                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     EDWARD M. SLOMINSKE,                            DOCKET NUMBER
                  Appellant,                         CH-0845-16-0335-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: September 21, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Edward M. Slominske, Olmsted Township, Ohio, pro se.

           Kristopher L. Rogers, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed his appeal as untimely filed without a showing of good cause for the
     filing delay. Generally, we grant petitions such as this one only when: the initial
     decision contains erroneous findings of material fact; the initial decision is based


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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
     MODIFIED by this Final Order to find that the deadline for filing the appeal was
     not Saturday, March 12, 2016, but Monday, March 14, 2016, we AFFIRM the
     initial decision.
¶2         In a reconsideration decision dated February 11, 2016, the Office of
     Personnel Management (OPM) determined that the appellant had received an
     overpayment in benefits under the Federal Employees’ Retirement System and it
     announced its intent to begin collecting the overpayment by taking monthly
     installments from his annuity payments. Initial Appeal File (IAF), Tab 7 at 7-10.
     The reconsideration decision informed the appellant that he had the right to
     appeal the decision to the Board within 30 days of the date that the appellant
     received the reconsideration decision. Id. at 10. According to his appeal, the
     appellant received the reconsideration decision on February 11, 2016. IAF, Tab 1
     at 2. Therefore, his appeal was due on March 12, 2016, or rather, on March 14,
     2016, because March 12 was a Saturday. 5 C.F.R. § 1201.23. The appellant filed
     his appeal on April 8, 2016.
¶3         The administrative judge informed the appellant that his appeal appeared to
     be untimely filed and she directed him to file evidence and argument showing that
     the appeal was timely or that good cause existed for the delay in filing. IAF,
     Tab 3.     After considering the parties’ responses, IAF, Tabs 4, 7, the
                                                                                      3

     administrative judge dismissed the appeal as untimely filed without a showing of
     good cause. IAF, Tab 9, Initial Decision (ID) at 1, 6. The appellant petitions for
     review of the initial decision. Petition for Review (PFR) File, Tab 1.
¶4        An appeal from an OPM reconsideration decision must be filed no later than
     30 days after the date the appellant received OPM’s decision. Smith v. Office of
     Personnel Management, 117 M.S.P.R. 527, ¶ 5 (2012); 5 C.F.R. § 1201.22(b).
     The appellant’s appeal, filed on April 8, 2016, was 25 days late.          Heath v.
     Department of Agriculture, 109 M.S.P.R. 684, ¶ 6 (2008) (finding that a 23-day
     filing delay was not minimal); Hodge v. U.S. Postal Service, 88 M.S.P.R. 50, ¶ 6
     (2001) (concluding that a 28‑day filing delay was not minimal).
¶5        The Board may waive the time limit for filing an appeal if the appellant
     shows good cause for the delay. 5 C.F.R. § 1201.22(c). To establish good cause
     for the untimely filing of an appeal, a party must show that he 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).              To
     determine whether an appellant has shown good cause, the Board will consider
     the length of the delay, the reasonableness of his excuse and his showing of due
     diligence, whether he is proceeding pro se, and whether he has presented evidence
     of the existence of circumstances beyond his control that affected his ability to
     comply with the time limits or of unavoidable casualty or misfortune, which
     similarly shows a causal relationship to his inability to timely file his 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).
¶6        The appellant reiterates on review his argument below that he delayed in
     filing his appeal because he had questions about the appeal forms attached to the
     reconsideration decision and he called OPM multiple times per day but OPM
     did not return his telephone calls. PFR File, Tab 1 at 2; IAF, Tab 4 at 2. We
     agree with the administrative judge that the appellant has not shown due diligence
     by demonstrating that he sought assistance from OPM.          ID at 3-4.    OPM’s
                                                                                         4

     reconsideration decision informed him that it was OPM’s final decision and that
     any further recourse was with the Board. IAF, Tab 7 at 10. OPM also provided
     the appellant with clear and straightforward instructions for filing an appeal with
     the Board.   Id.   A general inability to understand instructions and procedures
     does not provide a basis for a waiver of the time limit for filing an appeal.
     Burgess v. U.S. Postal Service, 78 M.S.P.R. 484, ¶ 7 (1998); Holloway v. Office
     of Personnel Management, 54 M.S.P.R. 507, 509 (1992). If the appellant had
     difficulty in understanding the Board’s appeal form, it would have been
     reasonable for him to contact the Board for assistance rather than OPM. Burgess,
     78 M.S.P.R. 484, ¶ 7; Holloway, 54 M.S.P.R. at 510. His failure to do so weighs
     against a finding of due diligence or ordinary prudence. Burgess, 78 M.S.P.R.
     484, ¶ 7.
¶7         The appellant also repeats on review his assertion below that his appeal is
     untimely because he was caring for his wife, who was severely ill with terminal
     cancer. PFR File, Tab 1 at 2; IAF, Tab 4 at 1. The administrative judge correctly
     noted that the appellant did not provide the dates of his wife’s illness and death.
     ID at 5. On review, the appellant provides no further information concerning his
     late wife. However, a letter from his therapist, which we discuss in more detail
     below, indicates that she died in December 2015, several months before the filing
     period began. PFR File, Tab 1 at 8. While the appellant must certainly have been
     grieving during the February-March 2016 timeframe, there is no evidence
     explaining how the effects of his wife’s death prevented him from meeting the
     filing deadline. Pine v. Department of the Army, 63 M.S.P.R. 381, 383 (1994)
     (finding that a claim that the appellant was caring for her critically ill mother that
     does not specifically account for the period of untimeliness does not constitute
     good cause for waiver of the filing deadline); Estate of DePalermo v. Office of
     Personnel Management, 53 M.S.P.R. 4, 6 (1992) (stating that a preoccupation
     with the death of a parent that occurred 2 years before the filing period began did
     not constitute good cause for the untimely filing of a petition for review).
                                                                                           5

