                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DEANNA E. ASH, 1                                DOCKET NUMBER
                   Appellant,                        PH-0752-13-4234-I-1

                  v.

     DEPARTMENT OF THE AIR FORCE,                    DATE: September 11, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 2

           Deanna E. Ash, Nassau, Delaware, pro se.

           Velma C. Gay, Joint Base Andrews, Maryland, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed her appeal for failure to prosecute. Generally, we grant petitions such
     as this one only when: the initial decision contains erroneous findings of material


     1
      Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation. Dover AFB
     HR2 v. Department of the Air Force, MSPB Docket No. PH-0752-13-5962-I-1.
     2
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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
     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. See 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, and based on the following points and authorities, 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).

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2           On May 28, 2013, the agency proposed to furlough the appellant, a
     Secretary, for no more than 11 workdays due to “the extraordinary and serious
     budgetary challenges facing the Department of Defense . . . for the remainder of
     Fiscal Year . . . 2013, the most serious of which is the sequester that began on
     1 March 13.” Initial Appeal File (IAF), Tab 2 at 8, 12-13. It does not appear that
     the appellant responded to the proposal notice. Id. at 4. By written notice dated
     June 24, 2013, the agency’s deciding official informed the appellant that she
     would be furloughed as outlined in the proposal notice. Id. at 9-11. The record
     includes a Standard Form 50 reflecting the appellant’s furlough, effective July 8,
     2013, on discontinuous days between July 8, 2013, and September 30, 2013. Id.
     at 8.
¶3           The appellant filed a Board appeal challenging the agency’s furlough
     action, and she requested a hearing. IAF, Tab 1. In a consolidation order, the
     administrative judge informed the appellant that her appeal had been consolidated
                                                                                      3

     with the appeals of similarly situated employees. Dover AFB HR2 v. Department
     of the Air Force, MSPB Docket No. PH-0752-13-5962-I-1, Consolidation Appeal
     File (CAF), Tab 2.     In a hearing scheduling order, the administrative judge
     ordered the appellant to file a prehearing submission by March 10, 2015, and to
     participate in a prehearing teleconference on March 17, 2015. CAF, Tab 18. The
     apellant failed to file a prehearing submission or attend the prehearing
     teleconference.   IAF, Tab 3.      In an order and summary of the prehearing
     conference, the administrative judge informed the appellant that “[i]f an appellant
     does not attend the hearing on April 2, 2015, then his or her appeal will be
     dismissed for having failed to prosecute it unless good cause justifying the
     absence is shown.” CAF, Tab 29 at 2. She did not attend the hearing. IAF,
     Tab 3.   Finally, in a show cause order, the administrative judge ordered the
     appellant to file argument and evidence showing good cause for failing to appear
     at the hearing. Id. The administrative judge warned the appellant that if she did
     not respond to the order, then he may determine that she had abandoned her
     appeal and the appeal would be dismissed for lack of prosecution under 5 C.F.R.
     § 1201.43(b). Id. The appellant failed to respond to the show cause order. On
     April 28, 2015, the administrative judge issued an initial decision dismissing the
     appeal for failure to prosecute. IAF, Tab 4, Initial Decision (ID) at 1, 3.
¶4         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. Her brief petition for review consists of the following: “I’m not sure
     what if anything I am supposed to do. I have only received one e-mail and it said
     I had until Jun [sic] 15 to answer. Please let me know what I am supposed to do
     because nothing tells me what I need to do.” Id. at 3. The agency has responded
     in opposition. PFR File, Tab 4.
¶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
                                                                                      4

     complying with Board orders, or has exhibited negligence or bad faith in its
     efforts to comply. Id. 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         In Leseman, the appellant in another consolidated furlough appeal failed to
     appear for the scheduled status conference and prehearing conference, failed to
     submit a close of record submission, and failed to respond to the administrative
     judge’s show cause order, despite being warned that her failure to participate in
     the appeal could result in the dismissal of her appeal with prejudice. Id., ¶ 7.
     The Board found that the appellant in Leseman failed to exercise due diligence in
     prosecuting her appeal because she failed to take any steps to pursue her appeal
     until she filed her petition for review, and the Board affirmed the administrative
     judge’s decision to dismiss the furlough appeal for failure to prosecute. Id.
¶7         The circumstances of the instant appeal are very similar to those in
     Leseman.    Because there is no evidence that the appellant took any steps to
     pursue her appeal until she filed her petition for review, and she was warned that
     her failure to provide a prehearing submission, attend the prehearing conference,
     attend the hearing, and respond to the show cause order could result in the
     dismissal of her appeal for lack of prosecution, we find that the appellant did not
     exercise due diligence in prosecuting her appeal.        We therefore affirm the
     administrative judge’s decision to dismiss the appeal for failure to prosecute. See
     id.   The appellant’s single assertion on review, that she is unsure of how to
     proceed in her appeal, without more, does not persuade us that the administrative
     judge abused his discretion.
                                                                                      5

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS
     You have the right to request review of this final decision by the United
States 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
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
United States 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
                                                                                6

provided by any attorney nor warrants that any attorney will accept representation
in a given case.




FOR THE BOARD:                           ______________________________
                                         William D. Spencer
                                         Clerk of the Board
Washington, D.C.
