United States Court of Appeals 

for the Federal Circuit 

__________________________ 

LINDA S. HUBBARD, 

Petitioner, 

v. 

MERIT SYSTEMS PROTECTION BOARD, 

Respondent. 

__________________________ 

2009-3242 

__________________________ 

Appeal from the Merit Systems Protection Board in 

PH844E090317-I-1. 

______________________________ 

Decided: May 27, 2010 

______________________________ 

PAUL VICTOR JORGENSEN, of Middletown, Maryland, 

argued for petitioner. 

CALVIN M. MORROW, Attorney, Office of the General 

Counsel, Merit Systems Protection Board, of Washington, 

DC, argued for respondent. With him on the brief were 

JAMES M. EISENMANN, General Counsel, and KEISHA 

DAWN BELL, Deputy General Counsel. 

__________________________ 

Before LOURIE, FRIEDMAN, and LINN, Circuit Judges. 
HUBBARD v. MSPB 2

FRIEDMAN, Circuit Judge. 

The Merit Systems Protection Board (“Board”) dismissed, as untimely filed, an appeal from the Office of 

Personnel Management (“OPM”)’s denial of an application 

for a federal employee’s disability retirement annuity 

benefits. We affirm. 

I 

Following her resignation “[f]or health related reasons” as a secretary after more than twenty years of 

federal service, the appellant Linda S. Hubbard applied to 

OPM for disability retirement. OPM denied those benefits because Hubbard had “not established that [she had] 

a disabling medical condition that meets the criteria for 

entitlement to disability retirement benefits.” 

OPM denied Hubbard’s request for reconsideration of 

that decision. It stated that “we have again concluded 

that documentation presented does not show that you 

meet the eligibility requirements specified under current 

law and regulation.” OPM’s letter to Hubbard informing 

her of its decision concluded with the following statement: 

You have the right to appeal this decision 

to the Merit Systems Protection Board 

(MSPB). If you wish to exercise this right, 

please note that an appeal must be filed 

within 30 calendar days after the date of 

this decision, or 30 days after receipt of 

this decision, whichever is later. 

OPM’s letter to Hubbard was dated November 5, 2008. 

Her notice of appeal to the Board was dated March 5, 

2009, and shows that the Board received it on that date. 

(She was then acting pro se, but is represented by counsel 

in this appeal.) 

In an order dated April 9, 2009, the Board’s administrative judge stated that “the appeal may be untimely.” 
3 HUBBARD v. MSPB

After noting the factual issues relating to the timeliness 

issue and describing the governing criteria, the order 

concluded as follows: 

Accordingly, the appellant shall file evidence and argument demonstrating that 

the appeal was timely filed or that good 

cause exists for the delay. OPM shall file 

any evidence in its possession relevant to 

the issue of timeliness. The parties’ submissions shall be filed to be received by 

April 20, 2009. 

Hubbard did not reply to that directive. 

By order dated April 24, 2009, the administrative 

judge dismissed the appeal. In his initial decision, which 

became final when Hubbard did not seek Board review of 

it, the administrative judge stated: 

I issued an order requiring the appellant 

to demonstrate that the appeal was timely 

filed or show good cause for its untimeliness . . . She did not file a response to the 

order. As the appeal appears to have been 

untimely, and she submitted no evidence 

demonstrating good cause for the delay, 

the appeal must be dismissed. 

In a footnote, the administrative judge stated that he 

had “also ordered OPM to file any evidence in its possession relevant to the issue of timeliness,” which it still had 

not done, but “[b]ecause the appellant herself [had] not 

attempted to demonstrate that the appeal should be 

considered timely filed, [did] not further pursue the 

matter with OPM.” 

