Cyril Anyaoha v. Office of Personnel Management

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CYRIL R. ANYAOHA, DOCKET NUMBER

Appellant, SF-844E-18-0424-I-1

v.

OFFICE OF PERSONNEL DATE: July 11, 2023

MANAGEMENT,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Henry E. Leinen, Pacific Grove, California, for the appellant.

Cynthia Reinhold, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

REMAND ORDER

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

dismissed his disability retirement annuity appeal for lack of jurisdiction, finding

that the Office of Personnel Management (OPM) had failed to issue a requisite

final decision. For the reasons discussed below, we GRANT the appellant’s

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

petition for review, VACATE the initial decision, and REMAND the case to the

Western Regional Office for further adjudication in accordance with this Remand

Order.

BACKGROUND

¶2 OPM approved the appellant’s disability retirement based on depression and

post-traumatic stress disorder (PTSD) conditions in 2012. Initial Appeal File

(IAF), Tab 1 at 8. It terminated his disability retirement annuity on June 30,

2015, based on its determination that the appellant had returned to earning

capacity. Id. at 7-8. After the appellant contacted OPM about reinstating his

disability annuity, OPM provided him with information on how to apply for

reinstatement. Id. at 7. On March 27, 2017, OPM issued an initial decision

stating that it had not received the required documentation from the appellant, and

thus he had not met all requirements for reinstatement of his disability annuity.

Id. at 8. OPM’s initial decision stated that the appellant had 30 calendar days to

request reconsideration of the decision. Id. The decision further stated that if the

appellant failed to submit his request for reconsideration within the time limit,

OPM would dismiss his request as untimely unless he can show that he was

unaware of the time limit, not notified of the time limit, or prevented from

responding by circumstances beyond his control. IAF, Tab 5 at 7. The initial

decision was signed by a Legal Administrative Specialist within the Disability,

Reconsideration and Appeals division of OPM. Id.

¶3 Although not stated in the record, the 30-calendar-day time limit in which

the appellant had to request reconsideration of the initial decision lapsed on

April 26, 2017. Apparently in response to the March 27, 2017 letter, on May 2,

2017, the appellant emailed the same Legal Administrative Specialist who issued

the initial decision stating:

I would like to have some extra time to provide the [information

requested]. I am receiving care from the [Veterans Administration]

Oakland mental health program. I am receiving help with a social

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worker and clinical psychiatrist nurse practitioner who would like to

know if they can contact you to see what you need in terms of

providing [the requisite documentation you need].

IAF, Tab 3 at 7-8. That same day, the Legal Administrative Specialist responded

to his email saying that “there is no need to worry because this is just the initial

decision” and that, if the appellant cannot get the requisite documents wi thin the

30-day time limit, he could “request reconsideration which is very easy to do.”

Id. at 7. The Legal Administrative Specialist went on to state that, in order to do

so, the appellant only needed to “sign and date the reconsideration request and

fax or mail it back to the office within 30 days.” 2 Id.

¶4 The following day, on May 3, 2017, the appellant responded to the chain of

emails saying that, per their conversation, he had attached a signed and dated

letter requesting reconsideration. Id. The Legal Administrative Specialist

responded, saying that she is no longer involved in the appellant’s case. Id. at 6.

She also provided an address to which the appellant needed to send his request for

reconsideration and stated that “[a] request for reconsideration must be received

in OPM within 30 calendar days of the date of this letter.” Id. (emphasis added).

The appellant responded, saying that it “sounds to me that I need to submit a

letter to request a reconsideration to the address you provided below within

30 days of this letter to review the decision to my case.” Id. The Legal

Administrative Specialist responded “correct.” Id.

¶5 On May 30, 2017, the appellant formally requested reconsideration of the

reinstatement decision regarding his disability annuity. IAF, Tab 1 at 9. The

agency appears to have conceded below that the appellant requested

reconsideration on May 30, 2017. IAF, Tab 5 at 4. The request stated that it was

filed late due to processing of the appellant’s documents through the Department

of Veterans Affairs (VA) and attached documentation from the VA stating that he

2

This entire email conversation took place after the original 30-day time limit on the

initial decision had already lapsed.

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continued to receive therapy, treatment, and medication for his PTSD and

depression. IAF, Tab 1 at 9-10.

