Damon Long v. Office of Personnel Management ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAMON R. LONG, DOCKET NUMBER
Appellant, NY-0845-16-0302-I-1
v.
OFFICE OF PERSONNEL DATE: July 28, 2022
MANAGEMENT,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Damon R. Long, San Antonio, Texas, pro se.
Michael Shipley, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his appeal for failure to prosecute. Generally, we grant petitions such
as this one only in the following circumstances: 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A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative ju dges 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).
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interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative 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. 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, we conclude that the petitioner
has not established any basis under section 1201.115 for granti ng 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 On September 8, 2016, the appellant filed a Board appeal of an Office of
Personnel Management final decision finding that he had been overpaid in
retirement annuity benefits. Initial Appeal File (IAF), Tab 1. He subsequently
failed to appear for a preliminary status conference on September 30, 2016. IAF,
Tab 7. The administrative judge issued a show cause order on September 30,
2016, ordering the appellant to file evidence and argument showing good cause
for his failure to appear and rescheduled the status conference for October 11,
2016. Id. The appellant failed to appear for the status conference and did not
respond to the show cause order.
¶3 On October 11, 2016, the administrative judge issued a second order to
show cause and rescheduled the status conference for October 18, 2016. IAF,
Tab 11. The appellant again failed to appear for the status conference and did not
respond to the show cause order. On October 19, 2016, the administrative judge
issued a third show cause order and rescheduled the status conference for
October 24, 2016. IAF, Tab 12. The appellant failed to appear for a third status
conference, and so, on October 24, 2016, the administrative judge issued an order
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noting that he could not reach the appellant because the appellant had not
provided a telephone number on his appeal form or in response to a preliminary
status conference order. IAF, Tab 13. The three show cause orders informed the
appellant that failure to appear for the conference by telephone or in person may
result in the imposition of sanctions, including dismissal for lack of prosecution.
IAF, Tabs 7, 11-12. On October 25, 2016, the administrative judge issued an
initial decision, dismissing the appeal for failure to prosecute. IAF, Tab 14,
Initial Decision.
¶4 On December 7, 2016, the appellant filed a petition for review in which he
asserts that he did not receive any of the notices below because the address listed
on his appeal form was a temporary address, and he moved from New York to
Texas in late September 2016. Petition for Review (PFR) File, Tab 1 at 5. The
appellant also filed a motion to accept his petition for review as timely, asserting
that he did not receive the initial decision until December 7, 2016, when his car
was shipped to Texas and he discovered a box of mail in the back. PFR File,
Tabs 1, 5. The agency has opposed the appellant’s petition. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 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); 5 C.F.R. § 1201.43(b). Such a sanction should be
imposed only when a party has failed to exercise basic due diligence in
complying with Board orders, or has exhibited negligence or bad faith in its
efforts to comply. Id. Repeated failure to respond to multiple Board orders can
reflect a failure to exercise basic due diligence. Williams v. U.S. Postal Service,
116 M.S.P.R. 377, ¶ 9 (2011). Absent an abuse of discretion, the Board will not
reverse an administrative judge’s determination regarding sanctions.
Leseman, 122 M.S.P.R. 139, ¶ 6.
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¶6 The record reflects that the three show orders were sent to the appellant at
the address he provided on his appeal form. IAF, Tabs 7, 11-12. The preliminary
status conference order and acknowledgment order were initially sent to an
incorrect address. IAF, Tab 2 at 20, Tab 3 at 3. Thus, the appellant’s failure to
appear at the preliminary status conference on September 30, 2016, may have
been excused. However, both orders were subsequently sent to the appella nt’s
correct address of record on September 30, 2016. IAF, Tab 7 at 1 , 3. The
appellant did not respond to these orders or any of the other orders that were
properly served on him.
¶7 Although the appellant contends that he informed a customer service agent
that his address was temporary, PFR File, Tab 1 at 5, the Board’s regulations
provide that an appellant is responsible for notifying the Board in writing of any
change of address, 5 C.F.R. § 1201.26(b)(2). The Board’s appeal form similarly
notified the appellant of this requirement. IAF, Tab 1 at 7. Further, the appellant
does not contend that he ever informed the Board of his new address. The
appellant’s failure to keep the Board informed of his correct address delayed his
receipt of documents essential to his appeal and indicates a lack of due diligence
and ordinary prudence on his part. See Jacks v. Department of the Air Force,
114 M.S.P.R. 355, ¶ 8 (2010) (finding that the appellant’s failure to notify the
Board of a change in address caused a delay in his receipt of the initial decision
and did not reflect due diligence). We find that the appellant has not shown that
he exercised basic due diligence by timely updating his contact information so
that he could stay abreast of the developments in his appeal. Nor does the record
contain any evidence that the appellant took any steps to pursue his appeal
between September 8, 2016, when he filed his appeal, and December 7, 2016,
when he filed his petition for review.
¶8 Based on the foregoing, we agree with the administrative judge’s finding
that dismissal was an appropriate sanction, and we further find that the appellant
failed to exercise basic due diligence in prosecuting his appeal. Accordingly, we
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affirm the initial decision’s dismissal of the appeal with prejudice for failure to
prosecute. 2
NOTICE OF APPEAL RIGHTS 3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
2
In light of our decision, we need not address the timeliness of the appellant’s petition
for review.
3
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
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If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
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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 prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC 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, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
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other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 4 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. 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
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
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Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.