                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2015 MSPB 66

                            Docket No. AT-844E-15-0640-I-1

                                     Anne M. Kent,
                                       Appellant,
                                            v.
                          Office of Personnel Management,
                                         Agency.
                                    December 31, 2015

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

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

                                        BEFORE

                            Susan Tsui Grundmann, Chairman
                               Mark A. Robbins, Member



                                OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the reconsideration decision of the Office of Personnel Management
     (OPM) dismissing her request for reconsideration of OPM’s initial decision
     disallowing her continued receipt of disability retirement benefits.      For the
     reasons set forth below, we GRANT the appellant’s petition for review, VACATE
     the initial decision, and REMAND this appeal to the regional office for further
     adjudication in accordance with this Opinion and Order.
                                                                                             2

                                        BACKGROUND
¶2         The appellant retired from Federal service and began receiving disability
     retirement benefits under the Federal Employees’ Retirement System (FERS) in
     1999. 1 Initial Appeal File (IAF), Tab 5 at 55, 128. On May 18, 2011, OPM
     issued a decision informing the appellant that it had determined 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 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 (emphasis in
     original). The appellant requested reconsideration in a letter dated June 21, 2011,
     stating, in part, that she received OPM’s 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 reconsideration request was untimely filed outside of the
     30-day time limit set forth in the May 18, 2011 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.     Id.   The letter instructed the appellant to submit
     evidence showing that she met one of the regulatory criteria for an extension of
     the time limit within 30 days from the date of the letter. 2 Id. at 7-8.




     1
       The appellant apparently changed her last name from “Polack” to “Kent” sometime
     between 2000 and 2011. Initial Appeal File (IAF), Tab 5 at 21, 36.
     2
      It appears that the appellant did not receive the letter. The agency file contains a copy
     of an envelope postmarked October 29, 2014, that was undeliverable to the appellant
     and returned to OPM. IAF, Tab 5 at 9. It is unclear from the record whether OPM
     made further attempts to provide the appellant notice of her burden to show that she
     was eligible for an extension under OPM’s regulations.
                                                                                         3

¶4            On June 3, 2015, 3 OPM issued a reconsideration decision finding that the
     appellant’s reconsideration request was postmarked June 22, 2011, more than
     30 days after the date of the decision disallowing continued disability retirement
     benefits, and that she had failed to present any evidence showing that she was
     unable to file a request for reconsideration within the regulatory time limit. Id.
     at 4-5.     As such, OPM dismissed the appellant’s reconsideration request as
     untimely filed. Id.
¶5            The appellant timely appealed OPM’s reconsideration decision to the
     Board. 4 IAF, Tab 1. The administrative judge issued an order on jurisdiction
     informing the appellant that where, as here, OPM denies an individual’s request
     for reconsideration as untimely filed, the Board’s jurisdiction over the merits of
     the case attaches only if it is determined that OPM’s finding of untimeliness was
     unreasonable or an abuse of discretion. IAF, Tab 6. The administrative judge
     thus ordered the appellant to provide evidence and argument as to why she
     believed that OPM’s determination of untimeliness was unreasonable or an abuse
     of discretion. Id. at 1. In response, the appellant stated that she responded to
     OPM’s requests for medical documentation and that she did not receive any other
     requests or notifications from OPM until 2015. IAF, Tab 7 at 4-5, 7, Tab 10 at 4.
     In an initial decision based on the parties’ written submissions, 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
     final decision. IAF, Tab 12, Initial Decision (ID).
¶6            The appellant has filed a petition for review of the initial decision, to
     which OPM has not responded. Petition for Review File, Tab 1. On review, the


     3
       Although the reconsideration decision is dated “June 3, 2014,” IAF, Tab 5 at 4, OPM
     stipulated below that it was issued on June 3, 2015, and that the incorrect year was a
     typographical error, IAF, Tab 9.
     4
         The appellant did not request a hearing. IAF, Tab 1 at 1.
                                                                                     4

     appellant appears to argue that OPM has no proof to show when it received her
     request for reconsideration and that OPM’s decision to discontinue her disability
     retirement payments will have dire consequences for her family. Id. at 3.

