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CourtListener opinion 2771373

Date unknown · US

Extracted case name
pending
Extracted reporter citation
918 F.2d 187
Docket / number
CH-0831-11-0312-I-1. Id. 2
QDRO relevance 5/5Retirement relevance 5/5Family-law relevance 5/5gold label pending
Research-use warning: This page contains machine-draft public annotations generated from public opinion text. The headnote is not Willie-approved gold-label work product and is not legal advice. Verify the full opinion and current law before relying on it.

Machine-draft headnote

Machine-draft public headnote: CourtListener opinion 2771373 is included in the LexyCorpus QDRO sample set as a public CourtListener opinion with relevance to pension / defined benefit issues. The current annotation is conservative: it identifies source provenance, relevance signals, and evidence quotes for attorney/agent retrieval. It is not a Willie-approved legal headnote yet.

Retrieval annotation

Draft retrieval summary: this opinion has QDRO relevance score 5/5, retirement-division score 5/5, and family-law score 5/5. Use the quoted text and full opinion below before relying on the case.

Category: pension / defined benefit issues

Evidence quotes

QDRO

IAF), Tab 7, Subtab 2. On June 3, 2011, the administrative judge issued an initial decision in which he found that the decree effecting the appellant's divorce from the annuitant, John S. Lowe, did not expressly provide for a survivor annuity and that the qualified domestic relations order (QDRO) purporting to award the appellant a survivor annuity was not effective because it modified the first court order dividing marital property and was executed after Mr. Lowe died. 0312 IAF, Tab 11, Initial Decision (0312 ID) at 7. ¶3 The administrative judge noted, however, that, during proceedings in the appeal, the appellant claimed that Mr. Lowe

domestic relations order

7, Subtab 2. On June 3, 2011, the administrative judge issued an initial decision in which he found that the decree effecting the appellant's divorce from the annuitant, John S. Lowe, did not expressly provide for a survivor annuity and that the qualified domestic relations order (QDRO) purporting to award the appellant a survivor annuity was not effective because it modified the first court order dividing marital property and was executed after Mr. Lowe died. 0312 IAF, Tab 11, Initial Decision (0312 ID) at 7. ¶3 The administrative judge noted, however, that, during proceedings in the appeal, the appellant claimed that Mr. Lowe

survivor benefits

is DISMISSED as untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g). BACKGROUND ¶2 The appellant filed an appeal challenging OPM's January 5, 2011 reconsideration decision, in which OPM denied the appellant's request for a court-awarded survivor annuity. MSPB Docket No. CH-0831-11-0312-I-1, Initial Appeal File (0312 IAF), Tab 7, Subtab 2. On June 3, 2011, the administrative judge issued an initial decision in which he found that the decree effecting the appellant's divorce from the annuitant, John S. Lowe, did not expressly provide for a survivor annuity and that the qualified domestic relations order

Source and provenance

Source type
courtlistener_qdro_opinion_full_text
Permissions posture
public
Generated status
machine draft public v0
Review status
gold label pending
Jurisdiction metadata
US
Deterministic extraction
reporter: 918 F.2d 187 · docket: CH-0831-11-0312-I-1. Id. 2
Generated at
May 14, 2026

Related public corpus pages

Deterministic links based on shared title/citation terms and QDRO / retirement / family-law retrieval scores.

Clean opinion text

UNITED STATES OF AMERICA
 MERIT SYSTEMS PROTECTION BOARD

 NORMA K. LOWE, DOCKET NUMBER
 Appellant, CH-0831-11-0312-I-1

 v.

 OFFICE OF PERSONNEL DATE: January 20, 2015
 MANAGEMENT,
 Agency.

 THIS FINAL ORDER IS NONPRECEDENTIAL 1

 Margo Charles, Frankfort, Kentucky, for the appellant.

 Roxann Johnson, Washington, D.C., for the agency.

 BEFORE

 Susan Tsui Grundmann, Chairman
 Anne M. Wagner, Vice Chairman
 Mark A. Robbins, Member

 FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which
 remanded the Office of Personnel Management's (OPM) reconsideration decision
 to that agency. For the reasons set forth below, the appellant's petition for review

 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

 is DISMISSED as untimely filed without good cause shown. 5 C.F.R.
 § 1201.114(e), (g).

