The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2016 MSPB 35
Docket Nos. AT-0752-15-0199-I-1
AT-0353-14-0838-B-1
Gregory Turner,
Appellant,
v.
United States Postal Service,
Agency.
October 4, 2016
Gregory Turner, Memphis, Tennessee, pro se.
Cynthia R. Allen, Memphis, Tennessee, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant petitions for review of two initial decisions that dismissed
his appeals for failure to prosecute. For the reasons set forth below, we JOIN the
appeals under 5 C.F.R. § 1201.36(b) because doing so will expedite processing
without adversely affecting the interests of the parties, DENY the petitions for
review, and AFFIRM the initial decisions.
2
BACKGROUND
¶2 The history of the appellant’s litigation with the agency is somewhat
involved, but the essential facts for the two appeals now before us are set
forth below.
MSPB Docket No. AT-0353-14-0838-B-1
¶3 In denying the appellant’s petition for enforcement of a previous final
Board order, the administrative judge docketed a new appeal pertaining to the
agency’s alleged denial of the appellant’s restoration rights. 1 MSPB Docket
No. AT-0353-10-0960-C-1, Initial Decision (July 25, 2014). After affording the
parties the opportunity to file evidence and argument, the administrative judge
then dismissed the restoration appeal for lack of jurisdiction. MSPB Docket
No. AT-0353-14-0838-I-1, Initial Decision (Feb. 2, 2015). On petition for review
of the initial decision, the Board found that the appellant had made a nonfrivolous
allegation of Board jurisdiction and remanded the appeal for the administrative
judge to make findings regarding the circumstances surrounding the reduction in
the appellant’s working hours in late March and early April 2013. MSPB Docket
No. AT-0353-14-0838-I-1, Remand Order (Sept. 28, 2015).
¶4 On remand, in November and December 2015, the appellant filed two
pleadings containing the same change of address. MSPB Docket No. AT-0353-
14-0838-B-1, Remand File (RF), Tabs 3-4. In a February 2, 2016 order, the
administrative judge scheduled a status conference with the parties for 10:00 a.m.
on February 11, 2016. RF, Tab 7 at 1. The administrative judge noted, among
other things, that the agency had requested a release from the appellant to obtain
his workers’ compensation records from the Department of Labor. Id. The order
1
The appellant initially filed his claim as a petition for enforcement of a March 31,
2011 Final Order in MSPB Docket No. AT-0353-10-0960-I-1. The administrative judge
denied that petition. MSPB Docket No. AT-0353-10-0960-C-1, Initial Decision
(July 25, 2014).
3
was served on the appellant at his address of record provided in the November
and December submissions. Id. at 2.
¶5 On February 17, 2016, the administrative judge issued an order stating that
the appellant had not appeared at the status conference. RF, Tab 9 at 1. The
administrative judge noted that the agency had appeared at the status conference
and that the agency representative informed her that the appellant had not
responded to the agency’s attempts to obtain his authorization for the Department
of Labor to release his workers’ compensation records. Id. The administrative
judge stated that the records “are central to the adjudication of the appellant's
pending appeals.” Id. The administrative judge ordered the appellant to send the
agency the authorization by February 26, 2016. Id. at 2. She also informed the
appellant that his continued failure to comply with Board orders might result in
sanctions, including dismissing the appeal for failure to prosecute. Id. The
February 17, 2016 order was served on the appellant at his address of record. Id.
at 3.
¶6 On March 11, 2016, the administrative judge issued another order noting
that the appellant had not complied with her February 17, 2016 order to provide
the agency with the requested authorization and that he had not addressed his
failure to attend the February 11, 2016 status conference. RF, Tab 11 at 1. She
again ordered the appellant to send the agency the authorization, affording him
until March 21, 2016, to comply. Id. at 2. She also ordered the appellant to
update his contact information in the record, including a valid telephone number.
Id. She reiterated that his continued failure to comply with Board orders might
result in sanctions, including dismissing the appeal for failure to prosecute. Id.
at 1-2. Like the two previous orders, the March 11, 2016 order was served on the
appellant at his address of record. Id. at 3.
