UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

CAROLINA A. REYES,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

DC-0843-17-0542-I-1

DATE: June 29, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Randle R. Edwards, Washington, D.C., for the appellant.

Carl E. Hobbs, II, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

dismissed for lack of jurisdiction her appeal of an Office of Personnel 

Management (OPM) final decision denying her application for a Federal 

Employees’ Retirement System (FERS) basic death benefit. For the reasons set 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

forth below, the appellant’s petition for review is DISMISSED as untimely filed 

without good cause shown. 5 C.F.R. § 1201.114(e), (g). 

BACKGROUND

¶2 On May 25, 2017, the appellant filed a Board appeal of OPM’s final 

decision denying her application for a basic employee death benefit under FERS. 

Initial Appeal File (IAF), Tab 1. On August 1, 2017, the administrative judge 

issued an initial decision dismissing the appeal for lack of jurisdiction on the 

basis that OPM had rescinded the final decision under appeal. IAF, Tab 11, 

Initial Decision (ID). The administrative judge noted that, in moving to dismiss 

the appeal, OPM asserted its intention to grant the appellant’s applic ation for 

death benefit. ID at 1-2; IAF, Tab 9. The administrative judge notified the 

appellant of her right to file a petition for review and of the time limits for doing 

so. ID at 3-4.

¶3 On November 21, 2017, the appellant filed a petition for review, objecting 

to the way that OPM had handled her case and requesting that the Board hold 

OPM accountable for its promise to grant her application. Petition for Review 

(PFR) File, Tab 1. The Clerk of the Board issued an order, notifying the 

appellant that her petition for review appeared to be untimely and directing her to 

file a motion to accept the appeal as timely or to waive the filing deadline for 

good cause shown. PFR File, Tab 2. The appellant responded, requesting that 

the Board accept her petition for review as timely and explaining that the OPM 

had recently contacted her to say that OPM no longer intended to grant her 

application. PFR File, Tab 3. The Clerk of the Board then issued an order to 

OPM, directing it to file evidence and argument to show that it had completely 

rescinded its prior decision by restoring the appellant to the status quo ante. PFR

File, Tab 4. OPM failed to respond to the order. However, on August 22, 2018, 

the appellant filed a request to withdraw her petition for review based on “the 

representation of [OPM] that the final reconsideration decision has been 
3

rescinded in full and that OPM has now granted my application for Basic 

Employee Death Benefits . . . .” PFR File, Tab 7. OPM consented to the 

withdrawal. Id. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶4 Withdrawal of a petition for review is an act of finality that has the effect of 

removing the appeal from the Board’s jurisdiction. Okello v. Office of Personnel 

Management, 112 M.S.P.R. 563, ¶ 5 (2009). Hence, a withdrawal must be by 

clear, unequivocal, and decisive action. Leno v. Department of Veterans Affairs, 

90 M.S.P.R. 614, ¶ 3 (2002). In this case, the appellant’s withdrawal appears to 

be conditioned on OPM’s granting her application for death benefits, and 

therefore does not meet that standard. PFR File, Tab 7; see Ryan v. Department 

of the Air Force, 117 M.S.P.R. 362, ¶ 9 (2012). Notably, the record does not 

contain any evidence to support a finding that the conditions of the withdrawal 

have, in fact, been met. Finding that the parties would not be prejudiced by a 

disposition of the petition for review on timeliness grounds, we deny the 

appellant’s request for a withdrawal and proceed to the issue of timeliness.

¶5 A petition for review must be filed within 35 days after the initial decision 

is issued or, if the appellant shows that she received the initial decision more than 

5 days after it was issued, within 30 days after the date of receipt. Williams v. 

Office of Personnel Management, 109 M.S.P.R. 237, ¶ 7 (2008); 5 C.F.R. 

§ 1201.114(e). In this case, we find that the petition for review was untimely 

filed by 42 days. The initial decision was issued on August 1, 2017, and it was 

served the same day on the appellant by mail and on her representative by email. 

ID at 1; IAF, Tab 12. There is no indication that either the appellant or her 

representative failed to receive the initial decision in due course, and so the filing 

deadline was September 5, 2017, 35 days from the date of the initial decision. 

See 5 C.F.R. § 1201.114(e); see also Williamson v. U.S. Postal Service, 

106 M.S.P.R. 502, ¶ 7 (2007) (explaining that, under Board precedent and 
4

regulations, documents placed in the mail are presumed to be received in 5 days). 

The appellant filed her petition for review 42 days later, on November 21, 2017, 

as indicated by the postmark on the envelope in which she mailed it. PFR File, 

Tab 1 at 6; see 5 C.F.R. § 1201.4(l) (providing that the date of filing by mail is 

determined by the postmark date).

