                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ISMAEL DELGADO,                                 DOCKET NUMBER
                  Appellant,                         AT-0842-15-0849-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: August 12, 2016
       MANAGEMENT,
                   Agency.



         THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Ismael Delgado, Miami, Florida, pro se.

           Sarah Murray, 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 claims that the Office of Personnel Management (OPM) erroneously
     denied his entitlement to disability retirement and deferred retirement annuities
     from 2005 through the present for lack of jurisdiction and as untimely filed


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     without good cause shown. Generally, we grant petitions such as this one only
     when: 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 1987, the appellant retired from the U.S. Postal Service due to a
     disability and received a disability retirement annuity under the Civil Service
     Retirement System. Initial Appeal File (IAF), Tab 1 at 2.        On July 31, 2005,
     OPM terminated the appellant’s disability retirement annuity after finding that he
     had been restored to his earning capacity as of July 1, 2001, and notified him that
     OPM intended to collect an overpayment of $53,277.40, which he had received
     between 2001 and 2005.       See id.    The appellant appealed the overpayment
     determination to the Board, and the Board affirmed OPM’s decision in 2006. Id.;
     Delgado v. Office of Personnel Management, MSPB Docket No. AT‑831M-06-
     0457-I-1, Final Order (Oct. 6, 2006).
¶3        The appellant also received a disability retirement annuity from 2006 until
     February 29, 2008, at which time OPM determined that he again had been
     restored to earning capacity effective July 1, 2007, and that he had received
                                                                                            3

     another overpayment.           IAF, Tab 9 at 24.      The appellant appealed OPM’s
     determination      to    the   Board;   the   administrative   judge    reversed   OPM’s
     reconsideration decision; and, on petition for review, the Board reversed the
     administrative judge and affirmed OPM’s reconsideration decision. Delgado v.
     Office of Personnel Management, 112 M.S.P.R. 46 (2009).                On the appellant’s
     appeal from the Board’s order, the U.S. Court of Appeals for the Federal Circuit
     agreed with the Board in part, but vacated its decision for a determination of an
     issue on which the Board had failed to make an explicit finding.              Delgado v.
     Office of Personnel Management, 590 F.3d 1352 (Fed. Cir. 2010). On remand,
     OPM advised that it had rescinded its reconsideration decision to acquire more
     information, and the administrative judge dismissed the remanded appeal for lack
     of jurisdiction.        Delgado v. Office of Personnel Management, MSPB Docket
     No. AT-831M-08-0855-M-1, Remand Initial Decision (July 9, 2010).
¶4         On November 22, 2013, OPM issued a new final decision affirming its
     earlier decision and finding that the appellant had received an overpayment of
     $8,275.48 between July 1, 2007, and February 29, 2008. IAF, Tab 9 at 24-27.
     OPM informed the appellant that he had the right to appeal the final decision to
     the Board within 30 days after the date of the decision or 30 days after receipt of
     the decision, whichever was later. Id. at 26.
¶5         In a letter dated November 24, 2014, the appellant demanded that the
     Department of the Treasury cease collection of the overpayment and send his case
     back to OPM because he had requested a Board hearing. IAF, Tab 1 at 3. The
     appellant sent a copy of the letter to the Board’s regional office, which docketed
     the letter as a new appeal. Id. The administrative judge construed the appellant’s
     letter as an appeal of OPM’s determination that he had received an overpayment
     for the period between 2001 and 2005, which the Board had previously
     adjudicated in 2006, and he dismissed the appeal as barred by res judicata.
     Delgado v. Office of Personnel Management, MSPB Docket No. AT‑831M-15-
     0176-I-1, Initial Decision (Jan. 9, 2015). The appellant filed a petition for review
                                                                                           4

     of that initial decision, which the Board affirmed. Delgado v. Office of Personnel
     Management, MSPB Docket No. AT‑831M-15-0176-I-1, Final Order (June 25,
     2015). The Board noted, however, that the initial decision failed to address the
     appellant’s claims that he was entitled to a disability retirement annuity or a
     deferred retirement annuity from 2005 through the present and forwarded the
     matter to the regional office for adjudication. Id. at 4; IAF, Tab 1 at 4.
¶6         Pursuant to the Board’s order, the regional office docketed the instant
     appeal.   IAF, Tab 1.     After affording the appellant an opportunity to submit
     evidence and argument establishing Board jurisdiction and timeliness, the
     administrative judge issued an initial decision based on the written record
     dismissing the appeal for lack of jurisdiction and untimeliness.         IAF, Tab 16,
     Initial Decision (ID). 2 The appellant has filed a petition for review of the initial
     decision, and the agency has responded in opposition to his petition for review. 3
     Petition for Review (PFR) File, Tabs 1, 4.

