Wanny Ma v. Department of Defense

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WANNY MA, DOCKET NUMBER

Appellant, SF-531D-19-0584-I-1

v.

DEPARTMENT OF DEFENSE, DATE: January 27, 2025

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Wanny Ma , Monterey Park, California, pro se.

Temple L. Wilson , Esquire, Fort Belvoir, Virginia, for the agency.

BEFORE

Cathy A. Harris, Chairman*

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

* The Board members voted on this decision before January 20, 2025.

REMAND ORDER

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

dismissed for failure to prosecute her appeal of the agency’s denial of a

within-grade increase. For the reasons discussed below, we GRANT the

appellant’s petition for review, VACATE the initial decision, and REMAND 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

case to the Western Regional Office for further adjudication in accordance with

this Remand Order.

BACKGROUND

On July 19, 2019, the appellant, a GS-12 Auditor, filed an appeal of the

agency action denying her within-grade increase. Initial Appeal File (IAF),

Tab 2. She requested a hearing. Id. at 2. On August 22, 2019, the administrative

judge scheduled the requested hearing for October 1, 2019, and the prehearing

conference for September 19, 2019, and he required that he receive prehearing

submissions by September 16, 2019. IAF, Tab 9 at 1-2. The agency filed a

prehearing submission, but the appellant did not. IAF, Tab 14. During the

prehearing conference, at which both parties appeared, the administrative judge

rescheduled the hearing for October 10, 2019. IAF, Tab 15 at 2.

On October 6, 2019, the appellant requested that the hearing be postponed

so that she could attend an agency-mandated forum for Auditors about which she

had just learned was to be held on October 10, 2019. IAF, Tab 18 at 4, 6. On

October 8, 2019, while her first motion was still pending, she requested to

“withdraw the hearing” so that she could attend the forum, and she also sought

leave to file more documents to support the allegations made in her previous

submissions. IAF, Tab 22 at 3.

In an Order dated October 9, 2019, the administrative judge denied the

appellant’s request for a postponement of the hearing for lack of good cause.

IAF, Tab 24 at 1, 3-4. He also denied as untimely her request to file additional

documents and rejected as untimely and improperly filed other documents the

appellant had submitted after the final date for such submissions. IAF, Tab 24

at 3-4. In addition, the administrative judge denied as not unequivocal the

appellant’s request to withdraw the hearing, and he ordered the parties and the

approved witnesses to appear at the hearing as scheduled. Id. The administrative

judge noted that the appellant had failed to file a prehearing submission and had

3

been informed at the outset of the adjudication process that a failure to comply

with the administrative judge’s orders and the Board’s regulations could result in

the imposition of sanctions, including dismissal of the appeal with prejudice. Id.

at 4.

On October 9, 2019, the appellant filed additional documents, and on that

same date, she filed another pleading in which she again requested to “withdraw

the hearing” to attend the forum. IAF, Tab 26, Tab 27 at 4. On October 10,

2019, in advance of the time the hearing was set to begin, the administrative

judge issued an order rejecting the appellant’s most recent submissions as

untimely and improperly filed. IAF, Tab 28 at 1-2. He again reminded her that

her continued failure to comply could result in the imposition of sanctions,

including dismissal of her appeal for failure to prosecute. Id. at 3.

The appellant did not appear at the hearing. That same day, the

administrative judge issued an order directing the appellant to show cause why

her appeal should not be dismissed for failure to prosecute. IAF, Tab 31 at 1-2.

He ordered the appellant to respond by October 10, 2019, and also set that date as

the close of the record for receipt of all evidence and argument. Id. The agency

submitted a closing brief and evidence in the form of affidavits. IAF, Tab 32. In

two late-filed responses, the appellant sought to demonstrate good cause for her

numerous untimely filings, describing the difficulties she had with the agency

regarding her requests for official time to work on her appeal. IAF, Tabs 33, 35.

In his initial decision, the administrative judge dismissed the appeal for

failure to prosecute. IAF, Tab 37, Initial Decision (ID) at 1, 8-10. He found that

the appellant failed to exercise due diligence in complying with numerous Board

orders and/or exhibited bad faith in her efforts to comply with the Board’s orders.

Id. at 8-9.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has filed a response, and the appellant has replied. PFR

File, Tabs 3, 6.

