Opinion

Anthony G Covington v. Smithsonian Institute

Court: Merit Systems Protection Board
Filed: Nov 21, 2024
Status: Unpublished
Cited by: 0 cases

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANTHONY GEORGE COVINGTON, DOCKET NUMBER

SR., DC-0752-20-0450-I-1

Appellant,

DATE: November 21, 2024

SMITHSONIAN INSTITUTION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Anthony George Covington, Sr. , Martinsburg, West Virginia, pro se.

David Larson and Katherine Bartell , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed his removal appeal with prejudice for failure to prosecute. Generally,

we grant petitions such as this one only in the following circumstances: the

initial decision contains erroneous findings of material fact; the initial decision is

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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 and AFFIRM the initial decision, which is now the Board’s final

decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

Effective February 11, 2020, the agency removed the appellant from the

position of Electronics Mechanic based on the charges of misuse of a Government

vehicle, driving on a suspended license, and failure to request leave.

Initial Appeal File (IAF), Tab 4 at 17-20. The appellant timely filed the instant

appeal, in which he requested a hearing and declined to e-file. IAF, Tab 1 at 2.

He designated a representative from his union in his initial appeal form. Id. at 3.

The administrative judge issued an acknowledgment order setting forth

various requirements, including those governing discovery and pleadings

practice. IAF, Tab 2. She explicitly informed the parties that failure to follow

her orders or the Board’s regulations could result in sanctions and instructed them

that they could seek clarification with her via telephone regarding any of the case

processing instructions set forth in the acknowledgment order. Id. at 2.

The agency complied with the instructions in the order and filed its narrative

response and evidence file. Id. at 9-10; IAF, Tabs 4-5. The appellant did not file

a response or any other pleading prior to the issuance of the initial decision.

On April 3, 2020, the administrative judge issued an order regarding service,

waiving the requirement to serve the appellant by U.S. Mail pursuant to 5 C.F.R.

§ 1201.12 and ordering the appellant’s representative to serve the Board’s

issuances on the appellant upon receipt. IAF, Tab 6 at 1. The order encouraged

the appellant to become an e-filer due to the Board’s atypical operations during

the pandemic. Id.

On April 10, 2020, the administrative judge held a telephonic status

conference. IAF, Tab 8 at 1. As set forth in the order and summary of

conference call, the administrative judge contacted the appellant and his

designated representative directly because neither appeared for the teleconference

at the scheduled time. Id. Although the union representative was apparently

unfamiliar with the case and unaware of the appellant’s designation of

representative, following a discussion with the administrative judge, the appellant

confirmed his intent to be represented by the union president and the

representative confirmed his willingness to serve as such. Id. at 1-2. During the

teleconference, the administrative judge explained to the appellant her order

directing his representative to serve him with the Board’s orders, again

encouraged him to become an e-filer, and provided the telephone number for

Board administrative staff should he require assistance with registering as an

e-filer. Id. at 2-3. The administrative judge rescheduled the teleconference in

order to allow the appellant to confer with his representative. Id. at 2. During

the following teleconference, there was continued confusion regarding the

appellant’s representation, and the administrative judge informed the appellant

that she would not permit any “further delays in case processing . . . regarding

representational issues absent extraordinary circumstances.” IAF, Tab 9 at 1 n.1.

Subsequently, the agency filed a motion to compel the appellant’s

discovery responses, asserting that the appellant had failed to provide any

responses to their discovery requests. IAF, Tab 11 at 4-7. The agency also

submitted into the record certain email communications between the parties

indicating that the appellant intended to change representatives and that it had

served the appellant a copy of its motion at his email address of record. Id. at 5

n.1, 25. The administrative judge issued a discovery conference order, in which

she notified the parties that she would consider the appellant represented by the

union president unless and until he submitted a formal notice of withdrawal.

IAF, Tab 12 at 1. The administrative judge contacted the appellant directly after

he failed to appear at the scheduled time for the discovery conference, and he

confirmed that he was no longer represented. IAF, Tab 13 at 1. In a summary of

the discovery conference and order, the administrative judge noted that the

appellant had failed to appear for several status conferences and only appeared

after she had called him directly. Id. at 1 n.1. She advised the appellant that it

was his duty to keep abreast of his appeal and comply with Board orders. Id.

The administrative judge granted the agency’s motion to compel and ordered the

appellant to provide his responses by a date certain. Id. at 2. Finally, the

administrative judge waived the prohibition against the use of email because the

appellant had not registered as an e-filer and explained that the appellant could

file pleadings via email and that the Board and the agency could serve the

appellant via email. Id. at 3-4. The administrative judge noted that the appellant

had confirmed his access to his email address of record and agreed to email

service. Id. at 4 n.2.

