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
How later courts described this case
- 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
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHARON L. CROSS, DOCKET NUMBER
Appellant, NY-844E-16-0220-I-1
v.
OFFICE OF PERSONNEL DATE: May 10, 2022
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
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.