The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL Y. FEREN, DOCKET NUMBER
Appellant, PH-0752-15-0548-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: June 17, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Michael Y. Feren, Brooklyn, New York, pro se.
Heather A. Southwell, Esquire, and Navid Mehrjou, New York, New York,
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 his involuntary resignation appeal 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
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative 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. 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, 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).
BACKGROUND
¶2 On September 29, 2015, the appellant filed a Board appeal challenging his
alleged involuntary resignation, effective September 26, 2013. Initial Appeal File
(IAF), Tab 1 at 3. That same day, the administrative judge issued an
acknowledgement order requiring the appellant to file evidence and argument
establishing Board jurisdiction over his appeal within 15 days. IAF, Tab 2. The
administrative judge also issued a separate timeliness order requiring the
appellant to file within 10 days evidence establishing either that his appeal was
timely filed or that good cause existed for his untimely filing. IAF, Tab 3. The
appellant did not respond to either order, but did file an August 2, 2013 document
reflecting a recommendation that he be removed from service as well as a
one-page pleading requesting a hearing. IAF, Tabs 4, 6. The agency filed a
motion to dismiss asserting that the appellant’s appeal was untimely filed and
also that he had waived his right to file a Board appeal pursuant to a settlement
agreement under which he agreed to resign in lieu of being removed. IAF, Tab 7
at 5-8.
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¶3 On October 22, 2015, the administrative judge issued a second timeliness
order and a second jurisdictional order, both of which afforded the appellant until
November 5, 2015, to respond. IAF, Tabs 9-10. In both orders, the
administrative judge warned the appellant that repeated failure to comply with
Board orders might result in dismissal for failure to prosecute. Id. The appellant
did not respond to either order. On December 17, 2015, the administrative judge
dismissed the appeal for failure to prosecute, finding that the appellant failed to
exercise basic due diligence by his repeated failure to respond to Board orders.
IAF, Tab 13, Initial Decision (ID) at 2.
¶4 The appellant has filed a petition for review in which he submits his
responses to the agency’s requests for interrogatories and asserts that he was not
able to timely respond due to a family hardship. Petition for Review (PFR) File,
Tab 1 at 2. The agency has opposed the appellant’s petition. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶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
complying with Board orders, or has exhibited negligence or bad faith in its
efforts to comply. Leseman, 122 M.S.P.R. 139, ¶ 6. 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 On review, the appellant does not contend that he did not receive the
administrative judge’s orders. To the extent he asserts that he was unable to
respond to the orders due to a family hardship, he has not adequately explained
how or why this hardship prevented him from responding. PFR File, Tab 1 at 2.
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Nor has he explained why he failed to request an extension of time to respond.
Thus, the appellant’s argument on review does not demonstrate that he exercised
due diligence in the proceedings below. Therefore, we find no abuse of
discretion in the administrative judge’s decision to impose sanctions under
5 C.F.R. § 1201.43(b). See Williams, 116 M.S.P.R. 377, ¶¶ 9-12 (finding that
dismissal for failure to prosecute was appropriate where the appellant failed to
respond to multiple Board orders). Accordingly, we find that the appellant has
shown no basis upon which to disturb the initial decision dismissing his appeal
for failure to prosecute.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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.
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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 U.S. 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.