Opinion

Jeffrey Steinberg v. Department of Commerce

Court: Merit Systems Protection Board
Filed: May 30, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.2%

stating that an appellant has “a personal duty to monitor the progress of his appeal at all times and not leave it entirely to his attorney”

How later courts described this case

stating that an appellant has “a personal duty to monitor the progress of his appeal at all times and not leave it entirely to his attorney”

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JEFFREY STEINBERG, DOCKET NUMBER

Appellant, NY-0752-19-0094-I-1

DEPARTMENT OF COMMERCE, DATE: May 30, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Michael Ranis , Esquire, Goshen, New York, for the appellant.

Josh Hildreth and Michael Gridley , Alexandria, Virginia, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

dismissed his adverse action appeal with prejudice 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 erroneous interpretation of statute or regulation

or the erroneous application of the law to the facts of the case; the administrative

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

The appellant filed the instant appeal arguing that the agency forced him to

involuntarily retire or resign from his position as a GS-13 Patent Examiner. 2

Initial Appeal File (IAF), Tab 1 at 1, 7. In processing the appeal, the

administrative judge issued an order instructing the parties to attend a telephonic

status conference. IAF, Tab 6. She then issued a second order directing the

appellant to file evidence and argument amounting to a nonfrivolous allegation

that his claim of involuntary resignation or retirement was within the Board’s

jurisdiction. IAF, Tab 14 at 3. The appellant failed to appear for the status

conference and did not submit a response to the administrative judge’s order to

file evidence and argument. IAF, Tab 15. The administrative judge then issued a

third order which contained two separate orders—one order to the appellant to

file a pleading demonstrating good cause for his failure to comply with the

scheduling order and another order to both parties instructing them to attend a

rescheduled status conference. Id. The appellant did not respond to the order and

did not appear for the rescheduled status conference. IAF, Tab 16. The

In one place in his initial appeal form, the appellant stated that he suffered a

“termination of employment and involuntary retirement,” and in another place, he

checked a box indicating that he suffered an “involuntary resignation.” Initial Appeal

File, Tab 1 at 7.

administrative judge issued an order and summary of the conference call

indicating that, because the appellant had failed to follow four Board orders, she

planned to dismiss his appeal. Id. She provided both parties with 5 days to

object and informed them that her orders and findings therein would become final

and would not be modified without a showing of good cause. Id. The appellant

did not object to the administrative judge’s order and findings, and, 6 days later,

the administrative judge issued an initial decision dismissing his appeal for

failure to prosecute. IAF, Tab 17, Initial Decision (ID).

The appellant, through his attorney, has filed a petition for review of the

initial decision. Petition for Review (PFR) File, Tab 1. The attorney explains

that he experienced personal hardship because his wife had experienced serious

health issues for the prior 6 months, and he was her primary caretaker. Id. at 4.

According to the attorney, this led to a lack of care in reviewing the appellant’s

case. 3 Id. The agency has filed a response. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

An administrative judge may impose the sanction of dismissal with

prejudice 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). 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. 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. Turner v. U.S. Postal Service,

The petition for review also discusses the merits of the alleged involuntary

resignation. PFR File, Tab 1 at 5. Because we affirm the initial decision dismissing the

appellant’s appeal, we do not reach the merits of the appellant’s appeal.

123 M.S.P.R. 640, ¶ 16 (2016), aff’d, 681 F. App’x 934 (Fed. Cir. 2017);

Williams v. U.S. Postal Service, 116 M.S.P.R. 377, ¶ 9 (2011); Heckman v.

Department of the Interior, 106 M.S.P.R. 210, ¶ 16 (2007). 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).

Here, the administrative judge did not abuse her discretion in imposing the

sanction of dismissal for failure to prosecute. The record supports her finding

that the appellant failed to respond to four Board orders, despite an indication in

the final order prior to the issuance of the initial decision that dismissal for

failure to prosecute would result if he did not establish good cause for failing to

respond to the prior orders. IAF, Tabs 6, 14, 15-16. The Board has affirmed the

dismissal of an appeal for failure to prosecute under similar circumstances.

Benton v. Department of the Interior, 47 M.S.P.R. 200, 203 (1991) (finding no

error in the administrative judge’s dismissal for failure to prosecute when the

appellant repeatedly failed to comply with Board orders despite being placed on

notice that his appeal might be dismissed on the continuing failure to comply with

orders).

Although the appellant’s counsel has urged the Board to consider the

failure to comply with the administrative judge’s orders to be his error and not

the appellant’s, it is well-settled that an appellant is responsible for the error,

action, or inaction of a chosen representative. Smith v. U.S. Postal Service,

111 M.S.P.R. 341, ¶ 9 (2009); Sofio v. Internal Revenue Service, 7 M.S.P.R. 667,

670 (1981). A limited exception exists where an appellant has proven that his

diligent efforts to prosecute his case were thwarted by the representative’s

deception and negligence. Miller v. Department of Homeland Security,

110 M.S.P.R. 258, ¶ 11 (2008); Dunbar v. Department of the Navy, 43 M.S.P.R.

640, 643-45 (1990). In this case, the appellant has not asserted nor shown that he

independently and diligently made efforts to prosecute his case but that his

counsel prevented him from doing so. Therefore, he is bound by his

representative’s inaction. See Smith, 111 M.S.P.R. 341, ¶ 9.

Even considering the appellant’s counsel’s explanation that he had to care

for his ill wife, however, the Board has held that an appellant’s attorney’s need to

assist his wife during her illness does not constitute good cause. See, e.g.,

Murphy v. Department of the Treasury, 91 M.S.P.R. 239, ¶ 8 (2002) (considering

“good cause” in the context of the timeliness of a petition for review). While we

are sympathetic to the appellant’s counsel’s hardships as a result of his wife’s

illness, an appellant nonetheless has a personal duty to keep abreast of his appeal

and to take personal responsibility for prosecuting it. See Rowe v. Merit Systems

Protection Board, 802 F.2d 434, 438 (Fed. Cir. 1986) (stating that an appellant

has “a personal duty to monitor the progress of his appeal at all times and not

leave it entirely to his attorney”). In this case, he did not so do, and we agree

with the administrative judge that dismissal for failure to prosecute is the

appropriate disposition of the appeal.

Accordingly, we DENY the appellant’s petition for review and AFFIRM

the initial decision.

NOTICE OF APPEAL RIGHTS 4

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 cases 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. 5 The court of appeals must receive your petition for

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 by 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 competent jurisdiction.

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

132 Stat. 1510.

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 Appeals for

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