The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JERIC ALLEN, DOCKET NUMBER
Appellant, DC-0714-21-0128-I-1
v.
DEPARTMENT OF VETERANS DATE: May 8, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Jeric Allen , Durham, North Carolina, pro se.
Winnie Jordan Reeves , Winston-Salem, North Carolina, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for failure to prosecute. For the reasons discussed
below, we GRANT the appellant’s petition for review, VACATE the initial
decision, and REMAND the case to the Washington Regional Office for further
adjudication in accordance with this Remand Order.
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
The appellant was removed from the position of Food Service Worker,
WG-3, effective November 13, 2019, under the authority of 38 U.S.C. § 714, the
Department of Veterans Affairs Accountability and Whistleblower Protection Act
of 2017, based on three charges. He filed a formal equal employment opportunity
(EEO) complaint alleging that his removal was in retaliation for his prior EEO
activity, and the agency issued a final agency decision finding that the appellant
had failed to prove his claim. Initial Appeal File (IAF), Tab 7-15. The appellant
then filed this mixed case appeal. IAF, Tab 1.
On January 28, 2021, the parties held a telephonic status conference and
agreed upon extending the discovery deadlines. IAF, Tab 12 at 3. The
administrative judge set a deadline for prehearing submissions of April 5, 2021,
and scheduled a prehearing conference for April 9, 2021. 2 Id. The appellant
additionally raised an affirmative defense of disability discrimination, and the
administrative judge ordered him to submit supporting evidence by March 26,
2021. IAF, Tab 13 at 8. The appellant did not respond to the affirmative defense
order.
On March 29, 2021, the administrative judge scheduled a hearing date and
ordered the parties to participate in a test of the video conference system. IAF,
Tab 15 at 1, 3. 3 The parties were ordered to contact the administrative judge’s
paralegal to schedule a time to conduct the test at least 1 week before the
scheduled hearing on April 13, 2021. Id. at 3. The appellant failed to contact the
paralegal or respond to her phone calls and emails regarding the test conference.
IAF, Tab 17 at 2. Moreover, the appellant failed to submit prehearing
submissions, which were due by April 5, or appear for the prehearing conference
2
The administrative judge originally scheduled the prehearing conference for April 7
but subsequently rescheduled it for April 9, 2021. IAF, Tab 14 at 1.
3
Although the deadline to respond to the affirmative defense order had passed, the
administrative judge made no mention of the missed deadline in this order. IAF, Tab 15
at 1-3.
3
scheduled for April 9, 2021. Id. at 1-2. As such, the administrative judge
ordered the appellant to show cause as to why the appeal should not be dismissed
for failure to prosecute. Id. at 1-3. The appellant similarly failed to respond to
this order.
The administrative judge subsequently issued an initial decision dismissing
the appeal for failure to prosecute. IAF, Tab 18, Initial Decision (ID) at 1.
Specifically, the administrative judge found that the appellant failed to file
prehearing submissions, participate in the prehearing conference, respond to the
affirmative defense order, participate in the video conference testing, or respond
to the final show cause order regarding sanctions. ID at 3-4.
The appellant has filed a petition for review alleging that he was
hospitalized and incapacitated from April 4 through April 12, 2021. Petition for
Review (PFR) File, Tab 1 at 4, 6. He provided medical documentation supporting
his hospitalization. PFR File, Tab 1 at 6, Tab 5 at 5. The agency has responded
to his petition for review. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
Dismissal for failure to prosecute is an extreme sanction that may be
imposed if a party fails to prosecute or defend an appeal. Chandler v.
Department of the Navy, 87 M.S.P.R. 369, ¶ 6 (2000). The imposition of such a
severe sanction, however, must be used only when necessary to serve the ends of
justice, such 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. Id. 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 confused by Board
procedures. Id. Furthermore, the failure to obey a single order does not
ordinarily justify dismissal for failure to prosecute. Id.
4
The administrative judge found that the appellant failed to file prehearing
submissions, participate in the prehearing conference, respond to the affirmative
defense order, participate in the video conference testing, or respond to the final
show cause order regarding sanctions. ID at 3-4. However, the appellant’s
evidence demonstrates that he was unexpectedly hospitalized from April 4-12,
2021, which period included the deadline for the prehearing submissions and the
date of the prehearing conference. IAF, Tab 12 at 3; PFR File, Tab 1 at 6. The
appellant’s hospitalization began prior to and continued through the deadline for
contacting the administrative judge’s paralegal to test the video conference
system. IAF, Tab 15 at 3; PFR File, Tab 1 at 6. Although the paralegal
attempted to contact the appellant via phone and email, it is unclear when these
attempted contacts occurred or whether the appellant was already hospitalized at
that time. IAF, Tab 17 at 2. Thus, we find that the appellant was hospitalized on
the occasions he failed to prosecute his appeal, except regarding his failure to
respond to the affirmative defense order and the final order to show cause. IAF,
Tab 13 at 8, Tab 17 at 2; PFR File, Tab 1 at 6.
