The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STANLEY M. ARTIS, DOCKET NUMBER
Appellant, DC-0432-19-0522-I-1
v.
NATIONAL AERONAUTICS AND DATE: May 22, 2024
SPACE ADMINISTRATION,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Pierre L. Ifill , Esquire, Savannah, Georgia, for the appellant.
Shari R. Feinberg , Esquire, Washington, D.C., 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 demotion 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 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Effective November 12, 2017, the agency demoted the appellant from his
GS-15, Supervisory Information Technology Specialist position to a GS-14,
Printing Officer position. Initial Appeal File (IAF), Tab 4 at 37-38, 40. The
appellant, through his attorney representative, filed an appeal of his demotion
with the Board, and he requested a hearing. IAF, Tab 1.
In an Acknowledgment Order, the administrative judge apprised the parties
of the Board’s discovery procedures. IAF, Tab 3 at 3-4. In a later order, the
administrative judge set forth the date by which prehearing submissions were to
be received and the dates on which a prehearing conference and a hearing were to
be held. IAF, Tab 8. The agency moved to postpone such dates due to a
witness’s unavailability to attend the scheduled hearing and the agency’s
anticipation that discovery would not be completed within the expected time
period. IAF, Tab 9. The administrative judge granted the agency’s motion and
rescheduled the hearing for September 13, 2019, and the prehearing conference
for August 29, 2019, and he extended the due date for prehearing submissions to
August 27, 2019. IAF, Tab 10. The administrative judge further informed the
parties that he would be suspending case processing for 30 days beginning on
July 9, 2019, and that case processing would resume on August 8, 2019. Id.
On July 30, 2019, the agency filed a motion to compel the appellant to
submit to a deposition on August 20, 2019, or on five alternative dates in
August 2019. IAF, Tab 11 at 4. The agency included an email dated July 23,
2019, in which the appellant’s representative conveyed to the agency that he
would be taking an extended leave of absence due to his brother’s death and that
the appellant would not be available for a deposition until mid-September 2019.
Id. at 26. In a Preliminary Status Conference Order dated July 30, 2019, the
administrative judge scheduled a status conference for August 2, 2019, to discuss
the appellant’s alleged unavailability until mid-September. IAF, Tab 12. Neither
3
the appellant nor his representative attended the status conference. IAF, Tab 13
at 1.
In an Order and Summary of Telephonic Status Conference, the
administrative judge ordered the appellant’s representative to contact the regional
office by August 9, 2019, to explain his own alleged unavailability and how he
would be able to complete discovery and to be prepared for the September 13,
2019 hearing. Id. After the appellant’s representative failed to contact the
regional office by August 9, 2019, the administrative judge issued an order
directing the appellant to show cause why the appeal should not be dismissed for
failure to prosecute. IAF, Tab 14. The administrative judge warned the appellant
that, if the regional office did not receive his response presenting good cause for
his failure to comply with the Board’s orders and procedure by August 16, 2019,
the hearing would be canceled and the appeal dismissed. Id. at 2. Neither the
appellant nor his representative responded. IAF, Tab 15, Initial Decision (ID)
at 3. Without holding the requested hearing, the administrative judge issued an
initial decision on August 19, 2019, that dismissed the appeal for failure to
prosecute. ID at 1, 4.
The appellant, through his attorney representative, has filed a petition for
review challenging the dismissal of the appeal for failure to prosecute. Petition
for Review (PFR) File, Tab 1 at 1-4. The agency has filed a response in
opposition. PFR File, Tab 3 at 4-5, 13-18.
DISCUSSION OF ARGUMENTS ON REVIEW
The sanction of dismissal with prejudice may be imposed if a party fails to
prosecute or defend an appeal. Williams v. U.S. Postal Service, 116 M.S.P.R.
377, ¶ 7 (2011); 5 C.F.R. § 1201.43(b). Such a severe sanction should be
imposed only if a party has failed to exercise basic due diligence in complying
with the Board’s orders or has exhibited negligence or bad faith in its efforts to
comply. Williams, 116 M.S.P.R. 377, ¶¶ 7-8; see Toombs v. Department of the
4
Army, 69 M.S.P.R. 78, 81 (1995) (observing that dismissal for failure to prosecute
is the most severe sanction available). A party’s repeated failure to respond to
multiple Board orders can reflect a failure to exercise basic due diligence.
