Leatrice Lane v. Court Services and Offender Supervision Agency for DC ( 2024 )


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  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    LEATRICE FORD LANE,                             DOCKET NUMBER
    Appellant,                         DC-0752-18-0760-I-3
    v.
    COURT SERVICES AND OFFENDER                     DATE: March 22, 2024
    SUPERVISION AGENCY FOR DC,
    Agency.
    THIS ORDER IS NONPRECEDENTIAL 1
    Sheila S Iverson , Mount Rainier, Maryland, for the appellant.
    Julia Martin and Marvelle Butler , Washington, D.C., for the agency.
    BEFORE
    Cathy A. Harris, Chairman
    Raymond A. Limon, Vice Chairman
    REMAND ORDER
    ¶1         The appellant has filed a petition for review of the initial decision, which
    dismissed her removal appeal as untimely refiled.         For the reasons discussed
    below, we GRANT the appellant’s petition for review, REVERSE the initial
    decision, WAIVE the refiling deadline, and REMAND the case to the regional
    office for further adjudication in accordance with this Remand Order.
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    BACKGROUND
    ¶2        The appellant was a GL-07 Offender Processing Assistant for the agency.
    Lane v. Court Services and Offender Supervision Agency for D.C. , MSPB Docket
    No. DC-0752-18-0760-I-1, Initial Appeal File (IAF), Tab 5 at 79.       Effective
    July 18, 2018, the agency removed her under 5 U.S.C. chapter 75. 
    Id. at 79-88, 92-99
    . On August 17, 2018, the appellant filed a timely Board appeal of her
    removal. IAF, Tab 1. Prior to the close of the record, the appellant submitted
    medical documentation, indicating that she was suffering from numerous
    psychological problems and had to undergo surgery for a brain aneurysm. IAF,
    Tab 13.   The administrative judge contacted the appellant, who agreed to a
    dismissal without prejudice. IAF, Tab 15 at 2. The agency had no objection. 
    Id.
    at 2 n.*. Accordingly, on November 16, 2018, the administrative judge issued an
    initial decision dismissing the appeal without prejudice to refiling within
    120 days. 
    Id. at 1-3
    .
    ¶3        On February 20, 2019, the appellant sent the administrative judge an
    ambiguous email about her case.        Lane v. Court Services and Offender
    Supervision Agency for D.C., MSPB Docket No. DC-0752-18-0760-I-2, Appeal
    File (I-2 AF), Tabs 1-2.     A Board paralegal contacted the appellant, who
    confirmed that she intended to refile her appeal.    I-2 AF, Tab 2 at 1 n.1*.
    However, the appellant requested that her appeal be dismissed without prejudice
    for an additional 120 days, and on February 27, 2019, the administrative judge
    granted the appellant’s motion.   I-2 AF, Tab 3; Lane v. Court Services and
    Offender Supervision Agency for D.C., MSPB Docket No. DC-0752-18-0760-I-3,
    Appeal File (I-3 AF), Tab 2 at 2. The new refiling deadline was June 27, 2019.
    ¶4        On August 9, 2019, the appellant sent the administrative judge another
    email, stating as follows:
    3
    My apologies for missing deadline to request reopening of my
    appeal in the above matter.
    I have been recovering from brain surgery to remove an
    aneurysm, while, battling depression and anxiety. I was recently
    hospitalized and released from [the] hospital on Tuesday, August 6[,]
    2019. I am requesting reopening appeal in the above matter.
    I-3 AF, Tab 1. The administrative judge issued a show cause order, informing the
    appellant that her refiled appeal was untimely. He notified her of the standard for
    showing good cause for an untimely refiling and directed her to submit evidence
    and argument on the issue. I-3 AF, Tab 2 at 1-3. After both parties responded to
    the order, I-3 AF, Tabs 3, 5, the administrative judge dismissed the appeal as
    untimely refiled without good cause shown for the delay, I-3 AF, Tab 6, Initial
    Decision (ID).    He considered various factors weighing both in favor of and
    against waiving the refiling deadline, and he determined that dismissal was
    appropriate under the totality of the circumstances. ID at 7-18.
    ¶5         The appellant has filed a petition for review, disputing the administrative
    judge’s good cause analysis and several of his underlying findings of fact.
    Petition for Review (PFR) File, Tab 1. The agency has filed a response. PFR
    File, Tab 3.
    ANALYSIS
    ¶6         As stated above, the refiling deadline was June 27, 2019, and the appellant
    did not refile her appeal until August 9, 2019, forty-four days late. Supra ¶¶ 3-4.
    These facts are undisputed.     Therefore, the only issue is whether the refiling
    deadline should be waived. The Board has held that dismissals without prejudice
    should not become a trap to deny an appellant the opportunity to have her case
    decided on the merits. Jaramillo v. Department of the Air Force, 
    106 M.S.P.R. 244
    , ¶ 6 (2007). The Board has also found that an appellant should not be denied
    the opportunity to have her appeal heard on the merits when her intention to refile
    a Board appeal has been clear throughout the proceedings and the appeal was
    initially timely filed.   Shenwick v. Department of State, 
    90 M.S.P.R. 192
    , ¶ 9
    4
    (2001).       Accordingly, it has identified specific standards applicable to
    determining whether good cause exists for excusing an untimely refiled appeal of
    a matter previously dismissed without prejudice. These include the following: the
    appellant’s pro se status; the timeliness of the initial appeal; the appellant’s
    demonstrated intent throughout the proceedings to refile the appeal; the length of
    the delay in refiling; confusion surrounding and arbitrariness of the refiling
    deadline; the number of prior dismissals without prejudice; the agency’s failure to
    object to the dismissal without prejudice; and the lack of prejudice to the agency
    in allowing the refiled appeal. Sherman v. U.S. Postal Service, 
    118 M.S.P.R. 265
    ,
    ¶ 9 (2012).
    ¶7         In this case, the administrative judge found that the appellant was acting pro
    se for the majority of the proceedings, but that this factor was not particularly