4

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge erred in dismissing the appeal for failure to prosecute.

Dismissal for failure to prosecute is a sanction that may be imposed if a

party fails to prosecute or defend an appeal. Turner v. U.S. Postal Service,

123 M.S.P.R. 640, ¶ 14 (2016), aff’d per curiam, 681 F. App’x 934 (Fed. Cir.

2017); 5 C.F.R. § 1201.43(b). The Board has held that the imposition of such a

severe sanction must be used only when necessary to serve the ends of justice, as

when a party has failed to exercise basic due diligence in complying with an order

or has exhibited negligence or bad faith in her efforts to comply. Turner,

123 M.S.P.R. 640, ¶ 14. The severe sanction of dismissal with prejudice for

failure to prosecute an appeal should not be imposed when a pro se appellant has

made incomplete responses to the Board’s orders but has not exhibited bad faith

or evidenced any intent to abandon her appeal, and appears to be confused by

Board procedures. Id. Nevertheless, absent a showing of abuse of discretion, the

Board will not reverse an administrative judge’s determination regarding the

imposition of sanctions, including the sanction of dismissal with prejudice. Id.

Here, the record does not show that the appellant failed to exercise basic

due diligence or that she exercised negligence or bad faith in her efforts to

comply with the administrative judge’s orders under the circumstances. 2 In

finding that dismissal for failure to prosecute was warranted, the administrative

judge reasoned that the appellant did not comply with his orders when, among

other things, she did not timely file prehearing submissions, did not attend the

2

The appellant has not shown good cause for her failure to file a prehearing

submission, as required by the administrative judge’s August 22, 2019 hearing order.

Nonetheless, while the administrative judge noted during the prehearing conference that

the appellant did not make the required submission, he did not indicate that he intended

to sanction her for it. IAF, Tab 15. In any event, this failure to comply with the

administrative judge’s order would not warrant a dismissal of the appeal for failure to

prosecute. See Murdock v. Government Printing Office, 38 M.S.P.R. 297, 299 (1988)

(stating that a single failure to comply with a Board order is insufficient to support

dismissal for failure to prosecute).

5

scheduled hearing, and did not timely respond to the order to show cause. ID

at 2, 6-8. For the following reasons, we find that the administrative judge erred

in not granting the appellant’s request to cancel the hearing and in not issuing a

close of record order that allowed the parties sufficient time to submit final

written submissions to adjudicate the appeal on the merits based on the written

record.

After the administrative judge issued the decision in this appeal, the Board

amended its regulations to clarify that, under 5 C.F.R. § 1201.41(b)(5),

“administrative judges may only hold a hearing if requested by an appellant.” See

Rules & Regulations, 89 Fed. Reg. 72957-01, 72958, 72961 (Sept. 9, 2024). The

Board explained that “[t]his modification reemphasizes that the right to request a

hearing belongs solely to appellants, and that neither administrative judges nor

agencies may order a hearing if the appellant does not wish to have a hearing.”

Id. at 72958. This amendment underlines a right that existed at the time the

administrative judge issued the initial decision, i.e., the right for an appellant to

request a hearing. See 5 U.S.C. § 7701(a)(1) (stating that an appellant shall have

the right to a hearing); Crispin v. Department of Commerce, 732 F.2d 919, 922-24

(Fed. Cir. 1984) (explaining that an appellant is statutorily entitled to a hearing

under 5 U.S.C. § 7701(a)(1)); 5 C.F.R. § 1201.24(d) (discussing an appellant’s

right to a hearing on the merits); 5 C.F.R.

§ 1201.41(b)(5) (reflecting an administrative judge’s authority to grant an

appellant’s request for a hearing).

Here, the appellant sought to withdraw her hearing request on two

occasions ahead of the hearing date on October 10, 2019. IAF, Tab 22 at 3;

Tab 27 at 4. We agree with the administrative judge’s finding that the appellant’s

first withdrawal of her request for a hearing was not unequivocal, as it was filed

while her request to reschedule the hearing was still pending; thus, the motion to

withdraw the hearing request was, in effect, conditioned on the administrative

judge denying the request for a postponement. ID at 4; IAF, Tab 22. However,

6

the second request asking the administrative judge to “withdraw the hearing in its

entirety” was clear. IAF, Tab 27 at 4. At that point, the administrative judge

should have canceled the hearing. We therefore find that the extreme sanction of

dismissal for failure to prosecute, which denied the appellant an opportunity for

review of her appeal on the merits, 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 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). Accordingly, we

find that the administrative judge abused his discretion in dismissing the appeal

for failure to prosecute.

