                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RONDA VINCENT, 1                                DOCKET NUMBER
                 Appellant,                          PH-0752-13-3983-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: August 23, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 2

           Ronda Vincent, Annapolis, Maryland, pro se.

           Katharine E. Orlowski and Paul A. Walker, Fort Meade, 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 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(a), this appeal was part of a consolidation.      Navy
     Cyber v. Department of the Navy, MSPB Docket No. PH-0752-14-0428-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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 administrative 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).

                                           BACKGROUND
¶2             On May 31, 2013, the agency proposed to furlough the appellant, a
     Financial Management Analyst, 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 March 1, 2013.” Initial Appeal File (IAF), Tab 3
     at 4, 11‑13. The record includes a Standard Form 50 reflecting the appellant’s
     furlough, effective July 8, 2013, on discontinuous days between July 8 and
     September 27, 2013. Id. at 8.
¶3             The appellant filed a Board appeal challenging the agency’s furlough
     action, but did not request a hearing. IAF, Tab 1 at 2-3. In a furlough procedures
     order, the administrative judge informed the appellant that her appeal had been
     consolidated with the appeals of similarly situated employees.           Navy Cyber v.
     Department of the Navy, MSPB Docket No. PH-0752-14-0428-I-1, Consolidation
     Appeal File (CAF), Tab 2. In a close-of-record order, the administrative judge
                                                                                           3

     ordered the appellant to file any additional evidence and argument in support of
     her appeal by July 9, 2014. CAF, Tab 4 at 3. The appellant did not respond to
     the close-of-record order. In an order to show cause, the administrative judge
     ordered the appellant to file a pleading by March 30, 2016, indicating whether she
     was still interested in pursuing her appeal. CAF, Tab 6 at 1. The administrative
     judge cautioned her that failing to follow Board orders could result in a dismissal
     for failure to prosecute and explicitly stated that, if she did not respond to the
     order, then he would presume she no longer wished to pursue her appeal, and
     would dismiss it for failure to prosecute. Id. She failed to respond to the order to
     show cause. CAF, Tab 8, Initial Decision (ID) at 1-2. The administrative judge
     then issued an initial decision dismissing the appeal for failure to prosecute. Id.
¶4         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. The agency has not filed a response to the appellant’s petition.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶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
     complying with Board orders, or has exhibited negligence or bad faith in its
     efforts to comply. Leseman, 122 M.S.P.R. 139, ¶ 6. 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 a 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
                                                                                       4

     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 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 respond to the order to show cause would 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.
¶8        In her petition for review, the appellant alleges that she did not receive the
     close-of-record order.    PFR File, Tab 1 at 4-5.   The appellant’s assertions on
     review, without more, do not persuade us that the administrative judge abused his
     discretion in dismissing her appeal. Both the close-of-record order and the show
     cause order were served on the appellant via email through the Board’s e-Appeal
     Online system. CAF, Tab 4 at 5, Tab 6 at 2. The appellant does not contend that
     she did not receive the order to show cause and does not provide any explanation
     for her failure to respond.     Moreover, as a registered e-filer, the appellant
     consented to accept documents issued by the Board in electronic form.           IAF,
     Tab 1 at 2; see 5 C.F.R. § 1201.14(e)(1). Under the Board’s regulations, e-filers
     are responsible for ensuring that email from @mspb.gov is not blocked by filters,
     5 C.F.R. § 1201.14(j)(2), and for monitoring case activity at the Repository at
     e-Appeal Online to ensure that they have received all case-related documents,
     5 C.F.R. § 1201.14(j)(3). Additionally, Board documents served electronically on
     registered e-filers are deemed received on the date of electronic submission.
     5 C.F.R. § 1201.14(m)(2). Thus, we find that the administrative judge properly
     exercised his discretion to impose a sanction under the circumstances of this case.
     See 5 C.F.R. § 1201.43.
                                                                                       5

¶9         For these reasons, we affirm the administrative judge’s decision to dismiss
     the appeal for failure to prosecute.

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

for Merit Systems Protection Board appellants before the Federal Circuit. 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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
