                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                        2015 MSPB 5

                              Docket No. SF-0752-13-1722-I-1

                                     Jackie Leseman, *
                                         Appellant,
                                              v.
                                Department of the Army,
                                          Agency.
                                       January 9, 2015

           Jackie Leseman, Wasilla, Alaska, pro se.

           Michael H. Gilbert and Mike J. Schroeder, Joint Base Elmendorf-
             Richardson, Alaska, for the agency.

                                          BEFORE

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



                                  OPINION AND ORDER

¶1         The appellant has filed a petition for review of an initial decision that
     dismissed her appeal with prejudice for failure to prosecute. For the following
     reasons, we DENY the petition for review and AFFIRM the initial decision.




     *
      Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation. Corps of
     Engineers/Pacific Ocean v. Department of the Army, MSPB Docket No. SF-0752-14-
     0290-I-1.
                                                                                         2

                                       BACKGROUND
¶2         On May 31, 2013, the agency issued a Notice of Proposed Furlough
     informing the appellant, a Supervisory Project Officer, that she would be
     furloughed for no more than 11 workdays due to “the extraordinary and serious
     budgetary challenges facing the Department of Defense (DOD) for the remainder
     of Fiscal Year (FY) 2013, the most serious of which is the sequester that began
     on May 1, 2013.” Initial Appeal File (IAF), Tab 1 at 9-11. It does not appear
     that the appellant responded to the proposal notice. By written notice dated June
     20, 2013, the agency’s deciding official informed the appellant that she would be
     furloughed as outlined in the proposal notice.       See id. at 12-14.    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, and
     not to exceed a maximum of 88 hours during the furlough period. Id. at 7-8.
¶3         The appellant filed a Board appeal challenging the agency’s action but
     indicated that she did not want a hearing. See IAF, Tab 1 at 2. In a furlough
     procedures order, the administrative judge informed the appellant that her appeal
     had been consolidated with the appeals of similarly situated employees. Corps of
     Engineers/Pacific Ocean v. Department of the Army, MSPB Docket No.
     SF-0752-14-0290-I-1, Consolidated Appeal File (CAF), Tab 2.            On April 17,
     2014, the administrative judge issued an order in which she scheduled a
     telephonic status conference, a prehearing conference, and a close of record date.
     CAF, Tab 12.      In her order, the administrative judge cautioned that, if an
     appellant failed to appear for the aforementioned conferences or otherwise follow
     her orders, she might issue sanctions pursuant to 5 C.F.R. § 1201.43, which could
     include dismissing the appeal for failure to prosecute. CAF, Tab 12 at 4. The
     record reflects that the appellant did not participate in the status conference or the
     prehearing conference.     See CAF, Tabs 15, 17.        The administrative judge’s
     June 5, 2014 order and summary of prehearing conference included an order for
     appellants who had not requested a hearing, instructing them to submit their
                                                                                       3

     written submissions in support of their appeals by June 27, 2014. CAF, Tab 17 at
     5.   The appellant did not file anything by that date.      On July 1, 2014, the
     administrative judge issued a show cause order directed at the appellants in the
     consolidated appeal who had not participated in conference calls and the hearing
     and had not filed any submissions beyond their initial appeals. CAF, Tab 28.
     She ordered those appellants to show cause why she should not dismiss their
     appeals for failure to prosecute. Id. The appellant did not respond to the show
     cause order by the July 8, 2014 time limit. See id.
¶4         On July 10, 2014, the administrative judge issued an initial decision,
     dismissing the appellant’s appeal with prejudice for failure to prosecute. IAF,
     Tab 5, Initial Decision (ID). In particular, the administrative judge found that the
     appellant failed to exercise basic due diligence in prosecuting her appeal because
     she failed to appear for the scheduled status conference call, to submit a close of
     record submission or a response to the agency’s close of record submission, or to
     respond to the show cause order on the failure to prosecute issue. ID at 2-3.
¶5         The appellant has filed a petition for review, which the agency has
     opposed. Petition for Review (PFR) File, Tabs 1, 3. In her petition for review,
     the appellant does not provide any explanation for her failure to participate in the
     status conference call, submit a close of record submission, or respond to the
     show cause order. PFR File, Tab 1. Rather, she briefly states the basis for her
     challenge to the agency’s decision to impose the furlough. Id. at 4.

                                        ANALYSIS
¶6         The sanction of dismissal with prejudice may be imposed if a party fails to
     prosecute or defend an appeal. Davis v. Department of Commerce, 120 M.S.P.R.
     34, ¶ 17 (2013); see 5 C.F.R. § 1201.43(b). Such a sanction should be imposed
     only when: (1) a party has failed to exercise basic due diligence in complying
     with Board orders; or (2) a party has exhibited negligence or bad faith in its
     efforts to comply. Davis, 120 M.S.P.R. 34, ¶ 18 (citing Williams v. U.S. Postal
                                                                                        4

     Service, 116 M.S.P.R. 377, ¶ 7 (2011)). Absent an abuse of discretion, the Board
     will not reverse an administrative judge’s determination regarding sanctions.
     Davis, 120 M.S.P.R. 34, ¶ 18.
¶7         We find that the administrative judge did not abuse her discretion in
     imposing the sanction of dismissal with prejudice. The record reflects that the
     appellant 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. See CAF, Tabs 15, 17. Indeed,
     there is no evidence that the appellant took any steps to pursue her appeal until
     she filed her petition for review. The record also reflects that the appellant was
     warned that her failure to participate in the appeal could result in the dismissal of
     her appeal with prejudice.      See CAF, Tabs 12, 28.       The appellant has not
     attempted to explain why she did not respond to the administrative judge or
     participate in the proceedings. Her brief argument on review regarding the merits
     of the furlough is not determinative of the propriety of the dismissal for failure to
     prosecute. See Bennett v. Department of the Navy, 1 M.S.P.R. 683, 688 (1980).
     Based on the foregoing circumstances, we agree with the administrative judge’s
     finding that the appellant failed to exercise due diligence in prosecuting her
     appeal, and we affirm the dismissal with prejudice for failure to prosecute. See,
     e.g., Williams, 116 M.S.P.R. 377, ¶¶ 2-4, 9-12 (affirming the administrative
     judge’s decision to dismiss an appeal for failure to prosecute because the
     appellant failed to respond to multiple Board orders); Heckman v. Department of
     the Interior, 106 M.S.P.R. 210, ¶ 16 (2007) (finding that the administrative judge
     did not abuse her discretion by dismissing the appellant’s claims for failure to
     prosecute when the appellant did not comply with multiple orders over a period
     of nearly 2 ½ months).
                                                                                       5

                                                 ORDER
¶8            This is the final decision of the Merit Systems Protection Board in this
     appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
     § 1201.113(c)).

                        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.
                                                                            6

     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the 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.
