The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LARRY D. DAVIS, DOCKET NUMBER
Appellant, CH-0845-18-0459-I-3
v.
OFFICE OF PERSONNEL DATE: February 2, 2024
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Larry D. Davis , Indianapolis, Indiana, pro se.
Alison Pastor , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his appeal as untimely refiled without good cause shown for the delay.
For the reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the regional office for
further adjudication in accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
On September 19, 2011, the appellant entered into Federal Employees’
Retirement System (FERS) disability retirement from the U.S. Postal Service.
Davis v. Office of Personnel Management, MSPB Docket No. CH-0845-18-0459-
I-1, Initial Appeal File (IAF), Tab 1 at 24. On November 7, 2017, the Office of
Personnel Management (OPM) notified the appellant that he had been overpaid
$23,545.02 in interim pay, which it proposed to collect through withholdings
from his annuity. Id. at 2-11. The appellant timely requested reconsideration, but
OPM began the proposed withholdings anyway without issuing any further
decision on the matter. 2 Id. at 12-18, 42. In April and May 2018, the appellant
requested in writing that OPM stop the withholdings, but it does not appear that
OPM responded. Id. at 42-45.
On July 3, 2018, the appellant filed a Board appeal and requested a hearing.
IAF, Tab 1 at 46, Tab 3 at 1, 5-6. He sought an explanation of the overpayment
determination as well as resolution of ongoing disputes concerning deductions for
life and health insurance. IAF, Tab 3 at 3-6. OPM moved to dismiss the appeal
for lack of jurisdiction because it had not yet issued a final decision on the
overpayment. IAF, Tab 7. The administrative judge convened a status
conference, during which OPM stated that it was holding its final decision in
abeyance due to the appellant’s premature Board appeal. IAF, Tab 10 at 1. OPM
further stated that, if the Board appeal were dismissed without prejudice, it
expected a final reconsideration decision on all matters to be issued within
45 days. Id. The parties agreed to a dismissal without prejudice. Id. at 2.
Accordingly, on September 12, 2018, the administrative judge issued an initial
decision dismissing the appeal without prejudice to refiling within 30 days after
the appellant’s receipt of OPM’s reconsideration decision. IAF, Tab 11, Initial
Decision at 2. Alternatively, if the appellant did not receive a reconsideration
2
OPM’s notice of overpayment stated that “[c]ollection actions will be suspended at all
levels of review if a timely request [for reconsideration] is received.” IAF, Tab 1 at 4.
3
decision from OPM, the appeal would be automatically refiled in 90 days. Id.
OPM did not issue a reconsideration decision, and the appeal was automatically
refiled on December 12, 2018. Davis v. Office of Personnel Management, MSPB
Docket No. CH-0845-18-0459-I-2, Appeal File (I-2 AF), Tabs 1-2.
On February 19, 2019, OPM filed a pleading, stating that it had determined
that its November 7, 2017 initial decision reflecting a debt of $23,545.02 was in
error. I-2 AF, Tab 6 at 4-5. It further stated that it had ceased collections and
refunded the collected money to the appellant. Id. at 5, 10. It appears that OPM
maintained the validity of the debt but that it satisfied the debt using
erroneously-charged life insurance deductions and unpaid accrued annuity that it
otherwise would have refunded to the appellant. Id. at 5.
The administrative judge convened another status conference, during which
the appellant stated that OPM’s pleading did not address another overpayment
notice that he had received regarding his health benefits and that he wished to
have a summary of all payments that he received from OPM and the Social
Security Administration so he could ensure that the amounts were correct. I-2
AF, Tab 9 at 1. The parties consented to a dismissal without prejudice to allow
OPM to address the health benefits overpayment issue, allow the appellant to
review the summary of payments, and give OPM time to address any further
questions that the appellant might have. Id. at 1-2. On March 6, 2019, the
administrative judge issued an initial decision dismissing the appeal without
prejudice, with a refiling deadline of September 6, 2019. I-2 AF, Tab 10, Initial
Decision (I-2 ID).
On September 9, 2019, the appellant refiled his appeal, asserting that OPM
had been unresponsive to his requests for information. Davis v. Office of
Personnel Management, MSPB Docket No. CH-0845-18-0459-I-3, Appeal File
(I-3 AF), Tab 1 at 3-4, 7. The administrative judge issued a timeliness order,
notifying the appellant that his refiled appeal appeared to be untimely, and
informing him of his burden to prove that it was either timely or there was good
4
cause for the delay. I-3 AF, Tab 3. The appellant responded, stating that he
missed the deadline because he was waiting in hopes that he would receive a final
decision from OPM. I-3 AF, Tab 4. The administrative judge issued an initial
decision, finding that the appeal was untimely, that the appellant failed to
establish good cause to waive the refiling deadline, and dismissing the appeal on
that basis. I-3 AF, Tab 6, Initial Decision (I-3 ID).
The appellant has filed a petition for review, addressing the merits of his
claim, arguing that OPM has still not issued a final decision in his case, and
asserting that the administrative judge should have instituted an automatic
refiling date as she did for the first dismissal without prejudice. Petition for
Review (PFR) File, Tab 1. OPM has filed a response to the petition for review,
and the appellant has filed a reply to OPM’s response. PFR File, Tabs 4, 6.
