Vasquez v. Merit Systems Protection Board

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3202
GUADALUPE M. VASQUEZ,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Guadalupe M. Vasquez, of San Antonio, Texas, pro se.
Sara B. Rearden, Attorney, Office of the General Counsel, Merit Systems Protection
Board, of Washington, DC, for respondent. With her on the brief were B. Chad Bungard,
General Counsel, and Keisha Dawn Bell, Deputy General Counsel.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3202
GUADALUPE M. VASQUEZ,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
Petition for review of the Merit Systems Protection Board in DA0831080521-I-1.
__________________________
DECIDED: November 5, 2009
__________________________
Before GAJARSA, PLAGER, and LINN, Circuit Judges.
PER CURIAM.
Guadalupe M. Vasquez (“Vasquez”) appeals the final decision of the Merit
Systems Protection Board (“Board”), dismissing her appeal for failure to prosecute.
Vasquez v. Office of Pers. Mgmt., No. DA0831080521-I-1 (M.S.P.B. Nov. 14, 2008)
(initial decision); Vasquez v. Office of Pers. Mgmt., No. DA0831080521-I-1 (M.S.P.B.
May 14, 2009) (final order). Because we find no basis to overturn the Board’s decision,
we affirm.
Jessie R. Vasquez (“Mr. Vasquez”) retired from federal service effective July 31,
1975. At the time of his retirement, Mr. Vasquez was married to Bertha Vasquez, and
he elected to receive a reduced retirement annuity so as to provide for a survivor
annuity under the Civil Service Retirement System for his spouse. Mr. Vasquez and
Bertha Vasquez were divorced on July 10, 1978. Mr. Vasquez married the appellant,
Guadalupe M. Vasquez, on September 16, 1985.
After Mr. Vasquez’s death on March 24, 2008, Vasquez filed an application with
the Office of Personnel Management (“OPM”) for survivor annuity benefits. OPM
denied Vasquez’s application because Mr. Vasquez had not filed an election to provide
the appellant with a survivor annuity within two years of their marriage as required by
5 U.S.C. § 8339(j)(5)(C)(i) (2006). Vasquez timely appealed this decision to the Board.
The administrative judge (“AJ”) issued an order on September 26, 2008, setting a close
of evidence deadline of November 6, 2008, and scheduling a “close of the record
conference” on October 23, 2009, at 9:00 a.m. The order included a telephone number
and code for the parties to use in order to access the conference call. Vasquez v.
Office of Pers. Mgmt., No. DA0831080521-I-1 (M.S.P.B. Sept. 26, 2008) (order closing
the record).
When neither party telephoned at the scheduled time, the AJ rescheduled the
conference call and informed the parties that if the appellant failed to participate in the
rescheduled conference on October 31, 2008, Vasquez’s appeal could be dismissed for
lack of prosecution. Vasquez v. Office of Pers. Mgmt., No. DA0831080521-I-1
(M.S.P.B. Oct. 23, 2008) (order rescheduling close of record conference). When
Vasquez failed to either call in for the rescheduled conference or contact the AJ to
request rescheduling the call, the AJ gave Vasquez until November 13, 2008, to show
good cause for her failure to participate in the conference. Vasquez v. Office of Pers.
Mgmt., No. DA0831080521-I-1 (M.S.P.B. Oct. 31, 2008) (order to show cause). The AJ
2009-3202 2
made clear that absent such a showing, he would dismiss her appeal for failure to
prosecute. Id. Vasquez did not respond to this order and on November 14, 2008, the
AJ dismissed Vasquez’s appeal for failure to prosecute.
On January 5, 2009, Vasquez petitioned the Board to review the AJ’s dismissal.
With her petition, Vasquez provided documentation that she had been hospitalized from
August 20 to August 27, 2008, and that some effects of her illness remained which
limited her activity. On May 14, 2009, the Board denied Vasquez’s petition for review.
Vasquez v. Office of Pers. Mgmt., No. DA0831080521-I-1 (M.S.P.B. May 14, 2009).
Vasquez appealed this decision on June 16, 2009.
This court’s review of a decision of the Board is limited by statute. Under
5 U.S.C. § 7703(c) (2006), this court is bound by a decision of the Board unless we find
it arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
obtained without procedures required by law; or unsupported by substantial evidence.
See, e.g., Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1321 (Fed. Cir. 1999). Dismissal of
an appeal for failure to prosecute is an extreme sanction. Williamson v. Merit Sys. Prot.
Bd., 334 F.3d 1058, 1063 (Fed. Cir. 2003). 5 C.F.R. § 1201.43(b) (2009), however,
explicitly authorizes an AJ to impose such a sanction when a party fails to prosecute an
appeal. See Ahlberg v. Dep’t of Health and Human Servs., 804 F.2d 1238, 1242-43
(Fed. Cir. 1986) (finding the presiding official correctly dismissed an appeal for failure to
prosecute after petitioners failed to make any submission after two warnings).
In her informal brief, Vasquez argues the merits of her original case asserting
that Mr. Vasquez never received notice that he was required to make an election within
two years of his marriage and that his continuous receipt of a reduced retirement
2009-3202 3
annuity evidenced his intent to provide Vasquez with a survivor annuity. However, our
authority is limited to a review of the Board’s decision dismissing the appeal for failure to
prosecute. The merits of this case were not before the Board and it made no decision
about the facts relating to Vasquez’s right to a survivor annuity. We review only
whether the Board’s decision dismissing Vasquez’s appeal for failure to prosecute was
in error.
Vasquez provides no explanation, other than attaching the declaration referring
to her August 2008 illness, why neither she nor her representative participated in either
of the October 2008 conferences. Moreover, Vasquez does not explain why a
hospitalization in August would prevent her from participating in conference calls held
two months later. Finally, she has not explained why she did not respond to the AJ’s
order to show cause in November 2008. Vasquez’s informal brief offers no arguments
and cites no evidence as to why the AJ erred in dismissing her appeal for failure to
prosecute, and therefore provides no basis for us to rule in her favor. Vasquez was
twice given notice that absent her participation, her case would be dismissed. When,
despite such notice, Vasquez failed to make any submissions, the AJ properly
dismissed her case for failure to prosecute. In short, we are left with no basis to
overturn the Board’s dismissal of the appeal.
For the foregoing reasons, the Board’s decision is affirmed.
COSTS
No costs.
2009-3202 4