                        DISCUSSION OF ARGUMENTS ON REVIEW
¶7         The appellant has the burden of proving jurisdiction over his appeal. See
     Reid v. Office of Personnel Management, 120 M.S.P.R. 83, ¶ 6 (2013).               The

     2
       Although the administrative judge notified the appellant of his right to request a
     hearing, the appellant did not request one. IAF, Tab 2 at 1-2; ID at 1.
     3
       On June 1, 2016, the Board received a copy of the appellant’s May 23, 2016 letter to
     OPM. Petition for Review (PFR) File, Tab 5. The Clerk of the Board docketed the
     appellant’s submission as a reply to OPM’s response to his petition for review. Id. The
     Clerk’s April 11, 2016 order acknowledging receipt of the appellant’s petition for
     review informed him that he could file a reply to the agency’s response to the petition
     for review within 10 days of the date of service of the response. PFR File, Tab 2. OPM
     e-filed its response on April 20, 2016, and effected service on the appellant by mailing
     him a copy of the filing by the end of the next business day. PFR File, Tab 4 at 5.
     Because 5 days are added to a party’s deadline for responding to a document served on
     him by mail, any reply to OPM’s response was due no later than May 6, 2016. 5 C.F.R.
     § 1201.23. The appellant’s May 23, 2016 submission thus was untimely filed by over
     2 weeks. See 5 C.F.R. § 1201.114(e), (i),(l). The appellant has offered no explanation
     for this delay. See PFR File, Tab 5. Accordingly, we do not consider his reply. See
     5 C.F.R. § 1201.114(e)‑(g).
                                                                                         5

     Board generally lacks jurisdiction to adjudicate an appeal of a retirement matter
     before OPM has issued a final decision on the matter and, accordingly, will
     dismiss    the    appeal.        See     Ramirez     v.    Office    of    Personnel
     Management, 114 M.S.P.R. 511, ¶ 7 (2010).           The Board has recognized an
     exception to that general rule, however, when OPM has failed to render a
     decision. Id. The Board therefore will take jurisdiction, even absent an OPM
     final decision, when the appellant has repeatedly requested such a decision and
     the evidence indicates that OPM does not intend to issue a final decision. Id.
¶8         The administrative judge found that the appellant became eligible for a
     deferred retirement annuity upon reaching age 62 on September 23, 2012, but that
     there was no evidence that he had applied for a deferred retirement annuity,
     despite OPM’s numerous advisories that he may do so. ID at 7. Because OPM
     had not issued a final decision on the matter, the administrative judge concluded
     that the Board lacked jurisdiction over the appellant’s entitlement to a deferred
     retirement annuity from September 23, 2012, through the present. Id. On review,
     the appellant appears to challenge this finding by contending that he has not
     received OPM’s correspondence regarding his eligibility to apply for a deferred
     retirement annuity. PFR File, Tab 1 at 1-2. Even if the appellant’s assertion
     were true, he has failed to allege any basis to disturb the administrative judge’s
     finding on the jurisdictional issue. 4   Id.; see Ramirez, 114 M.S.P.R. 511, ¶ 7.
     Thus, we agree with the administrative judge that the Board lacks jurisdiction
     over the appellant’s claim that he is entitled to a deferred retirement annuity.
¶9         The administrative judge also determined that the Board lacks jurisdiction
     to consider whether the appellant is entitled to reinstatement of his disability
     retirement annuity because he did not request reconsideration of OPM’s June 22,


     4
       The record contains OPM’s correspondence informing the appellant of his option to
     apply for a deferred retirement annuity and provides a deferred retirement application
     form. IAF, Tab 9 at 6, 9-23. The appellant does not dispute that he has received
     OPM’s response file in this matter.
                                                                                            6

