UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ANNE M. KENT,

Appellant,

v. 

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency. 

DOCKET NUMBER

AT-844E-15-0640-B-1

DATE: December 1, 2016

THIS ORDER IS NONPRECEDENTIAL1

Anne M. Kent, Hohenwald, Tennessee, pro se. 

Linnette Scott, Washington, D.C., for the agency. 

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

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

which affirmed the reconsideration decision by the Office of Personnel 

Management (OPM) dismissing the appellant’s request for reconsideration of 

OPM’s initial decision as untimely filed. For the reasons discussed below, we 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

GRANT the appellant’s petition for review, reverse the remand initial decision’s 

finding that the appellant failed to show that she was prevented by circumstances 

beyond her control from timely filing a request for reconsideration, and 

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

with this Remand Order. 

BACKGROUND

¶2 The appellant retired from Federal service and began receiving disability 

retirement benefits under the Federal Employees’ Retirement System (FERS) in 

1999. Kent v. Office of Personnel Management, MSPB Docket No. AT-844E-15-

0640-I-1, Initial Appeal File (IAF), Tab 5 at 55, 128. On May 18, 2011, OPM 

issued a disallowance decision informing her that she was not eligible for 

continued disability retirement payments and that her payments would stop after

May 1, 2012. Id. at 21, 23. The disallowance decision set forth the appellant’s 

right to request reconsideration of the decision, explaining that the request “must

be received by OPM within 30 days of the date of this letter.” Id. at 22. The 

appellant requested reconsideration in a letter dated June 21, 2011, stating, in 

part, that she received the disallowance decision on June 10, 2011. Id. at 19. 

¶3 Over 3 years later, by letter dated October 29, 2014, OPM informed the 

appellant that her request for reconsideration was untimely filed outside of the 

30-day time limit set forth in the disallowance decision. Id. at 7. The letter 

stated that OPM had the discretion to extend the time limit in limited 

circumstances prescribed by regulation—specifically, when an individual shows 

that she was not notified of the time limit and was not otherwise aware of it, or 

that circumstances beyond her control prevented her from making a timely 

request for reconsideration—and instructed her to submit evidence showing that 

she met one of these criteria. Id. at 7-8. The letter was returned to OPM as 

undeliverable, however, and OPM did not attempt to redeliver it to the appellant. 

Id. at 9; Kent v. Office of Personnel Management, MSPB Docket No. AT-844E-
3

15-0640-B-1, Remand File (RF), Tab 4 at 3. On June 3, 2015, OPM issued a 

reconsideration decision finding that the appellant failed to present any evidence 

showing that she was unable to file a request for reconsideration within the

regulatory time limit and dismissing her reconsideration request as untimely 

filed.2 IAF, Tab 5 at 4-5. 

¶4 The appellant timely appealed OPM’s reconsideration decision to the Board. 

IAF, Tab 1. In an initial decision, the administrative judge found that the 

appellant failed to establish that OPM’s determination of untimeliness was 

unreasonable or an abuse of discretion and affirmed OPM’s reconsideration 

decision. IAF, Tab 12, Initial Decision (ID). The appellant filed a petition for 

review, and the Board vacated and remanded the initial decision, finding that the 

administrative judge did not provide the appellant with correct notice of her 

jurisdictional burden and failed to conduct the correct review of OPM’s 

timeliness determination. Kent v. Office of Personnel Management, 123 M.S.P.R. 

103, ¶¶ 9-12 (2015); Kent v. Office of Personnel Management, MSPB Docket 

No. AT-844E-15-0640-I-1, Petition for Review File, Tabs 1, 5. After affording 

the appellant notice of her burden of proof and an opportunity to respond, the 

administrative judge issued a remand initial decision again affirming OPM’s 

dismissal of her request for reconsideration as untimely filed. RF, Tab 5, Remand

Initial Decision (RID) at 3-5. 

¶5 The appellant has filed a petition for review of the remand initial decision 

and a supplemental statement in support of her petition. Kent v. Office of 

Personnel Management, MSPB Docket No. AT-844E-15-0640-B-1, Remand 

Petition for Review (RPFR) File, Tabs 3, 8. OPM has not responded to the 

appellant’s petition for review. 

 

2 Although the reconsideration decision is dated “June 3, 2014,” IAF, Tab 5 at 4, OPM 

has stipulated that it was issued on June 3, 2015, and that the incorrect year was a 

typographical error, IAF, Tab 9. 
4

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 Under FERS, a request for reconsideration of an initial decision issued by 

OPM regarding retirement benefits generally must be received by OPM within 

30 calendar days from the date of the initial decision. 5 C.F.R. § 841.306(d)(1).

When OPM dismisses an individual’s request for reconsideration of an initial 

decision as untimely filed, the Board has jurisdiction over an appeal concerning 

the timeliness determination. Kent, 123 M.S.P.R. 103, ¶ 7. 

