Opinion

Lisa King v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Feb 28, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.8%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LISA A. KING, DOCKET NUMBER

Appellant, NY-0845-15-0291-I-2

OFFICE OF PERSONNEL DATE: February 28, 2023

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Lisa A. King, Stone Mountain, Georgia, pro se.

Michael Shipley, 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 refiled appeal as untimely, without good cause . Generally, we

grant petitions such as this one only in the following circumstances: the initial

decision contains erroneous findings of material fact; the initial decision is based

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 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 by this Final Order to incorporate the proper standard for

establishing good cause in the case of an untimely refiled appe al, we AFFIRM the

initial decision.

¶2 The appellant initially filed her appeal in August 2015 challenging an

Office of Personnel Management (OPM) reconsideration decision pertaining to

her retirement annuity and an overpayment. King v. Office of Personnel

Management, MSPB Docket No. NY-0845-15-0291-I-1, Initial Appeal File (IAF),

Tab 1. After OPM submitted its response, the appellant moved to dismiss the

appeal because she needed additional time to locate relevant documents from

storage. IAF, Tabs 6-7. Accordingly, the administrative judge dismissed the

appeal without prejudice in September 2015. IAF, Tab 8, Initial Decision (ID).

The administrative judge explained that the dismissal was “subject to the

appellant’s refiling no later than December 10, 2015.” ID at 3.

¶3 In June 2016, OPM informed the appellant that it would begin collecting the

overpayment, citing her failure to refile the Board appeal. King v. Office of

Personnel Management, MSPB Docket No. NY-0845-15-0291-I-2, Refiled

Appeal File (I-2 AF), Tab 10 at 5. Many months later, in January 2017, the

appellant refiled her appeal. I-2 AF, Tab 1. She indicated that OPM’s

withholdings were causing financial hardship, asserting that she “was homeless

for the past couple of years [and does not] want to be homeless again.” I-2 AF,

Tab 2 at 2.

¶4 The administrative judge issued an order indicating that the refiled appeal

appeared untimely by more than a year and instructing the appellant to establish

good cause. I-2 AF, Tab 4. The appellant responded, asserting that she tried to

make contact in December 2015, “calling to find out what [she] neede d to do.”

I-2 AF, Tab 8 at 1. According to the appellant, she left messages but no one ever

contacted her. Id. The appellant did not indicate who at the Board, if anyone, she

tried to contact. She did, however, present argument and evidence that she

contacted OPM in the weeks just after the administrative judge dismissed her

Board appeal without prejudice. Id. at 1, 5-8.

¶5 The administrative judge dismissed the appellant’s refiled appeal as

untimely, without good cause. I-2 AF, Tab 11, Initial Decision (I-2 ID). The

appellant has filed a petition for review. King v. Office of Personnel

Management, MSPB Docket No. NY-0845-15-0291-I-2, Petition for Review

(PFR) File, Tab 1.

¶6 When the administrative judge found that the appellant failed to establish

good cause for her untimeliness, she relied on the Board’s general timeliness

standards, rather than those that apply to an untimely refiled appeal. 2 I-2 ID at 3

(citing Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980);

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)). We modify the initial decision to

incorporate the correct standard but reach the same co nclusion; the appellant

failed to establish good cause.

¶7 The Board has identified specific standards for determining whether good

cause exists for excusing an untimely refiled appeal of a matter previously

Although the administrative judge cited the wrong standards in the initial decision, she

provided the proper standard in the order instructing the appellant how to establish

good cause for her untimeliness. I-2 AF, Tab 4 at 2-3.

dismissed without prejudice. Sherman v. U.S. Postal Service, 118 M.S.P.R. 265,

¶ 9 (2012). These include the following: the appellant’s pro se status; the

timeliness of the initial appeal; the appellant’s demonstrated intent throughout the

proceedings to refile the appeal; the length of the delay in refiling; confusion

surrounding and arbitrariness of the refiling deadline; the number of prior

dismissals without prejudice; the agency’s failure to object to the dismissal

without prejudice; and the lack of prejudice to the agency in allowing the refiled

appeal. Id.

¶8 The appellant is pro se, and the appeal was dismissed without prejudice

only once. E.g., IAF, Tab 1; I-2 AF, Tab 1. In addition, OPM did not object to

the dismissal, nor did it present evidence that it would be prejudiced b y allowing

the refiled appeal. ID at 2; I-2 AF, Tab 10. However, the other factors weigh

against the appellant. First, it appears that the appellant’s initial appeal was also

untimely. OPM issued its reconsideration decision in March 2015, with notice

that she could appeal the decision to the Board within 30 days, but the appellant

did not do so until August 2015. Compare IAF, Tab 6 at 6-9, with IAF, Tab 1;

see 5 C.F.R. § 1201.22(b) (providing the time limits for filing a Board appeal).

Next, while we could speculate about the appellant’s intent to refile after she

requested dismissal without prejudice, she has failed to present any persuasive

evidence of the same. Instead, the appellant presented argument and evidence

showing only that she contacted OPM in the weeks just after the dismissal of her

appeal. I-2 AF, Tab 8 at 1, 6-8; PFR File, Tab 1 at 4. The evidence consists of

cursory emails in which the appellant simply asked, “has the installment

agreement been adjusted?” I-2 AF, Tab 8 at 6-8. Finally, the length of the

appellant’s delay in refiling, more than a year, is significant , and we find no basis

for concluding that there was any confusion or arbitrariness surrounding the

deadline. The administrative judge provided the dismissal without prejudice to

accommodate the appellant’s unpreparedness, and the administrative judge clearly

explained the appellant’s deadline for refiling. ID at 2-3.

¶9 In sum, after considering the relevant factors, we find that the appellant has

not established good cause for her untimely refiled appeal. See Nelson v. U.S.

Postal Service, 113 M.S.P.R. 644, ¶¶ 9-10 (2010) (finding no good cause for a

pro se appellant’s 4-month delay in refiling his appeal when the initial decision

clearly identified the date for refiling, and the appellant failed to provide any

evidence justifying any confusion over the deadline), aff’d, 414 F. App’x 292

(Fed. Cir. 2011). We therefore affirm the initial decision, as modified.

NOTICE OF APPEAL RIGHTS 3

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

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 an d

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.

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.

(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 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 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.

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. 4 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

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 petitions 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.