Julie A. Madarang v. Office of Personnel Management

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JULIE A. MADARANG, DOCKET NUMBER

Appellant, SF-0831-14-0267-I-1

v.

OFFICE OF PERSONNEL DATE: August 4, 2014

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Julie A. Madarang, Olongapo City, Zambales, Philippines, pro se.

Patrick Jennings, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

dismissed her survivor annuity benefits appeal as untimely filed with no good

cause shown for the delay. Generally, we grant petitions such as this one only

when: the initial decision contains erroneous findings of material fact; the initial

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 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. See 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, and based on the following points and authorities, 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).

¶2 The appellant first applied for survivor annuity benefits based on the federal

service of her late husband in 2004. Initial Appeal File (IAF), Tab 5 at 40. The

Office of Personnel Management (OPM) denied that application by letter dated

October 22, 2004. Id. at 39. The appellant applied for survivor annuity benefits a

second time in January 2011. Id. at 27-31. OPM denied that application in initial

and reconsideration decisions. Id. at 5-6, 24-26. OPM’s reconsideration decision

dated November 5, 2013, included notice to the appellant of her right to file a

Board appeal within 30 days after the date of the decision or 30 days after receipt

of the decision, whichever was later. Id. at 5-6.

¶3 The appellant filed a Board appeal challenging the denial of her application

on January 13, 2014. Id. at 1-5. In her initial appeal, the appellant alleged that

she received OPM’s reconsideration decision on either November 25, 2013, or

November 28, 2013. IAF, Tab 1 at 2, 4. The administrative judge issued an

acknowledgment order directing the appellant to file evidence and argument

showing that her appeal was timely or that good cause existed for the delay. IAF,

Tab 2 at 2-3. Although the appellant submitted evidence in response to the

3

administrative judge’s order, her evidence did not relate to the timeliness issue.

IAF, Tabs 6-9. The administrative judge issued an initial decision dismissing the

appeal as untimely filed. IAF, Tab 10, Initial Decision (ID). The administrative

judge found that the appellant’s appeal was untimely because the postmark date

on her appeal was more than 30 days after the November 28, 2013 date that the

appellant stated she had received OPM’s letter, and that the appellant failed to

establish good cause for her filing delay. ID at 3-4.

The appellant has failed to show good cause for the delay in filing her appeal.

¶4 The administrative judge found that the appellant’s appeal was filed 16 days

after the filing deadline. ID at 4. We agree with this finding because the

appellant claims that she received OPM’s letter on November 25, 2013, or

November 28, 2013, but her appeal is postmarked January 13, 2014. IAF, Tab 1

at 2-4, 19. The postmark date of January 13, 2014, is 46 days after the

November 28, 2013 later receipt date and 16 days after the 30-day time limit for

filing an appeal. 5 C.F.R. § 1201.22.

¶5 The appellant has the burden of proof to show the timeliness of her appeal

or good reason for the delay. 5 C.F.R. § 1201.56(a)(2)(ii). To establish good

cause for the untimely filing of an appeal, a party must show that she 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 her 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).

4

¶6 The appellant does not specifically address the reason for her untimely

filing. She states that she found a document in December 2013 that showed that

her deceased husband honorably retired as a civilian employee of the U.S. Naval

Base. IAF, Tab 7 at 1; see, e.g., IAF, Tab 1 at 16. However, the appellant does

not indicate the exact date she discovered the document or how this discovery

might have affected the timeliness of her appeal. IAF, Tab 7 at 1.

¶7 The appellant submitted additional evidence on petition for review. Petition

for Review (PFR) File, Tabs 1, 4. Because the appellant has not shown that the

evidence submitted on petition for review is new and material evidence not

previously available despite her due diligence, we need not consider this

evidence. See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).

In any event, the evidence is duplicative of evidence previously submitted. 2 See

IAF, Tab 1 at 14-18, Tab 5 at 23, Tab 7 at 1. Additionally, the evidence does not

address the issue of timeliness and instead relates to the merits of the OPM

decision. PFR File, Tab 1, Tab 4.

¶8 Because the appellant has failed to show due diligence in the filing of her

appeal, she has not established good cause for her late filing. See White v.

Department of Justice, 103 M.S.P.R. 312, ¶ 10 (2006), aff'd, 230 F. App’x 976

(Fed. Cir. 2007) (dismissing an appeal as untimely when the appellant did not

establish good cause for 5-day filing delay).

The appellant’s claims concerning her late husband’s military service are not

properly before the Board in this appeal.

¶9 The appellant contends that her late husband was a veteran who should not be

discriminated against. IAF, Tab 6 at 3. Additionally, she argues that her late

husband was in the military and is covered by the Uniformed Services

2

The appellant has submitted a February 19, 2014 affidavit on petition for review that

was not previously submitted. PFR File, Tab 4. However, this affidavit is

substantively identical to the February 18, 2014 affidavit that she previously submitted

before the administrative judge. IAF, Tab 7.

5

Employment and Reemployment Rights Act of 1994 (codified at 38 U.S.C.

§§ 4301-4333) (USERRA). IAF, Tab 1 at 4. To the extent that the appellant

alleges claims under the Veterans Employment Opportunities Act of 1998

(VEOA) and USERRA regarding OPM’s denial of her application for survivor

benefits, the Board does not address the merits of these claims because, as

previously discussed, the appellant’s appeal against OPM is untimely. 5 C.F.R.

§ 1201.22. To the extent that the appellant is alleging that her late husband’s

employing agency violated his veterans’ preference rights or discriminated

against him based on his uniformed service, she would need to raise such claims

in a separate appeal against the employing agency. We take no position on

whether the Board would have jurisdiction over any such appeal.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United

States Court of Appeals for the Federal Circuit. You must submit your request to

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

The court must receive your request for review no later than 60 calendar

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.

27, 2012). If you choose to file, be very careful to file on time. The court has

held that normally it does not have the authority to waive this statutory deadline

and that filings that do not comply with the deadline must be dismissed. See

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to

court, you should refer to the federal law that gives you this right. It is found in

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.

6

Dec. 27, 2012). You may read this law as well as other sections of the United

States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.

Additional information 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, and 11.

If you are interested in securing pro bono representation for your court

appeal, you may visit our website at http://www.mspb.gov/probono for a list of

attorneys who have expressed interest in providing pro bono representation for

Merit Systems Protection Board appellants before the court. The Merit Systems

Protection Board neither endorses the services provided by any attorney nor

warrants that any attorney will accept representation in a given case.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.