The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2015 MSPB 66
Docket No. AT-844E-15-0640-I-1
Anne M. Kent,
Appellant,
v.
Office of Personnel Management,
Agency.
December 31, 2015
Anne M. Kent, Hohenwald, Tennessee, pro se.
Linnette Scott, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM) dismissing her request for reconsideration of OPM’s initial decision
disallowing her continued receipt of disability retirement benefits. For the
reasons set forth below, we GRANT the appellant’s petition for review, VACATE
the initial decision, and REMAND this appeal to the regional office for further
adjudication in accordance with this Opinion and Order.
2
BACKGROUND
¶2 The appellant retired from Federal service and began receiving disability
retirement benefits under the Federal Employees’ Retirement System (FERS) in
1999. 1 Initial Appeal File (IAF), Tab 5 at 55, 128. On May 18, 2011, OPM
issued a decision informing the appellant that it had determined that she was not
eligible for continued disability retirement payments and that her payments would
stop after May 1, 2012. Id. at 21, 23. The decision set forth the appellant’s right
to request reconsideration of the decision, explaining that the request “must be
received by OPM within 30 days of the date of this letter.” Id. at 22 (emphasis in
original). The appellant requested reconsideration in a letter dated June 21, 2011,
stating, in part, that she received OPM’s decision on June 10, 2011. Id. at 19.
¶3 Over 3 years later, by letter dated October 29, 2014, OPM informed the
appellant that her reconsideration request was untimely filed outside of the
30-day time limit set forth in the May 18, 2011 decision. Id. at 7. The letter
stated that OPM had the discretion to extend the time limit in limited
circumstances prescribed by regulation—specifically, when an individual shows
that she was not notified of the time limit and was not otherwise aware of it, or
that circumstances beyond her control prevented her from making a timely
request for reconsideration. Id. The letter instructed the appellant to submit
evidence showing that she met one of the regulatory criteria for an extension of
the time limit within 30 days from the date of the letter. 2 Id. at 7-8.
1
The appellant apparently changed her last name from “Polack” to “Kent” sometime
between 2000 and 2011. Initial Appeal File (IAF), Tab 5 at 21, 36.
2
It appears that the appellant did not receive the letter. The agency file contains a copy
of an envelope postmarked October 29, 2014, that was undeliverable to the appellant
and returned to OPM. IAF, Tab 5 at 9. It is unclear from the record whether OPM
made further attempts to provide the appellant notice of her burden to show that she
was eligible for an extension under OPM’s regulations.
3
¶4 On June 3, 2015, 3 OPM issued a reconsideration decision finding that the
appellant’s reconsideration request was postmarked June 22, 2011, more than
30 days after the date of the decision disallowing continued disability retirement
benefits, and that she had failed to present any evidence showing that she was
unable to file a request for reconsideration within the regulatory time limit. Id.
at 4-5. As such, OPM dismissed the appellant’s reconsideration request as
untimely filed. Id.
¶5 The appellant timely appealed OPM’s reconsideration decision to the
Board. 4 IAF, Tab 1. The administrative judge issued an order on jurisdiction
informing the appellant that where, as here, OPM denies an individual’s request
for reconsideration as untimely filed, the Board’s jurisdiction over the merits of
the case attaches only if it is determined that OPM’s finding of untimeliness was
unreasonable or an abuse of discretion. IAF, Tab 6. The administrative judge
thus ordered the appellant to provide evidence and argument as to why she
believed that OPM’s determination of untimeliness was unreasonable or an abuse
of discretion. Id. at 1. In response, the appellant stated that she responded to
OPM’s requests for medical documentation and that she did not receive any other
requests or notifications from OPM until 2015. IAF, Tab 7 at 4-5, 7, Tab 10 at 4.
In an initial decision based on the parties’ written submissions, the administrative
judge found that the appellant failed to establish that OPM’s determination of
untimeliness was unreasonable or an abuse of discretion and affirmed OPM’s
final decision. IAF, Tab 12, Initial Decision (ID).
¶6 The appellant has filed a petition for review of the initial decision, to
which OPM has not responded. Petition for Review File, Tab 1. On review, the
3
Although the reconsideration decision is dated “June 3, 2014,” IAF, Tab 5 at 4, OPM
stipulated below that it was issued on June 3, 2015, and that the incorrect year was a
typographical error, IAF, Tab 9.