Williams, 116 M.S.P.R. 377, ¶ 9. The Board will not reverse an administrative
judge’s determination regarding sanctions absent an abuse of discretion. Id., ¶ 7.
Here, in deciding to dismiss the appeal for failure to prosecute, the
administrative judge found that the appellant failed to participate in the discovery
process in accordance with the Acknowledgment Order, to attend the August 2,
2019 status conference, to contact the Board’s office in accordance with the
Order and Summary of Telephonic Status Conference, and to respond to the Order
to Show Cause. ID at 3-4. The administrative judge further found that the
appellant has demonstrated an intent to abandon his appeal and a willful refusal to
comply with the Board’s orders and processes. Id.
On petition for review, the appellant’s representative argues that he had
been actively engaged in the discovery process until his brother died, after which
he was not mentally or emotionally stable to provide legal counsel or advocate on
the appellant’s behalf. PFR File, Tab 1 at 3. The appellant’s representative
further claims that he could not check his emails due to his mental and emotional
state. Id. at 2. Moreover, he asserts that the agency was aware that he would be
taking a leave of absence due to his brother’s death and that he requested the
agency’s consent to extend all deadlines in this matter. Id. at 2-3.
For the first time on review, the appellant’s representative has submitted a
sworn affidavit in which he contends the following: his brother was killed on
July 12, 2019; he sent the agency an email on July 23, 2019, in which he
informed the agency that he was taking an extended leave of absence due to his
brother’s death and that the appellant would not be available for a deposition until
mid-September 2019; he traveled from Georgia to Florida to be with his family
and to plan for his brother’s funeral, which was held on July 27, 2019; on
August 2, 2019, he received a voicemail from the administrative judge and
5
attempted to return the phone call but was told the administrative judge was not
in the office; he has been experiencing depression, anxiety, and panic attacks
since his brother’s death; and he took a leave of absence until September 13,
2019. Id. at 14-16. Further, the appellant’s representative has submitted a law
enforcement report documenting his brother’s death for the first time on review. 2
Id. at 13.
In its response to the appellant’s petition for review, the agency asserts that
the appellant’s representative is not a sole practitioner but is the founder and
managing attorney of a legal practice, and thus, he or a member of his practice
had a duty to respond to the administrative judge’s orders. PFR File, Tab 3 at 5
& n.2, 15-16. In addition, the agency argues that the appellant also had a duty to
respond to the administrative judge’s orders and that, although the agency agreed
to an extension of deadlines, the agency is not responsible for prosecuting the
appellant’s case. Id. at 16-18. For the first time on review, the agency has
submitted evidence regarding the legal practice of the appellant’s representative.
Id. at 20-31. The agency further has submitted for the first time on review a
declaration from the appellant’s supervisor confirming that, on or around July 30,
2019, she told the agency’s representative that the appellant had been reporting to
work every day during that time period and that there was no reason for his
unavailability for a deposition until mid-September 2019. Id. at 32-33.
Notwithstanding the parties’ arguments and submission of evidence on
review, we find that the administrative judge abused his discretion in imposing
the sanction of dismissal with prejudice for the following reasons. Specifically,
we find that the record reflects that, until the agency filed a motion to compel the
appellant to submit to a deposition, the parties had been independently engaging
in the discovery process. IAF, Tab 11. Thus, we disagree with the administrative
judge’s finding that the appellant demonstrated an intent to abandon his appeal.
2
In addition, the appellant’s representative has submitted email correspondence
between the parties concerning discovery that already is a part of the record before the
administrative judge. PFR File, Tab 1 at 5-12; IAF, Tab 11 at 14-18, 24-27.