¶6 On August 29, 2017, seemingly in response to an email from the appella nt,

a different Legal Administrative Specialist with OPM emailed the appellant ,

saying that she was not assigned to his case but would forward his email to the

correct party and that, “[a]ccording to the system, your case is active.” IAF,

Tab 3 at 9. On September 14, 2017, the appellant emailed OPM retirement

services, stating “I’m not sure what’s going on, I’ve tried several times to inquiry

from [sic] OPM” and that “I need my disability annuity and I’m not sure if the

request I sent to restore my annuity is still pending for reconsideration.” Id.

at 10-11. He received an automated response from OPM. Id.

¶7 On October 27, 2017, the appellant emailed a third Legal Administrative

Specialist, stating that he was trying to get reinstatement of his disability annuity

and was enclosing clinical documentation detailing the status of his depression

and PTSD conditions. IAF, Tab 1 at 13. He further stated that he had not

returned to his prior earning capacity, and he attached his Leave and Earnings

statement from his current employer. Id. Over the next several days, the

appellant exchanged emails with this third Legal Administrative Specialist,

ironing out the specific documents the appellant needed to provide. Id. at 12-13.

The appellant provided his 2016 W-2 tax return and offered to provide any other

requisite documentation. Id. On November 22, 2017, the third Legal

Administrative Specialist informed the appellant that his “case is in our

Disability, Reconsideration, & Appeals Branch for a medical review. A decision

has not yet been made.” Id. at 12. On January 10, 2018, the appellant emailed

the third Legal Administrative Specialist, inquiring about the status of his case

and again offering to provide any additional documents as needed. Id. The

record does not show any response to this last email.

¶8 On April 4, 2018, the appellant filed an appeal with the Board stating that

OPM had failed to issue a final decision “for reasons unknown” and asked the

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Board to order OPM to reinstate his disability annuity. IAF, Tab 1 at 6. On

April 17, 2018, OPM filed a motion to dismiss for lack of jurisdiction. IAF,

Tab 5 at 4-5. According to OPM, “the appellant requested reconsideration of the

initial decision on May 30, 2017; however the appellant has not received any

appealable decision from OPM.” Id. at 4. Because OPM had not issued a final

decision on the appellant’s request for reconsideration, OPM argued, the Board

lacked jurisdiction. Id. at 4-5.

¶9 The administrative judge issued an initial decision declining to find that

OPM had refused or improperly failed to issue a final decision. IAF, Tab 6,

Initial Decision (ID) at 6. Rather, due to the emails and communications between

the appellant and various persons at OPM, the administrative judge found that

OPM had his reconsideration request before it and was working towards a

decision. ID at 6-7. Accordingly, the administrative judge granted OPM’s

motion to dismiss and dismissed the appeal for lack of ju risdiction without a

hearing. ID at 7.

¶10 On June 15, 2018, OPM issued its final decision in the matter. Petition for

Review (PFR) File, Tab 3 at 6. The final decision stated that the appellant’s

request for reconsideration was received by OPM beyond the allowable time

limit. Id. It further stated that, because his request for reconsideration was

untimely, OPM could only reconsider its initial determination if he could show

either (1) that he was not notified of the time limit or otherwise aware of it, or

(2) that he was prevented by circumstances beyond his control from making the

request within the time limit. Id. According to OPM, they sent the appellant a

letter on May 10, 2018, requesting evidence to show why his request for

reconsideration was untimely, but he failed to respond. 3 Id. Because he failed to

present sufficient evidence on the timeliness issue, his request for reconsideration

3

Other than this reference in OPM’s final decision, this May 10, 2018 communication

from OPM to the appellant is absent from the record.

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was dismissed as untimely filed. Id. The final decision stated that the appellant

may appeal the matter to the Board within 30 calendar days. Id. at 6-7.

¶11 Following OPM’s final decision, on July 9, 2018, the appellant filed a

petition for review, to which OPM has responded. PFR File, Tabs 3, 5. The

appellant reiterates his claims on the merits of his annuity determination and

additionally states that his request for reinstatement was delayed because he had

to produce medical records from the VA, which was a circumstance beyond his

control. PFR File, Tab 3 at 4-5. The appellant alternatively requests that his

petition for review be considered an appeal from OPM’s final decision. Id. at 5.

DISCUSSION OF ARGUMENTS ON REVIEW

¶12 When OPM dismisses an individual’s request for reconsideration of an

initial decision as untimely, the Board has jurisdiction over an app eal regarding

the timeliness determination. Kent v. Office of Personnel Management,

123 M.S.P.R. 103, ¶ 7 (2015). 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. Id. If the Board

determines that OPM’s timeliness determination was unreasonable or an abuse of

discretion, Board jurisdiction then attaches to the merits of the appeal. Id.

