UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

TERESA ANN BUTERA,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

AT-0831-17-0326-I-1

DATE: October 28, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

Teresa Ann Butera, Helena, Alabama, pro se.

Carla Robinson, 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 

dismissed her appeal of a final decision of the Office of Personnel Management 

(OPM) reducing her retirement annuity as untimely. Generally, we grant 

petitions such as this one only in the following circumstances: the initial decision 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

contains erroneous findings of material fact; the initial decision is based on an 

erroneous interpretation of statute or regulation or the erroneous application of 

the law to the facts of the case; the administrative judge’s rulings during either 

the course of the appeal or the initial decision were not consistent with required 

procedures or involved an abuse of discretion, and the resulting error affected the 

outcome of the case; or new and material evidence or legal argument is available 

that, despite the petitioner’s due diligence, was not available when the record 

closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. 

§ 1201.115). After fully considering the filings in this appeal, we conclude that 

the petitioner has not established any basis under section 1201.115 for granting 

the petition for review. Therefore, we DENY the petition for review. Except as 

expressly MODIFIED to vacate the administrative judge’s finding regarding the 

delay between the appellant’s alleged realization of the reduction in her monthly 

benefit check and the filing of her initial appeal, we AFFIRM the initial decision. 

¶2 On petition for review, the appellant repeats her request that the Board 

allow her to make a deposit for her post-1956 military service in order to avoid 

the reduction of her retirement annuity by OPM. Petition for Review (PFR) File, 

Tab 1. She repeats her assertion that she did not receive OPM’s final decision 

letter informing her that her annuity would be reduced by eliminating credit for 

her post-1956 military service. Id.; Initial Appeal File (IAF), Tab 5 at 7-8. 

Although she maintains that she has been unable to update her address with OPM, 

she confirms that her daughter lives at the address to which OPM’s final decision 

letter was sent. PFR File, Tab 1. Finally, the appellant asserts for the first time 

on review that her daughter “never received this particular piece of mail or she 

would have given it to [the appellant],” because her daughter generally called the 

appellant when she received mail at the address. Id. The appellant has not shown 

that this argument regarding her daughter is based on new and material evidence 

not previously available despite her due diligence. See Banks v. Department of 

the Air Force, 4 M.S.P.R. 268, 271 (1980); 5 C.F.R. § 1201.115(d). 
3

¶3 The appellant did not request a hearing, and the timeliness issue was 

decided on the basis of the written record. IAF, Tab 1 at 2, Tab 12, Initial 

Decision (ID) at 1. The initial decision correctly found that the appeal was 

untimely and that the appellant failed to show good cause for her untimeliness. 

ID at 3-4. Although the appellant is pro se, a 245-day2delay in filing is 

significant, as the administrative judge correctly pointed out. ID at 4; see Crook 

v. U.S. Postal Service, 108 M.S.P.R. 553, ¶ 6, aff’d, 301 F. App’x 982 (Fed. Cir. 

2008). 

¶4 The appellant’s bare assertion that she did not receive OPM’s final 

decision, while acknowledging that she previously received OPM correspondence 

through her daughter at the address of record, is unconvincing. IAF, Tab 11 at 1. 

The Board has held in other circumstances that an appellant’s general statement, 

without more, that her petition for review was lost in the mail is not sufficient to 

show timeliness. See Robinson v. Office of Personnel Management, 56 M.S.P.R. 

325, 327 (noting that the appellant failed to provide any evidence or specifically 

allege the date on which the petition was allegedly filed), aff’d, 5 F.3d 1505 (Fed. 

Cir. 1993). She failed to provide any explanation regarding the date and 

circumstances of her receipt of OPM’s decision letter, which she submitted into 

the record before OPM’s first submission in the present appeal. IAF, Tab 3. 

Moreover, as noted by the administrative judge, the address to which OPM mailed 

the final decision was the same address of record the appellant designated in the 

present appeal, despite her assertion below that she had not resided at that address 

since 2005. ID at 3; IAF, Tab 1 at 1, Tab 11 at 1. 

 

2

The administrative judge found that the initial appeal was filed 255 days after the 

filing deadline. ID at 2. In fact, OPM’s final decision became effective on June 1, 

2016. IAF, Tab 5 at 7-8. The deadline to file an initial appeal was July 1, 2016. 

5 C.F.R. § 1201.22(b)(1). Thus, the appellant’s March 3, 2017 initial appeal was filed 

245 days after the filing deadline. This discrepancy is immaterial. The appellant has 

failed to show that her appeal was timely or that good cause existed for the delay (be it 

245 or 255 days).
4

¶5 The administrative judge found that the appellant failed to establish that she 

exercised due diligence or ordinary prudence justifying why, when she alleged 

that she contacted OPM after noticing the reduction in her annuity, which became 

effective June 1, 2016, and was told by OPM that she could file an appeal with 

the Board, she waited until March 3, 2017, to file the present appeal. ID at 3. 

We find the appellant’s general statements insufficient to demonstrate that she did 

not receive OPM’s decision letter prior to the effective date of the annuity 

reduction, or adequately explain the untimeliness of her appeal. Therefore, we 

vacate the administrative judge’s finding, “presuming arguendo that the appellant 

did not receive [OPM’s] letter,” that her explanation that she contacted OPM after 

noticing the reduction in her monthly check justified “some delay . . . but not a 

delay of well over half a year.” Id. (emphasis in original). 

¶6 Accordingly, we deny the petition for review and affirm as modified the 

initial decision.

NOTICE OF APPEAL RIGHTS3

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 an d 

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 

 

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.
5

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. 

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. 
6

(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 

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: 
7

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 competent jurisdiction. 4The 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). 

 

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. 
8

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 particu lar 

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:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board