6
ID at 3. In addition, the Board’s regulations contemplate that an administrative
judge will not intervene in the discovery process unless a party files a motion to
compel discovery. 5 C.F.R. § 1201.71; see King v. Department of the Navy,
98 M.S.P.R. 547, ¶ 10 (2005) (recognizing that the Board generally only becomes
involved in discovery matters if a party files a motion to compel), aff’d,
167 F. App’x 191 (Fed. Cir. 2006); see also 5 C.F.R. § 1201.73(c), (d)(3)
(containing instructions and time limits for filing and responding to a motion to
compel). They further provide that, if an administrative judge grants a motion to
compel discovery but a party fails to comply with an order compelling discovery,
then the administrative judge may impose sanctions for such party’s
noncompliance. 5 C.F.R. § 1201.74(c).
Here, the agency filed its motion to compel while the case was in a
suspended status. IAF, Tabs 10-11. The agency included with its motion a notice
of the appellant’s deposition that the agency had rescheduled for August 20,
2019. IAF, Tab 11 at 20. However, the initial decision was issued before that
date. ID at 1. Even if, as described in the initial decision, the appellant and his
representative failed to comply with the administrative judge’s orders and did not
respond to the agency’s motion to compel, ID at 2-3, we find that, under the
circumstances of this case, the administrative judge should have followed the
Board’s procedures described above for resolving discovery disputes by first
ruling on the agency’s motion to compel before imposing any sanctions, cf.
Smets v. Department of the Navy, 117 M.S.P.R. 164, ¶ 12 (2011) (finding that the
administrative judge did not abuse her discretion when she precluded the
appellant from submitting additional evidence regarding her discrimination claim
after the appellant did not comply with the administrative judge’s order to appear
for a deposition), aff’d, 498 F. App’x 1 (Fed. Cir. 2012).
Accordingly, we vacate the initial decision and remand the appeal to the
regional office. See, e.g., Wiggins v. Department of the Air Force, 113 M.S.P.R.
443, ¶¶ 1, 14 (2010) (vacating the initial decision that dismissed the appeal for
7
failure to prosecute because the extreme sanction did not serve the ends of
justice). In reaching this conclusion, we do not intend to imply that the appellant
handled his appeal flawlessly. 3 On remand, the appellant must be diligent in
complying with the administrative judge’s orders and in pursuing his appeal to
avoid the imposition of sanctions as necessary to serve the ends of justice. 4 See
id., ¶ 15.
3
The record reflects that the appellant’s representative erroneously provided his own
email address instead of the appellant’s email address when he registered the appellant
as an e-filer on the initial appeal form. IAF, Tab 1 at 1-3. Thus, the appellant may not
have received proper electronic service of documents in accordance with the Board’s
e-filing regulations set forth at 5 C.F.R. § 1201.14(e)(1), (j) (2019). But see Lima v.
Department of the Air Force, 101 M.S.P.R. 64, ¶ 5 (2006) (stating that service on a
party’s designated representative will be imputed to the party). In light of our decision
to remand the appeal, we need not determine whether the appellant’s efforts to
prosecute his appeal were thwarted without his knowledge by his representative’s
negligence. See Pacilli v. Department of Veterans Affairs, 113 M.S.P.R. 526, ¶ 13
(explaining that, although an appellant generally is responsible for the errors of his
chosen representative, an exception may lie when the appellant establishes that his
diligent efforts to prosecute an appeal were thwarted without his knowledge by his
attorney’s deceptions, negligence, or malfeasance), aff’d. sub nom. Pacilli v. Merit
Systems Protection Board, 404 F. App’x 466 (Fed. Cir. 2010). On remand, the
appellant or his representative shall update the appellant’s e-filing status to correct his
email address and shall notify the administrative judge and the agency of such change in
accordance with 5 C.F.R. § 1201.14(e)(6).
4
On remand, the administrative judge shall analyze the agency’s chapter 43 case under
the applicable elements as determined by the U.S. Court of Appeals for the Federal
Circuit in Santos v. National Aeronautics and Space Administration , 990 F.3d 1355,
1360-61 (Fed. Cir. 2021). Lee v. Department of Veterans Affairs , 2022 MSPB 11, ¶ 16
(stating that Santos applies to all pending cases, regardless of when the events at issue
took place).
8
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.