The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROCITA M. LAWSON, DOCKET NUMBER
Appellant, DC-0845-14-0588-I-1
v.
OFFICE OF PERSONNEL DATE: May 31, 2024
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Rocita M. Lawson , Washington, D.C., 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 her appeal of the Office of Personnel Management’s reconsideration
decision denying her request to waive collection of her overpayment as untimely
filed. For the reasons set forth below, the appellant’s petition for review is
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
DISMISSED as untimely filed without good cause shown. 5 C.F.R.
§ 1201.114(e), (g).
In the July 31, 2014 initial decision, the administrative judge instructed the
appellant that the initial decision would become final on September 4, 2014,
unless a petition for review was filed by that date. Initial Appeal File (IAF),
Tab 6, Initial Decision (ID) at 4-5. On September 3, 2019, roughly 5 years after
the finality date, the appellant filed her petition for review. Petition for Review
(PFR) File, Tab 1 at 23.
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
she received the initial decision more than 5 days after it was issued, within
30 days after she 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). Here, the appellant
has not alleged that she received the initial decision more than 5 days after it was
issued. PFR File, Tab 1. Thus, the deadline to file a petition for review was
September 4, 2014. Her September 2019 petition for review of the initial
decision was untimely filed by roughly 5 years. ID at 4-5; PFR File, Tab 1.
The Board will waive the time limit for filing a petition for review only
upon a showing of good cause for the filing delay. Palermo, 120 M.S.P.R. 694,
¶ 4; 5 C.F.R. §§ 1201.113(d), 1201.114(g). The party who submits an untimely
petition for review has the burden of establishing good cause for the untimely
filing by showing that she exercised due diligence or ordinary prudence under the
particular circumstances of the case. Palermo, 120 M.S.P.R. 694, ¶ 4. To
determine whether a party has shown good cause, the Board will consider the
length of the delay, the reasonableness of her excuse and showing of due
diligence, whether she is proceeding pro se, and whether she has presented
evidence of the existence of circumstances beyond her control that affected her
ability to comply with the time limits or of unavoidable casualty or misfortune
that shows a causal relationship to her inability to timely file her petition. Id.
3
In her petition for review, the appellant addressed the untimeliness of her
April 2014 initial appeal, which was dismissed as untimely filed, but not the
untimeliness of her petition for review. PFR File, Tab 1 at 1-6; IAF, Tab 1;
ID at 1. She further attaches documents seemingly addressing the merits of her
initial appeal. PFR File, Tab 1 at 10-21. In an acknowledgment letter dated
September 5, 2019, the Acting Clerk of the Board informed the appellant that her
petition for review was untimely filed, and that an untimely filed petition for
review must be accompanied by a motion to either accept the filing as timely and/
or waive the time limit for good cause. PFR File, Tab 2 at 1-2. The Acting Clerk
provided specific instructions regarding the requirements for such a motion, as
well as a sample “Motion to Accept Filing as Timely or to Waive Time Limit”
form, and allowed the appellant until September 20, 2019, to submit the motion.
Id. at 2, 7-8. Furthermore, the Acting Clerk expressly informed the appellant
that, if she did not timely submit the motion, “the Board [might] issue an order
dismissing [her] petition for review as untimely, which would result in the initial
decision becoming the Board’s final decision.” Id. at 2.
The appellant did not respond to the Acting Clerk’s letter in the allotted
time, and never provided any such motion. Rather, the appellant submitted a
request to withdraw her petition for review. PFR File, Tab 4. The Acting Clerk
informed the appellant that, pursuant to agency policy, the Office of the Clerk of
the Board was unable to grant the withdrawal of a petition for review that was
untimely filed, and that the Board would address her request following restoration
of a quorum. PFR File, Tab 6 at 1.
An appellant’s relinquishment of her right to appeal to the Board must be
by clear, unequivocal, and decisive action. Rosso v. Department of Homeland
Security, 113 M.S.P.R. 271, ¶ 9 (2010). However, we need not reach that issue,
as we find her petition for review was untimely filed without good cause shown.
The appellant’s roughly 5-year delay in filing in this case is significant.
See Wirzberger v. Department of the Treasury , 101 M.S.P.R. 448, ¶ 8 (2006)
4
(finding that a year-long delay in filing a petition for review was significant),
review dismissed, 212 F. App’x 965 (Fed. Cir. 2006). Because the appellant has
not shown that she exercised due diligence or ordinary prudence under the
particular circumstances of the case, her petition for review must be dismissed as
untimely filed without good cause shown.
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 the untimeliness of her initial appeal.
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.
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.
5
(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
6
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:
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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
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
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.
8
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.
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.