[00:00:06] Speaker 03:
Final case for argument this morning is 15-3192, Ramsey versus MSPB.

[00:00:40] Speaker 01:
Good morning, Your Honors.

[00:00:42] Speaker 01:
I may please the Court.

[00:00:43] Speaker 01:
My name is Erin Lawrence, and I'm representing Miss Alona Ramsey in her appeal from the Merit Systems Protection Board.

[00:00:49] Speaker 01:
Miss Ramsey was a loyal government employee for over 30 years that consistently received on-target reviews.

[00:00:57] Speaker 01:
However, toward the end of her career, she obtained a new supervisor that wrongfully terminated her from her position as an administrative assistant.

[00:01:07] Speaker 01:
She went to the Merit Systems

[00:01:10] Speaker 01:
MSPB to appeal her wrongful termination.

[00:01:12] Speaker 01:
And because of errors made by the MSPB, she has now been stripped of her right to appeal her wrongful termination on the merits.

[00:01:20] Speaker 03:
Here's my problem.

[00:01:21] Speaker 03:
I think we're all well versed in what happened here.

[00:01:25] Speaker 03:
Even if we accept your view that she was rightfully, correctly confused about the dates that were included in this order, et cetera, it seems to me there's at least one document in this case that is crystal clear.

[00:01:39] Speaker 03:
And that is the show cause order.

[00:01:42] Speaker 03:
And even for pro se litigant, that's one thing that we can assume everybody can understand.

[00:01:47] Speaker 03:
And she didn't respond.

[00:01:49] Speaker 03:
So notwithstanding the vitality of your arguments with respect to rightful or wrongful confusion about the original judge's order, et cetera, it's hard for me to get by just that piece.

[00:02:02] Speaker 03:
And that piece seems to me to resolve this case.

[00:02:07] Speaker 03:
So tell me why I'm wrong.

[00:02:08] Speaker 01:
I understand that, Judge Crost.

[00:02:11] Speaker 01:
The order to show cause, I think, needs to be considered in light of also the Judge Niedrich's confusing instructions to Ms.

[00:02:18] Speaker 01:
Ramsey.

[00:02:19] Speaker 01:
She refiled her appeal on January 21st, and the order to show cause was issued on February 5th.

[00:02:26] Speaker 01:
She believed that her deadline was still within her deadline.

[00:02:31] Speaker 01:
Her intent to refile was very clear, and she's a pro se litigant that is not aware of

[00:02:37] Speaker 01:
you know, administrative law and the complexities.

[00:02:40] Speaker 01:
She was given 70s to respond.

[00:02:42] Speaker 01:
Her intent to refile was clear.

[00:02:44] Speaker 01:
And I think given the confusion of the overall circumstances, I'm not sure that she did not understand what the order to show cause meant.

[00:02:52] Speaker 00:
You really don't have to be familiar with administrative law.

[00:02:56] Speaker 00:
The opinion, the initial decision was very clear.

[00:03:00] Speaker 00:
No sooner than 36 days and no later than 120 days after the date of this decision.

[00:03:08] Speaker 00:
That's very clear.

[00:03:09] Speaker 01:
Your Honor, it is the MSPB, the decisions generally will state, give a date certain for especially pro se litigants.

[00:03:18] Speaker 01:
In this case, Ms.

[00:03:20] Speaker 01:
Ramsey misunderstood Judge Neidrick's decisions as being consecutive deadlines and not concurrent timelines.

[00:03:28] Speaker 01:
And for a pro se litigant, that's

[00:03:30] Speaker 01:
That's a reasonable interpretation, especially- No, let me see.

[00:03:33] Speaker 03:
Your interpretation is what?

[00:03:35] Speaker 03:
That her 20-day clock did not start running until the conclusion of the 36 days?

[00:03:41] Speaker 01:
Yes, that was her understanding.

[00:03:43] Speaker 01:
Because the decision became final, 36 days from the initial decision, as a pro se litigant, she felt that the finality of that decision was what dictated her 120-day deadline.

