                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     WILLIAM ERIC BAKER,                             DOCKET NUMBER
                   Appellant,                        DC-0432-14-0759-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: April 2, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Gerald L. Gilliard, Esquire, Washington, D.C., for the appellant.

           Hansel Cordeiro, Esquire, 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 his removal 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


     1
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).

                                       BACKGROUND
¶2         The appellant filed a Board appeal challenging his removal from his
     position as a Program Analyst for unacceptable performance. Initial Appeal File
     (IAF), Tab 1.    The appellant also raised an affirmative defense of reprisal for
     prior equal employment opportunity activity. See id. at 7.
¶3         The administrative judge issued an acknowledgement order followed by a
     hearing order which set the deadline for the parties’ prehearing submissions as
     August 4, 2014, the date for the prehearing conference as August 6, 2014, and the
     hearing date as August 27, 2014. IAF, Tabs 2, 7. The agency filed a joint motion
     to reschedule these deadlines because the deciding official, who was out on
     medical leave, was unavailable to attend the hearing on August 27, 2014. 2 IAF,
     Tab 8 at 4.     The administrative judge granted the motion and issued an order


     2
       Based on the record, the appellant’s counsel agreed to reschedule the hearing date and
     requested that the parties also file a motion to modify all deadlines including discovery
     so as to provide the appellant additional time to submit discovery responses and to
     discuss settlement. IAF, Tab 8 at 4, Tab 15 at 3; Petition for Review (PFR) File, Tab 1
     at 14-16.
                                                                                       3

     rescheduling the deadlines to September 12, 2014, September 16, 2014, and
     October 1, 2014, respectively. IAF, Tab 9.
¶4        According to the administrative judge, the appellant thereafter failed to:
     submit prehearing submissions; appear for the September 16, 2014 prehearing
     conference; and return the administrative judge’s telephone messages on
     September 16, 26, or 29, 2014. IAF, Tab 14, Tab 17, Initial Decision (ID) at 2.
     On September 30, 2014, the day before the rescheduled hearing, the
     administrative judge cancelled the hearing and ordered the appellant to show
     cause on or before October 6, 2014, why the appeal should not be dismissed for
     failure to prosecute. IAF, Tab 14. On October 7, 2014, the day after the deadline
     to respond to the show cause order, the appellant, through his attorney, submitted
     a response in which his attorney explained that he was in the process of moving
     and finding new housing and that, after moving into a new home on October 3,
     2014, he discovered that the property did not have cellular phone reception or
     coverage by his existing internet provider.         IAF, Tab 15 at 3-4.         The
     administrative judge declined to consider the appellant’s untimely response to the
     show cause order and issued an initial decision dismissing the appeal for failure
     to prosecute. ID at 3.
¶5        The appellant has filed a petition for review in which he reiterates the
     reasons why he failed to comply with the administrative judge’s orders as well as
     argues that he attempted to file a response to the show cause order on October 6,
     2014, but was unsuccessful due to technical problems with the Board’s e-appeal
     website. PFR File, Tab 1 at 5-8. The appellant further argues that dismissal for
     failure to respond to one order is excessive and that the agency similarly failed to
     participate in the prehearing conference and submitted its prehearing submissions
     past the deadline. Id. at 11-12. The agency has filed a response and an amended
     response in opposition to the appellant’s petition. PFR File, Tabs 3-4.
                                                                                          4

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶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 a party has: (1) failed to exercise basic due diligence in complying
     with Board orders; or (2) exhibited negligence or bad faith in its efforts to
     comply. Davis, 120 M.S.P.R. 34, ¶ 18 (citing Williams v. U.S. Postal 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. The Board generally will not dismiss an appeal for failure
     to prosecute based on a single instance of failure to comply with a Board order.
     See, e.g., Burnett v. Department of the Navy, 71 M.S.P.R. 34, 38 (1996).
¶7         We find that the administrative judge did not abuse his discretion in
     dismissing the appeal for failure to prosecute. Based on our review of the record
     below, the appellant, who was represented by counsel below, failed to exercise
     due diligence in prosecuting his appeal when he failed to comply with multiple
     Board deadlines, communications, and directives. As stated, the appellant failed
     to submit prehearing submissions as ordered, failed to participate in the
     prehearing conference, failed to respond to three separate phone messages from
     the administrative judge, and failed to timely respond to the order to show cause.
     IAF, Tab 14; ID at 2.
¶8         Even assuming that the administrative judge improperly failed to consider
     the appellant’s untimely response to the show cause order, any error did not
     prejudice the appellant’s rights because considering the appellant’s submission on
     review, we find no basis for reversal. See Panter v. Department of the Air Force,
     22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not prejudicial to a
     party’s substantive rights provides no basis for reversal of an initial decision).
¶9         The appellant’s arguments raised in his untimely response to the show cause
     order are generally the same as those raised in his petition for review. See IAF,
                                                                                              5

