UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARION C. JOHNSON, DOCKET NUMBER
Appellant, AT-0353-13-4664-I-2
v.
UNITED STATES POSTAL SERVICE, DATE: September 30, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Marion C. Johnson, East Point, Georgia, pro se.
Tammie Philbrick, Esquire, Atlanta, Georgia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal without prejudice to refiling to allow him to
demonstrate that he is capable of understanding and responding to the Board’s
orders or to obtain representation before the Board. Generally, we grant petitions
such as this one only when: the initial decision contains erroneous findings of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED by
this Final Order to provide for automatic refiling of the appellant’s appeal, we
AFFIRM the initial decision, which is now the Board’s final decision.
BACKGROUND
¶2 Effective February 5, 2013, the agency removed the appellant from his
position of Maintenance Mechanic at the agency’s Atlanta Network Distribution
Center. Johnson v. U.S. Postal Service, MSPB Docket No. AT-0353-13-4664-I-1,
Initial Appeal File (IAF), Tab 5 at 20, 36. On August 20, 2013, the appellant
filed an appeal of his removal and requested a hearing. 2 IAF, Tab 1.
¶3 On September 26, 2013, the administrative judge issued an order on
timeliness. IAF, Tab 9. She informed the appellant that his appeal may be
untimely filed and that he has the burden of proving by preponderant evidence
that his appeal was filed on time or that good cause exists for the filing delay. Id.
at 1-3. She ordered him to file evidence and argument on the timeliness issue and
2
Although the initial appeal was docketed as a restoration appeal, the administrative
judge found that the appellant failed to meet the jurisdictional requirements for a
restoration appeal and noted that he was attempting to appeal his removal. Johnson v.
U.S. Postal Service, MSPB Docket No. AT-0353-13-4664-I-2, Appeal File, Tab 133
at 2.
3
apprised him of the criteria to show that an illness prevented him from timely
filing his appeal. Id. at 3-4. The appellant did not file a response.
¶4 Without holding a hearing or reaching the timeliness issue, the
administrative judge issued an initial decision dismissing the appeal without
prejudice to refiling to allow the appellant the opportunity to apply for disability
retirement. IAF, Tab 15, Initial Decision at 2. She informed the appellant that he
could refile his appeal, if necessary, by August 31, 2014, or within 30 days of a
final decision by the Office of Personnel Management (OPM) regarding his
application for disability retirement, whichever occurred earlier. Id.
¶5 OPM denied the appellant’s application for disability retirement on
August 13, 2015, and he asserted that he filed a request for reconsideration of the
decision. Johnson v. U.S. Postal Service, MSPB Docket No. AT-0353-13-4664-
I‑2, Appeal File (I-2 AF), Tab 43 at 4-7, Tab 113. The administrative judge
noted that the status of the appellant’s reconsideration request is unknown.
I-2 AF, Tab 157, Initial Decision (I-2 ID) at 1 n.2.
¶6 On August 25, 2015, the appellant refiled his removal appeal and requested
a hearing. I-2 AF, Tab 1. 3 On June 7, 2016, the administrative judge issued a
second order on timeliness. I-2 AF, Tab 136. She informed the appellant that his
initial appeal appeared to be untimely filed and that he had a second opportunity
to prove that his initial appeal was timely filed or that good cause exists for the
filing delay. Id. at 1-3. She apprised him again of the criteria to show that an
illness prevented him from timely filing his appeal and ordered him to file
evidence and argument on the timeliness issue. Id. at 3-4. He filed multiple
submissions in response. I-2 AF, Tabs 137‑55.
¶7 Without holding a hearing, the administrative judge issued an initial
decision dismissing the appeal without prejudice to refiling to allow the appellant
3
The administrative judge made a typographical error in stating that the instant appeal
was filed on “August 25, 2016.” I-2 ID at 1.
4
to demonstrate that he is capable of understanding and responding to the Board’s
orders or to obtain representation before the Board. I-2 ID at 4-5. The
administrative judge stipulated that, to be timely filed, the appellant must refile
his removal appeal by the earliest of one of the following events: (1) within
30 days from the date he is informed by a medical health professional that he is
able to understand the current Board proceedings and/or assist his designated
representative in Board proceedings; (2) within 60 days from the date he has an
attorney or other individual who is willing to represent him before the Board; or
(3) by January 31, 2017. I-2 ID at 4.
¶8 The appellant has filed a petition for review. Johnson v. U.S. Postal
Service, MSPB Docket No. AT-0353-13-4664-I-2, Petition for Review (PFR)
File, Tabs 1-3. The agency has filed a response. PFR File, Tab 6. The appellant
has filed a reply to the agency’s response. PFR File, Tab 8.
DISCUSSION OF ARGUMENTS ON REVIEW
¶9 An administrative judge has wide discretion to control the proceedings
before her, and a dismissal without prejudice to refiling is a procedural option
committed to her sound discretion. Gingery v. Department of the Treasury,
111 M.S.P.R. 134, ¶ 9 (2009). The Board has held that an administrative judge
sua sponte may dismiss an appeal without prejudice when such a dismissal is in
the interests of fairness, due process, and administrative efficiency. Gidwani v.