¶7 On April 8, 2016, after not hearing from the appellant, the administrative
judge ordered the appellant for a third time to send the agency the requested
authorization, affording him until April 19, 2016, to comply. RF, Tab 13 at 2.
4
She again put the appellant on notice that his continued failure to comply with
Board orders might result in sanctions, including dismissing the appeal for failure
to prosecute. Id. at 1-2. The April 8, 2016 order was served on the appellant at
his address of record. Id. at 3. The appellant did not respond to this, or to any of
the administrative judge’s other orders.
¶8 On May 24, 2016, the administrative judge issued a remand initial decision
dismissing the appeal for failure to prosecute. RF, Tab 16, Remand Initial
Decision (RID) at 3. She noted therein that the appellant had registered as an
e-filer on April 26, 2016, but that he had failed to comply with her prior orders
and failed to provide a response addressing his failure to comply. RID at 2‑3.
MSPB Docket No. AT-0752-15-0199-I-1
¶9 On December 9, 2014, the appellant filed a new appeal alleging that the
agency had failed to properly restore him to duty when, on December 6, 2014, his
supervisor had ordered him not to return to work. MSPB Docket No. AT-0752-
15-0199-I-1, Initial Appeal File (IAF), Tab 1 at 3, 5. In November and
December 2015, the appellant filed two pleadings in this appeal containing the
same change of address. IAF, Tabs 20-21. The new address provided by the
appellant was the same as the one he provided in the remand appeal. Compare
RF, Tabs 3-4, with IAF, Tabs 20-21.
¶10 On February 2, 2016, the administrative judge issued an order canceling
the hearing, previously scheduled for February 23, 2016, and scheduling a status
conference for 10:00 a.m. on February 11, 2016. IAF, Tab 24 at 1. The
administrative judge noted, among other things, that the agency had requested a
release from the appellant to obtain his workers’ compensation records from the
Department of Labor. Id. The order was served on the appellant at his address of
record. Id. at 2.
¶11 As she did in the remanded appeal, on February 17, 2016, the
administrative judge issued an order stating that the appellant had not appeared at
5
the status conference. IAF, Tab 25 at 1. The order was essentially identical to
the February 17, 2016 order in the remand appeal and, like that order, was served
on the appellant at his address of record. Compare IAF, Tab 25, with RF, Tab 9.
Thereafter, the administrative judge issued orders on March 11, 2016, and
April 8, 2016, that were essentially identical to the orders issued in the remand
appeal on those dates. Compare IAF, Tabs 27, 29, with RF, Tabs 11, 13. Like
the orders in the remand appeal, those orders notified the appellant of the possible
consequences for failing to comply with the administrative judge’s order and
were served on the appellant at his address of record. Compare IAF, Tabs 27, 29,
with RF, Tabs 11, 13.
¶12 On May 24, 2016, the administrative judge issued an initial decision
dismissing the appeal for failure to prosecute. IAF, Tab 32, Initial Decision (ID)
at 3. As in the remand initial decision, she noted that the appellant had registered
as an e-filer on April 26, 2016, but that he had failed to comply with her prior
orders and failed to provide a response addressing his failure to comply. ID
at 2-3.
¶13 In identical petitions for review regarding the two May 24, 2016 initial
decisions, the appellant contends that the sanction of dismissal of his appeals for
failure to prosecute was not warranted. MSPB Docket No. AT-353-14-0838-B-1,
Petition for Review (B-1 PFR) File, Tab 1 at 4; MSPB Docket No. AT-0752-15-
0199-I-1, Petition for Review (I-1 PFR) File, Tab 1 at 4. He states that he did not
respond to the administrative judge’s orders because of a lack of access to a
telephone or computer due to financial difficulties. 2 B‑1 PFR File, Tab 1 at 4;
I-1 PFR File, Tab 1 at 4.
2
For the first time on review, the appellant submits a portion of the Office of Workers’
Compensation Programs Field Nurse Handbook. B-1 PFR File, Tab 1 at 6-9; I-1 PFR
File, Tab 1 at 6-9. Because he has not shown that this document was unavailable prior
to the close of the record below, despite his due diligence, the Board need not consider
6
ANALYSIS
¶14 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); Chandler v. Department of the Navy, 87 M.S.P.R.
