                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     THERESE A. EDWARDS,                             DOCKET NUMBER
                   Appellant,                        CH-0752-13-2933-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: June 29, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL *

           Therese A. Edwards, Indianapolis, Indiana, pro se.

           Benjamin B. Hamlow, Indianapolis, Indiana, 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 furlough 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

     *
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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).
¶2        The appellant filed a timely initial appeal of her furlough following the
     budget cuts imposed pursuant to the President’s March 1, 2013 sequester order.
     Initial Appeal File (IAF), Tab 1. In her initial appeal, the appellant noted that she
     would represent herself in the course of her appeal. Id. at 5. The appellant’s
     initial appeal was consolidated with several other employees’ appeals, and the
     administrative judge issued a furlough procedures order outlining the processes
     she would follow in adjudicating the consolidated appeal. See MSPB Docket No.
     CH-0752-14-0704-I-1, Consolidated Appeal File, Tab 2. The appellant, however,
     did not participate in either of the telephonic status conferences scheduled by the
     administrative judge, and the administrative judge thereafter issued the appellant
     notice of her intent to dismiss the appeal with prejudice for failure to prosecute if
     she also did not participate in the hearing. IAF, Tab 8. The appellant did not
     appear for the hearing, and the administrative judge issued an initial decision
     dismissing her individual appeal with prejudice based upon both her lack of
     diligence in responding to the prehearing orders and her failure to participate in
     the status conferences and the hearing. IAF, Tab 10, Initial Decision (ID).
¶3        The appellant has filed a petition for review of the initial decision. Petition
     for Review (PFR) File, Tab 1. She asserts that she should have requested the
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     assistance of her union in prosecuting her appeal and she states that she
     inadvertently signed the designation of representative form reflecting that she
     would appear pro se in this matter. Id. at 3. However, she does not dispute that
     she received notice of the administrative judge’s orders. See generally id. The
     agency has filed a response in opposition to the petition for review. PFR File,
     Tab 3.
¶4         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, 122 M.S.P.R. 139, ¶ 6 (2015). Such a sanction should only be imposed
     when a party: (1) has failed to exercise due diligence in complying with Board
     orders; or (2) has exhibited negligence or bad faith in its efforts to comply. Id.;
     see Williams v. U.S. Postal Service, 116 M.S.P.R. 377, ¶ 8 (2011). The Board
     reviews an administrative judge’s dismissal for failure to prosecute under an
     abuse of discretion standard. Leseman, 122 M.S.P.R. 139, ¶ 6.
¶5         We have reviewed the record below and find that the administrative judge
     did not abuse her discretion in dismissing the appeal with prejudice for failure to
     prosecute. The record reflects that the administrative judge’s orders were sent to
     the appellant’s address of record included on the appellant’s initial appeal form,
     and she has not argued that she did not receive the orders. See PFR File, Tab 1 at
     3; IAF, Tabs 5, 8, 10. The administrative judge, moreover, clearly explained to
     the appellant the consequences of failing to participate in the hearing, and she
     provided the appellant an additional 5 days to submit evidence and argument why
     her appeal should not be dismissed with prejudice in the event that she did not
     participate in the hearing. IAF, Tab 8. The appellant did not participate in the
     hearing or submit any evidence or argument within the additional 5-day
     timeframe set by the administrative judge. Based upon the appellant’s failures to
     respond to the administrative judge’s orders and participate in the status
     conferences and the hearing, we fully concur with the administrative judge that
     the      sanction   of   dismissal   with   prejudice   is   appropriate.        See
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     Leseman, 122 M.S.P.R. 139, ¶ 7 (dismissing the furlough appeal for failure to
     prosecute based upon the appellant’s failure to respond to orders or participate in
     the hearing). The appellant’s proffered explanation on review that she mistakenly
     elected to proceed pro se, moreover, does not explain why she did not respond to
     any of the administrative judge’s clear orders or make inquiry into the status of
     her appeal prior to the issuance of the initial decision, and it does not provide a
     basis for overturning the administrative judge’s dismissal of the appeal with
     prejudice. See Williams, 116 M.S.P.R. 377, ¶ 9.
¶6         We agree with the administrative judge that dismissal with prejudice for
     failure   to   prosecute   is   appropriate   under   the   facts   of   this   case.
     Leseman, 122 M.S.P.R. 139, ¶ 7.       The administrative judge’s initial decision
     dismissing the appeal with prejudice for failure to prosecute is AFFIRMED.

                     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
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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 appeal to
the 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:                                 ______________________________
                                               William D. Spencer
                                               Clerk of the Board
Washington, D.C.
