                           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             THIS FINAL ORDER IS NONPRECEDENTIAL 1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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
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     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.
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      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
                                                                                        5

      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
                                                                                           6

      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
                                                                                         7

      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
                                                                                  8

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.
