The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THOMAS R. DORAME, JR., DOCKET NUMBER
Appellant, DE-0845-15-0123-I-1
v.
OFFICE OF PERSONNEL DATE: September 9, 2015
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Thomas R. Dorame, Jr., Tucson, Arizona, pro se.
Cynthia Reinhold, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a request to reopen an initial decision, which
dismissed his Federal Employees’ Retirement System (FERS) disability
retirement annuity overpayment appeal for failure to prosecute. For the reasons
set forth below, we treat the appellant’s request as an untimely petition for
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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review, and DISMISS the petition as untimely filed without good cause
shown. 5 C.F.R. § 1201.114(e), (g).
BACKGROUND
¶2 The appellant filed a Board appeal challenging the Office of Personnel
Management’s (OPM’s) reconsideration decision, which found that he had
received an overpayment of FERS disability retirement annuity benefits. Initial
Appeal File (IAF), Tab 1 at 5, Tab 6 at 5-8. On April 2, 2015, the administrative
judge issued an initial decision dismissing the appeal for failure to prosecute,
based on the appellant’s failure to appear for two telephonic status conferences
and to respond to an order to show cause why his appeal should not be dismissed.
IAF, Tab 9, Initial Decision (ID); see also IAF, Tabs 7-8. The administrative
judge advised the appellant that the initial decision would become final on May 7,
2015, unless he filed a petition for review by that date. ID at 3. The certificate
of service demonstrates that the initial decision was electronically served on the
appellant, who was an e-filer, on April 2, 2015. IAF, Tab 1 at 2, Tab 10.
¶3 On June 24, 2015, the appellant requested to reopen his appeal, claiming
that he had called in for the two telephonic status conferences, but had been
placed on hold for 20 minutes each time. Petition for Review (PFR) File,
Tab 1 at 3.
¶4 By notice dated June 25, 2015, the Clerk of the Board informed the
appellant that the Board could not reopen his appeal based upon his June 24, 2015
submission, because the initial decision did not dismiss his appeal without
prejudice. PFR File, Tab 2 at 1. The Clerk notified the appellant that the Board
considered his filing to be a petition for review, which appeared to be untimely,
and invited him to file a motion to accept the filing as timely or to waive the time
limit for good cause, enclosing a form “Motion to Accept Filing as Timely and/or
to Ask the Board to Waive or Set Aside the Time Limit.” Id. at 1-2, 7-8. The
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Clerk’s notice afforded the appellant until July 10, 2015, to file that motion. Id.
at 2.
¶5 The appellant has not responded to the Clerk’s notice. The agency has filed
a response to the petition for review, requesting that the Board dismiss the
petition for review as untimely filed. PFR File, Tab 4 at 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 The Board treats a request to reopen an initial decision that became final
when neither party petitioned for review as an untimely filed petition for review.
Shannon v. Department of Veterans Affairs, 110 M.S.P.R. 365, ¶ 5 (2009).
Further, the Board generally does not reopen a case under its own regulations to
cure the untimeliness of a petition for review. Valdez v. Office of Personnel
Management, 103 M.S.P.R. 88, ¶ 4 (2006). We discern no reason to depart from
these rules in this case, and, accordingly, the appellant’s submission will be
treated as an untimely filed petition for review.
¶7 A petition for review must be filed within 35 days after the date of issuance
of the initial decision or, if the appellant shows that he received the initial
decision more than 5 days after it was issued, within 30 days after the date that
the appellant received the initial decision. 5 C.F.R. § 1201.114(e). As an e-filer,
the appellant is deemed to have received the initial decision on the date it was
issued. 5 C.F.R. § 1201.14(m)(2). Accordingly, the appellant’s June 24, 2015
petition for review, which was due no later than May 7, 2015, was untimely by 48
days. See ID at 3.
¶8 The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. Via v. Office of Personnel
Management, 114 M.S.P.R. 632, ¶ 5 (2010); 5 C.F.R. § 1201.114(g). To establish
good cause for the untimely filing of a petition, the appellant must demonstrate
that he exercised due diligence or ordinary prudence under the particular
circumstances of his case. See Alonzo v. Department of the Air
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Force, 4 M.S.P.R. 180, 184 (1980) (setting forth this rule in the context of filing
an initial appeal). 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 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).
¶9 Applying these factors, we find that the appellant has not shown good cause
for his filing delay. Notwithstanding the appellant’s pro se status, his 48-day
delay in filing a petition for review was significant. See Dow v. Department of
Homeland Security, 109 M.S.P.R. 633, ¶ 8 (2008) (finding a delay of more than 1
month to be significant, despite an appellant’s pro se status). The Clerk notified
the appellant of his need to establish good cause for the untimely filing and
provided the appellant a blank copy of a form motion to complete in order to
satisfy the requirement. PFR File, Tab 2 at 1-2, 7-8. The appellant, however,
failed to respond to the Clerk’s notice and did not otherwise attempt to explain
the delay in filing his petition for review. See PFR File, Tab 1. Therefore, the
appellant has set forth no grounds for finding good cause for a waiver of the
filing deadline. See Bell v. Department of Homeland Security, 112 M.S.P.R. 33,
¶ 8 (2009) (dismissing a petition for review as untimely filed because a pro se
appellant failed to respond to the Clerk’s order on timeliness or otherwise
demonstrate good cause for the delay). Finally, the appellant’s arguments
regarding the merits of the initial decision dismissing his appeal for failure to
prosecute do not establish good cause for his untimely filing. See PFR File,
Tab 1 at 3; see also Wright v. Department of the Treasury, 113 M.S.P.R. 124, ¶ 7
(2010) (arguments regarding the merits of a case do not establish good cause for
an untimely filed petition for review).
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¶10 Accordingly, we dismiss the petition for review as untimely filed. This is
the final decision of the Merit Systems Protection Board regarding the timeliness
of the petition for review. The initial decision remains the final decision of the
Board regarding the dismissal of the underlying appeal for failure to prosecute.
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.
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.
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If you are interested in securing pro bono representation for an appeal to
the United States 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 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.