Opinion

Jeff Lalley v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: Mar 19, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JEFF M. LALLEY, DOCKET NUMBER

Appellant, CH-0845-17-0495-I-1

OFFICE OF PERSONNEL DATE: March 19, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jeff M. Lalley , Cincinnati, Ohio, pro se.

Michael Shipley , 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 for lack of jurisdiction his appeal challenging the decision of the Office

of Personnel Management (OPM) finding that he had been overpaid in his

retirement annuity. For the reasons set forth below, we DISMISS the appellant’s

petition for review as untimely filed without good cause shown. 5 C.F.R.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

§ 1201.114(e), (g). Notwithstanding, we FORWARD the case to the Central

Regional Office for docketing and consideration as a new appeal.

BACKGROUND

On July 3, 2017, OPM issued a reconsideration decision affirming an

earlier decision which found that the appellant had been overpaid $4,654 in civil

service annuity benefits and informing him that it intended to collect the

overpayment by deducting monthly installments from his annuity checks. Initial

Appeal File (IAF), Tab 1 at 4-7. The appellant challenged the decision on appeal.

IAF, Tabs 3, 6. During adjudication, OPM rescinded the reconsideration decision

and moved that the appeal be dismissed for lack of jurisdiction stating that, after

the dismissal, it would review the calculation of the appellant’s annuity as there

appeared to be a deficiency which impacted the overpayment, and that the

appellant’s right to appeal would thereby be preserved. IAF, Tab 8. The

administrative judge ordered the appellant to show cause why his appeal should

not be dismissed, IAF, Tab 9, but he did not respond. 2

In her September 22, 2017 initial decision, the administrative judge found

that, when OPM completely rescinds the decision on which an appeal to the

Board is based, the appeal is no longer a matter within the Board’s jurisdiction.

Frank v. Office of Personnel Management, 113 M.S.P.R. 164, ¶ 5 (2010); IAF,

Tab 10, Initial Decision (ID) at 2. Finding that, because OPM completely

rescinded its reconsideration decision, the Board no longer retained jurisdiction

over this appeal, the administrative judge granted the agency’s motion to dismiss

it. ID at 1-2. She notified the appellant that the initial decision would become

final on October 19, 2017, unless a petition for review was filed by that date. ID

at 3.

According to the administrative judge, she contacted the appellant to review OPM’s

rescission letter with him, after which he decided against availing himself of the

opportunity to offer a written response addressing why his appeal should not be

dismissed. IAF, Tab 10, Initial Decision at 2.

On March 19, 2018, the appellant filed a petition for review, Petition for

Review (PFR) File, Tab 1, and with it a copy of OPM’s new reconsideration

decision dated February 22, 2018, 3 id. at 8-11. The Clerk of the Board notified

the appellant that his petition appeared to be untimely and ordered him to show

cause why it should not be dismissed as untimely filed. PFR File, Tab 2. The

appellant filed a Motion to Accept Filing as Timely and/or Ask the Board to

Waive or Set Aside the Time Limit. PFR File, Tab 3. OPM filed a response.

PFR File, Tab 5.

ANALYSIS

The appellant bears the burden of proof with regard to timeliness, which he

must prove by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(B). A petition

for review must be filed within 35 days after the date of issuance of the initial

decision or, if the party shows that he received the initial decision more than

5 days after it was issued, within 30 days of his receipt. Williams v. Office of

Personnel Management, 109 M.S.P.R. 237, ¶ 7 (2008); 5 C.F.R. § 1201.114(e).

The Board will waive the filing time limit for a petition for review only upon a

showing of good cause for the delay. Williams, 109 M.S.P.R. 237, ¶ 7; Alonzo v.

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

To establish good cause for an untimely filing, a party must show that he

exercised due diligence or ordinary prudence under the circumstances. Williams,

109 M.S.P.R. 237, ¶ 7. To determine whether an appellant has shown good cause,

the Board will consider the length of the delay, the reasonableness of his excuse

and his 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 limits or of unavoidable casualty or

misfortune which similarly shows a causal relationship to his ability to timely file

his petition. Id.

In the new reconsideration decision, OPM corrected the amount of the appellant’s

overpayment to $4,750.

In the affidavit the appellant filed in response to the Clerk’s show cause

order, he expressed confusion regarding his filing responsibilities, given the

administrative judge’s show cause order below, the Clerk of the Board’s order,

and the fact that OPM has filed a new reconsideration decision. PFR File, Tab 3

at 1-2. He also claims that he did not receive the initial decision, id. at 2,

although we note that it was mailed to his address of record, as were all

documents issued by the administrative judge and the Clerk of the Board.

Correspondence which is properly addressed and sent to the appellant’s address

via postal or commercial delivery is presumed to have been duly delivered to the

addressee. Marcantel v. Department of Energy, 121 M.S.P.R. 330, ¶ 5 (2014);

5 C.F.R. § 1201.22(b)(3). The initial decision was not returned. Moreover, the

appellant acknowledges receiving the administrative judge’s show cause order

which was mailed 2 days before the initial decision was issued. PFR File, Tab 3

at 1. Despite the appellant’s claim to the contrary, we find that the initial

decision was duly delivered to him, and that it clearly set forth the time limit for

filing a petition for review. Notwithstanding his pro se status, we further find

that the appellant has failed to show good cause for the 5-month delay in filing

his petition for review, and it is dismissed.

However, given OPM’s issuance of a new reconsideration decision from

which the appellant has a right of appeal, and the fact that his purported petition

for review is not only timely filed from that reconsideration decision but also

appears to challenge it on the merits, we find it appropriate to forward this matter

to the Central Regional Office for docketing and consideration as a new appeal

from OPM’s February 22, 2018 reconsideration decision finding that the appellant

has been overpaid in his annuity.

Accordingly, 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 its dismissal for lack of jurisdiction of the appellant’s appeal

from OPM’s July 3, 2017 reconsideration decision.

NOTICE OF APPEAL RIGHTS 4

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 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:

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.

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. 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

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. 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