                                         ANALYSIS
¶7         When OPM dismisses an individual’s request for reconsideration of an
     initial decision as untimely, the Board has jurisdiction over an appeal regarding
     the   timeliness   determination.        Rossini    v.   Office   of    Personnel
     Management, 101 M.S.P.R. 289, ¶ 7 (2006); Baldos v. Office of Personnel
     Management, 36 M.S.P.R. 606, 609 (1988). The Board will reverse a decision by
     OPM dismissing a reconsideration request on timeliness grounds only if it finds
     that the dismissal was unreasonable or an abuse of discretion. Cerezo v. Office of
     Personnel Management, 94 M.S.P.R. 81, ¶ 9 (2003). If the Board determines that
     OPM’s timeliness determination was unreasonable or an abuse of discretion,
     Board jurisdiction attaches to the merits of the appeal. Rossini, 101 M.S.P.R.
     289, ¶ 7; Baldos, 36 M.S.P.R. at 609.
¶8         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).
     OPM’s regulations 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. 5 C.F.R. § 841.306(d)(2).
     If an appellant shows that she qualified for an extension of the time limit under
     OPM’s regulations, the Board then will consider whether OPM acted
     unreasonably or abused its discretion in refusing to extend the time limit and
     dismissing her request for reconsideration as untimely filed. See Davis v. Office
     of Personnel Management, 104 M.S.P.R. 70, ¶ 7 (2006) (citing Azarkhish v.
                                                                                        5

      Office of Personnel Management, 915 F.2d 675, 677-78 (Fed. Cir. 1990)). 5 If,
      however, the appellant does not first show that she qualified for an extension
      under OPM’s regulatory criteria, the Board will not reach the issue of whether
      OPM was unreasonable or abused its discretion in denying her untimely request
      for reconsideration. Id. 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). See Davis, 104 M.S.P.R. 70, ¶ 7.
      The administrative judge erred by first failing to determine whether the appellant
      was eligible for an extension of the time limit under OPM’s regulations.
¶9          In this case, the administrative judge found that the appellant failed to
      show that OPM’s dismissal of her request for reconsideration was unreasonable
      or an abuse of discretion and, thus, affirmed OPM’s reconsideration decision. ID
      at 3-4. She did not determine first, however, whether the appellant showed that
      she qualified for an extension of the time limit under 5 C.F.R. § 841.306(d)(2)
      because she was either unaware of, or unable to comply with, the time limit. ID.
      This was an error in the administrative judge’s legal analysis.                 See
      Davis, 104 M.S.P.R. 70, ¶ 7. Accordingly, we vacate the initial decision.
      The administrative judge failed to give the appellant the correct notice of her
      jurisdictional burden.
¶10         Generally, an appellant must receive explicit information on what is
      required to establish an appealable jurisdictional issue. Burgess v. Merit Systems
      Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985). As discussed above,
      before the Board may consider whether OPM acted unreasonably or abused its
      discretion in dismissing a reconsideration request as untimely, an appellant first
      must show either that she was not notified of the time limit and was not otherwise

      5
        Although the appellant in Davis was covered under the Civil Service Retirement
      System (CSRS) and the appellant in this matter is covered under FERS, the applicable
      regulatory standards governing the timeliness of reconsideration requests under CSRS
      and FERS are essentially identical. Compare 5 C.F.R. § 831.109(e), with 5 C.F.R. §
      841.306(d).
                                                                                           6

      aware of it, or that she was prevented by circumstances beyond her control from
      making the request within the time limit. Davis, 104 M.S.P.R. 70, ¶ 7. Only if
      the appellant makes such a showing may the Board decide whether OPM’s action
      was unreasonable or an abuse of discretion. Id. Here, the administrative judge
      informed the appellant that, to establish Board jurisdiction over the merits of her
      reconsideration request, she must show that OPM’s determination of untimeliness
      was unreasonable or an abuse of discretion, and ordered her to provide argument
      and evidence as to why she believed OPM’s determination of untimeliness was
      unreasonable or an abuse of discretion. IAF, Tab 6. The administrative judge’s
      jurisdictional notice failed to inform the appellant of her initial burden to show
      that she was eligible for an extension under OPM’s regulations prior to showing
      that OPM’s refusal to extend the time limit was unreasonable or an abuse of
      discretion.   Id.; see Davis, 104 M.S.P.R. 70, ¶ 7.     As such, we find that the
      administrative judge failed to provide the appellant with proper Burgess notice. 6
¶11         In light of the above, we find that the appellant was deprived of a fair
      opportunity to meet her jurisdictional burden and that remand is necessary to
      afford her the opportunity to establish jurisdiction over her appeal. On remand,
      the administrative judge shall provide the appellant explicit notice of her burden
      of proof, as set forth above, and allow the parties an opportunity to respond. The
      administrative judge then should make a finding as to whether the appellant has
      shown that:    (1) she qualified for an extension of the time limit to request




