The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2015 MSPB 5
Docket No. SF-0752-13-1722-I-1
Jackie Leseman, *
Appellant,
v.
Department of the Army,
Agency.
January 9, 2015
Jackie Leseman, Wasilla, Alaska, pro se.
Michael H. Gilbert and Mike J. Schroeder, Joint Base Elmendorf-
Richardson, Alaska, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of an initial decision that
dismissed her appeal with prejudice for failure to prosecute. For the following
reasons, we DENY the petition for review and AFFIRM the initial decision.
*
Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation. Corps of
Engineers/Pacific Ocean v. Department of the Army, MSPB Docket No. SF-0752-14-
0290-I-1.
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BACKGROUND
¶2 On May 31, 2013, the agency issued a Notice of Proposed Furlough
informing the appellant, a Supervisory Project Officer, that she would be
furloughed for no more than 11 workdays due to “the extraordinary and serious
budgetary challenges facing the Department of Defense (DOD) for the remainder
of Fiscal Year (FY) 2013, the most serious of which is the sequester that began
on May 1, 2013.” Initial Appeal File (IAF), Tab 1 at 9-11. It does not appear
that the appellant responded to the proposal notice. By written notice dated June
20, 2013, the agency’s deciding official informed the appellant that she would be
furloughed as outlined in the proposal notice. See id. at 12-14. The record
includes a Standard Form 50 reflecting the appellant’s furlough, effective July 8,
2013, on discontinuous days between July 8, 2013, and September 30, 2013, and
not to exceed a maximum of 88 hours during the furlough period. Id. at 7-8.
¶3 The appellant filed a Board appeal challenging the agency’s action but
indicated that she did not want a hearing. See IAF, Tab 1 at 2. In a furlough
procedures order, the administrative judge informed the appellant that her appeal
had been consolidated with the appeals of similarly situated employees. Corps of
Engineers/Pacific Ocean v. Department of the Army, MSPB Docket No.
SF-0752-14-0290-I-1, Consolidated Appeal File (CAF), Tab 2. On April 17,
2014, the administrative judge issued an order in which she scheduled a
telephonic status conference, a prehearing conference, and a close of record date.
CAF, Tab 12. In her order, the administrative judge cautioned that, if an
appellant failed to appear for the aforementioned conferences or otherwise follow
her orders, she might issue sanctions pursuant to 5 C.F.R. § 1201.43, which could
include dismissing the appeal for failure to prosecute. CAF, Tab 12 at 4. The
record reflects that the appellant did not participate in the status conference or the
prehearing conference. See CAF, Tabs 15, 17. The administrative judge’s
June 5, 2014 order and summary of prehearing conference included an order for
appellants who had not requested a hearing, instructing them to submit their
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written submissions in support of their appeals by June 27, 2014. CAF, Tab 17 at
5. The appellant did not file anything by that date. On July 1, 2014, the
administrative judge issued a show cause order directed at the appellants in the
consolidated appeal who had not participated in conference calls and the hearing
and had not filed any submissions beyond their initial appeals. CAF, Tab 28.
She ordered those appellants to show cause why she should not dismiss their
appeals for failure to prosecute. Id. The appellant did not respond to the show
cause order by the July 8, 2014 time limit. See id.
¶4 On July 10, 2014, the administrative judge issued an initial decision,
dismissing the appellant’s appeal with prejudice for failure to prosecute. IAF,
Tab 5, Initial Decision (ID). In particular, the administrative judge found that the
appellant failed to exercise basic due diligence in prosecuting her appeal because
she failed to appear for the scheduled status conference call, to submit a close of
record submission or a response to the agency’s close of record submission, or to
respond to the show cause order on the failure to prosecute issue. ID at 2-3.
¶5 The appellant has filed a petition for review, which the agency has
opposed. Petition for Review (PFR) File, Tabs 1, 3. In her petition for review,
the appellant does not provide any explanation for her failure to participate in the
status conference call, submit a close of record submission, or respond to the
show cause order. PFR File, Tab 1. Rather, she briefly states the basis for her
challenge to the agency’s decision to impose the furlough. Id. at 4.
ANALYSIS
¶6 The sanction of dismissal with prejudice may be imposed if a party fails to
prosecute or defend an appeal. Davis v. Department of Commerce, 120 M.S.P.R.
34, ¶ 17 (2013); see 5 C.F.R. § 1201.43(b). Such a sanction should be imposed
only when: (1) a party has failed to exercise basic due diligence in complying
with Board orders; or (2) a party has exhibited negligence or bad faith in its
efforts to comply. Davis, 120 M.S.P.R. 34, ¶ 18 (citing Williams v. U.S. Postal
4
Service, 116 M.S.P.R. 377, ¶ 7 (2011)). Absent an abuse of discretion, the Board
will not reverse an administrative judge’s determination regarding sanctions.
Davis, 120 M.S.P.R. 34, ¶ 18.
¶7 We find that the administrative judge did not abuse her discretion in
imposing the sanction of dismissal with prejudice. The record reflects that the
appellant failed to appear for the scheduled status conference and prehearing
conference, failed to submit a close of record submission, and failed to respond to
the administrative judge’s show cause order. See CAF, Tabs 15, 17. Indeed,
there is no evidence that the appellant took any steps to pursue her appeal until
she filed her petition for review. The record also reflects that the appellant was
warned that her failure to participate in the appeal could result in the dismissal of
her appeal with prejudice. See CAF, Tabs 12, 28. The appellant has not
attempted to explain why she did not respond to the administrative judge or
participate in the proceedings. Her brief argument on review regarding the merits
of the furlough is not determinative of the propriety of the dismissal for failure to
prosecute. See Bennett v. Department of the Navy, 1 M.S.P.R. 683, 688 (1980).
Based on the foregoing circumstances, we agree with the administrative judge’s
finding that the appellant failed to exercise due diligence in prosecuting her
appeal, and we affirm the dismissal with prejudice for failure to prosecute. See,
e.g., Williams, 116 M.S.P.R. 377, ¶¶ 2-4, 9-12 (affirming the administrative
judge’s decision to dismiss an appeal for failure to prosecute because the
appellant failed to respond to multiple Board orders); Heckman v. Department of
the Interior, 106 M.S.P.R. 210, ¶ 16 (2007) (finding that the administrative judge
did not abuse her discretion by dismissing the appellant’s claims for failure to
prosecute when the appellant did not comply with multiple orders over a period
of nearly 2 ½ months).
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ORDER
¶8 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).
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. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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 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 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.
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If you are interested in securing pro bono representation for your court
appeal, 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 court. The Merit Systems
Protection Board 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.