                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ROBIN R. MCFARLAND,                             DOCKET NUMBER
                   Appellant,                        PH-315H-14-0578-I-1

                  v.

     DEPARTMENT OF HEALTH AND                        DATE: August 19, 2014
       HUMAN SERVICES,
                 Agency.



                       THIS ORDER IS NONPRECEDENTIAL *

           Robin R. McFarland, Harrisburg, Pennsylvania, pro se.

           Roger L. Gumbs, Jr., Baltimore, Maryland, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed her appeal for failure to prosecute. For the reasons discussed below,
     we GRANT the appellant’s petition for review, VACATE the initial decision, and


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          A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     REMAND the case to the regional office for further adjudication in accordance
     with this Order.

                        DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The agency terminated the appellant from her position as a Program Analyst
     during her probationary period in February 2014. Initial Appeal File (IAF), Tab 4
     at 10-13.   The appellant filed this appeal challenging her termination.       IAF,
     Tab 1. The administrative judge issued a March 2014 status order requesting that
     the parties schedule a conference call, and an April 2014 order concerning the
     appellant’s failure to attend the scheduled conference call. IAF, Tabs 7, 9. In
     April 2014, the administrative judge ordered the appellant to address the issue of
     jurisdiction.   IAF, Tab 10.       The administrative judge scheduled another
     conference call in May 2014. IAF, Tab 11. He dismissed the appeal in May
     2014, for failure to prosecute, finding that the appellant had missed two status
     conferences without explanation and had failed to respond to Board orders. IAF,
     Tab 13, Initial Decision (ID) at 1-2. On petition for review, the appellant argues
     that she did not receive notice of a status conference because the notice was sent
     to an incorrect address. Petition for Review (PFR) File, Tab 1 at 2. In response
     to the petition for review, the agency argues that its filing concerning the status
     conference was accessible to the appellant via e-Appeal. PFR File, Tab 3 at 5.
¶3         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). Absent a showing of abuse of discretion, the Board will not
     reverse an administrative judge’s determination regarding sanctions. Id.
¶4         Here, the record reflects that the appellant’s return address was contained in
     her March 2014 appeal. IAF, Tab 1 at 1, 7. She also submitted her address in her
     March 2014 response to the acknowledgment order.          IAF, Tab 5 at 1.      The
     appellant’s address is house number 233, but mailings were sent to house number
     223. The administrative judge’s orders, including an acknowledgement order, a
                                                                                      3

     failure to serve order, a March 2014 preliminary status order, and an April 2014
     order concerning the appellant’s failure to attend a conference call were all
     mailed to the wrong address. IAF, Tabs 2, 6, 7, 9. The appellant also may not
     have received the agency file because the certificate of service prepared by the
     agency states that the file was served via e-Appeal. IAF, Tab 4 at 15. However,
     the appellant was not registered for e-Appeal, and therefore she did not consent to
     accept electronic service. See 5 C.F.R. § 1201.14(e). The certificate of service
     generated by e-Appeal indicates that the appellant would be served by mail, but it
     contains the incorrect address.   IAF, Tab 4 at 16.    The certificates of service
     accompanying the agency’s March 2014 pleading regarding a status conference
     call are similarly flawed. IAF, Tab 8 at 5-6. The administrative judge’s April
     2014 jurisdiction order was initially mailed to the incorrect address on April 1,
     2014, but was later mailed to the correct address on April 14, 2014. IAF, Tab 10
     at 9, 11. Thereafter, in May 2014, a preliminary status order scheduling a status
     conference was mailed to the appellant’s correct address.      IAF, Tab 11.    The
     appellant did not attend the status conference.        The administrative judge
     dismissed the appeal in May 2014. ID at 1-2.
¶5         It appears that the administrative judge was not aware that several of his
     orders were not sent to the appellant’s correct address. Evidence that a letter was
     sealed, properly addressed, and deposited in the U.S. Mail with postage prepaid
     gives rise to a rebuttable presumption that the letter reached the addressee in due
     course of the mails. Reynolds v. Department of Justice, 63 M.S.P.R. 189, 193,
     dismissed, 36 F.3d 1112 (Fed. Cir. 1994) (Table) (finding that the presumption of
     receipt in due course was not applicable where the agency had misspelled the
     appellant’s city of residence). However, this presumption does not apply to the
     Board orders that were addressed to the wrong house number. Id. Furthermore,
     the Board has previously reversed an administrative judge’s imposed sanctions
     when an incorrect address affected the appellant’s ability to proceed. See, e.g.,
     Moore v. Department of Health & Human Services, 50 M.S.P.R. 201, 203-04
                                                                                         4

     (1991) (vacating and remanding the initial decision when an order and the initial
     decision were mailed to an incorrect address).           Accordingly, we find that the
     administrative judge should not have dismissed the appeal for failure to prosecute
     under the circumstances presented.
¶6         We note that the appellant replied to the administrative judge’s March 2014
     acknowledgment order, despite the fact that the order was mailed to the wrong
     house number. IAF, Tab 5. However, the appellant did not reply to the later
     misaddressed orders and agency filings to which she may have had similar access.
     Nor did she inform the agency or the Board that the acknowledgment order to
     which she replied had been addressed incorrectly. We also note that upon the
     Board’s correction of her house number, the appellant still failed to comply with
     the administrative judge’s April 2014 jurisdiction order and May 2014
     preliminary status order. IAF, Tabs 10, 11. Accordingly, on remand, we remind
     the appellant that an administrative judge may impose various sanctions when a party
     fails to comply with an order. See 5 C.F.R. § 1201.43(a). The appellant is therefore
     expected to comply with all orders issued by the administrative judge. See Lubert
     v. U.S. Postal Service, 110 M.S.P.R. 430, ¶ 15 (2009).

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