UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

VONDELISE JONES,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

CH-0831-20-0072-I-1

DATE: January 24, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Vondelise Jones, Stow, Ohio, pro se.

Tiffany Slade, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, 

which affirmed the reconsideration decision issued by the Office of Personnel 

Management (OPM), denying her request for a former spouse survivor annuity. 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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). 

BACKGROUND

¶2 On November 8, 2019, the appellant filed an appeal challenging OPM’s 

reconsideration decision denying her request for a former spouse survivor 

annuity. Initial Appeal File (IAF), Tab 1 at 4, 11-14. After affording the 

appellant her requested hearing, the administrative judge issued an initial decision

on June 24, 2020, affirming OPM’s reconsideration decision. IAF, Tab 23, Initial 

Decision (ID) at 2, 6-7. The initial decision included instructions that it would 

become final on July 29, 2020, unless a petition for review was filed by that date. 

ID at 7.

¶3 On October 4, 2021, the Clerk of the Board received a letter from the Equal 

Employment Opportunity Commission (EEOC) denying the appellant’s petition 

for review of the initial decision referenced above. PFR File, Tab 1. 

Subsequently, on October 20, 2021, the Clerk of the Board received a submission 

from the appellant that included the EEOC letter via U.S. mail, postmarked 

October 19, 2021. Petition for Review (PFR) File, Tab 2. She confirmed via 

telephone on November 1, 2021, that her submission was a petition for review of 

the June 24, 2020, initial decision. PFR File, Tabs 2, 3. The Acting Clerk of the 

Board issued an acknowledgment letter, advising the appellant that her petition 

for review was untimely filed and informing her that she must establish good 

cause for the untimely filing. PFR File, Tab 3 at 1-3. To assist the appellant, the 

Acting Clerk of the Board attached a form “Motion to Accept Filing as Timely 

and/or to Ask the Board to Waive or Set Aside the Time Limit. Id. at 2, 7-8. 

The appellant filed the required motion. PFR File, Tab 4. The agency has not 

responded to the petition for review.
3

DISCUSSION OF ARGUMENTS ON REVIEW

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

within 35 days after the date of the 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. See 5 C.F.R. § 1201.114(e); see also Palermo v. Department of the 

Navy, 120 M.S.P.R. 694, ¶ 3 (2014). Here, the administrative judge issued the 

initial decision on June 24, 2020, and correctly informed the appellant that she 

was required to file any petition for review no later than July 29, 2020. ID at 1, 

7. The appellant filed her petition for review on October 19, 2021. PFR File, 

Tab 2 at 8; Tab 3 at 1. As such, we find that the petition for review is untimely 

filed by over 1 year and 2 months.

¶5 The Board may waive its timeliness regulations only upon a showing of 

good cause for the untimely filing. Palermo, 120 M.S.P.R. 694, ¶ 4; 5 C.F.R. 

§§ 1201.12, 1201.114(g). The party who submits an untimely petition for review 

has the burden of establishing good cause 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; 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 misfortune which similarly shows a causal relationship to 

her inability to timely file her petition. Palermo, 120 M.S.P.R. 694, ¶ 4; 

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). The Board may decline to excuse a pro se 

appellant’s minimal delay when she fails to establish that she acted with due 
4

diligence. See, e.g., Lockhart v. Office of Personnel Management, 94 M.S.P.R. 

396, ¶¶ 7-8 (2002).

¶6 Although the appellant is pro se, the remaining factors disfavor finding that 

good cause exists for her delay in filing. Her filing delay of over 1 year and 

2 months is significant. See Wirzberger v. Department of the Treasury, 

101 M.S.P.R. 448, ¶ 8 (noting that a 1-year delay in filing a petition for review 

was significant, even when considering her pro se status), review dismissed, 

212 F. App’x 965 (Fed. Cir. 2006). We have also considered the appellant’s 

assertion that the filing deadline should be waived because of her various 

physical and mental health conditions. PFR File, Tab 4 at 6-9. The Board will 

find good cause for an untimely filing when a party demonstrates that 

she suffered from an illness or medical condition that affected her ability to file 

on time. See Pirkkala v. Department of Justice, 123 M.S.P.R. 288, ¶ 19 (2016). 