369, ¶ 6 (2000); 5 C.F.R. § 1201.43(b); see Ahlberg v. Department of Health &
Human Services, 804 F.2d 1238, 1242 (Fed. Cir. 1986). The Board has held that
the imposition of such a severe sanction must be used only when necessary to
serve the ends of justice, as when a party has failed to exercise basic due
diligence in complying with an order, or has exhibited negligence or bad faith in
his efforts to comply. Chandler, 87 M.S.P.R. 369, ¶ 6; see Leseman,
122 M.S.P.R. 139, ¶ 6. The severe sanction of dismissal with prejudice for
failure to prosecute an appeal should not be imposed when a pro se appellant has
made incomplete responses to the Board’s orders but has not exhibited bad faith
or evidenced any intent to abandon his appeal, and appears to be confused by
Board procedures. Chandler, 87 M.S.P.R. 369, ¶ 6. Further, failure to obey a
single order does not ordinarily justify dismissal for failure to prosecute.
Heckman v. Department of the Interior, 106 M.S.P.R. 210, ¶ 16 (2007); Chandler,
87 M.S.P.R. 369, ¶ 6. Nevertheless, absent a showing of abuse of discretion, the
Board will not reverse an administrative judge’s determination regarding the
imposition of sanctions, including the sanction of dismissal with prejudice. See
Holland v. Department of Labor, 108 M.S.P.R. 599, ¶ 9 (2008); Heckman,
106 M.S.P.R. 210, ¶¶ 15-16; Gordon v. Department of the Air Force,
104 M.S.P.R. 358, ¶ 4 (2006).
it on review. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). In any
event, this evidence is immaterial to the issue of the appellant’s failure to prosecute his
appeal and does not warrant a different outcome than that of the initial decision. See
Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).
7
¶15 When an appellant’s repeated failure to respond to multiple Board orders
reflects a failure to exercise basic due diligence, the imposition of the sanction of
dismissal for failure to prosecute has been found appropriate. Williams v. U.S.
Postal Service, 116 M.S.P.R. 377, ¶ 9 (2011); Heckman, 106 M.S.P.R. 210, ¶ 16;
Murdock v. Government Printing Office, 38 M.S.P.R. 297, 299 (1988); see
Ahlberg, 804 F.2d at 1242-43. For example, in Murdock, the sanction of
dismissal of the appeal with prejudice was appropriate because the appellant
completely failed to respond to or comply with any of the Board’s orders.
Williams, 116 M.S.P.R. 377, ¶ 9 (citing Murdock, 38 M.S.P.R. at 298‑99). We
analogize the facts of the appellant’s appeals here to those in cases like Murdock
where the appellant failed to exercise basic due diligence. See id.
¶16 We find that the administrative judge did not abuse her discretion in
imposing the sanction of dismissal with prejudice in this case. The record
reflects that the appellant failed to appear for the scheduled status conferences on
February 11, 2016, in each of these appeals and failed to respond to the
administrative judge’s orders to execute a release for his workers’ compensation
records. RF, Tabs 9, 11, 13; IAF, Tabs 25, 27, 29. Indeed, with the exception of
his registering as an e-filer in each appeal on April 26, 2016, there is no evidence
that the appellant took any steps to pursue his appeals from the time that he failed
to appear for the status conferences until he filed his petitions for review. The
record also reflects that the appellant was warned repeatedly that his failure to
participate in the appeal could result in the dismissal of the appeal for failure to
prosecute. RF, Tabs 9, 11, 13; IAF, Tabs 25, 27, 29. While we appreciate the
appellant’s apparent financial difficulties, those difficulties do not explain why
he did not use other inexpensive means, such as mailing a paper response to the
administrative judge. Cf. Johnson v. Department of Veterans Affairs,
64 M.S.P.R. 257, 259 (1994) (finding that financial difficulties do not constitute
good cause for a waiver of a filing deadline), aff’d, 56 F.3d 81 (Fed. Cir. 1995).
Based on the foregoing circumstances, we agree with the administrative judge’s
8
finding that the appellant failed to exercise due diligence in prosecuting his
appeal, and we affirm the dismissal with prejudice for failure to prosecute.
ORDER
¶17 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).
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.
Additional information is available at the court’s website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
9
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:
______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.