                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     TIMOTHY R. DEFOGGI,                             DOCKET NUMBER
                   Appellant,                        DC-0752-14-0307-I-3

                  v.

     DEPARTMENT OF HEALTH AND                        DATE: June 23, 2015
       HUMAN SERVICES,
                 Agency.



                  THIS ORDER IS NO NPRECEDENTIAL 1

           Timothy R. Defoggi, Alexandria, Virginia, pro se.

           Blanca Sanchez and Rebecca Wulffen, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     dismissed the appeal with prejudice for failure to prosecute.        For the reasons
     discussed below, we GRANT the appellant’s petition for review and REMAND



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     the case to the regional office for further adjudication in accordance with this
     Order.

                        DISCUSSION OF ARGUMENTS ON REVIEW
¶2            On December 31, 2014, the administrative judge automatically refiled this
     removal appeal for the second time. Defoggi v. Department of Health & Human
     Services, MSPB Docket No. DC-0752-14-0307-I-3 (I-3), Initial Appeal File
     (IAF), Tab 2.       The administrative judge also ordered the appellant to file a
     statement of intent indicating whether he intended to withdraw his appeal or, if he
     did not intend to withdraw his appeal, to “explain the relief he would be entitled
     to if he prevailed in his appeal before the Board.” Id. at 2. The appellant did not
     reply.     Citing the appellant’s failure to reply, along with the fact that the
     appellant was convicted of serious felonies and sentenced to a 25-year prison
     term, the administrative judge dismissed the appeal with prejudice as a sanction
     for failure to prosecute, finding “that the evidence supports a finding that the
     appellant intends to abandon his appeal.” IAF, Tab 3, Initial Decision (ID); see
     5 C.F.R. § 1201.43(b).
¶3            In his timely-filed petition for review, the appellant asserts that he never
     received the administrative judge’s order and was therefore denied the
     opportunity to respond to it before the deadline set forth therein. I-3, Petition for
     Review (PFR) File, Tab 1 at 2.            He attributes his criminal conviction to
     ineffective counsel from a public defender and claims that he has “retained a paid
     attorney who has managed to have two of the charges acquitted” and is
     challenging a third one in the U.S. Court of Appeals for the Eighth Circuit, the
     briefing of which was scheduled to be completed on April 13, 2015. Id. at 2-3.
     He opposes dismissal of his appeal with prejudice and asks that the Board defer
     its final decision until the Eighth Circuit rules on his criminal appeal. Id. at 3-4.
     The appellant also submitted a letter, dated October 21, 2014, to Chief Judge
     Laurie Smith-Camp of the U.S. District Court for the District of Nebraska
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     concerning the merits of his criminal case.       PFR File, Tab 3.      The agency
     responds in opposition to the appellant’s petition for review. PFR File, Tab 4.
¶4        Although the appellant claims that he did not receive the administrative
     judge’s order because he was incarcerated at the time, it was sent to the
     appellant’s address of record, 2 and he was responsible for notifying the Board of
     any change of address as well as for the timely forwarding of his own mail. See
     Jacks v. Department of the Air Force, 114 M.S.P.R. 355, ¶ 8 (2010); see also
     5 C.F.R. § 1201.22(b)(3).    Nevertheless, the Board’s regulations do not permit
     dismissal with prejudice as a sanction for failure to comply with a single order.
     Williams v. U.S. Postal Service, 116 M.S.P.R. 377, ¶ 7 (2011); see 5 C.F.R.
     § 1201.43(a). Dismissal may be an appropriate sanction for failure to prosecute
     an appeal, provided that the sanction is necessary to serve the ends of justice. See
     5 C.F.R. § 1201.43(b).    However, we have specifically held that the “extreme
     sanction of dismissal of an appeal for failure to prosecute should not be imposed
     for a single instance of failure to comply with a Board order.”           Burnett v.
     Department of the Navy, 71 M.S.P.R. 34, 38 (1996).
¶5        As we discern no bad faith on the part of the appellant in this regard, or any
     evidence that he intended to abandon his appeal, we find that, based on the
     aforementioned authorities the sanction of dismissal with prejudice was
     inappropriate. Instead, the Board has found that an appellant’s incarceration may
     represent good cause for dismissing an appeal without prejudice—i.e., for
     allowing an appellant to pursue his appeal at a later time, in this case following
     the exhaustion of his criminal appeals. E.g., Massey v. Department of the Army,
     31 M.S.P.R. 435, 436 (1986); Nunez v. Department of the Navy, 15 M.S.P.R. 476,
     479 (1983). For this reason, and because the appellant has indicated his wish to

     2
        See Defoggi v. Department of Health & Human Services, MSPB Docket No.
     DC-0752-14-0307-I-1, IAF, Tab 1; I-3, IAF, Tabs 2, 4. Although the appellant provides
     a new address of record with his petition for review, including a different person to
     which his mail is addressed “in care of,” PFR File, Tab 1 at 1, the order in question
     clearly was sent to the appellant’s then current address of record.
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proceed with the adjudication of his appeal, we REMAND this case to the
regional office.

                                    ORDER
      For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.




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