                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MARY K. MIRACLE,                                DOCKET NUMBER
                  Appellant,                         CH-844E-15-0618-I-1

                  v.

     OFFICE OF PERSONNEL                             DATE: July 14, 2016
       MANAGEMENT,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL ∗

           Joshua D. Howard, Esquire, Pineville, Kentucky, for the appellant.

           Thomas Styer, Washington, D.C., 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
     fact; the initial decision is based on an erroneous interpretation of statute or


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).
¶2           The appellant appealed the Office of Personnel Management’s decision to
     deny her application for disability retirement. Initial Appeal File (IAF), Tab 1.
     On September 22, 2015, the administrative judge held a status conference. IAF,
     Tab 6. Subsequently, the administrative judge issued three orders to which the
     appellant failed to respond. IAF, Tabs 7, 9, 11. The administrative judge notified
     the appellant that, because of her failure to respond to the orders, her appeal
     would be dismissed for failure to prosecute if she did not respond by December 7,
     2015.      IAF, Tab 13.      When the appellant again failed to respond, the
     administrative judge dismissed the appeal for failure to prosecute. IAF, Tab 14,
     Initial Decision at 4.
¶3           In her petition for review, the appellant, through counsel, contends that the
     agency also missed filing deadlines. Petition for Review File, Tab 1. Counsel
     also states that he missed the November 30 and December 7, 2015 deadlines due
     to his wife’s pregnancy and childbirth. Id. He states that his wife practices law
     with him and that he had to take her case load. Id.
¶4           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
                                                                                       3

     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. Absent an abuse of discretion,
     the Board will not reverse an administrative judge’s determination regarding
     sanctions. Id.
¶5        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 respond to the administrative judge’s orders of November 5,
     November 13, and November 17, 2015. IAF, Tabs 7, 9, 11. Her assertion that the
     agency engaged in similar behavior is unavailing. The agency responded to each
     of the administrative judge’s orders. IAF, Tabs 8, 10, 12. By contrast, there is no
     evidence that the appellant took any steps to pursue her appeal after the
     September 22, 2015 status conference when she filed her petition for review. The
     record also reflects that the appellant was warned to show cause why her failure
     to participate in the appeal should not result in the dismissal of her appeal with
     prejudice. IAF, Tab 13. She failed to respond to this order also.
¶6        The appellant’s argument on review regarding counsel’s increased work
     load due to his wife’s pregnancy is not determinative of the propriety of the
     dismissal for failure to prosecute. For the Board to rely on the representation that
     the appellant’s counsel submits with the petition for review would be
     inappropriate. The administrative judge did not issue an initial decision in this
     case until December 10, 2015. The appellant’s counsel could have submitted a
     response to the show cause order, even if it were late. As the appellant notes, the
     administrative judge accepted the agency’s response to her order of November 5,
     2015, even though it was filed 1 day late, and so it seems likely that the
     administrative judge would have accepted a late‑filed response from the
     appellant, had she provided one. IAF, Tab 8. Further, under long established
     Board law, the Board generally will not consider arguments that the appellant
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     first advances with her petition for review.          Banks v. Department of the
     Air Force, 4 M.S.P.R. 268, 271 (1980).
¶7         Counsel of record was the appellant’s designated representative throughout
     the proceedings below. IAF, Tab 1. There is no sufficient explanation as to why
     he, who had been representing the appellant for over 3 months, should be excused
     from complying with the administrative judge’s repeated orders. As the Board
     also has long held, errors by representatives do not excuse appellants’ failures to
     properly   prosecute   their   appeals.    Gaetos    v.   Department   of   Veterans
     Affairs,   121 M.S.P.R.    201,    ¶6     (2014);   Sofio   v.   Internal   Revenue
     Service, 7 M.S.P.R. 667, 670 (1981).
¶8         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 2½ months).

                     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
                                                                                     5

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 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.
