The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CYNTHIA A. FRY, DOCKET NUMBER
Appellant, CH-0831-14-0467-I-1
v.
OFFICE OF PERSONNEL DATE: February 3, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Roger M. Driskill, Esquire, Liberty, Missouri, for the appellant.
Karla W. Yeakle, 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 finding
that the Office of Personnel Management (OPM) did not abuse its discretion in
dismissing her request for reconsideration as untimely. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
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 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. As set forth below by this Final Order, we
AFFIRM the initial decision in part, and VACATE the initial decision in part.
¶2 OPM issued an initial decision dated July 31, 2012, determining that the
appellant was not entitled to survivor benefits under Civil Service Retirement
System because: (1) the language of her divorce decree was insufficient to
identify her deceased ex-husband’s retirement system in accordance with 5 C.F.R.
§ 838.611; and (2) a former spouse who remarries before the age of 55,
irrevocably loses entitlement to survivor benefits in accordance 5 C.F.R.
§ 838.732. 2 Initial Appeal File (IAF), Tab 7 at 10. In the instructions enclosed
with the initial decision, OPM informed the appellant that she could dispute the
decision by requesting reconsideration within 30 calendar days of the date of
OPM’s initial decision. Id. at 10-11. The instructions also explained that OPM
could extend the 30-day time limit if the appellant could show that she was not
notified of the time limit and was not otherwise aware of it or she was prevented
from responding by a cause beyond her control. Id. at 11. To be timely, OPM
2
The appellant’s application for death benefits indicates that she remarried before the
age of 55. Initial Appeal File, Tab 7 at 12-13.
3
had to receive the appellant’s request for reconsideration by August 30, 2012.
See 5 C.F.R. § 831.109(e)(1).
¶3 The appellant filed a request for reconsideration of OPM’s July 31, 2012
initial decision, and her request had a November 8, 2012 postmark, which was
70 days after the August 30, 2012 time limit. IAF, Tab 7 at 5-7, 9. OPM issued a
final decision on March 13, 2014, which dismissed the appellant’s request for
reconsideration as untimely. Id. at 5. In the decision, OPM stated that the
appellant did not provide sufficient argument and/or evidence to justify extending
the time limit for filing under 5 C.F.R. § 831.109(e). Id.
¶4 The appellant, through her attorney representative, filed an appeal with the
Board challenging OPM’s final decision dismissing her request for
reconsideration as untimely. IAF, Tab 1. The administrative judge issued a show
cause order setting forth the regulation concerning timely requests for
reconsideration. IAF, Tab 9. In response, the appellant explained that she
received OPM’s July 31, 2012 decision, and she immediately contacted her
divorce attorney to obtain the court order needed “to satisfy OPM regarding
survivor benefits.” IAF, Tab 10 at 6. She stated that the court issued the required
order on September 18, 2012, which she sent to OPM with her request for
reconsideration postmarked November 8, 2012. Id. The appellant argued that she
was unaware of the filing time limit and that overwhelming personal
circumstances beyond her control prevented her from filing a timely request for
reconsideration. 3 Id. at 6-7.
¶5 The administrative judge issued an order and summary of the prehearing
conference, in which she cancelled the hearing and found that OPM notified the
3
Among other things, she stated that she had rotator cuff surgery, her house burnt
down, and her son faced arson charges, 5 to 6 months before she received OPM’s
July 31, 2012 initial decision. IAF, Tab 10 at 6-7. She also stated that she moved a
couple times in 2010 and 2011, she spent time traveling between Oklahoma and
Missouri to visit her son and make appearances at his arson hearings in 2012 and 2013,
and she had custody of her grandson. I d. at 4-5.
4
appellant of the 30-day filing deadline, and the appellant acknowledged that OPM
sent its July 31, 2012 initial decision to her correct address. IAF, Tab 12 at 3.
The administrative judge found that the appellant alleged that, due to ongoing
stress, she failed to appreciate the 30-day deadline for requesting reconsideration;
however, she “did not allege that a specific event prevented her from filing her
appeal.” Id. The administrative also found that the appellant had not alleged
that: “she was hospitalized, incapacitated, ill, or unable to pay her bills or
manage her own affairs during the filing period.” Id. The appellant’s attorney
did not notify the administrative judge of any corrections to the summary
although he was advised that, in the absence of such notice, the rulings in the
order were final and not subject to modification, without a showing of good
cause. Id. at 3-4. Although the administrative judge also granted the appellant’s
request to amend her appeal and submit an additional pleading by July 8, 2014,
the appellant did not exercise that option. Id. at 3.
¶6 Based on the written record, the administrative judge issued an initial
decision finding that OPM did not abuse its discretion in dismissing the
appellant’s request for reconsideration as untimely. IAF, Tab 14, Initial Decision
(ID) at 3. In support of his decision, the administrative judge restated the
findings set forth in her prehearing conference summary and order. ID at 2-3;
IAF, Tab 12 at 2-3.