 BACKGROUND
¶2 The appellant filed an appeal challenging OPM's January 5, 2011
 reconsideration decision, in which OPM denied the appellant's request for a
 court-awarded survivor annuity. MSPB Docket No. CH-0831-11-0312-I-1, Initial
 Appeal File (0312 IAF), Tab 7, Subtab 2. On June 3, 2011, the administrative
 judge issued an initial decision in which he found that the decree effecting the
 appellant's divorce from the annuitant, John S. Lowe, did not expressly provide
 for a survivor annuity and that the qualified domestic relations order (QDRO)
 purporting to award the appellant a survivor annuity was not effective because it
 modified the first court order dividing marital property and was executed after
 Mr. Lowe died. 0312 IAF, Tab 11, Initial Decision (0312 ID) at 7.
¶3 The administrative judge noted, however, that, during proceedings in the
 appeal, the appellant claimed that Mr. Lowe may not have had full possession of
 his mental faculties when he elected an unreduced annuity at retirement because
 he was suffering from a brain tumor at the time. 0312 ID at 8. Accordingly, the
 administrative judge affirmed the reconsideration decision to the extent that it
 concluded that the appellant was not entitled to a survivor annuity based on the
 terms of the divorce decree or QDRO but remanded to OPM for issuance of a
 supplemental reconsideration decision addressing the merits of the appellant's
 claim regarding the validity of Mr. Lowe's election of an unreduced annuity.
 0312 ID at 8. The administrative judge also notified the appellant that the initial
 decision would become final on July 8, 2011, unless a petition for review were
 filed by that date. 0312 ID at 8-9.
¶4 On December 9, 2013, the appellant filed another appeal repeating the
 allegations in her previous appeal that her divorce decree states that she is
 entitled to surviving spouse benefits. MSPB Docket No. CH-0831-14-0161-I-1,
 3

 Initial Appeal File (0161 IAF), Tab 1. While the appeal was pending, OPM
 issued a supplemental decision finding that the matter of Mr. Lowe's competency
 is not relevant to the appellant's situation because the appellant was a former
 spouse when Mr. Lowe made the election. 0161 IAF, Tab 4 at 4. The appellant
 then stated that she wanted to withdraw her appeal and pursue a petition for
 review in the previously-decided appeal, MSPB Docket No. CH-0831-11-0312-
 I-1, and the administrative judge dismissed the appeal as withdrawn. 0161 IAF,
 Tabs 7-8.
¶5 On April 28, 2014, the appellant file a petition for review without an
 identifying docket number with the Regional Office. 2 The Regional Office
 forwarded the petition to the Clerk of the Board. Petition for Review File (PFR
 File), Tab 1. By notice dated May 7, 2014, the Clerk acknowledged the
 appellant's submission as a petition for review of the initial decision in MSPB
 Docket No. CH-0831-14-0161-I-1. PFR File, Tab 2. Considering the basis for
 the appellant's withdrawal of her petition for appeal in MSPB Docket No. CH-
 0831-14-0161-I-1, and the wording of her petition for review, it appeared,
 however, that the appellant may have intended her April 28, 2014 filing to be a
 petition for review of MSPB Docket No. CH-0831-11-0312-I-1, instead of a
 petition for review of MSPB Docket No. CH-0831-14-0161-I-1. The Board
 issued a show cause order providing the appellant an opportunity to clarify the
 intent of her April 28, 2014 filing. PFR File, Tab 4. The Board's order provided
 that, if the appellant failed to timely file a response, it would assume that she
 intended to contest the June 3, 2011 initial decision and would redocket the
 petition for review as a petition for review of the initial decision in MSPB Docket
 No. CH-0831-11-0312-I-1. Id.

