UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ARMELLE M. GUERRIER,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

NY-0843-17-0194-I-1

DATE: March 20, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Armelle M. Guerrier, Brooklyn, New York, 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 the reconsideration decision of the Office of Personnel Management

(OPM) denying her application for payment of a lump sum death benefit. 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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
BACKGROUND

The appellant filed a Board appeal of OPM’s reconsideration decision

denying her application for payment of a lump sum death benefit based on the

Federal service of a former annuitant. Initial Appeal File (IAF), Tab 1, Tab 8

at 6-8. On November 16, 2017, the administrative judge issued an initial decision

affirming OPM’s reconsideration decision. IAF, Tab 16, Initial Decision (ID).

The initial decision stated it would become final on December 21, 2017, unless a

petition for review was filed by that date. ID at 4. 

The appellant filed an initial appeal document with the Board’s

Northeastern Regional Office on February 10, 2018. Petition for Review (PFR)

File, Tabs 1, 3. Thereafter, the Office of the Clerk of the Board contacted the

appellant to clarify the intent of her filing. PFR File, Tab 3 at 1. Following the

telephone call, the Board docketed the February 10, 2018 pleading as a petition

for review and advised the appellant that it was untimely filed. Id. at 2. The

appellant has not provided a response to the Board’s acknowledgement letter, and

the agency has not responded to the petition for review. 

DISCUSSION OF ARGUMENTS ON REVIEW

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

within 35 days after the issuance of the initial decision or, if the appellant shows

that the initial decision was received more than 5 days after the day of issuance,

within 30 days after the date she received the initial decision. 5 C.F.R.

§ 1201.114(e). The appellant bears the burden of proof regarding timeliness,

which she must establish by preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(ii).

Here, the record reflects that the initial decision was sent by electronic mail

to the appellant on November 16, 2017—the date it was issued. IAF, Tab 17 at 1;

IAF, Tab 3 at 2; see 5 C.F.R. § 1201.14(e)(1) (2018) (stating that registration as

an e-filer constitutes consent to accept electronic service of pleadings filed by

other registered e-filers and documents issued by the Board). Thus, the petition

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

decision, or by December 21, 2017. See 5 C.F.R. § 1201.114(e). However, the

appellant filed a petition for review on February 10, 2018, almost 2 months past

the filing deadline. PFR File, Tab 1. 

The Board will excuse the late filing of a petition for review on a showing

of good cause for the delay. 5 C.F.R. § 1201.114(g). To establish good cause for

an 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). To determine whether an appellant

has shown good cause, the Board will consider the length of the delay, the

reasonableness of her excuse and her 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 misfortunate that similarly shows a causal

relationship to her inability to timely file her petition. Moorman v. Department of

the Army, 68 M.S.P.R. 60, 62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996)

(Table).

In an acknowledgement letter, the Office of the Clerk of the Board

informed the appellant that her petition for review was untimely filed and that she

could file a motion with the Board to accept her filing as timely or to waive the

time limit for good cause. PFR File, Tab 3. The letter also provided the

appellant a blank copy of the form motion for her to complete in order to satisfy

the requirement and stated that the motion must be sent by April 27, 2018. Id.

at 2. The appellant, however, failed to respond to the Office of the Clerk’s notice

regarding timeliness and did not otherwise attempt to explain the delay in filing

her petition for review.2 The appellant’s arguments regarding the merits of her

case do not establish good cause for a late filing. See Guevara v. Department of

2

 Although the appellant is acting pro se on review, the filing delay is significant. See

Alvarado v. Defense Commissary Agency, 88 M.S.P.R. 46, ¶¶ 4-5 (2001) (finding that a

filing delay of almost 2 months was significant). 

3
the Navy, 112 M.S.P.R. 39, ¶ 7 (2009). In light of the foregoing, we find that the

appellant has set forth no grounds for finding good cause for a waiver of the

filing deadline. See Wright v. Department of the Treasury, 113 M.S.P.R. 124,

¶¶ 7-8 (2010) (dismissing the petition for review as untimely filed with no good

cause shown when the petition for review was silent as to the reason for the delay

and the appellant provided no explanation for the late filing in response to the

Clerk’s notice); Mitchell v. Broadcasting Board of Governors, 107 M.S.P.R. 8,

¶ 8 (2007) (dismissing the petition for review as untimely filed without good

cause shown when the appellant filed her petition for review 2 months late and

did not respond to the Clerk’s notice to establish good cause for the delay). 

Accordingly, we dismiss the petition for review as untimely filed without

good cause shown. 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 this appeal. 

NOTICE OF APPEAL RIGHTS3

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. 

3

 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.

4
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. 

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

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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: 

6
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.4 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). 

4

 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. 

7
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. 

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.

8