UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DEBRA J. LUBERT,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

PH-3443-19-0069-I-1

DATE: July 18, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Debra J. Lubert, Northumberland, Pennsylvania, pro se.

Lori A. Markle, Esquire, and Roderick Eves, St. Louis, Missouri, 

for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

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

dismissed her retirement benefits appeal for lack of jurisdiction. For the reasons

set 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).

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

On November 27, 2018, the appellant filed a Board appeal indicating that

she had “purchased [her] military time in 2008” but was not given credit for this

time for purposes of her retirement benefits under the Federal Employees’

Retirement System (FERS). Initial Appeal File (IAF), Tab 1 at 3. The appellant

requested a hearing on the matter. Id. at 2. Without holding the appellant’s

requested hearing, the administrative judge issued a February 14, 2019 initial

decision dismissing the appeal for lack of jurisdiction. IAF, Tab 11, Initial

Decision (ID) at 1, 4. In so doing, the administrative judge found, among other

things, that the agency, the appellant’s former employer, was not a proper party to

the appeal. ID at 4. The administrative judge notified the appellant that the

initial decision would become final on March 21, 2019, unless a petition for

review was filed by that date. ID at 5.

On February 13, 2020, the appellant filed a petition for review. Petition for

Review (PFR) File, Tab 1. In her petition, the appellant states that she is making

“a sympathetic plea . . . asking for review due to family medical emergency

problems.” Id. at 3. She also avers that she “did not receive emails as stated

from the agency.” Id. The appellant also provides documentary evidence, the

majority of which was not included in the record before the administrative judge.

Id. at 5-17.

The Office of the Clerk of the Board notified the appellant that her petition

for review was untimely and explained that she must file a motion asking the

Board to accept the petition for review as timely and/or to waive the time limit

for good cause. PFR File, Tab 2 at 1-2. The appellant did not respond. The

agency has responded to the appellant’s petition for review, arguing that it is

untimely filed and that she has not shown good cause for her untimeliness. PFR

File, Tab 3 at 4-6. 

2
DISCUSSION OF ARGUMENTS ON REVIEW

A petition for review must be filed within 35 days after the issuance of the

initial decision, or, if the petitioner shows that she received the initial decision

more than 5 days after the date of the issuance, within 30 days after the date she

received the initial decision. 5 C.F.R. § 1201.114(e). Here, the initial decision

was issued on February 14, 2019, and served on the appellant via email the same

day. IAF, Tab 12 at 1. The appellant does not allege that she did not receive the

initial decision within 5 days of its issuance. Accordingly, her petition for review

is untimely by approximately 11 months. PFR File, Tab 1; see 5 C.F.R.

§ 1201.114(e).

The Board will waive the time limit for filing a petition for review only

upon a showing of good cause for the delay in filing. 5 C.F.R. § 1201.114(g). To

establish good cause for an untimely filing, the appellant must show that she

exercised due diligence or ordinary prudence under the particular circumstances

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

In determining whether there is good cause, the Board considers the length of the

delay, the reasonableness of the excuse and showing of due diligence, whether the

appellant 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 similarly shows

a causal relationship to her inability to file a timely petition. See Wyeroski v.

Department of Transportation, 106 M.S.P.R. 7, ¶ 7, aff’d, 253 F. App’x 950 (Fed.

Cir. 2007).

We find that the appellant has not demonstrated good cause for the

untimely filing of her petition for review. Although the appellant is pro se, her

11-month delay in filing is significant, and she failed to respond to the notice

affording her the opportunity to file a motion to accept the filing as timely and/or

to waive the time limit for good cause. See Groesbeck v. Office of Personnel

Management, 109 M.S.P.R. 1, ¶ 4 (2008) (finding that the appellant failed to

3
show good cause when her petition for review was untimely filed by 6 months

and she failed to respond to the notice regarding timeliness); see also

Trachtenberg v. Department of Defense, 104 M.S.P.R. 640, ¶ 9 (2007) (stating

that a delay of 9 months is not minimal).

In her petition for review, the appellant asserts that family medical issues

contributed to her filing delay; however, this assertion does not establish good

cause. PFR File, Tab 1 at 3; see Minor v. Department of the Air Force,

109 M.S.P.R. 692, ¶¶ 5, 7 (2008) (finding that personal difficulties, including ill

family members, did not constitute good cause for a filing delay in the absence of

a specific showing of how they affected the appellant’s ability to timely file a

petition or a request for an extension of time). The appellant also contends that

she “purchased [her] military time and did not receive proper [retirement] credit;”

however, this merit-based contention does not constitute good cause for her

untimeliness. PFR File, Tab 1 at 3; see Guevara v. Department of the Navy,

112 M.S.P.R. 39, ¶ 7 (2009) (finding that the appellant failed to establish good

cause for his untimely filed petition for review when he merely argued the merits

of his Board appeal).

The appellant also provides numerous documents, including emails, with

her petition for review. PFR File, Tab 1 at 5-17. However, all of the documents

seemingly predate the initial decision, and apart from a vague assertion that she

“did not receive” certain emails due to “poor communications,” id. at 3, she does

not allege, and nothing in her petition for review suggests, that the documents

constitute new evidence that was unavailable to her prior to the close of the

record, see Agbenyeke v. Department of Justice, 111 M.S.P.R. 140, ¶ 12 (2009)

(explaining that the discovery of new evidence may establish good cause for the

untimely filing of a petition for review if, among other things, the evidence was

not readily available before the close of the record). Indeed, all of the appellant’s

arguments appear to be based on information previously available to her such that

she could have timely filed a petition for review on these bases. See Wilson v.

4
General Services Administration, 15 M.S.P.R. 45, 47 (1983) (finding that the

appellant had not shown good cause for his untimeliness because, among other

things, he failed to show that the “new” information on which he relied was

unavailable, despite due diligence, before the record closed).

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 appellant’s retirement benefits appeal. 2

NOTICE OF APPEAL RIGHTS3

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.

2

 On December 19, 2019, the appellant filed a separate Board appeal alleging that the

Office of Personnel Management (OPM) had failed to give her credit for her military

service for purposes of her retirement under FERS. Lubert v. Office of Personnel

Management, MSPB Docket No. PH-0841-20-0118-I-1, Initial Appeal File (0118 IAF),

Tab 1 at 4-5. Thereafter, on June 5, 2020, OPM issued a redetermination letter, wherein

it recalculated the appellant’s total Federal service and her annuity. 0118 IAF, Tab 10

at 4. Shortly following these recalculations, the appellant withdrew her appeal.

0118 IAF, Tab 11, Initial Decision at 2.

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
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. 

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

6
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

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. 

7
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 

(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. 4 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). 

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 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.

9