UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SHARON L. CROSS,

Appellant,

v.

OFFICE OF PERSONNEL 

MANAGEMENT,

Agency.

DOCKET NUMBER

NY-844E-16-0220-I-1

DATE: May 10, 2022

THIS ORDER IS NONPRECEDENTIAL1

Sharon L. Cross, Cooperstown, New York, pro se.

Linnette Scott, Washington, D.C., for the agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

REMAND ORDER

¶1 The Office of Personnel Management (OPM) has filed a petition for review 

of the initial decision, which dismissed this appeal without prejudice until either 

medical documentation demonstrated the appellant’s medical fitness or the 

appellant secured representation. For the reasons discussed below, we GRANT 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

OPM’s petition for review, AFFIRM the initial decision to the extent that it 

dismissed the appeal without prejudice for 120 days, VACATE the initial 

decision to the extent that it dismissed the appeal without prejudice beyond 

120 days, and REMAND the case to the field office for further adjudication in 

accordance with this Remand Order. 

¶2 On August 30, 2012, the appellant filed the instant appeal challenging 

OPM’s reconsideration decision that disallowed her disability retirement 

application under the Federal Employees’ Retirement System. Cross v. Office of 

Personnel Management, MSPB Docket No. NY-844E-12-0269-I-1, Initial Appeal 

File, Tab 1. At the appellant’s request, from January 24, 2013, through 

January 28, 2016, the administrative judge dismissed the matter without prejudice 

nine times to provide her an opportunity to obtain representation. 2 Cross v. Office 

of Personnel Management, MSPB Docket No. NY-844E-16-0220-I-1, Refiled 

Appeal File (RAF), Tab 1. The appeal was automatically refiled on April 28, 

2016. Id.

¶3 The appellant requested an additional dismissal without prejudice, stating 

that attorneys were looking into her case and that she needed more time to obtain 

representation. RAF, Tabs 3, 6. On July 13, 2016, she submitted a request for a 

120-day stay of proceedings, along with a three-sentence letter from her 

physician, asserting that she had been seriously ill and received advice from her 

physician that she should limit her activities for 120 days. RAF, Tab 14. The 

administrative judge denied her request. RAF, Tab 15. The appellant requested 

that the administrative judge reconsider this denial and sought an order staying 

any further proceedings until she was medically capable to proceed pro se or until 

she obtained representation. RAF, Tab 16 at 4. 

¶4 On August 1, 2016, the administrative judge issued an initial decision 

dismissing the appeal without prejudice. RAF, Tab 18, Initial Decision (ID). She 

 

2

These initial decisions can be found at MSPB Docket Nos. NY-844E-12-0269-I-1 

through NY-844E-12-0269-I-9.
3

considered that the appellant’s medical condition would affect her ability to 

prosecute her appeal, but she found that there was no indication when the medical 

condition would end. ID at 3. She dismissed the appeal without prejudice to be 

refiled only when either medical documentation demonstrated that the appellant 

was medically fit to represent herself in the processing of her appeal or she 

obtained a representative. Id.

¶5 OPM has filed a petition for review, and the appellant has responded in 

opposition to the petition. Petition for Review File, Tabs 1-2, 4.

¶6 The Board disfavors dismissals without prejudice that do not contain a 

specific refiling date, especially when, as here, there is no indication when the

matter underlying the dismissal will be resolved. Argabright v. Department of 

Defense, 113 M.S.P.R. 152, ¶ 8 (2010). In this case, the administrative judge did 

not set a date certain for refiling the appeal but instead referred to an uncertain 

date when the appellant would be able to obtain representation, despite the fact 

that she had been unable to obtain representation for more than 3 years, or when 

she would be medically fit. ID at 3. Under these circumstances, we find that the 

administrative judge erred in dismissing the appeal without prejudice without 

setting a date certain for refiling the appeal. Mojarro v. U.S. Postal Service, 

115 M.S.P.R. 433, ¶ 7 (2010).

¶7 When an administrative judge has erred by failing to set a date certain for 

refiling an appeal, the Board has modified the initial decision by setting a date 

certain for the refiling. See, e.g., Selig v. Department of the Army, 102 M.S.P.R. 

189, ¶ 8 (2006). The appellant requested a stay of proceedings for 120 days in 

July 2016. RAF, Tab 14. This is the only request that is supported by any 

medical documentation, albeit a brief three-sentence letter. Id. We find that it 

was appropriate for the administrative judge to grant this request. Because over 

120 days have passed both from the appellant’s request and from the initial 

decision, we find that it is now appropriate to remand the appeal to the field 

office for refiling.
4

¶8 On remand, if the appellant requests an additional dismissal without 

prejudice based upon her medical condition, the administrative judge should 

determine whether she identifies her condition and explains both why it prevents 

her from proceeding with her appeal and how long the condition might be 

expected to continue. Argabright, 113 M.S.P.R. 152, ¶ 7. The administrative 

judge also should provide OPM an opportunity to respond to any such arguments. 

Id. The administrative judge also may consider whether the procedures for 

appointment of representation outlined in French v. Office of Personnel 

Management, 810 F.2d 1118, 1120 (Fed. Cir. 1987) (finding that, in a disability 

retirement appeal, the Board has authority to request pro bono representation for 

an appellant who asserts that he is mentally incompetent), are applicable to this 

appeal.

ORDER

¶9 For the reasons discussed above, we remand this case to the field office for 

further adjudication in accordance with this Remand Order. 3

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board

 

3

The case index in this appeal indicates that Tab 11 of the Refiled Appeal File contains 

a pleading filed by the appellant on May 25, 2016, entitled “Motion to Change Date of 

Status Conference.” However, the pleading is not contained in the file. RAF, Tab 11. 

On remand, the administrative judge shall ask the parties to submit the pleading so that 

it may be entered into the record.