The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID L. CALDWELL, DOCKET NUMBER
Appellant, DC-0842-25-0134-I-1
v.
OFFICE OF PERSONNEL DATE: April 27, 2026
MANAGEMENT,
Agency.
THIS ORDER IS NONPRECEDENTIAL
David L. Caldwell , Bladensburg, Maryland, pro se.
Eva Ukkola , Tiffany Slade , and Tanisha Elliott Evans , Washington, D.C.,
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 initial decision, which
affirmed the reconsideration decision of the Office of Personnel Management
(OPM). For the reasons discussed below, we GRANT the appellant’s petition for
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
review, VACATE the initial decision, and REMAND the case to the regional
office for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant is a former Federal employee, who worked for the National
Gallery of Art for approximately 25 years until 2012. Initial Appeal File (IAF),
Tab 1 at 61, Tab 8 at 6, 18. His Federal Employees’ Retirement System (FERS)
annuity, which was finalized in 2012, did not include credit for his 6 years of
military service with the U.S. Army. IAF, Tab 8 at 6. The appellant requested
that OPM recalculate his FERS annuity. Id. OPM issued an initial decision
denying his request because it found no evidence of creditable military service
paid under FERS. Id. On August 5, 2024, he filed a request for reconsideration
with OPM. Id. OPM issued a reconsideration decision, dated October 28, 2024,
affirming its initial decision. Id. at 6-7. The appellant filed an initial appeal with
the Board on November 13, 2024. 5 C.F.R. § 1201.4(l); IAF, Tab 1 at 63.
On January 30, 2025, the administrative judge issued an order scheduling a
virtual hearing on March 21, 2025, using Zoom for Government (Zoom). IAF,
Tab 9 at 1. During a telephonic prehearing conference on March 17, 2025, the
appellant informed the administrative judge that he did not have a computer that
could connect to Zoom. IAF, Tab 13 at 1. The administrative judge offered to
hold an in-person hearing, but the appellant declined. Id. As a result, the
administrative judge scheduled a telephonic hearing on March 21, 2025. Id. The
administrative judge’s supplemental hearing order, dated the same day, contained
the call-in information for the hearing. Id. The supplemental hearing order also
indicated that the administrative judge provided the call-in information to the
parties during the prehearing conference. Id.
The appellant did not attend the telephonic hearing on March 21, 2025, and
the administrative judge issued an Order to Show Cause for him to explain within
10 calendar days why he did not appear and why the administrative judge should
3
not cancel his hearing request and decide the appeal on the written record. IAF,
Tab 14 at 1-2. On April 2, 2025, the administrative judge issued a Close of
Record Order in which he determined that the appellant did not show good cause
for not appearing at the scheduled hearing and that canceling the appellant’s
hearing request and deciding the appeal based on the written record would serve
the ends of justice. IAF, Tab 17 at 1-2. The administrative judge found the
sanction to be justified under 5 C.F.R. § 1201.43(e). Id. at 2.
The administrative judge issued an initial decision, dated June 10, 2025,
based on the written record. IAF, Tab 23, Initial Decision (ID). He affirmed
OPM’s reconsideration decision, finding that the appellant did not prove that he
made a military service deposit creditable under FERS or that an administrative
error caused him not to make a military service deposit. ID at 5-8, 10. The
administrative judge also concluded that the appellant did not prove his claims of
discrimination or reprisal. ID at 9-10. The appellant filed a petition for review
on June 19, 2025. 5 C.F.R. § 1201.4(l); Petition for Review File, Tab 1 at 1.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge cancelled the appellant’s hearing request because
he found that the appellant did not show good cause for not appearing at the
scheduled telephonic hearing on March 21, 2025. IAF, Tab 17 at 1-2. In making
this determination, the administrative judge considered the appellant’s filings that
were docketed by the Board on March 31 and April 1, 2025. Id. (citing IAF,
Tabs 15-16). The administrative judge noted that the appellant stated in the first
filing that he had “‘good cause to proceed as scheduled’ and then referred to the
date and time that the parties participated in the prehearing conference.” Id.
(quoting IAF, Tab 15 at 4). The administrative judge next remarked that the
appellant’s second filing contained an excerpt from the Board’s January 30, 2025
hearing order. Id. at 2 (citing IAF, Tab 16 at 2).
4
The administrative judge incorrectly determined that these filings were
made in response to the March 21, 2025 Order to Show Cause. The appellant
mailed the first filing to the Board on March 18, 2025, which was 3 days before
the Order to Show Cause was issued. IAF, Tab 14 at 1, Tab 15 at 11. He mailed
the second filing to the Board on March 21, 2025, the same day as the scheduled
hearing. IAF, Tab 13 at 1, Tab 16 at 3. Because the appellant was not an e-filer
and received his filings via U.S. Mail, his March 21 filing is unlikely to have
been made in response to a filing that was mailed to him the same day. IAF,
Tab 14 at 4.
The appellant submitted his first post-March 21, 2025 filing on
April 1, 2025. IAF, Tab 18 at 88. On the top of the second page, he wrote that
“there’s no follow up information concerning the 21 of March 2025.” Id. at 2.
The Board is ordinarily required to construe a pro se appellant’s pleadings
liberally. See Groves v. McDonough, 34 F.4th 1074, 1080 (Fed. Cir. 2022).
Construing his pleadings liberally, we find that the appellant was stating that he
had not received the call-in information for the telephonic hearing.
The Board’s regulations authorize an administrative judge to cancel a
scheduled hearing as a sanction when an appellant engages in contumacious
conduct or conduct prejudicial to the administration of justice. See
5 C.F.R. § 1201.43(e); see also Hart v. Department of Agriculture, 81 M.S.P.R.
329, ¶ 5 (1999) (finding that an appellant’s right to a hearing should not be
denied as a sanction absent extraordinary circumstances). We find that the type
of “extraordinary circumstances” that might warrant the extreme sanction of
cancelation are lacking in this case. First, in issuing this sanction, the
administrative judge relied exclusively on two documents that the appellant did
not submit in response to the Order to Show Cause. IAF, Tabs 15-16. Second,
the appellant’s statement that he had not received the order containing the call-in
details for the hearing provides a reasonable basis for his lack of attendance at the
hearing. IAF, Tab 18 at 2. Third, the administrative judge issued a
5
March 17, 2025 supplemental hearing order containing the call-in information for
the hearing scheduled 4 days later. IAF, Tab 13 at 1. The appellant was served
this order via U.S. Mail. Id. at 3. We find it unreasonable for the administrative
judge to expect that the appellant would receive this order before the scheduled
hearing. See 5 C.F.R. § 1201.4(l) (presuming that mail received by the Board
without a postmark was mailed 5 days before its receipt). We therefore vacate
the initial decision and remand the appeal.
ORDER
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.