The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARELYN VEGA, DOCKET NUMBER
Appellant, PH-0432-20-0467-I-1
v.
ENVIRONMENTAL PROTECTION DATE: September 17, 2024
AGENCY,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Marielena I. Toro , Lynn, Massachusetts, for the appellant.
Elizabeth M. Whitcher , Esquire, Boston, Massachusetts, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for failure to prosecute. For the reasons discussed below,
we GRANT the appellant’s petition for review, VACATE the initial decision, and
REMAND the case to the regional office for further adjudication in accordance
with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 On September 16, 2020, the appellant filed a timely appeal contesting her
removal. Initial Appeal File (IAF), Tab 1. The appellant registered as an e-filer
and designated her daughter as her representative, who also registered as an
e-filer. Id. at 2-3. On October 16, 2020, the administrative judge held a
scheduled status conference, but neither the appellant nor her daughter called in.
IAF, Tab 9. Accordingly, he issued an order rescheduling the status conference
and warning the appellant that repeated failures to follow Board orders could
result in dismissal for failure to prosecute. Id. On October 21, 2020, the
administrative judge held the rescheduled status conference, and again, neither
the appellant nor her daughter called in. IAF, Tab 10. The administrative judge
issued another order, rescheduling the status conference for the following week
and warning the appellant that repeated failure to follow Board orders could
result in dismissal for failure to prosecute. Id. On October 28, 2020, the
administrative judge held the rescheduled status conference, and again, neither
the appellant nor her daughter called in. IAF, Tab 11. That same day, the
administrative judge issued an initial decision dismissing the appeal with
prejudice as a sanction for the appellant’s failure to prosecute her appeal. IAF,
Tab 12, Initial Decision at 2-3.
¶3 The appellant filed a timely petition for review, explaining that she suffers
from a mental disability that affects her ability to understand and address formal
processes or confront difficult realities, and that her symptoms include
disorganized speech or behavior. Petition for Review (PFR) File, Tab 1 at 4. She
further explains that she appointed her daughter to represent her, but that her
daughter had been busy with finding the appellant housing after she was evicted
for the second time within 2 months. Id. The appellant also states that her
daughter claims she did not receive any phone calls or voicemails regarding the
status conferences. Id. Finally, the appellant explains that she could not afford
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legal representation, and she was not aware of the pro bono options set forth in
the initial decision. Id.
¶4 The agency responded in opposition to the appellant’s petition for review,
PFR File, Tab 3, and the appellant’s daughter replied, arguing that the appellant’s
removal was improper because the agency never offered her reasonable
accommodation, PFR File, Tab 4 at 3. The appellant’s daughter further explained
that she was overwhelmed with trying to manage various pieces of her mother’s
life, which was in a state of upheaval, and noting that she (the daughter) had been
diagnosed with attention deficit disorder (ADD) on October 20, 2020, and
prescribed medication for the same. Id.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 An administrative judge may impose sanctions against a party as necessary
to serve the ends of justice. 5 C.F.R. § 1201.43. The sanction of dismissal with
prejudice may be imposed if a party fails to prosecute or defend an appeal.
Gordon v. Department of the Air Force, 104 M.S.P.R. 358, ¶ 4 (2006); 5 C.F.R.
§ 1201.43(b). Absent a showing of abuse of discretion, an administrative judge’s
determination regarding sanctions will not be reversed. Gordon, 104 M.S.P.R.
358, ¶ 4. However, an administrative judge should not resort to the imposition of
sanctions unless necessary to serve the ends of justice, and, in the absence of bad
faith or evidence that the appellant intends to abandon her appeal, a timely filed
appeal should not be dismissed for failure to prosecute. Id.; see Chandler v.
Department of the Navy, 87 M.S.P.R. 369, ¶ 6 (2000).
¶6 As an initial matter, in some circumstances, the Board will take an
appellant’s pro se status into consideration and be more lenient in the application
of Board rules and procedures. Thurman v. U.S. Postal Service, 2022 MSPB 21,
¶ 24. Although the appellant designated her daughter as her representative, there
is no evidence that her daughter had a legal background or was otherwise more
familiar with Board rules and procedures than the appellant. Accordingly, we
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have taken this into consideration and afforded the appellant the appropriate level
of leniency.
¶7 Next, upon review of the evidence, the imposition of the sanction of
dismissal for failure to prosecute is unwarranted. First, the noncompliance was
limited to a period of less than 2 weeks, during which the appellant and her
daughter were coping with the appellant’s mental health condition, the appellant’s
eviction, and the daughter’s diagnosis of ADD. PFR File, Tab 1 at 4, Tab 4 at 3.
The Board has, in other contexts, recognized calamitous events in an appellant’s
personal life as sufficient excuse for noncompliance with Board rules and
procedures. See Cook v. Office of Personnel Management, 31 M.S.P.R. 683, 685
& n.3 (1986) (finding that a series of unfortunate events in the appellant’s life,
including deaths of his mother and stepfather, caring for his mother prior to her
death from cancer, caring for his minor daughter who suffered from severe
juvenile rheumatoid arthritis, and his own medical problems warranted waiver of
the time limit); see also Cardinali v. Department of the Army, 43 M.S.P.R. 414,
415 (1990) (finding that serious medical problems constitute good cause for a
delay in filing). Therefore, we see no reason not to apply the same logic here and
find that the appellant’s noncompliance is excused given the circumstances.
¶8 Furthermore, we discern no evidence that the appellant’s noncompliance
was the result of bad faith or an intention to abandon her appeal. Neither the
appellant nor her daughter appear to have been aware of the scheduled status
conferences. PFR File, Tab 1 at 4, Tab 4 at 3. Although it is the responsibility of
the appellant to keep track of her appeal, the administrative judge nevertheless
should have taken steps beyond merely issuing orders through the Board’s
e-appeal system before imposing such a severe sanction. See MSPB Judge’s
Handbook, ch. 4, § 13(a) (explaining that, if an appellant or her representative
fail to appear for a scheduled hearing, “[t]he AJ should try to call the appellant”).
Additionally, the appellant filed both a timely Board appeal and a timely petition
for review, indicating not only that she had not abandoned her appeal, but that she
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can adhere to the administrative judge’s orders in the future. IAF, Tab 1; PFR
File, Tab 1.
¶9 In conclusion, we find that dismissal for failure to prosecute is too severe a
sanction in light of the circumstances here and remand this appeal for further
adjudication. We note, however, that appellants are expected to comply with all
orders issued by the Board’s administrative judge. Mendoza v. Merit Systems
Protection Board, 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc). Therefore, on
remand, the appellant must be more diligent in keeping track of her appeal and
must comply with the administrative judge’s orders to avoid the imposition of
sanctions.
ORDER
¶10 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.