      2012 initial decision denying his request for reinstatement. ID at 4-5; IAF, Tab 9
      at 29. The appellant does not specifically challenge this finding on review, but
      generally argues that he is disabled and entitled to the disability retirement
      annuity.     PFR File, Tab 1.     As noted above, a final OPM decision, i.e., a
      reconsideration decision, is usually a prerequisite to Board jurisdiction unless the
      applicant has repeatedly requested a final decision, but OPM does not intend to
      issue one. See Ramirez, 114 M.S.P.R. 511, ¶ 7; McNeese v. Office of Personnel
      Management, 61 M.S.P.R. 70, 73-74, aff’d, 40 F.3d 1250 (Fed. Cir. 1994)
      (Table). Here, however, the appellant does not contend that OPM has issued a
      reconsideration decision on his request for reinstatement of his disability
      retirement annuity or allege that he has requested reconsideration of OPM’s
      June 22, 2012 initial decision.    PFR File, Tab 1.      Thus, we find no reason to
      disturb the administrative judge’s finding that the Board lacks jurisdiction over
      the appellant’s entitlement to reinstatement of his disability retirement annuity.
      ID at 4-5.
¶10         Next, the administrative judge concluded that, insofar as the appellant
      sought to appeal the November 22, 2013 reconsideration decision finding that he
      received an overpayment of $8,275.48 between July 1, 2007, and February 29,
      2008, any such appeal was untimely filed without good cause shown. ID at 5-6.
      In so finding, the administrative judge explained that, even if the appellant’s
      August 26, 2014 letter—addressed to the regional office but apparently only
      received by OPM—was intended or construed as an appeal of the November 22,
      2013 reconsideration decision, it was untimely filed by over 8 months. 5 ID at 6.

      5
       In the Board’s June 25, 2015 final order, it noted that OPM’s response file in MSPB
      Docket No. AT‑831M-15-0176-I-1 contained an August 26, 2014 letter from the
      appellant addressed to the Atlanta Regional Office, with copies to OPM, requesting a
      hearing and challenging the overpayment determination and OPM’s nonpayment of
      annuity benefits from 2005 through the present. IAF, Tab 1 at 3. In forwarding the
      appellant’s claim of entitlement to an annuity between 2005 through the present, the
      Board ordered the administrative judge to consider whether OPM’s receipt of the
      appellant’s August 26, 2014 letter constituted a timely filing with the Board. Id. at 5.
                                                                                        7

      Furthermore, the administrative judge found that the appellant’s vague contention
      that he did not receive unspecified documents was not credible and concluded that
      the appellant did not act reasonably and with due diligence under the particular
      circumstances of this case. Id. The appellant does not specifically challenge this
      finding on review, but asserts that “most of their paper work was never received
      by me.” PFR File, Tab 1 at 1.
¶11        Generally, 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’s decision, whichever is later.         5 C.F.R.
      § 1201.22(b)(1).   An appellant bears the burden of proof on the issue of
      timeliness. 5 C.F.R. § 1201.56(a)(2)(ii). If an appellant fails to timely submit his
      appeal, it will be dismissed as untimely filed absent a showing of good cause for
      the delay in filing.   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. Marcantel v.
      Department of Energy, 121 M.S.P.R. 330, ¶ 10 (2014). The Board has recognized
      an exception to this rule, however, in cases in which appellants have timely but
      mistakenly sent appeals of OPM reconsideration decisions to OPM rather than to
      the Board. Mohammed v. Office of Personnel Management, 108 M.S.P.R. 609,
      ¶ 10 (2008).
¶12        As the administrative judge correctly determined, even assuming that the
      appellant’s August 26, 2014 letter should be construed as an appeal of the
      November 22, 2013 reconsideration decision, it was untimely filed by over
      8 months. ID at 6; IAF, Tab 9 at 24-27. We agree with the administrative judge
      that the appellant’s vague assertion that he did not receive unspecified documents
      lacks credibility and fails to satisfy his burden of establishing good cause for his
      untimely filing. ID at 6; IAF, Tabs 8, 11-12, 14; PFR File, Tab 1. Accordingly,
      we agree with the administrative judge that any challenge by the appellant to the
                                                                                     8

November 22, 2013 final decision is untimely filed without good cause shown.
ID at 6. As a result, we affirm the initial decision.

                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. 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
                                                                                9

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.
