The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JANIS L. HANSON, 1 DOCKET NUMBER
Appellant, PH-0831-19-0446-I-1
v.
OFFICE OF PERSONNEL DATE: February 21, 2023
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 2
Daniel Clark, Esquire, and Jeremy Wright, Esquire, Washington, D.C., for
Kathleen Van Riper.
Jo Bell, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
Vice Chairman Harris recused herself and
did not participate in the adjudication of this appeal.
1
As explained herein, we grant the motion for substitution filed by the appellant’s
widow, Kathleen Van Riper.
2
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cit e nonprecedential orders,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
REMAND ORDER
¶1 The appellant’s widow, Kathleen Van Riper, has filed a motion for
substitution with her timely filed petition for review of the December 18, 2020
initial decision, which dismissed for lack of a substitute this appeal of a final
decision issued by the Office of Personnel Management (OPM) finding that the
appellant had been overpaid in Civil Service Retirement System annuity benefits.
For the reasons discussed below, we GRANT Ms. Van Riper’s motion for
substitution, VACATE the initial decision, and REMAND the case to the regional
office for further processing.
¶2 Pursuant to 5 C.F.R. § 1201.35(a), if an appellant dies during the pendency
of her appeal, the processing of the appeal will only be completed upon the
substitution of a proper party. See, e.g., Estate of Kravitz v. Department of the
Navy, 110 M.S.P.R. 97, ¶ 2 n.1 (2008) (finding that substitution was proper whe n
the appellant passed away while his appeal was pending and the appellant’s
counsel submitted a motion for his widow to be a substitute party). The
regulatory deadline to file a motion to substitute is 90 days after the death of an
appellant, except for good cause shown. 5 C.F.R. § 1201.35(b). Here, the
appellant died on November 1, 2019, and Ms. Van Riper filed her motion for
substitution on January 21, 2021, with her petition for review. Petition for
Review (PFR) File, Tab 1 at 2-4, 16. Accordingly, Ms. Van Riper’s motion was
untimely filed by approximately 1 year.
¶3 The appellant filed a timely appeal of OPM’s final decision on
September 12, 2019. Initial Appeal File (IAF), Tab 1 at 1-7, 24-28. OPM
informed the administrative judge of the appellant’s November 1, 2019 death on
November 25, 2019. IAF, Tab 5. On January 24, 2020, which was within the
90-day period for substitution of a proper party, the administrative judge assigned
to the appeal suspended case processing for 30 days. IAF, Tab 6. That
suspension of case processing was granted a second time from June 23 until
July 23, 2020. IAF, Tab 7. On November 6, 2020, a different administrative
3
judge was assigned to the case. IAF, Tab 8. The new administrative judge issued
a November 24, 2020 “Order Regarding Substitution for Appellant” that set
December 8, 2020, as the deadline by which a motion for substitution must be
filed. IAF, Tab 9. Ms. Van Riper submitted, with the petition for review and
motion for substitution, a declaration under penalty of perjury indicating that she
never received the new administrative judge’s November 24, 2020 order. PFR
File, Tab 1 at 4.
¶4 Under the above circumstances, including the death of the appellant, who
was proceeding pro se at the time, the two case processing suspensions, the
assignment of the case to a different administrative judge, who set a new deadline
for filing a motion for substitution, thereby essentially waiving the 90-day
deadline under 5 C.F.R. § 1201.35(b), see 5 C.F.R. § 1201.12 (permitting waiver
of a Board regulation by an administrative judge), and the statement made under
penalty of perjury by Ms. Van Riper, see Conner v. Office of Personnel
Management, 120 M.S.P.R. 670, ¶ 13 (2014) (holding that a declaration under
penalty of perjury, if uncontested, proves the facts it asserts), aff’d, 620 F. App’x
892 (Fed. Cir. 2015), along with the filing of the motion within 30 days of receipt
of the initial decision, we find that good cause has been shown for the delay in
filing the motion for substitution.
¶5 In any event, the Board has granted a proper party’s untimely motion for
substitution in unusual circumstances even absent a showing of good cause. See
Carpio v. Office of Personnel Management, 94 M.S.P.R. 506, ¶ 5 n.* (2003). The
Board has clarified that this practice is consistent with 5 C.F.R. § 1201.35(c),
which allows the processing of an appeal to continue absent a timely substitution
when the interests of the proper party, i.e., the estate of the appellant, would not
be prejudiced. Id.; see also Stone v. Department of the Army, 37 M.S.P.R. 56, 57
n.1 (1988). Here, we find that such unique circumstances exist. Indeed, although
the appellant passed away on November 1, 2019, an order regarding substitution
was not issued until November 24, 2020, over 1 year later. IAF, Tab 5 at 3, Tab 9
4
at 1-2. Moreover, the agency has not objected to Ms. Van Riper’s motion
regarding substitution, and the Board has previously stated that, in
annuity-related cases such as this one, the paramount concern is whether a party
is entitled to the benefit she seeks. See, e.g., Moore-Meares v. Office of
Personnel Management, 105 M.S.P.R. 613, ¶ 8 (2007).
ORDER
¶6 Accordingly, we grant Ms. Van Riper’s motion for substitution and we
remand this case to the regional office for further processing.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.