The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MELISSA M. HEREFORD, DOCKET NUMBER
Appellant, AT-0432-19-0677-B-1
v.
DEPARTMENT OF DEFENSE, DATE: March 13, 2026
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Melissa M. Hereford , Marietta, Georgia, pro se.
David R. Daniels , Esquire, Rodrick McGill , Esquire, and
Shanna Lyn G. Douglas , Alexandria, Virginia, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member
REMAND ORDER
The appellant has filed a petition for review of the remand initial decision,
which dismissed her removal appeal for failure to prosecute. For the reasons
discussed below, we GRANT the appellant’s petition for review, VACATE 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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initial decision, and REMAND the case to the Atlanta Regional Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
The appellant filed a Board appeal challenging her removal for
unacceptable performance under 5 U.S.C. chapter 43. Hereford v. Department of
Defense, MSPB Docket No. AT-0432-19-0677-I-1, Initial Appeal File (IAF),
Tab 1. After holding a hearing, the administrative judge issued an initial decision
sustaining the appellant’s removal. IAF, Tab 35, Initial Decision (ID). During
the pendency of the appellant’s petition for review, the U.S. Court of Appeals for
the Federal Circuit issued Santos v. National Aeronautics and Space
Administration, 990 F.3d 1355, 1360-61 (Fed. Cir. 2021), which found that, in
addition to the elements set forth in the initial decision, the agency must also
prove by substantial evidence that an employee’s performance was unacceptable
prior to the institution of a performance improvement plan (PIP). Accordingly,
on August 2, 2024, the Board issued a Remand Order, directing the administrative
judge to allow the parties to submit evidence or argument concerning whether the
appellant’s placement on the PIP was proper, and to make new findings regarding
the appellant’s affirmative defenses in consideration of the pre-PIP evidence.
Hereford v. Department of Defense, MSPB Docket No. AT-0432-19-0677-I-1,
Remand Order, 5-7 (Aug. 2, 2024).
On August 12, 2024, the administrative judge issued an Acknowledgment
Order scheduling a telephonic status conference for August 21, 2024. Hereford v.
Department of Defense, MSPB Docket No. AT-0432-19-0677-B-1, Remand
Appeal File (RAF), Tab 2. The appellant did not attend the August 21, 2024
status conference, and the administrative judge issued an order rescheduling the
conference to September 3, 2024. RAF, Tab 5. The administrative judge also
advised the appellant that if she failed to appear for the rescheduled status
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conference, or failed to follow any Board order, he may impose sanctions, up to
and including a dismissal for failure to prosecute. Id.
The appellant attended the September 3, 2024 rescheduled status
conference, confirming that she did not want a supplemental hearing. RAF, Tab 6
at 1. Accordingly, the administrative judge issued a close of record order,
advising the parties that all argument and evidence must be submitted by
September 30, 2024, and scheduling a close of record conference for
September 19, 2024. Id. The appellant did not appear for the close of record
conference, and that same day, on September 19, 2024, the administrative judge
issued a remand initial decision dismissing the appeal for failure to prosecute.
RAF, Tab 8, Remand Initial Decision (RID) at 1-3.
The appellant has filed a petition for review, arguing that she had “mental
conditions” that impacted her ability to keep appointments, and that the
administrative judge should not have dismissed her appeal because she appeared
at the September 3, 2024 status conference. Petition for Review (PFR) File,
Tab 1 at 3-4. The agency filed a response to the appellant’s petition for review.
PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The sanction of dismissal with prejudice may be imposed if a party does
not prosecute or defend an appeal, as necessary to serve the needs of justice.
Gordon v. Department of the Air Force, 104 M.S.P.R. 358, ¶ 4 (2006); 5 C.F.R
§ 1201.43(b). Such a severe sanction should be imposed only if a party has not
exercised basic due diligence in complying with the Board’s orders or has
exhibited negligence or bad faith in its efforts to comply. Williams v. U.S. Postal
Service, 116 M.S.P.R. 377, ¶¶ 7-8 (2011). Additionally, an appeal should not be
dismissed with prejudice for failure to prosecute 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 his appeal. Chandler v. Department of the
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Navy, 87 M.S.P.R. 369, ¶ 8 (2000). Absent a showing of abuse of discretion, the
Board will not reverse an administrative judge’s determination regarding the
imposition of dismissal for failure to prosecute. Williams, 116 M.S.P.R. 377, ¶ 7.
Here, we find that the administrative judge abused his discretion. Although
the appellant did not appear for the August 21, 2024 status conference, she did
appear for the September 3, 2024 status conference, thus complying with the
administrative judge’s rescheduling order. RAF, Tabs 5-6. Additionally, the
administrative judge dismissed the appeal without providing the appellant with an
opportunity to address her failure to appear for the close of record conference,
even though the appellant had recently attended the rescheduled status
conference, thus evidencing a desire to pursue her appeal. RID at 1-3; RAF,
Tab 6 at 1. She also timely filed a petition for review, further demonstrating her
interest in pursuing this appeal. PFR File, Tab 1; see Reggans v. U.S. Postal
Service, 3 M.S.P.R. 260, 262 (1980) (finding that an appellant filing a timely
petition for review indicates that she did not intend to abandon her appeal).
Therefore, we find that the appellant did not intend to abandon her appeal,
nor has she exhibited negligence or bad faith in her efforts to comply . Williams,
116 M.S.P.R. 377, ¶ 7; Chandler, 87 M.S.P.R. 369, ¶ 8. Accordingly, under these
circumstances, we find that the sanction of dismissal for failure to prosecute is
too severe.
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ORDER
For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.