ANALYSIS
The appellant has shown good cause for untimely refiling his appeal.
It is undisputed that the appellant refiled his appeal 3 days past the
deadline. Therefore, the only issue is whether the filing deadline should be
waived. In her initial decision, the administrative judge considered the factors
that are generally applicable in determining whether to waive a filing deadline.
I-3 ID at 3-5; see Moorman v. Department of the Army, 68 M.S.P.R. 60, 62-63
(1995), aff’d per curiam, 79 F.3d 1167 (Fed. Cir. 1996) (Table). Although the
administrative judge did not err in considering these general standards as part of
her overall determination, see Baumunk v. Department of Health and Human
Services, 69 M.S.P.R. 622, 625 (1996), it does not appear that she accounted for
the more specific factors that the Board has identified for determining whether
good cause exists for excusing an untimely refiled appeal of a matter previously
dismissed without prejudice. 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;
5
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. Sherman v. U.S. Postal Service, 118 M.S.P.R. 265, ¶ 9 (2012).
In this case, we find that the appellant has been proceeding pro se
throughout the appeal process, there were only two prior dismissals without
prejudice, the 3-day filing delay was minimal, and OPM expressly consented to
the dismissal without prejudice. I-2 AF, Tab 9; see Brown v. Office of Personnel
Management, 86 M.S.P.R. 417, ¶ 8 (2000) (finding the appellant’s 5-day refiling
delay to be “relatively de minimis”). In addition, it has been clear throughout the
proceedings that the appellant intended to refile his appeal if he was not satisfied
with OPM’s final decision and accounting of his annuity payments. See
Hodges v. Office of Personnel Management, 101 M.S.P.R. 212, ¶¶ 2, 12 (2006)
(concluding it was clear that an appellant intended to refile her appeal of OPM’s
discontinuation of her disability retirement benefits if her alleged involuntary
retirement appeal against her former employing agency was not successful). Nor
is there any indication that OPM was prejudiced by the delay. Unlike adverse
action cases, in which an expedient response to an appeal enables the agency to
move forward with the management of its programs, in a retirement benefits
appeal, there is no such need for finality to compete with an appellant’s right to a
decision on the merits. Karker v. Office of Personnel Management, 80 M.S.P.R.
235, ¶ 9 (1998); Edney v. Office of Personnel Management, 79 M.S.P.R. 60, ¶ 6
(1998). The Board has therefore placed a high priority on resolving retirement
benefits cases on the merits and has found that any doubt about whether to waive
a filing deadline for an adjudication on the merits should be resolved in favor of
the appellant. Lamb v. Office of Personnel Management, 110 M.S.P.R. 415, ¶ 10
(2009). Regarding the timeliness of the initial appeal, it was not untimely. In
fact, OPM characterized the appeal below as “premature” because the appellant
filed it before OPM had issued a reconsideration decision. IAF, Tab 7 at 4-5.
6
We find that the only factor that weighs against waiving the filing deadline
is the lack of any confusion surrounding that deadline. The refiling deadline in
this case was clear; the administrative judge stated plainly in her initial decision
that “[t]he appeal must be refiled by September 6, 2019 or it will be considered
untimely.” 3 I-3 ID at 2. There is nothing in the record that indicates to us that
the appellant was confused about the deadline, and we see nothing in the deadline
or the way that it was expressed that lends itself to misinterpretation.
The appellant argues that the administrative judge should have set an
automatic refiling date, as she did with the first dismissal without prejudice. PFR
File, Tab 1 at 6; IAF, Tab 11 at 2. We disagree. The administrative judge, and
apparently both parties, hoped that intervening events might resolve the
appellant’s case without further involvement from the Board. I-2 AF, Tab 9. The
Board has recognized such administrative efficiency as a basis for an
administrative judge to exercise her wide discretion to dismiss an appeal without
prejudice. Thomas v. Department of the Treasury, 115 M.S.P.R. 224, ¶ 7 (2010).
We are mindful that OPM was the architect of the conditions that led to the
untimely refiling, first by initiating collections despite the appellant’s request for
reconsideration, then by failing to issue a reconsideration decision within the
initial 90-day dismissal without prejudice period, much less within the 45-day
time period that it anticipated, and finally by failing to issue a reconsideration
decision and final accounting within the 6 months that the administrative judge
allotted during the second dismissal without prejudice period. IAF, Tab 1
at 12-18, 42, Tab 10; I-2 ID at 1-2. We find that, under the particular facts of this
case, it would be inequitable to extinguish the appellant’s statutory right of
appeal at his first misstep when that misstep was occasioned by OPM’s continued
delays in issuing a decision.
3
The 6-month refiling deadline was, however, more or less arbitrary. See Jackson v.
Office of Personnel Management, 89 M.S.P.R. 302, ¶ 10 (2001) (waiving the refiling
deadline after weighing, among other factors, that the refiling deadline was “relatively
arbitrary”).