4
The appellant did not request a hearing. IAF, Tab 1 at 1.
4
appellant appears to argue that OPM has no proof to show when it received her
request for reconsideration and that OPM’s decision to discontinue her disability
retirement payments will have dire consequences for her family. Id. at 3.
ANALYSIS
¶7 When OPM dismisses an individual’s request for reconsideration of an
initial decision as untimely, the Board has jurisdiction over an appeal regarding
the timeliness determination. Rossini v. Office of Personnel
Management, 101 M.S.P.R. 289, ¶ 7 (2006); Baldos v. Office of Personnel
Management, 36 M.S.P.R. 606, 609 (1988). The Board will reverse a decision by
OPM dismissing a reconsideration request on timeliness grounds only if it finds
that the dismissal was unreasonable or an abuse of discretion. Cerezo v. Office of
Personnel Management, 94 M.S.P.R. 81, ¶ 9 (2003). If the Board determines that
OPM’s timeliness determination was unreasonable or an abuse of discretion,
Board jurisdiction attaches to the merits of the appeal. Rossini, 101 M.S.P.R.
289, ¶ 7; Baldos, 36 M.S.P.R. at 609.
¶8 Under FERS, a request for reconsideration of an initial decision issued by
OPM regarding retirement benefits generally must be received by OPM within
30 calendar days from the date of the initial decision. 5 C.F.R. § 841.306(d)(1).
OPM’s regulations provide that OPM may extend the time limit when the
individual shows either that: (1) she was not notified of the time limit and was
not otherwise aware of it; or (2) she was prevented by circumstances beyond her
control from making the request within the time limit. 5 C.F.R. § 841.306(d)(2).
If an appellant shows that she qualified for an extension of the time limit under
OPM’s regulations, the Board then will consider whether OPM acted
unreasonably or abused its discretion in refusing to extend the time limit and
dismissing her request for reconsideration as untimely filed. See Davis v. Office
of Personnel Management, 104 M.S.P.R. 70, ¶ 7 (2006) (citing Azarkhish v.
5
Office of Personnel Management, 915 F.2d 675, 677-78 (Fed. Cir. 1990)). 5 If,
however, the appellant does not first show that she qualified for an extension
under OPM’s regulatory criteria, the Board will not reach the issue of whether
OPM was unreasonable or abused its discretion in denying her untimely request
for reconsideration. Id. The good cause standard the Board would apply to cases
untimely filed with the Board is a more lenient standard than the narrower factual
criteria under 5 C.F.R. § 841.306(d)(2). See Davis, 104 M.S.P.R. 70, ¶ 7.
The administrative judge erred by first failing to determine whether the appellant
was eligible for an extension of the time limit under OPM’s regulations.
¶9 In this case, the administrative judge found that the appellant failed to
show that OPM’s dismissal of her request for reconsideration was unreasonable
or an abuse of discretion and, thus, affirmed OPM’s reconsideration decision. ID
at 3-4. She did not determine first, however, whether the appellant showed that
she qualified for an extension of the time limit under 5 C.F.R. § 841.306(d)(2)
because she was either unaware of, or unable to comply with, the time limit. ID.
This was an error in the administrative judge’s legal analysis. See
Davis, 104 M.S.P.R. 70, ¶ 7. Accordingly, we vacate the initial decision.
The administrative judge failed to give the appellant the correct notice of her
jurisdictional burden.
¶10 Generally, an appellant must receive explicit information on what is
required to establish an appealable jurisdictional issue. Burgess v. Merit Systems
Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). As discussed above,
before the Board may consider whether OPM acted unreasonably or abused its
discretion in dismissing a reconsideration request as untimely, an appellant first
must show either that she was not notified of the time limit and was not otherwise
5
Although the appellant in Davis was covered under the Civil Service Retirement
System (CSRS) and the appellant in this matter is covered under FERS, the applicable
regulatory standards governing the timeliness of reconsideration requests under CSRS
and FERS are essentially identical. Compare 5 C.F.R. § 831.109(e), with 5 C.F.R. §
841.306(d).
