The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NAEEM DOGAR, 1 DOCKET NUMBER
Appellant, SF-0752-13-4888-I-1
v.
DEPARTMENT OF THE ARMY, DATE: February 11, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 2
Naeem Dogar, APO, APO/FPO Pacific, pro se.
Donna Wright, Fort Shafter, Hawaii, 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 his furlough appeal with prejudice for failure to prosecute. Generally,
1
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.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 July 24, 2013, the agency issued a Notice of Proposed Furlough
informing the appellant, a Mechanical Engineer, that he 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
March 1, 2013.” Initial Appeal File (IAF), Tab 1 at 8-11. It does not appear that
the appellant responded to the proposal notice. By written notice dated August
19, 2013, the agency’s deciding official informed the appellant that he 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
August 23, 2013, on discontinuous days between August 23, 2013, and September
30, 2013, and not to exceed a maximum of 88 hours during the furlough period.
Id. at 8.
3
¶3 The appellant filed a Board appeal challenging the agency’s action but
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. 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 this order, the administrative judge cautioned that, if an
appellant failed to appear for the aforementioned conferences or otherwise failed
to 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 appear for 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 the appellants who had not requested a hearing, instructing
them to submit their 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. In a
July 1, 2014 order, the administrative judge directed the appellants in the
consolidated appeal who had not participated in any conference call or hearing
and who had not filed any submission to indicate their intent to pursue their
appeal to show cause why their appeals should not be dismissed for failure to
prosecute. CAF, Tab 28. The appellant did not respond to the show cause order
by the July 8, 2014 time frame.
¶4 On July 11, 2014, the administrative judge issued an initial decision,
dismissing the appellant’s appeal with prejudice for failure to prosecute. IAF,
Tab 3, Initial Decision (ID). In particular, the administrative judge found that the
appellant failed to exercise basic due diligence in prosecuting his appeal because
he failed to appear for the scheduled status conference call, failed to submit a
4
close of record submission or a response to the agency’s close of record
submission, and failed to respond to the show cause order. ID at 2-3.
¶5 The appellant has filed a petition for review, which the agency opposes.
Petition for Review (PFR) File, Tabs 1, 3. On review, the appellant asserts that
he was “just pcs’d” 3 and is “in the process of getting things in order at the new
location.” PFR File, Tab 1 at 4. He also appears to challenge the agency’s
decision to impose the furlough. See id.
¶6 Because the appellant’s petition for review offered no additional details
regarding the nature and timing of his permanent change of station, nor did it
explain how the permanent change of station rendered him unable to prosecute his
appeal and/or to comply with any Board orders, the Board, on January 16, 2015,
issued an order that requested such information from him. See PFR File, Tab 4.
The appellant did not respond by the deadline imposed in that order.
¶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 (citing Davis v. Department of
Commerce, 120 M.S.P.R. 34, ¶ 18 (2013)). Absent an abuse of discretion, the
Board will not reverse an administrative judge’s determination regarding
sanctions. Leseman, 2015 MSPB 5, ¶ 6; 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 was warned that her failure to participate in the
appeal could result in the dismissal of her appeal with prejudice. See
3
We understand “pcs’d” to mean that the appellant had a permanent change of station.
5
Leseman, 2015 MSPB 5, ¶ 7. The Board found that Ms. Leseman failed to
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 very similar to the
circumstances in Leseman. Because there is no evidence that the appellant took
any steps to pursue his appeal until he filed his petition for review, and he was
warned that his failure to participate in the appeal could result in the dismissal of
his appeal with prejudice, we find that the appellant failed to exercise due
diligence in prosecuting his appeal. We therefore affirm the administrative
judge’s decision to dismiss the appeal with prejudice for failure to prosecute. See
Leseman, 2015 MSPB 5, ¶ 7. The appellant’s single assertion on review, that he
had a permanent change of station, without more, does not persuade us that the
administrative judge erred below.
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
6
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
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.