# Terry Chapman v. Office of Personnel Management

> Merit Systems Protection Board · March 18, 2024

URL: https://www.frixlaw.com/law-library/cases/9951927

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** March 18, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

TERRY R. CHAPMAN, DOCKET NUMBER
Appellant, PH-0841-17-0440-I-1

v.

OFFICE OF PERSONNEL DATE: March 18, 2024
MANAGEMENT,
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Terry R. Chapman , Baltimore, Maryland, pro se.

Carla Robinson , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which
dismissed as withdrawn his appeal of a final decision by the Office of Personnel
Management (OPM) denying his application for retirement under the Federal
Employees’ Retirement System (FERS). For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed without good
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

cause shown, 5 C.F.R. § 1201.114(e), (g), and his request to reopen his appeal is
DENIED, 5 C.F.R. § 1201.118.

BACKGROUND
From 1992 to until his resignation in 2005, the appellant was employed by
the Social Security Administration. Initial Appeal File (IAF), Tab 10 at 16-18.
On May 8, 2005, he requested a refund of his retirement deductions, agreeing that
he understood that “payment of a refund will result in permanent forfeiture of any
retirement rights that are based on the period(s) of [FERS] service which the
refund covers.” Id. at 20. OPM authorized the refund on September 13, 2005.
Id. at 12. In 2017, he applied for retirement under FERS. Id. at 8-10. OPM
issued a final decision dated September 1, 2017, finding that the appellant was
not eligible for retirement annuity benefits under FERS because he had received a
refund of his retirement deductions. Id. at 6-7.
On September 11, 2017, the appellant timely appealed OPM’s final
decision to the Board. IAF, Tabs 1, 3. He subsequently requested to withdraw
his appeal, affirming in a recording that he wished to withdraw his appeal against
OPM and that he understood the administrative judge would dismiss the appeal.
IAF, Tab 12. In a December 8, 2017 initial decision, the administrative judge
found that the appellant’s request to withdraw the appeal was clear, decisive, and
unequivocal, and granted his request. IAF, Tab 13, Initial Decision (ID).
In May 2018, the appellant submitted a new pleading to the regional office,
stating, in part, that he did not wish to withdraw his claim and that he agreed to
withdraw it because the administrative judge suggested that his “dispute was with
or is with SSA.” Petition for Review (PFR) File, Tab 1 at 6. The regional office
forwarded the pleading to the Board for docketing as a petition for review of the
initial decision. Id. at 1. The Clerk of the Board notified the appellant that his
petition for review appeared to be untimely filed and directed him to file a motion
to accept the filing as timely or to waive the time limit for good cause. PFR
3

File, Tab 2. The appellant responded and moved that the Board accept his filing
as timely or to waive the time limit for good cause shown. PFR File, Tab 4. The
agency has responded to the appellant’s petition for review. PFR File, Tab 3.
The appellant has filed an untimely reply to the agency’s response. PFR File,
Tab 5.

ANALYSIS
The appellant’s petition for review is untimely filed without good cause shown.
A petition for review generally must be filed within 35 days after the date
of the issuance of the initial decision or, if the party filing the petition shows that
he received the initial decision more than 5 days after it was issued, within
30 days after he received the initial decision. Palermo v. Department of the Navy,
120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R. § 1201.114(e). Because the
administrative judge issued the initial decision in this case on December 8, 2017,
any petition for review of the initial decision must have been filed by January 12,
2018. ID at 1, 9; 5 C.F.R. § 1201.114(e). The appellant, however, did not submit
his petition for review until May 16, 2018—more than 4 months after the
deadline. PFR File, Tab 1. As noted above, the appellant asserts that he has been
having problems receiving mail at his home. PFR File, Tab 4 at 3-6. However,
he has not alleged that he received the initial decision more than 5 days after its
issuance or that he timely filed his petition for review within 30 days of his
delayed receipt of the initial decision. Id. Thus, we find that the appellant’s
petition for review was untimely filed.
The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the delay in filing. Palermo, 120 M.S.P.R.
694, ¶ 4; 5 C.F.R. §§ 1201.113(d), 1201.114(f). The party who submits an
untimely petition for review has the burden of establishing good cause for the
untimely filing by showing that he exercised due diligence or ordinary prudence
under the particular circumstances of the case. Id. To determine whether a party
4