[00:04:00] Speaker 03:
Okay, and just back to my initial point that there's no confusion in the show cause order.

[00:04:05] Speaker 03:
You've got seven days from whatever it was from the date of disorder to tell us why we should not dismiss this case.

[00:04:12] Speaker 03:
Even if she was confused about what they needed to know, wouldn't even a pro se litigant be required to comply with that and at least give the agency something back, even if it's I don't really know what, understand what you want me to tell you about the time frame because here's why I thought

[00:04:29] Speaker 03:
I'm in the correct timeframe.

[00:04:30] Speaker 03:
Isn't something required?

[00:04:32] Speaker 01:
This court and the MSP have held that a failure to respond to an order to show cause is not dispositive.

[00:04:38] Speaker 01:
And given the overall confusion here, I think that this case falls within that type of fact.

[00:04:44] Speaker 03:
What case have we said?

[00:04:45] Speaker 01:
In Davis and Griffin, in 1999 Davis, it was found that a failure to respond to an order to show cause was reasonable, given the confusion.

[00:04:56] Speaker 01:
Additionally, in Griffin, the appellant failed to respond to an order to show cause.

[00:05:02] Speaker 01:
because the ALJ's decisions or instructions referred to several timelines and the appellant was reasonably confused with respect to the timelines.

[00:05:13] Speaker 03:
The board has also used its- But there's no confusion in this notice to show cause, right?

[00:05:17] Speaker 03:
I mean the confusion may be, I think I'm on time and I don't understand why you're asking me about it, but that's probably true of every notice to show cause.

[00:05:25] Speaker 03:
Somebody thinks they're right and they have to come back and tell the MSPB why they are.

[00:05:28] Speaker 01:
Which I understand, but I think in this case, Ms.

[00:05:31] Speaker 01:
Ramsey,

[00:05:32] Speaker 01:
did not understand that her appeal was late until the February 20th order by Judge Niedrich.

[00:05:37] Speaker 01:
And I think as a pro se litigant to expect them to understand in order to show cause in seven days when she's already felt that she met her deadline, I think it's reasonable that the board should have considered these facts and given her and waived her appeal for good, waived her timeline for good cause.

[00:05:59] Speaker 01:
The board, in this case,

[00:06:01] Speaker 01:
abuse its discretion, I believe, by just flat out denying Ms.

[00:06:06] Speaker 01:
Ramsey's petition to review Judge Niedrich's decision.

[00:06:09] Speaker 01:
The board did not review any of the facts of the case, and this court has held many times that without any sort of substantial review, if the board's decision is not supported by substantial evidence, it is an abuse of discretion.

[00:06:26] Speaker 01:
There are explicit factors that the board regularly considers, whether determining whether there's

[00:06:31] Speaker 01:
Weaver of a timeline is is rightful in this case and in this case the board made absolutely no Determination of whether there was good cause in light of the facts or any applicable law because Because as your honor pointed out they just use the order to show cause is just positive But in many cases the MSPB has been reasonable and understood that a pro se litigant is not a

[00:06:54] Speaker 01:
is not well-versed in administrative law, and the overwhelming confusion still allows.

[00:07:00] Speaker 00:
Well, that's why many years ago we went back.

[00:07:03] Speaker 00:
It might have been the Mendoza case, and we said, we leave it to the board to decide what good cause is, and that we will not interfere with the board's determination of good cause.

[00:07:17] Speaker 00:
And as you've just said, the board understands the problems of pro se litigants.

[00:07:23] Speaker 01:
The board generally does, but in Mrs. Ramsey's case, they did not make a determination of good cause.

[00:07:28] Speaker 01:
In fact, the board denied her case without even making any sort of determination of good cause.

[00:07:35] Speaker 01:
So I think it's distinguishable from Mendoza.

[00:07:38] Speaker 01:
This court was presented with Mendoza two separate times.

