UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

CAROL L. BRINK-MEISSNER,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

PH-844E-14-0077-I-1

DATE: August 5, 2014

THIS ORDER IS NONPRECEDENTIAL1

Elliott Andalman, Esquire, Silver Spring, Maryland, for the appellant.

Thomas Styer, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

REMAND ORDER

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

dismissed as untimely filed her appeal of the Office of Personnel Management

(OPM)’s reconsideration decision denying her application for disability 

retirement. For the reasons discussed w, we GRANT the appellant’s petition for 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

review, REVERSE the initial decision, and REMAND the case to the regional 

office for further adjudication in accordance with this Order.

¶2 OPM denied the appellant’s application for disability retirement in an 

August 22, 2013 reconsideration decision. Initial Appeal File (IAF), Tab 1 

at 8-12. The decision, received by the appellant on August 24, 2013, and by her 

designated attorney on August 26, 2013, stated that, if the appellant wished to file 

an appeal, she must do so within 30 calendar days of the date of the decision, or 

30 days after receipt, whichever was later. Id. at 11-12. The appellant’s attorney

e-filed an appeal on her behalf on October 18, 2013. Id. at 1.

¶3 OPM moved that the appeal be dismissed as untimely filed, arguing that, 

given the date(s) of receipt of the reconsideration decision, the appeal had to be 

filed by September 25, 2013, that allowing for the shutdown of the federal 

government from October 1 through 17, 2013, the appeal was 6 days late, and that 

the appellant had failed to show good cause for the filing delay. IAF, Tabs 4, 9. 

In response, the appellant’s attorney stated that, unbeknownst to him, the decision 

was erroneously date stamped as being received in his office on September 4, 

2013, and that, allowing for the shutdown, he timely filed the appeal within 

30 days of that date. IAF, Tab 5 at 7-8. He further stated that the appellant took 

steps to make sure that her attorney would timely file the appeal and that, in

assuring her that he would do so, he unintentionally misled her. Id. at 6. For 

these reasons, the appellant’s attorney urged the administrative judge to waive the 

6-day filing delay. 

¶4 The administrative judge dismissed the appeal as untimely filed. IAF, 

Tab 10, Initial Decision (ID) at 1, 6. She found that the appellant is responsible 

for the actions and omissions of her chosen representative, ID at 5, and that 

miscalculation of the number of days in which to file an appeal is not good cause 

for waiver of the filing deadline, ID at 5.
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¶5 The appellant has filed a petition for review, Petition for Review (PFR) 

File, Tab 1, OPM has responded in opposition, PFR File, Tab 3, and the appellant

has replied to that response, PFR File, Tab 4.

¶6 The administrative judge found, and it well established, that an appellant is 

generally responsible for the errors of his chosen representative. See Sofio v. 

Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981). However, the Board has 

held that it is inappropriate to apply the Sofio principle if an appellant shows that 

her diligent efforts to prosecute her appeal were thwarted, without her knowledge, 

by her attorney’s deceptions and negligence. Dunbar v. Department of the Navy, 

43 M.S.P.R. 640, 643-45 (1990). As set forth below, we find that the appellant

has made the requisite showing under Dunbar in this case.

¶7 The appellant’s attorney acknowledges that, regarding the date stamp, a 

member of his office staff “inexplicably” committed an error upon which he 

reasonably relied and that any neglect on his part in relying on that date stamp 

was excusable neglect. IAF, Tab 8 at 16. The Board has found that excusable 

neglect must be based on more than mere forgetfulness and that it may be shown 

if the neglectful behavior is such as might be expected on the part of a reasonably 

prudent person under the circumstances. Alonzo v. Department of the Air Force, 

4 M.S.P.R. 180, 184 n.1 (1980). We have no reason to doubt the accuracy of the 

account the appellant’s attorney has given concerning the filing of the appeal. 

His allegations are supported by his sworn statement, IAF, Tab 5 at 10-11, and 

have not been rebutted by the agency, see Dunbar, 43 M.S.P.R. at 644.

¶8 In addition, the appellant’s allegations regarding her actions are supported 

by her sworn statement, IAF, Tab 5 at 12-13, and have not been rebutted by the 

agency. She explained that, when she received OPM’s reconsideration decision 

on August 24, 2013, she notified her attorney that she wished him to file an 

appeal on her behalf and that, on August 26, 2013, she dropped off a copy of 

OPM’s decision at her attorney’s office and spoke with her attorney’s senior 

paralegal who told her that her attorney would timely file the appeal. Thereafter, 
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she stated, she contacted the attorney’s office five or six times during the week 

following her receipt of OPM’s decision to be sure that the appeal would be 

timely filed and that she also explained that she would be out of town for a month 

and was assured that the appeal would be timely filed. She indicated that she 

contacted the office upon her return on October 3, 2013, and was advised by her 

attorney that he had attempted to file the appeal on October 2, 2013, but had been 

unable to do so, due to the government shutdown, and that he would e-file the 

appeal when the shutdown was over, which he did, explaining to her that the 

30-day time limit had not yet run, as he had not received OPM’s reconsideration 

decision until September 4, 2013. The appellant stated that she relied on the 

assurances of her attorney that the appeal would be timely filed and that she was 

misled by him, believing that he would timely file the appeal on her behalf. Id. 

We find, under the circumstances, that the appellant’s reliance on her attorney’s 

assurances was reasonable. See Dunbar, 43 M.S.P.R. at 644; see also Sullivan v. 

Office of Personnel Management, 88 M.S.P.R. 499, ¶¶ 8-9 (2001); Crawford v. 

Department of State, 60 M.S.P.R. 441, 446 (1994); cf. Lagreca v. U.S. Postal 

Service, 114 M.S.P.R. 162, ¶ 10 (2010) (good cause for untimely filing not shown 

where the appellant failed to assert that she actively monitored her appeal).

¶9 In view of the above, we find that the appellant has shown good cause for 

the 6-day delay in filing her appeal. 2

 See Dunbar, 43 M.S.P.R. at 645. In so 

finding, we acknowledge that the Board has placed a high priority on resolving 

retirement benefits cases on the merits, see Karker v. Office of Personnel 

Management, 80 M.S.P.R. 235, ¶ 9 (1998), on the basis that such cases are not 

adversarial proceedings, and thus “any doubt as to whether the Board should 

waive the filing deadline for an adjudication on the merits should be resolved in 

 2 Our determination is unaffected by the appellant’s claim regarding the merits of her 

claim before OPM, PFR File, Tab 1 at 5-6, which has no bearing on the issue of 

timeliness, cf. Santillan v. Department of Homeland Security, 98 M.S.P.R. 78, ¶ 8 

(2004) (an appellant’s discussion of the merits is irrelevant to the issue of the timeliness 

of his petition for review).
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favor of the appellant . . . . ” Id. (citing Edney v. Office of Personnel 

Management, 79 M.S.P.R. 60, 61-63 (1998)). We further note that OPM has not 

asserted that its ability to defend this appeal was prejudiced by the brief filing 

delay. We therefore waive the filing deadline. See Sullivan, 88 M.S.P.R. 499, 

¶ 10; Crawford, 60 M.S.P.R. at 446.

ORDER

For the reasons discussed above, we REVERSE the initial decision and 

REMAND this case to the regional office for further adjudication in accordance 

with this Remand Order.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board