 2
 In the May 7, 2014 letter acknowledging the filing of a petition for review in MSPB
 Docket No. CH-0831-14-0161-I-1, the Clerk acknowledged the filing date of the
 petition for review as April 25, 2014; the filing date of the petition for review was
 actually April 28, 2014. See 5 C.F.R. § 1201.4(l) (the date of filing by mail is
 determined by the postmark date).
 4

¶6 The appellant did not respond to the show cause order. The Board
 redocketed the appeal, and the Clerk of the Board sent the appellant a revised
 petition for review acknowledgment order that provided her with an opportunity
 to establish that her petition for review was timely filed or that good cause exists
 for the delay in filing. PFR File, Tab 5. The revised acknowledgment order
 noted that the initial decision in the appellant's redocketed case was issued on
 June 3, 2011, and that her petition for review was untimely because it was not
 postmarked or received by the Board on or before July 8, 2011, the 35 th day
 following the issuance of the initial decision. Id.; 5 U.S.C. § 7701(e)(1)(A);
 5 C.F.R. § 1201.114(e). The revised acknowledgment order was accompanied by
 a "Motion to Accept Filing as Timely or to Waive Time Limit" form, and
 informed the appellant that her motion and accompanying signed statement must
 be postmarked or sent by facsimile on or before October 29, 2014. PFR File,
 Tab 5. The appellant has not responded to the revised acknowledgment order.

 DISCUSSION OF ARGUMENTS ON REVIEW
¶7 To be timely, a petition for review must be filed within 35 days after the
 administrative judge issued the initial decision or, if the appellant shows that the
 initial decision was received more than 5 days after the date of issuance, within
 30 days after the date of receipt. Lawson v. Department of Homeland Security,
 102 M.S.P.R. 185, ¶ 5 (2006); 5 U.S.C. § 7701(e)(1)(A); 5 C.F.R. § 1201.114(e).
 The Board will waive the time limit for filing only upon a showing of good cause
 for the delay. Rothlisberger v. Department of the Army, 113 M.S.P.R. 450, ¶ 4
 (2010).
¶8 To establish good cause for a delay in filing, a party must show that she
 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).
 The Board considers the length of the delay in every good cause determination.
 See Walker v. Department of the Air Force, 109 M.S.P.R. 261, ¶ 5 (2008). In
 5

 addition to the length of the delay, the Board considers the reasonableness of the
 appellant's excuse and her showing of due diligence, whether she is proceeding
 pro se, and whether she has presented evidence of circumstances beyond her
 control that affected her ability to comply with the time limits or of unavoidable
 casualty or misfortune that prevented her from timely filing her petition. See, e.g.,
 Wyeroski v. Department of Transportation, 106 M.S.P.R. 7, ¶ 7, aff'd,
 253 F. App'x. 950 (Fed. Cir. 2007).
¶9 There is no evidence or argument in the record of this case to justify the
 appellant's delay of 2 years and 9 months in filing her petition for review. The
 petition is silent as to a reason for the delay, and the appellant has provided no
 explanation for the late filing in response to the Clerk's revised acknowledgment
 order. Therefore, there are no grounds for finding good cause for the filing delay.
 See Mendoza v. Office of Personnel Management, 43 M.S.P.R. 427, 429, aff'd,
 918 F.2d 187 (Fed. Cir. 1990) (Table). The appellant has failed to show that she
 exercised the due diligence or ordinary prudence that would justify waiving the
 deadline for filing a petition for review. As noted, the initial decision informed
 the appellant that it would become the final decision of the Board in 35 days, i.e.,
 on July 8, 2011, unless a petition for review was filed by that date. 0312 ID
 at 8-9. The Board has declined to find good cause for an untimely filing where,
 as here, the initial decision clearly notified the appellant of the time limit within
 which to file a petition for review, and the appellant failed to do so. See Guevara
 v. Department of the Navy, 112 M.S.P.R. 39, ¶ 7 (2009); see also Crook v. U.S.
 Postal Service, 108 M.S.P.R. 553, ¶ 6, aff'd, 301 F. App'x. 982 (Fed. Cir. 2008).
¶10 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 remanding OPM's reconsideration decision.
 6

 NOTICE TO THE APPELLANT REGARDING
 YOUR FURTHER REVIEW RIGHTS
 You have the right to request review of this final decision by the
United States 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