The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBIN R. MCFARLAND, DOCKET NUMBER
Appellant, PH-315H-14-0578-I-1
v.
DEPARTMENT OF HEALTH AND DATE: August 19, 2014
HUMAN SERVICES,
Agency.
THIS ORDER IS NONPRECEDENTIAL *
Robin R. McFarland, Harrisburg, Pennsylvania, pro se.
Roger L. Gumbs, Jr., Baltimore, Maryland, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for failure to prosecute. For the reasons discussed below,
we GRANT the appellant’s petition for review, VACATE the initial decision, and
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REMAND the case to the regional office for further adjudication in accordance
with this Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The agency terminated the appellant from her position as a Program Analyst
during her probationary period in February 2014. Initial Appeal File (IAF), Tab 4
at 10-13. The appellant filed this appeal challenging her termination. IAF,
Tab 1. The administrative judge issued a March 2014 status order requesting that
the parties schedule a conference call, and an April 2014 order concerning the
appellant’s failure to attend the scheduled conference call. IAF, Tabs 7, 9. In
April 2014, the administrative judge ordered the appellant to address the issue of
jurisdiction. IAF, Tab 10. The administrative judge scheduled another
conference call in May 2014. IAF, Tab 11. He dismissed the appeal in May
2014, for failure to prosecute, finding that the appellant had missed two status
conferences without explanation and had failed to respond to Board orders. IAF,
Tab 13, Initial Decision (ID) at 1-2. On petition for review, the appellant argues
that she did not receive notice of a status conference because the notice was sent
to an incorrect address. Petition for Review (PFR) File, Tab 1 at 2. In response
to the petition for review, the agency argues that its filing concerning the status
conference was accessible to the appellant via e-Appeal. PFR File, Tab 3 at 5.
¶3 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). Absent a showing of abuse of discretion, the Board will not
reverse an administrative judge’s determination regarding sanctions. Id.
¶4 Here, the record reflects that the appellant’s return address was contained in
her March 2014 appeal. IAF, Tab 1 at 1, 7. She also submitted her address in her
March 2014 response to the acknowledgment order. IAF, Tab 5 at 1. The
appellant’s address is house number 233, but mailings were sent to house number
223. The administrative judge’s orders, including an acknowledgement order, a
3
failure to serve order, a March 2014 preliminary status order, and an April 2014
order concerning the appellant’s failure to attend a conference call were all
mailed to the wrong address. IAF, Tabs 2, 6, 7, 9. The appellant also may not
have received the agency file because the certificate of service prepared by the
agency states that the file was served via e-Appeal. IAF, Tab 4 at 15. However,
the appellant was not registered for e-Appeal, and therefore she did not consent to
accept electronic service. See 5 C.F.R. § 1201.14(e). The certificate of service
generated by e-Appeal indicates that the appellant would be served by mail, but it
contains the incorrect address. IAF, Tab 4 at 16. The certificates of service
accompanying the agency’s March 2014 pleading regarding a status conference
call are similarly flawed. IAF, Tab 8 at 5-6. The administrative judge’s April
2014 jurisdiction order was initially mailed to the incorrect address on April 1,
2014, but was later mailed to the correct address on April 14, 2014. IAF, Tab 10
at 9, 11. Thereafter, in May 2014, a preliminary status order scheduling a status
conference was mailed to the appellant’s correct address. IAF, Tab 11. The
appellant did not attend the status conference. The administrative judge
dismissed the appeal in May 2014. ID at 1-2.
¶5 It appears that the administrative judge was not aware that several of his
orders were not sent to the appellant’s correct address. Evidence that a letter was
sealed, properly addressed, and deposited in the U.S. Mail with postage prepaid
gives rise to a rebuttable presumption that the letter reached the addressee in due
course of the mails. Reynolds v. Department of Justice, 63 M.S.P.R. 189, 193,
dismissed, 36 F.3d 1112 (Fed. Cir. 1994) (Table) (finding that the presumption of
receipt in due course was not applicable where the agency had misspelled the
appellant’s city of residence). However, this presumption does not apply to the
Board orders that were addressed to the wrong house number. Id. Furthermore,
the Board has previously reversed an administrative judge’s imposed sanctions
when an incorrect address affected the appellant’s ability to proceed. See, e.g.,
Moore v. Department of Health & Human Services, 50 M.S.P.R. 201, 203-04
4
(1991) (vacating and remanding the initial decision when an order and the initial
decision were mailed to an incorrect address). Accordingly, we find that the
administrative judge should not have dismissed the appeal for failure to prosecute
under the circumstances presented.
¶6 We note that the appellant replied to the administrative judge’s March 2014
acknowledgment order, despite the fact that the order was mailed to the wrong
house number. IAF, Tab 5. However, the appellant did not reply to the later
misaddressed orders and agency filings to which she may have had similar access.
Nor did she inform the agency or the Board that the acknowledgment order to
which she replied had been addressed incorrectly. We also note that upon the
Board’s correction of her house number, the appellant still failed to comply with
the administrative judge’s April 2014 jurisdiction order and May 2014
preliminary status order. IAF, Tabs 10, 11. Accordingly, on remand, we remind
the appellant that an administrative judge may impose various sanctions when a party
fails to comply with an order. See 5 C.F.R. § 1201.43(a). The appellant is therefore
expected to comply with all orders issued by the administrative judge. See Lubert
v. U.S. Postal Service, 110 M.S.P.R. 430, ¶ 15 (2009).
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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.