has shown good cause, the Board will consider the length of the delay, the
reasonableness of his excuse and the party’s showing of due diligence, whether he
is proceeding pro se, and whether he has presented evidence of the existence of
circumstances beyond his control that affected his ability to comply with the time
limits or of unavoidable casualty or misfortune that similarly shows a causal
relationship to his inability to timely file his petition. Id. Here, the appellant’s
4-month delay in filing his petition for review is significant, notwithstanding his
pro se status. E.g., Dow v. Department of Homeland Security, 109 M.S.P.R. 633,
¶¶ 3, 8 (2008) (finding a delay of more than 1 month to be significant,
notwithstanding the appellant’s pro se status). Although, as noted above, the
appellant alleges that he has been seeking acupuncture treatment, he has not
shown, or alleged, that such treatment precluded him from timely filing a petition
for review or that any other circumstances affected his ability to comply with the
time limit. Therefore, we conclude that the appellant has failed to demonstrate
good cause for the untimeliness of his petition for review.

We deny the appellant’s request to reopen his appeal of OPM’s final decision.
We also consider the appellant’s petition for review as a request to reopen
his withdrawn appeal. Little v. Government Printing Office, 99 M.S.P.R. 292,
¶ 10 (2005). Generally, an appellant’s withdrawal of an appeal is an act of
finality that removes the appeal from the Board’s jurisdiction. Cason v.
Department of the Army, 118 M.S.P.R. 58, ¶ 5 (2012). Absent unusual
circumstances, such as misinformation or new and material evidence, the Board
will not reopen an appeal once it has been withdrawn merely because the
appellant wishes to proceed before the Board or to cure an untimely petition for
review. Id. A case may be reopened in the interests of justice when the evidence
is of such weight as to warrant a different outcome, but the Board will reopen a
case only if the appellant has exercised due diligence in seeking reopening.
Bilbrew v. U.S. Postal Service, 111 M.S.P.R. 34, ¶ 14 (2009).
5

Here, the appellant has not alleged that the withdrawal was against his
directions or without his knowledge. Rather, as noted above, he alleges that he
withdrew his appeal on the basis of the administrative judge’s advice that his
“dispute was with or is with SSA.” PFR File, Tab 1 at 6. He further alleges that
he contacted SSA and that a representative informed him that he has “no recourse
with their agency.” PFR File, Tab 4 at 8-10, 15. Although misinformation may
be a basis to reopen a withdrawn appeal, the appellant has not alleged that the
administrative judge informed him that he had to withdraw his appeal against
OPM in order to pursue an action against SSA or that any such action against
SSA would be favorable. PFR File, Tabs 1, 4. Thus, he has not shown that he
received misinformation sufficient to warrant reopening the appeal. In addition,
he has not provided any evidence that would warrant a different outcome.
Finally, we find that he did not exercise due diligence in seeking reopening, as he
waited 5 months after the initial decision was issued to do so. See Bilbrew,
111 M.S.P.R. 34, ¶ 14 (finding that the appellant did not exercise due diligence
when he waited 2 months after the initial decision was issued file a request to
reopen). Accordingly, we deny the appellant’s request to reopen this appeal.

ORDER
In light of the foregoing, we dismiss the petition for review as untimely
filed. This is the final decision of the Merit Systems Protection Board regarding
the timeliness of the petition for review. The initial decision remains the final
decision of the Board regarding the appellant’s withdrawal of his appeal of
OPM’s September 1, 2017 final decision.

NOTICE OF APPEAL RIGHTS 2
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
2
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.
6

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:
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.
7

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. 420 (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
8

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. 3 The court of appeals must receive your petition for
3
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
9

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.

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.
10

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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9951927. Public record. Not legal advice.