7
Considering the totality of the circumstances, we find good cause to waive
the refiling deadline for this appeal. See Sherman, 118 M.S.P.R. 265, ¶¶ 10-13
(finding good cause for an 81-day delay in refiling despite the length of the delay
and three prior dismissals without prejudice because the appellant was pro se,
timely filed his initial appeal, and did not indicate any intention to abandon his
appeal; the agency did not assert it would be prejudiced by allowing the refiled
appeal to proceed; and there was confusion surrounding the refiling deadline).
Shenwick v. Department of State, 90 M.S.P.R. 192, ¶¶ 8-11 (2001) (waiving a
16-day delay in refiling an individual right of action (IRA) appeal when the
appellant’s initial appeal was timely, she expressed no intent to abandon her IRA
appeal, she refiled her IRA appeal at the same time she filed a removal appeal so
that the two appeals could be adjudicated together, and the agency did not claim it
would be prejudiced by the waiver). While reminding the appellant of the
importance of attending to the orders and deadlines set by the administrative
judge, we waive the refiling deadline this time and remand the appeal for further
adjudication.
On remand, the administrative judge must make a determination as to whether the
Board has jurisdiction over this appeal.
On remand, the administrative judge should determine whether the Board
has jurisdiction over the appeal and, if so, make a decision on the merits. At this
point, there are unresolved issues that may affect the Board’s jurisdiction.
OPM asserted below that it has not issued a final decision on the
overpayment “at this time” because the alleged overpayment no longer exists. I -2
AF, Tab 6 at 5-6. The meaning of this statement is unclear. We cannot tell
whether OPM still intends to issue a final decision or whether the pleading itself
should be deemed OPM’s final decision on the matter. See Okello v. Office of
Personnel Management, 120 M.S.P.R. 498, ¶ 14 (2014) (recognizing that OPM is
deemed to have issued an appealable decision when it has (1) issued a
reconsideration (or final) decision, (2) issued an initial decision without
8
reconsideration rights, or (3) refused or improperly failed to issue a final
decision); Triplett v. Office of Personnel Management, 100 M.S.P.R. 571, ¶ 5
(2005) (explaining that when OPM has rescinded its reconsideration decision
after the appellant files a Board appeal, and does not issue a replacement, its
silence is an implicit negative reconsideration decision, and Board proceedings
may recommence). OPM does not contend that an overpayment never existed.
Rather, it contends that it has satisfied the overpayment by other means. I-2 AF,
Tab 6 at 5-6. OPM may have ceased collections and refunded the withholdings,
but its action of satisfying the alleged overpayment by applying prior annuity
underpayments and a retroactive refund of life insurance premiums still affected
the appellant’s rights and interests under FERS. Id. at 5, 12-18; see 5 U.S.C.
§ 8461(e)(1) (codifying an annuitant’s right to file a Board appeal of an action
affecting his rights or interests under FERS). Indeed, the appellant appears to be
arguing that the life insurance premiums should have been refunded directly to
him. PFR File, Tab 1 at 6.
Based on the appellant’s petition for review there appears to be other,
possibly related, matters in dispute. First, the appellant appears to be arguing that
he is due unpaid benefits from April 12, 2009, to January 1, 2011. PFR File, Tab
1 at 3. He also appears to argue that OPM is responsible for a $22,926.79 health
insurance payment as assessed by the Mail Handlers Benefit Plan, $13,083.03 of
which must be repaid before his insurance is reinstated. Id. at 4, 6. It is not clear
that these matters are within the Board’s jurisdiction, particularly the alleged
health insurance overpayment, see Chamblin v. Office of Personnel Management,
112 M.S.P.R. 266, ¶ 7 (2009) (finding that Federal employee health insurance and
life insurance programs generally are outside the Board’s jurisdiction), but we
find that it would be more appropriate for the administrative judge to make these
jurisdictional findings in the first instance. On remand, the administrative judge
should determine whether these or any other matters are still in dispute, and if so,
which matters are within the Board’s jurisdiction.
9
Although the appellant filed several previous appeals concerning his FERS
annuity benefits, none of his prior appeals resulted in a decision on the merits;
they were all dismissed for lack of jurisdiction because OPM had either not
issued, or had subsequently rescinded, its final decision. Davis v. Office of
Personnel Management, MSPB Docket No. CH-0841-15-0102-I-1; Davis v. Office
of Personnel Management, MSPB Docket No. CH-0841-17-0036-I-1; Davis v.
Office of Personnel Management, MSPB Docket No. CH-0845-18-0212-I-1.
Thus, his prior appeals do not appear to preclude his current appeal. However,
depending on how the record and issues develop on remand, the administrative
judge may wish to revisit whether these prior jurisdictional determinations
collaterally estop the appellant from asserting jurisdiction in the instant appeal.
See Hau v. Department of Homeland Security, 123 M.S.P.R. 620, ¶ 13 (2016)
(explaining when collateral estoppel may be grounds for dismissing an appeal for
lack of jurisdiction), aff’d sub nom. Bryant v. Merit Systems Protection Board ,
878 F.3d 1320 (Fed. Cir. 2017).
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.