      6
        Although a defective Burgess notice may be cured if the agency’s pleadings or the
      initial decision itself puts the appellant on notice of what she must do to establish
      jurisdiction, Milam v. Department of Agriculture, 99 M.S.P.R. 485, ¶ 10 (2005), the
      initial decision here failed to provide a complete statement of the appellant’s
      jurisdictional burden, see ID, and nothing in OPM’s submissions cured the defective
      notice, IAF, Tabs 5, 9.
                                                                                         7

reconsideration under 5 C.F.R. § 841.306(d)(2); 7 and, if so, (2) OPM’s refusal to
extend the time limit was unreasonable or an abuse of discretion. 8                 If the
administrative judge finds that OPM’s denial of the appellant’s reconsideration
request on timeliness grounds was unreasonable or an abuse of discretion, the
Board’s jurisdiction attaches to the merits of the appeal, and the administrative
judge should proceed to adjudicate the merits of OPM’s reconsideration decision.
See Goodman v. Office of Personnel Management, 100 M.S.P.R. 43, ¶ 12 (2005).




7
  In her request for reconsideration dated June 21, 2011, the appellant indicated that she
received OPM’s May 18, 2011 decision on June 10, 2011. IAF, Tab 5 at 19. The Board
previously has noted that an individual is entitled to a reasonable period of time to
request reconsideration after belated receipt of an initial OPM decision. See, e.g.,
Williams v. Office of Personnel Management, 100 M.S.P.R. 190, ¶¶ 2-3, 8-10 (2005)
(finding that the appellant was prevented by circumstances beyond her control from
filing a timely request for reconsideration and that OPM’s denial of her request for a
1-day extension was unreasonable and an abuse of discretion where, among other
factors, the appellant asserted, and OPM did not rebut, that she did not receive OPM’s
December 14, 2014 initial decision until December 23, 2014); Mounce v. Office of
Personnel Management, 98 M.S.P.R. 120, ¶¶ 2-4, 8 (2005) (upholding the
administrative judge’s determination that OPM was unreasonable and abused its
discretion in dismissing as untimely the appellant’s request for reconsideration because
the appellant belatedly received OPM’s initial decision and mailed a request for
reconsideration the day after he received OPM’s initial decision); see also Davis,
104 M.S.P.R. 70, ¶¶ 10-11 (noting in dicta that mailing delays that deprive an appellant
of a significant portion of the 30-day time period for filing a request for reconsideration
may contribute to a finding that the appellant was prevented by circumstances beyond
her control from timely filing a request for reconsideration). Accordingly, on remand,
the administrative judge should determine when the appellant received the initial
decision and weigh this factor in determining whether she was prevented by
circumstances beyond her control from requesting reconsideration within the 30-day
time limit.
8
  In deciding whether OPM’s action was unreasonable or an abuse of discretion, the
administrative judge should determine, among other things, if OPM made a subsequent
attempt to inform the appellant of her opportunity to show that she was eligible for an
extension of the filing deadline after its October 29, 2014 letter was returned as
undeliverable, the circumstances surrounding the return of the letter, and the effect of
OPM’s actions, or inactions, on the issue of reasonableness.
                                                                                   8

                                          ORDER
¶12         For the foregoing reasons, we vacate the initial decision and remand this
      matter to the regional office for further development of the record and
      adjudication in accordance with this Opinion and Order.



      FOR THE BOARD:


      ______________________________
      William D. Spencer
      Clerk of the Board
      Washington, D.C.