[00:07:41] Speaker 01:
Once in 1991, where the court found that the board did not have substantial evidence to support its dismissal of the appellant's case.

[00:07:50] Speaker 01:
And then once in 1992, the board

[00:07:53] Speaker 01:
came back with more substantial evidence showing an absolute deliberate failure of the appellant to follow the procedures at the MSPB, and then it was dismissed.

[00:08:03] Speaker 01:
But when there was a paucity of findings in the initial case, this court remanded back down to the MSPB and vacated and allowed the appellant to proceed on the merits of their case because of justice and equity.

[00:08:20] Speaker 01:
And Your Honors, I think it's also very important to understand in this case that Ms.

[00:08:26] Speaker 01:
Ramsey was diligent.

[00:08:27] Speaker 01:
She did meet all of her other deadlines, other than the one at issue.

[00:08:32] Speaker 01:
And her intent to refile was very clear.

[00:08:35] Speaker 01:
When Judge Neidrick dismissed it, when the board dismissed it.

[00:08:38] Speaker 01:
This is a very important case to her.

[00:08:40] Speaker 01:
And in addition, it is... Let me ask you just about that.

[00:08:44] Speaker 03:
Sure.

[00:08:45] Speaker 03:
Just how things went down.

[00:08:46] Speaker 03:
pause was so that she could go get an attorney, right?

[00:08:50] Speaker 03:
Was that?

[00:08:50] Speaker 01:
It was.

[00:08:51] Speaker 03:
And she never did get the attorney, right?

[00:08:53] Speaker 01:
She, Ms.

[00:08:54] Speaker 01:
Ramsey made several, several attempts to obtain an attorney, but the retainer fees were too high and she was unable to obtain an attorney and when she realized that she was not going to be able to retain an attorney,

[00:09:06] Speaker 01:
That's when she refiled her appeal.

[00:09:08] Speaker 01:
She believes she refiled the appeal two weeks earlier than the actual deadline.

[00:09:13] Speaker 01:
And I also think it's very important to note in this case that the agency never and still has not said that it's been prejudiced by a pro se appellant's 16-day delay.

[00:09:24] Speaker 01:
It hasn't made any showing.

[00:09:26] Speaker 01:
And not even in its briefs in the current appeal has it said that it was prejudiced.

[00:09:32] Speaker 01:
And in such cases, I think it's well established by this court that, absent substantial prejudice to the agency, an appellant's reasonable explanation for a delay should be accepted.

[00:09:49] Speaker 01:
Thank you.

[00:09:49] Speaker 03:
Why don't we reserve the balance of your time, and we'll hear from the government.

[00:09:52] Speaker 01:
Thank you.

[00:09:52] Speaker 01:
I appreciate it.

[00:10:03] Speaker 02:
Good morning.

[00:10:04] Speaker 02:
May it please the court.

[00:10:05] Speaker 02:
The MSPB correctly dismissed this case because the petitioner failed to make any showing of good cause to waive her untimeliness.

[00:10:13] Speaker 02:
Ultimately, this case is about an appeal filed untimely without any explanation as to why.

[00:10:18] Speaker 03:
Yeah, but we know why.

[00:10:19] Speaker 03:
I mean, she was confused.

[00:10:20] Speaker 03:
She misread.

[00:10:22] Speaker 03:
Now we know.

[00:10:23] Speaker 03:
She's misread the dates.

[00:10:25] Speaker 03:
She calculated that.

[00:10:26] Speaker 03:
I mean, it's maybe something that you and I would never have done, but it's

[00:10:31] Speaker 03:
can appreciate that she had a reason for doing what she did.

[00:10:38] Speaker 03:
So why isn't that sufficient?

[00:10:40] Speaker 02:
Because it's not what was before the administrative judge.

[00:10:43] Speaker 02:
Ultimately, this case is about what was in front of the administrative judge, which was nothing.

[00:10:47] Speaker 02:
As Your Honors pointed out, there was an order to show cause issued even after she refiled untimely, and she didn't respond to that as well.

