UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

ROCITA M. LAWSON,

Appellant,

v.
OFFICE OF PERSONNEL MANAGEMENT,

Agency. DOCKET NUMBER DC-0845-14-0588-I-1

DATE: May 31, 2024



### THIS FINAL ORDER IS NONPRECEDENTIAL 1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1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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).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. 2In 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) 3(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. 4(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 5receive 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: 6Office 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. 7Additional 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