                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     FREDDIE C. CLARK, JR., 1                        DOCKET NUMBER
                   Appellant,                        DC-0752-13-0745-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: March 10, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 2

           Freddie C. Clark, Jr., Raeford, North Carolina, pro se.

           Michael J. McHugh, Fort Bragg, North Carolina, 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
     affirmed the furlough action. Generally, we grant petitions such as this one only
     when: the initial decision contains erroneous findings of material fact; the initial

     1
       Pursuant to 5 C.F.R. § 1201.36(a), th is appeal was part of a consolidation. Army
     Installation Management Command Employees III v. Department of the Army, Docket
     No. DC-0752-14-0416-I-1.
     2
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     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, and based on the following points and authorities, 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). 3

                        DISCUSSION OF ARGUMENTS ON REVIEW
¶2         On May 30, 2013, the agency issued a notice of proposed furlough
     informing the appellant, a Relocation Specialist, that he 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
     March 1, 2013.      Initial Appeal File (IAF), Tab 1 at 10-12.             The appellant
     responded to the notice of proposed furlough. See id. at 8-9. There is no decision
     letter in the record 4; however, the deciding official stated in a declaration made
     under penalty of perjury that he imposed the furlough.            See Army Installation
     Management Command Employees III v. Department of the Army, Docket No.


     3
       Our decision in this matter only applies to the appellant and not to the other appellants
     in the consolidated appeal.
     4
       The agency explained below that it was attempting to locate the decision letter. See
     IAF, Tab 7 at 5.
                                                                                      3

     DC-0752-14-0416-I-1, Consolidated Appeal File (CAF), Tab 8.            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. IAF, Tab 7 at
     16-18.
¶3            The appellant filed a Board appeal challenging the agency’s action, and he
     requested a hearing. See IAF, Tab 1 at 1, Tab 5. In a furlough procedures order,
     the administrative judge informed the appellant that his appeal had been
     consolidated with the appeals of similarly-situated employees. CAF, Tab 1. The
     administrative judge also issued an order in which she:           (1) directed the
     appellants who requested a hearing to submit a prehearing statement on or before
     June 24, 2014; (2) scheduled a July 1, 2014 prehearing conference; (3) set a
     July 8, 2014 hearing date for the appellants who requested a hearing; and
     (4) scheduled a July 8, 2014 close of the record date for the appellants who did
     not request a hearing. CAF, Tab 7. The administrative judge cautioned in this
     order that any appellants who had requested a hearing and were not present for
     the prehearing conference would not be permitted to testify, present evidence, or
     examine witnesses at the hearing, and would instead receive a decision on the
     written record. Id. The appellant did not attend the prehearing conference, nor
     did he submit a prehearing statement.
¶4        The administrative judge issued an order canceling the hearing because the
     appellants in this consolidation who requested a hearing did not submit any
     prehearing submissions, did not appear for the prehearing conference, and did not
     contact her to request a postponement or extension of the conference. CAF, Tab
     10. She reiterated in this order that the record would close on July 8, 2014, and
     that the parties could submit documentary evidence by that date.          Id.   The
     appellant filed a close of the record submission, in which he opposed the
     administrative judge’s decision to cancel the hearing and requested that the
     hearing be rescheduled. He also included substantive arguments challenging the
                                                                                       4

     furlough.     IAF, Tab 8.    The administrative judge issued an initial decision
     affirming the agency’s furlough actions. CAF, Tab 11, Initial Decision (ID).
¶5        The appellant has filed a petition for review to which the agency opposes.
     Petition for Review (PFR) File, Tabs 1, 4.        In his petition for review, the
     appellant “again” requests a hearing. PFR File, Tab 1. He does not challenge any
     of the administrative judge’s substantive findings or her decision to affirm the
     furlough, nor does he provide any explanation for his failure to attend the
     prehearing conference or his failure to file a prehearing submission.
¶6        An administrative judge may impose sanctions as necessary to serve the
     ends of justice. 5 C.F.R. § 1201.43. That authority includes the right to sanction
     a party for failure to comply with an order. Id. Absent an abuse of discretion, the
     Board will not reverse an administrative judge’s determination regarding
     sanctions. Leseman v. Department of the Army, 122 M.S.P.R. 139, ¶ 6 (2014);
     Davis v. Department of Commerce, 120 M.S.P.R. 34, ¶ 18 (2013). The abuse of
     discretion standard is “a very high standard” and allows for “great deference.”
     Pecard v. Department of Agriculture, 115 M.S.P.R. 31, ¶ 15 (2010) (citing
     Lipscomb v. Department of Defense, 69 M.S.P.R. 484, 487 (1996)).
¶7        An appellant’s right to a hearing should not be denied as a sanction absent
     extraordinary circumstances.     Hart v. Department of Agriculture, 81 M.S.P.R.
     329, ¶ 5 (1999); Stein-Verbit v. Department of Commerce, 72 M.S.P.R. 332, 337
     (1996).     The record reflects that the appellant failed to attend the prehearing
     conference and failed to file a prehearing statement.      Importantly, he did not
     provide any explanation below or on review for his failure to attend the
     prehearing conference or his failure to file a prehearing submission, nor did he
     identify any evidence that he would have presented at the hearing that he was
     unable to present in his close of record submission. We therefore conclude that
     the administrative judge did not abuse her discretion in issuing the sanction in
     this regard, especially given that she notified the appellant that this would happen
     in her order.    CAF, Tab 7; cf. Hart, 81 M.S.P.R. 329, ¶¶ 5-7 (the appellant’s
                                                                                  5

inadvertent failure to comply with the administrative judge’s order was not an
extraordinary circumstance that warranted the extreme sanction of the denial of a
hearing); Stein-Verbit, 72 M.S.P.R. at 338 (finding that the sanction of a canceled
hearing was inappropriate when the appellant “was too ill to participate” in the
first prehearing conference and she did not attend the second prehearing
conference because she did not receive the scheduling notice and was unable to
participate).

                 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
                                                                                6

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 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.
