Opinion

Joe T Meraz v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Feb 21, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 34.1%

declining to reach the issue of whether OPM abused its discretion where the appellant did not show that she was prevented from timely filing her request for reconsideration and it was undisputed that she was aware of the time limit

How later courts described this case

declining to reach the issue of whether OPM abused its discretion where the appellant did not show that she was prevented from timely filing her request for reconsideration and it was undisputed that she was aware of the time limit

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JOE T. MERAZ, DOCKET NUMBER

Appellant, DE-0841-24-0046-I-1

OFFICE OF PERSONNEL DATE: February 21, 2025

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Joe T. Meraz , Tularosa, New Mexico, pro se.

Eva Ukkola and Alison Pastor , 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

affirmed the final decision of the Office of Personnel Management (OPM)

dismissing his reconsideration request as untimely filed. On petition for review,

the appellant reargues the merits of OPM’s decision regarding the proper

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

computation of his annuity payment and reiterates his request for a hearing on his

appeal. Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains 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 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.

Upon consideration of the appellant’s arguments and review of the record

evidence, we conclude that the appellant’s arguments do not show error in the

administrative judge’s findings that the appellant’s request for reconsideration

was untimely filed by over 8 months and that the appellant did not show that he

was not notified of the time limit to file a request for reconsideration, and was not

otherwise aware of it, or that he was prevented by circumstances beyond his

control from making the request within the time limit. Initial Appeal File (IAF),

Tab 6, Initial Decision (ID) at 1-5; see Cerezo v. Office of Personnel

Management, 94 M.S.P.R. 81, ¶ 7 (2003) (providing that OPM has discretion to

extend the time limit for filing a request for reconsideration but only when the

individual shows that he was not notified of the time limit and was not otherwise

aware of it or that he was prevented by circumstances beyond his control from

making the request within the time limit); 5 C.F.R. § 831.109(e)(2). Because the

administrative judge correctly concluded that the appellant failed to meet his

initial burden under 5 C.F.R. § 831.109(e)(2), he did not need to address whether

OPM’s actions were unreasonable or an abuse of discretion. See Azarkhish v.

Office of Personnel Management, 915 F.2d 675, 678 (Fed. Cir. 1990) (declining

to reach the issue of whether OPM abused its discretion where the appellant did

not show that she was prevented from timely filing her request for reconsideration

and it was undisputed that she was aware of the time limit); Davis v. Office of

Personnel Management, 104 M.S.P.R. 70, ¶ 7 (2006) (noting that the Board will

not reach the issue of whether OPM was unreasonable or abused its discretion in

denying an applicant’s untimely reconsideration request if he does not make his

initial showing under 5 C.F.R. § 831.109(e)(2)). Accordingly, we vacate the

administrative judge’s alternative finding to this effect. Therefore, we DENY the

petition for review. Except as expressly MODIFIED to VACATE the

administrative judge’s finding that the appellant failed to prove that OPM abused

its discretion or acted unreasonably, we AFFIRM the initial decision. 2

NOTICE OF APPEAL RIGHTS 3

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 may obtain

The appellant argues on review that his response to the administrative judge’s close of

record order should have been deemed timely received based on the fact that it was

postmarked prior to the record on timeliness closing and that the administrative judge

erred by failing to consider the response before issuing the initial decision. Petition for

Review File, Tab 1 at 1. Even if we were to consider the pleading, it would not warrant

reaching a different result. The additional argument and evidence the appellant

provided in his close of record response concerned the merits of OPM’s determination

in its initial decision and did not address the issue of the timeliness of the appellant’s

reconsideration request. IAF, Tab 7 at 1-2. Additionally, all of the evidence the

appellant provided with this response was already included in the record and was

considered by the administrative judge and therefore is not new. ID at 3-4; compare

IAF, Tab 1 at 9-49, with Tab 7 at 3-37; see Meier v. Department of the Interior,

3 M.S.P.R. 247, 256 (1980) (explaining that evidence submitted to, and considered by,

an administrative judge does not meet the criteria of “new” evidence warranting

review). Accordingly, the appellant’s substantive rights have not been prejudiced by

any error by the administrative judge in this regard. See Panter v. Department of the

Air Force, 22 M.S.P.R. 281, 282 (1984).

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.

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:

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 following