Under the circumstances of this appeal, we find that the sanction of
dismissal for failure to prosecute is not warranted. The Board has found that an
appellant’s medical treatment can represent good cause for a failure to comply
with an administrative judge’s orders. Monley v. U.S. Postal Service,
74 M.S.P.R. 27, 29-30 (1997); see also Reynolds v. Department of
Transportation, 17 M.S.P.R. 564, 566 (1983) (reversing a dismissal for failure to
prosecute when the appellant missed the hearing due to medical reasons).
Moreover, the Board has found dismissal for failure to prosecute to be
inappropriate when, although the appellant failed to respond to some orders and
missed a prehearing conference, he nonetheless participated in an earlier status
conference and responded to other orders, and his conduct, although unresponsive
and incomplete, did not exhibit bad faith or evidence an intent to abandon the
appeal. Wiggins v. Department of the Air Force, 113 M.S.P.R. 443, ¶¶ 12-14
5
(2010). The appellant here responded to a timeliness show cause order,
participated in an earlier status conference, and provided responses to the
agency’s discovery requests. IAF, Tab 7, Tab 12 at 1, Tab 16 at 12-23. We
therefore find that the appellant’s unresponsiveness to the two orders, in light of
his prior participation in the appeal and subsequent hospitalization, does not
evidence bad faith or an intent to abandon his appeal. See Wiggins, 113 M.S.P.R.
443, ¶¶ 12-14.
Further bolstering this finding is the appellant’s medical evidence, which
suggests that his hospitalization stemmed from an altered mental status. PFR
File, Tab 5 at 5. 4 Moreover, the appellant’s hospital discharge summary
recommends multiple follow-up visits for continued treatment. PFR File, Tab 1
at 6. As such, the record suggests that the appellant may have suffered from
various health effects leading up to and following his hospitalization. Given that
the deadline to respond to the affirmative defense order fell just 9 days before his
hospitalization, and the deadline to respond to the final show cause order was
1 week after his discharge, we find that the appellant’s failure to respond to these
two orders did not represent an intent to abandon his appeal. See Wiggins,
113 M.S.P.R. 443, ¶¶ 13-14 (reversing a dismissal for failure to prosecute when
the appellant failed to obey two orders from the administrative judge).
In remanding this appeal, we note that appellants are expected to comply
with all orders issued by the Board’s administrative judges. Id., ¶ 15.
Accordingly, on remand, the appellant must be more diligent in complying with
the administrative judge’s orders and in pursuing his appeal to avoid the
imposition of sanctions necessary to serve the ends of justice. Id. The
4
These documents, which predate the issuance of the initial decision, were submitted as
part of a reply to the agency’s response to the petition for review. As such, they were
untimely by 2 days. PFR File, Tab 2 at 1, Tabs 3, 7; see 5 C.F.R. §§ 1201.23,
1201.114(e). The agency has not objected to these documents or claimed any prejudice.
In these circumstances, given what the records indicate regarding the appellant’s
medical conditions and mental state, we exercise our discretion to consider them. See
5 C.F.R. § 1201.114(g).
6
administrative judge on remand should provide the appellant with an opportunity
to explain his failure to respond to the affirmative defense order, which was due
prior to the appellant’s hospitalization. Should the appellant fail to justify this
specific failure to respond, the administrative judge may impose various
sanctions, if any, as appropriate. See Simon v. Department of Commerce,
111 M.S.P.R. 381, ¶ 14 (2009) (discussing various sanctions appropriate for an
appellant’s failure to respond to an affirmative defense order); 5 C.F.R.
§ 1201.43.
Finally, the appellant has filed a motion to stay the proceedings until he has
recovered. PFR File, Tab 5 at 1. Given the passage of time and the ill-defined
recovery period, and the fact that we are remanding this appeal, we decline to rule
on this motion. On remand, the administrative judge should gather more
information as necessary and rule on the motion.
ORDER
For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.