Department of Veterans Affairs, 74 M.S.P.R. 509, 511 (1997).
¶10 Based on our review of the record, we find that the administrative judge
properly exercised her discretion in dismissing the appellant’s appeal without
prejudice to refiling in the interest of fairness. I-2 ID at 4; I-2 AF, Tabs 35, 118,
123; cf. Argabright v. Department of Defense, 113 M.S.P.R. 152, ¶ 7 (2010)
(remanding the appeal for further development of the record regarding the
appellant’s medical condition on which the administrative judge based his
decision to dismiss the appeal without prejudice to refiling). We further find that
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it was within her discretion to determine that it was in the interest of fairness to
offer the appellant an opportunity to refile his appeal when he is medically
capable of understanding and responding to the Board’s orders or able to obtain
representation before the Board. I-2 ID at 4. Additionally, we find that it was
within her discretion to find that the appellant had presented insufficient evidence
to conclude that his illness prevented him from timely filing his initial appeal.
I‑2 ID at 3-4.
¶11 Although the appellant claims that the administrative judge “ignored” the
evidence of his medical condition and personal family circumstances, her failure
to mention all of the evidence of record does not mean that she did not consider it
in reaching her decision. PFR File, Tab 8 at 8-9; see Marques v. Department of
Health & Human Services, 22 M.S.P.R. 129, 132 (1984) (recognizing that the
administrative judge’s failure to mention all the evidence of record did not mean
that she did not consider it in reaching her decision), aff’d, 776 F.2d 1062 (Fed.
Cir. 1985) (Table). Further, we have reviewed the record below and find that the
appellant has not presented sufficient evidence to explain why he could not file
his initial appeal until August 20, 2013, when he was removed on February 5,
2013. Additionally, to the extent the appellant alleges that he understands the
timeliness issue, he may refile his removal appeal with the regional office after
being informed by a medical health professional that he is able to understand the
current Board proceedings. I-2 ID at 4.
¶12 The appellant’s remaining arguments on review do not provide a reason to
disturb the initial decision. First, the appellant argues that he did not have a
reasonable opportunity to respond to the administrative judge’s orders on
timeliness. PFR File, Tab 8 at 8‑9. We disagree and find that the appellant had
the opportunity to respond to the second timeliness order because he filed
multiple submissions after its issuance. I-2 AF, Tabs 137‑55. To the extent he
argues that he was not afforded an opportunity to object to the dismissal of his
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appeal without prejudice, we find that his substantive rights were not harmed
because he was able to raise his objections on review. See Karapinka v.
Department of Energy, 6 M.S.P.R. 124, 127 (1981) (holding that the
administrative judge’s procedural error is of no legal consequence unless it is
shown to have adversely affected a party’s substantive rights).
¶13 Next, the appellant alleges that he was removed on February 5, 2012, not on
February 5, 2013, and that this factual error resulted in a harmful procedural
error. PFR File, Tab 8 at 4-7, 9. He further claims that the administrative judge
committed harmful procedural error by not ruling on his motions and responding
to procedural questions, violated the Board’s policy on pro se appellants in the
Judges’ Handbook, and demonstrated a lack of candor. PFR File, Tab 3 at 3,
Tab 8 at 8. However, we find that these arguments are not relevant to the
dispositive issue of whether the administrative judge abused her discretion in
dismissing the appeal without prejudice based on her determination that he
was not capable of understanding or responding to her timeliness order, and thus,
they do not provide a reason to disturb the initial decision. See, e.g., Gingery,
111 M.S.P.R. 134, ¶ 11 (finding that the appellant’s arguments on the merits of
the appeal were irrelevant to the issue of whether the administrative judge abused
her discretion in dismissing the appeal without prejudice to refiling).
¶14 Finally, we find the appellant’s broad allegation of the administrative
judge’s purported bias insufficient to overcome the presumption of honesty and
integrity that accompanies administrative adjudicators. PFR File, Tab 8 at 8; see
Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980).
¶15 We modify the administrative judge’s refiling instructions to provide for
automatic refiling of the appellant’s removal appeal. See, e.g., Gingery,
111 M.S.P.R. 134, ¶¶ 13-14 (applying automatic refiling of an appeal under the
Veterans Employment Opportunities Act of 1998 that was dismissed without
prejudice). The administrative judge has placed the burden of refiling on the
appellant despite sua sponte dismissing his appeal without prejudice based on her
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determination that he is not capable of understanding and responding to the
Board’s orders. Given these circumstances, we believe that requiring the
appellant to refile his appeal at the risk of waiving his right to appeal his removal
places an unnecessary burden on him.
¶16 Accordingly, we modify the initial decision to automatically refile the
appellant’s removal appeal on January 31, 2017, if he already has not refiled his
appeal in accordance with the following: (1) within 30 days from the date he is
informed by a medical health professional that he is able to understand the current
Board proceedings and/or assist his designated representative in proceedings
before the Board; or (2) within 60 days from the date he has an attorney or other
individual who is willing to represent him before the Board.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request review of this final decision by the U.S. 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
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title 5 of the U.S. 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 U.S. 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 Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.