presiding official justifiably and properly dismissed an appeal for failure to prosecute based on the appellants’ failure to make any submission in response to two orders directing them to clarify their claims
How later courts described this case
- presiding official justifiably and properly dismissed an appeal for failure to prosecute based on the appellants’ failure to make any submission in response to two orders directing them to clarify their claims
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEAN THOMAS MALONE, 1 DOCKET NUMBER
Appellant, DC-0752-13-1091-I-1
v.
DEPARTMENT OF THE NAVY, DATE: June 8, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Jean Thomas Malone, Fredericksburg, Virginia, pro se.
Timothy R. Zelek, Quantico, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, 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
1
Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation. Marine
Corps-Combat Development Program v. Department of the Navy, MSPB Docket No.
DC-0752-15-0256-I-1.
2
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 29, 2013, the agency proposed to furlough the appellant, a
Supervisory Sea Viking Deputy Director, 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 4 at 14. It does not appear that the appellant responded to the proposal
notice. By written notice dated July 1, 2013, the agency’s deciding official
informed the appellant that he would be furloughed as outlined in the proposal
notice. Id. at 11-12. The record includes evidence reflecting the appellant’s
furlough, effective July 8, 2013, on 6 days during the furlough period. Id. at 5-7,
10.
¶3 The appellant filed a Board appeal challenging the agency’s action, but he
indicated that he did not want a hearing. IAF, Tab 1. In a furlough procedures
order, the administrative judge informed the appellant that his appeal had been
3
consolidated with the appeals of similarly situated employees. Marine
Corps-Combat Development Program v. Department of the Navy, MSPB Docket
No. DC-0752-15-0256-I-1, Consolidated Appeal File (CAF), Tab 1. Among other
things, that order required the appellants to specifically identify the factual bases
for any defenses concerning the furlough. Id. at 6. The appellant did not file any
response to that order.
¶4 On December 22, 2014, the administrative judge ordered any appellant who
intended to raise arguments or affirmative defenses that were not already
identified to file written notice. CAF, Tab 3 at 5. The order stated that the
administrative judge might deem waived any allegations or affirmative defenses
not identified. Id. The appellant did not respond.
¶5 On January 7, 2015, the administrative judge issued an order directing the
parties to participate in a telephonic status conference call on January 29, 2015, at
noon, Eastern Standard Time. 3 CAF, Tab 4. That order stated that failure to
participate in the conference call may lead to dismissal of the appeal for failure to
prosecute or other sanctions. Id. The appellant did not participate in the
conference call. CAF, Tab 7. After the conference call, the administrative judge
ordered the appellants who had failed to participate in the conference call to show
good cause why their appeals should not be dismissed for failure to prosecute
based on their failure to appear at the conference call or to respond to the
December 22, 2014 notice. Id. In response to the show cause order, the appellant
claimed that the time of the status conference had been changed without notice.
IAF, Tab 5. On February 10, 2015, the administrative judge issued an initial
decision dismissing the appeal with prejudice for failure to prosecute based on the
appellant’s failure to show good cause for his not responding to multiple orders or
3
The administrative judge’s January 7, 2015 order included a typographical error
setting the telephonic status conference call for January 29, 2014. It is clear that the
administrative judge intended to schedule the conference call for January 29, 2015.
4
otherwise not participating in the prosecution of his appeal. IAF, Tab 6, Initial
Decision (ID).
¶6 The appellant has filed a petition for review again arguing that he missed
the status conference because he had been informed the conference call would
take place later in the day. Petition for Review (PFR) File, Tab 1. The agency
has filed a response in opposition to the appellant’s petition for review. PFR File,
Tab 3. In its response, the agency asserts that the administrative judge did not
change the time of the status conference and the status conference call scheduled
for later that day was for a different appellant. Id. 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,
122 M.S.P.R. 139, ¶ 6 (2015) (citing 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 order; or (2) a party has exhibited negligence
or bad faith in its efforts to comply. Id. Absent an abuse of discretion, the Board
will not reverse an administrative judge’s determination regarding sanctions. Id.
The Board generally will not dismiss an appeal for failure to prosecute based on a
single instance of failure to comply with a Board order. See Roy v. Department of
the Treasury, 103 M.S.P.R. 638, ¶ 8 (2006).
¶8 We find that the administrative judge did not abuse her discretion in
dismissing the appeal for failure to prosecute. We find no support in the record
for the appellant’s assertion that the administrative judge, without providing him
notice, changed the time of the status conference. Both the administrative judge
and the agency’s representative state that the time of the status conference call
never changed. ID at 2; PFR File, Tab 3 at 4-5. Several of the appellants in the
consolidated appeal attended the status conference. CAF, Tab 7. The petition for
review includes what the appellant proffers as a picture of the administrative
judge’s order scheduling the status conference. PFR File, Tab 1 at 3-4. The
picture does not include the entire order. The time that the status conference was
5
scheduled is not included in the portion of the order the appellant has submitted.
In any event, we have reviewed the record, including the order scheduling the
status conference, and find no evidence that the time of the teleconference
changed, as alleged by the appellant.
¶9 The appellant did not raise arguments contesting the agency’s furlough
decision or raise affirmative defenses, as required by the administrative judge’s
December 18, 2014 furlough procedures order and her December 22, 2014 notice
to the appellants. CAF, Tabs 1, 3. He also failed to participate in the status
conference. His response to the administrative judge’s show cause order did not
present good cause for his failure to participate in the status conference or
respond to the December 22, 2014 notice. See IAF, Tab 5. Based on the
foregoing circumstances, we find no abuse of discretion in the administrative
judge’s imposing sanctions based upon the appellant’s failure to exercise due
diligence in prosecuting his appeal, and we AFFIRM the dismissal, with
prejudice, for failure to prosecute. See Ahlberg v. Department of Health &
Human Services, 804 F.2d 1238, 1242 (Fed. Cir. 1986) (presiding official
justifiably and properly dismissed an appeal for failure to prosecute based on the
appellants’ failure to make any submission in response to two orders directing
them to clarify their claims).
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
6
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 See
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 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 information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
7
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.