The discovery dispute continued, and the agency filed a motion for

sanctions, asserting that the appellant had failed to comply with the discovery

order and had not provided any responses to the agency’s requests. IAF, Tab 14

at 4-7. On June 3, 2020, the administrative judge issued an order, which was

served on the appellant via email, rescheduling the prehearing conference to

June 11, 2020. IAF, Tab 15 at 1-2. The appellant failed to appear for the

telephonic prehearing conference, and the administrative judge contacted him

directly at his telephone number of record and left a detailed voice message with

instructions regarding the teleconference. IAF, Tab 19 at 1. Subsequently, on

June 12, 2020, the administrative judge issued an order to show cause, stating that

it was unclear from the appellant’s repeated failures to appear whether he

intended to proceed with his appeal. Id. at 2. She ordered the appellant to file a

response on or before June 18, 2020 and show cause why he failed to comply with

her discovery order, failed to file a prehearing submission, and failed to appear

for the prehearing conference. Id. The administrative judge explicitly informed

the appellant that his failure to timely respond to the order or show good cause

for his failure to follow the Boards’ orders would result in dismissal of the appeal

for failure to prosecute. Id. The certificate of service stated that the Board

served the order on the appellant via electronic mail. Id. at 4. The appellant did

not respond to the order to show cause.

The administrative judge issued an initial decision dismissing the appeal

for failure to prosecute because the appellant failed to participate in his appeal.

IAF, Tab 20, Initial Decision (ID) at 1, 4. The administrative judge found that

the appellant failed to respond to the acknowledgment order or order compelling

him to respond to the agency’s discovery requests, failed to submit a prehearing

submission, and failed to participate in the prehearing conference. ID at 3.

She also found that the appellant failed to respond to her detailed voicemail

regarding the missed prehearing conference and failed to participate in his appeal

even after she notified him that his appeal could be dismissed if he failed to do

so. Id.

On July 23, 2020, one month after the issuance of the initial decision, the

appellant filed a request to reschedule the prehearing conference. IAF, Tab 22 at

1. He stated that he was “not made aware of” the telephonic prehearing

conference and that he had recently moved and received a copy of the letter from

his former landlord after the conference. Id. The appellant provided the same

email address and mobile number that he provided in his initial appeal form, as

well as a new mailing address. IAF, Tab 1 at 1, Tab 22 at 1. He also submitted

part of the agency’s interrogatories and his responses thereto. IAF, Tab 22 at 2-6.

The appellant has filed a petition for review, arguing that he “did not have

the proper representation from the union and was not able to get an attorney in

time.” Petition for Review (PFR) File, Tab 1 at 1. He maintained that he

“did not receive the conference call” and did not receive the “letter” until

July 17, 2020. Id. The appellant argued that he did not have a chance to speak

with the administrative judge in his defense and requested that the Board grant

him the opportunity to present his case. Id. The Office of the Clerk of the Board

issued an order informing the appellant that, until the Board returned to normal

operations, he would be served by the Board and other parties via email and that

he should serve his pleadings via email. 2 PFR File, Tab 2 at 1-2. The agency

filed a response, arguing that the administrative judge’s dismissal for failure to

prosecute was an appropriate sanction for the appellant’s repeated failure to

comply with Board orders. PFR File, Tab 4 at 6-7. The agency challenged the

appellant’s assertion that he had belatedly received the order to show cause from

a previous landlord, noting that the administrative judge had served all orders

after the telephonic discovery conference via email. Id. at 8-9.

DISCUSSION OF ARGUMENTS ON REVIEW

The sanction of dismissal with prejudice may be imposed if a party fails to

prosecute or defend an appeal. Leseman v. Department of the Army,

122 M.S.P.R. 139, ¶ 6 (2015); 5 C.F.R. § 1201.43(b). Such a sanction should be

imposed only when a party has failed to exercise basic due diligence in

complying with Board orders, or has exhibited negligence or bad faith in its

efforts to comply. Leseman, 122 M.S.P.R. 139, ¶ 6. Repeated failure to respond

to multiple Board orders can reflect a failure to exercise basic due diligence.

Williams v. U.S. Postal Service, 116 M.S.P.R. 377, ¶ 9 (2011). Absent an abuse

The appellant filed a supplement to the petition for review. PFR File, Tab 5.

However, it consists only of hard copies of the appellant’s petition for review and the

letter that he sent to the administrative judge after the issuance of the initial decision.

PFR File, Tab 1 at 1, Tab 5 at 2; IAF, Tab 22 at 1.

of discretion, the Board will not reverse an administrative judge’s determination

regarding sanctions. Leseman, 122 M.S.P.R. 139, ¶ 6.

