Opinion

Elizabeth Cardoso v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Jan 5, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ELIZABETH L. CARDOSO, DOCKET NUMBER

Appellant, PH-0845-17-0268-I-1

OFFICE OF PERSONNEL DATE: January 5, 2023

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Emmanuel L. Barros, Brockton, Massachusetts, for the appellant.

Jane Bancroft, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

dismissed her Federal Employees’ Retirement System annuity overpayment

appeal as untimely filed by 4 days without good cause. On petition for review,

the appellant argues that the Board should waive the filing deadline because she

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

has shown good cause for filing the appeal late. Petition for Review (PFR) File,

Tab 1.

¶2 For the first time on review, the appellant’s representative submits the

following evidence and argument to prove good cause for the filing delay. He

argues the existence of circumstances beyond the control of the appellant, who is

his sister and resides in his home. Id. at 4. He explains that the appellant cannot

handle her own affairs and that she relies on his assistance because she has

communication problems due to a medical condition. Id. at 2, 4. He submits

miscellaneous medical documents concerning the appellant’s health and medical

care in 2010, 2011, and 2014. 2 Id. at 6-10. He argues that his delay in filing the

appeal was “excusable neglect” because he is not a professional guardian and the

delay did not prejudice the agency. Id. at 3-4. He also describes his work and

family obligations and asserts that he filed the appeal for the appellant “as soon

as he saw the decision” but he does not always “catch the mail in time.” Id.

¶3 For the reasons stated in the initial decision, we agree with the

administrative judge’s well-reasoned finding that the appellant’s representative

failed to show good cause for the delay in filing her appeal. Initial Appeal File

(IAF), Tab 9, Initial Decision (ID) at 2-9. We find that the initial decision

thoroughly addressed the appellant’s arguments on appeal concerning the

timeliness issue. Id. Moreover, we decline to consider argument and evidence

submitted for the first time on review by the appellant’s representative because he

has failed to show that it was unavailable, despite his due diligence, when the

record closed. 3 See 5 C.F.R. § 1201.115(d). The appellant was represented by

Contrary to the appellant’s representation on review, we find that the medical

documents from 2010, 2011, and 2014, do not constitute “new” evidence because she

has not shown that the information contained in those documents was unavailable,

despite her due diligence, when the record closed. PFR File, Tab 1 at 1, 3, 6 -10; see

5 C.F.R. § 1201.115(d).

The Board generally will not consider new and material evidence or legal argument

raised for the first time in a petition for review absent a showing that it was not

her brother throughout the appeal process, and the administrative judge provided

the appellant and her representative ample opportunity to submit evidence and

argument on appeal below. ID at 2-5, 7-8; IAF, Tab 1 at 6, Tab 2 at 2, Tab 6

at 2-4, Tabs 7-8.

¶4 Generally, we grant petitions such as this one only in the following

circumstances: the initial decision contains erroneous fi ndings 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 administrative

judge’s rulings during either the course of the appeal or th e 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. 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, we conclude that the petitioner has not

established any basis under section 1201.115 for granting the petition for review. 4

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).

previously available despite the party’s due diligence. See 5 C.F.R. § 1201.115(d). The

appellant has not made that showing here. The appellant, through her representative,

does not dispute the finding of the administrative judge that she missed three filing

deadlines and ignored an order to attend a scheduled teleconference. ID at 8.

Moreover, although the appellant’s representative argues that the appellant lacked the

mental ability to pursue her appeal without his assistance, he submits medical evidence

on review indicating that the appellant is more independent than his argument suggests.

PFR File, Tab 1 at 10.

To the extent that the appellant’s representative challenges the merits of t he

underlying appeal, the Board declines to address this argument on review because we

find that the administrative judge properly dismissed the appeal as untimely filed

without good cause shown. PFR File, Tab 1 at 3.

NOTICE OF APPEAL RIGHTS 5

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later th an 30 calendar days

after your representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court-appointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 6 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the