                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     FRANKLIN G. MONK, JR.,                          DOCKET NUMBER
                   Appellant,                        DC-0752-13-3230-I-1 1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: September 10, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 2

           Franklin G. Monk, Jr., Chesapeake, Virginia, pro se.

           Janet Day and Joanna Grzybala, Newport News, Virginia, 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 his furlough appeal for failure to prosecute.         Generally, we grant
     petitions such as this one only when:       the initial decision contains erroneous


     1
      Pursuant to 5 C.F.R. § 1201.36, this appeal was part of a consolidation. NAVSEA-
     Taylor II v. Department of the Navy, MSPB Docket No. DC-0752-15-0506-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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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, 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).
¶2           Effective July 8, 2013, the agency subjected the appellant to a furlough for
     6 discontinuous workdays, ending on August 12, 2013. Initial Appeal File (IAF),
     Tab 1 at 7-9, Tab 3 at 4. The appellant filed an appeal with the Board regarding
     the furlough and requested a hearing. IAF, Tab 1.
¶3           On March 17, 2015, the administrative judge issued an order advising the
     appellant that he “MUST timely respond” to any orders issued in the appeal and
     “MUST actively participate in the appeals process as directed.” NAVSEA-Taylor
     II v. Department of the Navy, MSPB Docket No. DC-0752-15-0506-I-1,
     Consolidation Appeal File (CAF), Tab 3 at 1-2 (emphasis in the original). She
     also stated that failure to actively prosecute the appeal may result in its dismissal,
     or other sanctions. Id. at 2.
¶4           Also in the March 17 order, the administrative judge directed the appellant
     to file a written submission if he wished to raise any challenges to the furlough
     action or any affirmative defenses. Id. at 4. She stated that any arguments or
     affirmative defenses not identified in response to that order may be deemed
     waived. Id. at 4-5. The appellant did not file such a pleading. See CAF, Tab 7
     at 2.
                                                                                          3

¶5         The administrative judge subsequently issued an order directing the
     appellant to participate in a telephonic status conference.       CAF, Tab 5.      She
     indicated that failure to participate in the status conference may result in
     dismissal of the appeal for failure to prosecute, or other sanctions. Id.
¶6         The appellant did not participate in the status conference. See CAF, Tab 7
     at 2-3.   Accordingly, the administrative judge ordered the appellant to file
     evidence and argument showing good cause why his appeal should not be
     dismissed for failure to prosecute. Id. at 3. The appellant did not respond to that
     order. See CAF, Tab 8, Initial Decision (ID) at 2.
¶7         The administrative judge then issued an initial decision, without holding the
     requested hearing, dismissing the appeal with prejudice for failure to prosecute.
     ID. She found that the appellant: (1) was appropriately notified of his obligation
     to appear for scheduled conferences and respond to orders, yet failed to appear
     for the status conference; (2) did not establish good cause for his failure to
     participate in the prosecution of his appeal; (3) failed to exercise basic due
     diligence in complying with orders; and (4) exhibited negligence and lack of
     attention to his appeal. ID.
¶8         The appellant filed a petition for review of the initial decision. Petition for
     Review (PFR) File, Tab 1. 3 The agency filed a response in opposition, to which
     the appellant did not reply. PFR File, Tab 5.
¶9         On review, the appellant states that the agency was wrong in taking the
     furlough action “Because to [sic] the Budget Control Act of 2011, as amended by
     the American Taxpayer Relief Act of 2012.” PFR File, Tab 1. However, he does
     not specifically challenge any of the findings in the initial decision concerning his
     participation in this appeal. He also proffers no explanation for his failure to:
     (1) file a pleading identifying his challenges to the agency’s furlough action and
     any affirmative defenses he wished to raise; (2) appear for the status conference;
     3
       The appellant filed an initial appeal form with the Washington Regional Office, which
     the Clerk of the Board construed as a petition for review. PFR File, Tab 2.
                                                                                  4

and (3) respond to the order directing him to show good cause for his failure to
appear for the status conference. As such, he has not established any basis for
review and his petition is denied. We discern no error in the initial decision and
we note that the Board recently affirmed a dismissal for failure to prosecute under
circumstances very similar to those presented here. See Leseman v. Department
of the Army, 122 M.S.P.R. 139, ¶ 7 (2015).           We therefore affirm the initial
decision.

                    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
                                                                                     5

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
court.      The Merit Systems Protection Board neither endorses the services
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.
