Ronda Vincent v. Department of the Navy

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RONDA VINCENT, 1 DOCKET NUMBER
Appellant, PH-0752-13-3983-I-1
v.
DEPARTMENT OF THE NAVY, DATE: August 23, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Ronda Vincent, Annapolis, Maryland, pro se.
Katharine E. Orlowski and Paul A. Walker, Fort Meade, Maryland, 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 for failure to prosecute. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
1
Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation. Navy
Cyber v. Department of the Navy, MSPB Docket No. PH-0752-14-0428-I-1.
2
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
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
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. 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, 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 On May 31, 2013, the agency proposed to furlough the appellant, a
Financial Management Analyst, for no more than 11 workdays due to “the
extraordinary and serious budgetary challenges facing the Department of
Defense . . . for the remainder of Fiscal Year . . . 2013, the most serious of which
is the sequester that began on March 1, 2013.” Initial Appeal File (IAF), Tab 3
at 4, 11‑13. The record includes a Standard Form 50 reflecting the appellant’s
furlough, effective July 8, 2013, on discontinuous days between July 8 and
September 27, 2013. Id. at 8.
¶3 The appellant filed a Board appeal challenging the agency’s furlough
action, but did not request a hearing. IAF, Tab 1 at 2-3. In a furlough procedures
order, the administrative judge informed the appellant that her appeal had been
consolidated with the appeals of similarly situated employees. Navy Cyber v.
Department of the Navy, MSPB Docket No. PH-0752-14-0428-I-1, Consolidation
Appeal File (CAF), Tab 2. In a close-of-record order, the administrative judge
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ordered the appellant to file any additional evidence and argument in support of
her appeal by July 9, 2014. CAF, Tab 4 at 3. The appellant did not respond to
the close-of-record order. In an order to show cause, the administrative judge
ordered the appellant to file a pleading by March 30, 2016, indicating whether she
was still interested in pursuing her appeal. CAF, Tab 6 at 1. The administrative
judge cautioned her that failing to follow Board orders could result in a dismissal
for failure to prosecute and explicitly stated that, if she did not respond to the
order, then he would presume she no longer wished to pursue her appeal, and
would dismiss it for failure to prosecute. Id. She failed to respond to the order to
show cause. CAF, Tab 8, Initial Decision (ID) at 1-2. The administrative judge
then issued an initial decision dismissing the appeal for failure to prosecute. Id.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has not filed a response to the appellant’s petition.
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. Leseman, 122 M.S.P.R. 139, ¶ 6. 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.
¶6 In Leseman, the appellant in another consolidated furlough appeal failed to
appear for a scheduled status conference and prehearing conference, failed to
submit a close-of-record submission, and failed to respond to the administrative
judge’s show cause order, despite being warned that her failure to participate in
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the appeal could result in the dismissal of her appeal with prejudice. Id., ¶ 7.
The Board found that the appellant in Leseman failed to exercise due diligence in
prosecuting her appeal because she failed to take any steps to pursue her appeal
until she filed her petition for review, and the Board affirmed the administrative
judge’s decision to dismiss the furlough appeal for failure to prosecute. Id.
¶7 The circumstances of the instant appeal are similar to those in Leseman.
Because there is no evidence that the appellant took any steps to pursue her
appeal until she filed her petition for review, and she was warned that her failure
to respond to the order to show cause would result in the dismissal of her appeal
for lack of prosecution, we find that the appellant did not exercise due diligence
in prosecuting her appeal.
¶8 In her petition for review, the appellant alleges that she did not receive the
close-of-record order. PFR File, Tab 1 at 4-5. The appellant’s assertions on
review, without more, do not persuade us that the administrative judge abused his
discretion in dismissing her appeal. Both the close-of-record order and the show
cause order were served on the appellant via email through the Board’s e-Appeal
Online system. CAF, Tab 4 at 5, Tab 6 at 2. The appellant does not contend that
she did not receive the order to show cause and does not provide any explanation
for her failure to respond. Moreover, as a registered e-filer, the appellant
consented to accept documents issued by the Board in electronic form. IAF,
Tab 1 at 2; see 5 C.F.R. § 1201.14(e)(1). Under the Board’s regulations, e-filers
are responsible for ensuring that email from @mspb.gov is not blocked by filters,
5 C.F.R. § 1201.14(j)(2), and for monitoring case activity at the Repository at
e-Appeal Online to ensure that they have received all case-related documents,
5 C.F.R. § 1201.14(j)(3). Additionally, Board documents served electronically on
registered e-filers are deemed received on the date of electronic submission.
5 C.F.R. § 1201.14(m)(2). Thus, we find that the administrative judge properly
exercised his discretion to impose a sanction under the circumstances of this case.
See 5 C.F.R. § 1201.43.
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¶9 For these reasons, we affirm the administrative judge’s decision to dismiss
the appeal for failure to prosecute.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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
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 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
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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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.