    compelling “given the explicit and unambiguous clarity of notice” in his oral and
    written refiling instructions. ID at 8. The administrative judge considered the
    appellant’s contention that she believed that the 120-day refiling period began on
    the finality date of the initial decision, but he declined to credit this explanation
    because it was inconsistent with the plain language of the refiling instructions and
    she had previously demonstrated her ability to refile on time.            ID at 9.   The
    administrative judge considered that there were only two dismissals without
    prejudice in this case and that the appellant demonstrated her intent to pursue her
    appeal, but he found that these factors weighed only minimally in her favor, given
    her repeated failure to follow his orders in the initial appeal phase. 2 ID at 9-10.
    The administrative judge further considered that the length of the filing delay
    weighed against waiving the deadline and that the agency would suffer at least
    minimal prejudice if the filing deadline were waived. ID at 10-11. He considered
    that the agency had consented to the dismissals, but he found that this fact was
    not particularly significant under the circumstances of the case.              ID at 10.
    2
    The appellant’s failure to follow the administrative judge’s orders resulted in an order
    to show cause why the administrative judge should not impose sanctions, including
    dismissal. IAF, Tab 10.
    5
    Finally, the administrative judge considered the appellant’s explanation for the
    filing delay, i.e., that she was suffering from health conditions that interfered
    with the timely refiling. However, he found that the appellant failed to provide
    sufficient medical documentation to substantiate her claims, and that she failed to
    establish a causal connection between these conditions and her ability to refile on
    time. ID at 11-12.
    ¶8        Considering the record as a whole, we find it appropriate to waive the filing
    deadline. The appellant filed her initial appeal on time, and notwithstanding the
    two dismissals without prejudice, at no point in these proceedings has the
    appellant indicated an intention to abandon her appeal. As for the reason that the
    appellant missed the filing deadline, we agree with the administrative judge that
    she did not submit medical evidence of incapacitation during the relevant time
    period. ID at 11-12. However, the record is sufficient to show that the appellant
    was suffering from health conditions that required intensive treatment and likely
    interfered with her ability to conduct her business, at least to some degree. I-3
    AF, Tab 3.     We also agree with the administrative judge that the dismissal
    without prejudice set forth a clear deadline for refiling, and despite the
    appellant’s arguments on review, it does not appear that she missed that deadline
    because of a miscalculation. 3   PFR File, Tab 1 at 11-14; I-2 AF, Tab 3 at 3.
    Nevertheless, we find that the appellant’s pro se status contributed to her
    untimely refiling to the extent that there was nobody to help her monitor the
    deadline.    In any event, regardless of whether the appellant exercised due
    diligence in refiling her appeal, the Board has occasionally dispensed with the
    due diligence requirement for untimely refilings when, as here, other factors
    favoring a waiver are present.    See, e.g., Jaramillo v. Department of the Air
    Force, 
    106 M.S.P.R. 244
    , ¶¶ 5-6, 8 (2007); Hodges v. Office of Personnel
    3
    In particular, the appellant has not explained exactly what mistake she made in
    calculating the deadline, and she has not identified the date that she believed the
    deadline to be.
    6
    Management, 
    101 M.S.P.R. 212
    , ¶¶ 10-11 (2006); Shenwick v. Department of
    State, 
    90 M.S.P.R. 192
    , ¶¶ 8, 11 (2001).
    ¶9         Finally, although a 44-day filing delay is significant, we disagree with the
    administrative judge that the agency would be prejudiced by a waiver of the
    refiling deadline. ID at 10-11. The administrative judge found that the agency
    would be prejudiced by a waiver of the deadline because the “10-month delay on
    processing time will undoubtedly create some additional work for the agency as it
    relates to preparing and updating its closing submissions,” and the agency would
    suffer an inherent prejudice if he failed to enforce his own orders and the Board’s
    regulations requiring a demonstration of good cause to support a waiver of filing
    deadlines. 
    Id.
     However, the creation of additional litigation work for agency
    counsel is not the same thing as prejudice to the agency’s substantive rights, i.e.,
    prejudice affecting its ability to prevail on the merits. Moreover, the additional
    work of preparing and updating submissions would have been required even if the
    appellant had refiled on time. We also do not think that an administrative judge’s
    “failure to enforce” a refiling deadline is inherently prejudicial.      Otherwise,
    prejudice would be inherent in any deadline waiver.
    ¶10        Notwithstanding our decision on this petition for review, we agree with the
    administrative judge that the appellant’s untimely refiling is not the first time she
    has failed to comply with his orders. ID at 9; IAF, Tab 10. We remind the
    appellant that she is required to comply with the orders of the administrative
    judge, and that her failure to do so in the future may result in sanctions, up to and
    including dismissal of her appeal.    See 
    5 C.F.R. § 1201.43
    . A party to Board
    proceedings ignores the administrative judge’s orders at her own peril. See White
    v. Social Security Administration, 
    76 M.S.P.R. 303
    , 307 (1997), aff’d, 
    152 F.3d 948
     (Fed. Cir. 1998).
    7
    ORDER
    ¶11        For the reasons discussed above, we remand this case to the regional office
    for further adjudication in accordance with this Remand Order.
    FOR THE BOARD:                       ______________________________
    Gina K. Grippando
    Clerk of the Board
    Washington, D.C.
    

Document Info

Docket Number: DC-0752-18-0760-I-3

Filed Date: 3/22/2024

Precedential Status: Non-Precedential

Modified Date: 3/25/2024