Joshua Milan v. Department of Defense ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSHUA MILAN, DOCKET NUMBER
Appellant, CH-0752-16-0574-I-1
v.
DEPARTMENT OF DEFENSE, DATE: July 27, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Joshua Milan, Shaker Heights, Ohio, pro se.
Juliana B. Pierce, Esquire, Indianapolis, Indiana, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal 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 de cision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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).
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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 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).
BACKGROUND
¶2 Effective August 19, 2016, the appellant was removed from his Contact
Representative position. Initial Appeal File (IAF), Tab 7 at 24. The appellant
filed a Board appeal of his removal and requested a hearing. IAF, Tab 1 at 1-6.
In a preliminary status order, the administrative judge ordered the parties to
participate in a telephonic status conference. IAF, Tab 4. The appellant failed to
appear at the status conference or notify the administrative judge of his
unavailability in advance. IAF, Tab 5 at 1-2. In a subsequent order, the
administrative judge ordered the parties to submit prehearing submissions and to
participate in a telephonic prehearing conference. IAF, Tab 6 at 1-2, 4. The
administrative judge warned the appellant that, if he did not file prehearing
submissions and/or appear at the prehearing conference or notify her of his
unavailability in advance, then she would dismiss the appeal for failure to
prosecute. IAF, Tab 5 at 2-3. The appellant failed to file a prehearing
submission, appear at the prehearing conference, or notify the administrative
judge of his unavailability. IAF, Tab 10. The administrative judge then issued an
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initial decision dismissing the appeal for failure to prosecute. IAF, Tab 11, Initial
Decision at 1, 3-4.
¶3 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly exercised her discretion to impose the sanction
of dismissal for failure to prosecute.
¶4 The sanction of dismissal may be imposed if a party fails to prosecute or
defend an appeal. See Williams v. U.S. Postal Service, 116 M.S.P.R. 377, ¶ 7
(2011); 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 comp ly. Williams,
116 M.S.P.R. 377, ¶ 7. Repeated failure to respond to multiple Board orders can
reflect a failure to exercise basic due diligence. Id., ¶ 9. Absent an abuse of
discretion, the Board will not reverse an administrative judge’s determination
regarding sanctions. Id., ¶ 7.
¶5 In Williams, the Board found that the appellant failed to exercise basic due
diligence in prosecuting her appeal when she made no attempt to respond to or
comply with any of the Board’s three orders, despite receiving explicit warning
that noncompliance with the show cause order could result in a dismissal of her
appeal for failure to prosecute. Id., ¶¶ 10, 12. The Board further found no abuse
of discretion in the administrative judge’s decision to impose sanctions by
dismissing the appeal for failure to prosecute. Id., ¶ 12.
¶6 The circumstances of the instant appeal are very similar to those in
Williams. 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 file prehearing submissions and/or appear at the prehearing conference
or notify the administrative judge of his unavailability could result in the
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dismissal of his appeal for failure to prosecute, we find that the appellant did not
exercise due diligence in prosecuting his appeal.
¶7 In his petition for review, the appellant alleges that he has been trying his
best to survive as a homeless veteran and that he “lost track of everything.” PFR
File, Tab 1 at 4. He further expresses his desire to be reinstated to his former
position. Id. The appellant’s assertions, without more, do not persuade us that
the administrative judge abused her discretion in dismissing his appeal. Although
we are sympathetic to the appellant’s situation, we find that the administrative
judge properly exercised her discretion to impose a sanction under the
circumstances of this case. See 5 C.F.R. § 1201.43.
¶8 Accordingly, we affirm the administrative judge’s decision to dismiss the
appeal for failure to prosecute.
NOTICE OF APPEAL RIGHTS 2
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 t ime
limit may result in the dismissal of your case by your chosen forum.
2
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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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).
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
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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. 420 (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 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:
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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
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. 3 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).
3
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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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
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.