Opinion

Lan Tran_Nguyen v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: May 13, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.0%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LAN THI TRAN NGUYEN, DOCKET NUMBER

Appellant, SF-0842-18-0369-I-1

OFFICE OF PERSONNEL DATE: May 13, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Lan Thi Tran Nguyen , La Habra, California, pro se.

Jo Bell , 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

affirmed a decision of the Office of Personnel Management (OPM) denying her

request for a deferred annuity. 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).

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

The appellant filed an appeal challenging OPM’s final decision denying her

application for a deferred annuity under the Federal Employees Retirement

System (FERS). Initial Appeal File (IAF), Tab 1. On May 25, 2018, the

administrative judge issued an initial decision affirming OPM’s decision, finding

that the appellant failed to prove by a preponderance of the evidence that she had

5 years of creditable civilian service at the time of her separation necessary to be

entitled to a deferred FERS annuity. IAF, Tab 18. On February 1, 2019, the

appellant filed a petition for review. Petition for Review (PFR) File, Tabs 1, 4.

The Board’s regulations provide that a petition for review must be filed

within 35 days of the date of issuance of the initial decision, or if the party filing

the petition shows that the initial decision was received more than 5 days after it

was issued, within 30 days after the party received the initial decision. 5 C.F.R.

§ 1201.114(e). Here, the initial decision was issued via electronic mail on

May 25, 2018, and clearly notified the appellant that the deadline for filing a

petition for review was June 29, 2018. IAF, Tabs 18-19. Thus, the appellant’s

February 1, 2019 petition for review was over 7 months untimely. 2

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. 5 C.F.R. §§ 1201.113(d),

1201.114(g). To establish good cause for the untimely filing, a party must show

that she exercised due diligence or ordinary prudence under the particular

circumstances of the case. Alonzo v. Department of the Air Force, 4 M.S.P.R.

180, 184 (1980). The appellant has filed a motion to accept the petition for

review as timely filed or to set aside the deadline in which she asserts that she did

not file her petition within the deadline because she was overseas, tired of

litigation, and it was too expensive. 3 PFR File, Tab 5 at 8. We are not persuaded

The appellant does not contend that she received the initial decision more than 5 days

after it was issued.

The appellant has also filed a motion to submit an additional pleading. PFR File,

Tab 7. We deny the appellant’s motion to the extent it does not appear to raise facts

material to the timeliness issue in this appeal. See 5 C.F.R. 1201.114(a), (k).

that these assertions warrant a waiver of the deadline for filing a petition for

review. See, e.g., Melendez v. Department of Homeland Security , 112 M.S.P.R.

51, ¶¶ 13-14 (2009) (finding that vacations and other such competing time

demands do not constitute good cause for an untimely filing); Lawson v.

Department of Homeland Security, 102 M.S.P.R. 185, ¶ 6 (2006) (finding no good

cause for an untimely petition where the appellant alleged that he lacked the

financial resources to hire an attorney to represent him). 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 affirming OPM’s final

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

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.

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.

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

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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.