                      UNITED STATES OF AMERICA
                   MERIT SYSTEMS PROTECTION BOARD


HAROLD WILLIAMSON, JR., 1                       DOCKET NUMBER
             Appellant,                         SF-0752-13-4374-I-1

             v.

DEPARTMENT OF THE ARMY,                         DATE: January 23, 2015
            Agency.



           THIS FINAL ORDER IS NONPRECEDENTIAL 2

      Harold Williamson, Jr., Antelope, California, pro se.

      Annette B. Kuz, Esquire, San Francisco, California, for the agency.

      Jason DeRosa, Esquire, Portland, Oregon, for the agency.


                                      BEFORE

                         Susan Tsui Grundmann, Chairman
                         Anne M. Wagner, Vice Chairman
                            Mark A. Robbins, Member




1
 Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation. Corps of
Engineers/NW/South Pacific Division v. Department of the Army, MSPB Docket No.
SF-0752-14-0285-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   A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                      FINAL ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     dismissed his appeal with prejudice 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 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).

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        On June 4, 2013, the agency issued a Notice of Proposed Furlough
     informing the appellant, a Contract 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 7-9. It does not appear that
     the appellant responded to the proposal notice. By written notice dated June 24,
     2013, the agency’s deciding official informed the appellant that he would be
     furloughed as outlined in the proposal notice. See id. at 11-13.        The record
     includes a Standard Form 50 reflecting the appellant’s furlough, effective July 8,
                                                                                       3

     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. Id. at 7.
¶3           The appellant filed a Board appeal challenging the agency’s action but
     indicated that he did not want a hearing. See IAF, Tab 1 at 2. In a furlough
     procedures order, the administrative judge informed the appellant that his appeal
     had been consolidated with the appeals of similarly-situated employees. Corps of
     Engineers/NW/South Pacific Division v. Department of the Army, MSPB Docket
     No. SF-0752-14-0285-I-1, Consolidated Appeal File (CAF), Tab 2. On April 17,
     2014, the administrative judge issued an order in which she scheduled a
     telephonic status conference, a prehearing conference, and a close of record date.
     CAF, Tab 10.      In this order, the administrative judge cautioned that, if an
     appellant failed to appear for the aforementioned conferences or otherwise failed
     to follow her orders, she might issue sanctions pursuant to 5 C.F.R. § 1201.43,
     which could include dismissing the appeal for failure to prosecute. CAF, Tab 10
     at 4.     The record reflects that the appellant did not appear for the status
     conference or the prehearing conference.         See CAF, Tabs 12, 17.          The
     administrative judge’s June 6, 2014 order and summary of prehearing conference
     included an order for appellants who had not requested a hearing, instructing
     them to submit their written submissions in support of their appeals by June 30,
     2014. CAF, Tab 17 at 6. The appellant did not file anything by that date. In a
     July 3, 2014 order, the administrative judge directed appellants in the
     consolidated appeal who had not participated in any conference call or hearing
     and who had not filed any submission to indicate their intent to pursue their
     appeal to show cause why their appeals should not be dismissed for failure to
     prosecute. CAF, Tab 22. The appellant did not respond to the show cause order
     by the July 10, 2014 time frame.
¶4           On July 21, 2014, the administrative judge issued an initial decision,
     dismissing the appellant’s appeal with prejudice for failure to prosecute. IAF,
     Tab 4, Initial Decision (ID). In particular, the administrative judge found that the
                                                                                       4

     appellant failed to exercise basic due diligence in prosecuting his appeal because
     he, among other things, failed to appear for the scheduled status conference call,
     failed to submit a close of record submission or a response to the agency’s close
     of record submission, and failed to respond to the show cause order. ID at 2-3.
¶5        The appellant filed a petition for review, which the agency opposes.
     Petition for Review (PFR) File, Tabs 1, 3. On review, the appellant asserts that:
     (1) 9 months passed without any action required from him until the April 17,
     2014 hearing order; (2) he did not understand that the conference call was
     “mandatory,” instead of “optional”; and (3) he thought that the “final court
     decision concerning the furlough challenge” would apply to all of the appellants
     in the consolidated appeal. PFR File, Tab 1 at 4. He also states that he never
     intended to have the appeal dismissed. Id.
¶6        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, 2015 MSPB
     5, ¶ 6; see 5 C.F.R. § 1201.43(b). Such a sanction should be imposed 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. Id. (citing Davis v. Department of Commerce, 120 M.S.P.R. 34, ¶ 18
     (2013)).   Absent an abuse of discretion, the Board will not reverse an
     administrative judge’s determination regarding sanctions. Leseman, 2015 MSPB
     5, ¶ 6; Davis, 120 M.S.P.R. 34, ¶ 18.
¶7        In Leseman, an appellant in another consolidated furlough appeal failed to
     appear for the 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, and she was warned that her failure to participate in the
     appeal could result in the dismissal of her appeal with prejudice.             See
     Leseman, 2015 MSPB 5, ¶ 7.        The Board found that Ms. 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 it affirmed
                                                                                        5

     the administrative judge’s decision to dismiss the furlough appeal for failure to
     prosecute. Id.
¶8         The circumstances of the instant appeal are very similar to the
     circumstances in Leseman. Because there is no evidence that the appellant took
     any steps to pursue his appeal until he filed his petition for review, and he was
     warned that his failure to participate in the appeal could result in the dismissal of
     his appeal with prejudice, we find that the appellant failed to exercise due
     diligence in prosecuting his appeal.      We therefore affirm the administrative
     judge’s decision to dismiss the appeal with prejudice for failure to prosecute. See
     Leseman, 2015 MSPB 5, ¶ 7. The appellant’s assertion on review, that he did not
     realize that the conference call was mandatory, is belied by the administrative
     judge’s April 17, 2014 order, which informed him of the consequences of not
     appearing for any conference calls. Moreover, his assertion does not explain his
     failure to tender a close of record submission or his failure to respond to the
     administrative judge’s order to show cause. We have considered the appellant’s
     remaining arguments on review but they are unavailing.

                      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
                                                                                  6

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 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.