[00:10:55] Speaker 02:
So what was really in front of the administrative judge was an untimely refiled appeal with nothing asking for waiver or explaining the untimeliness.

[00:11:04] Speaker 02:
Under those circumstances, squarely within this court's decision in Mendoza, the board is allowed to dismiss an appeal.

[00:11:11] Speaker 03:
Can't you go back in time?

[00:11:12] Speaker 03:
I mean, usually, if they don't respond to a notice to show cause, then the case is absolutely over.

[00:11:17] Speaker 03:
But there must be cases in which some of these come in and said, I didn't respond to the notice to show cause because I had a heart attack the day before, and I was hospitalized, and I couldn't respond.

[00:11:27] Speaker 03:
There's got to be a mechanism for people to come in and explain their failure to respond to a notice to show cause, right?

[00:11:33] Speaker 02:
Yes, there is.

[00:11:34] Speaker 02:
And I believe in this court's decision in the board's decision in Boulware

[00:11:40] Speaker 02:
The appellant there cited mailing delays as one of the reasons why they didn't get the order to show cause.

[00:11:46] Speaker 02:
And the board there allowed the argument in.

[00:11:49] Speaker 02:
But no circumstances like that exist here.

[00:11:52] Speaker 02:
The appellant or the petitioner essentially said, I was confused and didn't say anything else, including some of the things that were introduced before this court, such as that she was confused by the order to show cause, that she was searching for an attorney, that the retainers were too high.

[00:12:06] Speaker 02:
None of those were ever introduced into the record.

[00:12:08] Speaker 02:
And those are all just being introduced for the first time, I think, actually, in the reply brief.

[00:12:13] Speaker 02:
What this case is about is really what was before the administrative judge and whether the board is correct in affirming the administrative judge based on what was in front of them.

[00:12:21] Speaker 02:
That was nothing.

[00:12:23] Speaker 02:
And so in those circumstances, the board is allowed to dismiss the appeal.

[00:12:26] Speaker 03:
Now, your friend referenced the fact that, and I know this is one of our criteria, I'm just not sure how it plays in these cases, which is the agency has not shown any prejudice.

[00:12:35] Speaker 03:
in this case as a result of the delay.

[00:12:39] Speaker 03:
Is that, in your view, something that's required under the law?

[00:12:43] Speaker 02:
It wasn't required in this case because the agency's trigger or requirement to put forward prejudice didn't happen until a petitioner first put forward a good cause.

[00:12:53] Speaker 02:
Under board law, an agency doesn't need to until a petitioner first shows good cause.

[00:12:58] Speaker 02:
Because a petitioner never put forward any good cause, the agency wasn't obligated to do so.

[00:13:03] Speaker 02:
So that should not really be held against the agency or the board in this case.

[00:13:10] Speaker 02:
Now, the petitioner's primary challenge here is that the board erred, or appears to be primary challenge, is that the board erred by not considering the petitioner's argument on review.

[00:13:22] Speaker 02:
But the board explained its decision in rejecting the petitioner's argument.

[00:13:27] Speaker 02:
And they did explain this decision by saying that the petitioner did not first raise that argument before the administrative judge.

[00:13:34] Speaker 02:
And the board's longstanding rule, and even this court's rule, is that an argument not raised before the administrative judge will generally not be considered by the board.

[00:13:43] Speaker 02:
And so under those circumstances, because she failed to say anything to the administrative judge,

[00:13:49] Speaker 02:
The board explained it was rejecting the petitioner's argument for waiver, and it was allowed to do so under the board's precedent.

[00:13:54] Speaker 03:
I don't understand.

[00:13:55] Speaker 03:
I mean, let's take my hypothetical about somebody who doesn't answer a notice to show cause because they've had a heart attack and they're hospitalized.

[00:14:04] Speaker 03:
How are they supposed to then?

[00:14:05] Speaker 03:
The time has passed.

