The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEANNA E. ASH, 1 DOCKET NUMBER
Appellant, PH-0752-13-4234-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: September 11, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Deanna E. Ash, Nassau, Delaware, pro se.
Velma C. Gay, Joint Base Andrews, Maryland, 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 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. Dover AFB
HR2 v. Department of the Air Force, MSPB Docket No. PH-0752-13-5962-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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 28, 2013, the agency proposed to furlough the appellant, a
Secretary, for no more than 11 workdays due to “the extraordinary and serious
budgetary challenges facing the Department of Defense . . . for the remainder of
Fiscal Year . . . 2013, the most serious of which is the sequester that began on
1 March 13.” Initial Appeal File (IAF), Tab 2 at 8, 12-13. It does not appear that
the appellant responded to the proposal notice. Id. at 4. By written notice dated
June 24, 2013, the agency’s deciding official informed the appellant that she
would be furloughed as outlined in the proposal notice. Id. at 9-11. 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. Id.
at 8.
¶3 The appellant filed a Board appeal challenging the agency’s furlough
action, and she requested a hearing. IAF, Tab 1. In a consolidation order, the
administrative judge informed the appellant that her appeal had been consolidated
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with the appeals of similarly situated employees. Dover AFB HR2 v. Department
of the Air Force, MSPB Docket No. PH-0752-13-5962-I-1, Consolidation Appeal
File (CAF), Tab 2. In a hearing scheduling order, the administrative judge
ordered the appellant to file a prehearing submission by March 10, 2015, and to
participate in a prehearing teleconference on March 17, 2015. CAF, Tab 18. The
apellant failed to file a prehearing submission or attend the prehearing
teleconference. IAF, Tab 3. In an order and summary of the prehearing
conference, the administrative judge informed the appellant that “[i]f an appellant
does not attend the hearing on April 2, 2015, then his or her appeal will be
dismissed for having failed to prosecute it unless good cause justifying the
absence is shown.” CAF, Tab 29 at 2. She did not attend the hearing. IAF,
Tab 3. Finally, in a show cause order, the administrative judge ordered the
appellant to file argument and evidence showing good cause for failing to appear
at the hearing. Id. The administrative judge warned the appellant that if she did
not respond to the order, then he may determine that she had abandoned her
appeal and the appeal would be dismissed for lack of prosecution under 5 C.F.R.
§ 1201.43(b). Id. The appellant failed to respond to the show cause order. On
April 28, 2015, the administrative judge issued an initial decision dismissing the
appeal for failure to prosecute. IAF, Tab 4, Initial Decision (ID) at 1, 3.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. Her brief petition for review consists of the following: “I’m not sure
what if anything I am supposed to do. I have only received one e-mail and it said
I had until Jun [sic] 15 to answer. Please let me know what I am supposed to do
because nothing tells me what I need to do.” Id. at 3. The agency has responded
in opposition. PFR File, Tab 4.
¶5 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); 5 C.F.R. § 1201.43(b). Such a sanction should be
imposed only when a party has failed to exercise basic due diligence in
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complying with Board orders, or has exhibited negligence or bad faith in its
efforts to comply. Id. Repeated failure to respond to multiple Board orders can
reflect a failure to exercise basic due diligence. Williams v. U.S. Postal Service,
116 M.S.P.R. 377, ¶ 9 (2011). Absent an abuse of discretion, the Board will not
reverse an administrative judge’s determination regarding sanctions. Leseman,
122 M.S.P.R. 139, ¶ 6.
¶6 In Leseman, the 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, despite being warned that her failure to participate in
the appeal could result in the dismissal of her appeal with prejudice. Id., ¶ 7.
The Board found that the appellant in 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 the Board affirmed the administrative
judge’s decision to dismiss the furlough appeal for failure to prosecute. Id.
¶7 The circumstances of the instant appeal are very similar to those in
Leseman. Because there is no evidence that the appellant took any steps to
pursue her appeal until she filed her petition for review, and she was warned that
her failure to provide a prehearing submission, attend the prehearing conference,
attend the hearing, and respond to the show cause order could result in the
dismissal of her appeal for lack of prosecution, we find that the appellant did not
exercise due diligence in prosecuting her appeal. We therefore affirm the
administrative judge’s decision to dismiss the appeal for failure to prosecute. See
id. The appellant’s single assertion on review, that she is unsure of how to
proceed in her appeal, without more, does not persuade us that the administrative
judge abused his discretion.
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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 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
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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.