Brown v. Merit Systems Protection Board , 455 F. App'x 982 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
DONNA BROWN,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3044
__________________________
Appeal from Petition for review of the Merit Systems
Protection Board in Case No. CH0752100371-I-1.
___________________________
Decided: December 22, 2011
___________________________
DONNA BROWN, of Chicago, Illinois, pro se.
SARA B. REARDEN, Attorney, Office of the General Coun-
sel, Merit Systems Protection Board, of Washington, DC, for
respondent. With her on the brief were JAMES M.
EISENMANN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________
BROWN v. MSPB 2
Before NEWMAN, O'MALLEY, and REYNA, Circuit Judges.
NEWMAN, Circuit Judge.
Donna Brown seeks review of the decision of the Merit
Systems Protection Board ("MSPB"), dismissing her appeal
for failure to prosecute. Brown v. Dep’t of Veterans Affairs,
116 M.S.P.R. 85, 2010 MSPB LEXIS 6085 (M.S.P.B. Oct. 15,
2010). We affirm.
BACKGROUND
Ms. Brown was terminated from her employment as a
Patient Services Assistant with the Department of Veterans
Affairs (the “VA”) on February 26, 2010. She appealed to
the MSPB, identifying Anne K. Igoe of the Service Employ-
ees International Union as her designated representative.
The VA filed a response, and on April 8, 2010, the VA filed a
motion to compel Ms. Brown’s appearance for a discovery
deposition, stating that Ms. Brown had not responded to
deposition requests. In a telephone conference on April 15,
2010, the Administrative Judge (“AJ”) informed Ms. Brown
of the importance of cooperating with the agency’s discovery
requests.
On April 16, 2010, Ms. Igoe withdrew from representa-
tion of Ms. Brown. On April 19, 2010, the AJ issued an
Order for Ms. Brown to appear at a discovery deposition on
May 3, 2010 at 10:00 AM, stating that failure to comply
could result in the imposition of sanctions, including dis-
missal of the appeal for failure to prosecute. Ms. Brown
contends that she attempted to contact the agency’s lawyer
to reschedule this deposition but was unable to do so, stat-
ing in her Petition for Review by the MSPB:
lawyer went out town, told her I could not make it
the 3rd, she should call back to set another date, we
3 BROWN v. MSPB
had 30 days. She never did; when called her got no
answer.
The VA states that its representative attempted without
success to contact Ms. Brown on the morning of May 3, 2010
at Ms. Brown’s residential and cell phone numbers. Ms.
Brown did not appear for the deposition on May 3, 2010.
On May 5, 2010 the VA moved to dismiss the appeal for
failure to prosecute. Ms. Brown filed no response to the
motion. On May 27, 2010, the AJ issued an Order to Show
Cause why the appeal should not be dismissed, stating that
failure to respond would result in dismissal of the appeal.
Ms. Brown filed no response. On June 16, 2010, the VA
certified to the MSPB that it had not been contacted by Ms.
Brown with respect to the various orders, and that Ms.
Brown had not responded to discovery requests. On June
23, 2010, the AJ dismissed the case for failure to prosecute.
Ms. Brown sought review from the full MSPB, attribut-
ing her failure to appear at the deposition to the unavail-
ability of the VA’s counsel prior to that date, and also noting
the withdrawal of her Union representative. Ms. Brown
made no mention of her failure to respond to the Order to
Show Cause, stating that “I have complied with all other
procedures I received.” The full MSPB denied review; this
appeal followed.
DISCUSSION
On this appeal, Ms. Brown argues that her termination
was wrongful. With respect to the dismissal for failure to
prosecute, she states: “I wasn’t aware of what ruling, I was
not allowed to defend myself verbally, or allowed union or
any type of representation.” Pet’r’s Br. 1.
BROWN v. MSPB 4
The MSPB has authority to dismiss a case for failure to
prosecute. See 5 C.F.R. §1201.43(b) (“If a party fails to
prosecute or defend an appeal, the judge may dismiss the
appeal with prejudice or rule in favor of the appellant.”)
However, the severe sanction of dismissal should not be
imposed unless it is clearly warranted. In Williamson v.
M.S.P.B., 334 F.3d 1058 (Fed. Cir. 2003), this court stated:
The [MSPB’s] precedent notes that such an “ex-
treme sanction of dismissal of an appeal for failure
to prosecute should not be imposed for a single in-
stance of failure to comply with a Board order. In
the absence of bad faith or evidence that an appel-
lant intends to abandon his appeal, dismissal for
failure to prosecute is generally inappropriate.”
Burnett v. Dep’t of the Navy, 71 M.S.P.R. 34, 38
(1996) (overturning a dismissal based on failure to
respond to timeliness portion of Acknowledgment
Order) (citation omitted).
Id. at 1063.
Precedent counsels accommodation of pro se petitioners
who may not fully understand MSPB procedures. Wright v.
Dep’t of the Treasury, 53 M.S.P.R. 244, 249 (MSPB 1992).
Nevertheless, this court has held that dismissal is war-
ranted in the absence of a good faith attempt to comply with
the MSPB’s orders. Toquero v. M.S.P.B., 982 F.2d 520, 522
(Fed. Cir. 1993). In Ahlberg v. Dep’t of Health & Human
Serv., 804 F.2d 1238 (Fed. Cir. 1986), this court stated:
The presiding official correctly treated the Ahlberg
petitioners’ failure to make any submission, after
twice being told to do so, as a failure to prosecute
their appeal, as he had warned them he would do.
5 BROWN v. MSPB
The regulation explicitly authorized him to dismiss
the cases for such failure.
Id. at 1242.
Ms. Brown has not shown an attempt to comply with the
AJ’s orders or the VA’s discovery requests. She provided no
response or communication as to the VA’s Motion to Dismiss
or the AJ’s Order to Show Cause. These documents are not
obscure or ambiguous, and the time and manner of response
were clearly stated. The dismissal for failure to prosecute
was within the Board’s discretionary authority, and is
affirmed.
AFFIRMED
No costs.