The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
BRENT BUNCH, 1 DOCKET NUMBER
Appellant, DC-0752-13-1627-I-1
v.
DEPARTMENT OF THE NAVY, DATE: February 4, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 2
Brent Bunch, Suffolk, Virginia, pro se.
Brenda Vosguanian, Esquire, and Jacquelyn Wright, Esquire, Port
Hueneme, California, for the agency.
Mary Sullo, Norfolk, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
1
Pursuant to 5 C.F.R. § 1201.36(a), th is appeal was part of a consolidation. NAVFAC
Mid-Atlantic II v. Department of the Navy, MSPB Docket No. DC-0752-14-0793-
I-1 .
2
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal with prejudice 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 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).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 On May 30, 2013, the agency proposed to furlough the appellant, an
Environmental Engineer, 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 March 1, 2013.” Initial Appeal File (IAF), Tab 1 at 7-10. It does
not appear that the appellant responded to the proposal notice. By written notice
dated June 28, 2013, the agency’s deciding official informed the appellant that he
would be furloughed as outlined in the proposal notice. Id. at 11-13. The record
includes a Standard Form 50 reflecting the appellant’s furlough, effective July 8,
3
2013, on discontinuous days between July 8, 2013, and September 27, 2013, and
not to exceed a maximum of 88 hours during the furlough period. Id. at 7.
¶3 The appellant filed a Board appeal challenging the agency’s action, but he
indicated that he did not want a hearing. See IAF, Tab 1 at 2. In a furlough
procedures order, the administrative judge informed the appellant that his appeal
had been consolidated with the appeals of similarly-situated
employees. NAVFAC Mid-Atlantic II v. Department of the Navy, MSPB Docket
No. DC-0752-14-0793-I-1, Consolidated Appeal File (CAF), Tab 1.
¶4 On September 4, 2014, the administrative judge issued an order directing
the appellants to advise him, by September 10, 2014, if they wished to continue
pursuing the furlough appeal. CAF, Tab 10. The appellant did not respond to
this order. Also on September 4, 2014, the administrative judge issued an order
closing the record, informing the parties that a telephonic close of record
conference would occur on September 11, 2014, and that the record would close
on September 18, 2014. CAF, Tab 11. On September 12, 2014, the
administrative judge issued an order to show cause. CAF, Tab 12. In it, he noted
that none of the appellants appeared for the telephonic close of record conference
or otherwise informed him of their unavailability. Id. The administrative judge
therefore ordered the appellants to submit by September 16, 2014, evidence which
demonstrates good cause for their failure to participate in the scheduled
conference call. Id. The administrative judge further advised that if any
appellants failed to respond to the order, he would dismiss the appeal for failure
to prosecute. See id. (citing 5 C.F.R. § 1201.43(b)). The appellant did not
respond to the order to show cause.
¶5 On September 18, 2014, the administrative judge issued an initial decision,
dismissing the consolidated appeal with prejudice for failure to prosecute. CAF,
Tab 13, Initial Decision (ID). Finding that the appellants “failed to respond to at
least three Board orders,” the administrative judge concluded that these appellants
failed to exercise basic due diligence in prosecuting their appeals. ID.
4
¶6 The appellant filed a petition for review, which the agency opposes.
Petition for Review (PFR) File, Tabs 1, 4. On review, the appellant asserts that:
(1) he was unable to comply with the September 4, 2014 order because he was out
of the country on annual leave from August 30, 2014, to September 7, 2014, and
unable to access his emails; (2) he was unable to attend the September 11, 2014
conference call because he was out of the office from September 8, 2014, through
September 12, 2014, for a work-related inspection; and (3) he was unable to
respond to the order to show cause by the September 18, 2014 deadline because
he was out of the office for training and field visits from September 15, 2014,
through September 19, 2014, and he was out on sick leave on September 18,
2014. PFR File, Tab 1 at 4. The agency counters that the appellant was
responsible for monitoring the progress of his appeal and ensuring that he
responded to and complied with Board orders and he offers “no legitimate
excuse” for failing to comply with the administrative judge’s orders. PFR File,
Tab 4 at 5.
¶7 The sanction of dismissal with prejudice may be imposed if a party fails to
prosecute or defend an appeal. Leseman v. Department of the Army, 2015 MSPB
5, ¶ 6; 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. Leseman, 2015 MSPB 5, ¶ 6. Absent an abuse of discretion, the Board
will not reverse an administrative judge’s determination regarding sanctions. Id.;
Davis, 120 M.S.P.R. 34, ¶ 18.
¶8 In Leseman, an appellant in another consolidated furlough appeal 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, and she had been warned that her failure to participate
in the appeal could result in the dismissal of her appeal with prejudice. See
Leseman, 2015 MSPB 5, ¶ 7. The Board found that Ms. Leseman failed to
5
exercise due diligence in prosecuting her appeal because she failed to take any
steps to pursue her appeal until she filed her petition for review and it affirmed
the administrative judge’s decision to dismiss the furlough appeal for failure to
prosecute. Id.
¶9 The circumstances of the instant appeal are similar to the circumstances in
Leseman, and a similar outcome is warranted. We have considered the
appellant’s assertions on review regarding his inability to comply with the
administrative judge’s orders, but we find them unavailing. The Board has held
that an appellant who is an e-filer, as is the appellant in this matter, see IAF, Tab
1 at 2, is required to monitor his case activity at the Repository at e-Appeal
Online. Rivera v. Social Security Administration, 111 M.S.P.R. 581, ¶ 5 (2009);
see 5 C.F.R. § 1201.14(j)(3). It is evident that the appellant failed to fulfill his
obligation in this regard.
¶10 Although unclear, the appellant also may be asserting on review that he did
not receive one or more of the administrative judge’s orders, but we are not
persuaded that this alternative assertion warrants a different outcome. The
regulation at 5 C.F.R. § 1201.14(m)(2) provides that Board documents served
electronically on registered e-filers are deemed received on the date of electronic
submission, and the Board has held that, when a regulation “deems” something to
have been done, the event is considered to have occurred whether or not it
actually did. Rivera, 111 M.S.P.R. 581, ¶ 5 (citing Lima v. Department of the Air
Force, 101 M.S.P.R. 64, ¶ 5 (2006)).
¶11 Because we conclude that the appellant has not demonstrated due diligence
in complying with Board orders, we affirm the administrative judge’s decision to
dismiss the appeal with prejudice for failure to prosecute. See
Leseman, 2015 MSPB 5, ¶ 7.
6
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.
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
7
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.