      Tab 15; see also PFR File, Tab 1. The appellant’s representative cites his “lack
      of time and focus” due to personal issues. PFR File, Tab 1 at 8. Specifically, he
      asserts that he and his family were moving from Illinois to Massachusetts and
      living in temporary housing while trying to find a home because there was a
      housing shortage, his time was consumed filing a complaint with the Fair Housing
      Center of Greater Boston on behalf of his wife, and after they moved into a home
      on October 3, 2014, he discovered that there was no cellular phone reception or
      coverage by his existing internet provider. IAF, Tab 15 at 3-4; PFR File, Tab 1
      at 8-9.
¶10         We are not persuaded that the appellant exercised due diligence in
      prosecuting his appeal.      The appellant’s representative, who according to his
      response, does extensive work before the Board, acknowledges that he received
      two voicemails from the administrative judge, and that, concerning his failure to
      file prehearing submissions, he further acknowledges that “perhaps a motion for
      extension would have been warranted.” IAF, Tab 15 at 3; PFR File Tab 1 at 6-7.
      However, the appellant did not file prehearing submissions, request an extension,
      or respond to the administrative judge’s messages. 3            Moreover, we are not
      persuaded that the appellant’s representative’s personal matters were so
      time-consuming that they prevented him from even requesting an extension of
      time to file prehearing submissions on or before September 12, 2014, to
      reschedule the prehearing conference on September 16, 2014, or to respond to the
      administrative judge’s messages, given that the appellant submitted discovery

      3
        We acknowledge that the agency’s prehearing submissions were untimely filed on
      September 24, 2014, however, the appellant failed to file prehearing submissions at all
      or to return any of the administrative judge’s telephone calls. See IAF, Tab 13 at 4, n.1.
      In addition, the agency promptly returned the administrative judge’s call on
      September 16, 2014, the date of the prehearing conference, and informed the
      administrative judge that the agency was available for a prehearing conference at a later
      time convenient for everyone and was prepared to move forward with the hearing as
      scheduled on October 1, 2014. See id. However, the administrative judge and the
      agency tried but were unable to reach the appellant’s representative. PFR File, Tab 1
      at 7, n.2.
                                                                                           6

      responses on September 13, 2014. 4 See IAF, Tab 12. Thus, we find that the
      appellant failed to make a good faith effort to comply with the administrative
      judge’s orders and exhibited a lack of due diligence.
¶11        Lastly, while the appellant’s representative specifically indicates that his
      client is not at fault, the Board has long held that an appellant is responsible for
      the errors of his chosen representative.       See, e.g., Simon v. Department of
      Commerce, 111 M.S.P.R. 381, ¶ 13 (2009).            Under these circumstances, we
      conclude that the appellant failed to show that the administrative judge erred in
      dismissing his appeal for failure to prosecute.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS 5
            You have the right to request further review of this final decision.

      Discrimination Claims: Administrative Review
            You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
      of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
      submit your request by regular U.S. mail, the address of the EEOC is:




      4
        In any event, the appellant’s representative’s personal problems are insufficient to
      establish good cause for untimely filings. See Harris v. Department of Defense,
      101 M.S.P.R. 123, ¶ 7 (2006) (finding that unsupported general claims of seeking
      employment and attempting to avoid foreclosure do not establish good cause for
      waiving a filing deadline).
      5
        The administrative judge failed to inform the appellant of h is mixed-case right to
      appeal from the initial decision on his retaliation claim to the Equal Employment
      Opportunity Commission and/or the United States District Court. This was error, but it
      does not constitute reversible error because we notify the appellant of his m ixed-case
      appeal rights in this Final Order. See Grimes v. U.S. Postal Service, 39 M.S.P.R. 183,
      186-87 (1988).
                                                                                    7

                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                 P.O. Box 77960
                            Washington, D.C. 20013

If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
                                                                            8

prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.




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