¶7 In reviewing OPM’s timeliness determination, the Board first will 

determine whether the appellant qualified for an extension under OPM’s 

regulations, which provide that OPM may extend the time limit when the 

individual shows either that: (1) she was not notified of the time limit and 

was not otherwise aware of it; or (2) she was prevented by circumstances beyond 

her control from making the request within the time limit. Id., ¶ 8; 5 C.F.R. 

§ 841.306(d)(2). The good cause standard the Board would apply to cases 

untimely filed with the Board is a more lenient standard than the narrower factual 

criteria under 5 C.F.R. § 841.306(d)(2). Azarkhish v. Office of Personnel 

Management, 915 F.2d 675, 677 n.1 (Fed. Cir. 1990); Kent, 123 M.S.P.R. 103, 

¶ 7. If the appellant establishes that she qualified for an extension or waiver of 

the filing deadline under section 841.306(d)(2), the Board then will consider 

whether OPM acted unreasonably or abused its discretion in refusing to extend or 

waive the time limit and dismissing her request for reconsideration as untimely 

filed. Kent, 123 M.S.P.R. 103, ¶ 8. If the Board determines that OPM’s 

timeliness determination was unreasonable or an abuse of discretion, the Board 

will reverse OPM’s dismissal of the request for reconsideration as untimely filed . 

Id., ¶ 7. 

¶8 The appellant argued below that it was impossible for her to provide OPM 

with the documentation it requested within 30 days and that she “did everything 

[she] could in a timely manner.” RF, Tab 3 at 6-10. She explained that, during 

the response period, she had to move out of her house and was in the middle of a 
5

divorce, and that her ex-husband was taking her mail. Id. She further asserted 

that her response was only 1 or 2 days late, while OPM took more than 3 years to 

notify her that her request for reconsideration was untimely filed. Id. at 7. In the 

remand initial decision, the administrative judge found that the appellant did not 

qualify for a filing deadline extension under OPM’s regulatory criteria because 

she was notified of, and was aware of, the filing deadline, and she failed to show 

that circumstances beyond her control prevented her from timely requesting 

reconsideration of the disallowance decision. RID at 3-5. Thus, the 

administrative judge did not reach the issue of whether OPM was unreasonable or 

abused its discretion in dismissing the appellant’s request for reconsideration as 

untimely filed. RID at 3-5. 

¶9 On review, the appellant argues that the administrative judge erred in 

finding that she failed to show that she was prevented by circumstances beyond 

her control from timely filing a request for reconsideration. RPFR File, Tab 3 

at 4-6, Tab 8 at 5-6. Specifically, she argues, as she did below, that she requested 

reconsideration as “quickly as [she] could while moving, going through a very 

nasty violent divorce, being sent to several doctors, having tests done [and] 

getting results.” Id. She also asserts that the 30‐day filing period should begin to 

run on the day she actually received the disallowance decision or on the next 

business day after it was mailed, which would make her June 21, 2011 request for 

reconsideration timely filed. RPFR File, Tab 3 at 4. 

¶10 As we noted in our remand order, the Board previously has held that an 

individual is entitled to a reasonable period of time to request reconsideration 

after the belated receipt of an initial OPM decision. Kent, 123 M.S.P.R. 103, ¶ 11 

n.7. Accordingly, the Board specifically directed the administrative judge to 

determine when the appellant received OPM’s disallowance decision and to weigh 

this factor in determining whether she was prevented by circumstances beyond 

her control from requesting reconsideration within the 30‐day time limit. Id. In 
6

the remand initial decision, the administrative judge appears to adopt the 

appellant’s unchallenged assertion that she received OPM’s May 18, 2011 

disallowance decision on June 10, 2011. RID at 2. OPM has not challenged this 

finding on review, and we find no basis to disturb it. 3 Thus, it follows that the 

appellant’s delayed receipt of the disallowance decision deprived her of 23 days 

of her 30-day filing period. Nonetheless, the administrative judge found that the 

appellant failed to show that she was prevented by circumstances beyond her 

control from making a timely request for reconsideration, even considering her 

shortened response time due to the mailing delay. RID at 3‐4. We disagree. 

¶11 In Williams v. Office of Personnel Management, OPM dismissed the 

appellant’s request for reconsideration as untimely filed by 1 day, and the 

appellant appealed the dismissal to the Board. Williams v. Office of Personnel 

Management, 100 M.S.P.R. 190, ¶¶ 2‐3, 8‐10 (2005). The Board found that the 

appellant in Williams was prevented by circumstances beyond her control from 

filing a timely request for reconsideration because she: did not receive OPM’s 

December 14, 2003 initial decision until December 23, 2003; she was 

experiencing medical conditions throughout the filing period; she attempted to 

call OPM to seek an extension of the filing period due to her incapacitating 

medical conditions; and OPM’s initial decision did not contain information 

regarding its discretion to grant an extension to the filing period. Id., ¶¶ 8-10. 