¶8           Finally, the appellant alleges that he was unable to timely file his appeal
     because the ordeal of his wife’s illness and death placed him in a state of severe
     depression. PFR File, Tab 1 at 2; IAF, Tab 4 at 1. To establish that an untimely
     filing was the result of an illness, the party must: (1) identify the time period
     during which he suffered from the illness; (2) submit medical evidence showing
     that he suffered from the alleged illness during that time period; and (3) explain
     how the illness prevented him from timely filing his appeal or a request for an
     extension of time. Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437 (1998).
     To establish good cause for waiver of the Board’s filing deadline based on
     physical or mental illness, there is no general incapacitation requirement; rather,
     the appellant is required to explain only why his alleged illness impaired his
     ability to meet the Board’s filing deadline or seek an extension of time. Lacy,
     78 M.S.P.R. at 437 n.*
¶9           The administrative judge correctly found that the appellant did not submit
     any evidence below to substantiate his assertion that he was prevented from
     timely filing his appeal by his medical condition.         ID at 5.    On review, the
     appellant submits a letter from his therapist that purports to explain why the
     appellant was unable to meet the deadline for filing his appeal. PFR File, Tab 1
     at 8.   The letter is dated after the date the initial decision was issued, but it
     appears to be based for the most part on information that was readily available
     prior to the close of the record below. 2 Grassell v. Department of Transportation,
     40 M.S.P.R. 554, 564 (1989) (determining that, to constitute new and material
     evidence, the information contained in the documents, not just the documents


     2
        The letter states that the appellant has been a patient since April 8, 2015, was most
     recently seen on June 20, 2016, and refers to an undated second visit that occurred
     towards the beginning of the terminal phase of the appellant’s wife’s illness some
     months before her death. PFR File, Tab 1 at 8. There is no mention of whether the
     therapist saw the appellant in February or March 2016 and, therefore, it is not clear to
     what extent the information contained in the letter reflects the appellant’s condition
     during the filing period, which, of course, is the time period relevant in this case.
                                                                                          6

      themselves, must have been unavailable despite due diligence when the record
      closed). The appellant asserts that he did not submit any medical documentation
      below because the administrative judge did not ask for it. PFR File, Tab 1 at 2.
      On the contrary, her Order on Timeliness explicitly stated that he was to submit
      medical documentation in support of his claim. IAF, Tab 3 at 3-4.
¶10         Under 5 C.F.R. § 1201.115, the Board will not consider evidence submitted
      for the first time with the petition for review absent a showing that it was
      unavailable before the record was closed despite the party’s due diligence.
      Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980).                Here, the
      administrative judge placed the appellant on clear notice of what he must show to
      establish that his illness prevented him from timely filing his appeal and of the
      type of evidence necessary to make that showing.             IAF, Tab 3 at 3-4.   The
      appellant’s   failure   to   follow   the   administrative   judge’s   straightforward
      instructions to submit medical evidence in support of his claim that he was
      prevented from meeting the filing deadline by illness does not reflect due
      diligence.    Cf. Lewis v. Department of the Navy, 65 M.S.P.R. 28, 32 (1994)
      (explaining that the Board will consider evidence submitted for the first time on
      petition for review that was available before the record closed below when the
      party was not put on notice of the nature of a dispositive issue until the issuance
      of the initial decision).
¶11         Even if we were to consider the therapist’s letter, it does not explain how
      the appellant’s condition prevented him from meeting the filing deadline. The
      letter describes the appellant’s symptoms when he began treatment in April 2015
      and up until his wife’s death in December 2015. PFR File, Tab 1 at 8. After that
      point, however, the letter merely states that his condition is complicated by
      profound grief and that he has difficulty understanding the appeal process. Id.
      While we are sympathetic to the appellant’s situation, this letter does not
      constitute a substantive explanation of how the appellant’s illness prevented him
                                                                                       7

from meeting the filing deadline. 3 Accordingly, we find that the administrative
judge correctly dismissed the appeal as untimely filed without a showing of good
cause for the delay in filing.

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      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 have the right to
request review of this final decision by the U.S. Court of Appeals for the Federal
Circuit. You must submit your request to the court at the following address:
                           United States Court of Appeals
                               for the Federal Circuit
                             717 Madison Place, N.W.
                              Washington, DC 20439

The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012).     You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.

3
   The Board has found good cause when the appellant submitted medical evidence
providing a detailed explanation of how the appellant’s illness affected her ability to
meet the filing deadline, including evidence that she was unable to understand,
remember, and carry out very short, simple instructions; understand, remember, and
carry out detailed instructions; perform activities within a schedule; be punctual within
customary tolerances; and ask simple questions or request assistance. See Smith,
117 M.S.P.R. 527, ¶ 8. The appellant’s evidence does not approach this level of detail.
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Additional     information     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, 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
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