6
aware of it, or that she was prevented by circumstances beyond her control from
making the request within the time limit. Davis, 104 M.S.P.R. 70, ¶ 7. Only if
the appellant makes such a showing may the Board decide whether OPM’s action
was unreasonable or an abuse of discretion. Id. Here, the administrative judge
informed the appellant that, to establish Board jurisdiction over the merits of her
reconsideration request, she must show that OPM’s determination of untimeliness
was unreasonable or an abuse of discretion, and ordered her to provide argument
and evidence as to why she believed OPM’s determination of untimeliness was
unreasonable or an abuse of discretion. IAF, Tab 6. The administrative judge’s
jurisdictional notice failed to inform the appellant of her initial burden to show
that she was eligible for an extension under OPM’s regulations prior to showing
that OPM’s refusal to extend the time limit was unreasonable or an abuse of
discretion. Id.; see Davis, 104 M.S.P.R. 70, ¶ 7. As such, we find that the
administrative judge failed to provide the appellant with proper Burgess notice. 6
¶11 In light of the above, we find that the appellant was deprived of a fair
opportunity to meet her jurisdictional burden and that remand is necessary to
afford her the opportunity to establish jurisdiction over her appeal. On remand,
the administrative judge shall provide the appellant explicit notice of her burden
of proof, as set forth above, and allow the parties an opportunity to respond. The
administrative judge then should make a finding as to whether the appellant has
shown that: (1) she qualified for an extension of the time limit to request
6
Although a defective Burgess notice may be cured if the agency’s pleadings or the
initial decision itself puts the appellant on notice of what she must do to establish
jurisdiction, Milam v. Department of Agriculture, 99 M.S.P.R. 485, ¶ 10 (2005), the
initial decision here failed to provide a complete statement of the appellant’s
jurisdictional burden, see ID, and nothing in OPM’s submissions cured the defective
notice, IAF, Tabs 5, 9.
7
reconsideration under 5 C.F.R. § 841.306(d)(2); 7 and, if so, (2) OPM’s refusal to
extend the time limit was unreasonable or an abuse of discretion. 8 If the
administrative judge finds that OPM’s denial of the appellant’s reconsideration
request on timeliness grounds was unreasonable or an abuse of discretion, the
Board’s jurisdiction attaches to the merits of the appeal, and the administrative
judge should proceed to adjudicate the merits of OPM’s reconsideration decision.
See Goodman v. Office of Personnel Management, 100 M.S.P.R. 43, ¶ 12 (2005).
7
In her request for reconsideration dated June 21, 2011, the appellant indicated that she
received OPM’s May 18, 2011 decision on June 10, 2011. IAF, Tab 5 at 19. The Board
previously has noted that an individual is entitled to a reasonable period of time to
request reconsideration after belated receipt of an initial OPM decision. See, e.g.,
Williams v. Office of Personnel Management, 100 M.S.P.R. 190, ¶¶ 2-3, 8-10 (2005)
(finding that the appellant was prevented by circumstances beyond her control from
filing a timely request for reconsideration and that OPM’s denial of her request for a
1-day extension was unreasonable and an abuse of discretion where, among other
factors, the appellant asserted, and OPM did not rebut, that she did not receive OPM’s
December 14, 2014 initial decision until December 23, 2014); Mounce v. Office of
Personnel Management, 98 M.S.P.R. 120, ¶¶ 2-4, 8 (2005) (upholding the
administrative judge’s determination that OPM was unreasonable and abused its
discretion in dismissing as untimely the appellant’s request for reconsideration because
the appellant belatedly received OPM’s initial decision and mailed a request for
reconsideration the day after he received OPM’s initial decision); see also Davis,
104 M.S.P.R. 70, ¶¶ 10-11 (noting in dicta that mailing delays that deprive an appellant
of a significant portion of the 30-day time period for filing a request for reconsideration
may contribute to a finding that the appellant was prevented by circumstances beyond
her control from timely filing a request for reconsideration). Accordingly, on remand,
the administrative judge should determine when the appellant received the initial
decision and weigh this factor in determining whether she was prevented by
circumstances beyond her control from requesting reconsideration within the 30-day
time limit.
8
In deciding whether OPM’s action was unreasonable or an abuse of discretion, the
administrative judge should determine, among other things, if OPM made a subsequent
attempt to inform the appellant of her opportunity to show that she was eligible for an
extension of the filing deadline after its October 29, 2014 letter was returned as
undeliverable, the circumstances surrounding the return of the letter, and the effect of
OPM’s actions, or inactions, on the issue of reasonableness.
8
ORDER
¶12 For the foregoing reasons, we vacate the initial decision and remand this
matter to the regional office for further development of the record and
adjudication in accordance with this Opinion and Order.
FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.