UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
JEAN D. WATSON, DOCKET NUMBER Appellant, PH-0842-25-0105-I-1
v.
OFFICE OF PERSONNEL DATE: August 24, 2026 MANAGEMENT, Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jean D. Watson , Baltimore, Maryland, pro se.
Maureen A. Kersey , Sherri A. McCall , and Eva Ukkola , Washington, D.C., for the agency.
BEFORE
James J. Woodruff II, Chairman Henry J. Kerner, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which affirmed the reconsideration decision of the Office of Personnel Management (OPM) finding that the appellant did not prove that she was entitled to receive a retirement annuity under the Federal Employees’ Retirement System (FERS). For
1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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).
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).
BACKGROUND
On October 4, 2024, OPM issued a reconsideration decision, which affirmed its initial decision finding that the appellant was not entitled to an annuity under FERS. Initial Appeal File (IAF), Tab 12 at 13-15. The appellant filed an appeal of that decision with the Board. IAF, Tab 1 at 4-10.
The administrative judge issued a July 10, 2025 initial decision affirming OPM’s decision. IAF, Tab 16, Initial Decision (ID) at 1-2, 7. The administrative judge notified the appellant that the initial decision would become final on August 14, 2025, unless a petition for review was filed by that date. ID at 8. She also provided information as to how to file a petition for review. ID at 8-9.
On September 12, 2025, the appellant filed a petition for review of the initial decision via facsimile. Petition for Review (PFR) File, Tab 1 at 1. 2 The Office of the Clerk of the Board notified the appellant that her petition for review was untimely filed and explained that she could file a motion asking the Board to accept the petition for review as timely or to waive the time limit for good cause. PFR File, Tab 2 at 2. The appellant did not respond to this notice. The agency filed a response to the appellant’s petition for review, which the Office of the Clerk of the Board accepted as timely due to extensions granted for deadlines during the partial shutdown of the Federal Government. PFR File, Tabs 3, 5.
DISCUSSION OF ARGUMENTS ON REVIEW A petition for review must generally be filed within 35 days after the issuance of the initial decision or, if the appellant shows that she received the initial decision more than 5 days after the date of the issuance, within 30 days
2 On review, the appellant submits the initial decision that was included in the record below. PFR File, Tab 1 at 16-47. This document is neither new nor material and thus does not establish a basis to disturb the initial decision. 5 C.F.R. § 1201.115.
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after the date she received the initial decision. 5 C.F.R. § 1201.114(e). The appellant bears the burden of proving, by a preponderance of the evidence, that she timely filed her petition for review. McPherson v. Department of the Treasury, 104 M.S.P.R. 547, ¶ 4 (2007).
Here, the initial decision was issued on July 10, 2025, and mailed to the appellant’s address of record that same day. ID at 1, 16. The Board’s regulation at 5 C.F.R. § 1201.22(b)(3) explains that correspondence properly addressed and sent to the appellant’s address via postal delivery is presumed to have been duly delivered to the addressee. See Little v. U.S. Postal Service, 124 M.S.P.R. 183, ¶¶ 7-8 (2017); see also 5 C.F.R. § 1201.114(e) (explaining that the date the appellant receives the initial decision is determined according to section 1201.22(b)(3)).
The certificate of service appended to the administrative judge’s initial decision indicates that the decision was mailed to the appellant’s address of record. Compare ID at 16, with IAF, Tab 1 at 3. Similarly, after the issuance of the initial decision, the regional office mailed the appellant a letter with an appeal form to the appellant’s address of record. Compare PFR File, Tab 1 at 2, 4, with IAF, Tab 1 at 3. The appellant has not argued that the address on either of the mailings was not her address of record or that there was another reason she did not receive her mail. Her vague allegation that she called the regional office on August 14, 2025, for an update because she either had not received the initial decision or an appeal form is insufficient to rebut the presumption that the initial decision was delivered to and received by the appellant. PFR File, Tab 1 at 6; see Deville v. Government Printing Office, 93 M.S.P.R. 187, ¶ 11 (2002) (finding that an appellant’s mere allegation of non-receipt of the status conference order did not rebut the presumption of its due delivery and receipt). Thus, the deadline for filing was August 14, 2025. ID at 8. Because the petition for review was filed on September 12, 2025, it was untimely by 29 days. PFR File, Tab 1.
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As the appellant filed her petition for review 29 days late, we turn to whether she established good cause to waive the time limit. 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. See Palermo v. Department of the Navy, 120 M.S.P.R. 694, ¶ 4 (2014); see 5 C.F.R. § 1201.114(g). The party who submits an untimely petition for review has the burden of establishing good cause for the untimely filing by showing that she exercised due diligence or ordinary prudence under the particular circumstances of the case. Palermo, 120 M.S.P.R. 694, ¶ 4. To determine whether a party has shown good cause, the Board will consider the length of the delay, the reasonableness of her excuse and the party’s showing of due diligence, whether she 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 which similarly shows a causal relationship to her inability to timely file her petition. Id.
The appellant vaguely addresses her filing delay in her petition for review.
PFR File, Tab 1. According to the appellant, she called the regional office on August 14, 2025, to get an update on her case and requested an appeal form be mailed to her. Id. at 6. This statement was not made in an affidavit or under penalty of perjury, and the appellant did not respond to the Office of the Clerk of the Board’s notice affording her an opportunity to provide an explanation in such a form. PFR File, Tabs 1-2. The Board has held that, when a party’s explanation for the untimeliness of a pleading is not submitted in the form of an affidavit or a statement made under penalty of perjury, it is insufficient to establish the assertions it contains. Strausbaugh v. Government Printing Office, 117 M.S.P.R. 566, ¶ 10 (2012); see Palermo, 120 M.S.P.R. 694, ¶ 9 (stating that an untimely petition for review must be accompanied by a motion containing an affidavit or sworn statement). Thus, the appellant’s vague explanation in her petition for
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review is insufficient to establish her assertions regarding receipt of the initial decision.
In any event, as discussed above, the certificate of service confirms that the initial decision, dated July 10, 2025, was sent to the appellant’s address of record via U.S. mail. ID at 16. She did not file her petition for review until September 12, 2025. PFR File, Tab 1. The appellant’s failure to address the timeliness of her petition for review and the lack of evidence of circumstances beyond her control or of unavoidable casualty or misfortune that prevented her from filing a timely petition for review weigh against finding good cause. See Cabarloc v. Department of Veterans Affairs, 112 M.S.P.R. 453, ¶¶ 9-10 (2009) (finding no good cause for the pro se appellant’s 10-day delay in filing a petition for review when he failed to respond to the Office of the Clerk of the Board’s notice regarding timeliness); Beckley v. U.S. Postal Service, 43 M.S.P.R. 397, 399 (1990) (noting that in the interest of judicial efficiency and fairness, regardless of how minimal the delay, the Board will not waive its timeliness requirements in the absence of good cause shown). Although we recognize that the appellant is proceeding pro se, her 29-day delay is not minimal. See Crook v. U.S. Postal Service, 108 M.S.P.R. 553, ¶ 6 (finding that a 1-month filing delay was significant), aff’d, 301 F. App’x 982 (Fed. Cir. 2008); Blankenship v. Department of Veterans Affairs, 98 M.S.P.R. 641, ¶ 7 (2005) (finding a 25-day filing delay significant).
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 appeal of OPM’s reconsideration decision.
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NOTICE OF APPEAL RIGHTS 3 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.
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).
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.
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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 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
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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.
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
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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).
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
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.
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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.