UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LEATRICE FORD LANE,

Appellant,

v.

COURT SERVICES AND OFFENDER 

SUPERVISION AGENCY FOR DC,

Agency.

DOCKET NUMBER

DC-0752-18-0760-I-3

DATE: March 22, 2024

THIS ORDER IS NONPRECEDENTIAL1

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

2
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

3
(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.

4
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.

5
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).

6
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.

7