. 522, 524 (1992). We have considered the

appellant’s assertion that he had problems logging onto e-Appeal that prevented

him from timely filing the initial appeal. PFR File, Tab 1 at 1, Tab 3 at 3.

Though we acknowledge that the appellant may have tried to contact a Board

office for assistance without success, OPM’s reconsideration decision provided

the mailing address for the Board’s Atlanta Regional Office and a copy of the

Board’s regulations, and he has not shown why he could not have pursued

alternate means to submit his appeal, such as by facsimile or mail, before the

filing deadline. IAF, Tab 2 at 9; see 5 C.F.R. § 1201.22(d); see also Schuringa v.

Department of Treasury, 106 M.S.P.R. 1, ¶ 9 (2007) (determining the appellant

was not excused from filing his initial appeal 4 days late even though he asserted

that he contacted the Board to request an extension of time but an unspecified

person at the Board allegedly informed him the Board would not grant such a

request); Moses v. Office of Personnel Management, 11 M.S.P.R. 68, 69-70

(1982) (declining to excuse a 5-day filing delay based on a pro se appellant’s

inability to see an attorney or to understand his appeal rights, and him not

noticing the deadline for filing a petition for review set forth in the initial

decision).

We have considered the arguments the appellant raises on review, but we

find that he has not established good cause for waiver of the 30-day limit for

filing an initial Board appeal.

NOTICE OF APPEAL RIGHTS 2

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).

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.

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. 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. 3 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