Aaron v. Merit Sys. Prot. Bd.

• Decision Date: 14 September 2015
• Docket Number: 2015-3088
• Parties: SHAWNTE' L. AARON, Petitioner v. MERIT SYSTEMS PROTECTION BOARD, Respondent
• Court: U.S. Court of Appeals — Federal Circuit

SHAWNTE' L. AARON, Petitioner
v.
MERIT SYSTEMS PROTECTION BOARD, Respondent

2015-3088

United States Court of Appeals for the Federal Circuit

September 14, 2015

NOTE: This disposition is nonprecedential.

Petition for review of the Merit Systems Protection Board in No. DE-0845-14-0503-I-1.

SHAWNTE' L. AARON, Buckeye, AZ, pro se.

STEPHEN FUNG, Office of the General Counsel, Merit Systems Protection Board, Washington, D.C., for respondent. Also represented by BRYAN G. POLISUK.

Before PROST, Chief Judge, MOORE, and STOLL, Circuit Judges.

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PER CURIAM.

Ms. Shawnte' Aaron seeks review of a decision of the Merit Systems Protection Board ("Board") dismissing her appeal as untimely filed. As Ms. Aaron fails to demonstrate that the Board abused its discretion in dismissing her appeal, we affirm.

BACKGROUND

Ms. Aaron retired from the United States Postal Service for disability in August 1997. Shortly thereafter, she began receiving disability benefits from the Office of Personnel Management ("OPM"). In September 2013, OPM learned that Ms. Aaron had also received Social Security disability benefits since February 2006. OPM notified Ms. Aaron by letter dated September 23, 2013 that she had been overpaid for the period between 2006 and 2013. The letter explained that the disability payments from OPM should have been reduced by the amount Ms. Aaron received under Social Security. Thus, OPM had overpaid Ms. Aaron by $63,833, which would be collected by reducing her monthly disability benefits. Ms. Aaron requested a waiver of the overpayment, which OPM denied in a reconsideration decision dated April 10, 2014.

OPM's April 10 reconsideration decision advised Ms. Aaron that any appeal must be filed with the Board within 30 days after the date of receipt of the agency's decision, that is, by May 16, 2014. On a date uncertain from the record, Ms. Aaron incorrectly filed her appeal with OPM rather than the Board. While her appeal petition was dated May 2, 2014, Ms. Aaron has not provided detail regarding how or when she submitted it to OPM. The date on which OPM received the appeal is also not identified in the record. The record does show, however, that OPM forwarded Ms. Aaron's appeal petition to the Board on July 17, 2014, and it was received by the Board on July 28. Because Ms. Aaron's appeal arrived at

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the Board outside the 30-day deadline, OPM moved to dismiss Ms. Aaron's appeal as untimely filed. The administrative judge ("AJ") then issued an order for Ms. Aaron to show cause why her appeal should not be dismissed as untimely filed, without a showing of good cause for the delay. Ms. Aaron did not respond to OPM's motion or to the Board's show-cause order.

The AJ issued an Initial Decision on September 10, 2014, finding that Ms. Aaron "has not proven that she timely filed her appeal, albeit erroneously, with OPM." RA 12. The AJ concluded that the May 2, 2014 date on her appeal petition did not establish preponderant evidence that she had in fact mailed it prior to the May 16, 2014 appeal deadline. The AJ further found that Ms. Aaron "provided no explanation for her late filing" and "failed to establish that good cause...