The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LUANNE HUNTINGTON, DOCKET NUMBER
Appellant, DE-844E-14-0314-B-1
v.
OFFICE OF PERSONNEL DATE: February 27, 2023
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
LuAnne Huntington, Layton, Utah, pro se.
Linnette L. Scott, 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 remand initial decision,
which affirmed the reconsideration decision of the Office of Personnel
Management (OPM), denying her application for disability retirement. Generally,
we grant petitions such as this one only in the following circumstances: the
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
initial decision contains erroneous findings of material fact; the initial decision is
based on an erroneous interpretation of statute or regulation or the erroneou s
application of the law to the facts of the case; the administrative 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. 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. Therefore, we DENY the
petition for review. Except as expressly MODIFIED to find that the appellant’s
Fully Successful rating was not emblematic of her abilities to perform her duties
under the specific circumstances of this case, we AFFIRM the remand initial
decision.
¶2 As an initial matter, we find that the appellant has established good cause
for her untimely filed petition for review. A petition for review must be filed
within 35 days after the date of issuance of the initial decision or, if the peti tioner
shows that the initial decision was received more than 5 days after the date of
issuance, within 30 days after the date the petitioner received the initial decision.
5 C.F.R. § 1201.114(e). The Board will waive this time limit only upon a
showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To
establish good cause for the untimely filing of an appeal, a party must show that
she exercised due diligence or ordinary prudence under the particular
circumstances of the case. Alonzo v. Department of the Air Force, 4 M.S.P.R.
180, 184 (1980).
3
¶3 The appellant asserts that she faxed her petition for review to the Board on
November 3, 2016, before the November 7, 2016 deadline. 2 Remand Petition for
Review (RPFR) File, Tab 3 at 3, 9, Tab 4 at 3-4. Although the appellant provided
no further explanation as to why the Board did not receive a faxed petition for
review on November 3, 2016, but did receive her petition for review 2 weeks
later, she included another fax cover sheet that sheds some li ght on the matter.
That handwritten cover sheet includes the date of November 3, 2016, the Board’s
correct fax number, and the Board’s correct phone number. RPFR File, Tab 3
at 1. Printed separately on the same sheet is a “Transaction Report,” listing a
date of “Nov/03/2016” and a “Receiver” that matches the Board’s phone (not fax)
number. Id. Therefore, it appears that the appellant attempted to file a timely
petition but failed to do so due to her own clerical error in dialing the wrong
number. The “Transaction Report” does not clearly show whether the fax
transmission was successful. Id.
¶4 We recognize that the appellant is pro se and it appears that she tried to fax
her petition to the Board’s phone (not fax) number on November 3, 2016, before
the filing deadline. Ordinarily, such a mistake would result in an error message,
indicating that the fax transmission was unsuccessful. However, there is no
indication on the “Transaction Report” that the fax transmission was
unsuccessful. Accordingly, under these unique circumstances, we find good
cause to excuse the untimeliness of the appellant’s petition for review .
2
In addition to recognizing the appellant’s untimeliness, the Acting Clerk observed that
the appellant failed to serve her petition for review on the agency. Remand Petition for
Review (RPFR) File, Tab 2 at 1. The Acting Clerk informed the appellant that the
Board would serve the agency with a copy of the petition for review but warned that the
appellant was responsible for serving the agency with any additional pleadings. Id.
The appellant responded that she was under the impression she was only required to
serve her petition for review on the Board. RPFR File, Tab 3 at 9, Tab 4 at 3 -4. To the
extent that the appellant construed the Acting Clerk’s notice concerning timeline ss as
resulting from the appellant’s failure to serve the agency, she is mistaken. Her failure
to serve the agency with the petition has no bearing on her untimeliness.
4
¶5 Furthermore, we find that the administrative judge did not err in cancelling
the hearing on remand. On review, the appellant does not deny that she withdrew
her hearing request. She does, however, assert that the administrative judge
advised her that the hearing “would probably not help.” RPFR File, Tab 1 at 4 -5.
We are not persuaded. The record demonstrates the administrative judge’s
willingness to hold a hearing. Id. Not only did the administrative judge approve
the appellant’s requested witnesses, he also indicated that he would issue
subpoenas for those witnesses, if necessary. Id. In addition, he stated that he
would take all reasonable steps to accommodate their schedules. Id.
Accordingly, to the extent that the appellant argues that the administrative judge
erred by not holding a hearing, we disagree.
¶6 Finally, we conclude that the administrative judge properly affirmed OPM’s
reconsideration decision denying the appellant’s application for disability
retirement. The appellant has not provided a basis on review for disturbing the
administrative judge’s decision in this regard. 3 To the extent, however, that the
administrative judge relied upon the appellant’s Fully Successful performance
rating in sustaining OPM’s reconsideration decision, we modify the initial
decision to find that the rating was not emblematic of the appellant’s abilities to
perform her duties under the specific circumstances of this case.
NOTICE OF APPEAL RIGHTS 4
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 may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
3
On July 21, 2022, the Board issued an order providing the appellant with the
opportunity to submit evidence pertaining to her current employment or retirement
status and any evidence relating to the issue of whether the appeal should be dismissed
as moot. RPFR File, Tab 5. The appellant did not respond.
4
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.
5
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. Failu re 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:
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 partic ular
6
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 than 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.
7
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
8
competent jurisdiction. 5 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
following address:
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.
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file p etitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.