Although the appellant argues on review that he “did not have the proper

representation from the union and was not able to get an attorney in time,” the

Board has held that an appellant’s difficulty in obtaining a representative does not

excuse his failure to prosecute his appeal by failing to comply with the Board’s

orders. PFR File, Tab 1 at 1; see Williams, 116 M.S.P.R. 377, ¶ 11. When the

appellant failed to appear for the June 11, 2020 prehearing conference, the

administrative judge left a voicemail at the appellant’s telephone number of

record providing detailed instructions on how to dial in to the teleconference, and

she kept the conference line open for 15 minutes. IAF, Tab 19 at 1.

The appellant did not appear or return the administrative judge’s call. Id.

He also failed to comply with the administrative judge’s order compelling him to

respond to the agency’s discovery request, and he did not file a prehearing

submission. Id. at 2.

The appellant asserts on review that he “did not receive the conference

call” and did not receive the “letter” from the administrative judge “until July 17,

2020 from [his] previous landlord.” PFR File, Tab 1 at 1. In its response to the

petition for review, the agency correctly noted that, following the discovery

conference, the administrative judge served all orders on the appellant via email,

including the order amending the time of the prehearing conference. PFR File,

Tab 4 at 8-9; IAF, Tab 13 at 6, Tab 15 at 2, Tab 19 at 4. The record contains no

evidence suggesting that this order or the order to show cause was served on the

appellant via U.S. Mail at a physical address. Presuming that the “letter” to

which the appellant refers is the order to show cause, he has failed to explain why

he did not receive the order served on him at his email address of record or why

he did not follow up after receiving the administrative judge’s voicemail on the

date of the prehearing conference. PFR File, Tab 1 at 1; IAF, Tab 19 at 1, 4,

Tab 22 at 1. Similarly, he has not explained how he “did not receive the

conference call” when the administrative judge’s order amending the time of the

prehearing conference, which was also served via email, provided detailed

instructions for the teleconference. PFR File, Tab 1 at 1; IAF, Tab 15 at 1-2;

Tab 22 at 1. Moreover, the appellant confirmed during the discovery conference

that he had access to his email address of record and agreed to email service, and

he provided the administrative judge with the same email address in his request to

reschedule the prehearing conference. IAF, Tab 13 at 4 n.2, Tab 22 at 1. He has

also stated on petition for review that he can be reached by email at this same

address. PFR File, Tab 5. Finally, the appellant submitted his petition for review

via email and did not explain why he could not have submitted pleadings via

email after the administrative judge waived the prohibition against the use of

email due to the Board’s operational difficulties during the ongoing COVID-19

pandemic. PFR File, Tab 1 at 1; IAF, Tab 13 at 3-4; see 5 C.F.R. § 1201.12

(permitting an administrative judge to waive a Board regulation, for good cause

shown and providing notice to the parties, unless a statute requires application of

the regulation); 5 C.F.R. § 1201.14(d) (prohibiting the filing of pleadings via

email).

The administrative judge afforded the appellant 6 days to respond to the

show cause order and then waited an additional 5 days before issuing the initial

decision. Cf. Holland v. Department of Labor, 108 M.S.P.R. 599, ¶ 11 (2008)

(affording the appellant 2 days to respond to the show cause order did not allow

sufficient time for the appellant to receive the mailed order and submit a mailed

response). If an appellant is not given enough time to respond, a subsequent

untimely response does not necessarily evidence a lack of diligence or

negligence. Id. Here, however, the appellant failed to submit a response until

1 month after the issuance of the initial decision, and he did not address the

detailed voicemail that the administrative judge left him on the day of the

prehearing conference or the fact that the order was served on him by email.

IAF, Tab 22 at 1.

For the forgoing reasons demonstrating the appellant’s repeated failure to

comply with Board orders, and because the administrative judge explicitly warned

him that failure to respond to the show cause order would result in the dismissal

of his appeal for lack of prosecution, we find that the appellant failed to exercise

due diligence in prosecuting his appeal. See Leseman, 122 M.S.P.R. 139, ¶ 7

(finding that, by failing to take any steps to pursue her appeal until her filed her

petition for review, despite being warned that her failure to participate may result

in dismissal of the appeal with prejudice, the appellant failed to exercise due

diligence in pursuing her appeal); cf. Wiggins v. Department of the Air Force,

113 M.S.P.R. 443, ¶¶ 13-14 (2010) (finding the sanction of dismissal too severe

when the administrative judged never specifically warned the appellant of his

intent to dismiss the appeal for lack of prosecution and the appellant had

previously taken affirmative steps in pursuing his appeal, including participating

in a telephonic status conference and filing responsive pleadings).

Accordingly, we find that the administrative judge did not abuse her discretion in

imposing the sanction of dismissal with prejudice, and we affirm the initial

decision.

NOTICE OF APPEAL RIGHTS 3

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)

(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either

with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 4 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the