Determining when to close the record is a matter within the sound

discretion of the administrative judge. Robinson v. Department of the Army,

50 M.S.P.R. 412, 419 (1991). Nonetheless, when an appeal is decided without a

hearing, the procedures used must comport with the basic requirements of

fairness and notice, including an opportunity to respond to submissions of the

parties. Id. Although the administrative judge’s October 10, 2019 order to show

cause afforded the parties an opportunity to file additional evidence and

argument, he set that same date, i.e., October 10, 2019, as the close of record

date. IAF, Tab 31 at 2. While administrative judges are afforded significant

leeway in managing their dockets, we do not find that requiring parties to make

close of record submissions on the same date the close of record order is issued

allows the parties a reasonable amount of time to prepare and file additional

evidence and argument. See Holland v. Department of Labor, 108 M.S.P.R. 599,

¶¶ 5, 11 (2008) (finding that a 5-day deadline for an appellant to respond to an

order did not provide her with sufficient time to receive the order and respond).

Because we find that the administrative judge should have canceled the hearing

and provided the parties with sufficient time to file close of record submissions,

7

we also disagree with the administrative judge’s determination that the

appellant’s absence at the hearing and failure to timely submit a response to the

show cause order demonstrates a lack of due diligence, negligence, or bad faith in

her efforts to comply with his orders.

Thus, we vacate the initial decision and remand the appeal to the regional

office for the administrative judge to adjudicate the appeal on the merits based on

the written record. On remand, the administrative judge should issue a new close

of record order that provides the parties with sufficient time to file additional

evidence and argument, as well as an opportunity to reply to each other’s

submissions. The administrative judge should then issue a decision on the merits

of the appeal based on the written record.

In remanding this appeal, we observe that appellants are expected to

comply with all orders issued by the Board’s administrative judges. Wiggins v.

Department of the Air Force, 113 M.S.P.R. 443, ¶ 15 (2010). Moreover, an

administrative judge may impose various sanctions when a party fails to comply

with an order. Id.; see 5 C.F.R. § 1201.43(a) (listing possible sanctions).

Accordingly, on remand, the appellant must be more diligent in complying with

the administrative judge’s orders and in pursuing her appeal to avoid the

imposition of sanctions as necessary to serve the ends of justice. See Wiggins,

113 M.S.P.R. 443, ¶ 15. 3

The appellant argues that the administrative judge demonstrated bias

against her and in favor of the agency in his rulings. PFR File, Tab 1 at 3-5. In

making a claim of bias or prejudice against an administrative judge, a party must

overcome the presumption of honesty and integrity that accompanies

3

Because we are vacating the initial decision and remanding the appeal for a decision

on the merits, we need not reach the appellant’s remaining argument on review that the

agency hindered her efforts to comply with the administrative judge’s orders. PFR File,

Tab 1 at 21-22. We also have not considered the additional documentation that the

appellant submitted with her petition for review. PFR File, Tab 1 at 7-20, 22-23. The

appellant may submit these materials into the record on remand consistent with the

orders of the administrative judge.

8

administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R.

382, 386 (1980). The party must show that the bias constitutes extrajudicial

conduct rather than conduct arising during the administrative proceedings before

him. Tyler v. U.S. Postal Service, 90 M.S.P.R. 545, ¶ 7 (2002); Gensburg v.

Department of Veterans Affairs, 85 M.S.P.R. 198, ¶ 6 (2000). The fact that an

administrative judge ruled against a party is insufficient evidence to show bias.

Tyler, 90 M.S.P.R. 545, ¶ 7; Gensburg, 85 M.S.P.R. 198, ¶ 6. Because the

appellant’s claims of bias derive from the administrative judge’s rulings during

the proceedings, she has not established bias.

ORDER

For the reasons discussed above, we remand this case to the Western

Regional Office for further adjudication in accordance with this Remand Order.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.