¶6 The Board will waive the filing deadline for a petition for review only upon 

a showing of good cause for the filing delay. Lawson v. Department of Homeland 

Security, 102 M.S.P.R. 185, ¶ 5 (2006); 5 C.F.R. §§ 1201.12, 1201.114(g). To

establish good cause for an untimely filing, a party must show that she exercised 

due diligence or ordinary prudence under the particular circumstances of her case. 

Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980). To

determine whether an appellant has shown good cause, the Board will consider 

the length of the delay, the reasonableness of her excuse and her 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 

which similarly shows a causal relationship to her inability to timely file her 

petition. Moorman v. Department of the Army, 68 M.S.P.R. 60, 62-63 (1995), 

aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).

¶7 In this case, the appellant’s explanation for the delay is that, on 

November 15, 2017, after the filing deadline had already passed, OPM’s 

representative left her a voicemail stating that he forwarded her death benefit 

application to the office within OPM responsible for adjudicating it, but the office 

did not agree that there was sufficient basis to grant the application. PFR File, 

Tab 3 at 3, 5. He stated that the appellant would be receiving a new final 

decision with notice of Board appeal rights. Id. at 5. We find that the appellant 

is essentially claiming that her untimely filing should be excused because it was 

based on new and material evidence. See Lybrook v. Department of the Navy, 
5

51 M.S.P.R. 241, 244 (1991) (explaining that the discovery of new and material 

evidence may provide good cause to waive the deadline for filing a petition for 

review). We find that the OPM representative’s November 15, 2017 voicemail 

constitutes new evidence because it was unavailable prior to the September 5,

2017 filing deadline, and that the appellant acted diligently by filing her petition 

promptly within a week after receiving it. See Brown v. Department of the Army, 

108 M.S.P.R. 90, ¶ 8 (2008) (finding good cause to waive the filing deadline 

when the appellant filed his petition within 5 days of receiving new and material 

evidence). However, we find that the appellant has not established good cause to 

waive the filing deadline because the information contained in the OPM 

representative’s voicemail is not material to the outcome of the appeal. See

Levenson v. Department of Transportation, 38 M.S.P.R. 292, 295-96 (1988) 

(declining to waive the petition for review filing deadline because the new 

evidence that the appellant submitted was not material to the outcome of the 

appeal).

¶8 The administrative judge dismissed this appeal for lack of jurisdiction on 

the basis that OPM had rescinded its final decision. ID at 1-2. It is well-settled 

that OPM’s complete rescission of a final decision divests the Board of 

jurisdiction over an appeal of that decision. Richardson v. Office of Personnel 

Management, 101 M.S.P.R. 128, ¶ 3 (2006). However, a complete rescission 

requires OPM to return the appellant to the status quo ante. Campbell v. Office of 

Personnel Management, 123 M.S.P.R. 240, ¶ 7 (2016). In this case, the 

appellant’s status quo ante, prior to OPM’s final decision, is that she was not in 

receipt of any death benefits and that she was awaiting a final decision on her 

application. IAF, Tab 1 at 7-19. The evidence in this appeal, filed both below 

and on petition for review, shows that exactly these same conditions existed after 

OPM rescinded its final decision. IAF, Tab 9 at 5; PFR File, Tab 3 at 5. 

We therefore find that OPM’s rescission was complete. Although the 
6

administrative judge mentioned in her initial decision that OPM intended to issue 

a final decision granting the appellant’s application, ID at 2, this fact was not 

material to the outcome of the appeal. OPM’s rescission of its final decision 

would still have divested the Board of jurisdiction regardless of whether OPM 

had made any such assurances. See, e.g., Glasgow v. Office of Personnel 

Management, 103 M.S.P.R. 531, ¶ 5 (2006) (dismissing the appellant’s disability 

retirement appeal for lack of jurisdiction on the basis that OPM rescinded its 

previous decision dismissing the application as untimely and intended to issue a 

new decision on the merits). In other words, granting the appellant’s application 

was not part of returning her to the status quo ante. Because the information 

contained in the OPM representative’s voicemail was not material to the 

jurisdictional issue, we find that the discovery of this evidence does not pro vide 

good cause to waive the deadline for filing the petition for review. See Upshaw v. 

Department of Defense, 56 M.S.P.R. 94, 97 (1992), aff’d, 5 F.3d 1502 (Fed. Cir. 

1993) (Table).

¶9 It appears, although it is by no means certain, that OPM may have since 

issued a new final decision on the appellant’s application for death benefits, and 

that the appellant is satisfied with that decision. PFR File, Tab 6. 

Nevertheless, if the appellant is not satisfied with OPM’s new final decision, she 

has the right to file a separate Board appeal to contest it. See Rorick v. Office of 

Personnel Management, 109 M.S.P.R. 597, ¶¶ 5-7 (2008).

¶10 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 jurisdictional issue.
7

NOTICE OF APPEAL RIGHTS2

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. 

(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). 

 

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.
8

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 

receive 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
9

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: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 
10

(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 

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. 

 

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. 
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