(a) In general. Dismissal without prejudice is a procedural option that allows for the dismissal and subsequent refiling of an appeal.
(b) Procedure. Dismissal without prejudice may be granted on the judge's own motion or upon request by either party. The decision whether to dismiss an appeal without prejudice is committed to the sound discretion of the judge, and may be granted when the interests of fairness, due process, and administrative efficiency outweigh any prejudice to either party.
(c) Refiling. Except in certain USERRA appeals under Part 1208 involving the use of military leave, a decision dismissing an appeal without prejudice will include a date certain by which the appeal must be refiled. The judge will determine whether the appeal must be refiled by the appellant or whether it will be automatically refiled by the judge as of a date certain. When a dismissal without prejudice is issued over the objection of the appellant, the appeal will be automatically refiled as of a date certain.
(d) Waiver. When a dismissed appeal must be refiled by the appellant, requests for waiver of a late filing based upon good cause will be liberally construed.
[77 FR 62365, Oct. 12, 2012]
Notes of Decisions
Cited in
14
cases (
8 in the last 5 years), 2015–2026 · leading case:
Mark Jones v. MSPB, 103 F.4th 984 (4th Cir. 2024).
Mark Jones v. MSPB, 103 F.4th 984 (4th Cir. 2024).
“” 5 C.F.R. § 1201.29 (a) (emphasis added). This definition, consistent with the accepted meaning of the phrase, implies that a dismissal with prejudice does not allow for the subsequent refiling of an appeal.”
Clark v. Benton (E.D. Va. 2021).
· cites it 5× “12-2) (citing 5 C.F.R. § 1201.29 (c)). Plaintiff’s administrative case was subsequently refiled on an unknown date, and the MSPB AJ once again dismissed the matter (1) subject to automatic refiling on June 14, 2021 or (2) subject to refiling after the MSPB reaches a quorum.”
Davis v. Merit Sys. Prot. Bd. (N.D. Ill. 2020).
· cites it 4× “] On August 6, 2019, citing 5 C.F.R § 1201.29,2 MSPB Chief Judge for the Central Region Michele Szary Schroeder issued an Initial Decision that dismissed Plaintiff’s appeal without 2 5 C.”
Alvarez v. Azar (D. Maryland 2021).
· cites it 3× “at ¶¶ 32, 43 (quoting 5 C.F.R. § 1201.29 (b)). Furthermore, an administrative judge of the MSPB may grant dismissal without prejudice “on the judge’s own motion or upon request by either party.”
Richard Alvarez v. Xavier Becerra (4th Cir. 2023).
· cites it 2× “In May 2020, an AJ again dismissed the appeal without prejudice and ordered automatic refiling after 180 days.”
Bennie Richardson v. Off. of Pers. Mgmt. (MSPB 2024).
· cites it 2× “Although we offer the following summary of available appeal rights, the Merit 3 On May 23, 2023, and following the close of record on review, the appellant filed a motion to dismiss his appeal without prejudice, pursuant to 5 C.F.R. § 1201.29 (a). PFR File, Tab 15 at 3.”
Gregory Brown v. Dep't of the Navy (MSPB 2024).
· cites it 2× “134 , ¶ 9 (2009); 5 C.F.R. § 1201.29 (b). The administrative judge must exercise her discretion in a manner consistent with the policies set forth by the Board.”
Lane O. Sato v. Dep't of the Army (MSPB 2016).
“542 , 546 (1996); 5 C.F.R. § 1201.29 (b) (stating that the decision whether to dismiss an appeal without prejudice is committed to the sound discretion of the administrative judge).”
In Re Jadhav (Fed. Cir. 2020).
“Invoking 5 C.F.R. § 1201.29 , the administrative judge issued an order on August 16, 2019 that dismissed the ap- peal without prejudice, subject to automatic refiling in 180 days.”
Berguelich v. Off. of Pers. Mgmt. (MSPB 2023).
“¶6 We further find no merit to the appellants’ contention that the administrative judge “ignored” 5 C.F.R. § 1201.29 (b), which concerns the administrative judge’s discretionary authority to dismiss an appeal without prejudice “when the interests of fairness, due process, and…”
Faye D. Taylor v. Dep't of the Army (MSPB 2026).
“660 , ¶ 13 (2001) (dismissal without prejudice is a procedural option that is left to the sound discretion of the administrative judge); 5 C.F.R. § 1201.29 (b). The administrative judge dismissed the appellant’s Board appeal because of a pending EEOC decision on her claims,…”
Rodolfo M. Castro v. Dep't of the Army (MSPB 2015).
“224 , ¶ 7 (2010); see also 5 C.F.R. §§ 1201.29 , 1201.41(a)-(b). The Board will uphold the administrative judge’s exercise of 2 The notice of proposed removal was issued on May 13, 2014.”
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