[00:14:07] Speaker 03:
The judge dismisses the case because of a failure to respond to the notice to show cause.

[00:14:11] Speaker 03:
What does the petitioner do then to get that question resolved?

[00:14:17] Speaker 02:
Well, the petitioner can file a petition for review under extraordinary circumstances, which is why we say generally in the initial decision and we say generally in the regulations, section 115, enumerating our criteria for petition review, we will

[00:14:32] Speaker 02:
hear arguments, but those need to be extraordinary circumstances justified in waiver.

[00:14:37] Speaker 03:
So that's before the board.

[00:14:38] Speaker 03:
There's no availability of going back to the administrative judge to make those arguments in that instance.

[00:14:45] Speaker 02:
No, Your Honor.

[00:14:45] Speaker 02:
It would be before the board.

[00:14:46] Speaker 02:
That is correct.

[00:14:47] Speaker 02:
OK.

[00:14:47] Speaker 02:
Yes.

[00:14:48] Speaker 02:
So in extraordinary circumstances, such as maybe a heart attack or something else that could not be put before the administrative judge, the board will utilize its discretion to

[00:15:00] Speaker 02:
hear the argument and possibly overturn the initial decision.

[00:15:04] Speaker 02:
But the circumstances of this case really don't lend themselves to such a decision, because she explained nothing more than she was confused.

[00:15:14] Speaker 02:
And as Judge Laurie pointed out, the confusion wasn't really reasonable based on the very clear instructions of the initial decision, and further, because she didn't respond to any artificial cause, which also clearly stated to her that she was untimely.

[00:15:38] Speaker 02:
Now I would just like to briefly conclude by just saying that if this court does decide here to petition an argument for waiver, and we contend that it should not because it was not made before the administrative judge, her confusion here or her argument for waiver is just not supported because her confusion was not reasonable.

[00:15:54] Speaker 02:
As you noted that the initial decision was clear and unambiguous.

[00:15:59] Speaker 02:
It was not statutorily deficient.

[00:16:01] Speaker 02:
It said it honored 20 days from the date of quote, unquote, this decision.

[00:16:05] Speaker 02:
That means,

[00:16:07] Speaker 02:
at 120 days from the date of the decision containing the instruction.

[00:16:13] Speaker 02:
The regulations contain or require a date certain but do not specify the format of a date certain.

[00:16:20] Speaker 02:
And saying two days from now is the exact same thing as saying Wednesday and both are equally satisfactory for the regulation.

[00:16:30] Speaker 03:
And to address the third... Does the board typically put dates on or just give timeframes?

[00:16:35] Speaker 03:
like end dates indicate what the end date is?

[00:16:38] Speaker 02:
It does both.

[00:16:39] Speaker 02:
And that's why this is not an abuse of discretion.

[00:16:42] Speaker 03:
Well, not both at the same time.

[00:16:43] Speaker 02:
Not both at the same time.

[00:16:44] Speaker 02:
But it uses both formats, depending, I guess, on the individual author.

[00:16:49] Speaker 02:
But there's no requirement saying that either needs to be utilized.

[00:16:53] Speaker 02:
They both comply with the regulation.

[00:16:54] Speaker 02:
And to address the confusion of the 35-day finality,

[00:16:59] Speaker 02:
There's actually a sentence right in the paragraph setting out the deadline that says that 35 days are part of the 120 days and do not delay the 120 days.

[00:17:08] Speaker 02:
So based on that, there was no way she should have been confused, and her confusion is just not reasonable.

[00:17:17] Speaker 02:
So if this court has no further questions, we just humbly ask that you refer in the decision of the board.

[00:17:22] Speaker 02:
Thank you.

[00:17:31] Speaker 01:
I'd like to begin with my opposing counsel's statement that there's a statement in the initial decision that said that 120 days does not count.

[00:17:42] Speaker 01:
That simply is not the case.

