The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THERESE A. EDWARDS, DOCKET NUMBER
Appellant, CH-0752-13-2933-I-1
v.
DEPARTMENT OF DEFENSE, DATE: June 29, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL *
Therese A. Edwards, Indianapolis, Indiana, pro se.
Benjamin B. Hamlow, Indianapolis, Indiana, 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 her furlough 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
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
¶2 The appellant filed a timely initial appeal of her furlough following the
budget cuts imposed pursuant to the President’s March 1, 2013 sequester order.
Initial Appeal File (IAF), Tab 1. In her initial appeal, the appellant noted that she
would represent herself in the course of her appeal. Id. at 5. The appellant’s
initial appeal was consolidated with several other employees’ appeals, and the
administrative judge issued a furlough procedures order outlining the processes
she would follow in adjudicating the consolidated appeal. See MSPB Docket No.
CH-0752-14-0704-I-1, Consolidated Appeal File, Tab 2. The appellant, however,
did not participate in either of the telephonic status conferences scheduled by the
administrative judge, and the administrative judge thereafter issued the appellant
notice of her intent to dismiss the appeal with prejudice for failure to prosecute if
she also did not participate in the hearing. IAF, Tab 8. The appellant did not
appear for the hearing, and the administrative judge issued an initial decision
dismissing her individual appeal with prejudice based upon both her lack of
diligence in responding to the prehearing orders and her failure to participate in
the status conferences and the hearing. IAF, Tab 10, Initial Decision (ID).
¶3 The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. She asserts that she should have requested the
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assistance of her union in prosecuting her appeal and she states that she
inadvertently signed the designation of representative form reflecting that she
would appear pro se in this matter. Id. at 3. However, she does not dispute that
she received notice of the administrative judge’s orders. See generally id. The
agency has filed a response in opposition to the petition for review. PFR File,
Tab 3.
¶4 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). Such a sanction should only be imposed
when a party: (1) has failed to exercise due diligence in complying with Board
orders; or (2) has exhibited negligence or bad faith in its efforts to comply. Id.;
see Williams v. U.S. Postal Service, 116 M.S.P.R. 377, ¶ 8 (2011). The Board
reviews an administrative judge’s dismissal for failure to prosecute under an
abuse of discretion standard. Leseman, 122 M.S.P.R. 139, ¶ 6.
¶5 We have reviewed the record below and find that the administrative judge
did not abuse her discretion in dismissing the appeal with prejudice for failure to
prosecute. The record reflects that the administrative judge’s orders were sent to
the appellant’s address of record included on the appellant’s initial appeal form,
and she has not argued that she did not receive the orders. See PFR File, Tab 1 at
3; IAF, Tabs 5, 8, 10. The administrative judge, moreover, clearly explained to
the appellant the consequences of failing to participate in the hearing, and she
provided the appellant an additional 5 days to submit evidence and argument why
her appeal should not be dismissed with prejudice in the event that she did not
participate in the hearing. IAF, Tab 8. The appellant did not participate in the
hearing or submit any evidence or argument within the additional 5-day
timeframe set by the administrative judge. Based upon the appellant’s failures to
respond to the administrative judge’s orders and participate in the status
conferences and the hearing, we fully concur with the administrative judge that
the sanction of dismissal with prejudice is appropriate. See
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Leseman, 122 M.S.P.R. 139, ¶ 7 (dismissing the furlough appeal for failure to
prosecute based upon the appellant’s failure to respond to orders or participate in
the hearing). The appellant’s proffered explanation on review that she mistakenly
elected to proceed pro se, moreover, does not explain why she did not respond to
any of the administrative judge’s clear orders or make inquiry into the status of
her appeal prior to the issuance of the initial decision, and it does not provide a
basis for overturning the administrative judge’s dismissal of the appeal with
prejudice. See Williams, 116 M.S.P.R. 377, ¶ 9.
¶6 We agree with the administrative judge that dismissal with prejudice for
failure to prosecute is appropriate under the facts of this case.
Leseman, 122 M.S.P.R. 139, ¶ 7. The administrative judge’s initial decision
dismissing the appeal with prejudice for failure to prosecute is AFFIRMED.
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
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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 appeal to
the 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
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.