The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RITA EASTON, DOCKET NUMBER
Appellant, DC-1221-13-0174-W-2
v.
DEPARTMENT OF THE TREASURY, DATE: August 29, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Rita Easton, Washington, D.C., pro se.
Byron D. Smalley, Esquire, and Felix M. Digilov, Washington, D.C., for
the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed the appeal for failure to prosecute. Generally, we grant petitions such
as this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
regulation or the erroneous application of the law to the facts of the case; the
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. See 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, and based on the following points and authorities, 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).
¶2 The appellant filed her appeal in December 2012. MSPB Docket No.
DC-1221-13-0174-W-1 (W-1), Initial Appeal File (IAF), Tab 1. In January 2013,
the administrative judge ordered the appellant to file a statement within 10
calendar days concerning whether her appeal was within the Board’s jurisdiction.
W-1, IAF, Tab 7 at 5-6. The appellant did not respond. The agency filed a
motion to compel discovery in February 2013 because the appellant failed to
respond to discovery and failed to attend a scheduled deposition. W-1, IAF, Tab
8 at 4-5. Later in February 2013, the administrative judge dismissed the appeal
without prejudice pending the effect of new legislation on the appeal. 2 W-1, IAF,
Tab 9. The Board refiled the appeal in September 2013. MSPB Docket No.
DC-1221-13-0174-W-2 (W-2), Initial Appeal File (IAF), Tab 2. On March 11,
2014, the administrative judge ordered the appellant to file a statement
concerning the issue of Board jurisdiction on or before March 14, 2014. W-2,
2
The Board had directed administrative judges to dismiss pending individual right of
action appeals without prejudice that might have been impacted by the Whistleblower
Protection Enhancement Act of 2012 (WPEA) until the issue of retroactivity was
decided. W-1, IAF, Tab 9.
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IAF, Tab 3 at 7-8. The appellant did not respond. On March 28, 2014, the
administrative judge again ordered the appellant to file a response to the
jurisdiction question and gave the appellant 5 days to respond. W-2, IAF, Tab 4.
The administrative judge warned the appellant that failure to comply with the
terms of his order could result in the imposition of sanctions, including dismissal
of the appeal. Id. The appellant still did not respond. On April 4, 2014, the
administrative judge dismissed the appeal for failure to prosecute, finding that the
appellant had failed to exercise basic due diligence by her repeated failure to
respond to Board orders. W-2, IAF, Tab 5 at 3.
¶3 On petition for review, the appellant admits that she received the March 11,
2014 jurisdiction order. Petition for Review (PFR) File, Tab 1 at 4. She also
presents several arguments in her petition, including that the agency has failed to
respond to some of her allegations and failed to comply with Board orders and
timelines. See id. at 1-2. The appellant argues that her appeal should not be
dismissed because of the agency’s failure to timely respond and address all of her
allegations. Id. at 6. The appellant also presents arguments concerning the
validity of the administrative judge’s signature on several of the orders and states
that she was entitled to a status conference with respect to her case. Id. at 2-6.
Finally, the appellant argues that her appeal should not have been dismissed
without prejudice because the WPEA is not applicable to her case. 3 Id. at 3, 6.
¶4 The sanction of dismissal with prejudice may be imposed if a party fails to
prosecute or defend an appeal. Williams v. U.S. Postal Service, 116 M.S.P.R.
377, ¶7 (2011) (citing Ahlberg v. Department of Health & Human
Services, 804 F.2d 1238, 1242 (Fed. Cir. 1986); 5 C.F.R. § 1201.43(b)).
Although the Board’s regulation, 5 C.F.R. § 1201.43(b), does not set forth
guidelines for exercising this authority, the Board has held, in pertinent part, that
3
We note that the appellant did not file a petition for review of the initial decision
dismissing her initial appeal without prejudice. That decision to dismiss that appeal is
not before the Board at this time.
4
such a severe sanction is only appropriate when necessary to serve the ends of
justice, and should only be imposed when a party: (1) has failed to exercise due
diligence in complying with Board orders; or (2) has exhibited negligence or bad
faith in its efforts to comply. Williams, 116 M.S.P.R. 377, ¶ 7. Furthermore,
absent a showing of abuse of discretion, the Board will not reverse an
administrative judge’s imposition of sanctions. Id.
¶5 It is undisputed that the appellant failed to respond to the administrative
judge’s jurisdictional orders. None of the appellant’s evidence or argument on
review demonstrates that she exercised due diligence in the proceedings below.
Therefore, we find no abuse of discretion in the administrative judge’s decision to
impose sanctions under 5 C.F.R. § 1201.43(b). See Williams, 116 M.S.P.R. 377,
¶¶ 9-12 (dismissal for failure to prosecute was appropriate where the appellant
failed to respond to multiple Board orders). Accordingly, the appellant has
shown no basis upon which to disturb the initial decision dismissing her appeal
for failure to prosecute.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
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may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
appellants before the Federal Circuit. The Merit Systems Protection Board
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neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.