The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CINDY A. WUNSCH, DOCKET NUMBER
Appellant, NY-844E-20-0231-I-1
v.
OFFICE OF PERSONNEL DATE: January 15, 2025
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Cindy A. Wunsch , Williamsville, New York, pro se.
Linnette Scott , Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed her disability retirement appeal for failure to prosecute. For the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
reasons discussed below, we GRANT the appellant’s petition for review,
VACATE the initial decision, and REMAND the case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
The Office of Personnel Management (OPM) denied the appellant’s
application for disability retirement. Initial Appeal File (IAF), Tab 9 at 4-7. On
August 28, 2020, the appellant filed a Board appeal of that decision by U.S. Mail.
IAF, Tab 1. The administrative judge issued an acknowledgment order, a
jurisdictional order, and an order to the appellant to provide documentation. The
appellant was served these documents by U.S. Mail, and she responded to the
documentation order as requested. IAF, Tabs 2-5, 7.
Subsequently, the administrative judge issued a close of the record order
and served the appellant electronically. IAF, Tab 6. When the appellant failed to
appear at the close of the record conference, the administrative judge issued an
order to show cause why she did not attend the conference and warned the
appellant of possible sanctions, up to dismissal of her appeal for failure to
prosecute. IAF, Tab 10. Again, the appellant was served electronically and did
not respond. Id. at 3. The administrative judge then issued two more such
orders, directing the appellant to respond and warning her that her appeal would
be dismissed if she failed to do so. IAF, Tabs 11-12. These orders were served
electronically as well. IAF, Tab 11 at 4, Tab 12 at 4.
After the appellant’s failure to respond to these multiple orders, on
November 2, 2020, the administrative judge issued an initial decision dismissing
the appeal for failure to prosecute. IAF, Tab 13. The appellant was served the
initial decision electronically as well. IAF, Tab 14.
On November 28, 2020, the appellant filed a petition for review by
U.S. Mail, stating that she did not receive any emails from the Board. Petition for
Review (PFR) File, Tab 1 at 5. OPM has filed a response.
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An administrative judge may impose the sanction of dismissal with
prejudice 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 necessary to serve the ends of
justice, such as when a party has failed to exercise basic due diligence in
complying with Board orders or has exhibited negligence or bad faith in her
efforts to comply. Leseman, 122 M.S.P.R. 139, ¶ 6. When an appellant’s
repeated failure to respond to multiple Board orders reflects a failure to exercise
basic due diligence, the imposition of the sanction of dismissal for failure to
prosecute has been found appropriate. Williams v. U.S. Postal Service,
116 M.S.P.R. 377, ¶ 9 (2011); see Turner v. U.S. Postal Service, 123 M.S.P.R.
640, ¶ 16 (2016), aff’d, 681 F. App’x 934 (Fed. Cir. 2017); Heckman v.
Department of the Interior, 106 M.S.P.R. 210, ¶ 16 (2007).
Nevertheless, electronic service of the Board’s issuances is only
appropriate for properly registered e-filers who affirmatively consent to
electronic service. See 5 C.F.R. § 1201.14(e)(1)-(2) (2020) (noting that
registration as an e-filer constitutes consent to accept electronic service and that
the exclusive means for registering as an e-filer is to do so through e-Appeal
Online), (j)(1) (identifying that paper copies of Board issuances are not ordinarily
served on registered e-filers), (j)(3) (noting that registered e-filers are responsible
for monitoring case activity in the e-Appeal Online Repository to ensure that they
have received all case-related documents).
The record for this appeal does not contain the appellant’s affirmative
consent to accept electronic service. Therefore, we find that none of the orders
served on the appellant electronically were properly served, and that it is not
appropriate to hold her accountable for failing to respond to them. IAF,
Tabs 6, 10-12. Under these circumstances, the sanction of dismissal for failure to
prosecute does not serve the ends of justice. See Tully v. Department of Justice,
95 M.S.P.R. 481, ¶¶ 8, 12 (2004) (vacating an administrative judge’s dismissal
4
for failure to prosecute because the sanction was based in part on the pro se
appellant failing to appear at a hearing that the administrative judge scheduled
during a period that the appellant had previously advised the administrative judge
he would be on military duty).
We therefore vacate the initial decision and remand the appeal for
adjudication of the merits. On remand, the administrative judge should update
and verify the appellant’s preferred method of service and establish a new close
of the record schedule.
ORDER
For the reasons discussed above, we remand this case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.