¶7 The appellant filed a timely pro se petition for review of the administrative
judge’s decision arguing, for the first time on review, that it was her divorce
attorney’s fault that her request for reconsideration was untimely. 4 Petition for
Review (PFR) File, Tab 1. With permission from the Board, the appellant also
filed a supplement to her petition for review. PFR File, Tabs 3-4, 6. The agency
4
The appellant is representing herself on review because the attorney she used for her
appeal is no longer representing her. PFR File, Tab 1 at 3. She states that she had help
typing her petition for review because of her dyslexia. I d.
5
filed a response in opposition to the appellant’s petition, and the appellant
replied. PFR File, Tabs 7-8.
¶8 OPM must receive a request for reconsideration of an OPM initial decision
regarding retirement benefits within 30 calendar days from the date of the initial
decision. 5 C.F.R. § 831.109(e)(1). Pursuant to 5 C.F.R. § 831.109(e)(2), OPM
could extend that time limit if the applicant could show that: (i) she was not
notified of the time limit and was not otherwise aware of it, or (ii) she was
prevented from responding by a cause beyond her control. IAF, Tab 6 at 14; see
5 C.F.R. § 831.109(e)(2); see also Azarkhish v. Office of Personnel Management,
915 F.2d 675, 677 (Fed. Cir. 1990). The good cause standard that the Board
applies to untimely filed Board appeals is a more lenient standard than the
narrower factual criteria under 5 C.F.R. § 831.109(e)(2). Azarkhish, 915 F.2d
at 677 n.1. Applying the criteria in 5 C.F.R. § 831.109(e)(2), we find that the
appellant does not argue on review that OPM failed to notify her of the filing time
limit. Accordingly, the issue before the Board is whether the appellant satisfied
the second regulatory criterion for an extension of the time limit. See 5 C.F.R.
§ 831.109(e)(2).
¶9 For the first time on review, the appellant submits a January 29, 2014
workers’ compensation conference notice and a cell phone call log from
October 2012. PFR File, Tab 6. The appellant has not shown that these
documents, which predate the filing of her appeal, or the information contained in
those documents, were unavailable before the record closed despite her due
diligence. Therefore, the Board will not consider this evidence. See Avansino v.
U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (under 5 C.F.R. § 1201.115, the
Board will not consider evidence submitted for the first time with the petition for
review absent a showing that it was unavailable before the record was closed
despite the party’s due diligence).
¶10 The appellant also submits, for the first time on review, her October 2014
neurological assessment showing that she had a mild neurocognitive disorder and
6
required assistance in tasks requiring reading at the 4 th grade level because of her
previously diagnosed learning disorder. PFR File, Tab 6 at 4, 6. The
psychologist stated, among other things, that the appellant is a high school
graduate with depression and attention deficit hyperactivity disorder, reported
suffering head trauma, and described “problems with cognition and behavior that
have been present since approximately 2010.” Id. at 6. The appellant submits the
psychologist’s assessment to demonstrate that, because of her severe dyslexia, she
was unable to comprehend OPM’s July 31, 2012 decision and had to rely entirely
on her attorney to file a request for reconsideration. 5 PFR File, Tab 1 at 3.
¶11 However, to constitute new and material evidence, the information
contained in the documents, not just the documents themselves, must have been
unavailable despite due diligence when the record closed and the appellant has
not made that showing here. See Grassell v. Department of Transportation,
40 M.S.P.R. 554, 564 (1989). The appellant does not argue that she was
previously unaware of the conditions identified in her neurological assessment.
Moreover, even considering this evidence, we would still affirm OPM’s dismissal
because the appellant has not shown that the neurological conditions or any other
circumstances interfering with her ability to file her request for reconsideration
actually prevented her from responding within the regulatory time limit. See
Meister v. Office of Personnel Management, 52 M.S.P.R. 508, ¶ 6 (1992); see
also 5 C.F.R. § 831.109(e)(2). Accordingly, we find that the appellant did not
make the showing required under 5 C.F.R. § 831.109(e)(2), and therefore OPM
could not extend the filing time limit.
5
The Board will not consider the appellant’s additional argument that her divorce
attorney negligently failed to respond to OPM’s July 31, 2012 letter because the
appellant has not shown that she based this argument on new and material evidence that
was not previously available despite her due diligence. PFR File, Tab 6 at 8; see Banks
v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). Regardless, it is well
settled that a person is bound by the consequences of her representative’s conduct,
including his acts and omissions. See Azarkhish, 915 F.2d at 678.
7
¶12 Where, as here, the appellant fails to show that she was not notified of the
filing time limit and was not otherwise aware of it, or that she was prevented
from circumstance beyond her control from making the request within the time
limit, the Board will not reach the issue of whether OPM was unreasonable or
abused its discretion in denying her untimely request for reconsideration. See
Davis v. Office of Personnel Management, 104 M.S.P.R. 70, ¶ 13 (2006) (citing
Azarkhish, 915 F.2d at 678). Accordingly, we AFFIRM the initial decision to the
extent that it affirmed OPM’s March 13, 2014 final decision dismissing the
appellant’s request for reconsideration as untimely. We VACATE the finding of
the administrative judge concerning whether OPM abused its discretion. To the
extent that the initial decision also appeared to dismiss OPM’s reconsideration
decision and/or the appellant’s Board appeal, we VACATE those findings. See
ID at 1, 4.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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 have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision. 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
8
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.
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.