                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ARLENE B. WHITE,                                DOCKET NUMBER
                   Appellant,                        AT-0845-16-0248-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: September 8, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Arlene B. White, Fort Myers, Florida, pro se.

           Karla W. Yeakle, 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 her appeal of an overpayment waiver reconsideration decision from the
     Office of Personnel Management (OPM) as untimely filed without good cause
     shown for the delay. Generally, we grant petitions such as this one only when:


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     the initial decision 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. See 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 and AFFIRM the initial decision, which is now the Board’s final
     decision. 5 C.F.R. § 1201.113(b).
                                      BACKGROUND
¶2        In an appeal signed and filed on December 31, 2015, the appellant
     challenged an OPM reconsideration decision that, among other things, denied her
     request for a waiver of collection of an overpayment of annuity benefits under the
     Federal Employees’ Retirement System.           OPM’s reconsideration decision
     instructed the appellant that she should file her appeal with the Board’s regional
     office. Initial Appeal File (IAF), Tab 1, Tab 5 at 3b. After the administrative
     judge acknowledged receipt of the appeal and issued an order setting forth the
     appellant’s requisite burden of proof, the agency moved that the appeal be
     dismissed as untimely filed without good cause shown. IAF, Tab 5 at 2-3, 5.
¶3        On March 29, 2016, the administrative judge issued an order stating that the
     appeal appeared to be untimely filed and ordering the appellant to file evidence
     and argument showing that the appeal was either timely filed or that good cause
     existed for the delay in filing. IAF, Tab 6. The administrative judge noted that
     there was a U.S. Postal Service tracking information report indicating that the
     appellant received OPM’s reconsideration decision on November 28, 2015. Id.
                                                                                       3

¶4            The appellant did not respond to the administrative judge’s order.
     On April 14, 2016, the administrative judge issued an initial decision that
     dismissed the appeal as untimely filed without good cause shown. IAF, Tab 7,
     Initial Decision (ID).
¶5            The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1.        She alleges that she received the reconsideration decision on or
     about November 30, 2015, and “mailed back [her] response on the 30th day.” Id.
     at 2.     She also alleges that her appeal arrived late to the Board because of a
     holiday.      Id.     She further claims that she was unable to respond to the
     administrative judge’s timeliness order because of several medical reasons,
     including the flu and sinusitis. Id. Regarding the merits of her appeal, she argues
     that OPM’s denial of her request for a waiver of the overpayment would impose
     an undue financial hardship on her.         Id. at 2-6.   OPM has responded to the
     petition for review. PFR File, Tab 4.

                          DISCUSSION OF ARGUMENTS ON REVIEW
¶6            The Board’s regulations provide that an appeal must be filed with the Board
     no later than 30 days after the effective date of the agency’s action, or 30 days
     after the date of the appellant’s receipt of the agency decision, whichever is
     later.     5 C.F.R. § 1201.22(b).      The date of a filing submitted by mail is
     determined by the postmark date. 5 C.F.R. § 1201.4(l).
¶7            To establish good cause for the untimely filing of an appeal, a party must
     show that she exercised due diligence or ordinary prudence under the particular
     circumstances of the case. Marcantel v. Department of Energy, 121 M.S.P.R.
     330, ¶ 10 (2014); 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 diligence, whether she is proceeding pro se, and whether she has
     presented evidence of the existence of circumstances beyond her control that
                                                                                        4

     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 timely file
     her appeal. Marcantel, 121 M.S.P.R. 330, ¶ 10; Alonzo, 4 M.S.P.R. at 184. The
     Board generally holds that, when, as here, an appellant fails to follow OPM’s
     instructions, it does not constitute good cause for any ensuing delay. Maggard v.
     Office of Personnel Management, 102 M.S.P.R. 75, ¶ 9 (2006).
¶8           The U.S. Postal Service tracking report in the record indicates that OPM’s
     reconsideration decision was delivered to the appellant’s residence by certified
     mail on November 28, 2015, at 9:30 a.m. IAF, Tab 5 at 7. The Board previously
     has considered parcel tracking reports as evidence that delivery was accomplished
     at a particular date and time. See Cody v. Department of the Navy, 104 M.S.P.R.
     161, ¶ 7 (2006).    Although the appellant claims on review that she received the
     appeal “on or near November 30, 2015,” the Board has no reason to doubt the
     validity of the postal tracking information indicating that she received OPM’s
     decision on November 28, 2015. PFR File, Tab 1 at 2. Therefore, to be timely
     filed, her appeal should have been filed on or before December 28,
     2015.      5 C.F.R. § 1201.22(b)(1).     However, the appellant’s appeal was
     postmarked on December 31, 2015, and thus that is the filing date. IAF, Tab 1 at
     20; see 5 C.F.R. § 1201.4(l). This determination is supported by the appeal form
     itself, which the appellant signed on December 31, 2015. IAF, Tab 1 at 9.
¶9           The appellant claims that she did not respond to the administrative judge’s
     timeliness order of March 29, 2016, because she was suffering from several
     medical ailments. PFR File, Tab 1 at 2. However, this does not explain why her
     initial appeal was filed 3 days late. The timeliness order informed the appellant
     that, to establish that medical reasons prevented her from timely filing, she must
     identify the time period in which she suffered from the illness, and submit
     medical and other supporting evidence indicating that she had the illness or
     disease in the relevant time period, and explain how the illness or disease
     prevented her from filing in a timely manner or requesting an extension in which
                                                                                      5

      to file. IAF, Tab 6 at 4; see Lacy v. Department of the Navy, 78 M.S.P.R. 434,
      437 (1998). However, she has neither provided any supporting medical evidence
      nor alleged any connection between her ailments and the inability to file her
      initial appeal in a timely manner.
¶10        The appellant also claims that the appeal was mailed on time, but arrived
      late because of “the holiday.” PFR File, Tab 1. The Board finds this argument
      unpersuasive. The appeal was signed and postmarked on December 31, 2015,
      making it 3 days late at the time it was filed. IAF, Tab 1 at 9, 20; see 5 C.F.R.
      § 1201.4(l). It was received by the Board’s Atlanta Regional Office on January 4,
      2016, but that date is irrelevant, as the timeliness of an appeal is determined by
      the filing date. IAF, Tab 1 at 1; see 5 C.F.R. § 1201.4(l).
¶11        In sum, while the filing delay here is not excessive, the appellant has not
      shown that she exercised due diligence or ordinary prudence under the particular
      circumstances of her case.     Alonzo, 4 M.S.P.R. at 184.     In the absence of a
      showing of good cause, the Board has dismissed as untimely filed appeals when
      the filing delay was minimal.           Melendez v. Department of Homeland
      Security, 112 M.S.P.R. 51, ¶ 16 (2009); White v. Department of Justice, 103
      M.S.P.R. 312, ¶¶ 10, 15 (2006).

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            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.
                                                                                         6

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.
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.
