Opinion

Beth Bennett v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Apr 24, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 40.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BETH ANN BENNETT, DOCKET NUMBER

Appellant, PH-844E-24-0401-I-1

OFFICE OF PERSONNEL DATE: April 24, 2026

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Allan J. Ray , Esquire, Pottstown, Pennsylvania, for the appellant.

Eva Ukkola , Linette Scott , and Latina Sanders , Washington, D.C.,

for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

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

affirmed the reconsideration decision of the Office of Personnel Management

denying her disability retirement application on timeliness grounds. Among her

arguments presented on review, the appellant challenges the administrative

judge’s findings about how untimely her disability retirement application was as

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

well as the administrative judge’s weighing of an August 2024 Social Security

Disability decision. The appellant also suggests that the administrative judge

should have been disqualified from adjudicating this 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. 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).

Once again, we have considered the appellant’s arguments about the merits

of her appeal, including ones about the precise date of her untimely application

for disability retirement and the relevance of a Social Security Disability

decision. E.g., Petition for Review (PFR) File, Tab 1 at 9. However, we find no

basis for reaching a conclusion different than that of the administrative judge.

Regarding the former, we further note that the appellant’s argument is largely

based upon years-old emails submitted for the first time on review. Id. at 18-20.

We need not consider that evidence because the appellant has not shown that it

was previously unavailable. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211,

213-14 (1980) (under 5 C.F.R. § 1201.115, the Board generally will not consider

evidence submitted for the first time with a petition for review absent a showing

that it was unavailable before the record was closed before the administrative

judge despite the party’s due diligence).

Turning to the appellant’s argument about the administrative judge and

disqualification, we recognize that the administrative judge disclosed to the

parties that she had previously worked on a mediation involving the appellant in a

separate case, years earlier. Initial Appeal File, Tab 16. On review, the appellant

suggests she was deprived of an opportunity to file a motion to disqualify because

the administrative judge did not divulge this until the hearing. PFR File, Tab 1

at 3-4. However, we discern no reason why the appellant could not have moved

to disqualify the administrative judge at the time of the hearing or during

subsequent months, before the administrative judge issued the initial decision.

For that reason, this new argument about disqualification appears to be an

untimely one that we need not consider. Banks v. Department of the Air Force,

4 M.S.P.R. 268, 271 (1980) (the Board generally will not consider an argument

raised for the first time in a petition for review absent a showing that it is based

on new and material evidence not previously available despite the party’s due

diligence). In any event, we do not find that the administrative judge’s work as a

Board mediator in a prior case of the appellant’s required disqualification in this

case. 2 See generally Baker v. Social Security Administration , 2022 MSPB 27,

¶¶ 7, 20 (discussing the Board’s disqualification standards where an

administrative judge’s impartiality might reasonably be questioned, as well as the

Board’s standards regarding claims of actual bias).

Through her attorney, the appellant indicated that they were unsure of the

administrative judge’s role in the mediation of a prior case. However, the Board’s

records seem to answer that question. The administrative judge in this appeal was the

mediator in the appellant’s appeal against the Department of Defense, regarding the

appellant’s removal from that agency, which settled in or around June 2020. Bennett v.

Department of Defense, MSPB Docket No. PH-0752-20-0042-I-1, Initial Appeal File,

Tab 8.

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).

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. 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