Opinion

Sandra Long-Robinson v. Department of Transportation

Court: Merit Systems Protection Board
Filed: Feb 27, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 39.0%

finding that “[a]n appellant cannot be expected to fight a fog of generality,” but must be given a “full and fair opportunity to litigate the [timeliness] issue”

How later courts described this case

finding that “[a]n appellant cannot be expected to fight a fog of generality,” but must be given a “full and fair opportunity to litigate the [timeliness] issue”

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SANDRA K. LONG-ROBINSON, DOCKET NUMBER

Appellant, DC-0752-24-0147-I-1

DEPARTMENT OF DATE: February 27, 2026

TRANSPORTATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Sandra K. Long-Robinson , Upper Marlboro, Maryland, pro se.

Marquitta Robinson , Fort Worth, Texas, for the agency.

Christopher Jennison and Maria Surdokas , Washington, D.C.,

for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed her appeal as untimely filed without good cause. Generally, we grant

petitions such as this one only in the following circumstances: the initial decision

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

contains erroneous findings of 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 to expand upon the administrative judge’s timeliness

analysis, we AFFIRM the initial decision.

BACKGROUND

Prior to her removal, the appellant was a Program Analyst for the agency.

Initial Appeal File (IAF), Tab 5 at 17. Effective March 24, 2023, the appellant

was removed from her position for unsatisfactory performance. Id. at 17-18. She

first filed an equal employment opportunity (EEO) complaint alleging that her

removal was the result of discrimination. Long-Robinson v. Department of

Transportation, MSPB Docket No. DC-0432-23-0407-I-1, Appeal File (I-1 AF),

Tab 4 at 9. On April 10, 2023, while her EEO complaint was being processed,

the appellant also filed a Board appeal. I-1 AF, Tab 1. That appeal was

dismissed as premature, and the administrative judge stated that the appellant

could “refile her appeal after the 120-day period has expired or within 30 days

after the agency issues a resolution or final decision on the discrimination

complaint.” I-1 AF, Tab 8 at 2.

On August 16, 2023, the agency issued its final agency decision (FAD) on

the appellant’s removal claim. IAF, Tab 4 at 33-34. The letter explained that if

the appellant wished to file a Board appeal, she had 30 days to do so. Id. at 33.

The 30th day from August 16, 2023, was September 15, 2023. The appellant filed

her Board appeal on November 20, 2023, 66 days after the filing deadline. IAF,

Tab 1. The agency moved to dismiss the appeal arguing that the “[a]ppellant was

put on clear notice that she had 30 days from the date she received the FAD in her

removal claim to appeal that decision to the Board.” IAF, Tab 4 at 6. The

administrative judge dismissed the appeal as untimely filed without good cause

shown. IAF, Tab 6, Initial Decision (ID).

The appellant has timely filed this petition for review. Petition for Review

(PFR) File, Tab 1. She explained that the administrative judge’s “decision to

dismiss my complaint based on a lack of timely filing did not take into account

that the MSPB e-file system was being updated and modernized” at the time her

appeal was due. Id. at 2. She argues that she “filed [her] appeal as soon as [she]

became aware the filing and processing system was available.” Id. The agency

has responded to the petition for review. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

Pursuant to 5 C.F.R. § 1201.154(b), an appellant who first files an EEO

complaint regarding a matter appealable to the Board may pursue a Board appeal

either: (1) within 30 days after the agency’s FAD is issued; or (2) after at least

120 calendar days have passed without a FAD being issued. Here, the agency

issued its FAD on August 16, 2023, meaning that the appellant was required to

file any Board appeal by September 15, 2023. IAF, Tab 4 at 33-34. At this time,

the Board was also modernizing its electronic filing system. Because these

modernization efforts caused at least one system outage, the Board extended all

filing deadlines that fell from September 9, 2023, through October 6, 2023, by

28 calendar days. See The U.S. Merit Systems Protection Board, MSPB

Announces an Additional Extension of Deadlines to Account for the September 8,

2023, Outage of e-Appeal, MSPB (Sept. 12, 2023)

https://www.mspb.gov/publicaffairs/press_releases/Extension_of_Deadlines_Due

_to_System_Outage_Press_Release_2067324.pdf. This extension moved the

appellant’s filing deadline to October 13, 2023. The appellant filed her appeal on

November 20, 2023, 38 days after the extended filing deadline. IAF, Tab 1.

Therefore, the appellant’s appeal was untimely filed.

The Board’s regulations state that an appeal that is untimely filed will be

dismissed “unless a good reason for the delay is shown.” 5 C.F.R. § 1201.22(c).

However, the regulation also requires that an administrative judge “provide the

party an opportunity to show why the appeal should not be dismissed as

untimely.” Id. For an appellant to have a meaningful opportunity to show why

an untimely appeal should not be dismissed, she cannot be forced to fight a fog of

generality; rather, she must be given explicit notice of the legal standard for

establishing good cause. Colleran v. U.S. Postal Service, 112 M.S.P.R. 650, ¶ 16

(2009) (remanding an appeal to the administrative judge to provide proper

timeliness notice and a meaningful opportunity to file evidence and argument on

the timeliness issue); see Hamilton v. Merit Systems Protection Board, 75 F.3d

639, 646-47 (Fed. Cir. 1996) (finding that “[a]n appellant cannot be expected to

fight a fog of generality,” but must be given a “full and fair opportunity to litigate

the [timeliness] issue”); Lacy v. Department of the Navy, 78 M.S.P.R. 434,

438-39 (1998) (explaining that an appellant who alleges that an illness caused her

filing delay must be informed of what she is required to show to establish good

cause for an untimely filing on the basis of her alleged illness).

Here, the administrative judge did not advise the appellant of the good

cause standard in his acknowledgement order or a subsequent order and thus did

not provide her with an opportunity to address the timeliness of the appeal. In his

initial decision, the administrative judge states that the appellant “missed the

filing deadline by more than two months without any explanation or excuse” and

therefore found “no basis for excusing the untimely filing under 5 C.F.R.

§ 1201.22.” ID at 3. The initial decision explains the timeliness requirements,

but it fails to provide the appellant with the good cause standard, thus precluding

the appellant from making an informed argument regarding the timeliness of the

appeal in her petition for review. Id.

For these reasons, while the appellant’s petition for review remained

pending with the Board, the Clerk of the Board issued an order notifying the

appellant of the applicable standards regarding good cause for an untimely filed

appeal and instructing her to respond accordingly. PFR File, Tab 4. Despite

having that opportunity to do so, the appellant did not respond.

To establish good cause for the untimely filing of an appeal, 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). To determine whether an appellant has shown good cause, the

Board will consider the length of the delay, the reasonableness of her excuse and

her showing of due diligence, whether she is proceeding pro se, and whether she

has presented evidence of the existence of circumstances beyond her control that

affected her ability to comply with the time limits or of unavoidable casualty or

misfortune which similarly shows a causal relationship to her inability to timely

file her appeal. Moorman v. Department of the Army, 68 M.S.P.R. 60, 62-63

(1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).

Here, the appellant has not provided any basis for us to conclude that she

has good cause for her untimely appeal. We recognize that she is pro se. Plus, as

discussed above, we recognize that the Board’s modernization efforts resulted in

an extension of her deadline. Nevertheless, the appellant’s appeal was still quite

untimely, and the appellant has not provided us with any meaningful explanation

about the same. Accordingly, we affirm the initial decision, dismissing the

appeal as untimely filed, as modified to recognize that the appellant did not

establish good cause for her untimeliness after having an opportunity to do so.

NOTICE OF APPEAL RIGHTS 2

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 may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the following

address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 3 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the following