To establish that an untimely filing was the result of an illness, the party must

(1) identify the time period during which she suffered from the illness, (2) submit 

medical evidence showing that she suffered from the alleged illness during that 

time period, and (3) explain how the illness prevented her from timely filing her 

petition or a request for an extension of time. Lacy v. Department of the Navy, 

78 M.S.P.R. 434, 437 (1998). The party need not prove incapacitation, only that 

her ability to file was affected or impaired by the medical condition. Id.

¶7 In her motion to waive the time limit for filing a petition for review the 

appellant states that “[she] was not [her]self mentally, [and she] didn’t get much 

personal care in 2020 cause[sic] of COVID-19.” PFR File, Tab 4 at 8. With her 

motion, she provides documentation to support her claim that her conditions 

hindered her ability to timely file her petition for review, including an after-visit 

summary dated December 14, 2020, a problem list of her physical and mental 

health conditions, and what appears to be an appointment list, noting 

a lymphedema daily visit on November 11, 2020. Id. at 3-5. The problem list 
5

includes, amongst other things, malignant neoplasm of the thyroid gland, primary 

hyperparathyroidism, type 2 diabetes mellitus with hyperglycemia, peripheral 

nervous system disorder, paranoid schizophrenia, intellectual disability, rectal 

bleeding, and lower abdominal pain. Id. at 4.

¶8 Although the appellant generally states that her mental and physical health 

prevented her from filing her petition for review in a timely manner, she has not 

specifically explained how her conditions prevented her from filing a petition for 

review or motion for an extension of time. Id. at 6-9. As noted above, 

the appellant’s medical documents identify her various medical conditions; 

however, they fail to explain how her illnesses prevented her from timely filing a 

petition for review for the duration of the relevant period between the issuance of 

the initial decision on June 24, 2020, and the deadline for filing her petition for 

review on July 29, 2020. Id. at 3-5; see Pirkkala, 123 M.S.P.R. 288, ¶ 20 

(finding that the appellant failed to explain how her shoulder problems affected 

her ability to file a timely removal appeal); Stribling v. Department of Education, 

107 M.S.P.R. 166, ¶¶ 10-11 (2007) (finding that an appellant failed to establish 

good cause for an untimely filing despite her assertion that she suffered from 

anxiety and depression because she did not present any evidence that specifically 

addressed her condition during the relevant time period, and because she failed to 

explain how her medical conditions prevented her from making a timely filing or 

requesting an extension).

¶9 Accordingly, we conclude that the appellant has failed to show that she 

exercised due diligence or ordinary prudence in this case that would warrant a 

finding of good cause for the delay in filing her petition for review. See Shiflett 

v. U.S. Postal Service, 839 F.2d 669, 670-74 (Fed. Cir. 1988) (noting that the 

Board may grant or deny the waiver of a time limit for filing an appeal, in the 

interest of justice, after considering all the facts and circumstances of a particular 

case). 
6

¶10 The appellant also motions to submit additional evidence “that was not 

readily available when the records closed” in her timeliness motion.

2

PFR File, 

Tab 4 at 7, 10-11. The appellant’s evidence addresses the merits of her appeal 

and is not relevant to the dispositive timeliness issue. See Brockman v. 

Department of Defense, 108 M.S.P.R. 490, ¶ 8 (2008) (observing that 

an appellant’s documents submitted for the first time on review and arguments on 

the merits of his appeal were not relevant to the untimeliness of his petition for 

review). We, therefore, deny the appellant’s motion. 

¶11 Consequently, 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 OPM’s denial of the appellant’s request for a former spouse 

survivor annuity.

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). 

 

2

In her motion to waive the time limit for filing a petition for review, the appellant 

motions to submit the initial decision in the instant appeal and 5 U.S.C. § 8467 as 

additional evidence supporting her entitlement to a former spouse survivor annuity. 

PFR File, Tab 4 at 7, 10-11. The initial decision is in the record below, IAF, Tab 23; 

therefore, it does not constitute new evidence. See Meier v. Department of the Interior, 

3 M.S.P.R. 247, 256 (1980). Similarly, the law cited by the appellant is not new and 

was in effect when she filed her appeal from OPM’s reconsideration decision. She has 

not shown that the provisions contained therein were not otherwise available, despite 

her due diligence. See 5 C.F.R. § 1201.115; Grassell v. Department of Transportation,

40 M.S.P.R. 554, 564 (1989). Therefore, as set forth above, we decline to consider this 

evidence.

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.
7

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: 

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. 
8

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. ____ , 137 S. Ct. 1975 (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 
9

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 
10

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). 

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. 

 

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. 
11

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:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board