¶13 Under both the Civil Service Retirement System (CSRS) and the Federal

Employees’ Retirement System (FERS), a request for reconsideration of an initial

decision issued by OPM regarding retirement benefits generally must be r eceived

by OPM within 30 calendar days from the date of the initial decision. Id.;

5 C.F.R. §§ 831.109(e)(1), 841.306(d)(1). 4 OPM’s regulations provide that OPM

may extend the time limit when the individual shows either that (1) he was not

4

It is not clear from the record whether the appellant is covered under CSRS or FERS;

however, this distinction is not relevant for purposes of our analysis here as the

applicable regulatory standards governing the timeliness of reconsideration requests

under CSRS and FERS are essentially identical. See Kent, 123 M.S.P.R. 103, ¶ 8 n.5

(citing 5 C.F.R. §§ 831.109(e), 841.306(d)).

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notified of the time limit and was not otherwise aware of it, or (2) he was

prevented by circumstances beyond his control from making the re quest within

the time limit. Kent, 123 M.S.P.R. 103, ¶ 8; 5 C.F.R. §§ 831.109(e)(2),

841.306(d)(2). In relevant part, the regulations state that an “[OPM]

representative . . . may extend the time limit.” 5 C.F.R. §§ 831.109(e)(2),

841.306(d)(2). If an appellant shows that he qualified for an extension of the

time limit under OPM’s regulations, the Board will then consider whether OPM

acted unreasonably or abused its discretion in refusing to extend the time limit

and dismissing his request for reconsideration as untimely filed. Kent,

123 M.S.P.R. 103, ¶ 8.

¶14 Here, 6 calendar days after his request for reconsideration was due, the

appellant asked OPM for “extra time.” IAF, Tab 3 at 7-8. OPM responded that

the request must be received by OPM “within 30 calendar days of the date of this

letter.” 5 Id. at 6-7 (emphasis added). Accordingly, we find that the OPM

representative extended the time limit for the appellant to request reconsideration

to 30 days after the May 3, 2017 email exchange, or June 2, 2017. Although

OPM is aware of the timeliness issue on review, it has not addressed it. PFR File,

Tab 5. Instead, it argues that the appellant must file a new appeal of the

reconsideration decision. PFR File, Tab 5 at 6. OPM is mistaken. The Board’s

practice is to adjudicate an appeal that was premature when it was filed but

becomes ripe while pending with the Board. Simnitt v. Department of Veterans

Affairs, 113 M.S.P.R. 313, ¶ 9 (2010).

¶15 Our conclusion that OPM extended the appellant’s time to request

reconsideration is further supported by the fact that a t no point throughout the

appellant’s case, including in OPM’s responses to his Board appeal, did any

representative from OPM reference that his original request for reconsideration

was untimely. Rather, the various OPM representatives continually sought to

5

The date of that “letter” was May 3, 2017. IAF, Tab 3 at 6.

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work with the appellant to compile the requisite information and documents

necessary to make a final decision on the merits of his disability retirement

annuity. IAF, Tab 3 at 6-9, 12-14. It was not until after the administrative judge

issued the initial decision, and more than 1 year after OPM’s initial decision, that

OPM first referenced the untimeliness of the appellant’s request for

reconsideration. PFR File, Tab 3 at 6-7.

¶16 Because the appellant filed his request for reconsideration within the

extended time limit provided by OPM, the Board’s jurisdiction attaches to the

merits of the appeal. Kent, 123 M.S.P.R. 103, ¶ 7. The Board will now consider

the disability retirement eligibility issue de novo. See Licausi v. Office of

Personnel Management, 350 F.3d 1359, 1364 (Fed. Cir. 2003) (“Because the

Board engages in de novo consideration of the [disability retirement] eligibility

issue, it is not confined to either upholding OPM’s decision on the

ground invoked by OPM or remanding to OPM for further proceedings.”);

Ancheta v. Office of Personnel Management, 95 M.S.P.R. 343, ¶¶ 18-19 (2003)

(finding under Licausi that it was unnecessary to remand a disability retirement

appeal to OPM for a new reconsideration decision addressing the appellant’s

ability to render useful and efficient service and instead remanding to the Board’s

regional office for further proceedings). Thus, on remand, if the administrative

judge “is persuaded that the employee has met his or her burden of showing

entitlement to benefits, [he] will direct that benefits be awarded; otherwise, [he]

will sustain the denial of benefits.” Licausi, 350 F.3d 1359, 1364.

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ORDER

¶17 For the reasons discussed above, we remand this case to the Western

Regional Office for further adjudication in accordance with this Remand Order.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.