The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TEDDY MEDWID, DOCKET NUMBER
Appellant, NY-0831-18-0096-I-1
v.
OFFICE OF PERSONNEL DATE: April 26, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Nancy Medwid , Esquire, Plainfield, New Jersey, for the appellant.
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 that
affirmed the agency’s denial of his annuity recalculation request under the Civil
Service Retirement System (CSRS). For the reasons set forth below, the
appellant’s petition for review is DISMISSED as untimely filed without good
cause shown. 5 C.F.R. § 1201.114(e), (g).
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
In April 2018, the appellant filed an appeal with Board contesting the
agency’s denial of his annuity recalculation request under the CSRS. Initial
Appeal File (IAF), Tab 1. Specifically, the appellant contended that the lump
sum payment that he received as part of a settlement agreement with his former
employing agency was actually back pay and that it should be considered as
additional years of service for annuity calculation purposes. Id. at 5, 8, 12, 14.
The administrative judge issued an initial decision on June 20, 2018, affirming
the agency’s decision to deny the appellant’s request because he failed to prove
that the lump sum payment was designated as back pay. IAF, Tab 13, Initial
Decision (ID). The initial decision advised the parties that it would become the
final decision of the Board on the appeal, unless a party filed a petition for review
by July 25, 2018. ID at 3. The instructions and procedures for filing a petition
for review with the Board were included. ID at 3-7. Because the Board lacked a
quorum at the time the initial decision was issued, the initial decision notified the
parties that decisions on petitions for review could not be rendered by the Board
until a quorum was restored and stated that, “[t]he lack of a quorum does not
serve to extend the time limit for filing a petition or cross petition. Any party
who files such a petition must comply with the time limits specified herein.”
ID at 4.
The appellant filed his petition for review with the Board via U.S. mail on
August 13, 2018. Petition for Review (PFR) File, Tab 1. The Office of the Clerk
of the Board informed the appellant that his petition appeared untimely filed and
provided him with an opportunity to demonstrate that it was timely filed or that
good cause existed to waive the time limit. PFR File, Tab 2 at 1-3, 7-8. The
appellant, through his attorney representative, responded by stating that he did
not file his petition in a timely manner because the Board was not issuing
decisions on such petitions. PFR File, Tab 5 at 1. The agency moved to have the
appellant’s petition for review dismissed as untimely filed. PFR File, Tab 4 at 4.
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ANALYSIS
The appellant bears the burden to prove by preponderant evidence that his
petition for review is timely filed. Perry v. Office of Personnel
Management, 111 M.S.P.R. 337, ¶ 5 (2009); 5 C.F.R. § 1201.56(b)(2)(i)(B). A
petition for review must generally be filed within 35 days after the date of
issuance of the initial decision or, if the petitioner shows that the initial decision
was received more than 5 days after the date of issuance, within 30 days after the
date the petitioner received the initial decision. Retzler v. Department of the
Navy, 114 M.S.P.R. 361, ¶ 4 (2010); 5 C.F.R. § 1201.114(e). The Board will
waive this time limit only upon a showing of good cause. Barker v. Department
of the Air Force, 98 M.S.P.R. 10, ¶ 7 (2004); 5 C.F.R. § 1201.114(g). To
establish good cause, a party must show that he exercised due diligence or
ordinary prudence under the particular circumstances of the case. Brame v.
Department of Veterans Affairs, 98 M.S.P.R. 224, ¶ 4 (2005). To determine
whether an appellant has shown good cause, the Board will consider the length of
the delay, the reasonableness of the appellant’s excuse and his showing of due
diligence, whether he is proceeding pro se, and whether he has presented
evidence of circumstances beyond his control, unavoidable casualty, or
misfortune that prevented him from timely filing his petition. Id.; Alonzo v.
Department of the Air Force, 4 M.S.P.R. 180, 184 (1980).
The initial decision was served on the appellant via U.S. mail on
June 20, 2018. IAF, Tab 14. The Board recognizes that documents placed in the
mail are presumed to be received within 5 days. Williamson v. U.S. Postal
Service, 106 M.S.P.R. 502, ¶ 7 (2007). The appellant has not set forth any
argument that he received the initial decision more than 5 days after its issuance.
Therefore, as correctly outlined in the initial decision, the appellant’s deadline
for filing his petition for review was July 25, 2018, which was 35 days after
the issuance of the initial decision. ID at 3; see Retzler, 114 M.S.P.R. 361, ¶ 4;
5 C.F.R. § 1201.114(e).
4
The appellant’s petition for review is postmarked August 13, 2018. PFR
File, Tab 1 at 4. The date of a filing by mail is determined by the postmark date,
meaning the appellant filed his petition 19 days beyond the deadline. 5 C.F.R.
§ 1201.4(l). This is not a minimal delay, especially considering that the appellant
was represented by counsel. See Gonzalez v. Department of Veterans Affairs ,
111 M.S.P.R. 697, ¶ 11 (2009) (finding that an 8-day filing delay was “not
minimal”); Lima v. Department of the Air Force, 101 M.S.P.R. 64, ¶ 8 (2006)
(finding that a 9-day delay in filing a petition for review by an appellant
represented by counsel was “not minimal”). Moreover, the appellant’s sole
argument to establish good cause was that the Board lacked a quorum during the
filing period, meaning no decisions on petitions were being issued. PFR File,
Tab 5 at 1. In the initial decision however, the appellant received explicit notice
that the Board’s lack of a quorum did not serve as justification to extend the
filing period of a petition for review. ID at 4. The appellant also received notice
to comply with the time limits despite the Board’s lack of a quorum. ID at 4. It
is not an exercise of due diligence or ordinary prudence when a party fails to take
heed of the instructions and deadline date contained in an initial decision
regarding the filing of a petition for review. McNevin v. Department of the Air
Force, 77 M.S.P.R. 108, 112 (1997). As a result, we find that the appellant has
not established good cause to justify waiving the 19-day filing delay.
Accordingly, we dismiss his petition for review as untimely filed.
This is the final decision of the Board concerning the timeliness of the
appellant’s petition for review. The initial decision remains the final decision of
the Board concerning the merits of the appeal. 5 C.F.R. § 1201.113(c).
5
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
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:
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
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
7
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
8
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
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.
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
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.
9
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.