Opinion

Fredric Washington v. Department of Housing and Urban Development

Court: Merit Systems Protection Board
Filed: Jun 28, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

FREDRIC E. WASHINGTON, DOCKET NUMBER

Appellant, AT-0752-17-0365-I-1

DEPARTMENT OF HOUSING AND DATE: June 28, 2023

URBAN DEVELOPMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Antonio F. Gaines, Atlanta, Georgia, for the appellant.

Jeffrey J. Burns, Esquire, Atlanta, Georgia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

dismissed his removal appeal for failure to prosecute . Generally, we grant

petitions such as this one only in the following circumstances: the initial decision

contains erroneous findings of material fact; the initial decision is based on an

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

erroneous 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 March 27, 2017, the appellant filed a Board appeal challenging his

removal from his GS-13 Management Analyst position. Initial Appeal File (IAF),

Tab 1. On June 6, 2017, the agency filed a motion to compel discovery, alleging

that the appellant had failed to fully respond to its written discovery requests.

IAF, Tab 8 at 13. The appellant filed a response to the motion. IAF, Tab 10. By

order dated July 3, 2017, the administrative judge granted the motion to compel

and ordered the appellant to provide full substantive responses to certain agency

discovery requests by July 19, 2017. IAF, Tab 11 at 2. The administrative judge

warned the appellant that failure to comply with his order could result in the

imposition of sanctions, including dismissal of the appeal. Id. at 3.

¶3 On July 24, 2017, the agency filed a motion to dismiss the appeal, alleging

that the appellant had failed to comply with the administrative judge’s July 3,

2017 Order. IAF, Tab 14. On August 11, 2017, the administrative judge issued a

show cause order directing the appellant to respond to the agency’s motion to

dismiss by August 18, 2017, and to show cause why the appeal should not be

dismissed for failure to prosecute. IAF, Tab 16. In his order, the administrative

judge warned the appellant that failure to comply with his order would result in

sanctions under 5 C.F.R. § 1201.43, up to and including dismissal of the appeal

for failure to prosecute. Id. The appellant did not respond.

¶4 On August 22, 2017, the administrative judge issued an initial decision that

dismissed the appeal for failure to prosecute, finding that the appellant had failed

to exercise basic due diligence in prosecuting his appeal. IAF, Tab 18, Initial

Decision (ID) at 1, 3. The appellant has filed a petition for review, and the

agency has filed a response in opposition to the petition. Petition for Review

(PFR) File, Tabs 1, 3.

ANALYSIS

¶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 asserts that he did not respond to the agency’s

discovery requests because he was unable to obtain legal counsel. PFR File,

Tab 1 at 13. The Board has held, however, that an appellant’s difficulty in

obtaining a representative does not excuse his failure to prosecute his appeal by

not complying with the Board’s orders. Murdock v. Government Printing Office,

38 M.S.P.R. 297, 299 (1988). Moreover, even if difficulty in obtaining a

representative were a valid excuse for the appellant’s failure to respond to the

agency’s discovery requests, as directed by the administrative judge, such an

excuse is inapplicable here because the appellant has been represented by a union

representative throughout these proceedings. IAF, Tab 1 at 3, Tab 19.

¶7 The appellant further argues on review that he responded to the agency’s

motion to dismiss via an email that he sent to the administrative judge and copied

to agency counsel. PFR File, Tab 1 at 13. In support of this argument, the

appellant cites to “Exhibit 3.” Id. The petition for review does not include an

Exhibit 3, however, and the record does not contain any evidence that the

appellant responded to the motion to dismiss.

¶8 Under these circumstances, we find that the appellant has not shown good

cause for his failure to comply with the administrative judge’s orders and that he

failed to exercise 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 when the appellant failed to

respond to multiple Board orders). Accordingly, we affirm the initial decision

dismissing the appeal for failure to prosecute.

NOTICE OF APPEAL RIGHTS 2

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which case s fall within their

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail , the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 3 The court of appeals must receive your

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law b y the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of c ompetent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,

132 Stat. 1510.

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appea ls for

the Federal Circuit, you must submit your petition to the court at the