II 

Hubbard contends that since the record does not show 

when she received OPM’s order denying reconsideration, 
HUBBARD v. MSPB 4

the administrative judge had no basis for ruling that her 

appeal was untimely. She relies upon Hamilton v. Merit 

Systems Protection Board, 75 F.3d 639 (Fed. Cir. 1996), 

and Williams v. Equal Employment Opportunity Commission, 75 M.S.P.R. 144 (1997). In Hamilton, this court 

reversed a Board decision dismissing an appeal as untimely because the administrative judge had failed to tell 

the employee that he “simply presumed the appealed 

decision was received by the employee five days after the 

date it bears.” 75 F.3d at 646–47. In Williams, the Board 

“adopt[ed]” “as standard procedure for all cases” this 

court’s “statement[ ]” in Hamilton that “[b]efore dismissing an appeal, an administrative judge should inform an 

appellant of the date that a document triggering the 

running of the appeal period will be presumed to have 

been received, in the absence of direct evidence.” 75 

M.S.P.R. at 148. 

In the present case, unlike Hamilton, nothing in the 

record indicates or even suggests that, in determining the 

timeliness of the appeal, the administrative judge relied 

on any presumption that the employee received OPM’s 

decision within a specified time of mailing. To the contrary, it appears that the administrative judge dismissed 

the appeal as untimely solely because “the appellant 

herself has not attempted to demonstrate that the appeal 

should be considered timely filed.” As the administrative 

judge’s order told Hubbard, “[t]he appellant has the 

burden of proof, by a preponderance of the evidence, on 

the issue of timeliness. 5 C.F.R. § 1201.56(a)(2)(ii) 

(2008).” 

The administrative judge’s failure to inform the appellant of his “presumption” of five-day delivery was a critical factor in the Hamilton decision. As this court there 

stated: 

The AJ in this case had evidence only of 

the filing date, not the date of receipt 
5 HUBBARD v. MSPB

which started the period running. Before 

dismissal, the AJ could and should have 

asked both parties for such evidence. Further the AJ must then inform the parties 

of the dates on which the AJ intends to 

rely to support the dismissal. Only by 

knowing those dates before a final order is 

issued can an appellant make a meaningful response by way of either challenging 

the dates or showing good cause for the 

period of delay. 

75 F.3d at 646. Here, as distinguished from Hamilton

and Williams the administrative judge did not rely on any 

presumption, and therefore did not fail to inform Hubbard 

of the time frame upon which he would base his ruling 

whether the appeal was timely. 

In any event, even if he had committed such an error, 

it was harmless. The administrative judge unequivocally 

instructed Hubbard to “file evidence and argument demonstrating that the appeal was timely filed or that good 

cause exists for the delay.” Hubbard never responded to 

this order. Indeed, to this day she has not submitted any 

facts showing either that she filed within thirty days of 

receiving OPM’s reconsideration decision or that there 

was good cause for her failure to do so. In the circumstances, the administrative judge could justifiably conclude that Hubbard could not factually support either 

such claim. 

Hubbard contends that the administrative judge’s order did not give her sufficient time to prepare an adequate response. She did not seek additional time to 

respond, however, or after the administrative judge had 

dismissed her appeal, seek rehearing on the basis of facts 

showing either timely filing or a good cause for her filing 

delay. This case thus sharply contrasts with Hamilton

where, after the administrative judge had dismissed the 
HUBBARD v. MSPB 6

appeal as untimely, Hamilton submitted evidence that 

her appeal was timely (which the Board refused to consider). 

Hubbard also contends that her medical problems 

precluded her from timely responding to the administrative judge’s filing directive. This contention, however, 

appears undermined by the fact that, when shortly before 

that OPM initially rejected her disability retirement 

application and told her she could seek reconsideration 

within thirty days, she did so twenty days later. In any 

event, this contention should have been raised before the 

administrative judge, and not for the first time in this 

appeal. 

This court has pointed out: “A petitioner who ignores 

an order of the Administrative Judge does so at his or her 

peril.” Mendoza v. Merit Sys. Prot. Bd., 966 F.2d 650, 653 

(Fed. Cir. 1992) (en banc). Hubbard’s failure even to 

respond to the administrative judge’s order directing her 

to “file evidence and argument demonstrating that the 

appeal was timely filed or that good cause exists for the 

delay” justified the administrative judge’s conclusion that 

her appeal was untimely and should be dismissed. 

CONCLUSION

The order of the Board dismissing the appeal as untimely is 

AFFIRMED.