¶12 As in Williams, the appellant here was deprived of a significant portion of 

the 30-day filing period as a result of a mailing delay. Moreover, as in Williams, 

the disallowance decision here does not contain information regarding OPM’s

discretion to extend the filing period, nor the criteria for obtaining an extension, 

nor even information as to when or how an extension request must be made. IAF,

 

3

It appears that OPM sent the disallowance decision to a partially incorrect address; the 

appellant’s address in the heading of the disallowance decision lacks the apartment 

number, and includes only the street address of her building. Compare IAF, Tab 5

at 21, with id. at 27. As such, it is reasonable to expect that delivery would be delayed. 
7

Tab 5 at 21-22; Williams, 100 M.S.P.R. 190, ¶ 10. Although the appellant in 

Williams, unlike the appellant here, attempted to contact OPM by telephone to 

request an extension and suffered from medical conditions that inhibited her 

ability to meet the filing deadline, she had nearly 20 days remaining of her 30-day 

filing period when she received OPM’s initial decision, while the appellant here 

had only 7 days remaining. Accordingly, under the particular facts of this case, 

we find that the appellant was prevented by circumstances beyond her control 

from filing a timely request for reconsideration and, therefore, that she has met 

the regulatory requirement for a filing period extension under 5 C.F.R. 

§ 841.306(d)(2). 

¶13 We must determine next whether OPM acted unreasonably or abused its 

discretion in refusing to extend or waive the time limit and dismissing the 

appellant’s request for reconsideration as untimely filed. Kent, 123 M.S.P.R. 

103, ¶ 8. To be timely, the appellant’s request for reconsideration of OPM’s

May 18, 2011 initial decision must have been received by OPM no later than 

Friday, June 17, 2011. See 5 C.F.R. §§ 841.109, 841.306(d)(1). Although it is 

unclear from the record when OPM received the appellant’s June 21, 2011 request 

for reconsideration, OPM has stated that the envelope was postmarked June 22, 

2011. IAF, Tab 5 at 4. Assuming 5 days for mailing, OPM received the 

appellant’s request for reconsideration on or by Monday, June 27, 2011—at most, 

10 days past the filing deadline. 

¶14 In her request for reconsideration, the appellant indicated that she received 

the May 18, 2011 disallowance decision on June 10, 2011. Id. at 19. However, 

OPM did not acknowledge, or appear to consider, the appellant’s assertion 

regarding the delayed delivery in finding that she failed to show that she was 

unable to request reconsideration within the time limit. Id. at 4. Rather, OPM 

explained only that, “[o]n October 2014 we sent you a letter requesting evidence 

that would qualify for a waiver based on [the regulatory criteria]. As of the date 

of this letter we have received no evidence from you regarding these criteria.” Id. 
8

Thus, OPM concluded, “[s]ince you have not presented evidence to show that you 

were unable to file a request for reconsideration within the time limit provided by 

regulation, your reconsideration request is being dismissed as untimely filed.” Id. 

¶15 Although OPM’s determination rests on the appellant’s failure to present 

evidence in response to the October 29, 2014 timeliness letter, OPM was well 

aware that she never received that letter. Id. at 9; RF, Tab 4 at 3. As stated 

above, the timeliness letter was returned to OPM as undeliverable, and OPM 

concedes that it did not attempt to redeliver the letter or make “a subsequent 

attempt to inform the appellant of her opportunity to show that she was eligible 

for an extension of the filing deadline.” 4 IAF, Tab 5 at 9; RF, Tab 4 at 3. 

Further, even if the appellant had received the October 29, 2014 timeliness letter, 

her ability to prove that circumstances prevented her from timely filing her 

request for reconsideration during a 7-day period in June 2011, was substantially 

prejudiced by OPM’s unreasonable delay of more than 3 years in contacting her 

regarding the timeliness of her request for reconsideration. Again, however, 

OPM did not acknowledge or consider its failure to timely act in dismissing the 

appellant’s request for reconsideration as untimely filed. IAF, Tab 5 at 4. Lastly, 

because it appears that OPM failed to properly address the disallowance decision, 

the delayed delivery and the appellant’s shortened response time was due to 

OPM’s error. IAF, Tab 5 at 21, 27. 

¶16 In light of the above, as well as the appellant’s relatively short delay after 

receiving the disallowance decision, we find that OPM acted unreasonably and

abused its discretion in refusing to extend or waive the time limit and dismissing 

the appellant’s request for reconsideration as untimely filed. Accordingly, we 

reverse OPM’s dismissal of the appellant’s request for reconsideration as 

untimely filed. Kent, 123 M.S.P.R. 103, ¶ 7. 

 

4 Although OPM suggests that the letter was sent to the correct address and that the 

appellant failed to claim it, OPM has not provided a legible copy of the envelope 

showing the address to which it was mailed. RF, Tab 4 at 3. Id. at 9. 
9

¶17 When, as here, the Board determines that OPM’s timeliness determination 

was unreasonable or an abuse of discretion, Board jurisdiction attaches to the 

merits of the appeal. Id. The administrative judge may now adjudicate the merits 

of OPM’s disability retirement determination. See Williams, 100 M.S.P.R. 190, 

¶ 11. 

ORDER

¶18 For the reasons discussed above, we remand this case to the regional office 

for adjudication on the merits of OPM’s determination that the appellant was not 

eligible for continued disability retirement payment. 

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board