[00:17:44] Speaker 01:
The facts of the case are that there was instructions to her that contained two deadlines that were reasonably, they might not be confusing to a lawyer or an attorney, but they were confusing to a pro se appellant.

[00:17:57] Speaker 01:
And she thought that they were consecutive deadlines, not concurrent deadlines.

[00:18:01] Speaker 01:
People missed deadlines, and she was diligent in refiling her complaint.

[00:18:07] Speaker 01:
Her intent to refile her appeal was there, and she also filed her petition for review.

[00:18:14] Speaker 01:
In addition, MSPB missed its own deadline in this case.

[00:18:18] Speaker 01:
And because there was no prejudice to my client, as a matter of course, this court had allowed them to file their docketing statement 60 days late.

[00:18:26] Speaker 01:
Ms.

[00:18:27] Speaker 01:
Ramsey should be afforded the same

[00:18:30] Speaker 01:
type of leniency as a pro se appellant for a meritorious wrongful termination case.

[00:18:35] Speaker 01:
Additionally, opposing counsels say that Boulware was due to a mailing error.

[00:18:40] Speaker 01:
In fact, I think Boulware and Griffin both had to do with the confusion of the appellant with respect to the filing date.

[00:18:49] Speaker 01:
And it is common practice for ALJs to give a date certain

[00:18:54] Speaker 01:
meaning a specific exact date to pro se litigants.

[00:18:58] Speaker 01:
For instance, ALJ Brioti consistently says, you are not allowed to file prior to 35 days, which is... But there's no regulatory requirement that they do that, right?

[00:19:08] Speaker 01:
No, there's no regulatory requirement that says you have to put a specific date.

[00:19:12] Speaker 01:
But there is a regulatory requirement that it has to be a date certain, which simply cannot be instructions that leave two potential filing dates, which in this case, there was

[00:19:23] Speaker 01:
There were two reasonable readings of Judge Nedrick's instructions.

[00:19:27] Speaker 01:
And one was that it was due January 6.

[00:19:29] Speaker 01:
And the other was that it was due February 10, if you read Judge Nedrick's instructions to be consecutive rather than concurrent.

[00:19:37] Speaker 01:
And that's, unfortunately, the way Ms.

[00:19:38] Speaker 01:
Ramsey interpreted Judge Nedrick's instructions.

[00:19:41] Speaker 01:
And she refiled within two weeks from when she thought the deadline was due.

[00:19:46] Speaker 01:
The order to show cause was issued to Ms.

[00:19:50] Speaker 01:
Ramsey before she still thought the deadline

[00:19:53] Speaker 01:
had not passed yet.

[00:19:54] Speaker 01:
So she was reasonably confused that what is this order to show cause?

[00:19:58] Speaker 01:
I've refiled.

[00:19:59] Speaker 01:
My deadline hasn't even run yet.

[00:20:01] Speaker 01:
What's going on?

[00:20:02] Speaker 01:
And unfortunately, that's the facts of her case.

[00:20:07] Speaker 01:
And the board has the authority to review any issue on appeal.

[00:20:11] Speaker 01:
And there is no law or case that the opposing counsel has stated that requires extraordinary circumstances.

[00:20:18] Speaker 01:
Confusion has been found for good cause to waive a timeline.

[00:20:22] Speaker 01:
And in this case, I think that's very applicable, given the equity and the broad justice that brought the board's general policy to not strip appellants of their right to have their cases heard on appeal because of reasonable procedural mistakes.

[00:20:37] Speaker 01:
This is not supposed to be a procedural gotcha.

[00:20:39] Speaker 01:
She deserves her day in court to have her wrongful termination heard.

[00:20:44] Speaker 03:
Thank you.

[00:20:45] Speaker 01:
Thank you very much.

[00:20:46] Speaker 03:
Thank you.

[00:20:46] Speaker 03:
And thank both parties on the cases submitted.

[00:20:49] Speaker 03:
That concludes our proceedings for this morning.

[00:20:53] Speaker 01:
All rise.